The State and Its Elements

An excerpt from Joaquin G. Bernas, The 1987 Constitution of the

Republic of the Philippines: A Commentary, 2009 Edition. The following has
been formatted for this course.

STATE: DEFINITION AND ELEMENTS

The Philippines is a state and all that being a state means in the
international scene:

The states are the repositories of legitimated authority over peoples

and territories. It is only in terms of state powers, prerogatives,
jurisdictional limits and law-making capabilities that territorial limits and
jurisdiction, responsibility for official actions, and a host of other questions
of co-existence between nations can be determined.

It is by virtue of their law-making power and monopoly that states

enter into bilateral and multilateral compacts, that wars can be started or
terminated, that individuals can be punished or extradited.

States come in various shapes and sizes and vary immensely in their
cultures, forms of government, natural resources, language and a host of
other attributes. But custom has come to recognize the essential attributes
which make an entity a state, whatever its shape or size or the color of its
inhabitants might be. These were summed up in the Montevideo
Convention of 1933 which said in Article I: "The state as a person of
international law should possess the following qualifications: a) a
permanent population; b) a defined territory; c) government; and d)
capacity to enter into relations with other states."
 The definition of the concept "state" which has found currency
among Philippine writers is this: it is a community of persons more or less
numerous, permanently occupying a definite portion of territory,
independent of external control, and possessing an organized government
to which the great body of inhabitants render habitual obedience.

Commentators, following the Montevideo Convention of 1933, break

down the concept into four elements: people, territory, sovereignty,
government.

Commentators are also in the habit of distinguishing “state” from

“nation” and it is pointed out that the state is a legal concept while a nation
is a racial or ethnic concept. While the distinction may be useful for
purposes of political sociology, it is of little consequence for purposes of
constitutional law. The 1935 and 1973 Preambles themselves spoke of the
“patrimony of our nation” and it is not to be supposed that “nation” in this
context should be limited to one racial or ethnic group.

It would have been awkward for the Constitution to have said “state
of the State”; but if it had so stated, the sense would have been the same.

Similarly, the word “national” appears in the 1987 Constitution, as it

did in the 1973, in a context that does not limit the word to an ethnic
concept. The legislature, under the original 1973 Constitution, was the
National Assembly. Article XII is entitled “National Economy and
Patrimony.”

For purposes of the Constitution, therefore, the word state is

interchangeable with nation. In fact, a decision of the Supreme Court,
discussing what makes a foreign country a state in the legal sense, used
nation and state interchangeably. The Supreme Court said:
 It does not admit of doubt that if a foreign country is to be
identified with a state, it is required in line with Pound’s
formulation that it be a politically organized sovereign
community independent of outside control bound by ties of
nationhood, legally supreme within its territory, acting through
a government functioning under a regime of law. It is thus a
sovereign person with the people composing it viewed as an
organized corporate society under a government with the legal
competence to exact obedience to its commands. It has been
referred to as a body-politic organized by common consent for
mutual defense and mutual safety and to promote the general
welfare. Correctly, it has been described by Esmein as “the
juridical personification of the nation.” This is to view it in the
light of its historical development. The stress is on its being a
nation, its people occupying a definite territory, politically
organized, exercising by means of its government its sovereign
will over the individuals within it and maintaining its separate
international personality. Laski could speak of it then as a
territorial society divided into government and subject,
claiming over its allotted area a supremacy over all other
institutions. Mclver similarly would point to the power
entrusted to its government to maintain within its territory the
conditions of a legal order and to enter into international
relations. With the latter requisite satisfied, international law
does not exact independence as a condition of statehood. So
Hyde did opine.

PEOPLE

As an element of a state, “people” simply means a community of

persons sufficient in number and capable of maintaining the continued
existence of the community and held together by a common bond of law. It
is of no legal consequence if they possess diverse racial, cultural, or
economic interests.
 The word “people” appears several times in the Constitution. The
Preamble attributes the authorship of the Constitution to “the sovereign
Filipino people.” Article II mentions people several times. The Bill of Rights
also uses the word several times. The meaning of the word in each case
depends on the context where it is found.

