KUPALOURD CONSTI 4th

STATE- however you may define, siguraduhin mo you have all the (4) elements: people, territory, sovereignty,
Emphasis on people- BONG LOURD
Community of persons/people more or less numerous occupying a fixed and definite portion of territory having a system
of government by which the people express their will and free from external control and has the power to command and
demand obedience to its people

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GOVERNMENT- the agency by which the people expresses their will through (??) .
-

As to how many are in charge of governing

1. Monarchy rule of 1
2. Aristocracy rule of the few
3 democracy rule of the many. In greek, demos means many

Relationship of Exec and Leg

o
Presidential
o
Parliamentary- fusion of powers in the exec and legis
Central or other govt
Unitary govt only one unit- ito Pilipinas, altho nirerecognize as a policy of the state yung autonomy of LGUs e.g. leak ng
tubig- mas ok pag decentralized para mas napagtutuunan ng pansin; maganda I empower LGUs, kaso satin ine empower
lang sila sa administration , hindi poilitical power, so they can speed up services, but not a grant of decentralized power,
only administration, no abdication of political powers to local units
Federal- states within a state; kingdoms within a kingdom, e.g. US(states within a state) and United Kingdom (Kingdoms
within a Kingdom)
Ang UK, kaya federal, dati kingdoms na yon magkakahiwalay, so kingdom against another kingdom.
Ang US, dati bakanteng lupa lang yan. Dumating Europeans, sinakop sila. Nagkatoon ng Civil War, gusto magsama sama.
Orig, 13 lang nag sign ng independence from UK. Singinan sa Pennsylvania. Later, lumaki ng lumaki kasi isang malaking
land mass sila. Nagtayo ng federal, retained power but there will be a federal state with powers. They did not join until
certain their rights wil be respected. Sabi sa Bill of Rights, amendments. Dinagdag nalang.

Kung mag f federal tayo, dati sama sama ngayon maghihiwalay. Unique tayo.

Presidential

Parliamentary

Exec and Legis

exec and legis

-elected directly by the people

people elects the members of the parliamentary

-mandate directly to the people

pag 2-party system, minority (opposition) & majority (govenrment)

Majority will elect prime minister- magpapatakbo, katulong niya cabinet,
kapartido rin, hindi siya mataas sa iba parehas sila members of parialement. He
is only first of equals
-siya mag I implement, pwede rin siya tanggalin
Minority kelangan din ng leader otherwise, magkaroon ng coalition
Opposition check and balanace of the govt- may lider din dito at may cabinet din
(shadow cabinet)
- swelduhan din ng gobyerno
But in a parliamentary govt is not the head of the State, siya lang nagpapatakbo.
Merong head of state. Simbolo of nation.
Regular ang term. Yung dating minority magiging majority. Pag bago prime
minister, change of government.

Dating sakop ng UK (e.g. Australia), head of state nila Queen Elizabeth pa rin. Pero hindi independent na sila.

Head of government and head of state president

Head of government- real powers
Head of state- ceremonial; nominal powers

KUPALOURD CONSTI 4th

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Sa France, both pres and prime minister real powers naka define lang sa Consti which is which

The best govt is what fits the culture tradition history of the people. Sino mag d decide non?
Maganda sa parliamentary, pag magaling prime minister, dyan ka lang. pag hindi, kahit 1 week palang tanggal na.
Sa presidential system, wait 6 years palagi.

Federalism, relationship of the central government to the Local government.

Kung government was established according to tis Consti, you call that de jure.
If established partly or entirely, it iexists as a government in fact but not organized in accord with its laws, De Facto

Cory Government- De Jure- by the will of the people, the will of the people is the Supreme Law

