Consti 1 Reviewer (Preamble - Art 1)

8/6/2019 Consti 1 Reviewer (Preamble - Art 1)

1/6

Introduction

Constitution a written instrument by which thefundamental powers of government are established,limited and defined, and by which these powers aredistributed among several departments, for their moresafe and useful exercise, for the benefit of the bodypolitic

Fundamental purpose of a constitution: a grant anda limitation of governmental authority

The Constitution is the supreme written law of the land

Classifications of the constitution: written and unwritten;flexible and rigid

Classification as to the extent to whichconstitutions are observed as norms ofgovernmental action:

o Normative constitution its norms

direct governmental action, andgovernment habitually adjusts its

actions to the norms like a suit thatfits and is actually worn

o Nominal constitution cannot yet be

fully operative because of existingsocio-economic conditions like a suitin storage waiting for the wearer togrow to the proper size

o Semantic constitution the primary

purpose of a constitution is to limitpower: this does the opposite. It is atool for the perpetuation of power in the

hands of power holders not a suit,but a disguise

A constitutional document may be divided into 3parts:

Constitution of government provisions that setup the governmental structure

Constitution of liberty guarantee individualfundamental liberties against governmentalabuse

Constitution of sovereignty outline the processwhereby the sovereign people may change theconstitution

Constitutional law body of rules resulting from theinterpretation by a high court of cases in which thevalidity, in relation to the constitutional instrument ofsome act of governmental power has been challenged.

Judicial review involves the power andduty on the part of the Court pronouncing voidany such act which does not square with its ownreading of the constitutional instrument. (powerand duty to make void acts which are not in

keeping with the Constitution) Constitutionalism dates back to the Treaty of Paris

transferring Spanish sovereignty over the Islands to theU.S. Thereafter, Philippine constitutional law grew froma series of organic documents enacted (stated below) bythe U.S. government.

Pres. McKinleys Instruction to the SecondPhilippine Commission

Philippine Bill of 1902

Philippine Autonomy Act of 1916

The 1935 Constitution

Tydings-McDuffie Law provided for theestablishment of a Commonwealth Government

to be established under a constitution draftedand ratified by the Filipino people, thePhilippines already had a solid body oconstitutional jurisprudence on which to build.

o It was through the authority of this lawthat a Constitutional Convention wacalled (for the creation of the 1935Constitution). It lasted from July 301934 to February 8, 1935.

o March 3, 1935 U.S. Presidenapproved the draft

o May 14, 1935 Filipino electorate

ratified the same by an overwhelmingmajority vote.

o November 15, 1935 Commonwealthgovernment established by theConstitution became operative

o July 4, 1946 Philippi

Independence!!!

Many felt a certain unease inthat the Philippines, alreadyindependent at the timecontinued to operate under aConstitution that had beenfashioned under coloniaauspices. Hence, the agitationfor a thorough overhaul of the1935 Constitution arose.


March 16, 1967 Phil. Congress, pursuant toauthority given to them by the 1935Constitution, passed Resolution No. 2 (lateamended by Resolution No. 4 passed on June 171969) called for a Convention to proposeamendments to the Constitution.

November 20, 1970 election of delegates tothe Convention

June 1, 1971 1971 Constitutional Convention(ConCon) began

September 21, 1972 martial law was declaredEven though some delegates were placed undedetention, went into hiding or voluntary exilethe ConCon continued its deliberations under anatmosphere of fear and uncertainty.

November 29, 1972 ConCon approved itProposed constitution

November 30, 1972 the Pres. issuedPresidential Decree No. 73: submitting to theFilipino people for ratification or rejection theConstitution of the Republic of the Philippinesproposed by the 1971 ConCon and setting thedate of the plebiscite on January 15, 1973

January 7, 1973 General Order No. 20 waissued by the President directing that the saidplebiscite be postponed until further notice.

P.D. No. 86 organized the CitizensAssemblies. Said assembly was asked certainquestions, such as Do you approve of the NewConstitution?

