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.

Functions of Government
Constituent functions the usual function of the government

(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 for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil causes.
(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.

Ministrant functions - other functions which are undertaken, not by way of governing, but by way
of advancing the general interests of society, - functions which are optional, being necessary
only according to standards of convenience or expediency, and not according to standards of
existence

(1) The regulation of trade and industry. Under this head I would
include the coinage of money and the establishment of standard weights and
measures, laws against forestalling and engrossing, the licensing of trades,
etc., as well as the great matters of tariffs, navigation laws, and the like.
(2) The regulation of labor.
(3) The maintenance of thoroughfares, - including state management of
railways and that great group of undertakings which we embrace within the
comprehensive term 'Internal Improvements.'
(4) The maintenance of postal and telegraph systems.
(5) The manufacture and distribution of gas, the maintenance of water-
works, etc.
(6) Sanitation, including the regulation of trades for sanitary purposes.
(7) Education.
(8) Care of the poor and incapable.
(9) Care and cultivation of forests and like matters, such as the
stocking of rivers with fish.
Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers
to the public policy power of the state to intervene against an abusive or negligent parent, legal
guardian or informal caretaker, and to act as the parent of any child or individual who is in need
of protection. For example, some children, incapacitated individuals, and disabled individuals
lack parents who are able and willing to render adequate care, thus requiring state intervention.

- This doctrine has been defined as the inherent power and authority of the state to provide
protection to the persons and property of the persons non-sui juris. Non-sui juris persons are
those who lack the legal capacity to act on his own behalf like the child or the insane persons.

De Jure / De Facto

A de jure government is the legal, legitimate government of a state and is so recognized by

other states. In contrast, a de facto government is in actual possession of authority and control
of the state. For example, a government that has been overthrown and has moved to another
state will attain de jure status if other nations refuse to accept the legitimacy of the revolutionary
government.

- The main difference between these two terms is that De jure means according to law or by
rightful entitlement while De facto refers to a state of affairs in existence that is not sanctioned
by law.

What is De Jure
De jure is a Latin expression that means according to law, by right, according to rightful
entitlement. So we can say that De jure refers to a state of affairs that is in accordance with the
law. This term is often used in a political background.
He has been the de jure king of the country since his father died.
In India, Dowry system is prohibited de jure.
The Apartheid system in South Africa up to 1994 is an example of de jure discrimination.
Note that this term can be used both as an adverb (as seen in the second example) and an
adjective. (as seen in the first example)

What is De facto
De facto refers to a practice that is in existence but is not officially sanctioned. The Latin meaning
of de facto literally means in fact. This is the opposite of de jure. Imagine that in a country there
is one person who is the official leader, but there is another person who holds the real reigns
behind the scenes, and then this person is the de facto power. In addition, when a countrys
government is forced to go into exile because of a military coup, the overthrown government is
known as the de jure government while those in power are called the de facto government. This
term too can be used as an adverb as well as an adjective.

A de jure government (government of law) is an organized government of a state which has the
general support of the people.
A de facto government (government of fact) is a government which actually exercises power or
control but without legal title.
There are three kinds of de facto government:
 1. the 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;
2. that established as an independent government by the inhabitants of a country who rise
in insurrection against the parent state; and
3. that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated as a government
of paramount force.

SOVEREIGNTY
Sovereignty is the supreme power of the state to command and enforce obedience to its will
from people within its jurisdiction and corollarily, to have freedom from foreign control. (De Leon,
1991) It is the supreme, absolute and uncontrollable power by which any state is governed.

There are four kinds of sovereignty:

1. Legal sovereignty - is the authority which has the power to issue final commands. This is
the supreme law making power.
2. Political sovereignty - is the power behind the legal sovereign, or the sum of the
influences that operate upon it. This is legally unknown, unorganized and incapable of
expressing the will of the state in the form of legal command. But it is this will that must
ultimately prevail in the State. In a narrower sense, the electorate constitutes the political
sovereign, and in a broader sense, the whole mass of population.
3. Internal sovereignty - refers to the power of the State to control its domestic affairs. It
empowers the State to make and alter its system of government, and to regulate its
private affairs, as well as the rights and relations of its citizens, without any dictation,
interference, or control on the part of any person or body or State outside the particular
political community.
4. External sovereignty - is the power of the State to direct its relations with other States.
With this, the State is not subject to the control, dictation, or government of any other
power. It implies the right and power to receive recognition as an independent power
from other powers, and to make treaties with them on equal terms, make war or peace
with them, send diplomatic agents to them, acquire territory by conquest or occupation,
and otherwise to manifest the freedom and autonomy. (Suarez, 2005) This is also known
as independence.

CHARACTERISTICS OF SOVEREIGNTY
Sovereignty is permanent, exclusive, comprehensive, inalienable, absolute and unified.

Permanence - So long as the state itself exists, sovereignty continues without interruption.
Exclusive - There can be but one supreme power in the state. Within the state, there is no other
power that possesses equal or superior authority to it.
Comprehensiveness - Sovereign power extends over all persons, associations, and things
within such territorial limits except those over which the state has voluntarily consented to waive
the exercise of its jurisdiction.
Inalienability - An attribute of the state by virtue of which it cedes away any of its essential
elements without self-destruction.
Absolutism - Sovereignty is a primary power. It does not derive its power from anything, There is
no other body that determines the nature and the extent of the power as a matter of legal right.
Unity - Sovereignty cannot be divided without producing several wills of the people, which is
inconsistent with the notion of sovereignty.

Section 3. State Immunity

Suability of State
1) The State cannot be sued without its consent.
2) When considered a suit against the State
a). The Republic is sued by name;
b). Suits against an un-incorporated government agency;
c). Suit is against a government official, but is such that ultimate liability shall devolve on the
government
i. When a public officer acts in bad faith, or beyond the scope of his authority, he can be held
personally liable for damages.
ii. BUT: If he acted pursuant to his official duties, without malice, negligence, or bad faith, they
are not personally liable, and the suit is really one against the State.
3) This rule applies not only in favor of the Philippines but also in favor of foreign states.
4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the
defendants being compelled to interplead.

What is State Immunity?

A principle of international law which exempts a State from prosecution or suit for the violation of
the domestic laws of another state.

The doctrine and rules of state immunity concern the protection which a state is given from
being sued in the courts of other states. The rules relate to legal proceedings in the courts of
another state, not in a state's own courts. The rules developed at a time when it was thought to
be an infringement of a state's sovereignty to bring proceedings against it or its officials in a
foreign country.

There is now a trend in various states towards substantial exceptions to the rule of immunity; in
particular, a state can be sued when the dispute arises from a commercial transaction entered
into by a state or some other non-sovereign activity of a state. The United Nations Convention
on Jurisdictional Immunities of States and their Property, which is not yet in force, formulates
the rules and the exceptions to them. It does not cover criminal proceedings, and it does not
allow civil actions for human rights abuses against state agents where the abuse has occurred
in another country.

Q: What is the constitutional basis of state immunity from suit?

I. The rule that a state may not be sued without its consent, now expressed in Article XVI
Section 3, of the 1987 Constitution, is one of the generally accepted principles of international
law that we have adopted as part of the law of our land under Article II, Section 2. This latter
provision merely reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and
also intended to manifest our resolve to abide by the rules of the international community. 41