 Instrumentality
o Any agency of the National Government
o Not integrated within the department framework
o Vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers,
administering special funds, and enjoying operational
autonomy, usually through a charter (MIAA v CA)
 Government-owned or controlled corporation
o Any agency organized as a stock or non-stock
corporation
o Vested with functions relating to public needs whether
governmental or proprietary in nature,
o Owned by the Government directly or through its
instrumentalities either wholly, or, where applicable as
in the case of stock corporations, to the extent of at
least fifty-one (51) percent of its capital stock (MIAA v
CA)
 Non-stock corporations – Section 88 of the
Corporation Code provides that non-stock
corporations are organized for charitable,
religious, educational, professional, cultural,
recreational, fraternal, literary, scientific, social,
civil service, or similar purposes, like trade,
industry, agriculture and like chambers
 If created through special charters, two
conditions:
 Must be established for the common
good
 Must meet the test of economic
viability
 Congress has no power to create
government-owned or controlled
corporations with special charters
unless they are made to comply with
the two conditions of common good
and economic viability.
 Public dominion – property intended for public use
 Public Office - A public office is the right, authority and duty,
created and conferred by law, by which, for a given period,
either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him
for the benefit of the public
 State-owned properties are inalienable and not subject to real
estate tax. The government cannot tax itself
 Exemptions from Real Property Tax – Real property owned
by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person
o Section 133 of LGC – prohibits local governments
from imposing any kind of tax on national government
instrumentalities
 Taxes, fees or charges of any kinds on the
National Government, its agencies and
instrumentalities, and local government units.
  This does not distinguish between
instrumentalities with or without juridical
personality
o EXCEPTION TO THE EXEMPTION: When the
government gives beneficial use of the real property to
a taxable entity
o Sandiganbayan
 Jurisdiction
 Exclusive jurisdiction over offenses
committed by presidents, directors,
trustees, or managers of government
owned or controlled corporations
o Three types of de facto in co kim cham
 England under commonwealth, first by
parliament later by Cromwell as protector
 Invasion of military, cases of castine in maine
 Legitimacy of Cory Aquino’s government
o The legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics
where only the people of the Philippines are the judge.
o And the people have made the judgment; they have
accepted the government of President Corazon C.
Aquino which is in effective control of the entire
country so that it is not merely a de facto government
but in fact and law a de jure government.
o Moreover, the community of nations has recognized
the legitimacy of the present government.
o All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the
Republic under her government.
 Revolution – the complete overthrow of a government by its
sovereign people
o Natural Law: right of revolution is the inherent right of
a people to cast out their rules, change their policy o
effect radical reforms in their system of government or
institutions by force or a general uprising when the
legal and constitutional methods of making such
change have proved inadequate or are obstructed as to
be unavailable
o Kelsons Book: revolution occurs whenever the legal
order of a community is nullified and replaced by a new
order… a way not prescribed by the first order itself
 Legal Order – authoritative code of a polity
 Consists of all the rules found in the
enactments of the organs of a polity
 Where a state operates under a written
constitution, its organs may be readily
determined from a reading of its
provisions
 Once such organs are ascertained, it’s
easy to locate their enactments
o These rules, along with those in
the constitution, comprise the
legal order of that constitutional
state
 o Letter of AJ Puno: Legal system [order] ceased to be
obeyed by the Filipino people. Because of this, the
efficacy of government organs is gone. Evidenced by:
 This was the result of the organization of
Cory’s government
 Her control of the state as evidenced by the
appointment of the cabinet and other key
officers
 Departure of the Marcos Cabinet officials and
revamp of the Judiciary and Military
 At the time of the issuance of EO 33, Cory was
still exercising the powers of a revolutionary
government
 Her powers still encompassed both
executive and legislative powers
o This meant that if she wanted
to, she could amend, modify, or
reap any part of B.P. 129 or EO
33
 Ratification – executive act undertaken by the head of state or
the government through which formal acceptance of the treaty
is proclaimed
o Consent of state to be bound by a treaty is expressed in
ratification when:
 The treaty provides for such ratification
 The states have agreed that ratification is
required
 Representative of the state has signed the treaty
subject to ratification
 Full powers of the state’s representative in the
intention to sign the treaty (Bayan v Zamora)
 Treaty – written agreement between two or more states and
governed by international law
o Formal documents which require ratification with the
approval of two-thirds of the senate.
o International agreements involving political issues or
changes of national policy and those of permanent
character
 Executive Agreements – becomes binding through executive
action without the need of vote by the Senate or by Congress
o Generally made to implement a treaty already enforced
or to determine the details for the implementation of
the treaty
o Two types:
1. Purely proceeding from an executive act which
affects external relations independent of the
legislative
a. Conventions, exchanges of notes
2. Executive act in pursuance of legislative
authorization
a. Commercial agreements
o Eastern Sea Trading: The right of the executive to enter
into binding agreements without the necessity of
subsequent Congressional Approval has been
confirmed by long usage
 o FR. BERNAS: When we say international agreements,
which need concurrence by at least two-thirds of the
Senate are those which are permanent in nature
 International agreements DOES NOT include
the term executive agreements
o Executive agreements usually results in the state only
becoming a signatory state, not a state-party
 Difference of Treaty and E.A.
