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CHECKS AND BALANCES The ends of government are better achieved if the system of checks and balances will

be observed. Under the system of checks and balances, one department is given certain powers by which it may definitely restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority. (Suarez, 2005). The following are illustrations where there are checks and balances: 1. the lawmaking power of the Congress is checked by the President through its veto power, which in turn maybe overturn by the legislature 2. the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the Senate to a treaty he has concluded 3. the President may nullify a conviction in a criminal case by pardoning the offender 4. the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish the latter tribunals 5. the Judiciary in general has the power to declare invalid an act done by the Congress, the President and his subordinates, or the Constitutional Commissions. BLENDING OF POWERS

With the intricateness of the operations of government, it is unwise and impracticable to effect a strict and complete separation of powers. There are instances when certain powers are to be reposed in more than one department so they may better collaborate with, and in the process check each other for the sake of a good and efficient government. Thus, the necessity of blending of powers. Blending of powers is actually sharing of powers of the different departments of government whereby one department helps and coordinates with the other in the exercise of a particular power, function or responsibility. The following are examples under the 1987 Philippine Constitution where powers are not confined exclusively within one department but are in fact shared: 1. The President and Congress help one another in the making of laws. Congres enacts the bill and the President approves it. 2. The President prepares a budget and Congress enacts an appropriation bill pursuant to that budget. 3. The President enters into a treaty with foreign countries and the Senate ratifies the same. 4. The Supreme Court may declare a treaty, international or executive agreement, or law, as unconstitutional, and it has also the power to declare invalid any act done by the othe departments of government. 5. The grant of amnesty by the President is subject to the concurrence of a majority of all the members of the Congress. 6. DOCTRINE OF SEPARATION OF POWERS


Originally suggested by Aristotle in his treatise on Politics, and later on recognized by Marsiglio of Padua, Cromwell, Locke and Montesquieu, the doctrine of separation enunciates the idea of grouping the powers of government into three classes and of their apportionment among three coordinate departments, separate from and independent of each other.

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This doctrine is being carried out until this modern day that it is now incorporated in the constitutions of many states. Among which is the United States of America.Kilbourne vs. Thompson, 103 US 168, 190, 25L.ed. 377, ruled: 10. It operates to maintain the legislative powers to the legislative department, executive powers to the executive department, and those which are judicial in character to the judiciary. Through this allocation of powers, the person entrusted shall not be permitted to encroach upon the power confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equity of the several departments. 11.

12. 13. photo source: http://w4.nkcsd.k12.mo.us/~kcofer/k2_branches.jpg 14. 15. In essence, the separation of powers means that the making of the laws belongs to Congress, the execution of the laws is to the executive and the settlement of controversies rests in the Judiciary. Each is prevented from invading the domain of the others. The purpose of the separation of powers is to prevent concentration of authority in one department and thereby avoid tyranny. The separation of powers however should not be interpreted as complete separation and absolute exclusion. The doctrine carries that although the three branches are not subject to the control by either of the others and each is supreme within its own sphere, they are still equal and coordinate. Equal because they all derive their powers from the same common sovereign through the constitution. And coordinate because they cannot simply ignore the acts done by other departments as nugatory and not binding. Aristotle, a Greek philosopher and student of Plato, classified government into three. They are: 1. 2. 3. government based on rule by the one, government based on rule by the few, and government based on rule by the many.

Government based on rule by the one. Monarchy (or royalty) is a form of government in which only a single ruler governs. The monarch rules for the benefit of the people. His concern is for good law, order and social justice. The perverse form of monarchy is called tyranny. He rules for his own benefits and ego, accumulates wealth and satisfies his lust for power. Such a ruler is not legitimate and the people has the right and the duty to remove him in power. Government based on rule by the few. Aristocracy is a form of government where only quite a few people participates in governance. The number ranges from ten to twenty, and they are considered the wisest, the most just and the most honest people in the state. They are more contemplative and careful in their actions. Together, they make governmental decisions. The perverse form of aristocracy is oligarchy where the few people, again perhaps ten to twenty, collectively take over the power of government not for the welfare of the people, but rather for their own material and vainglory. This

form of government is more difficult to be overthrown as compared with tyranny.

photo source: http://upload.wikimedia.org Government based on rule by the many. The best form of government but probably the most difficult to achieve is polity. A polity occurs when all relevant citizens of the state participate in the decision making through open discussion, compromise, and conciliation. Of course, this is only possible in the small city-states that Aristotle knew so well. Again, the characteristics of this government are just, the highest form of wisdom is compromise and conciliation, and government that generally works for the benefit of all. The perverse form of polity was labeled as democracy. Democracy is a form of government where people would go into the chambers of government not to do social justice but rather seek for their own ends. No one is willing to compromise inorder to achieve solutions to problems. This causes a breakdown in the process of government and eventually a collapse of government. Over the years, the Aristotle's polity became synonymous with representative government or democracy and his perverse form of polity was renamed as mob rule or anarchy.

