L1_Concept of the State

Question 1

Define State

Answer 1

A community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience.

Question 2

Define Nation

Answer 2

from the latin “nasci” which means “to be born”, indicates a relation of birth on origin and implies common race characterized by community of language and customs.

Question 3

Differentiate Nation from State

Answer 3

State is a legal or juristic concept, while nation is an ethnic or racial concept.

Question 4

T/F

1. States can be composed of several nations.
2. Nations can be composed of several states.

Answer 4

1. True

2. True

Question 5

What is a Government?

Answer 5

• Government is merely an instrumentality of the State through which the will of the State is implemented and realized.
• The agency through which the will of the state is formulated, expressed and realized.

Question 6

What are the elements of the state?

Answer 6

There are 4 elements of a state namely:

1. People
2. Territory
3. Government
4. Sovereignty

Question 7

One of the essential elements of the state is the people who inhabit the state. T/F, the people must be adequate number for self-sufficiency and defense; of both sexes for perpetuity but also small enough to be easily administered.

Answer 7

True

Question 8

Define Territory

Answer 8

Territory is the fixed portion of surface of the earth inhabited by its people.

Question 9

What are the major components of the territory

Answer 9

These are:

1. Terrestrial domains: land mass
2. Maritime and fluvial domains: inland and external waters
3. Aerial domains: air and space above land and water.

Question 10

What does the archipelago doctrine states?

Answer 10

• Entire archipelago is considered as one integrated unit instead of being divided into thousand islands.
• Connect the outermost points of our archipelago with straight base lines and consider all the waters enclosed thereby as internal waters.

Question 11

What does the Philippine Territory composed of?

Answer 11

Territorial sea – 12 nautical miles from the baseline
Contiguous zone – 24 nautical miles from the baseline
Exclusive Economic Zone – 200 miles from the baseline

Question 12

What are the coverage of the Philippine Territory aside from the 3 domains?

Answer 12

1. Those covered in Treaty of Paris
2. Islands of Cagayan, Sulu and Sibuto
3. Turtle and Manganes Islands
4. Island of Batanes
5. Those belonging to the Philippines by historic right or legal title.

Question 13

What is the mandate of the government?

Answer 13

Promote general welfare of the people.

Question 14

T/F

Good done by government will be attributed to the state while harm inflicted will be imputed to the government alone.

Answer 14

True

Question 15

What are the two functions of the government?

Answer 15

1. Constituent or Governmental

2. Ministrant or Proprietary

Question 16

Define Constituent or Governmental function.

Answer 16

mandatory for the government to perform because they constitute the very bonds of society, i.e. maintenance of peace and order, regulation of property rights, administration of justice, etc.

Question 17

Define Ministrant or Proprietary

Answer 17

functions intended to promote the welfare, progress and prosperity of the people, and which are merely optional for the Government to perform.

Question 18

T/F
With the repudiation of the laissez faire doctrine, there are constitutional obstacles to the government pursuing lines of endeavor formerly reserved for private enterprise.

Answer 18

False.
With the repudiation of the laissez faire doctrine, there is no constitutional obstacle to the government pursuing lines of endeavor formerly reserved for private enterprise.

Question 19

Define Doctrine of Parens Patriae

Answer 19

As ‘parent of the people’, the government may act as guardian of the rights of people who may be disadvantaged or are suffering from some disability or misfortune.

Question 20

What is a “de jure” government?

Answer 20

-In law
One with a rightful title, no power/control because it’s withdrawn from it or not yet actually exercised; with legal title.

Question 21

What is a “de facto” government?

Answer 21

-In fact/in practice.

Government of fact, actually exercising power or control without legal title.

Question 22

What are the three kinds of “de facto” governments?

Answer 22

1. Government that gets possession & control of, or usurps by force or by voice of majority
2. Established as an independent government by inhabitants who rise in insurrection against parent state.
3. Established and maintained by military force.

Question 23

Differentiate “de facto” from “de jure” government.