Pagka De Facto (belligerent?) yung government !?!??!?!, what happens to its laws? Walang effect regarding civil laws, unless they
amend it. But with regard to Poli laws, pag pumasok belligerent State, then they impose their own poli laws. Poli laws suspended.
Pag umalis sila, balik uli Poli Laws.
Nag divorce nung panahon ng hapon ng americans, effective yon!
Sovereignty hindi nawawala kahit sakupin ka pa. nung panahon ng hapon, sovereignty natin US pa rin, legal yon e. Suspended Poli
laws. In order to win sympathy of the people, hindi ba kayo binibigyan independence? Kami magbibigay! So are we free? Hindi. Kasi
sovereign ang US sila magbibigay satin non.
Mickey mouse money- so may utang ka sa isang tao nung panahon ng hapon, nawala hapon, wala ka ng utang? MERON PA RIN!
Pano bayaran non? Conversion nalang.
Sa local government, may tinatawag din de facto and de jure. Dejure mun corp- established with all the reqs for its creation
De facto- there is a law, there is colorable compliance,there is attempt pero hindi pa rin na establish
e.g hindi dumaan sa plebiscite, pero nag ooperate de facto siya
how can you challenge the legal existence of a de jure mun corporation? No you cant challenge. Impregnable to any attack. Pag
defacto, you want to challenge the leg existence, well you cannot. Can only be challenged by Petition for Quo Warranto (by what
authority) by the State. Direct Attack. Hindi pwede yung collateral attack. Inhabitant ka ron sa local govt, ayaw mo magbayad ng
tax kasi hindi siya leg created- this is a collateral attack. Direct attack tax. Collateral creation of local government

pero pag absolute nullity kahit nag e exist pa siya, GMA nag create ng 33 municipalities. Sabi SC, GMA la ka power. Yan complete
nullity. Can be challenged by any any.

SOVERIGNTY-the sup power of the State to command and demand obedience

Technically, yung def na yon is what you call internal sovereignty.
External sov is the power of the State to exercise its power independent from from external control
Legal sov- possession of unli power given to the State to issue commands
Poli sov- sum total of all the influences in a State
Sovereignty resides in the people. All government authority emanates from them. Kaya nga we are a democratic state. The govt of
the people by the people.

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Pero hindi kaya lahat ng tao nasa gobyerno. So we choose representatives. A rep government is a republican govt. both a
democratic and a republican state. It continues to exist without interruption. Exclusive there is only one supreme power. Inalienable
imprescriotible.
When state exercises its power it is an act of dominium OR proprietary private or ministerial functions. (discretionary)
When state enact laws in order to secure obedience from people- imperium governmental functions, constituent functions. The
very functions why a govt is created. (e.g. collection of taxes)
Imp: sa expropriation, suability
Act of the State is an act done by or under the authority of sovereign power
When the people choose representatives to exercise their sovereignty for them, that is indirect exercise of sovereignty
DIRECTLY- during election, plebiscite, revolution, initiative, referendum

IMMUNITY FROM SUIT

Otherwise called, the royal prerogative of dishonesty. Bec its unfair you have a legit claim, you cant sue.
Royal- first existent in monarchal states just like regalian doctrine
Principle: who are immune from suits?
1 the state Art 16 Sec 3 The State may not be sued without its consent;
Rational: if you allow the State to be sued, you are suing the people in the govt who run the govt, If everyone sues them, public
safety will be endangered, delivery of service affected. Especially sa Pilipinas, sue ng sue instead of attending to his functions.

You cannot sue the State which gave you the power to sue. No legal right on the authoriryty which makes the law a legal offense.
Youll be suing the sovereign power.
In Rep v Feliciano, 1987 case,SC said a suit for recovery of prop in the possession of the govt is an action in personam, not in rem.
Thus youre suing the person or the State who is in actual possession of the property and it cannot be allowed. The only time it can
be sued if CONSENT is given.
There are diff kinds of consent given.
1 express consent, can only be given by the legis
2 by express provision of the lawgeneral law, it allows the state to sue and be sued. E.g. ACT 3083 and Common Act , amened by
PD 1525? Dealing with money claims arising from contracts, must first be filed on COA before institute action in court. When you
file it in COA, later you can file it in courts. General law.