January 17, 1973 the Supreme Court was stilhearing arguments to enjoin the holding of theplebiscite, however, Proclamation No. 1102 wasmade by the President, announcing that theproposed Constitution had been ratified by anoverwhelming vote of the members of theCitizens Assemblies

March 31, 1973 a divided SC ruled that thereis no further judicial obstacle to the newConstitution being considered in force andeffect

The Executive Dept., with vigor and all thresources at its command, proceeded toimplement the new Constitution

Constitutional Law I: Block E 2014 Reviewer | Preamble Article I | KSantos. 1


2/6

The Legislative Dept. was nowhere to be foundto object

Ordinary mortals lived and found their fortunes(and misfortunes) under the new Constitution

In 1976, the Constitution was amended to givebirth to the interim Batasang Pambansa (alegislative body which functioned no better thanas a rubber stamp for the will of the Presidentwhich found a new authoritarian vehicle inAmendment 6). Later on, the interim BP gaveway to a regular BP.

In 1981, the Constitution was amended again todepart from the parliamentary to thepresidential form.

The FREEDOM Constitution

February 15, 1986 the BP, in the exercise ofpowers given by the 1973 Constitution,proclaimed Marcos as the president, amidstwidespread protest.

February 22, 1986 Minister of National DefenseEnrile and Vice Chief of Staff General Ramosinitiated a revolt against Marcos

o The civilian support given to theoutnumbered Ramos-Enrile forcescaused other military elements toswitch their support to Pres. Aquino

February 24, 1986 after the Air Force started tosupport Aquino, it was deemed over for Marcosand his allies

February 25, 1986 in defiance of the provisionsof the 1973 Constitution and without thesanction of the BP, Aquino was proclaimedpresident at the Club Filipino and wasimmediately sworn into office by SeniorAssociate Justice of the SC Claudio Teehankee

o At the same time, Marcos was beingsworn into office by Chief Justice RamonAquino at Malacaang. The same night,he and his family and supporters wentinto exile.

Pres. Aquino chose to turn her back on the 1973Constitution whose officials had denied her the

presidency. She chose instead to govern under aProvisional Constitution, which was ProclamationNo. 3 or the Freedom Constitution


1986 ConCon: June 1, 1986 to October 15, 1986

Article 6 of the Freedom Constitution:

o Sec. 1: Within 60 days from date of

this Proclamation, a Commission shallbe appointed by the President to draft aNew Constitution. The Commission shallbe composed ofnot less than 30 andnot more than 50 natural-borncitizens of the Philippines, ofrecognized probity known for theirindependence, nationalism andpatriotism. They shall be chosen bythe President after consultationwith various sectors of society.

o Sec. 2:The Commission shall complete

its work within as short a period as maybe consistent with the need both tohasten the return of normalconstitutional govt and to draft adocument truly reflective of the idealsand aspirations of the Filipino people.

o Sec.3: The Commission shall conduct

public hearings to insure that thepeople will have adequate

participation in the formulation of theNew Constitution.

o Sec. 4: The plenary sessions of th

Commission shall be public and fullyrecorded.

o Sec. 5: The new Constitution shall be

presented by the Commission to thePresident who shall fix the date fothe holding of a plebiscite. It shalbecome valid and effective uponratification by a majority of the

votes cast in such which shall be heldwithin a period of 60 days followingits submission to the President.

Plebiscite was held on

February 2, 1987

PREAMBLE

We, the sovereign Filipino people,imploring the aid of Almighty God, in orderto build a just and humane society andestablish a Government that shall embodyour ideals and aspirations, promote the

common good, conserve and develop ourpatrimony, and secure to ourselves and ourposterity the blessings of independence anddemocracy under the rule of law and aregime of truth, justice, freedom, love,equality, and peace, do ordain andpromulgate this Constitution.

The PreambleShould the Preamble be written before or after thecompletion of the Constitution?

1. Preamble should be formulated after the completionof the Constitution:

Preamble a distillation of the ideals and

aspirations of the Filipino people Since it is a distillation of the ideals and

aspirations, it should not be finalized until afterthose ideals and aspirations had beenhammered out.

2. Preamble can be formulated even before thecompletion of the Constitution:

Commissioners themselves were in a position toenumerate the ideals and aspirations of theFilipino people, a Preamble formulated inadvance could serve as a guide for the rest ofthe work of the Commission.

Commission agreed that the Preamble would stilbe subject to modifications after the formulationof the body of the document.

But the commission did not go back to thePreamble after the completion of the body ofdocument.

Purpose and effect of the Preamble

It is not a source of power or right for anydepartment of government.

It sets down the origin, scope, and purpose of theConstitution and is thus useful as an aid inascertaining the meaning of ambiguous provisions inthe body of the constitution.

The Preamble bears witness to the fact that theConstitution is the manifestation of the sovereign wilof the Filipino people.



