Government de jure and de facto
February 25, 1986- ​Corazon Aquino was proclaimed as the president at
Classification of Government
1. De jure government
2. De facto
De facto
It is legal altruism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a defacto
government is ​good ​and ​valid
● Emergence of Philippines from military occupation by the Imperial
Forces of Japan is an example of de facto government
Co Kim Chan v Valdez Tan Keh
De facto: (1) government that gets possession and control, or usurps, by force or
by the voice of the majority, the rightful legal government and maintains itself
against the will of the latter.
(2) ​Established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war, and which is denominated a
government of paramount force
(3) ​Established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state
Government under the 1986 Freedom Constitution
Provisional Constitution of 1986
-It did not contain Preamble
President Aquino
- Assumption to power is anchored on “the direct mandate of the people”
- “Was installed through a directive exercise of their power”
- “In defiance of the provisions of the 1973 Constitution”
History
1. February 15, 1986- ​Ferdinand Marcos was proclaimed as the president
by Batas Pambansa
2. February 22, 1986- ​Minister of National Defense Juan Ponce Enrile and
Vice Chief of Staff General Fidel Ramos revolted against Marcos. They
supported Corazon Aquino instead.
3. February 24, 1986- ​elements of Air Force switched, all over for Marcos
4.
the Club Filipino and was sworn by Senior Associate Justice of the
Supreme Court Claudio Teehankee ​; Ferdinand Marcos ​was sworn in
by Chief Justice Ramon Aquino at Malacanang.
Revolutionary Government
- She set up a revolutionary government that came into existence in
defiance of the existing legal processes.
- She won presidency through the extra-legal action taken by the people.
- The Provisional Constitution contained a Bill of Rights which bound the
president and all other government officials, and the actions of the
President subject to judicial review so theoretically it was not despotic.
However, it had the potential to be one.
- Principle of Civilian Supremacy was enshrined in the Provisional
Constitution. President Aquino was recognized by the military as the
civilian Commander-in-Chief.
- Only temporary. The president appointed a Constitutional Commission
to draft a Constitution for presentation to the people for ratification or
rejection.
Sovereignty
- Source of ultimate legal authority
- Sovereign authority is normally delegated to the government and to the
concrete persons in whose hands the powers of government temporarily
inside
Section 1, Article II- ​“Sovereignty resides in the people and all government
authority emanates from.”
Legal Sovereignty- power to adapt or alter a constitution. This power resides in
the people understood as those who have a direct hand in the formulation,
adoption, and amendment or alteration of the Constitution.
- Supreme power
Political Sovereignty- the sum total of all the influences in a state, legal and
non-legal, which determine the course of law
Rule of Law- ​government of laws and not of men
- The Constitution Commission did not consider it necessary to make
explicit the right of the people to oust an abusive and authoritarian
government through non-violent means.
Constitutive Theory- that recognition constitutes a state, that is, it is what
makes a state a state and confers legal personality on the entity
Declaratory Theory- that recognition is merely “declaratory” of the existence of
the state and that its being a state depends upon its possession of the required
elements and not upon recognition
- Favored more
Democratic and Republican State
Republic Government- ​understood as “one constructed on this principle, that
the supreme power resides in the body of the people”
- Purpose: ​guarantee against two extremes; ​(1) ​against monarchy and
oligarchy ​(2)​ against pure democracy
Tydings-Mcduffie Law- instrument by which the American government
authorized the Filipino people to draft a constitution in 1934
- That the “constitution formulated and drafted shall be republican in form”
Section 1 of 1934 Constitutional Convention
- A government in republican form is one where sovereignty resides in
the people and where all government authority emanates from the
people.
Philippines as a Republican State
- It declares that the Philippines is a state whose government is
republican in form, that is, whose government is democratic in the
sense of American constitutionalism
Constitutional Authoritarianism
- As understood and practiced in the Marcos Regime under the 1973
Constitution was the assumption of extraordinary powers by the
President, including legislative and judicial and even constituent powers.
- Compatible with a republican state if the Constitution upon which the
Executive bases his assumption of power is a legitimate expression of
the people’s will and if the Executive who assumes power received his
office through a valid election by the people
State vs. Government vs. Administration
● State-​ corporate entity
● Government- one of the elements of a state and is the institution
through which the state exercises power
● Administration- consists of the set of people currently running the
institution
- Changes without a change in either state or government
Changes of Government but not of State
The transition from the ​1935 Constitution ​to the ​1973 Constitution​,
and from ​1973 Constitution ​to the ​1987 Constitution
Change in Administration but not of Government
The transition from ​President Estrada ​to ​President Arroyo
Sec. 2 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.
Parts of Section 2
1. Renunciation of War
2. Adoption of the principles of International Law
3. Adherence to a policy of peace, freedom, and amity with all nations