The second sentence of Section 1 says that sovereignty “resides in the

people and all government authority emanates from them.” The word
“people” in this context has reference to the segment of the political society
wherein legal sovereignty lies. Hence, as will be shown later, it has
reference to the electorate or to that segment of the political community
which can establish or alter the fundamental law.

TERRITORY

A definite territory, consisting of land and waters and the air space
above them and the submarine areas below them, is another essential
element of the modern state. And as the Restatement (Third) on the Foreign
Relations Law of the United States explains: “An entity may satisfy the
territorial requirement for statehood even if its boundaries have not been
finally settled, if one or more of its boundaries are disputed, or if some of
its territory is claimed by another state. An entity does not necessarily cease
to be a state even if all its territory has been occupied by a foreign power or
if it has otherwise lost control of its territory temporarily.”

The extent of Philippine territory is defined in Article I of the

Constitution. The character of the power which the Philippines has over its
territory was the subject of Reagan v. Commissioner of Internal Revenue.
Petitioner in this case disputed the payment of the income tax assessed on
him by the respondent on a sale of an automobile transacted at the Clark
Field Air Base at Pampanga. His contention was that the United States
Military Base was outside Philippine territory. The Court, rejecting his
claim, said:

Nothing is better settled than that the Philippines being

independent and sovereign, its authority may be exercised over
its entire domain. There is no portion thereof that is beyond its
power. Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it
applies must submit to its terms. That is the extent of its
jurisdiction, both territorial and personal. Necessarily, likewise,
it has to be exclusive. If it were not thus, there is a diminution
of its sovereignty.
It is to be admitted that any state may, by its consent,
express or implied, submit to a restriction of its sovereign
rights. There may thus be a curtailment of what otherwise is a
power plenary in character. That is the concept of sovereignty
as auto-limitation, which, in the succinct language of Jellinek,
“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.
Its laws may as to some persons found within its territory
no longer control. Nor does the matter end there. It is not
precluded from allowing another power to participate in the
exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas
become impressed with an alien character. They retain their
status as native soil. They are still subject to its authority. Its
jurisdiction may be diminished, but it does not disappear. So it
is with the bases under lease to the American armed forces by
virtue of the military bases agreement of 1947. They are not and
cannot be foreign territory.
Decisions coming from petitioner’s native land, penned
by jurists of repute, speak to that effect with impressive
unanimity. We start with the citation from Chief Justice
Marshall, announced in the leading case of Schooner Exchange v.
M’Faddon, an 1812 decision: “The jurisdiction of the nation
within its own territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same
extent in that power which could impose such restriction.”
After which came this paragraph: “All exceptions, therefore, to
the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself.
They can flow from no other legitimate source.”
Chief Justice Taney, in an 1857 decision, affirmed the
fundamental principle of everyone within the territorial
domain of a state being subject to its commands: “For
undoubtedly every person who is found within the limits of a
government, whether for temporary purposes or as a resident,
is bound by its laws.” It is no exaggeration then for Justice
Brewer to stress that the United States government “is one
having jurisdiction over every foot of soil within territory, and
acting directly upon each [individual found therein]; x x x.”
Not too long ago, there was a reiteration of such a view,
this time from the pen of Justice Van Devanter. Thus, “It now is
settled in the United States and recognized elsewhere that the
territory subject to its jurisdiction includes the land areas under
its dominion and control the ports, harbors, bays, and other
enclosed arms of the sea along its coast, and a marginal belt of
the sea extending from the coast line outward a marine league,
or 3 geographic miles.” He could cite moreover, in addition to
many American decisions, such eminent treatise writers as
Kent, Moore, Hyde, Wilson, Westlake, Wheaton and
Oppenheim.
As a matter of fact, the eminent commentator Hyde in his
three-volume work on International Law, as interpreted and
applied by the United States, made clear that not even the
embassy premises of a foreign power are to be considered
 outside the territorial domain of the host state. Thus: “The
ground occupied by an embassy is not in fact the territory of
the foreign State to which the premises belong through
possession or ownership. The lawfulness or unlawfulness of
acts there committed is determined by the territorial sovereign.
If an attache commits an offense within the precincts of an
embassy, his immunity from prosecution is not because he has
not violated the local law, but rather for the reason that the
individual is exempt from prosecution. If a person not so
exempt, or whose immunity is waived, similarly commits a
crime therein, the territorial sovereign, if it secures custody of
the offender, may subject him to prosecution, even though its
criminal code normally does not contemplate the punishment
of one who commits an offense outside the national domain. It
is not believed, therefore, that an ambassador himself possesses
the right to exercise jurisdiction, contrary to the will of the State
of his sojourn, even within his embassy with respect to acts
there committed. Nor is there apparent at the present time any
tendency on the part of States to acquiesce in his exercise of it.”

