Partial Reviwer for Semi Finalas

8/4/2019 Partial Reviwer for Semi Finalas

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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 Par liament 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 f irst

kind, but only with the second and third kinds of de facto governments.

“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 t o 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 obligat ion to join the

armed forces in connection with t he “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 OR POLITICAL RIGHTS.

2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually, directly and exclusively usedfor 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.

Documents

Partial Reviwer for Semi Finalas