What is a government?

7.

The agency or instrumentality through which the will of the

State is formulated, expressed and realized.

8.

Government of the Philippines

The corporate governmental entity through which the
functions of the government are exercised throughout the
Philippines, including, save as the contrary appears from the
context, the various arms through which political authourity is
made effective in the Philippines whether pertaining to the
autonomous regions, the provincial, city, municipal or
barangay subdivisions or other forms of local government.
(Sec. 2(1), Administrative Code of 1987)
What are the traditional functions of the government?
Constituent - those which constitute the very bonds of society
and are compulsory in nature
Ministrant - those that are undertaken only by way of
advancing the general interests of society, and are merely
optional
Two instances where the government is required to
exercise ministrant functions
1. that a government should do for the public welfare those
things which private capital would not naturally undertake
2. that a government should do these 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
Bacani vs. NACOCO [G.R. No. L-9657, November 29,
1956]
FUNCTIONS OF THE GOVERNMENT; CONSTITUENT
AND MINISTRANT. - To begin with, we state that the term
"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 possess the power or
authority of prescribing them". This institution, when referring
to the national government, has reference to what our
Constitution has established composed of three great
departments, the legislative, executive, and the judicial,
through which the powers and functions of government are
exercised. These functions are twofold: constituent and
ministrant.
President Wilson enumerates the constituent functions as
follows:
1.
2.
3.
4.
5.
6.

The keeping of order and providing for the protection

of persons and property from violence and robbery.
The fixing of the legal relations between man and
wife and between parents and children.
The regulation of the holding, transmission, and
interchange of property, and the determination of its
liabilities for debt or for crime.
The determination of contract rights between
individuals.
The definition and punishment of crime.
The administration of justice in civil cases.

The determination of the political duties, privileges,

and relations of citizens.
Dealings of the state with foreign powers: the
preservation of the state from external danger or
encroachment and the advancement of its
international interests.'" (Malcolm, The Government
of the Philippine Islands, p. 19.)

The most important of the ministrant functions are:

1. Public works
2. Public education
3. Public charity
4. Health and safety regulations, and
5. Regulations of trade and industry.
From the above we may infer that, strictly speaking, there are
functions which our government is required to exercise to
promote its objectives as expressed in our Constitution and
which are exercised by it as an attribute of sovereignty, and
those which it may exercise to promote merely the welfare,
progress and prosperity of the people. To this latter class
belongs the organization of those corporations owned or
controlled by the government to promote certain aspects of the
economic life of our people such as the National Coconut
Corporation. These are what we call government-owned or
controlled corporations which may take on the form of a
private enterprise or one organized with powers and formal
characteristics of a private corporations under the Corporation
Law.
GOVERNMENT-OWNED AND CONTROLLED
CORPORATIONS ARE NOT GOVERNMENT
ENTITIES. - The question that now arises is: Does the fact
that these corporations perform certain functions of
government make them a part of the Government of the
Philippines?
The answer is simple: they do not acquire that status for the
simple reason that they do not come under the classification of
municipal or public corporation. Take for instance the
National Coconut Corporation. While it was organized with
the purpose of "adjusting the coconut industry to a position
independent of trade preferences in the United States" and of
providing "Facilities for the better curing of copra products
and the proper utilization of coconut by-products", a function
which our government has chosen to exercise to promote the
coconut industry, however, it was given a corporate power
separate and distinct from our government, for it was made
subject to the provisions of our Corporation Law in so far as
its corporate existence and the powers that it may exercise are
concerned (sections 2 and 4, Commonwealth Act No. 518). It
may sue and be sued in the same manner as any other private
corporations, and in this sense it is an entity different from our
government. As this Court has aptly said, "The mere fact that
the Government happens to be a majority stockholder does not
make it a public corporation" (National Coal Co. vs. Collector
of Internal Revenue, 46 Phil., 586-587). "By becoming a
stockholder in the National Coal Company, the Government
divested itself of its sovereign character so far as respects the
transactions of the corporation. . . . Unlike the Government,
the corporation may be sued without its consent, and is subject
to taxation. Yet the National Coal Company remains an

agency or instrumentality of government." (Government of the

Philippine Islands vs. Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term "Government
of the Republic of the Philippines" used in section 2 of the
Revised Administrative Code refers only to that government
entity through which the functions of the government are
exercised as an attribute of sovereignty, and in this are
included those arms through which political authority is made
effective whether they be provincial, municipal or other form
of local government. These are what we call municipal
corporations. They do not include government entities which
are given a corporate personality separate and distinct from the
government and which are governed by the Corporation Law.
Their powers, duties and liabilities have to be determined in
the light of that law and of their corporate charters. They do
not therefore come within the exemption clause prescribed in
section 16, Rule 130 of our Rules of Court.
"Public corporations are those formed or organized for the
government of a portion of the State."
"'The generally accepted definition of a municipal corporation
would only include organized cities and towns, and like
organizations, with political and legislative powers for the
local, civil government and police regulations of the
inhabitants of the particular district included in the boundaries
of the corporation.'
"In its more general sense the phrase 'municipal corporation'
may include both towns and counties, and other public
corporations created by government for political purposes. In
its more common and limited signification, it embraces only
incorporated villages, towns and cities.
"We may, therefore, define a municipal corporation in its
historical and strict sense to be the incorporation, by the
authority of the government, of the inhabitants of a particular
place or district, and authorizing them in their corporate
capacity to exercise subordinate specified powers of
legislation and regulation with respect to their local and
internal concerns. This power of local government is the
distinctive purpose and the distinguishing feature of a
municipal corporation proper." (Dillon, Municipal
Corporations, 5th ed., Vol. I, p. 59.)
Philippine Virginia Tobacco Adm. vs. CIR [G.R. No. L32052, July 25, 1975]
THE PROMOTION OF GENERAL WELFARE IS A
GOVERNMENT FUNCTION, REPUDIATION OF THE
CONCEPT OF LAISSEZ FAIRE. - The growing
complexities of modern 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." Thus was laid to rest the doctrine in Bacani v.
National Coconut Corporation, based on the Wilsonian
classification of the tasks incumbent on government into
constituent and ministrant in accordance with the laissez faire
principle. That concept, then dominant in economics, was
carried into the governmental sphere. He took pains to
emphasize that what was categorized by him as constituent
functions had its basis in a recognition of what was demanded
by the "strictest [concept of] laissez faire, [as they] are indeed
the very bonds of society." The other functions he would
minimize as ministrant or optional.
The doctrines of laissez faire and of unrestricted freedom of
the individual, as axioms of economic and political theory, are
of the past. The modern period has shown a widespread belief
in the amplest possible demonstration of government activity.
The 1935 Constitution, as was indicated earlier, continued that
approach. As noted in Edu v. Ericta: "What is more, to erase
any doubts, the Constitutional Convention saw to it that the
concept of laissez-faire was rejected. It entrusted to our
government the responsibility of coping with social and
economic problems with the commensurate power of
control over economic affairs. Thereby it could live up to
its commitment to promote the general welfare through
state action." Nor did the opinion in Edu stop there: "To
repeat, our Constitution which took effect in 1935 erased
whatever doubts there might be on that score. Its philosophy is
a repudiation of laissez-faire. One of the leading members of
the Constitutional Convention, Manuel A. Roxas, later the first
President of the Republic, made it clear when he disposed of
the objection of Delegate Jose Reyes of Sorsogon, who noted
the 'vast extensions in the sphere of governmental
functions' and the 'almost unlimited power to interfere in
the affairs of industry and agriculture as well as to
compete with existing business' as 'reflections of the
fascination exerted by [the then] current tendencies' in
other jurisdictions. He spoke thus: 'My answer is that this
constitution has a definite and well defined philosophy, not
only political but social and economic. . . . If in this
Constitution the gentlemen will find declarations of economic
policy they are there because they are necessary to safeguard
the interest and welfare of the Filipino people because we
believe that the days have come when in self-defense, a
nation may provide in its constitution those safeguards, the
patrimony, the freedom to grow, the freedom to develop
national aspirations and national interests, not to be
hampered by the artificial boundaries which a
constitutional provision automatically imposes."
Parens Patriae (Parent of the People)
Literally parent of the people. As such, the government may
act as guardian of the rights of people who may be
disadvantaged or are suffering from some disability or
misfortune.