DA v NLRC- suit against dept is a money claim based on contract so the govt enters into contract with a private corpo it can be
sued.
However, there are exceptions. This immunity from suit cannot be used to perpetuate injustice. E.g. the govt entered into an
agreement with a private corpo construction firm to repair the roads. Agreement P20M, initially half paid, other half paif upon
construction of the road. The old projects of the govt pending should not exceed 15M, nabawasan agreement, ibabayad nalang 5M.
sinue govt. sabi govt. we are immune from suit, aside from the fact that this is a money claim, immunity cannot be used to
perpetuate injustice. UNJUST ENRICHMENT at the expense by another
3 special law- special decree, allows the IRRI to be sued by special law
In the New Civil Code, 2118, LGU when acting thru a special agent and it caused damages arising out of quasi delict or torts, the
LGU may be sued. BUT NOT if acting thru a regular agent.
Kunwari may dept city, waste disposal, may truck nangongolekta basura. Driver non nagkasakit, so nag hire sila driver na hindi
naman yon trabaho niya at nakasaga at nakaaksidente, the LGU should be liable bec it acted thru a special agent.
ART 32 of the CC peace officer who refuses to render aid to a person which caused injury or death to a person or property,
personally liable, if cannot pay, govt subsdiarily liable.
If the LGU maintains a nuisance. If nuisance abated, for maintining it may be sued or held liable.

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Illegal collection or mistaken collection of taxes, the LGU may be sued and it is liable for the return of the tax and be liable in the
form of interest.
What about govt corpo? Can they be sued? Can they invoke immunity from suit?
Make the distinction

If govt corpo, may separate and own independent personally with a law expressly gtanting it power to sue and be sued YES e.g.
GSIS
If not vested with separate legal personality NO adjunct of the govt. govt may not be sued without its consent.
Evem if not vested with legal personality, but in performance of propriety or private functions. Can be sued!
4 implied consent- when the state files an action against a person, and person files a counterclaim. State cannot invoke immunity,
ikaw nga unang nag file ng kaso e.
If State intervenes and asks for affirmative relief, tapos nag file ng sagot kalaban, they cannot invoke immuntity from suit bec
unfair
BUT if file an intervention without affirmative relief, they are immune from suit
Rep v Sandiganbayan? Rep seeks to nullify the SB resolution to pay Benedicto. The govt here cannot seek immunity bec its the one
who filed the action against BEnedicto
When State enters into a business contract. When they enter, they descend to the level of any busniness corpo. Act of proprietary
function. Bus contract etc. Jure Gestionis.
BUT if act of the state, cannot be sued. You have to distinguish is it a business contract or a contract in the exercise of sovereignty
Dati madali lang, pag nag enter ng contract, can be sued na!
1985, SC made a distinction US v Ruiz, if the contract is contract in order to pursue an act of imperium, sovereign power, even if it
enters into contract cannot be sued. If not in the performance, cannot be sued! Contract entered for repair of keme.

What about LGUs? Can they be sued? In the perf of proprietary functions, can be sued! What if govt function, YES Sec 22 of the
LGU, allowed the LGUS to sue and be sued. Pag LGU sinue, you dont have to make distinction either private or govt function

Foreign States- in Intl law, a State cannot sue another state bec of principle of equality. Sovereign equaloity of States. One cannot
assert jurisdiction over the other State, this will destroy the peace of the Nations.
2 Schools of Thought
1 Classical / Absoulte Theiry- a sov state cannot without its consent be sued in the court of another state at any cost for whatever
reason it cannot absolute theory!
2 restrictive theory- immuntity of sov state is recog only for acts jure imperii, not for acts jure gestionii- ito sinsunod natin ngayon.
What are the tests if act of jure imperii or jure gestionii?
TESTS:
If the state enters into a contract with private prop as a subject matter. Malamang yan thats a jure gestioni
Kung di mo ma test don, another test, foreign states, tignan mo activity ng foreign states in the regular course of business. If they
do this in the regular, malamang jure gestioni.
If not, test the nature of the part act or transaction, is it for profit or gain? Jure gestioni . is it in the exercise of sovereign keme,
jure imperii

International Org and Specialized Agencies like the WHO

Same rules as foreign states, but not because they are in parem or equal, they are immune bec of intl agreements.
SO bec we enter into that intl agreement, we are obligated to follow that. Unv accepted prin of intl law.

Re: diplomats e.g. ambassador

KUPALOURD CONSTI 4th

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An ambassador represents his state. Whatever he does is an act of the foreign state. Representative of that foreign state. Whether
criminal civil or admin suit. REMEDY: I request yung sending state to recall the ambassador and that they take legal action in their
jurisdiction NOT HERE
Pagdating sa Civil and Admin, may exception: hindi immune. In international law,
1.

2.

3.

