4: State - PDF

4: STATE relation of birth / origin & implies a A community of persons, more or common race, usually less numerous permanently characterized by a community of occupying a definite portion of language & customs. territory, independent of ex...

4: STATE relation of birth / origin & implies a A community of persons, more or common race, usually less numerous permanently characterized by a community of occupying a definite portion of language & customs. territory, independent of external May compromise several control, and possessing a states government to which a great body of It is possible for a single state inhabitants render habitual to be made up of more than obedience. (Collector of Internal 1 nation Revenue v. Campos Rueda, 42 Need not be a state at all SCRA 23.) ELEMENTS OF STATEHOOD 1. Distinguished from Nation. 1. People: State is a legal or juristic concept, Refers simply to the inhabitants of while nation is an ethnic or racial the State concept. No legal requirement as to their 2. Distinguished from number Government. Government is merely an Must come from both sexes to be instrumentality of the State through able to perpetuate themselves. which the will of the State is More comprehensive & less implemented and realized. cohesive than the nation Nation Starting as an amorphous group of Malcolm: a people bound to gather individuals inhabiting the same by common attractions & territory, people may develop & repulsions into a living organism share characteristics & interests, possessed of a common pulse, such as: a common intelligence & - Common language inspiration, & destined apparently to - Religion have a common history & a common - Set of customs & traditions fate. that will unite them into the more closely-knit entity known as Nation. Hackwork: Nation (etymology: nasci = to be born) indicates a Dual citizenship: original and naturalized  - Sec 5 prohibits not dual other territories over which the citizenship but dual allegiance Philippines has sovereignty or 2. Territory: jurisdiction, consisting of terrestrial, The fixed portion of the surface of fluvial, and aerial domain, including the earth inhabited by the People of its territorial sea, the seabed, the the State. subsoil, the insular shelves, and other submarine areas. The waters It does not refer to land alone. It is a around, between, and connecting the fixed portion of a state where a State islands of the archipelago, regardless can exert dominion. It can include of their breath and dimensions, form the land, air, subsoil, and waters. part of the internal waters of the - There is a treaty that no Philippines. country can claim dominion outside of the earth. Definition of Art. I cover the following: As a practical requirement only: 1. Those ceded to the United States Must be neither too big as difficult by virtue of the Treaty of Paris of to administer & defend; Nor too Dec. 10, 1898 small as to be unable to provide for 2. Those defined in the treaty the needs of the population. concluded between U.S & Spain on Nov. 7, 1900, w/c were not defined Legally, it can extend over a vast in the Treaty of Paris, specifically expanse the islands of Cagayan, Sulu & Sibuto. Components of territory: 3. Those defined in the treaty Terrestrial Domain - Land concluded on Jan. 2, 1930, between mass; U.S. & Great Britain, specifically Maritime & Fluvial Domain - the Turtle & Mangsee islands. External waters 4. The island of Batanes, w/c was Aerial Domain - Air space covered under a general statement in above the land & waters the 1935 Constitution. 5. Those contemplated in the phrase ART I: “belonging to the Philippines by The national territory historic right or legal title” in the comprises the Philippine 1973 Constitution. archipelago, with all the islands and waters embraced therein, and all What is an Archipelago? and internal waters and, in the case A group of islands, including parts of an archipelagic State, its of islands, interconnecting waters archipelagic waters, to an adjacent and other natural features which are belt of sea, described as the so closely interrelated that such territorial sea. islands, waters and other natural features form an intrinsic Continguous Zone geographical, economic and political The Contiguous Zone may not entity, or which historically have extend beyond 24 nautical miles been regarded as such. (Art. 47, from the baselines from which the UNCLOS III) breadth of the territorial sea is measured. (Art. 33, Sec. 2, Archipelagic Doctrine: UNCLOS III) The waters around, between, and connecting the islands of the The coastal State may exercise archipelago, regardless of their control necessary to: breath and dimensions, form - Prevent infringement of its part of the internal waters of the customs, fiscal, immigration Philippines. (second sentence, or sanitary laws and Art. I, 1987 Constitution) regulations within its territory or territorial sea; The entire archipelago is regarded as - Punish infringement