Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 11-20

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
governments.

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“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 land”. (MEJOFF VS. DIRECTOR OF
PRISONS, 90 Phil. 70, KURODA VS. JALANDONI, 83 Phil 171, 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 195
REYES 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 grievances”.

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.

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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 OR
POLITICAL RIGHTS.
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.

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