REAL ACTIONS relating to private immov property sit in the territory of the receiving State. E.g. ambassador bumili
bashay bakasyunan sa Baguio, di nagbayad ng last installment, pwede i-sue. Pinag tatalunnan ownership hindi possession
e this is a private immov property, cannot invoke immunity. EXN: his holding that real property in behalf of the sending
State, kasi hindi naman sa kanya yon
Actions relating to succession in which he is admin, exec, heir, or legatee as a private person. So pinamanahan siya or
admin siya ng isang property executor, he cannot invoke immunity from suit. EXN: hes doing that on behalf of the
sending State
Actions re: to any professional or commercial act, outside his official function. E.g. ambassador ng india to the Phils,
sideline nagbebenta kulambo, hindi kasama sa official function niya yon.
e.g. Ambassador to Indonesia enters into a contract with a private firm to repair aircon sa office, bahay at bahay
bakasyunan sa Baguio. For those performed in the embassy, CANNOT BE SUED. Official residence, cannot be sued official
function. PERO YUNG SA BAGUIO, outside na yon!

What about the staff of diplomatic kemelar. Diplomatic retinue or suite. Technical or administrative staff of diplomat or embassy.
For crim, immune from suit.
For civil, only immune for official acts.

What about public private? servants of the diplomatic missions?

Ambassador to Germany sinama driver. Ganon din privileges, Exempt from taxes and dues. BUT not from crim civ or admin
functions. And such other priveleges as maybe granted by the receiving state.
Pero kunwari German Ambassador, dito kumuha katulong sa Pinas, THEY DONT ENJOY SUCH PRIVILEGE

CONSULS are not diplomats. They do not represent the State in poli matters. Function is for commerce and navigation. Issuing
passports and visas and protecting their nationals in the foreign state like OFWs abroad. But they are not diplomats bec they do not
represent their country in poli matters. However. Enjoy certain privileges but not like diplomats/ambassadors. Consuls family
private staff enjoy ff:
1.
2.
3.

4.

5.

Right to official communication (privileged comm)

Inviolability of archives
Exempt from crim jurisdiction in the discharge of official functions but not local laws
a.
Pag di official funcrtion, not exempt. E.g. Camp John Hay, may goal course, 19 th goal? Sarap mag breakfast
don. So meron isa ron cook na Pilipino, isa Pilipino isa amerikano rin, Supervisor nila tinerminate sila for some
reason in violation of the labor code of the Phils and in violation of the agreement allowing them to stay in the
Phils. Are they immune from suit? NO bec violation of laws not part of their official functions.
Exempt from civil suits but only in the discharge of official func not in personal or private capacity
a.
Ayaw niya magbayad damages kasi off function niya raw yon to supervise sabi SC hindi niya official function to
violate laws
Exempt fromt tax customs dutues social security rules service in military they have the privilege of displaying their State
flags in the consulate consul e.g. may sinmapahan kaso na foreigner invoking immunity from suit either perf act of
state, a diplomat, or an intl org, or UN, halimbawa, Iranian ambassador nag enter ng agreement contract sa isang
amerikano para magbenta ng carpet. Yun pala yung amerikano tauhan ng drig enforcement agency ng US at
iniimbistegahan Iranian kung nagpapasok ng drugs, e nagpapasok ng mga goods tong Iranian, inintercept ng pulis, na
confiscate ng mga pulis, sinabihan na ang court na he is immune from suit bec he invoked it. DFA suggestion: oo immune
from suit yan. SC: hes immune from suit. Question: does the person enjoy diplo immunity or not? Pag sinabi ng exec na
he is immune, poli question not justiciable bec that eaction is vested in the Pres in the exec branch. That court cannot
inquire won immune.

SA US at UK, para di nagkakagulo pag may sinampahan, meron guidelines ginawa ang legis at exec. Yung kanilang foreign office
they give suggestion to the courts won that person is immune. In fcat may listahan na sila. Pinas, walang ganon.
Ginawa ng SC, it came out with a temporary guideline kasi wala ginagawa legis and exec at ang sabi ng SC para malaman ng court
WON there is diplo immunity pwede manggaling yung suggestion from dept of foreign affairs. Hingi ka ng papel sa DFA to cerify
that you are diplomat tawag don suggestion

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OR whether invoked by respondent as a defense, respondent thru lawyer can directly invoke immune from suit, court can directly
rule. Court to determine kung wala suggestion sa DFA based on fcats circ and transaction involved
Under the Vienna Convention on Diplomats 1951. Foreign Offices DFA are the ones in charge who are the persons or agencies
covered. Hindi lahat ng bansa may foreign affairs.

