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2. Socialization
Society can regulate itself because of socialization
This describes how when we grow up, we develop ideas
E.g. bawal mangulangot, kailngan magsipilyo
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As to creation:
o
Enacted (Conventional)
As to modification:
o
Rigid (inelastic)
2.
Broad
o
Covers a wide array
o
Not just because it provides for the organization of the
entire government and covers all persons and things
within the territory of the State but because it must be
comprehensive enough to provide for every contingency
o
But our Constitution is too broad, even the Philippine flag
is included
Brief
3.
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Emilio Aguinaldo
o
Also has legislative powers because during those times
we are at war
HOW?
THE EXECUTIVE Department creates the IRRs and administers its execution
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o
o
If the State does not act, you can file with the
International Criminal Courts YES, AN
INDIVIDUAL CAN!
War Crimes
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Jones Law
principal organic act until Nov. 15, 1935 Phil. Commonwealth
(1935 Consitution) was inaugurated
executive power was vested in the Governor General, legislative
power in a bicameral legislature composed of the Senate and the
House of Representative, and judicial power in the Supreme Court,
the Courts of First Instance and inferior courts
there was mass naturalization
Who are citizens? Inhabitants/residents up to April 11, 1989 (kahit
Dec. 10, 1988 ang Treaty of Paris, April lang nag-took effect or
somethingz)
So ang first Filipino, basta pakalat-kalat Pilipino na!
Trivia: Ang Americans di kumportable tawaging
imperialista/conquerors dahil sila rin liberalized from British
occupation
Organic
-
Acts
President McKinleys instructions yan ang batas natin
We have then both Military and Civil Government
The instruction was to transform the military into a civil
government as rapidly as conditions would permit
Legislative power of the US president was transferred to the
Philippine Commission (first, Schurman, then, Taft Commission)
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Pagkawala ng Hapon,
o
Si Quezon namatay na rin sa TB habang naka-exile sa
New York
o
Kaya nagkaroon ng Quezon Memorial Institute (for
patients with TB) in honor kay Quezon
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SO Marcos courted Imelda for 11 days, and then they got married
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Sanidad v COMELEC
There was no honest and free deliberation because the people are
under the fear of Martial Law
On December 23, 1972, Marcos announced the postponement of
the plebiscite, but it was only on January 7, 1973, that the
General Order No. 20 was issued, directing the plebiscite
scheduled on Jan 15, be postponed until further notice, and
withdrawing the order of December 17, 1972, suspending the
effects of Presidential Proclamation 1081.
Validly ratified
1987 Constitution
o
Took effect on Feb 2, 1987 during the plebiscite when the
people ratified the Constitution
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2 Judicial Powers
1. judicial review power to review, amend, revise and modify lower
court and quasi-judicial courts decision.
a. Review by the court of the decision of quasi judicial body
is an exception to the principle of separation of powers.
2. Adjudicatory power power to hear and settle dispute or
controversies.
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. ART VIII Sec. 1, 1987 Constitution
kahit ano pang power yan, the court applies the law. they
interpret the law or the constitution. (all cases of lower court,
criminal cases, cases involving questions of law, constitutionality
of the law, executive order, treaties)
certiorari involves questions of law
b.
c.
2.
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4.
Challenging constitutionality
If you file a case, show that you have suffered actually or
threatened pursuant to such law. you challenge law as applied to you.
GR: di pwede ang Facial Challenge as a rule. (bakit ano ba tong
facial challenge na ito?).
XPN: violation of freedom of speech and expression and of the
press and concomitant eklat eklat.. like right to assemble. Dito kahit wala
naman pa naman talagang actual or threatening injury, nevertheless, the
STATE
people
territory
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Archipelagic doctrine
There are (2) elements for the application of this doctrine.
1. straight baseline method identify the outer most island in the
archipelago; then outer most point of that island; extend to 12mi then
connect with imaginary lines;
2. Internal water principle. all waters around, between and
connecting, regardless of the breadth and dimension.
However, the archipelagic doctrine was not approved by the UNCLOS.
Ang in-approve lang ay 1:9 ratio. This resulted to what is called,
regime of islands. See illustration 3.0.
The problem sa regime of island (yung in-approve ng UNCLOS) ay
there will be some waters not included. It gives danger. Kaya
napagkasunduan na pwedeng dumaan basta hindi dadaan sa
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Just make sure you have the 4 elements of the state in your
definition of the state. Yung ibang scholar, they include as 5th
element international recognition.
Kung si sir daw mag define ng state, ang emphasis niya ay
sa PEOPLE kasi that's the very reason why the state exist.
The STATE is a community of persons more or less numerous
occupying a fix and definite portion of territory having a system of
government by which the people express their will and free from
external control and has the power to command and demand
obedience to its people.
GOVERNMENT
It is the agency through w/c the people expresses their will. We
describe government in different way.
But FORM, METHOD, SYSTEM, AS TO HOW MANY IN CHARGE OF
GOVERNING
1. Monarchy;
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disqualifcations:
1. terrorists
2. anarchists
3. polygamist/ or atleast believers un polygamy
4. mental alienation
5. incurable disease
6. if your country does not allow Filipinos to be naturalized
in your country, then that is likewise a disqualification.
Presidential
Meron ding legis exec
There is no perfect government. It depends on the culture,
practices etc
Sir Bong: Maganda sa parliamentary, pwede kang tumagal, kung
palpak naman, pwede alisin mabilis lang. unlike sa presidential,
talo ka. Kailngan mo maghintay at kung magaling naman, limited
lang sa 6 years ang presidency niya.