Right to revolt The constitution in any democratic state enshrines the rule of law. Any action that operates beyond the framework of the rule of law is considered illegal. It sometimes happens, that the people rise in revolt against the existing administration and through force or threats succeed in altering the constituted organs of government. (Sinco, 1962). The revolution, being an elemental right, is attributed to the state if it succeeds. It becomes legal since any action attributed to the state is legal. This is the legal and political basis of the doctrine of revolution. In some other nations, the right to revolt is not included in their organic laws because it implies political instability of the state. From their points of view, to constitutionalize the right to revolt might encourage mob rule and set-off a chain of revolutions for capricious reasons. The Philippines, provides otherwise. Section 1, Article II of the 1987 Philippine Constitution recognizes that the people, as the ultimate judges of their destiny, can resort to revolution as a matter of right. (De Leon, 1991). It recognizes the inherent right of the people to revolt if sufficiently provoked by oppression or abuses. From the time

that the present Constitution took effect, twice that the people of the Philippines have exercised this basic right, but in the in more prudent and peaceful ways. In a span of 15 years, the Filipinos were able to overthrow two administrations haunted by graft and corruption and human rights violations. Location of sovereignity.. Where does sovereignty reside? If we are to qualify, legal sovereignty resides in the lawmaking body of a state. The legislative body (Congress or Parliament) can pass a law without restraints whatsover except those of a physical or moral character. But of course, at the back of this power is the power of the people or the political sovereign. This political sovereign can depose a King or a President or bring the Parliament down. In a democratic country, political sovereign may be understood to be the electorate or ultimately the whole mass of population. The real political sovereign is in all states the people, whether they actually control public affairs, whether they deliberately turn over these affairs to a ruling class, or whether they are voluntarily or involuntarily submit to the domination of a despot. (Aruego, 1981) Therefore, political sovereignty resides in the people; but the legal sovereignty is in the hands of the lawmaking body. Section 1, Article II of the 1987 Philippine Constitution states that "xxx. Sovereignty resides in the people and all government authority emanates from them." With this principle, the Filipino people have the right to constitute their own government, to change it, to form a new government and to organize it in a way that they deemed best. Government functionaries is not therefore the repository of sovereignty, rather they were delegated by the people to exercise sovereignty.

ACQUISITION OF SOVEREIGNTY It is given that sovereignty is inherent in a state. Thus, the existence of a state presupposes the existence of sovereignty. Dependent states do not have sovereignty. They acquire sovereignty as soon as it withdraws itself from the sovereignty of the mother state. If it chooses to withdraw not upon the declaration by the mother state of its independence, sovereignty arises from the moment of such withdrawal. (Aruego, 1981). The existence of its sovereignty is founded upon the fact that it no longer recognizes allegiance or renders obedience to the old sovereignty, and not upon the fact that the old sovereignty has by a treaty or other form of declaration indicated that it no longer claims its allegiance. (Willoughby, ____). If a dependency chooses to revolt against the mother country and succeeds in the revolution, its sovereignty arises not from the time of its success, but from the time of the declaration of its independence. Sovereignty cannot be acquired as a gift or grant of State. According to Willoughby, sovereignty cannot create another sovereignty because "legal authority cannot, by its own will or act, create another legal authority legally superior or even equal to itself." Therefore, the Treaty of Paris signed in 1930 contained recognition of independence of the Philippines not a grant of its sovereignty. CHARACTERISTICS OF SOVEREIGNTY Sovereignty is permanent, exclusive, comprehensive, inalienable, absolute and unified. Permanence - So long as the state itself exists, sovereignty continues without interruption.

