Notes about State,

Government and
Constitution
Atty. Archill Nia F. Capistrano,
MInternatRel
November 2016
All rights reserved

ELEMENTS OF THE STATE

Additional elements from the minority view:

Possession of a sufficient degree of civilization
Recognition by the family of nations
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PHYSICAL BASES OF STATES

EXISTENCE

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POLITICAL BASES OF STATES

EXISTENCE

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THEORIES OF THE ORIGIN OF

THE STATE
Theories

Location
of power

Parties
Leads
Follows

Divine right Divine right Monarch

Faithful/
Believers

Necessity or
Force

Force

Strong

Weak

Paternalistic
/
Maternalisti
c

Parental
authority

Rulers
akin to
parents

People akin
to children

Social
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Contract

Chosen
Consent
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rulers

The
governed

Elements of the State:

PEOPLE

Art. V

Art. IV

Art. III

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Sabah
of

Sc
ar

bo
r

ou

gh

Sh
o

al

Te
r

re

st
ri

yy
s
lliitt
il e
rriiaa
M
ttoo
al
rrrrii
ic )
TTee
ut
M
ooff
Na (N
ee
rriinn
12
Z
cctt
EE
DDoo
e
M
iicc
m
0N
aagg
iti
0
eell
2
ar
iipp
/M
cchh
al
AArr
vi

al

u
Fl

Aerial

Territorial
Domains

7
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p
ou
Gr
tly Is.
ra
Sp

Territorial Claims

TERRITORY
Elements of the State:

Elements of the State:

GOVERNMENT

gubernaculum &

From (Latin):

gubernare
Art. VII

Art. VI

+
Horizontal
Accountability

Art. VIII

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Classifications of
Government
By Aristotle
By Burgess
Other classifications
N.B. The foregoing are the common or
popularly
recognized ways of classifying
governments.
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Aristotle
Ideal

Deviant

One Ruler

Monarchy

Tyranny

Few Rulers

Aristocracy

Oligarchy

Many
Rulers

Polity

Democracy

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10

Burgess

(ANFCs mnemonics)

ID is TEN in RELATION to his

POWER.
|
|
|
ReD ______ CaPre
FUn
|
|
Her
Elec

|
|
Primo, An, App Di vs. Coll
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Burgess
according to the IDentity or nonIDentity of the people to the
government:
ReD Direct/Pure Democracy (e.g. citystates

of

ancient Greece)

Representative/Indirect/Republican

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12

Known types of democracy

Direct/pure democracy
Indirect/representative/republican
democracy
Presidential democracy
Parliamentary democracy
Social/economic democracy (welfare
states)
Totalitarian democracy

Guided democracy (Sukarnos Indonesia)

Constitutional
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13

Burgess
according to the nature of the
TENure or term of office:
Govt. by Hereditary Succession vs. Govt. by
Election

|
|
Primogeniture (to descendant)
Direct Election
Ancianette
(to ascendant)
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F. Capistrano
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Burgess
according to the RELATION of the
government branches:
CaPre Presidential system (USA)
|
Cabinet/Parliamentary system (UK)
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Cabinet/
Parliamentary System

Presidential
System

Heads 1. Head of State

President at both of
(Monarch or President)
head of state and of
2. Head of Government
govt.
(Prime Minister who must be
Member of Parliament or MP)
Accountabilit 1. N/A if monarch but direct to
y
people if president
2. Indirect to people; direct to
Parliament

Direct to the people

Tenure or 1. Hereditary succession if

term of
monarch
office
but fixed if president
2. Indefinite (dependent on: 1. if
PMs
political party retains majority
status and 2. if PM continues to
hold the trust and confidence
of
her/his political party)

Fixed
(e.g. 6 years without
re-election in the case
of the Philippine
President and 4 years
with re-election in the
case of the U.S.
President)

Governance
Fusion of powers
(usually between
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principle the legislative and the executive

Separation of powers:
16
co-equal, co-

On Checks and Balances

Cabinet/Parliamentary

shadow
cabinet
question hour
vote of no
confidence
dissolution of
parliament

Presidential
Legislative
Executive and/or
Judicial
- e.g. impeachment

Executive
Legislative
- e.g. veto power

Judicial Legislative
and/or Executive
- e.g. judicial review

Executive Judicial
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17
- e.g. pardoning power

On Governance Principles
Cabinet/Parliamentary

Intense rivalry and

competition for
power among the
Branches of
government
Tendency for
gridlock and
impasse result
Failure of
Government to
move forward to
achieve its
programs
Inclination towards
a more thorough 18
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legislation.