What about the President of the Phils? When is he immune from suit?
1 immune civil crim admin during his term ONLY, lalo na admin kasi highest penalty is termination you can only remove by
impeachment. Kung crim naman, kasama don disqualificstion parang impeachment na rin, BUT after his term, he can be sued, crim
civ admin, BUT NOT FOR performing of official acts. Bakit bilateral relations sa Russia? Bumili ka armas, this is official function, its
his prerog. But not for official acts like ordering shoot to kill.
What about acts committed before his term covered? After siguro ng term of office. Nung nakakulong ERAP, sinabihan GMA
apagandahin mo naman tong kulungan, kasi after term mo ikaw naman dito.
Pero sa writ of amparo, pwede isama president as one of respondents. The writ does not determine liability but wants to determine
who are responsible and accountable not liability. Pwedeng maging acc and res kung masusunod command and responsibility. Trace
that with the events

Members of Congress? Not immune. Not even the VP.

Congress immune from arrest while in session for minor offenses, if not in session, you can be arrested. Kasi baka taktika lang para
di makaboto. Yun reason why immune from arrest not from suit.

Instances when suit against public officers are not considered as suits against the State.
In a petition for mandamus, to compel a public official to perform a function required by law, he can be sued. Otherwise, wala ng
petition for mandamus, e ang function e to file against a public official to perform an action.
In a petitition for prohibition against a PO, may order gibain iskwater, kinwestyon mo nag file ka PWEDE YON
For private acts or personaly capacity, la namn kaugnayan sa function niya,
ULTRA VIRES Act, beyonf power
Bad faith, malice, gross negligence

Liwayway Siato? Nag issue circular na hindi na publish walang public notice. Violation of certain procedures. Oo may flaws pero
without malice so therefore, sino mananagot ng damages niya? NAG STATE.
You will make the State liable.

Distinguish SUABILITY v LIABILTY

SUA- depends on the consent of the State- Did it give consent? Express or implied?
LIA- depends on the app law and est facts
Ano established facts? Is it in the perfor of private or sovereign?
TEST: if the damages to be awarded, e kelangan appropriation money from govt, then thats a suit against govt, govt cannot be
liable. Pag nag release funds kelamgan mo ng appropriation.
e.g. liwayway ciago? Wala naman siya malice, sino magbayad government, government liable. But cannot be made liable kasi
kelangan appropriation

if state gave CONSENT, not automatic LIABLE AGAD! Napatunayan they are perf govt functions, then will not be liable even if
allowed itself to be sued. E para saan give consent to be sued does not give consent to be liable. It only gives you a chance that
their act is not government but proprietary function and therefore, exempt from liability.
Express provision sa law, even if they do not consent they may be sued.

KUPALOURD CONSTI 4th

So pag nag p perform proprietary they can be sued they can be liable

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So pag govt , they can be sued but cannot be necessarily held liable

LGU may bago provision, under Sec 24, nakasaad liability for damages. LGUs and their officials are not exempt from liability from
death or injury to persons or damage to property.
So ibig ba sabihin, even if they are perf govt functions and acting thru a regular agent, not special agent, they can be liable?
e.g. nagllakad mama sa sidewalk, nabagsakan ng window pane ng city hall, can LGU be sued? YES. Can it be liable? YES. 2181?? In
case of defective roads, buildings, public structures under the control or supervision of the LGU, they should be liable.
Teotico v Fontanilla, nahulog sa manhole. Express provision ng law e. what if wala sa law, they are performing govt fucntions,
nakasagasa dricver, regular agent, will the City be liable?
Nagpapalong argumento: 1 school of thought
Despite sec 24, LGU in the perf of govt functions shall not be liable , actually nakasulat pa nga, it can be sued but cannot be liable
Another school of thought, BONGLOURD, with due respect to Sen Pimental, author of the law, hindi pa rin liable can only be sued if
perf of govt function. 1. Well, stat con, ang nakalagay LGUS are not exempt, bukod sa negative mandatory yon. 2. If the law does
not qualify, you should not qualify; 3. Sec 22, can sue and be sued, bakit pa lalagay Sec 24? Pag may bago provision na bago
intention, idagdag. Otherwise, batb mo pa lagay yon? 5. Ang linaw ng batas, you dont have to interpret when the law is clear