Exclusive - There can be but one supreme power in the state. Within the state, there is no other power that possesses equal or superior authority to it. Comprehensiveness - Sovereign power extends over all persons, associations, and things within such territorial limits except those over which the state has voluntarily consented to waive the exercise of its jurisdiction. Inalienability - An attribute of the state by virtue of which it cedes away any of its essential elements without selfdestruction. Absolutism - Sovereignty is a primary power. It does not derive its power from anything, There is no other body that determines the nature and the extent of the power as a matter of legal right. Unity - Sovereignty cannot be divided without producing several wills of the people, which is inconsistent with the notiion of sovereignty. Kinds of sovereignty 1. Legal sovereignty - is the authority which has the power to issue final commands. This is the

supreme law making power. 2. Political sovereignty - is the power behind the legal sovereign, or the sum of the influences that

operate upon it. This is legally unknown, unorganized and incapable of expressing the will of the state in the form of legal command. But it is this will that must ultimately prevail in the State. In a narrower sense, the electorate constitutes the political sovereign, and in a broader sense, the whole mass of population. 3. Internal sovereignty - refers to the power of the State to control its domestic affairs. It empowers the

State to make and alter its system of government, and to regulate its private affairs, as well as the rights and relations of its citizens, without any dictation, interference, or control on the part of any person or body or State outside the particular political community. 4. External sovereignty - is the power of the State to direct its relations with other States. With this, the

State is not subject to the control, dictation, or government of any other power. It implies the right and power to receive recognition as an independent power from other powers, and to make treaties with them on equal terms, make war or peace with them, send diplomatic agents to them, acquire territory by conquest or occupation, and otherwise to manifest the freedom and autonomy. (Suarez, 2005) This is also known as independence. SOVEREIGNTY, DEFINED. Sovereignty is the supreme power of the state to command and enforce obedience to its will from people within its jurisdiction and corollarily, to have freedom from foreign control. (De Leon, 1991) It is the supreme, absolute and uncontrollable power by which any state is governed. STATE VS. NATION Nation is a population having a common language and literature, a common tradition and history, common customs, and a common consciousness of rights and wrongs, inhabiting a territory of a geographic unity. A society of men is said to constitute a nation when they feel conscious of their common racial or cultural or sentimental solidarity among themselves. In sum, a nation exists where its component atoms believe it to be a nation. What are then the differences between nation and state? Nation is an ethnical concept while state is a political or legal concept. A state presupposes a government and a definite territory, while these are not necessary for a nation to exist. There can be a nation without there being a state, but where there is a state, there is at least one nation. A state may be made up of one or more nations, it is called a poly-national state. But where there is only one nation in one state, it is called a mono-national state. STATE VS. GOVERNMENT

State has four basic elements: people, territory, government and sovereignty. The absence of any of these elements will not make a state a state. Thus, the state cannot exists without a government. There can be a government however even without there being a state. Government may exist as long as a particular society wanted to continue to have institutions that will carry out the rules of action which are necessary for them to live in a social state. A state is permanent while a government is not. A government may come and go, it may be overthrown. But the state continues to be unimpaired and unaffected. A state is an ideal person, intangible, indivisible and immtable. It can do no wrong. The government is an agency of the state. It is perfect if it acts within the sphere. Whatever done wrong is attributed to the government and not to the state.

ACT OF STATE An act of state is an act done by the state in its exercise of sovereign power through its government or its delegate subject to the limits of the power vested in him. An act of state cannot be questioned or made the subject of legal proceedings in a court of law. Example of an act of state is the act of recognizing a newly-established foreign state or government. DOCTRINE OF PARENS PATRIAE Literally, parens patriae means father of the country. This doctrine has been defined as the inherent power and authority of the state to provide protection to the persons and property of the persons non-sui juris. Non-sui juris persons are those who lack the legal capacity to act on his own behalf like the child or the insane persons. NATIONAL AIR SPACE One of the domains of territory is the aerial domain. It includes the air directly above the state's terrestrial and fluvial domains, all the way up to where the outer space begins. The International Convention on Civil Aviation holds that every state has complete and exclusive sovereignty over the air space above its territory. It also regulates flight of civil aircraft over the territory of another state except by special agreement or otherwise, and in accordance with the terms thereof. With the development of modern air navigation, it has been suggested as a better rule to allow innocent passage to a certain height in order to provide freedom of transportation. MODES OF ACQUIRING TERRITORY The traditional modes of acquiring territory of a state are: (a) discovery, (b) occupation, (c) prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h) avulsion.

Discovery is the oldest method of acquiring title to territory. However, discovery alone would not suffice to establish legal title. It is necessary that the discovered area must be physically occupied. Related to title by discovery is the hinterland doctrine or the principle of continuity. If a state has made a settlement, it has a right to assume sovereignty over all adjacent vacant territory, which is necessary to the integrity and security of the settlement.