o Treaty requires ratification, E.A. does not
o Treaty is permanent in nature, E.A. is temporary
o Treaties are superior to executive agreements because
they are actions of two branches of government
 Difference between State Party and Signatory state
o State-party – legally obliged to follow all the provisions
of treaty in good faith
o Signatory state – only precluded from acts that would
defeat the object and purpose of the treaty/agreement
 Art. 2, Sec 3
o Civilian authority, is at all times, supreme over the
military.
o The Armed Forces of the Philippines is the protector
of the people and the state.
o Its goal is to secure the sovereignty of the State and
Integrity of the National Territory
 Constitutional Context of the Powers of the President
(Saguisag v Ochoa)
o The Prime Duty of the State and Consolidation of
Executive Power in the President
o The duty to protect the territory and the citizens of the
Philippines, the power to clal upon the people to
defend the State, and the President as Commander-in-
Chief
o The power and duty to conduct foreign relations
o The relationship between the two major presidential
functions and the role of the senate
 Responsibility of the President when it comes
to treaties and international agreements under
the present Constitution is therefore shared
with the Senate
 Enhanced Defense Cooperation Agreement – authorizes the
U.S. Military forces to have access to and conduct activities
within certain “Agreed Locations” in the country
 The manner of the President’s execution of the law, even if not
expressly granted by the law, is justified by necessity and
limited only by law, since the President must “take necessary
and proper steps to carry into execution the law”
 Saguisag v Ochoa: Issue w/n president can use executive
agreements to allow military activities, w/n EDCA is
constituent with the Constitution and as well as with existing
laws and treaties
1. The role of the President as the executor of the law
includes the duty to defend the State, for which
purpose he may use that power in the conduct of
foreign relations
2. The plain meaning of the Constitution prohibits
the entry of foreign military bases, troops or
 facilities, except by way of a treaty concurred in by
the Senate – a clear limitation on the President’s
dual role as defender of the State and as sole
authority in foreign relations
3. The president may enter into an executive
agreement on foreign military bases, troops, or
facilities, if
a. It is not the instrument that allows the
presence of foreign military bases, troops,
or facilities
b. It merely aims to implement an existing law
or treaty
4. The President may generally enter into executive
agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty
already concurred in by the Senate
5. The President had the choice to enter into the
EDCA by way of an executive agreement or a
treaty
6. Executive Agreements may cover the matter of
foreign military forces if it merely involves detail
adjustments
a. In the 1947 MBA, U.S. retained all rights of
jurisdiction in and over PH territory
occupied by American Bases.
i. Under EDCA, the US does not
enjoy such right
7. EDCA is consistent with the content, purpose, and
framework of the MDT and the VFA
 RP-US Non-Surrender Agreement (Bayan v Romulo)
o Accepted by then DFA Secretary Ople via exchange of
notes
o Agreement aims to protect persons of the RP and US
from frivolous and harassment suits that might be
brought against them in international tribunals
 Persons – current or former government
officials, employees, military personnel or
nationals of one Party
o Persons of one party shall not be surrendered for any
purpose to any international tribunal (unless given
consent)
 Bayan v Romulo: Issues w/n the Agreement was contracted
validly, w/n the Agreement contravenes and undermines the
Rome Statute and other treaties
o Agreement was contacted validly. It as an exchange of
notes, so it was an executive agreement. Executive
agreements are not permanent in nature, hence they do
not need the concurrence of 2/3 of senate
o Jurisdiction of ICC is to be complementary only to
national criminal jurisdictions
o Thus, the Philippines may decide to try persons of the
US, as the term is understood in the Agreement, under
our national criminal justice system. Or it may opt not
to exercise its criminal jurisdiction over its erring
citizens or over US persons committing high crimes in
the country and defer to the secondary criminal
jurisdiction of the ICC over them
 o ICC is NTO declaratory of customary international law
 Exchange of notes – a record of a routine agreement that has o Laws of political complexion are suspended, but those
many similarities with the private law contract that are not political remain valid even after
o Exchange of two documents. Accepting state repeats deliberation
the text of the offering state to record its assent.
Rationale: international law allows during a period of belligerent
 Signatories may be government ministers,
occupation whereby a de facto government established to maintain
diplomats, or departmental heads
order within the particular occupied territory. In order to do this, it
 Principle of extraterritorial immunity – one State can agree to
will e managing the civil life of the occupied persons
waive jurisdiction to the extent agreed upon to subjects of
another State  The fact that a territory has been occupied by an enemy comes
 Sources of International law (According to Bayan v Romulo) again into the power of its legitimate government of
o International conventions sovereignty
o International custom o Does not, except in a ver
 Objective element – actual consistent and  International Law
continuous practice followed by a sense of legal o Incorporation
obligation o Transformation
 Subjective element – psychological rationale  A7, s20
behind the practice  A7, s21
o General principles of law  A18, s25
o Judicial decisions and teachings of the most highly
qualified publicists of the various nations
 Jus cogen – crime so grave and a widely condemned offense
that it is considered done to the international community,
granting everyone its jurisdiction

 Postliminy – the acts of a de facto government is considered

valid