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STATE AND GOVERNMENT

THE CONCEPT OF STATE

! A community of persons more or less numerous, permanently occupying a definite portion of


territory, having a government of their own to which the great body of inhabitants render obedience,
and enjoying freedom from external control.

MODERN STATE SYSTEM

! Developed in the Peace of Westphalia in 1648

! Prior to it, the European medieval organization of political authority was based on the
hierarchical religious order.

! The legal concept of sovereignty was introduced

! ... rulers or the legal sovereign had no internal equals within a defined territory and no
external superiors as the ultimate authority within the territorys sovereign borders

! Westphalia gave rise to independent nation state, the institutionalization of diplomacies and
armies

INHERENT POWERS OF THE STATE

! Police Power
! Eminent Domain ! Taxation

People

! This refers to the large numbers of inhabitants living within the state.

! It must be small enough to be ruled


! And it must be big enough to be self-sufficient

Territory

! This includes the land over which the state exercises control

! It also includes the rivers and lakes therein, certain areas of the sea which borders on its coasts
and the air space above them.

! A mass of land where people can permanently reside

Government
! This refers to the agency through which the will of the state is formulated, expressed and carried
out.

! This could be referred as the administration

Sovereignty

! The supreme power of the state to command and enforce obedience from its people as
well as to have freedom from foreign control

! *It could be manifested internally through its freedom to rule within its territory
! *Externally through its freedom to carry out its activities without control by other states.

FOUR KINDS OF SOVEREIGNTY

! Legal
! power to issue final commands / ! Supreme law making powers

! Political
! Power behind the legal sovereign ! Electorate

! Internal ! External

ORIGIN OF STATES

! Divine Right Theory

! State is a divine creation and the ruler is ordained by God

! Necessity of Force Theory

! Imposition upon the weak

ORIGIN OF STATES

! Paternalistic Theory ! Enlargement of the

family

! Social Contract Theory

! Deliberate and voluntary compact

STATE VS NATION

! Political concept ! Not subject to


external control

! May consist of one or more nation or peoples

! Ethnic concept

! May or may not be independent from external control

! A single nation may be made up of several states

STATE & GOVERNMENT

! Usually regarded as identical

! The acts of the government are the acts of the


state.

! The government is only THE AGENCY through which the state expresses its will.

! A state cannot exist without the government, but it is possible to have a government
without the state.

! Government may change but the state remains the same.

PURPOSE AND NECESSITY OF THE GOVERNMENT

! Advancement of the public welfare.

! Consequence of absence

FORMS OF GOVERNMENT

! Number of Persons exercising sovereign powers.

! Monarchy absolute and limited

! Aristocracy

! Democracy direct/pure & indirect/republican

FORMS OF GOVERNMENT

! As to extent of powers exercised by the central or national government

! Unitary ! Federal
FORMS OF GOVERNMENT

! Relationship between the executive and the legislative branches of the government.

! Presidential
! Parliamentary

GOVERNMENTS IN THE PHILIPPINES

PRE SPANISH GOVERNMENT

! Unit of Government
! BARANGAY virtually a state ! Confederations

! Datu
! Chief executive, judge and military head

! Social Classes ! Early Laws

SPANISH COLONIZATION

! Highly centralized

! Union of the Church and State

! 1521 to 1821
! Governed by the King of Spain through Mexico

! 1821 to 1898

! Governed directly by Spain

! Council of the Indies Council of Ministers (1837) Ministry of Ultramar

! Philippines was represented in the Spanish Cortes 3 times

SPANISH COLONIZATION

! Barangay towns (pueblos) provinces

! Cities governed under special charters were also created . Each had an ayuntamiento or cabildo
(city council) Cebu and Manila

! Governor General
! Executive, administrative, legislative and judicial

powers.
! Captain General Commander in Chief ! Vice Royal Patrons religious powers ! Assisted by
boards
SPANISH COLONIZATION

! Royal Audencia Supreme Court of the Philippines


! Decision was final except on certain cases which could be appealed to the King of Spain.

! Territorial Audencias, 1893 (Cebu and Vigan) exercised appelate jurisdiction over criminal
cases.

! Court of the First Instance, 1886 (both civil and criminal)

! Special courts were also established military and naval courts, ecclesiastical court,
treasury and commercial courts.

