11. What are the elements of “state”?

As held in COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23, the elements of a state are.
1. people
2. territory
3. sovereignty
4. government

12. Are the two-fold function of government as enumerated by the Supreme Court in BACANI VS.
NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions) still
applicable today?
No more as held in ACCFA VS. CUGCO, 30 SCRA 649. This is due to complexities of the changing
society, the two-fold function of the government as classified by President Wilson is no longer relevant as a
result of the changing society wherein what are considered merely ministrant functions of the State before
are now considered constituent , or vice versa.
13. What kind of government was the “Aquino Government” after former President Marcos left
Malaqcanang for Hawaii due to the EDSA Revolution in February 1986.
As held in In Re: SATURNINO BERMUDEZ, 145 SCRA 160, the same is de jure. A government formed as
a result of a people’s revolution, is considered de jure if it is already accepted by the family of nations or
other countries like the United States, Great Britain, Germany, Japan, and others.
14. What are the three (3) kinds of de facto government?
As held in CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113, the three (3) kinds of de facto governments are:
a. The first, or government de facto in a proper legal sense, is that government that gets possession and
control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains
itself against the will of the latter, such as the government of England under the Commonwealth, first by
Parliament and later by Cromwell as Protector.
b. The second is that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated a government of paramount force, as
the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico,
Mexico, occupied during the war with Mexico, by the troops of the United States.
c. And the third is that established as an independent government by the inhabitants of a country who rise
in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and third kinds of de facto
“But there is another description of government, called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing
characteristics are
(1), that its existence is maintained by active military power with the territories, and against the rightful
authority of an established and lawful government; and

(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government.

15. What is the postliminy theory or jus postliminium?
When a foreign power occupies a state and exercises the powers of government, the political laws of the said
state are deemed automatically suspended but the former government automatically comes to life and will be
in force and in effect again upon the re-establishment of the former government. (Taylor, International Law,
p. 615.)
16. What is the doctrine of sovereignty as “auto limitation”?
In the succinct language of Jellinek, it “is the property of a state-force due to which it has the exclusive
capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from
the exercise of what otherwise is illimitable competence.” The opinion was at pains to point out though
that even then, there is at the most diminution of jurisdictional rights, not its disappearance. (Cited in
Reagan vs. Commissioner, PEOPLE VS. GOZO, 53 SCRA 476 and COMMISSIONER VS. ROBERTSON, 143 SCRA 397)
17. What is the “incorporation theory” or the “Incorporation Clause” of the Constitution?
It is the principle embodied in Section 2, Article II of the Constitution which states that “The
Philippines adopts the generally accepted principles of international law as part of the law of the
and AGUSTIN VS. EDU, 88 SCRA 195).
18. In case of conflict between a constitutional right of a citizen and a generally accepted principle of
international law, which shall prevail?
In the case of 4) AGUSTIN VS. EDU, 88 SCRA 195REYES VS. BAGATSING,125 SCRA 553, the Supreme
Court held that the constitutional right shall prevail. Though Article 22 of the Vienna Convention on
Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy, the same shall give way to the
constitutional right of the citizens to “peaceably assemble and to petition the government for redress of their
19. May a citizen refuse to render personal military service/training because he does not have military
inclination or he does not want to kill or be killed?
No as held in PEOPLE VS. LAGMAN, 66 Phil. 13. “The appellant’s argument that he does not want to join the
armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not
acceptable because it is his obligation to join the armed forces in connection with the “defense of the State”
provision of the Constitution.
20. Is the “separation of church and state” a myth or a reality?
It is a reality as shown by the following provisions of the Constitution.
1. ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL
2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually,
directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.
3. ART. VI, Sec. 29 .(2). No public money or property shall be appropriated, applied, paid, for the benefit,
directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except
when such priest, minister.. is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium.

4. ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties. (NOTE:
Religious organizations are also prohibited ion connection with sectoral representatives under Art. VI)
5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall be allowed to be taught to their
children in elementary and high schools within the regular class hours by instructors designated or approved
by religious authorities to which said children belong, without additional cost to the government.



State defined. International personality of a nation does not bar a nation to be considered as a
"foreign country", i.e. California of the American Union, although not internationally recognized, is
still referred as a foreign country.