[Instructor’s note: For a thorough understanding of the extent of Philippine

territory in the context of the United Nations Convention on the Law of the Sea
(UNCLOS) and Republic Act No. 9522, the Philippine baselines law, student is
referred to the case of Magallona v. Ermita, G.R. No. 187167, August 16, 2011]

GOVERNMENT

Government, as an element of a state, is 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 possess the power or authority of prescribing them.” Section
2 of the Revised Administrative Code (1917) defined the “Government of
the Republic of the Philippines” thus:
 The Government of the Philippine Islands is a term which
refers to the corporate governmental entity through which the
functions of government are exercised throughout the
Philippine Islands, including, save as the contrary appears from
the context, the various arms through which political authority
is made effective in said Islands, whether pertaining to the
central Government or to the provincial or municipal branches
or other form of local government.

On the national scale, therefore, the term “government of the

Philippines” refers to the three great departments — legislative, executive,
and judicial — mandated by the Constitution, and on the local level, it
means the regional, provincial, city, municipal and barrio governments. It
does not include government entities which are given a corporate
personality separate and distinct from the government and which are
governed by the corporation law. Moreover, for purposes of international
law, it is the national government that has legal personality and it is the
national government that is internationally responsible for the actions of
other agencies and instrumentalities of the state.

The concept of government should be distinguished from

administration. Government is the institution through which the state
exercises power; administration, on the other hand, consists of the set of
people currently running the institution. Administrations change without a
change in either state or government. The transitions from the 1935
Constitution to the 1973 Constitution to the 1987 Constitution involved
changes of government but not of state. The transition from President
Estrada to President Arroyo did not involve a change of government but
only of administration.

The functions of government may be classified into constituent and

ministrant functions. The former are the compulsory functions which
constitute the very bonds of society. President Wilson’s enumeration of the
constituent function of government was adopted in Bacani v. NACOCO.
They are:
(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife
and between parents and children.
(3) The regulation of the holding, transmission, and interchange
of property, and the determination of its liabilities for debt
or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges,
and relations of citizens.
(8) Dealings of the state with foreign powers: the preservation
of the state from external danger or encroachment and the
advancement of its international interest.

Ministrant functions are the optional functions of government

intended for achieving a better life for the community. “The principles for
determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public
welfare those things which private capital would not naturally undertake,
and (2) that a government should do those things which by its very nature
it is better equipped to administer for the public welfare than is any private
individual or group of individuals.”

For the purpose of the decision in Bacani, the disquisition on the

functions of government was really of little moment. The issue in the case
was whether NACOCO was part of “government” or not. And since
NACOCO was a corporation with personality distinct from the
government, it was clearly not part of the government and could not
therefore claim the privileges which flow from sovereignty. When,
however, government chooses to operate not through a government-
owned corporation but through an unincorporated agency, the distinction
between constituent and ministrant functions can be useful. The concepts,
however, seem to belong more to the field of political science than to law.
Law prefers to use the term governmental and proprietary.