Occupation is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi). There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim.

Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state.

Cession is the transfer of territory usually by treaty from one state to another. Concomitant of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise.

Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community. A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion. Related cases: The Island of Palmas (Miangas) Arbitration, The Netherlands vs. United States Kalayaan Group of Islands Western Sahara Case Eastern Greenland Case Clipperton Island Case Pulau Ligitan and Pulao Sipadan Case, Indonesia vs. Malaysia Pedra Branca and Pulau Bato Puteh, Malaysia vs. Singapore


A de jure government (government of law) is an organized government of a state which has the general support of the people. A de facto government (government of fact) is a government which actually exercises power or control but without legal title. There are three kinds of de facto government: the government that gets possession and control of, or usurps by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter; that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state; and that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force. The Second Republic of the Philippines was a de facto government of paramount force, having been established by the Japanese belligerents. On the other hand, in a decision rendered by the Supreme Court it declared that the government under Corazon Aquino was a de jure government as the people have already accepted it and the community of nations have recognized its legitimacy. GOVERNMENT VS ADMINISTRATION Government is distinct from administration. Government is the agency which formulates, expresses and realizes the will of the people. On the other hand, administration is composed of group of persons in whose hands the reins of government are for the time being. It is the administration that runs the affairs of the government for a given period of time, after which another administration may be called upon by the people to serve them. That is why we say that administration changes but the government does not. FUNCTIONS OF GOVERNMENT There are two functions of government: constituent and ministrant. Constituent functions are those which constitute the very bonds of society and are compulsory in nature. Examples are keeping of order and providing for the protection of persons and property; the fixing of the legal relations between man and wife, and between parents and child; the regulation of property and the determination of contract rights; the definition and punishment of crime, the administration of justice, the determination of political duties, privileges, and relations of citizens, dealings of the state with foreign powers, the preservation of the state from external danger and the advancement of international interest. Ministrant functions are those that are undertaken only by way of advancing the general interests of society and are merely optional. Examples are public works, public education, public charity, health and safety regulations and regulations of trade and industry.


The following are the forms of government: As to the number of persons exercising sovereign powers: Monarchy - the supreme authority is in the hands of a one person only; how he got into power or how long his tenure would be does not matter Absolute monarchy - the power of the monarch is based on divine right Limited monarchy - the power of the monarch is based on the constitution Aristocracy - the ruling power is in the hands of a few privileged class Democracy - the power is in the hands of the people Direct or pure democracy - the power is directly exercised by the people through assembly or mass meeting. Indirect, representative or republican - the power is exercised by a group of persons chosen by the people to act as their representatives As to extent of powers exercised by the central or national government: Unitary government - the control of national and local affairs is under the central or national government Federal government - the powers of the government are divided between two sets of organs, one for national and the other for local affairs, each organ being supreme within its own sphere As to relationship between the executive and the legislative branches of the government: Parliamentary government - the executive is dependent on the legislative Presidential government - the executive is constitutionally vested with powers making it independent from legislative department Other forms: Civil government - the affairs of the state are administered and directed by the citizens or their representatives Military government - established and administered by a belligerent in the territory of an enemy occupied by him Constitutional government - the powers of those who rule are defined and limited by the constitution Despotic government - the powers of those who rule are vague and may seem limitless because it is not defined nor limited by the constitution Elective government - the state confers powers upon a person or organization chosen by qualified voters and the holding of powers is for a limited term and under certain conditions Hereditary government - the state confers the powers of government upon a person or organization standing in a certain family relations to his or their immediate predecessors Coordinate government - the powers of the government is distributed among separate departments equally independent of but coordinate with each other Consolidated government - the state confides all governmental powers to a single body De jure government - established according to the constitution of the state and has the general support of the people