- "Government" may be defined as "that institution or aggregate of institutions by which an
independent society makes and carries out those rules of action which are necessary to enable
men to live in a social state, or which are imposed upon the people forming that society by those
who posses the power or authority of prescribing them"- Government functions are two-fold:
Constituent and Ministrant-

constitute the very bounds of society (keeping order and protection) and arecompulsory in nature-

keeping of order and providing for the protection of persons and property from violence

fixing of legal relations between man and wife and parents and children-

regulation of the holding, transmission and interchange of property and the determination of
itsliabilities for debt and crime-

determination of contract rights between individuals-

definition and punishment of crime-

administration of justice in civil cases-

determination of the political duties, privileged and relations of citizens-

dealing of the state of foreign powers-

undertaken only by way of advancing the general interests of society, and are merelypolitical-


Municipal/Public corporations vs. private corporations- The Principles determining whether or not a
government shall exercise certain of these optional functions are:-

-that a government should do for the public welfare those things which private capital would not
naturally undertake
-that the government should do this things which by its very nature it is better equipped to administer for
the public welfare than any private individual or group of individuals.


- PVTA was established mainly to improve the quality of locally manufactured cigarettes- The
Bacani doctrine has been laid down to rest






The Federation of Unions and the ACCFA entered in to a collective bargaining agreement. After a
year, the Unions filed a complaint with Court of Industrial Relations against the ACCFA (Case No.
3450-ULP) for having allegedly committed acts of unfair labor practice, namely: violation of the
collective bargaining agreement in order to discourage the members of the Unions in the exercise
of their right to self-organization, discrimination against said members in the matter of promotions,
and refusal to bargain. The court ruled in favor of the Unions. However,ACCFA denied the
allegations and questioned the jurisdiction of the said court.ACCFA was named Agricultural Credit
Commission after the approval of theAgricultural Land Reform Code (Republic Act No. 3844). ACA
filed a petition forcertiorari with urgent motion to pause the CIR order. As prayed for, the SC
ordered the CIR to stay the execution of its order. In this appeal, the ACA in effect challenges the
jurisdiction of the CIR to entertain the petition of the Unions for certification election on the ground
that it (ACA) is engaged in governmental functions. The Unions join the issue on this single point,
contending that the ACA forms proprietary functions.

ISSUE: Whether the ACA is engaged in governmental or proprietary functions.

HELD: Insofar as the fringe benefits already paid are concerned, there is no reason to set aside
the decision of the respondent Court, but that since the respondent Unions have no right to the
certification election sought by them nor, consequently, to bargain collectively with the petitioner,
no further fringe benefits may be demanded on the basis of any collective bargaining
agreement. The implementation of the land reform program of the government according to
Republic Act No. 3844 is most certainly a governmental, not a proprietary, function; and for that
purpose Executive Order No. 75 has placed the ACA under the Land Reform Project
Administration together with the other member agencies, the personnel complement of all of which are
placed in one single pool and made available for assignment from one agency to another, subject only
to Civil Service laws, rules and regulations, position classification and wage structures.


A J USTICIABLE QUESTION calls upon the duty of the courts to settle actual controversies wherein there are
rights (property or personal rights) involved which are legally demandable and enforceable. It is one which is
proper to be examined or decided in courts of justice because its determination would not involve an
encroachment upon the legislative or executive power.

A POLITICAL QUESTION is one which under the Constitution “is to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government.” It is concerned with issues dependent upon the wisdom, not the validity or legality,
of a particular measure or a contested act.


Political Question Defined – Members of the Senate

Electoral Tribunal

After the 1955 national elections, the membership in the Senate was overwhelmingly occupied by the
Nacionalista Party. The lone opposition senator was Lorenzo Tañada who belonged to the Citizen’s Party.
Diosdado Macapagal on the other hand was a senatorial candidate who lost the bid but was contesting it before
the Senate Electoral Tribunal (SET). But prior to a decision the SET would have to choose its members. It is
provided that the SET should be composed of 9 members comprised of the following: 3 justices of the Supreme
Court, 3 senators from the majority party and 3 senators from the minority party. But since there is only one
minority senator the other two SET members supposed to come from the minority were filled in by the NP.
Tañada assailed this process before the Supreme Court. So did Macapagal because he deemed that if the SET
would be dominated by NP senators then he, as a member of the Liberalista Party will not have any chance in
his election contest. Senator Mariano Cuenco et al (members of the NP) averred that the Supreme Court cannot
take cognizance of the issue because it is a political question. Cuenco argued that the power to choose the
members of the SET is vested in the Senate alone and the remedy for Tañada and Macapagal was not to raise
the issue before judicial courts but rather to leave it before the bar of public opinion.