of the one integrated unit instead of being above laws and regulations fragmented into so many thousand committed within its territory islands. or territorial sea. Territorial Sea: Exclusive Economic Zone Every State has the right to establish The Exclusive Economic Zone the breadth of its territorial sea up to (EEZ) shall not extend beyond a limit not exceeding 12 nautical 200 nautical miles from the miles, measured from the baselines baselines from which the breadth of determined in accordance with this the territorial sea is measured. (Art. Convention. (Article 3, Sec. 2, 57, UNCLOS III) UNCLOS III) The coastal State has sovereign The sovereignty of a coastal State rights for the purpose of exploring extends, beyond its land territory and exploiting, conserving and managing the natural resources, sovereignty and jurisdiction shall be whether living or non-living, of the determined as “Regime of Islands” waters superjacent to the seabed and under Republic of the Philippines of the seabed and its subsoil, and consisted with Art. 121 of the with regard to other activities for the UNCLOS: economic exploitation and - The Kalayan Island Group exploration of the zone, such as the (KIG) as constituted under PD production of energy from the water, 1596; and currents and winds; - Bajo de Masinloc (aka Scarborough Shoal) Straight Baselines Under Art. 7 of UNCLOS III, the 3. Government method of straight baselines joining The agency / instrumentality through appropriate points may be employed w/c the will of the State is in drawing the baseline from which formulated, expressed & realized the breadth of the territorial sea is measured. Viewpoint of Int’l Law: no particular form of gov’t is Straight baselines are drawn joining prescribed, provided only that the the outermost points of the gov’t is able to represent the State in outermost islands and drying reefs its dealings w/ other States. of the archipelago. (Gorospe - Our Constitution, however, (2016) Political Law, p. 24) requires our gov’t to be democratic & republican. In this way, all the islands and the waters included within such Mandate of gov’t to State: to baselines would be considered as a promote the welfare of the people single body. - Accordingly, whatever good is done by the gov’t is attributed Republic Act no. 9522 to the State but every harm This an Act which defines the inflicted on the people is Archipelagic Baseline of the imputed not to the State but to Philippines (Sec. 1, RA 9522) the gov’t alone. - Such jury may justify the Under Sec. 2 thereof; The baseline replacement of the gov’t by in the following areas over the revolution, theoretically at the Philippines likewise exercises behest of the State, in a  development known as Direct State Action 2. Ministrant Those undertaken to advance the Government Functions: general interests of society (e.g. 1. Constituent public works, public charity, & Constitute the very bonds of society regulation of trade and industry) & therefore compulsory These functions are merely optional Among the constituent functions are the following: It is the performance of ministrant - The keeping of order & functions that distinguishes the providing for the protection of paternalistic gov’t from the merely persons & property from individualistic gov’t, w/c is violence & robbery; concerned only w/ the basic function - The fixing of the legal of maintaining peace & order. relations between husband and wife & between parents & these functions, while traditionally children; regarded as merely Ministrant - The regulation of the holding, and optional, have been made transmission and interchange compulsory by the Constitution. of property, & the determination of its liabilities Forms of Government for debt / for crime; Briefly, therefore, while the - The determination & presidential system embodies inter- punishment of crimes; dependence by separation and - The administration of justice coordination, parliamentarism in civil cases; embodies interdependence by - The administration of political integration. duties, privileges & relations of citizens; and - The dealings of the State w. Types Of Government foreign powers; the regardless of their form, preservation of the state from governments are either de jure or de external danger/ facto. encroachment & the advancement of its De jure: international interests. has title but no power/control, either invade & occupy a territory of the because this has been withdrawn enemy in the course of war, & from it has not yet actualy entered which is denominated as a into the exercise thereof government of paramount force De facto: Government of the Philippines A government of fact that actually The corporate governmental entity exercises power/control but without though w/c the functions of legal title government are exercised throughout the Philippines. Types Of Government according A government – owned / controlled to De Facto corporation engaged in proprietary functions cannot be