De facto government - established against existing constitution of the state and is maintained against the rightful and lawful government Revolutionary government - installed, whether by force or otherwise, not in accordance with the procedure prescribed in an existing constitution The Philippines is a representative, unitary, presidential civil, constitutional, elective, coordinate, and de jure government. In a way, it also exercises direct or pure democracy because of the constitutional provision on initiative and referendum. GOvernment Government as an element of the state is the agency or aggregate of institutions that formulates, expresses and realizes the will of the state. In a comprehensive note, the government embraces all the political institutions existing in the state, from the highest governmental agency to the lowest administrative bodies. The Philippine Government for example, encompasses all its agencies, from the Office of the President down to its smallest political agency - the barangays. Purpose and necessity Government is created for the benefit of the people governed. It performs services or functions that are beyond the capabilities of any individual or enterprise. The chief purposes of government are: the maintenance of peace and order, the protection of persons and property, the administration of justice, the promotion of education, the preservation of the state from external danger, and the advancement of the physical, economic and social and cultural well-being of the people. (De Leon, 1991) The organized structure of the government enables the state to smoothly administer its affairs. Without government, chaos and disorder will prevail. Jabidah massacre The Jabidah massacre, also known as the Corregidor massacre, refers to an incident in which members of the Armed Forces of the Philippines (AFP) massacred a number of Moro Muslim recruits who were escaping their covert training to reclaim Sabah. Sources differ regarding the details, with the number of victims ranging from 14 to 68, and some sources asserting that the massacre is a myth. The Jabidah Massacre is widely regarded as having been the catalyst behind the modern Moro insurgencies in the Southern Philippines. The operation was to have been finalized when then Sen. Ninoy Aquino rose on the floor of the Senate and exposed the plan that was then labeled as Operation Jabidah. The plan came to public view when several men who were training escaped from the training facility and were shot while escaping and Ninoy Aquino used this as basis for his privilege speech. Following Aquinos expose, the Filipino soldiers who were already in Sabah numbering more than 1,000 were all rounded up by the Malaysian authorities and executed one by one. In 1963, the resource-rich territory of Sabah, which had been under British control since the late nineteenth-century, formally became part of the Federation of Malaysia. The Philippines, however, protested this, claiming that Sabah had never been sold to foreign interests, and that it had only been leased (padjak) by the Sulu Sultanate and therefore remained the property of the Sultan and by extension the property of Republic of the Philippines. This dispute led the-then Philippine presidents Diosdado Macapagal then later on Ferdinand Marcos to establish special military units tasked with fomenting dissent amongst Sabah's non-Malay ethnic groups, namely the Tausug and Sama, two groups closely aligned ethnically and culturally with Filipinos.

The code-name of this destabilization programme was "Operation Merdeka" (Operation Freedom), with Manuel Syquio as project leader and then Maj. Eduardo Abdul Latif Martelino as operations officer. The object of this program was the annexation of Sabah to the Republic of the Philippines. The plan involved the recruitment of nearly 200 Tausug and Sama Muslims aged 18 to 30 fromSulu Province and Tawi-Tawi and their training in the island-town of Simunul in Tawi-Tawi. Simunul was where the Arab missionary Makhdum built the first mosque in the Philippines in the 13th century. The recruits felt giddy about the promise not only of a monthly allowance, but also over the prospect of eventually becoming a member of an elite unit in the Philippine Armed Forces. From August to December 1967, the young recruits underwent training in Simunul. The name of the commando unit was Jabidah.

On 30 December 1967, 135 to 180 recruits boarded a Philippine Navy vessel for the island of Corregidor in Luzon for "specialized training." This second phase of the training turned mutinous when the recruits discovered their true mission. It struck the recruits that the plan would mean not only fighting their brother Muslims in Sabah, but also possibly killing their own Tausug and Sama relatives living there. Additionally, the recruits had already begun to feel disgruntled over the nonpayment of the promised monthly stipend. The recruits then demanded to be returned home. The sole survivor of the Massacre, Jibin Arula, recounted how the young Moro recruits were taken in batches of twelve to a remote airstrip where they were executed with machine guns by their military handlers. Arula, who was wounded in the left knee, nearby island of Cavite. Though there has never been an official count, the number of dead ranges from 28 to 60 according to Philippine government estimates, to over two hundred according to the MNLF. The truth of the massacre took some time to emerge. In March 1968 Moro students in Manila held a week long protest vigil over an empty coffin marked Jabidah in front of the presidential palace. They claimed at least 28 Moro army recruits had been murdered. Court-martial proceedings were brought against twenty-three military personnel involved. There was also a firestorm in the Philippine press, attacking not so much the soldiers involved, but the culpability of a government administration that would foment such a plot, and then seek to cover it up by wholesale murder. Despite the court-martial proceedings and a preliminary Supreme Court hearing held in 1970 with Eduardo L. Martelino, Cirilo Oropesa, Teodoro Facelo, Ruperto Amisoto, Alberto Soteco, Solferino Titong, et al. as petitioners, the case disappeared into the thickets of the Philippine justice system and no real punishment was ever handeddown to the accused.

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