Gov. of the Philippine Islands vs. Monte de Piedad [G.R.

No. 9959, December 13, 1916]

1.

The earthquake fund was the result or the accumulation of a

great number of small contributions. The names of the
contributors do not appear in the record. Their whereabouts
are unknown. They parted with the title to their respective
contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They
are quite numerous also. And no doubt a large number of the
original sufferers have died, leaving various heirs. It would be
impracticable for them to institute an action or actions either
individually or collectively to recover the $80,000. The only
course that can be satisfactorily pursued is for the Government
to against assume control of the fund and devote it to the
object for which it was originally destined.

2.

The impracticability of pursuing a different course, however,

is not the true ground upon which the right of the Government
to maintain the action rests. The true ground is that the
money being given to a charity became, in a measure,
public property, only applicable, it is true, to the specific
purposes to which it was intended to be devoted, but within
those limits consecrated to the public use, and became part of
the public resources for promoting the happiness and welfare
of the Philippine Government. (Mormon Church vs. U. S.,
supra.) To deny the Government's right to maintain this action
would be contrary to sound public policy, as tending to
discourage the prompt exercise of similar acts of humanity and
Christian benevolences in like instances in the future.
Different Types of Government
Presidential there is separation of executive and legislative
powers (the first is lodged in the President, while the second is
vested in the Congress)
Parliamentary there is fusion of both the executive and
legislative powers in Parliament, although the actual exercise
of the executive powers is vested in a Prime Minister who is
chosen by, and accountable to, Parliament.
Unitary single, centralized government, exercising powers
over both the internal and external affairs of the State
Federal consists of autonomous state (local) government
units merged into a single State, with the national government
exercising a limited degree of power over the domestic affairs
but generally full direction of the external affairs of the State.
De Jure government of right; a government established
according to the Constitution of the State, and lawfully entitled
to recognition and supremacy and the administration of the
State but is actually ousted from power or control. It is the true
and lawful government
De facto that government which unlawfully gets the
possession and control of the rightful legal government and
maintains itself there by force and arms against the will of the
rightful legal government, and claims to exercise the powers
thereof. It is a government of fact.
3 types of de facto government

3.

that which takes possession, or control of, or usurps

by force or by the voice of the majority, the rightful
legal government against the will of the latter;
that which is established by the inhabitants of the
territory who rise in insurrection against the parent
state;
Government of Paramount Force - that which is
established by the invading military forces of an
enemy who occupy a territory in the course of war.

There can be a de jure without a de facto but there can never

be a de facto without a de jure since de facto must always
usurp
SOVEREIGNTY
The supreme and uncontrollable power inherent in a State by
which that State is governed.
Characteristics:
Permanence
Exclusiveness
Completeness
Absoluteness
Indivisibility
Inalienability
Imprescriptibility
Can we say embassies are foreign soil?
No. Embassies are granted primary jurisdiction only.
People vs. Gozo [G.R. No. L-36409, October 26, 1973]
SOVEREIGNTY IS COMPREHENSIVE, BUT ITS
EXERCISE MAY BE RESTRICTED. - Philippine
Government merely consents that the United States
exercise jurisdiction in certain cases.
The consent was given purely as a matter of comity, courtesy,
or expediency.
The Philippine Government has not abdicated its
sovereignty over the bases as part of the Philippine
territory or divested itself completely of jurisdiction over
offenses committed therein. Under the terms of the treaty,
the United States Government has prior or preferential
but not exclusive jurisdiction of such offenses. The
Philippine Government retains not only jurisdictional
rights not granted, but also all such ceded rights as the
United States Military authorities for reasons of their own
decline to make use of.
"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."