PRINCIPLES

PREAMBLE- is the preamble a part of the constitution? YES, in fact it is the first part ofthe Consti, but not an essential part, bec it
grants no power, creates no office, no privilege,
PREAMBULARE- to walk before, to 1. serve as an intro, 2. It tells you who are the authors of the Consti, Filipino people. 3. It tells
you why did they write a consti: they ordain and promulgate the Consti but WHY??????? They ordain and promulgate in order to
build a just and humane . to establish a government establish ideals, promote common good, secure to ourselves democracy
They did not ordain and promulgate the consti not to implore the aid of almighty God.
We, , to ordain and promulgate the Consti. Everything in between the two commas is just an explanation WHY?
Whole clause- tawag don adjectival clause, tanggalin mo man yon, buo sentence. Meron ding gerund.
Ang naggagagwa nito sovereign Fil people. Thirdperson pagkasalita kasi nga under pa tayo ng America noon. Pero dahil Malaya na
tayo sa America, ginawang WE. Malaya na tayo dinadag pa sovereign.
Dati divine providence, e parang malayo daw si Lord, kaya ginawang Almighty God.
Dati, just and humane, wala yan, dinagdag in response sa Marcos
Hindi maintindihan bakit common good. Ang gen welfare , yung sa tingin ng marami makkabuti sa kanila. Common good kahit
tingin mararami makakabuti, pero sa totoo hindi makakabuti, ang nakakaalam mga liders. You might think it is for the common
good but actually, gusto niya marami sa inyo, ibang perspective.
Nakakatakot common good, pwede gamitin ng diktador. Akala niyo lang makakabuti sa inyo, pero ito mas makakabuti.
Patrimony- minana natin , natural resources etc
Secure to ourselves and our posterity, ano ang posterity the next generation
The blessings of independence and democracy- dati wala independence
Rule of law- dati wala as reaction sa martial law
Wala yung truth and love. Tayo may salitang love sa consti do ordain and promulgate this consti.

STATE POLICIES and PRINCIPLES

Ano kaibahan ng principles sa polices?
Principles- are the binding rules which must be observed in the conduct of government

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Self-exec non self-exec

Policies- guidelines for the orientation of the State libro ni Bernas

The diff bet prin and pol are not significant because they are used interchangeably
Both democratic and republican, there are manifestations of democratic and republicanism
Sep of church and state
Check and balance
Separation of powers
Cong cannot pass irrepealable laws
Election referendum
Civilian government higest authority

In a democracy, it is the rule of the majority misnomer

Dapat rule of the many
Majority 50% + 1
Poliarchy rule of the many

The Phils renounces war

Can Phils declare aggressive war against China? NO, unconstitutional and also stupid ano panlalaban mo sa china? Sumpit? Paltik?
Can we discuss defensive war? NO we renounce e
We can olny declare a state of war, must be defensive.

Adopts gen accept principles of law- incorporation clause

-

With or without agreement or concurrence of the Senate becomes part of our laws.
But for treaties not univ accepted, if concurred by Senate, but bec of Doctrine of Transformation

Civilian Authority is at all times supreme over military

-

Meron ba mas supreme military? Hindi kasi AT ALL TIMES

At ang role ng military is to protect our sovereignty
In order to ensure, it makes the highest civilian authority , the commander in chief , president
Hindi siya military whatsoever, in all instances it will destroy civil supremacy
Sino mas mataas brgy captain o army? Depende sa sitwasyon, kung nasa giyera, general under niya yung private forst
class brgy captin, syempre general masususnod. Pero kunwari walamg gera sa brgy, new years eve, paputok ng paputok,
pwede arestuhin depende sa sitwasyon

A military govt is not a .

SEC 4- the prime duty of govt is to serve and protect the people, what else? Surplasage reacvtion to govt of Marcos