1 and 2 ​were copied by the 1973 Constitution from ​Article II, Section 3 ​of the
1935 Constitution.
- Present Section 2 is the exact copy of the 1973 provision.
Renunciation of War
- Adopted in 1935 from the Kellogg-Briand Pact of August 27, 1928
- Renounced wars of aggression but has the power to wage a ​defensive
war
- Defense of the State: ​duty of the government and people, gives power
to Congress to declare a state of war
- As a member of the United Nation and signatory of the United Nations
Charter
Article 2(4) of U.N. Charter. All members shall refrain in
their international relations from the threat or use of force
against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the
Purposes of the United Nations.
Incorporation of International Law
- Dualist view of legal system is implicit in this provision; domestic law is
distinct from the international law
- Dualism: ​international law becomes part of municipal law ​only if it is
incorporated into municipal law.
Doctrine of Transformation- ​international law can become part of municipal law
only if it is ​transformed into domestic law through the appropriate constitutional
machinery such as an act of Parliament. ​Ex: treaties ​through ratification
Doctrine of Incorporation- ​international law has the force of domestic law
- International law can be used by Philippine courts to settle domestic
disputes in much the same way that they would use the Civil Code or
Penal Code and other laws passed by the Congress. ​Ex: Customary
Law and ​treaties which have become part of customary law; ​note:
distinction is blurred in some Philippine Supreme Court decisions.
Generally Accepted Principles of International Law
Among the principles of International law acknowledged by the Court as
part of the law of the land are:
● the right of an alien to be released on bail while awaiting
deportation when his failure to leave the country is due to the fact
that no country will accept him ​(Mejoff v. Director of Prisons)
● The right of a country to establish military commissions to try war
criminals ​(Kuroda v. Jalandoni)
Incorporated in Treaties
● The Vienna Convention on Road Signs and Signals
● The duty to protect the premises of embassies and legations
Adherence to policy of peace, freedom, amity
- Guiding principle of Philippine foreign policy
Cooperation and amity with all nations
- Do not expressly manifest the intent to establish diplomatic and other
relations with all the nations irrespective of ideology.
- Amity with all nations is an ideal to be aimed at. Diplomatic recognition,
however, remains a matter of executive discretion.
Sec. 3. 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.
Civilian Supremacy
- Implied from 1935 Constitution Article VII, Section 10(2) which made the
President, a civilian and as a civilian, Commander-in-Chief .
- This does not mean that civilian officials are superior to military officials.
They are superior only when a law makes them so
- Supremacy of the sovereign people
Role of the Armed Forces
- 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.
- Protector of the people: not as a political role but as a corrective act to
military abuses experienced during martial rule
- Political role: ​justified only when civilian authority has lost its legitimacy
- May be called upon to protect the people when ordinary law and order
forces need assistance.
Sec. 4. The prime duty of the Government is to serve and
protect the People. The Governmentmay 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 and civil service; protection of people and state
- Prime duty of the government is to serve and protect the people
between the rich and the poor.
- Service: from 1935 provision which recognized the inadequacy of a
volunteer system both in terms of military effectiveness and in terms of
equality
 Sec. 5. 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.
Peace and order, general welfare
- the mention of maintenance of peace and order provoked the objection
that it could create the notion that peace and order must be promoted at
all costs even at the expense of justice.
- Hierarchy of rights: ​Life, Liberty, Property
Sec. 6. The Separation of Church and State shall be
inviolable.
STATE POLICIES
Sec. 7. The State shall pursue an independent foreign
policy. In its relations with other states the paramount
consideration shall be National Sovereignty, Territorial
Integrity, National Interest, and the Right to
Self-Determination.
Independent Foreign Policy
- By-product of the discussion for the future of the military bases in Clark
and Subic
- Relations: ​covers the whole gamut of treaties and international
agreements and other kinds of intercourse
- Give paramount consideration to national sovereignty, territorial
integrity, national interest, and self-determination
- Provisions protecting rights in Article II are generally ​not self-executing
provisions.​ They need ​implementing acts of Congress​.
Sec. 8. The Philippines, consistent with the National
interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory.
Policy of Freedom from Nuclear Weapons
- Ban on nuclear arms- including the use and stockpiling of nuclear
weapons, devices, and parts thereof.
- Includes “not only possessing, controlling and manufacturing nuclear
weapons, but also nuclear tests in our territory, as well as the use of our
territory as dumping ground for radioactive waste
- Exception to this policy may be made by the political departments; but it
must be justified subject to the ​national interest
- Does not prohibit the peaceful use of nuclear energy
- Does not automatically ban nuclear-able vessel, must be actually
carrying nuclear arms to be banned.
Military Presence of America
- any new agreement on bases or the presence of troops, if ever there is
one, must embody the basic policy of freedom from nuclear weapons