principle of auto-limitation: "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 autolimitation, 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."
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."
What type of government was established during the
Japanese Occupation?
Government of Paramount Force
Indicators:
1. Established by active military presence
2. Obeyed in civil matters by private citizens
What happens to sovereignty during belligerent
occupation?
IT REMAINS. What is suspended is the exercise of acts of
sovereignty.
Co Kim Cham vs. Valdez Tan Keh [G.R. No. L-5a,
November 16, 1945]
DURING BELLIGERENT OCCUPATION, JUDICIAL
DECISIONS RENDERED BY THE INVADER
CONTINUE ITS FORCE AND EFFECT EVEN AFTER
THE CESSATION OF INVASION.
the provisions of the Hague Conventions which imposes upon
a belligerent occupant the duty to continue the courts as well
as the municipal laws in force in the country unless absolutely
prevented, in order to reestablish and insure "I'ordre et la vie
publice," that is, the public order and safety, and the entire
social and commercial life of the country, were inserted, not
for the benefit of the invader, but for the protection and benefit
of the people or inhabitants of the occupied territory and of
those not in the military service, in order that the ordinary
pursuits and business of society may not be unnecessarily
deranged.
As a necessary consequence of such occupation and
domination, the political relations of its people to their former
government are, for the time being, severed. But for their
protection and benefit, and the protection and benefit of others
not in the ordinary pursuits and business of society may not be
unnecessarily deranged, the municipal laws, that is, such as
affect private rights of persons and property and provide for
the punishment of crime, are generally allowed to continue in
force, and to be administered by the ordinary tribunals as they

were administered before the occupation. They are considered

as continuing, unless suspended or superseded by the
occupying belligerent.
The fact that the belligerent occupant is a treacherous
aggressor, as Japan was, does not, therefore, exempt him from
complying with said precepts of the Hague Conventions, nor
does it make null and void the judicial acts of the courts
continued by the occupant in the territory occupied. To deny
validity to such judicial acts would benefit the invader or
aggressor, who is presumed to be intent upon causing as much
harm as possible to the inhabitants or nationals of the enemy's
territory, and prejudice the latter; it would cause more
suffering to the conquered and assist the conqueror or invader
in realizing his nefarious design; in fine, it would result in
penalizing the nationals of the occupied territory, and
rewarding the invader or occupant for his acts of treachery and
aggression.
As the said judicial acts which apply the municipal laws, that
is, such as affect private rights or persons and property and
provide for the punishment of crimes, are good and valid even
after occupation has ceased, although it is true that no crucial
instances exist to show that, were they reversed or invalidated
by the restored or legitimate government, international wrong
would be committed, it is nonetheless true and evident that by
such abrogation national wrong would be caused to the
inhabitants or citizens of the legitimate government.
According to the law of nations and Wheaton himself, said
judicial acts are legal and valid before and after the occupation
has ceased and the legitimate government has been restored.
As there are vested rights which have been acquired by the
parties by virtue of such judgments, the restored government
or its representative cannot reverse or abrogate them without
causing wrong or injury to the interested parties, because such
reversal would deprive them of their properties without due
process of law.
Does the suspension of political laws apply to ALL political
laws?
No.
LAW ON TREASON, THOUGH POLITICAL IN
NATURE, IS NOT SUSPENDED DURING
BELLIGERENT OCCUPATION. Considering that the
absolute and permanent allegiance of the inhabitants of a
territory occupied by the enemy to their legitimate government
or sovereign is not abrogated or severed by the enemy
occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier and
if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the
supreme power which governs a body politic or society which
constitute the state) must be distinguished from the exercise of
the rights inherent thereto, and may be destroyed, or severed
and transferred to another, but it cannot be suspended because
the existence of sovereignty cannot be suspended without
putting it out of existence or divesting the possessor thereof at
least during the so-called period of suspension; that what may
be suspended is the exercise of the rights of sovereignty with

the control and government of the territory occupied by the

enemy passes temporarily to the occupant; that the subsistence
of the sovereignty of the legitimate government in a territory
occupied by the military forces of the enemy during the war,
'although the former is in fact prevented from exercising the
supremacy over them' is one of the 'rules of international law
of our times';
as a corollary of the conclusion that the sovereignty itself is
not suspended and subsists during the enemy occupation, the
allegiance of the inhabitants to their legitimate government or
sovereign subsists, and therefore there is no such thing as
suspended allegiance, the basic theory on which the whole
fabric of the petitioner's contention rests
Considering that even adopting the words 'temporary
allegiance,' as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward the
military government established over them, such allegiance
may, at most, be considered similar to the temporary
allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the
protection he receives as above described, and does not do
away with the absolute and permanent allegiance which the
citizen residing in a foreign country owes to his own
government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted
of treason committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces of the
enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the
latter by giving them aid comfort; and that if the allegiance of
a citizen or subject to his government or sovereign is nothing
more than obedience to its laws in return for the protection he
receives, it would necessarily follow that a citizen who resides
in a foreign country or state would, on one hand, ipso facto
acquire the citizenship thereof since he has to obey, with
certain exceptions, the laws of that country which enforce
public order and regulate the social and commercial life, in
return for the protection he receives, and would, on the other
hand, lose his original citizenship, because he would not be
bound to obey most of the laws of his own government or
sovereign, and would not receive, while in a foreign country,
the protection he is entitled to in his own;
as a corollary of the suspension of the exercise of rights of
sovereignty by the legitimate government in the territory
occupied by the enemy military forces, because the authority
of the legitimate power to govern has passed into the hands of
the occupant, the political laws which prescribe the reciprocal
rights, duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co Kim
Cham vs. Valdez Tan Keh and Dizon, supra), for the only
reason that as they exclusively bear relation to the ousted
legitimate government, they are inoperative or not applicable
to the government established by the occupant; that the crimes
against national security, such as treason and espionage,
inciting to war, correspondence with hostile country, flight to
enemy's country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as

crimes against the legitimate government, are also suspended

or become inapplicable as against the occupant, because they
can not be committed against the latter; and that, while the
offenses against public order to be preserved by the legitimate
government were inapplicable as offenses against the invader
for the reason above stated, unless adopted by him, were also
ill operative as against the ousted government for the latter
was not responsible for the preservation of the public order in
the occupied territory, yet article 114 of the said Revised Penal
Code, was applicable to treason committed against the
national security of the legitimate government, because the
inhabitants of the occupied territory were still bound by their
allegiance to the latter during the enemy occupation;
Although the military occupant is enjoined to respect or
continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and
regulate the social and commercial life of the country, he has,
nevertheless, all the powers of a de facto government and may,
at his pleasure, either change the existing laws or make new
ones when the exigencies of the military service demand such
action, that is, when it is necessary for the occupier to do so
for the control of the country and the protection of his army,
subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience (
Peralta vs. Director of Prisons, supra; 1940 United States
Rules of Land Warfare 76, 77); and that, consequently, all acts
of the military occupant dictated within these limitations are
obligatory upon the inhabitants of the territory, who are bound
to obey them, and the laws of the legitimate government
which have not been adopted, as well and those which, though
continued in force, are in conflict with such laws and orders of
the occupier, shall be considered as suspended or not in force
and binding upon said inhabitants;
Since the preservation of the allegiance or the obligation of
fidelity and obedience of a citizen or subject to his government
or sovereign does not demand from him a positive action, but
only passive attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to
repeal or suspend the operation of the law of treason, essential
for the preservation of the allegiance owed by the inhabitants
to their legitimate government, or compel them to adhere and
give aid and comfort to him; because it is evident that such
action is not demanded by the exigencies of the military
service or not necessary for the control of the inhabitants and
the safety and protection of his army, and because it is
tantamount to practically transfer temporarily to the occupant
their allegiance to the titular government or sovereign; and
that, therefore, if an inhabitant of the occupied territory were
compelled illegally by the military occupant, through force,
threat or intimidation, to give him aid and comfort, the former
may lawfully resist and die if necessary as a hero, or submit
thereto without becoming a traitor;
Adoption of the petitioner's theory of suspended allegiance
would lead to disastrous consequences for small and weak
nations or states, and would be repugnant to the laws of
humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling

inhabitants of the occupied territory to fight against their own

government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not to
aid them in their military operation against the resisting enemy
forces in order to completely subdue and conquer the whole
nation, and thus deprive them all of their own independence or
sovereignty such theory would sanction the action of
invaders in forcing the people of a free and sovereign country
to be a party i n the nefarious task of depriving themselves of
their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to
commit a political suicide.
What happens to the governmental acts of the belligerent
government?
Acts which are contrary to those of the original government
are void.
Municipal laws which are inconsistent with those of the
occupied territory require a proclamation to be inoperative.
Ruffy vs. Chief of Staff [G.R. No. L-533, August 20, 1946]
THE SUSPENSION OF POLITICAL LAWS DURING
BELLIGERENT OCCUPATION DOES NOT APPLY TO
THE ENEMIES IN ARMS. The rule invoked by counsel,
namely, that laws of political nature or affecting political
relations are considered superseded or in abeyance during the
military occupation, is intended for the governing of the civil
inhabitants of the occupied territory. It is not intended for and
does not bind the enemies in arms. This is self-evident from
the very nature of things. The paradox of a contrary ruling
should readily manifest itself. Under the petitioners' theory the
forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They
would be stripped of the very lifeblood of an army, the right
and the ability to maintain order and discipline within the
organization and to try the men guilty of breach thereof.
THE DOCTRINE OF STATE IMMUNITY
State Immunity constitutional in origin?
No. Under our Constitution the principle of immunity of the
government from suit is expressly provided in Article XVI,
Section 3. The principle is based on the very essence of
sovereignty, and on the practical ground that there can be no
legal right as against the authority that makes the law on
which the right depends. However it may be sued if it gives
its consent, whether express or implied.
Sociological Basis: Propensity of people to litigate, waste of
resources
INSTANCES OF SUITS AGAINST THE STATE. - Some
instances when a suit against the State is proper are:
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government
agency;
(3) When the suit is on its face against a government officer
but the case is such that ultimate liability will belong not to the
officer but to the government.
Republic vs. Sandoval

While the Republic in this case is sued by name, the ultimate

liability does not pertain to the government. Although the
military officers and personnel, then party defendants, were
discharging their official functions when the incident occurred,
their functions ceased to be official the moment they exceeded
their authority. Based on the Commission findings, there was
lack of justification by the government forces in the use of
firearms. Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under B.P.
Blg. 880 as there was unnecessary firing by them in dispersing
the marchers.
While it is true that nothing is better settled than the general
rule that a sovereign state and its political subdivisions cannot
be sued in the courts except when it has given its consent, it
cannot be invoked by both the military officers to release them
from any liability, and by the heirs and victims to demand
indemnification from the government. The principle of state
immunity from suit does not apply, as in this case, when the
relief demanded by the suit requires no affirmative official
action on the part of the State nor the affirmative discharge of
any obligation which belongs to the State in its political
capacity, even though the officers or agents who are made
defendants claim to hold or act only by virtue of a title of the
state and as its agents and servants. This Court has made it
quite clear that even a "high position in the government does
not confer a license to persecute or recklessly injure another."
THE STATE IMMUNITY IS NOT WAIVED ONLY FOR
THE REASON THAT THE PRESIDENT CREATED A
COMMISSION TO INVESTIGATE THE INCIDENT,
OR BY THE PRESIDENTS ACT OF JOINING A
RALLY OF THE COMPLAINANTS. In effect, whatever
may be the findings of the Commission, the same shall only
serve as the cause of action in the event that any party decides
to litigate his/her claim. Therefore, the Commission is merely
a preliminary venue. The Commission is not the end in itself.
Whatever recommendation it makes cannot in any way bind
the State immediately, such recommendation not having
become final and executory. This is precisely the essence of it
being a fact-finding body.
Secondly, whatever acts or utterances that then President
Aquino may have done or said, the same are not tantamount to
the State having waived its immunity from suit. The
President's act of joining the marchers, days after the incident,
does not mean that there was an admission by the State of any
liability. In fact to borrow the words of petitioners (Caylao
group), "it was an act of solidarity by the government with the
people". Moreover, petitioners rely on President Aquino's
speech promising that the government would address the
grievances of the rallyists. By this alone, it cannot be inferred
that the State has admitted any liability, much less can it be
inferred that it has consented to the suit.
Although consent to be sued may be given impliedly, still it
cannot be maintained that such consent was given considering
the circumstances obtaining in the instant case.
Sanders vs. Veridiano
ACTS COMMITTED BY THE OFFICERS IN THEIR
OFFICIAL CAPACITY ARE COVERED BY STATE

IMMUNITY. - It is stressed at the outset that the mere

allegation that a government functionary is being sued in his
personal capacity will not automatically remove him from the
protection of the law of public officers and, if appropriate, the
doctrine of state immunity. By the same token, the mere
invocation of official character will not suffice to insulate him
from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority.
These well-settled principles are applicable not only to the
officers of the local state but also where the person sued in its
courts pertains to the government of a foreign state, as in the
present case.
THE DOCTRINE OF STATE IMMUNITY APPLIES TO
FOREIGN STATES SUED IN THIS JURISDICTION.
There should be no question by now that such complaint
cannot prosper unless the government sought to be held
ultimately liable has given its consent to be sued. So we have
ruled not only in Baer but in many other decisions where we
upheld the doctrine of state immunity as applicable not only to
our own government but also to foreign states sought to be
subjected to the jurisdiction of our courts.
The practical justification for the doctrine, as Holmes put it, is
that "there can be no legal right against the authority which
makes the law on which the right depends." In the case of
foreign states, the rule is derived from the principle of the
sovereign equality of states which wisely admonishes that par
in parem non habet imperium and that a contrary attitude
would "unduly vex the peace of nations." Our adherence to
this precept is formally expressed in Article II, Section 2, of
our Constitution, where we reiterate from our previous
charters that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land.
par in parem non habet imperium (meaning, an equal has
no authority over an equal)
How can foreign states invoke state immunity?
Holy See vs. Rosario
PROCEDURE IN INVOKING STATE IMMUNITY BY
FOREIGN STATES. - In Public International Law, when a
state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign
Office of the state where it is sued to convey to the court that
said defendant is entitled to immunity.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international
organization sued in an American court requests the Secretary
of State to make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to
submit to the court a "suggestion" that the defendant is entitled
to immunity. In England, a similar procedure is followed, only
the Foreign Office issues a certification to that effect instead
of submitting a "suggestion"
In the Philippines, the practice is for the foreign government
or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity.