Answer 23

De facto means a state of affairs that is true in fact, but that is not officially sanctioned; for practical reasons;
In contrast, de jure means a state of affairs that is in accordance with law (i.e. that is officially sanctioned); for formality, official status of the matter.

Question 24

Differentiate Presidential from Parliamentary.

Answer 24

In a presidential system, the president is the head of the government and the head of the state; voted by election and may be removed only through impeachment process.
Cabinets are appointed by the President, for approval by the legislature.
the lines separating the executive, legislative and judiciary are solidly defined.
the head of the government leads an executive, that is distinct from the legislature. Also, a key feature is that the executive is not responsible to the legislature, they are co-equal.

While the parliamentary form of government, there are two:
Monarchy-Prime Minister (Head of Government)& the King/Queen (Head of State),
Commonwealth- Prime Minister and Governor General;
No Monarch: Prime Minister and President (ceremonial)
-Prime ministers hold executive power, selected by majority vote of the parliament and can be removed by the same (vote of no confidence) if they don’t have support.
In this system, the parliament is generally supreme and the executive is responsible to the legislature. It is also known as the Cabinet form of government

Question 25

Differentiate unitary from federal form of government.

Answer 25

Unitary: concentration of political power in a central government with very little power reserved for sub-units.
Federal: A system of government in which the political power is shared between national government and the sub-units/provinces.

Question 26

Define Sovereignty

Answer 26

supreme and uncontrollable power inherent in a State by which that State is governed.

Question 27

What are the four kinds of Sovereignty and define each.

Answer 27

a) Legal – to power to issue final commands
b) Political – the sum total of all the influences which lie behind the law
c) Internal – supreme power over everything within its territory
d) External – freedom from external control or ‘independence’.

Question 28

What are the characteristics of sovereignty?

Answer 28

1. Permanent
2. Exclusive
3. Comprehensive
4. Absolute
5. Indivisible
6. Inalienable
7. Imprescriptible

Question 29

What is the effect of change in sovereignty?

Answer 29

Political laws are abrogated, but municipal laws remain in force

Question 30

What is the effect of belligerent occupation?

Answer 30

There is no change in sovereignty. However, political laws (except laws on treason) are suspended. Municipal laws (civil law, criminal law) remain in force unless repealed by the belligerent occupant.

Question 31

Explain the doctrine of jus postliminium.

Give example.

Answer 31

At the end of the belligerent occupation when the occupant is ousted from the territory, the political laws which have been suspended during the occupation shall automatically become effective again.

Example: during Japanese occupancy, there’s no change in sovereignty. Political obligations were suspended but once the belligerent occupation exits, the municipal laws subsists

Question 32

Differentiate Dominium vs. Imperium.

Answer 32

Dominium – capacity to own/acquire property, including lands held by the State in proprietary capacity

Imperium – authority possessed by the State embraced in the concept of sovereignty.

Question 33

What are the 3 different kinds of Jurisdiction and define each?

Give examples of each.

Answer 33

Extraterritorial: Exercised by the State beyond its territory

Question 34

What are the exceptions to Terrritorial Jurisdiction?

Case of Pemberton vs Laude

If Trump raped a Filipina, will he be tried

Answer 34

1. Foreign states, heads of state, diplomatic representatives, consuls
2. Foreign state property
3. Acts of State
4. Foreign merchant vessel in innocent passage/involuntary entry (i.e. arrival under stress)
5. Foreign armies passing thru/stationed in its territory with its permission
6. Others (i.e. UN)

Case of Pemberton-tried here in the Philippines tried here in the Philippines was stipulated in the VFA.

Question 35

Give examples of Extraterritorial Jurisdiction

Answer 35

1. Assertion of personal jurisdiction over nationals abroad
2. By virtue of its relations with other states or territories
3. When the local state waives its jurisdiction over persons/things w/in its territory
4. Principle of exterritoriality (i.e. immunities of heads of state in a foreign country
5. Exercise of jurisdiction by the State in the high seas over its vessels, pirates
6. Exercise of limited jurisdiction over contiguous zone and patrimonial sea (i.e. to prevent infringement of customs, fiscal, immigration or sanitary regulations)