CONSTITUTIONAL LAW I – First meeting

STATE AND ITS ELEMENTS:

-can there be a state without a government?
-can there be a government without a state? Give an example
-has legal personality; has the capacity to do business or join other states in making
international law (customary) or enter into international agreements
 Montevideo Convention of 1933: people, territory, government, sovereignty
1. People
Suppose all the people living in the island are women? Does it comply with the
requirement of statehood?
 Differentiate from inhabitants
o Art. XIII Section 1
o Art. II Section 15 and 16
o Art. III Section 2
 Citizens
o Art. II Section 1
o Art. II Section 4
o Art. III Section 7
 Electors
o Art. VII Section 4
o Art. XVI Section 2
o Art. XVIII Section 25

2. TERRITORY:
Does it comply with the requirement of statehood if there are still boundary disputes?
 The case of Palestinian statehood
 1) Refer to Article one of the Constitution: where exactly is the Philippine archipelago?
What are those islands that are included therein?
 Treaty limits
o Treaty of Paris December 10, 1898
o Treaty of Washington November 7, 1900 between the US and Spain, ceding
Cagayan, Sibuto and Sulu
o Treaty of January 2, 1930 between the US and UK, ceding the Turtle and
Mangsee Islands
 2) 1973: all other territories belonging to the Philippines by historic right or legal title
 Provision for the Sabah claim
 Legal title – all accepted modes of acquiring territory
 1987: all other territories over which the Philippine has sovereignty or jurisdiction; it is
open to all modes of acquiring territory under international law and also open to settling
of conflicting claims under international law
 United Nations Convention on Law of the Sea (UNCLOS) - 1982: the concept of
archipelago and archipelagic state
 3) The territorial sea: 12 nautical miles; contiguous zone: 24 nautical miles; exclusive
economic zone: 200 nautical miles
 Baselines: normal baselines and the straight baselines (Article 7 (1) of the UNCLOS)
o Uses of baselines:
o Determine what constitute internal waters and the scope of internal waters
o Determine the 200 mile EEZ
o Archipelagic doctrine – the body of water strudded with islands, or the islands
surrounded with water, is viewed as a unity of islands and waters together
forming one unit. The purpose of the doctrine is to protect the interests of the
archipelago.
 Sovereignty over territorial waters subject to right of innocent passage; but no such right
if referring to internal waters; but consider Article 8 (2) where the effect of the straight
baseline method is the enclosing as internal waters those areas which have not been
considered before as such, then there must be the right of innocent passage. Here the
Philippines made its reservations upon signing of the UNCLOS. SEE page 27-28.
 4) The insular shelf, the continental shelf
o The land which is submerged under water which may extend beyond 12 miles as
long as it is not more than 300 feet deep. It is also known as intercontinental
shelf
 The exclusive economic zone: 200 nautical miles- the coastal state has sovereign rights
to explore, develop, or exploit and conserve the natural resources. If the Philippines will
not undertake any exploration, development or exploitation of these marine resources,
then no country has the right to do so. China should not and cannot under the law, bully
us regarding our EEZ
 Such as the production of energy from the water, currents and winds
 Exclusive rights and jurisdiction with respect to the establishment and utilization of
artificial islands, off-shore terminals, installations and structures; preservation of the
marine environment, including the prevention and control of pollution and scientific
research
 Including also such other right recognized by international law
o Other states are allowed to use the zone for:
 Navigation and over-flight
 Laying of submarine cables and pipelines
 Other lawful uses related to navigation and communication
 The Philippines has sovereignty over her territory and that includes the territorial sea
but she has only sovereign rights over her exclusive economic zone.

3. GOVERNMENT
 Differentiate from administration
 Constituent or ministrant functions? Governmental or proprietary functions?
 Administration of justice, how will you classify it?
 Implementation of the land reform program – may not be strictly constituent in the
sense discussed in the case of Bacani vs. NACOCO, but take note of the urgency that the
constitution emphasizes social justice
 How about housing, how will you classify it in terms of functions of the government?

De jure and de facto government?

 De jure – government has rightful title but no actual power or control, either because
this has been withdrawn from it or because it has not yet actually entered into the
exercise thereof.
 De facto –is a government in fact, that is, it actually exercises power or control without
legal title.
 The government of Cory Aquino in 1986?
 Revolutionary? Defiance of the existing legal processes?
 Despotic? There is still the Bill of Rights in the Freedom constitution.
 Militaristic? The principle of civilian supremacy is enshrined in the constitution
also.
 Temporary? Yes!
 De facto or de jure: Explain it in the local context or international level
  In the latter it depends on the recognition received by the government from
other states
 Is recognition by other states a constitutive element that even with the presence
of the four under the Montevideo Convention it is not yet a state if not
recognized? There are two schools of thought here in international law: the
declarative theory and the constitutive theory.

4. SOVEREIGNTY

 Legal –the supreme power to make laws

 Political – sum total of all the influences in a state, legal or non-legal which
determine the course of law.
o Imperium – refers to the state’s authority to govern; in this capacity, jure
imperii – it enjoys immunity from suit
o Dominium –the capacity of the state to own property; in this capacity
jure gestium, the state descends to the level of ordinary persons and thus
becomes liable for the consequences of its actions.
 Jurisdiction is the manifestation of sovereignty.
o Territorial –is the authority of the state to have all persons and things within its
territorial limits to be completely subject to its control and protection. It is
necessarily exclusive and absolute. Any restriction upon it, deriving from an
external source, would imply a diminution of its sovereignty to the extent of the
restriction. All exceptions must be traced up to the consent of the state itself.
There is no other legitimate source.
o Personal –is the authority of the state over its nationals, their persons, property,
and acts whether within or outside its territory. Civil Code provisions that
mandatory laws follow citizens wherever they go. This is usually being followed
in Taxation Laws of the country as well as in laws affecting marriages and its
dissolution
o Extraterritorial –is the authority of the state over persons, things or acts, outside
its territorial limits by reason of their effects to its territory. Article 2 of the RPC.
 Commission of the offense on Philippine ship or airship
 Forge or counterfeit any coin or currency note of the Philippines
 Introduction into the Philippines of any forged item mentioned in number
preceding section
 While being public officer or employee, one commits an offense in the
exercise of his functions
 Commits any of the crimes against national security and the law of
nations defined in Title one of Book 2 of the RPC.
o Universal Jurisdiction – being exercised by states over offenders of certain crimes
and prosecute them regardless of the place where the crimes were committed.