But how the Philippine Foreign Office conveys its

endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the latter that
the respondent- employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v.
Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the
Secretary of Foreign Affairs to request the Solicitor General to
make, in behalf of the Commander of the United States Naval
Base at Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied the
"suggestion" in a Manifestation and Memorandum as amicus
curiae.
In the Philippines there is no formal procedure
Forms of Express Consent
EXPRESS WAIVER OF IMMUNITY MUST BE
THROUGH LEGISLATIVE ACT.
Waiver of immunity, being a derogation of sovereignty, will
not be inferred lightly, but must be construed in strictissimi
juris. Moreover, the Proclamation is not a legislative act. The
consent of the State to be sued must emanate from statutory
authority. Waiver of State immunity can only be made by an
act of the legislative body. (Republic vs. Feliciano)
What is Act 3083?
The general law waiving the immunity of the state from suit is
found in Act No. 3083, under which the Philippine
government "consents and submits to be sued upon any
moneyed claim involving liability arising from contract,
express or implied, which could serve as a basis of civil action
between private parties."
Nature of the Contract
RESTRICTIVE THEORY OF STATE IMMUNITY. There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
non-suability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver
may be implied.
it has been necessary to distinguish them between
sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is
that State immunity now extends only to acts jure imperii.
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when
it enters into business contracts. It does not apply where the
contract relates to the exercise of its sovereign functions. In
this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and
the Philippines, indisputably a function of the government of

the highest order; they are not utilized for nor dedicated to
commercial or business purposes.

sovereign character and sheds its immunity from suit,

descending to the level of an ordinary litigant.

TWO CONFLICTING CONCEPTS OF SOVEREIGN

IMMUNITY

By taking the initiative in an action against the private parties,

the state surrenders its privileged position and comes down to
the level of the defendant. The latter automatically acquires,
within certain limits, the right to set up whatever claims and
other defenses he might have against the state

classical or absolute theory states that a sovereign cannot,

without its consent, be made a respondent in the courts of
another sovereign.
According to the newer or restrictive theory, the immunity
of the sovereign is recognized only with regard to public acts
or acts jure imperii of a state, but not with regard to private
acts or acts jure gestionis.
Why is State immunity often called the royal prerogative
of dishonesty?
The doctrine is sometimes derisively called "the royal
prerogative of dishonesty" because of the privilege it grants
the state to defeat any legitimate claim against it by simply
invoking its non-suability. (US vs. Guinto)
Can the doctrine of state immunity be used to perpetrate
injustice?
No. In Amigable vs. Cuenca
If the constitutional mandate that the owner be compensated
for property taken for public use were to be respected, as it
should, then a suit of this character should not be summarily
dismissed. The doctrine of governmental immunity from suit
cannot serve as an instrument for perpetrating an injustice on a
citizen. It is not too much to say that when the government
takes any property for public use, which is conditioned upon
the payment of just compensation, to be judicially ascertained,
it makes manifest that it submits to the jurisdiction of a court.
There is no thought then that the doctrine of immunity from
suit could still be appropriately invoked."
TYPES OF IMPLIED CONSENT
Consent is implied when the state enters into a contract or
it itself commences litigation.
Republic vs. Sandiganbayan. STATE IMPLIEDLY
WAIVES ITS IMMUNITY WHEN IT COMMENCES
LITIGATION. So, too, the PCGG's postulation that none of
its members may be "required to testify or produce evidence in
any judicial . . . proceeding concerning matters within its
official cognizance," has no application to a judicial
proceeding it has itself initiated. As just suggested, the act of
bringing suit must entail a waiver of the exemption from
giving evidence; by bringing suit it brings itself within the
operation and scope of all the rules governing civil actions,
including the rights and duties under the rules of discovery.
Otherwise, the absurd would have to be conceded, that while
the parties it has impleaded as defendants may be required to
"disgorge all the facts" within their knowledge and in their
possession, it may not itself be subject to a like compulsion.
The State is, of course, immune from suit in the sense that it
cannot, as a rule, be sued without its consent. But it is
axiomatic that in filing an action, it divests itself of its

Difference of suability based on the performance of

proprietary functions and suability based on the entering onto
a contract in proprietary capacity.
Suability based on the performance of proprietary functions When the government enters into a contract, it is deemed
to have descended to the level of the other contracting
party and divested of its sovereign immunity from suit
with its implied consent.
Suability based on the entering into a contract in proprietary
capacity - the mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act
can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it is
an act jure imperii, especially when it is not undertaken for
gain or profit.
SUABILITY IS NOT SYNONYMOUS WITH
LIABILITY.
"By consenting to be sued a state simply waives its immunity
from suit. It does not thereby concede its liability to plaintiff,
or create any cause of action in his favor, or extend its liability
to any cause not previously recognized. It merely gives a
remedy to enforce a preexisting liability and submits itself to
the jurisdiction of the court, subject to its right to interpose any
lawful defense."
Suability depends on the consent of the state to be sued,
liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean
that it is liable; on the other hand, it can never be held liable if
it does not first consent to be sued. Liability is not conceded
by the mere fact that the state has allowed itself to be sued.
When the state does waive its sovereign immunity, it is only
giving the plaintiff the chance to prove, if it can, that the
defendant is liable.
The government may be held liable under this rule only if it
first allows itself to be sued through any of the accepted forms
of consent. (Festejo vs. Fernando)
Up to what stage does the waiver operates?
"The universal rule that where the State gives its consent to be
sued by private parties either by general or special law, it may
limit claimant's action `only up to the completion of
proceedings anterior to the stage of execution' and that the
power of the Courts ends when the judgment is rendered

Why does execution need another waiver?