SPANISH COLONIZATION

! Positive (De Leon)


! Mild and humane
! Unification of the Filipino people ! Uplifted the Filipinos

! Negative
! Defective, inefficient, corrupt
! Government for the interest of the Spaniards ! Denial of the equality before the law

KATIPUNAN GOVERNMENT

! Secret society, organized by Andres Bonifacio signed the covenant on July 7, 1892.

! Goal: establish a free and sovereign Philippines

! Central Government: Supreme Council (Kataastaasang Sanggunian Provincial Council


(Sangguniang Balangay) Popular Council (Sangguniang Bayan)

! Judicial Power Judicial Council (Sangguniang Hukuman)

! Was replaced by another government headed by Gen. Emilio Aguinaldo as President


(Tejeros Convention held on March 22, 1897)

GOVERNMENTS DURING THE REVOLUTIONARY ERA

! Biak na Bato Republic (Nov. 1 December 15, 1897)


! Was established by General Aguinaldo in Biak na Bato

! Aim was the separation of the Philippines of the Philippines from the Spanish monarchy
and the formation of an independent state
! Dictatorial Government (May 23 June 12, 1898) ! Proclamation of the Philippine
Independence at Kawit,
Cavite
! Reorganization of local governments

GOVERNMENTS DURING THE REVOLUTIONARY ERA

! Revolutionary Government (June 29, 1898)

! Gen. Aguinaldo as President

! to struggle for the independence of the Philippines, until all nations including Spain will
expressly recognize it

! to prepare the country for the establishment of a real Republic

FIRST PHILIPPINE REPUBLIC (Jan. 23, 1899 Mar. 23, 1901)

! Malolos Congress ratified on Sept. 29, 1898 the proclamation of the Philippine
Independence

! Framed the Malolos Constitution (First Democratic Constitution of Asia)

! Was not recognized by the family of nations.

! Shortlived following the defeat of the


Spaniards against the Americans

! Malolos Constitution had no opportunity to operate.

GOVERNMENT DURING THE AMERICAN REGIME

! Military Government

! Began on August 14, 1898

! Commander in Chief executive, legislative and judiciary


st
! 1 American Military Governor: General Wesley Merrit, Otis, MacArthur
! Civil Government

GOVERNMENT DURING THE AMERICAN REGIME

! Military Government

! Began on August 14,


1898

! Commander in Chief executive, legislative and judiciary

st
! 1 American Military Governor: General Wesley Merrit, Otis, MacArthur

GOVERNMENT DURING THE AMERICAN REGIME

! Civil Government

! July 4, 1901

! Civil Governor Governor General

! President of the Philippine Commission sole law making body

! 1907 1916 Philippine Commission (upper house), Philippine Assembly (lower house)

! Philippines was represented by 2 Resident Commissioners but without the right to vote.

GOVERNMENT DURING THE AMERICAN REGIME

! Civil Government
! Taft Wright Frank Murphy

! Commonwealth Government (1935)

! Pursuant to the provisions of Tydings McDuffie Law which provided for a transition period
of ten years July 4, 1946 proclamation of independence

! 1935 Constitution
! Manuel L. Quezon and Sergio Osmena

! Republican in form under the presidential type

! During WW2 it functioned in exile in Washington (1942 1944)

GOVERNMENT DURING THE

JAPANESE OCCUPATION

! Japanese Military Administration ! January 3, 1942

! Philippine Executive Commission

! Composed of Filipinos with Jorge B. Vargas as


chairman

! Exercised both the executive and legislative powers subject to the approval of the
Commander in Chief of the Japanese Forces

PHILIPPINE REPUBLIC

! First Republic - January 23, 1899 / under the Malolos Constitution

! Second Republic October 14, 1943 / under the Japanese

! Third Republic - July 4, 1946 / Under the 1935 Constitution

! Fourth Republic June 30, 1981 / Under the 1973 Constitution / Modified the
parliamentary system of government

! Fifth Republic February 2, 1987 / Under the 1987 Constitution

PROVISIONAL GOVERNMENT OF 1986

! Proclamation No. 1: taking power in the name and by the will of the Filipino people

! President Aquino swore to preserve and defend the fundamental law and execute just laws

PROVISIONAL GOVERNMENT OF 1986

! Revolutionary
! It was instituted not in accordance with the procedure
provided
! Direct action of the people

! De jure / de facto
! De jure according to law
! De facto has the general support of the people

! A de facto government acquires a de jure status when it gains wide acceptance from the people
and recognition from the community of nations.

