Constitutional Law I

January 17, 2018 Reviewer

State Immunity
1) Legal Basis – Article XVI Sec. 3 – The State cannot be sued without its consent
2) Scope –
3) When is a suit against a State – The test to determine the suite against the State is
4) Reasons or basis of the Doctrine
5) When suits against the State is permissible – Suits against the State is permissible when:
a) If the charter provides that the agency can sue and be sued, then it is permissible
b) When it gives consent, whether express or implied
i) Express – Through general or special law or through its charter
ii) Implied – when it commences litigation, when it enters into a contract, or when the state enters into a
business contract
c) When the State will have to do an affirmative act of appropriating the needed amount to satisfy judgement to a
public officer
d) The State enters into a private contract.
i) The contract must be entered into by the proper officer and within the scope of his authority.
UNLESS: The contract is merely incidental to the performance of a governmental function.
e) The State enters into an operation that is essentially a business operation.
i) UNLESS: The operation is incidental to the performance of a governmental function (e.g. arrastre
services)
ii) Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even
if its charter contains no express “sue or be sued” clause.
f) Suit against an incorporated government agency.
i) This is because they generally conduct propriety business operations and have charters which grant them a
separate juridical personality.
g) The State files suit against a private party.
UNLESS: The suit is entered into only to resist a claim.

Principles and Policies

Constituent and Ministrant functions of the Government
In the case of SSS Employees vs. Soriano, SC stated that:
In this connection, it is interesting to note the nature of the functions that the government may exercise to
accomplish its objectives. These functions are two-fold, constituent and ministrant: the former constitutes the
very bonds of society and are compulsory in nature; the latter those that are undertaken only by way of
advancing the general interest of society, and are merely optional. President Wilson enumerated the constituent
functions as follows:
(1) The keeping of order and providing for the protection of persons and property from violence and
robbery.
 (2) The fixing of the legal relations between man and wife and between parents and children.
(3) The regulation of the holding, transmission, and interchange of property, and the determination of its
liabilities for debt or crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crimes.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges, and relations of citizens.
(8) Dealings of the state with foreign powers; the preservation of the state from external danger or
encroachment and the advancement of its international interests. (Malcolm, The Government of the Philippine
Islands p. 19) (Bacani v. National Coconut Corporation, supra).
The most important of the ministrant functions are: public works, public education, public charity, health
and safety regulations, and regulations of trade and industry. The principles determining whether or not a
government shall exercise certain of these optional functions are: (1) that a government should do for the
public welfare those things which private capital would not naturally undertake, and (2) that the government
should do those things which by their very nature it is better equipped to administer for the public welfare than
is any private individual or group of individual (Bacani v. National Coconut Corporation, supra).
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.

De Jure and De Facto Government

De Jure
A government truly and lawfully established by the Constitution of a State but which having been in the
meantime displaced is actually cut off from power or control
De Facto
A government of fact; one actually exercising power and control in the State as opposed to the true and lawful
government.

Kinds of De Facto Government

 De Facto Proper - 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;
 Government of Paramount Force - established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war; and
 Independent Government - established by the inhabitants of the country who rise in insurrection against the
parent State.
Doctrine of Incorporation vs. Doctrine of Transformation

Doctrine of Incorporation
Under this doctrine, rules of international law form part of the law of the land and no further legislative action
is needed to make such rules applicable in the domestic sphere. The doctrine decrees that rules of international law are
given equal standing with, but are not superior to, national legislative enactments.
Doctrine of Transformation
This doctrine holds that the generally accepted rules of international law are not per se binding upon the state
but must first be embodied in legislation enacted by the law-making body and so transformed into municipal law.