Since government funds and properties may not be seized
under writs of execution or garnishment to satisfy such
judgments. It is based on obvious considerations of public
policy. Disbursements of public funds must be covered by the
corresponding appropriation as required by law. The functions
and public services rendered by the State cannot be allowed to
be paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as appropriated by
law.
Exception: Public funds may be garnished when
specifically earmarked for the judgment.
City of Caloocan vs. Judge Allarde [G.R. No. 107271,
September 10, 2003]
GOVERNMENT FUNDS APPROPRIATED FOR A
PURPOSE MAY BE GARNISHED TO SATISFY THAT
PURPOSE. - However, the rule is not absolute and admits of
a well- defined exception, that is, when there is a
corresponding appropriation as required by law. Otherwise
stated, the rule on the immunity of public funds from seizure
or garnishment does not apply where the funds sought to be
levied under execution are already allocated by law
specifically for the satisfaction of the money judgment against
the government. In such a case, the monetary judgment may
be legally enforced by judicial processes
A vs B. B won; B has money in a government agency. May
such money be garnished?
No. In that case the government becomes a forced intervenor.
What can be done directly cannot be done indirectly. PNB vs
Pabalan.
Difference between unincorporated and incorporporated
agency?
A GOVERNMENT OWNED AND CONTROLLED
CORPORATION HAS DISTINCT PERSONALITY OF
ITS OWN; FUNDS OF THE CORPORATE ENTITY
MAY BE PROCEEDED AGAINST. (PNB vs Pabalan)
GOVERNMENT OWNED AND CONTROLLED
CORPORATION HAS A SEPARATE PERSONALITY
INDEPENDENT OF THE GOVERNMENT, AND THUS,
THE QUESTION OF SUABILITY MAY BE
DETERMINED FROM ITS CHARTER. - It is not
necessary to write an extended dissertation on whether or not
the NPC performs a governmental function with respect to the
management and operation of the Angat Dam. It is sufficient
to say that the government has organized a private corporation,
put money in it and has allowed it to sue and be sued in any
court under its charter. As a government owned and controlled
corporation, it has a personality of its own, distinct and
separate from that of the Government.
What if a GOCC is incorporated under the Corporation
Code but its AOI does not provide that it can be sued, can
the GOCC be sued?
YES. 1) Applying the Corporation Code.

2) It is still an entity with a personality separate and distinct

from the government
Municipal Corporations
the incorporation, by the authority of the government, of the
inhabitants of a particular place or district, and authorizing
them in their corporate capacity to exercise subordinate
specified powers of legislation and regulation with respect to
their local and internal concerns. This power of local
government is the distinctive purpose and the distinguishing
feature of a municipal corporation proper."
Section 22. Corporate Powers. (a) Every local government unit, as a corporation, shall have
the following powers:
xxx
(2) To sue and be sued;
xxx
Unincorporated inquire into the functions of the corporation
Bureau of Printing vs. Bureau of Printing Employees Ass.
[G.R. No. L-15751, January 28, 1961]
GOVERNMENTAL ENTITIES, THOUGH
INCEDENTALLY PERFORMING PROPRIETARY
FUNCTIONS, ARE ENTITLED TO STATE IMMUNITY.
- The Bureau of Printing is an office of the Government
created by the Administrative Code of 1916 (Act No. 2657).
As such instrumentality of the Government, it operates under
the direct supervision of the Executive Secretary, Office of the
President, and is "charged with the execution of all printing
and binding, including work incidental to those processes,
required by the National Government and such other work of
the same character as said Bureau may, by law or by order of
the (Secretary of Finance) Executive Secretary, be authorized
to undertake . . .." (Sec. 1644, Rev. Adm. Code.) It has no
corporate existence, and its appropriations are provided for in
the General Appropriations Act. Designed to meet the printing
needs of the Government, it is primarily a service bureau and
is obviously, not engaged in business or occupation for
pecuniary profit.
Indeed, as an office of the Government, without any corporate
or juridical personality, the Bureau of Printing cannot be sued.
(Sec. 1, Rule 3, Rules of Court.) Any suit, action or
proceeding against it, if it were to produce any effect, would
actually be a suit, action or proceeding against the
Government itself, and the rule is settled that the Government
cannot be sued without its consent, much less over its
objection. (See Metran vs. Paredes, 45 Off. Gaz., 2835; Angat
River Irrigation System, et al. vs. Angat River Workers'
Union, et al., G.R. Nos. L-10943-44, December 28, 1957).
It is true, as stated in the order complained of, that the Bureau
of Printing receives outside jobs and that many of its
employees are paid for overtime work on regular working
days and on holidays, but these facts do not justify the
conclusion that its functions are "exclusively proprietary in
nature." Overtime work in the Bureau of Printing is done only
when the interest of the service so requires (sec. 566, Rev.

Adm. Code). As a matter of administrative policy, the

overtime compensation may be paid, but such payment is
discretionary with the head of the Bureau depending upon its
current appropriations, so that it cannot be the basis for
holding that the functions of said Bureau are wholly
proprietary in character. Anent the additional work it executes
for private persons, we find that such work is done upon
request, as distinguished from those solicited, and only "as the
requirements of Government work will permit" (sec. 1654,
Rev. Adm. Code), and "upon terms fixed by the Director of
Printing, with the approval of the Department Head" (sec.
1665, id.). As shown by the uncontradicted evidence of the
petitioners, most of these works consist of orders for greeting
cards during Christmas from government officials, and for
printing of checks of private banking institutions. On those
greeting cards, the Government seal, of which only the Bureau
of Printing is authorized to use, is embossed, and on the bank
checks, only the Bureau of Printing can print the reproduction
of the official documentary stamps appearing thereon. The
volume of private jobs done, in comparison with government
jobs, is only one-half of 1 percent, and in computing the costs
for work done for private parties, the Bureau does not include
profit, because it is not allowed to make any. Clearly, while
the Bureau of Printing is allowed to undertake private printing
jobs, it cannot be pretended that it is thereby an industrial or
business concern. The additional work it executes for private
parties is merely incidental to its function, and although such
work may be deemed proprietary in character, there is no
showing that the employees performing said proprietary
function are separate and distinct from those employed in its
general governmental functions.
Mobil Phils. Exploration vs. Customs Arrastre Service
[G.R. No. L-23139, December 17, 1966]
PROPRIETARY FUNCTIONS NECESSARY TO THE
GOVERNMENTAL PURPOSES OF THE
GOVERNMENT ENTITY ARE COVERED BY THE
DOCTRINE OF STATE IMMUNITY.
although said arrastre function may be deemed proprietary, it
is a necessary incident of the primary and governmental
function of the Bureau of Customs, so that engaging in the
same does not necessarily render said Bureau liable to suit.
For otherwise, it could not perform its governmental function
without necessarily exposing itself to suit. Sovereign
immunity, granted as to the end, should not be denied as to the
necessary means to that end.
Civil Aeronautics Administration vs. CA [G.R. No. L51806, November 8, 1988]
THE DOCTRINE OF STATE IMMUNITY DOES NOT
APPLY TO GOVERNMENT OWNED AND
CONTROLLED CORPORATIONS. - This doctrine has
been reaffirmed in the recent case of Malong v. Philippine
National Railways [G.R. No. L-49930, August 7, 1985, 138
SCRA 63], where it was held that the Philippine National
Railways, although owned and operated by the government,
was not immune from suit as it does not exercise sovereign but
purely proprietary and business functions. Accordingly, as the
CAA was created to undertake the management of airport
operations which primarily involve proprietary functions, it