considered part 1. Cessation: of the Government for purposes of The gov’t that gets possession & exemption from the application of control of, / usurps, by force / the stature of limitations. by the voice of the majority, the - But even such private rightful legal gov’t & maintains instrumentalities of the gov’t itself against the will of the latter, may be considered embraced such as the government of in the Civil Service as England under the Commonwealth, provided for under Art. IX-B, first by Parliament & later by Sec. 2(1) of the constitution. Cromwell as Protector Government agency 2. Against the Parents State: refers to any of the various units of That established as an independent the Government of the Republic of government by the inhabitants of a the Philippines, including a country who rise in insurrection department, bureau, office, against the parent state (e.g. gov’t of instrumentality or GOCC, / a local the Southern Confederacy in revolt gov’t / a district unit therein. against the Union during the war of secession in the U.S.) Administration Group of persons in whose hands the 3. By Invasion: reins of gov’t are for the time being. That which is established & maintained by military forces who Runs the gov’t, as a machinist operates his machine  - E.g. Aquino administration the occupied territory are directing the affairs of the merely suspended, subj. to gov’t of the Philippines for a revival under the jus given time, after w/c another postliminum upon the end of administration may be called the occupation. upon by the people to take - But the non-political laws are over. deemed continued unless Transitional whereas government is changed by the belligerent permanent. occupant since they are intended to govern the 4. Sovereignty relations of individuals as Supreme & uncontrollable power among themselves & are not inherent in a State by w/c that generally affected by changes State is governed. in regimes/ rulers. - Constitutional of the Permanent, exclusive, commonwealth being a comprehensive, indivisible, political law, was not effective inalienable and imprescriptible in the Philippines during the - By virtue of these Japanese occupation. But characteristics, sovereignty is non-political laws like Civil not deemed suspended Code & Insurance Act although the acts of remained in force during that sovereignty cannot be period except only where they exercised by the legitimate were amended / superseded by authority. affirmative act of the - Thus, sovereignty over the belligerent occupant. Phils. Remained w/ the U.S. during the Japanese Kinds of Sovereignty: occupation of our country Legal although the Americans could - Power to issue final not exercise any control over commands the occupied territory at the time. What the Belligerent Political occupant took over was only - Power of legal sovereign the exercise of acts of sovereignty. Internal - No change during Belligerent occupation political laws of  - Power of state to control imprescriptible. (Laurel vs. Misa, 77 domestic affairs Phil. 856) External 5. Foreign Recognition (some - Power of state to direct schools of thought) relations with other states Two schools of thought when we talk about independence, sovereignty, statehood: In our country: Congress: Legal sovereign Constitutive Theory Of Diff. sectors that mold public Recognition – holds that a state opinion: Political sovereign does not exist until it receives recognition REQUIRES FOREIGN When there is a change of RECOGNITION, apart from sovereignty, the political laws of the Montevideo Convention's criteria, former sovereign are not merely you must also be recognized by suspended but abrogated. other States. As they regulate the relations 2. Declaratory Theory Of between the ruler & the ruled, these Recognition – holds that a state laws fall to the ground ipso facto exists without recognition, which is unless they are retained/re-enacted merely an acknowledgement of an by positive act of the new sovereign. existing situation. DOES NOT REQUIRE FOREIGN Non-political law, by contrast, RECOGNITION, as long as na-meet continue in operation, for the reason requirements ng criteria under also that they regulate private Montevideo Convention, considered relations only, unless they are na State ka na. changed by the new sovereign / are contrary to its institutions. CHARACTERISTICS POWERS OF THE STATE Characteristics of Sovereignty: 3 Inherent Powers Of The State Sovereignty is 1. permanent; 2. A state like Philippines won’t comprehensive; 3. absolute; 4. effectively function & exist as a indivisible; 5. inalienable; and 6. sovereign state if there are no Police Power inherent powers: Police Power, “ police power is "that inherent and Eminent Domain, Taxation plenary power in the State which enables it to prohibit all that is hurt Why do we have 3 inherent full to the comfort, safety, and powers? welfare of society.” Most of the time, our constitutionally protected rights Frankfurter: the police