3/6

The document is not just the work of representativesof the people but of the people themselves who puttheir mark of approval by ratifying it in a plebiscite.

Source of Light: Useful as an aid in ascertaining themeaning of ambiguous provisions in the body of theConstitution

Aglipay v. Ruiz Justice Laurel, in seeking the truemeaning of separation of church and state in thePhilippine jurisprudence, had occasion to allude tothe invocation of the aid of Divine Providence

found on the 1935 Preamble.

ARTICLE 1:National Territory

The national territory comprises thePhilippine archipelago, with all the islandsand waters embraced therein, and all otherterritories over which the Philippines hassovereignty or jurisdiction, consisting of itsterrestrial, fluvial and aerial domains,including its territorial sea, the seabed, thesubsoil, the insular shelves, and other

submarine areas. The waters around,between, and connecting the islands of thearchipelago, regardless of their breadth anddimensions, form part of the internal watersof the Philippines.

A Constitution is a municipal law. As such, it is binding onlywithin the territorial limits of the sovereignty promulgating theconstitution. It is important for the sovereign state to knowthe extent of the territory over which it can legitimatelyexercise jurisdiction.

1. The Place of Territorial delimitation in the 1935Constitution

Definition of territory underwent three phases: 1934-1935 Constitutional Convention

1972 Constitutional Convention

1986 Constitutional Commission

The factor which persuaded the 1935 Convention toinclude an article on national territory was the intentof the Convention to use the Constitution as aninternational document binding on the US.

This possibility of transforming the Constitution (amunicipal law) into an international document arosefrom the provision of the Tydings-McDuffie law.

Tydings-McDuffie law: the effectivity of the Philippineconstitution would depend partly on the acceptanceof its provision by the US Government.

2. National territory under the 1935 Constitution

Four Points of Reference for determination of thePhilippine territory in the 1935 Constitution

1. The Treaty of Paris (December 10, 1989)a. Article III Spain has ceded to the US the

archipelago known as the Philippine Islands,and comprehending the islands lying within

b. Doubts whether the Batanes Islands to thenorth and the Island of Sibutu and Cagayande Sulu to the south as well as the Turtleand Mangsee Island were included

2. The Treaty of Washington (November 7, 1900)a. Corrected the error with respect to the

Islands of Sibutu and Cagayan de Sulu3. The treaty between Great Britain and the United

States (January 2, 1930)

a. Jurisdiction over Turtle and Mangsee Islandswere clarified by the convention concludedbetween Great Britain and US

b. The doubt over Batanes was not clarified.However, from time immemorial, theseislands had undisputedly formed part of thePhilippines.

4. all territory over which the present Government ofthe Philippine Island exercise jurisdiction

a. To remove the doubts over Batanes.

3. Why the definition of territory in the 1973 and

1987 Constitutions? Voltaire Garcia (Rizal) delete the entire article on

National Territoryo Why? Because territorial definition was a

subject of international law, not municipallaw, and the Philippine territory is alreadydefined by existing treaties

o Batanes no state ever questioned thecontinued exercise of Philippine jurisdictionover it

o Prejudicial to the interest of the Philippineso Amanio Sorsogon and Magtanggol

Gunigundo supplied the nationalisticarguments for the deletion of the article onterritory

Sorsogon: Treaty of Paris a

repulsive reminder of the indignityof our colonial past

Gunigundo: To accept the territoriaboundaries defined in the Treaty ofParis would be to lend legitimacy tothe illegal act of Spain and the US

Raul Roco (Camarines Sur) territorial definition isnecessary for the preservation of our national wealthfor national security, and as a manifestation of oursolidarity as a people

Eduardo Quintero (Leyte) on why a territorial articleis needed:

o Territorial assertions found in RA 3046 aremerely whereas clauses. These clausesshould be expressed in more authoritativefashion.

o To delete the article would leave the statusof Batanes Island in doubt.

o Failure of the 1935 constitution to expressthe possibility of future territorialacquisitions by the Philippines

4. The 1973 Provision on National Territory

Philippine Territory under the 1973 Constitution canbe divided into three groups:

1. The Philippine archipelago2. Other territories belonging to the Philippines3. Philippine waters, air-space, and submarine

areas

Horizontal reach consisting of landsand waters

An upward reach consisting of air-

space over the land and waters A downward reach consisting of

submarine areas

Adherence to the archipelagicprinciple

The Philippine Archipelago

1973 Consti: all the islands and watersembraced therein

Archipelago: a cluster of islands forming aterritorial unity

o Waters are considered adjuncts tothe land area and their extent isdetermined by reference to theland area