cannot avail of the immunity from suit accorded to

government agencies performing strictly governmental
functions.
Mun. of San Fernando vs. Firme [G.R. No. 52179, April 8,
1991]
THE SUABILITY OF MUNICIPAL CORPORATIONS
IS DETERMINED THROUGH THEIR CHARTER. Municipal corporations, for example, like provinces and cities,
are agencies of the State when they are engaged in
governmental functions and therefore should enjoy the
sovereign immunity from suit. Nevertheless, they are subject
to suit even in the performance of such functions because their
charter provided that they can sue and be sued. (Cruz,
Philippine Political Law, 1987 Edition, p. 39)
Mun. of San Miguel vs. Fernandez [G.R. No. L-61744,
June 25, 1984]
FUNDS OF THE MUNICIPAL CORPORATIONS ARE
EXEMPT FROM EXECUTION. - In Tantoco vs. Municipal
Council of Iloilo, 49 Phil. 52, it was held that "it is the settled
doctrine of the law that not only the public property but also
the taxes and public revenues of such corporations cannot be
seized under execution against them, either in the treasury or
when in transit to it. Judgments rendered for taxes, and the
proceeds of such judgments in the hands of officers of the law,
are not subject to execution unless so declared by statute.
Mandamus to compel enactment of ordinance is possible.
Mun. of Makati vs. CA [G.R. Nos. 89898-99, October 1,
1990]
REMEDY TO ENFORCE THE LIABILITY OF THE
MUNICIPAL CORPORATION
Where a municipality fails or refuses, without justifiable
reason, to effect payment of a final money judgment rendered
against it, the claimant may avail of the remedy of mandamus
in order to compel the enactment and approval of the
necessary appropriation ordinance, and the corresponding
disbursement of municipal funds therefor
Remedy of private citizen against foreign state invoking
state immunity
REMEDY OF THE COMPLAINANTS WHEN THE
STATE IMMUNITY IS INVOKED. - Private respondent is
not left without any legal remedy for the redress of its
grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts
of a foreign sovereign can ask his own government to espouse
his cause through diplomatic channels.
Private respondent can ask the Philippine government, through
the Foreign Office, to espouse its claims against the Holy See.
Its first task is to persuade the Philippine government to take
up with the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the impact
of its espousal on the relations between the Philippine
government and the Holy See

By taking up the case of one of its subjects and by reporting to

diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own rights its right
to ensure, in the person of its subjects, respect for the rules of
international law.

ARTICLE II FUNDAMENTAL PRINCIPLES AND

STATE POLICIES
Republicanism [Sec. 1. Art. II: The Philippines is a
democratic and republican State. Sovereignty resides in
the people and all government authority emanates from
them].
1. Essential features: representation and renovation.
Villavicencio vs. Lukban
IN THE ABSENCE OF ANY LAW, GOOD INTENTIONS
CANNOT JUSTIFY THE CURTAILMENT OF FREEDOM.
- Law defines power. No official, no matter how high, is above
the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official
transgressors. "The law is the only supreme power in our
system of government, and every man who by accepting office
participates in its functions is all the more strongly bound to
submit to that supremacy, and to observe the limitations which
it imposes upon the exercise of the authority which it gives.
One hundred and seventy women, who had lived in the
segregated district for women of ill repute in the city of
Manila, were by orders of the Mayor of the city of Manila and
the chief of police of that city isolated from society and then at
night, without their consent and without any opportunity to
consult with friends or to defend their rights, were forcibly
hustled on board steamers for transportation to regions
unknown. No law, order, or regulation authorized the Mayor
of the city of Manila or the chief of the police of that city to
force citizens of the Philippine Islands to change their
domicile from Manila to another locality. Held: That the writ
of habeas corpus was properly granted, and that the Mayor of
the city of Manila who was primarily responsible for the
deportation, is in contempt of court for his failure to comply
with the order of the court.
These women, despite their being in a sense lepers of society,
are nevertheless not chattles, but Philippine citizens protected
by the same constitutional guaranties as are other citizens.
2. Manifestations.
a) Ours is a government of laws and not of men
[Villavicencio v. Lukban, 39 Phil 778].
b) Rule of the majority. [Plurality in elections]
c) Accountability of public officials.
d) Bill of Rights.
e) Legislature cannot pass irrepealable laws.
f) Separation of powers.
If there is no express declaration that the Philippines
renounces war, can the Philippines engage in aggressive
war?
NO. The Incorporation Clause [Sec. 2. Art. II: The
Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations"].