- Within the power of government to demand ocular inspection and
removal of nuclear arms
Sec. 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of
the nation and free the people from poverty through
policies that provide adequate social services, promote
full employment, a rising standard of living, and an
improved quality of life for all.
Social Order
- It reflects a preoccupation with poverty as resulting from structures that
mire people in a life of dependence
Sec. 10. The State shall promote social justice in all
phases of National Development.
Social Justice in the 1935 Constitution
- The promotion of social justice to insure the well-being and economic
security of all the people should be the concern of the state.
- Justice to the common tao
- Those who have less in life should have more in law
- Discussion of the right of property, the obligation of contracts, and the
power of eminent domain
Social Justice in the 1987 Constitution
- Former constitution focused their attention on economic inequities; the
new Constitution covers all phases of National Development but with
emphasis not just on socio-economic but also on political and cultural
inequities.
Social justice- ​the equalization of economic, political, and social opportunities
with special emphasis on the duty of the state to tilt the balance of social forces
by favoring the disadvantaged in life
Impact of Social Justice Provision in PH Jurisprudence- ​instrumental in the
socialization of the state’s attitude towards property rights thus gradually
eradicating the vestiges of laissez faire.
Sec. 11. The State values the dignity of every human
person and guarantees full respect for human rights.
Sec. 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from
conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the
support of the Government.
Family as basic social institution
- Adopted from article 216 of the Civil Code
- Protection of the family as a basic social institution
- Annulment cases: ​solved in favor of the validity of marriage
- Family: ​heterosexual relationship whether formalized by civilly
recognized marriage or not.
Protection of the Unborn
- Does not assert that the life of the unborn is placed on exactly the same
level as the life of the mother.
- Recognizes that, when necessary to save the life of the mother, it may
be necessary and legitimate to sacrifice the life of the unborn
- Denies that the life of the unborn can be sacrificed to save the mother
from emotional suffering or to spare the child from a life of poverty
- Prevent the state from adopting the U.S. Supreme Court decision in
Roe v. Wade ​which liberalized abortion laws up to the 6th month of
pregnancy by allowing abortion at the discretion of the mother any time
during the first six months when it can be done without danger to the
mother
- Protection begins from ​from conception
Natural right and duty of parents
- Right of parents is superior to that of the state
- Meyer v. Nebraska: ​in prohibiting the teaching of German to students
up to certain age was declared invalid. Such restriction does violence to
both the letter and the spirit of the Constitution.
- Pierce v. Society of Sisters: ​invalidated a law requiring children up to
a certain age to go to public schools only. That the child is not the mere
creature of the state; parents have the right to recognize and prepare
him for additional obligations.
- Wisconsin v. Yoder: ​only those interests of the State of the highest
order and those not otherwise served can over-balance the primary
interest of parents in the religious upbringing of their children
State’s Intervention
- As parens patriae the State has the authority and duty to step in where
parents fail to or are unable to cope with their duties to their children
Sec. 13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their
physical, moral, spiritual, intellectual, and social well
being. It shall inculate in the youth patriotism and
nationalism, and encourage their revolutionary.
Sec. 14. The State recognizes the role of Women in
nation-building, and shall ensure the fundamental equality
before the law of women and men.
Equality of women and men
- Asserts the fundamental equality of women and men before the law
 Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness
among them.
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.
- Primary social economic force: ​human factor has primacy over the
non-human factors in production
Sec. 19. The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos

Right to a balanced and healthful ecology

- Desire to make environmental protection and ecological balance
conscious objects of police power
- Oposa v. Factoran Jr.: ​involved 34 minors who went to Court
represented by their parents pleading the cause of “inter-generational
responsibility” and “inter-generational justice” and asking the Supreme
Court to order the Secretary of Natural Resources to cancel all existing
timber license agreements and to “cease and desist from receiving,
accepting, processing, renewing or approving new timber license
agreements.” The minors representing as “their generation as well as
generations yet unborn.” Supreme COurt recognized a “right to a
balanced and healthful ecology” and “the correlative duty to refrain from
impairing the environment”
- Provides enforceable rights

Sec. 17. The State shall give priority to education, science

and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress,
and promote total human liberation and development.

- Does not mean that the government is not free to balance the demands
of education against other competing and urgent demands.

Sec. 18. The State affirms labor as a primary social

economic force. It shall protect the rights of workers and
promote their welfare.

Labor
- Equality in employment and work opportunities regardless of
sex, race or creed