power is the under Art. 3 will always clash w/ 3 power to shape policy. It defies legal inherent powers definition; as a response to the dynamic aspects of society, it cannot Why Inherent? be reduced to a constitutional Natural, fundamental, & essential in formula. The law must be sensitive 1 state to life; in resolving cases, it must not fall back upon sterile claims; its No need to enact a law to exercise judgments are not derived from an power because that power springs at abstract duel between liberty and the the moment you have the existence police power. of the state attributes of sovereignty based on necessity Salus populi est suprema lex = the - Why necessity? The State / welfare of the people if the gov’t cannot exist supreme law - It won’t get its job done without these powers Power to regulate freedom & property rights of individuals for The moment you established an the protection of public safety, independent state, these powers health, morals, & promotion of shall be available right away. general welfare. from the time that the Phil. Gov’t was created, these powers are Power of the state to promote public available right away. welfare by restraining & regulating - Essential & fundamental the use of liberty & property. powers - 3 IP are methods by which the The most pervasive, the least State validly interferes w/ limitable, & the most demanding private rights. of the 3 fundamental powers of the State.  - Means that the activity / Does not prohibit, only regulates. property sought to be regulated affects public Power of Eminent Domain & Power welfare of Taxation are components of - Requires the primacy of the Police Power general welfare over the E.g. Gov’t closed the interests of the few operations of a casino near the 2. Lawful means school for the interest of students; - Employed by the State in the Giving 20% discounts to Senior exercise of its police power Citizens must be reasonable & should conform to the safeguards Power of the state for promoting under the Constitution. public welfare by restraining & regulating the use of liberty & PP is exercised by the state through property nat’l legislature / congress Main obj. of pp: promotion of public State cannot just exercise this power welfare without restrictions. - How? By restraining & PP is subject to constitutional regulating the use of liberty & limitations Property. “Thus, Congress cannot pass a E.g. Pandemic – di pwedeng regulatory law in violation of the lumabas kasi nakalockdown. due process clause; equal protection Restrain freedom & liberty na clause; freedom of expression; lumabas to promote public freedom of religion, among others.” welfare. Power of Eminent Domain Parens Patriae Power to take private property for Gov’t act as the parent of the people public use of a payment of that the State has the just compensation incontrovertible mandate to protect its people Power of the state to acquire private property for public purpose upon Requisites that must concur in payment of just compensation order for Police Power be valid: - Why acquire private property? For public purpose. 1. Lawful subject  - Dahil pag-aari ng tao, is - E.g. 1 property na entitled for payment w/ madadaanan na road-widening respect to the fair value of his project of property called payment of DPWH is pwedeng just compensation i-expropriate ng gov’t & - Kahit ayaw ng pwedeng kunin upon payment taxpayer/private person? YES. of just compensation. The It is the right of the road is for public use & the government to use/get the people will benefit. property provided for public - The gov’t bought a private purpose and the owner shall property to establish a be entitled for payment hospital/school equivalent to the fair value of his property na kinuha ng Sec. 9 Private property shall not be gov’t. taken for public use w/o just compensation. (Art. 3, 1987 Private property ang kinukuha, Constitution) public use ang intention ng state Has constitutional constraints: sa pagkuha ng property & payment a. That private property shall of just compensation not be taken for public use w/o just compensation State otherwise, hindi public b. No person shall be deprived property ang kinukuha ng gov’t of life, liberty, / property w/o due because the State cannot acquire process of law. what it already owns *When police power is exercised, Hindi lang private interests ang there is no just compensation to makikinabang sa property at the citizen who loses his private hindi for free ang pagkuha ng gov’t property. sa lupa *When eminent domain is exercised, there must be just Expropriation: compensation. the procedure by w/c the *Taking of private property in the government takes possession of exercise of police power does not private property, is outlined require compensation because the primarily in Rule 67 of the Rules of property taken is either Court. destroyed/placed under the existence of gov’t is a commerce of man. necessity; that it cannot continue w/o means to pay its Power