PROVISIONAL GOVERNMENT OF 1986

! Not purely a revolutionary but a hybrid constitutional revolutionary government.

! Was governed by the Provisional Constitution (Proclamation No. 3)

! Democratic installed directly by the people.

! Powers unlimited

CONCEPT OF CONSTITUTION
NATURE OF LAW
! Set of rules and norms and a standard of pattern of behavior to which every individual of the
society conforms

! Austin - Command of the sovereign

! Set of rules, principles, standards and processes enacted by the state and govern the relationships
and regulate the conduct of men in an organized society.

POSITIVE LAW
! Positive laws may be promulgated, passed, adopted, or otherwise "posited" by an official or entity
vested with authority by the government to prescribe the rules and regulations for a particular
community.

! Positive law refers to the will and commands of the state which are hereby enforced by its
sovereign political authority.

FORMS OF LAW
! Constitution
! Statutes
! Decrees, orders and proclamations ! Judicial decisions
! Ordinances
! International Law

SCHOOLS OF THOUGHT ON THE NATURE OF LAW


! Historical School origin of the law and its growth and development
! Sociological School product of social necessities

! Functional School what the law does

! Philosophical School justify the existence


of the rule of right and reason

! Positivist School examination and analysis of the legal system, greatest happiness

FORMAL SOURCES OF LAW

! Legislation
! Ordinances
! Judicial Decisions or Precedents
! Treaties
! Constitution
! Executive Orders and Proclamation

NON-FORMAL SOURCES OF LAW


! Custom
! Standards of Justice ! Equity
! Natural Law

MEANING OF CONSTITUTION
! that body of rules and principles in accordance with which powers of sovereignty are regularly
exercised

! Covers both written and unwritten constitutions

! Constitution of the Philippines written instrument by which the fundamental powers of the
government are established, limited and defined and by which these powers are distributed among
several departments or branches for their safe and useful exercise for the benefit of the people

NATURE AND PURPOSE OF FUNCTION OF CONSTITUTION

SERVE AS SUMPREME OR FUNDAMENTAL LAW


! Speaks for the entire people ! Binding on all individuals
! All other laws must conform

! Test of the legality of all governmental actions

ESTABLISHES BASIC FRAMEWORK AND UNDERLYING PRINCIPLES OF GOVERNEMNT


! Prescribe the permanent framework
! Assign to the different departments their

! Establish basic principles on which the government is founded.

! Primarily designed to preserve and protect the rights of individuals against the arbitrary
actions of those in authority

! Sets limits on the otherwise unlimited powers of the legislature

powers and duties

REGULATES THE GOVERNMENT TO PROTECT PEOPLE

! Distributing powers to branches of government.

! Enumerating state policies and principles.

! Specifying individual rights and freedoms.

MEANING OF CONSTITUTIONAL LAW

! May be defined as that branch of public law which treats of constitutions, their nature,
formation, amendment and interpretation.

! Includes the Supreme Court decisions

KINDS OF CONSTITUTIONS
! As to their origin and history Conventional / Enacted
Cumulative or evolved

! As to their form Written


Unwritten

! As to the manner of amending them Rigid

Flexible

ADVANTAGES AND DISADVANTAGES OF WRITTEN CONSTITUTION

! Clear and definite

! Stable and free from all dangers of temporary popular passion

! Difficulty in amending it

REQUISITES OF GOOD WRITTEN CONSTITUTION


! As to form Brief
Broad
Definite

! As to contents
Constitution of government

! Framework of government and its powers and defining the electorate

Constitution of liberty
! Fundamental rights of the people; limitations of

government
Constitution of sovereignty

! Mode or procedure for amending or revising the constitution

CONSTITUTION AND STATUTE


! Legislation direct from the people

! States the general framework of the law and government

! Intended to meet existing and future

! Supreme or fundamental law of the State

! Legislation from peoples representatives

! Provides the details ! Intended to meet

existing conditions

! Conforms to the constitution

EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY


! Orthodox View or Non Conferring Right Rule

An unconstitutional act is not a law


Inoperative and considered never to have

existed at all.

