Constitutional Law 1

CONSTITUTIONAL LAW 1 Layla-Tal Medina 2007-67099-1 Preliminary Considerations-Concept of State POLITICAL LAW – is the branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory.1 What is constitutional law? Is that branch of political law which fixes the organization of government, determines the competence of the administrative authorities who execute the law and indicates to the individual, remedies for the violation of his rights. What is a Constitution? 1. A Constitution is the fundamental organic law of a State which contains the principles on which the government is founded and regulates the division and exercise of sovereign powers.

which all persons including the higher officials of the land must defer. No act shall be valid however noble its intentions if it is in conflict with the Constitution. The Constitution must reign supreme. Concept of State --A community of persons, more or less numerous, permanently occupying a fixed territory and possessed of an independent government organised for political ends to which the great body of inhabitants render habitual obedience. State, as distinguished from nation 1 Philippine Political Law, Isagani Cruz, p.1  The state pertains to a legal concept, while the nation refers to a racial or ethnic concept. …as distinguished from government 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 of the State.

2. A body of rules and maxims in accordance with which the  THE ELEMENTS OF THE STATE powers of sovereignty are habitually 1. People- the inhabitants of the state; exercised. their number must not be too small  THE SUPREMACY OF THE as not to be able to defend CONSTITUTION themselves, and not too great as The Constitution is the most basic they would be difficult to administer. and most paramount law to which all They must be also of both sexes so other laws must conform and to they could also be able to perpetuate

themselves. The people may develop and share certain characteristics such as a common language, religion, and a set of customs and traditions that will unite them into a more closely knit entity known as the nation.

FUNCTIONS  The government performs two functions—the constituent and the ministrant. 1

2. Territory-fixed portion of the surface of 1. Constituent-constitute the bonds of the earth, inhabited by the people of society. Constituent functions consist the state. The territory must not be of fixing of legal relations between too small as to be unable to provide husband and wife, parents and for the needs of the people; nor children; keeping of order and should it be too large as to be difficult providing protection from violence; to administer. The territory can regulation of the holding, extend to over a vast expanse, like transmission and interchange of China or Russia, or be as small as property; determination of liabilities Abu Dhabi. for debt or crime; determination of contractual rights between COMPONENTS OF TERRITORY individuals; definition and punishment of crimes, administration a. terrestrial domain-the land mass of justice in civil cases; b. maritime or fluvial domain-inland administration of political duties, and external waters privileges, and relations of citizens, c. aerial domain- the air space above and dealings of the state with foreign the land and water. powers, preservation of state from external dangers, and the 3. Government- is… advancement of international a. the agency or instrumentality interests. through which the will of the state is 2. Ministrant functions-are those taken to formulated, expressed and advance the general interests of realised. society—such as public works, public charity, regulation of trade and b. the institution or aggregate of industry. institutions by which an independent society makes and carries out those De Jure and De Facto rules of action which are necessary governments to enable men to live in a social State, or which are imposed upon A de jure government has the people forming that society by rightful title but no power or control, those who possess the power or because it may have been withdrawn authority of prescribing them. or it has not yet actually entered into

exercise. On the other hand, a de facto government is a government of fact—it actually exercises power or control, but has no legal title. 3. Sovereigntya. means the supreme, uncontrollable power, the absolute right to govern. b. The supreme will of the State, the power to make laws, and enforce them by all the means of coercion it cares to employ.  Two kinds of Sovereign 1. Legal- authority which has the power to issue final commands; the 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.  Two aspects of Sovereign 1. Internal- which means the supremacy of person or body of persons in the State over the individuals or association of individuals within the area of its jurisdiction; the power of the state to control its domestic affairs. 2. External- the absolute independence of one State as a whole with reference to the other States. External sovereignty is nothing more than the freedom of the State from subjection

to or control by a foreign State; that is, the supremacy State as against all foreign wills. It is also the power of the State to direct its relations with other States. Characteristics of a Sovereign 1. 2. 3. 4. 5. 6. 7.

permanent exclusive comprehensive absolute indivisible inalienable imprescriptible

Effect of Change of Sovereignty – The political laws of the former sovereign, whether compatible or not with those of the new 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) Laurel vs. Misa “Since the preservation of the allegiance of the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of law of treason,

essential for the preservation of the allegiance of the inhabitants to their legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident that such action is not demanded by 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 tantamount to practically transferring temporarily to the occupant their allegiance to the titular government or sovereignty.” –Justice Felicisimo Feria 2 Doctrine of Parens Patriae -guardian of the rights of the people under certain disabilities