CONSTITUTIONAL LAW 1 The state pertains to a legal concept, while the nation refers to a racial or

ethnic concept.
Layla-Tal Medina
2007-67099-1 …as distinguished from government
Preliminary Considerations-Concept of State The government is only an element of the state. The government is an
agent, and the State is the principal. The government externalizes the will
POLITICAL LAW – is the branch of public law which deals with the of the State.
organization and operations of the governmental organs of the State and
defines the relations of the State with the inhabitants of its territory.1 THE ELEMENTS OF THE STATE

1. People- the inhabitants of the state; their number must not be too
What is constitutional law? small as not to be able to defend themselves, and not too great as
Is that branch of political law which fixes the organization of government, they would be difficult to administer. They must be also of both
determines the competence of the administrative authorities who execute sexes so they could also be able to perpetuate themselves. The
the law and indicates to the individual, remedies for the violation of his people may develop and share certain characteristics such as a
rights. common language, religion, and a set of customs and traditions
that will unite them into a more closely knit entity known as the
What is a Constitution? nation.
2. Territory-fixed portion of the surface of the earth, inhabited by the
1. A Constitution is the fundamental organic law of a State which people of the state. The territory must not be too small as to be
contains the principles on which the government is founded and unable to provide for the needs of the people; nor should it be too
regulates the division and exercise of sovereign powers. large as to be difficult to administer. The territory can extend to
2. A body of rules and maxims in accordance with which the powers over a vast expanse, like China or Russia, or be as small as Abu
of sovereignty are habitually exercised. Dhabi.

THE SUPREMACY OF THE CONSTITUTION COMPONENTS OF TERRITORY

The Constitution is the most basic and most paramount law to which all a. terrestrial domain-the land mass
other laws must conform and to which all persons including the higher b. maritime or fluvial domain-inland and external waters
officials of the land must defer. No act shall be valid however noble its c. aerial domain- the air space above the land and water.
intentions if it is in conflict with the Constitution. The Constitution must
reign supreme. 3. Government- is…
a. the agency or instrumentality through which the will of the state is
formulated, expressed and realised.
Concept of State b. the institution or aggregate of institutions by which an
independent society makes and carries out those rules of action
--A community of persons, more or less numerous, permanently occupying which are necessary to enable men to live in a social State, or
a fixed territory and possessed of an independent government organised which are imposed upon the people forming that society by those
for political ends to which the great body of inhabitants render habitual who possess the power or authority of prescribing them.
obedience.
FUNCTIONS
State, as distinguished from nation
The government performs two functions—the constituent and the
ministrant.
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Philippine Political Law, Isagani Cruz, p.1

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 1. Constituent-constitute the bonds of society. Constituent functions 1. Internal- which means the supremacy of person or body of persons
consist of fixing of legal relations between husband and wife, in the State over the individuals or association of individuals within
parents and children; keeping of order and providing protection the area of its jurisdiction; the power of the state to control its
from violence; regulation of the holding, transmission and domestic affairs.
interchange of property; determination of liabilities for debt or 2. External- the absolute independence of one State as a whole with
crime; determination of contractual rights between individuals; reference to the other States. External sovereignty is nothing more
definition and punishment of crimes, administration of justice in than the freedom of the State from subjection to or control by a
civil cases; administration of political duties, privileges, and foreign State; that is, the supremacy State as against all foreign
relations of citizens, and dealings of the state with foreign powers, wills. It is also the power of the State to direct its relations with
preservation of state from external dangers, and the advancement other States.
of international interests.
Characteristics of a Sovereign
2. Ministrant functions-are those taken to advance the general
interests of society—such as public works, public charity, 1. permanent
regulation of trade and industry. 2. exclusive
3. comprehensive
Doctrine of Parens Patriae 4. absolute
-guardian of the rights of the people under certain disabilities 5. indivisible
6. inalienable
7. imprescriptible

De Jure and De Facto governments

A de jure government has rightful title but no power or control, Laurel vs. Misa
because it may have been withdrawn or it has not yet actually entered into
exercise. On the other hand, a de facto government is a government of “Since the preservation of the allegiance of the obligation of fidelity and
fact—it actually exercises power or control, but has no legal title. obedience of a citizen or subject to his government or sovereign does not
demand from him a positive action but only passive attitude or
3. Sovereignty- forbearance from adhering to the enemy by giving the latter aid and
a. means the supreme, uncontrollable power, the absolute comfort, the occupant has no power, as a corollary of the preceding
right to govern. consideration, to repeal or suspend the operation of law of treason,
essential for the preservation of the allegiance of the inhabitants to their
b. The supreme will of the State, the power to make laws,
legitimate government, or compel them to adhere and give aid and
and enforce them by all the means of coercion it cares to
comfort to him; because it is evident that such action is not demanded by
employ. the exigiencies of the military service or not necessary for the control of
the inhabitants and safety and protection of his army, and because it is
Two kinds of Sovereign tantamount to practically transferring temporarily to the occupant their
allegiance to the titular government or sovereignty.” –Justice Felicisimo
1. Legal- authority which has the power to issue final commands; the Feria
supremacy of a person; the possession of unlimited power to make
laws.
2. Political- the power behind the legal sovereign; the sum of the
influences that operate upon it; the power of the people. Effect of Change of Sovereignty – The political laws of the former
sovereign, whether compatible or not with those of the new
Two aspects of Sovereign sovereign, are automatically abrogated, unless they are expressly
re-enacted by affirmative act of the new sovereign. Municipals
laws remain in force. (Macariola v. Asuncion, 114 SCRA 77)

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Effect of Belligerent Occupation - No change in sovereignty. However,
political laws, except those of treason, are suspended; municipal laws
remain in force unless changed by the belligerent occupant.

pr inc ip le of jus post l imin ium