! Modern View or Operative Fact Doctrine

Simply refuses to recognize the law Prospective rather than retroactive

CONSTITUTIONS OF THE REPUBLIC OF THE PHILIPPINES


MALOLOS CONSTITUTION (1899)
st
! 1 republican constitution in Asia

! Written in Spanish
! Declared that sovereignty resides exclusively in the people

! Stated basic civil rights

! Separated church and state

! Called for the creation of an Assembly of Representatives to act as legislative body

! Called for a Presidential form of government

1935 CONSTITUTION
PHILIPPINE INDEPENDENCE ACT (enacted by the US Congress calling for a constitutional
convention

Approval by the Philippine Legislature

Approval by the Convention 177 to 1

Ratification 1,213,046 against 44,963

Approval by Pres. Roosevelt

! Limitations and Conditions Republican in form

Should include the bill of rights

Should contain certain provisions intended to define Philippine US relations during the
Commonwealth and the Republic

! Sources

nd
Constitution of the US, Malolos Constitution, McKinley Instruction to the 2 Philippine Commission,
Philippine Bill, Jones Law

! Scope Commonwealth and the Republic

! Amendments: 3 times

Bicameral
Reeligibility of the President and Vice President for a second four year term of office.

Creating a separate Commission on Elections

Parity Amendment gave the Americans equal right with the Filipinos in the exploitation of the
natural resources and the operation of public utilities.

Women suffrage was settled in a plebiscite

1973 CONSTITUTION
Congress in joint session passed Resolution of Both Houses authorizing the holding of a
Constitutional Convention in 1971

Approval by the Citizens Assembly

Election day for the delegates to the Constitutional Convention

Constitutional Convention

Proclamation 1081

1973 CONSTITUTION
! Amendments 4 times
Making the then incumbent President, the regular

President and regular Prime Minister.

Granting concurrent law making powers to the President

Establishing a modified parliamentary form of government.

Permitting natural born citizens who have lost their citizenship to be transferees of private land
for use by them as residence.
Allowing the grant of lands of the public domain to qualified citizens.

Providing for urban land reform and social housing program

MERITS AND DEMERITS OF AN APPOINTING BODY


! Not expensive and time consuming

! An appointive body is susceptible to the charge of lack of independence and the suspicion of
pressure and even manipulation by the appointing power.

THE 1987 CONSTITUTION


Writing

CONSTITUTIONAL COMMISSION created under Article V of Proclamation 3 (50 national, regional


and sectoral representatives appointed by the President) Actual = 48 (42+6)

Approval by the Constitutional Commission

Ratification

EFFECTIVITY OF THE 1987 CONSTITUTION


! February 2, 1987
date of the plebiscite for the ratification Casting of votes in favor of constitution Will of the
people still unknown
76.37% as against 22.65%

! Canvassing was done to determine results of the plebiscite

! February 11, 1987


President Aquino proclaimed that the people

overwhelmingly ratified the constitution ! Official date of effectivity: February 2, 1987

PROOK OF EFFECTIVITY
! Act of ratification
Act of voting of the people

! Canvassing of votes and proclamation of the president are just confirmation of the peoples
ratification of the constitution expressed on February 2, 1987

BASIC PRINCIPLES UNDERLYING 1987 CONSTITUTION


! Recognition of the aid of Almighty God

! Sovereignty of the people

! Renunciation of war as an instrument of national policy

! Supremacy of civilian authority over the military

! Separation of church and state

! Recognition of the family as a basic social institution and of the vital role of the youth in
nation building.

! Guarantee of human rights

! Government through suffrage

! Separation of powers

! Independence of the judiciary

! High sense of public service morality and accountability of public officers.

! Nationalization of natural resources and certain private enterprises affected with public
interest

! Non suability of the state

! Rule of the majority

! Government of laws and not of men

RULE OF MAJORITY
! Majority vote
Senate President and the Speaker of the House
Grant of amnesty
Grant of tax exemptions
Tie of President and Vice President

! Two thirds majority


Suspend or expel a member of either House

Declare the existence of war


Reconsider a bill vetoed by the President
Call a constitutional convention
Concur for a treaty or international agreement

! Three Fourths
Amendment of revision of the Constitution

! Decisions of the Supreme Court en banc have to be concurred to by a majority of the members
who actually took part in the deliberation.

! In many levels of the government, the rule of majority is adopted.