Whether one, however, uses the terms constituent and ministrant or

governmental and proprietary, what is important to remember is that the
enumeration of specific government functions under these headings cannot
be static. This was emphasized in the case of ACCFA v. CUGCO. At issue
was the characterization of the functions of a government agency charged
with the implementation of the land reform program. The function, the
Court said, may not strictly be “constituent” in the sense of Bacani, but the
compelling urgency with which the Constitution speaks of social justice
does not leave any doubt that land reform is not an optional but a
compulsory function of sovereignty. In the language of Justice Makalintal:

The growing complexities of modem society, however,

have rendered this traditional classification of the functions of
government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and
which the government was called upon to enter optionally, and
only “because it was better equipped to administer for the
public welfare than is any private individual or group of
individuals,” continue to lose their well-defined boundaries
and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing
social challenges of the times. Here as almost everywhere else
the tendency is undoubtedly towards a greater socialization of
economic forces. Here of course this development was
envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning the
promotion of social justice.
 Among more recent decisions, housing has been found to be a
governmental function since housing is considered an essential service. But
undertaking to supply water for a price, as does the government
corporation National Irrigation Authority, is considered a trade and not a
governmental activity.

SOVEREIGNTY

A final essential element of statehood according to the Montevideo

Convention is capacity to conduct international relations. “An entity is not
a state unless it has competence, within its own constitutional system, to
conduct international relations with other states, as well as the political,
technical and financial capabilities to do so. An entity that has the capacity
to conduct foreign relations does not cease to be a state because it
voluntarily turns over to another state control of its foreign relations, as in
the ‘protectorates’ of the period of colonialism, the case of Liechtenstein, or
the ‘associated states’ of today. States do not cease to be states because they
have agreed not to engage in certain international activities or have
delegated authority to do so to a ‘supranational’ entity, e.g., the European
Communities. Clearly, a state does not cease to be a state if it joins a
common market.”

This capacity to conduct international relations is an aspect of

sovereignty which the Constitution asserts in Section 1, Article II. The
assertion of sovereignty was already made in the 1935 Constitution. But the
Philippines did not begin to conduct its foreign relations until after it
became independent from the United States in 1946. By way of exception,
however, the Philippines became signatory to the United Nations Charter
in 1945 even before it became independent.
 Section 1, Article II, says: “Sovereignty resides in the people and all
government authority emanates from them.” Sovereignty in this sentence
therefore can be understood as the source of ultimate legal authority. Since
the ultimate law in the Philippine system is the constitution, sovereignty,
understood as legal sovereignty, means the power to adapt or alter a
constitution. This power resides in the “people” understood as those who
have a direct hand in the formulation, adoption, and amendment or
alteration of the Constitution.

Political writers distinguish between legal sovereignty and political

sovereignty. The former is described as the supreme power to make laws
and the latter as the sum total of all the influences in a state, legal and non-
legal, which determine the course of law.

Sovereign authority, moreover, is not always directly exercised by

the people. It is normally delegated by the people to the government and to
the concrete persons in whose hands the powers of government
temporarily reside. The temptation to which government personnel are
prone is to forget that public office is a public trust, and an essentially
temporary trust at that, and to equate every attempt to wrest that trust
from them, no matter by what means, to criminal acts of subversion. It is a
temptation not easily resisted under any form of authoritarian rule.

Sovereignty of the people also includes the concept that government

officials have only the authority given them by law and defined by law,
and such authority continues only with the consent of the people. This is
the meaning of the rule of law: a government of laws and not of men. The
Constitutional Commission, however, did not consider it necessary to
make explicit the right of the people to oust an abusive and authoritarian
government through non-violent means.

Finally, is recognition by other states a constitutive element of a state

such that even if it has all four elements of the Montevideo Convention it is
not a state if it has not been recognized? In international law, there are two
views on this. One view, the constitutive theory, is that recognition
“constitutes” a state, that is, it is what makes a state a state and confers
legal personality on the entity. The other view, the declaratory theory, is
that recognition is merely “declaratory” of the existence of the state and
that its being a state depends upon its possession of the required elements
and not upon recognition. A recognizing state merely accepts an already
existing situation. The weight of authority favors the “declaratory view.” In
practice, however, whether to recognize or not is largely a political
decision.

###