DE JURE v. DE FACTO
De jure Govt government established in accordance with the
constitution
De Facto govt - Government exist in fact but not in accordance
with law (sinakop ng hapon or commonwealth ng US or sarili
mong military nag coup de tat)
Govt of cory is de jure kasi it is the will of the people the will of
the people is the Supreme law decided by the supreme court.
If the govt is de Facto (belligerent), what happens to its
laws? Walang effect as to civil laws unless they amend it or
repeal it. Pero with regard to political laws (unitary/federal
system), pag pumasok ung belligerent state or enemy state, they
impose their own Political laws, suspended yung atin. Pag umalis,
balik na yung atin unless we want to retain some of the political
laws of the enemy state). THUS, yung mga nag divorce, nung
time na may divorce, it was held valid even we are under the
Japanese occupation since civil laws are not suspended ang
divorce is a civil law.
Yung sovereignty hindi nawawala, kahit sakupin ka pa ng ibang
bansa. So nung sinakop tayo ng hapon, ang gating sovereignty ay
nasa US. During Japanese occupation, suspended political laws.
Ginawa ng mga hapon in order to win the sympathy of the people
they said, ayaw ba ibigay ng US independence niyo, kame na
lang ang mag bibigay! Q: so independent na ba tayo? Hindi. Kasi
ang sovereignty natin nasa us, sila lang pwede mag pakawala
satin.
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1.
What if yung mg aprivate servants? Mayron din privileges, they are exempt
from taxes and dues. But not from any action crim civ admin pa yan.
Another test, tignan mo ung activity ng other state in the regular course of
business, if they do it in the regular course, Jure Gestioni yan.
What if yung german ambassador dito kumuha ng maid? They don't enjoy
such privilege.
If hindi pa rin, test the nature of the particular act of transaction, is it for
profit or gain, sovereign gain? Jure gestioni
3. Consuls
Consuls are not diplomats, they do not represent the state in political
matters. Ang function ng consul ay commerce and navigation; issuing
passport and visas and protecting their national in the foreign state.
Diplomats: AMBASSADORS
1. Ambassador; an ambassador represents his state, so whatever he does
is an act of the state. Since govt is immune, the ambassador is likewise
immune.
The ambassador enjoys Immunity from criminal/civil or admin suit.
Remedy: request sending state to recall ambassador and recommend to
take judicial actions against that person.
HOWEVER, sa civil at admin, may exception, hindi siya immune from suits:
1. Real actions relating to private immovable prop. Situated in the
territory of the receiving state. XPN: he is holding that property in
behalf of the state.
2. Actions relating to succession in which he is an administrator,
executor, heir or legatee as a private person. So pinamanahan siya
or admin siya ng isang prop. XPN: He is doing that in behalf of the
sending state. (PANO?)
3. Actions relating to any professional or commercial activity outside
his official function. Kunyare ambassador siya india to phl tapos
sideline niya benta kulambo.
2. DIPLOMATIC STAFF
What about the DIPLOMATIC STAFF diplomatic suite or diplomatic retinue
technical or service staff of the embassy? For criminal actions, they are
immune from suit. For civil and admin, immune lang for those related to
function.
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Lalo na admin, logically, kasi highest penalty is termination and you cannot
terminate the president, he can only be removed by impeachment. But
after his term, he can be sued, crim/civ/admin but not for performing
official functions (that is his prerogatives) but not unofficial functions:
shoot to kill, crimes committed before his term.
Pero sa writ of amparo pwede isama ang respodents at ang president
kasi the said writ does not concern as to who has liability, but only as to
who is responsible and accountable.
CONGRESS
What about members from congress? No! only the president. Not even
VICE president.
Members of the congress are immune lang from arrest while congress is in
session otherwise pwede.
Ratio: mamaya taktika un ng other party para di makaboto in passing a
legislative act. minor crimes lang ha. Certain crimes lang. not all.
Instances when suit against public officers are not considered as
acts of the state:
1. Mandamus to public official;
2. Petition for prohibition against public official
3. For private acts or personal capacity
4. Ultra vires act/badfaith/malice/gross negligence.
Distinguish Suability and Liability
Suability depends on the consent of the state, meron ba? Implied or
express?
Liability depends on the law and est. facts like WON the the act of the
govt is in the exercise of govt function? Or proptietary? So ano ang test
mo?
1.
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PRESIDENT
What about the president of the Philippines? When is he immune from suit?
Criminal, civil, admin DURING his term only.
Dati ung just and humane society wala dati pero dahil sa martial
law nagkaroon. It is a reaction to the martial law.
Dati divine providence, e parang malayo daw si Lord, kaya
ginawang Almighty God.
Hindi maintindihan bakit common good ang nilagay. Ang gen
welfare , yung sa tingin ng marami makakabuti sa kanila.
Common good ang dating kasi ang nakakaalam ay ang mga liders.
Ibang perspective.
Promote common good, dati general welfare. Common good
nakakatakot, gagamitin ng diktador, relative kasi yan.
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Eto lang daw talaga ang preamble e, We, do ordain and promulgate
the constitution tapos. Everything is just and explanation. Antawag
dyan sa gitna adjectival clause, alisin mo man, buo pa din. That's a gerund.
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Sec. 4 the prime duty of the govt is to serve and protect the people.
reaction to martial law