By virtue of this clause, our Courts have applied the rules of

international law in a number of cases even if such rules had
not previously been subject of statutory enactments, because
these generally accepted principles of international law are
automatically part of our own laws. See Kuroda v. Jalandoni
Such rules and principles, therefore, form part of the law of
our nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of
international law as contained in treaties to which our
government may have been or shall be a signatory.
Transformation - Under the 1987 Constitution, international
law can become part of the sphere of domestic law either by
transformation or by incorporation. The transformation
method requires that an international law principle be
transformed into domestic law through a constitutional
mechanism, such as local legislation.
Agustin vs Edu
It cannot be disputed then that this Declaration of Principle
found in the Constitution possesses relevance: "The
Philippines . . . adopts the generally accepted principles of
international law as part of the law of the land, . . ." The 1968
Vienna Convention on Road Signs and Signals is impressed
with such a character. It is not for this country to repudiate a
commitment to which it had pledged its word. The concept of
Pacta sunt servanda stands in the way of such an attitude,
which is, moreover, at war with the principle of international
morality.
In all instances, will municipal laws prevail over a treaty?
The doctrine of incorporation is applied whenever municipal
tribunals or local courts are confronted with situations in
which there appears to be a conflict between a rule of
international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both. In a situation,
however, where the conflict is irreconcilable and a choice has
to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be
upheld by the municipal courts. In Ichong v. Hernandez, the
reason given by the Court was that the Retail Trade National
Law was passed in the exercise of the police power which
cannot be bargained away through the medium of a treaty or a
contract.
Ichong vs. Hernandez
Even supposing that the law infringes upon the said treaty, the
treaty is always subject to qualification or amendment by a
subsequent law, and the same may never curtail or restrict the
scope of the police power of the State
Qualify
If issue is presented before the local courts, municipal law
will prevail/
If before international tribunals, international law.
Conflict between treaty and rule promulgated by the SC?

A treaty may not modify the laws and regulations governing

the admission to the practice of law in the Ph, for the reason
that the Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to promulgate
rules for admission to the practice of law in the Philippines,
the power to repeal, alter or supplement such rules being
reserved only to the Congress of the Philippines.
In Gonzales v. Hechanova, 9 SCRA 230 and In Re: Garcia, 2
SCRA 984, on the basis of separation of powers and the rulemaking powers of the Supreme Court, respectively. The high
tribunal also noted that courts are organs of municipal law and
are accordingly bound by it in all circumstances.
However, as applied in most countries, the doctrine of
incorporation dictates that rules of international law are given
equal standing with, and are not superior to, national
legislative enactments. Accordingly, the principle of lex
posterior derogat priori takes effect. In states where the
constitution is the highest law of the land, such as the Republic
of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution
[Secretary of Justice v. Lantion, G.R. No. 139465, January 18,
2000, citing Salonga & Yap, Public International Law, 1992
ed.]. The same rule was applied in Philip Morris, Inc. v. Court
of Appeals, where the Supreme Court said that the fact that
international law has been made part of the law of the land
does not by any means imply the primacy of international law
over national law in the municipal sphere.
Civilian Supremacy Sec. 3. Art. II: Civilian authority is,
at all times, supreme over the military. The Armed Forces
of the Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the State and
the integrity of the national territory"].
Mandate of AFP protect the people and the State
Duty of Government; people to defend the State Sec. 4. Art. II:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal
military or civil service. Sec. 5. Art. II: The maintenance of
peace and order, the protection of life, liberty and property,
and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings Of democracy.
During martial law? Art. VII Sec. 18 A state of martial law
does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the privilege of
the writ.
Rationale why compulsory military service is
constitutional
SECTION 4. The prime duty of the Government is to serve
and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof,

all citizens may be required, under conditions provided by

law, to render personal military or civil service.

COMPULSORY MILITARY SERVICE IS

CONSTITUTIONAL. The National Defense Law, in so far as
it establishes compulsory military service, does not go against
this constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend
the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens
would be to make this duty of the Government excusable
should there be no sufficient men who volunteer to enlist
therein.
Power to establish it is derived from that granted to Congress
to declare war and to organize and maintain an army. This is
so because the right of the Government to require compulsory
military service is a consequence of its duty to defend the
State and is reciprocal with its duty to defend the life, liberty,
and property of the citizen.
Without violating the Constitution, a person may be compelled
by force, if need be, against his will, against his pecuniary
interests, and even against his religious or political
convictions, to take his place in the ranks of the army of this
country, and risk the chance of being shot down in its defense.
This is not deprivation of property without due process of law,
because, in its just sense, there is no right of property to an
office or employment. The circumstance that these decisions
refer to laws enacted by reason of the actual existence of war
does not make our case any different, inasmuch as, in the last
analysis, what justifies compulsory military service is the
defense of the State, whether actual or whether in preparation
to make it more effective, in case of need.
Compulsory military service requires presence of war? No. Ro
make the army effective, people will render civil service.
Difference between principles and policies
The Principles of the Philippine Constitution refers to the
basic generalization that is accepted as true. The State Policy
in the Philippine constitution refers to the plan of action that is
adopted by the government of the Philippines.
SECTION 6. The separation of Church and State shall be
inviolable.
Separation between church and state denies influence of
religion on human affairs? NO
Aglipay vs. Ruiz
THE CONSTITUTION GUARANTEES RELIGIOUS
FREEDOM, AND NOT MERE RELIGIOUS TOLERATION.
- The prohibition herein expressed is a direct corollary of the
principle of separation of church and state. Without the
necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that our history,
not to speak of the history of mankind, has taught us that the

union of church and state is prejudicial to both, for occasions

might arise when the state will use the church, and the church
the state, as a weapon in the furtherance of their respective
ends and aims. The Malolos Constitution recognized this
principle of separation of church and state in the early stages
of our constitutional development; it was inserted in the Treaty
of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions to the
Philippine Commission, reaffirmed in the Philippine Bill of
1902 and in the Autonomy Act of August 29, 1916, and finally
embodied in the Constitution of the Philippines as the supreme
expression of the Filipino People. It is almost trite to say now
that in this country we enjoy both religious and civil freedom.
All the officers of the Government, from the highest to the
lowest, in taking their oath to support and defend the
Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated
that what is guaranteed by our Constitution is religious liberty,
not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not a
denial of its influence in human affairs.
Religion as a profession of faith to an active power that binds
and elevates man to his Creator is recognized. And, in so far as
it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the
Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general
welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty
and democracy," they thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who
guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are
indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from
taxation properties devoted exclusively to religious purposes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and
sec. 1, subsec. Ordinance appended thereto; Assessment Law,
sec. 344, par [c], Adm. Code) sectarian aid is not prohibited
when a priest, preacher, minister or other religious teacher or
dignitary as such is assigned to the armed forces or to any
penal institution, orphanage or leprosarium (sec. 13, subsec. 3
Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate
allowed (sec. 5, Art. XIII, Constitution of the Philippines, in
relation to sec. 928, Ad. Code). Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays are
made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conducive to beneficial
moral results. The law allows divorce but punishes polygamy
and bigamy; and certain crimes against religious worship are
considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).