Less tendency for

rivalry and
competition for
power
Fusion of branches
avoids gridlock
Coordinated,
efficient &
effective exercise
of fused powers
Tendency for hasty
legislation.
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Presidential

Responsiveness/Accountabil
ity
Cabinet/Parliamentary
The PM and Cabinet
do not have fixed
terms and may be
removed anytime
by a vote of No
Confidence by
Parliament or
Parliament may be
dissolved for
unsatisfactory
performance.
Responsibility for
poor performance is
easily determined.
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Presidential

Security of tenure
from a fixed term of
office can render
the President and/or
Legislators to be
less responsive to
the public.
Tendency to point
to the other
branches as the
cause of the failure
to perform

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19

ID is TEN in
POWER.
|
|
ReD ______
FUn
|
Her
|

Burgess

RELATION to his

Primo, An, App

|
CaPre

|
Elec
|
Di vs. Coll

according to the concentration and

distribution of power:
FUn Unitary/Centralized goverment (e.g.
PH)

|
Federal/Decentralized government (e.g.
U.S.)
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Federal System
The power to govern is shared
between the national, state/region
and local levels.
Examples:
U.S. (after the 13 colonies became states
through today)
India
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Confederacy vis--vis
a Federal System
Beginnings of the U.S.A.s federal
system
vs.
Madya-as / Madja-as

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Unitary System
The power to govern is given to the
national or central government.
Examples (emerged from smaller
kingdoms):
Great Britain
Italy
France
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Capistrano

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23

Other Classifications of
Govt.

According to legitimacy or illegitimacy:

De Jure Government
Has legal title (Constitution)
Has popular support
Has recognition by the family of nations

De Facto Government
Has no legal title (Constitution)
Has no popular support
Has no recognition by the family of nations
See: Lawyers League for a Better Philippines vs. Aquino
(G.R. No. 73748, 22 May 1986)

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Other Classifications of
Govt.
According to the brand of leadership:
Despotic Government (akin to tyranny)
Plutocratic Government (akin to oligarchy/
elitist democracy)
According to nature of leadership:
Military vs. Civil Government
Art. 2, Sec. 3 of the 1987 Phil. Constitution
(supremacy of civilian authority over military
authority)
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Elements of the State:

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SOVEREIGNTY

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Elements of the State:

SOVEREIGNTY

suprema potestas &

superanus
From (Latin):

Aspects:

External

Characteristics
:
Universality
Indivisibility
Absoluteness
Inalienability
Permanence

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Internal

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Elements of the State:

SOVEREIGNTY

and
JURISDICTI
ON
Personal
Jurisdictio
n

Citizens
Overseas

Chief
Executive as
Top Diplomat

Citizens
Overseas

Territorial
Jurisdictio
n

Territor
y

Embassies

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Consular
offices

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Types of

SOVEREIGN
Law-making
Legal

Actual

Actual
governance/rule

Monarc
hor
Preside
nt

Nomin
al
Symbol of political
unity/reign

Politic
al

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Types of Sovereign:

POLITICAL

SOVEREIGN

na
tes
f

ty

rom

Re
si
de
s

in

em
a

Au
tho
ri

Section 1, article II, 1987 Philippine Constitution

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Constitution
Constituo
body of rules and principles in
accordance with which the powers of
sovereignty are regularly exercised
serves as the supreme or
fundamental law
establishes basic framework and
underlying principles of government

Constitution classifications
According to:
Origin or
history
Form
Manner of
changing

Constitution may be
Evolutionary or
cumulative

Enacted or
conventional

Granted or fiat
Unwritten

Written

Flexible or elastic

Rigid or inflexible or
inelastic

Is the 1987 Philippine Constitution

a good written
constitution?

Constitution vs. statute

Requisit
es

Constitution
a law/legislation direct
from the people

a law/legislation from
the peoples
representatives

the supreme or
fundamental law

conforms to
constitution.

merely states the

general framework of
the law

provides the details of

the subject of which it
treats

Definite

Brief

Broad

Statute

intended not merely to intended primarily to

meet existing
meet existing
conditions but to
conditions only
govern the future

Parts of a constitution

Preamble
Constitution of Liberty
Constitution of Government
Constitution of Sovereignty

Where would you locate these parts in

the 1987 Philippine
Constitution?