ISSUE: Whether or not the issue is a political question.

HELD: No. The SC took cognizance of the case and ruled that the issue is a justiciable question. The
term Political Question connotes what it means in ordinary parlance, namely, a question of policy. It refers to
those questions which, under the Constitution, are to be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.
In this case, the issue at bar is not a political question. The Supreme Court is not being asked by Tañada to
decide upon the official acts of Senate. The issue being raised by Tañada was whether or not the elections of
the 5 NP members to the SET are valid – which is a judicial question. Note that the SET is a separate and
independent body from the Senate which does not perform legislative acts.

But how should the gridlock be resolved?

The nomination of the last two members (who would fill in the supposed seat of the minority members) must not
come from the majority party. In this case, the Chairman of the SET, apparently already appointed members that
would fill in the minority seats (even though those will come from the majority party). This is still valid provided
the majority members of the SET (referring to those legally sitting) concurred with the Chairman. Besides, the
SET may set its own rules in situations like this provided such rules comply with the Constitution.


FACTS: Petitioners sought the payment of just compensation for a registered lot alleging that in 1927 the
National Government through its authorized representatives took physical and material possession of it and
used it for the widening of a national road, without paying just compensation and without any agreement,
either written or verbal. There was an allegation of repeated demands for the payment of its price or return
of its possession, but defendants Public Highway Commissioner and the Auditor General refused to restore
its possession.
ISSUE: Whether or not the defendants are immune from suit.
HOLDING: NO. Where the judgment in such a case would result not only in the recovery of possession of
the property in favor of said citizen but also in a charge against or financial liability to the Government, then
the suit should be regarded as one against the government itself, and, consequently, it cannot prosper or be
validly entertained by the court except with the consent of said Government. In as much as the State
authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of
the State, and an action against the officials or officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the
State from suit
NOTE: When the government takes any property for public use, which is condition upon the payment of just
compensation, to be judicially ascertained, it makes manifest that it submits to the jurisdiction of a court.
The Court may proceed with the complaint and determine the compensation to which the petitioner are
Ministerio vs.CFI, 40 SCRA 464

LIS MOTA. The cause of the suit or action. By this term is understood the commencement ofthe controversy, and
the beginning of the suit.

Latin, meaning "beyond the powers." Describes actions taken by government bodies or corporations
that exceed the scope of power given to them by laws or corporate charters. When referring to the
acts of government bodies (e.g., legislatures), a constitution is most often the measuring stick of
the proper scope of power.
Ultra vires is a Latin term meaning "beyond powers". The term is usually used to refer to acts taken by a
corporation or officers of a corporation that are taken outside of the powers or authority granted to them by law or
under the corporate charter. Some states have enacted laws to prevent the use of the defense of ultra vires action
to unfairly avoid obligations under otherwise valid contracts.
The concept of acting "under color of law" means acts are done while a person acts or purports to act in the
performance of official duties under any state, county, or municipal law, ordinance, or regulation. This is a similar
concept that refers to the apparently authorized status of the action, as distinguished from the unauthorized
status of their actions, which ultra vires refers to.

The following is an example of a state statute dealing with the concept of ultra vires:
a. "Except as provided in subsection (b), the validity of corporate action may not be challenged on the ground that
the corporation lacks or lacked power to act.
A corporation's power to act may be challenged:
1. In a proceeding by a shareholder against the corporation to enjoin the act;
2. In a proceeding by the corporation, directly, derivatively, or through a receiver, trustee, or other legal
representative, against an incumbent or former director, officer, employee, or agent of the corporation; or
3. In a proceeding by the Attorney General under Section 10-2B-14.30.
b. In a shareholder's proceeding under subsection (b)(1) to enjoin an unauthorized corporate act, the court may
enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award
damages for loss (other than anticipated profits) suffered by the corporation or another party because of enjoining
the unauthorized act."