of Taxation expenses; & that for these Power by w/c the sovereign, through means, it has a right to compel its law-making body, raises revenue all its citizens property w/in to defray the necessary expenses of its limits to contribute. the gov’t - “It is said that taxes are what Power of the state to collect tax sa we pay for civilized society. mga nasasakupan, makakuha/ Without taxes, the gov’t makalikom ng funds to defray would be paralyzed for lack of necessary expenses of the gov’t the motive power to activate & operate it. Hence, despite Exercised by the state through nat’l the natural reluctance to legislature / congress surrender part of one’s hard earned income to the taxing 2 basis: authorities, every person who - Necessity theory the gov’t is able to contribute his share cannot continue w/o means to in the running of the gov’t. pay its expenses. It has a right - The gov’t for its part, is to compel all its citizens & expected to respond in the property w/in its limits to form of tangible & intangible contribute. benefits intended to improve - Benefit protection theory the the lives of the people & basis of taxation is found in enhance their moral & the reciprocal duties of material values. This protection & support between symbiotic relationship is the the State & its inhabitants. In rationale of taxation & should return for his contribution, the dispel the erroneous notion taxpayer received benefits & that it is an arbitrary method protection from the of exaction by those in the government. seat of power.” Taxes are the lifeblood of the gov’t - The power of taxation proceed upon the theory that the NATIONAL TERRITORY 5. Those contemplated in the phrase ART I: “belonging to the Philippines by The national territory historic right or legal title” in the comprises the Philippine 1973 Constitution. archipelago, with all the islands and waters embraced therein, and all Territorial delimitation in the other territories over which the 1935 Constitution Philippines has sovereignty or A constitution is a municipal law jurisdiction, consisting of terrestrial, meaning it is binding only within the fluvial, and aerial domain, including territorial limits of the state. The its territorial sea, the seabed, the constitution's territorial limits define subsoil, the insular shelves, and where the sovereign state can other submarine areas. The waters enforce its authority, ensuring clarity around, between, and connecting the on its jurisdiction. islands of the archipelago, regardless of their breath and dimensions, form Internationally, a constitution's part of the internal waters of the statement on territorial limits must Philippines. align with recognized principles of international law to resolve disputes. Definition of Art. I cover the A legal document defining a state's following: territorial limits must be backed by 1. Those ceded to the United States recognized international law by virtue of the Treaty of Paris of principles. A constitution’s silence Dec. 10, 1898 on territory doesn't forfeit any 2. Those defined in the treaty international rights, nor does concluded between U.S & Spain on defining territory in a constitution Nov. 7, 1900, w/c were not defined validate claims unsupported by in the Treaty of Paris, specifically international legal rights. the islands of Cagayan, Sulu & Sibuto. The principle that the Constitution 3. Those defined in the treaty does not definitively set the concluded on Jan. 2, 1930, between country's territorial boundaries was U.S. & Great Britain, specifically evident during the 1935 the Turtle & Mangsee islands. Constitutional Convention (ConCon) 4. The island of Batanes, w/c was Debates. covered under a general statement in the 1935 Constitution. Article I of the 1935 Constitution, nineteen hundred, and in the treaty defining national territory, does not concluded between the United States betray this principle but served a and Great Britain on the second day historical purpose. of January, nineteen hundred and thirty, and all territory over which The factor that persuaded the 1935 the present Government of the Convention to include an article on Philippine Islands exercises national territory was the intent to jurisdiction." use the Constitution as an international document binding on The article outlined four points for the United States, as required by a determining Philippine territory: provision from the 'Tydings- 1. The Treaty of Paris (December McDuffie Law, which made its 10, 1898) effectiveness dependent on U.S. 2. The Treaty of Washington acceptance. (November 7, 1900) 3. The treaty between Great Britain Delegate Singson Encarnacion and the U.S. (January 2, 1930) emphasized the need to draft a 4. All territory currently under unique Constitution, Philippine government jurisdiction. rather than imitating others, to prevent the U.S. from retracting its Definition of Archipelago grants. An archipelago is a body of water studded with islands. The Philippine National Territory under the 1935 archipelago is that body of Constitution water studded with islands which is Article I, Section 1 of the 1935 delineated in the Treaty of Paris Constitution: (1898), as amended by the Treaty of "States by the Treaty of Paris Washington (1900) and the Treaty of concluded between the United States Great Britain (1930). and Spain on the tenth day of December, eighteen hundred and Definition of "all other territories ninety-eight, the limits of which are over which the Philippines has set forth in Article III of said treaty, sovereignty or jurisdiction" together with all the islands in the It includes any territory that treaty concluded at Washington, presently belongs or might in the between the United States and Spain future belong to the Philippines on the seventh day of November, through any of the internationally accepted modes of acquiring Mangsee Island, Batanes Group of territory. Island was not included though. Archipelagic principle IV. The 1935 Constitution, Two elements: provided for the provision to include 1. The definition of internal areas of our jurisdiction by stating, " waters (as provided above): All territory over which the 2. The straight baseline method Philippine Islands exercise of delineating the territorial Jurisdiction". sea - consists of drawing straight lines connecting What was the highlights on the appropriate points on the coast importance of Territory on 1935 without departing to any and 1973 Constitution? appreciable extent from the 1. The Philippine Archipelago: there general direction of the coast. were two initial draft in crafting the definition of National Territory the Philippine territory: final draft was “The National I. The Treaty Of Paris on Territory consist of the PHILIPPINE December 10, 1898: This treaty ARCHIPELAGO, which is the provided the minimum limits of our ancestral home of the Filipino territory, it ceded the Philippine people, and which is composed of territory but with doubt on the all the islands and waters embraced inclusion of the Batanes Group of therein." Island (BGI) to the North and at the South the Island of Sibutu and The term " Philippine Archipelago" Cagayan de Sulu as well as Turtle was phrased used to put in the and Mangsee Island. context that the modifications made II. Treaty of Washineton on in Treaty of Paris, Treaty of November 07, 1900, was between Washington, and the the January 02, US and Spainwhich provided for the 1930 convention include the Island inclusion of Island of Sibutu and of Sibutu, and Cagayan de Sulu, Cagayan de Sulu. while Batanes Group of Island will III. Treaty between Great fall under “all other territory Britain and the US on January 02, belonging to the Philippines." 1930, this treaty provided for the definition of all Philippines' jurisdictions such as Turtle and 2. All other territory belonging to of the sea land wards from the the Philippines by historic right or baseline as well as inland rivers and legal title. Historic right are for lake are subject of the sovereign territories which we have claim over, state as compared to the territorial such as the Freedom Land and waters in the 1935 Constitution. Marianas Island. While legal title are for territories such as Sabah, as it High seas: freedom of navigation was acquired through legal title. Territorial seas: guaranteed innocent passage 3. Issue on Territorial Sea: There are Internal waters: none, state has two methods in fixing the baseline absolute sovt (xpn: designated which the belt is measured seuward: ceiling provided for passage/granted a) Normal Baseline; the breath permission by govt of state) of territorial sea is measured from Archipelagic: part of territory; the low water-line following the sovereignty; right of innocent indentation of the coast; passage legislated by state b) Straight baseline method; is drawn as straight line connecting Coastal State: one whole mass near a appropriate points on the coust coast without departing to any appreciable Continguous Zone: provide laws for extent from the general direction of Ecologic State; limited sovereignty the coast. (exploit resources, maritime vessels, conduct maritime researches, 24 nm We follow the Straight line method, baseline, 12 nm from territorial sea see Republic Act 3046, or AN ACT Archipelagic State: compilation of DEFINING THE BASELINES OF land masses THE TERRITORIAL SEA OF THE PHILIPPINES, as amended by R.A. "archipelagic State" means a State No. 5446. constituted wholly by one or more archipelagos and may include Thus came the difference in other islands determining territory, the 1935 constitution uses "territorial waters", "archipelago" means a group of while the 1973 Constitution initiated islands, including parts of islands, the "Achipelagic Principle". This interconnecting waters and other assertion of internal waters, the natural features which are so inland waters consist of all the parts  closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.