4/6

Archipelago: as a unit of water studded withislands

o The land area is everything thatcomes within the water area

o The committee preferred thisdefinition over the first one

Archipelagic principleo principle that the Philippine

Constitution adheres to; Legal &Political basis for considering the7,107 islands as one political unit

o Committee Report No. 01 of 1973:

the inclusion in the newConstitution of a provision spellingout the archipelagic principle of thePhilippine government will certainlystrengthen our historical positionand will help us in sustaining ourarchipelagic theory in theConvention on the Law of the Seain 1973 and in any case that maypossibly be ventilated before theWorld Court in the future

..all other territories belonging to thePhilippines by historic right or legal title

Inclusion of Batanes Islands

Committee Report No. 1: intended to coverthe claim to Sabah which has been filed by

the Philippines and the possible claim toFreedom Land and the Marianas Islands

The intent was to avoid forfeiture of theseclaims by their omission from theconstitutional definition

Historic right: Batanes belongs to thePhilippine because in all its history, Bataneshad always been part of our country.

Sabah: our claim is based on a legal titleperfected in 1962

5. 1982 Convention on the Law of the Sea (LOS)

1987 Constitution was formulated while thePhilippines was already a party to the 1982Convention on the Law of the Sea.

Substantial provisions found in LOS which helps in theunderstanding of the constitutional text:

1. Archipelago, archipelagic state

Article 46 of the Convention(a) Archipelagic Statemeans a State constituted whollyby one or more archipelagos andmay include other islands(b) Archipelago means agroup of islands, including parts ofislands, interconnecting waters andother natural features which are soclosely interrelated that suchislands, waters and other naturalfeatures form an intrinsic

geographical, economic andpolitical entity, or which historicallyhave been regarded as such.- Under this definition,Batanes should be considered partof the archipelago and not just ofterritories outside the archipelago.

2. The territorial sea

As distinct from the states inland andinternal waters, the territorial sea consists ofa marginal belt of maritime waters adjacentto the baselines extending 12 nautical milesoutward. Outside these are the high seas.

The Three (3) mile rule, which was thetraditional length of the territorial waters

measured seawards according to the cannon-shot rule formulated in 1702, has now beendiscarded.

When the Twelve (12) mile rule applicationoverlaps to neighboring littoral states, therule established is that the dividing line is amedian line equidistant from the oppositebaselines.

3. Baselines

the low water line along the coast asmarked on large scale charts officially

recognized by the coastal StateTwo (2) ways to draw the baseline:

a. Normal baseline is one drawnfollowing the low water line alongthe coast as marked on large scalecharts officially recognized by thecoastal State. This would normallynot consist of straight lines.

b. Straight baselines are drawnconnecting selected points on thecoast without appreciabledeparture from the general shapeof the coast. This method was firstupheld in the Anglo-NorwegianFisheries Case. Likewise, R.A. No.3046 and R.A. No. 5446 have

drawn straight baselines aroundthe Philippines.

The rule now is that in localities where thecoastlines is deeply indented and cut into, orif there is a fringe of islands along the coastin its immediate vicinity, the method ofstraight baselines joining appropriate pointsmay be employed.

BASELINE provisions are found in Article 47of the 1982 Convention. It is both a solutionand a problem.

4. Sovereignty over territorial waters

A state exercises sovereignty over itsterritorial sea subject to the right of innocentpassage by other States. Innocent passage is

understood as passage not prejudicial to theinterests of the coastal state nor contrary torecognized principles of international law.

Acts that are not considered innocentpassage under Article 19(2)

a. any threat or use of forceagainst the sovereignty, territorialintegrity or political independenceof the coastal State, or in any othermanner in violation of theprinciples of international lawembodied in the Charter of theunited Nationsb. any exercise or practicewith weapons of any kindc. any act aimed atcollecting information to the

prejudice of the defense or securityof the coastal Stated. any act of propagandaaimed at affecting the defense orsecurity of the coastal Statee. the launching, landing ortaking on board of any aircraftf. the launching, landing ortaking on board of any militarydeviceg. the loading or unloadingof any commodity, currency orperson contrary to the customs,fiscal, immigration or sanitary lawsand regulations of the coastal State



5/6

h. any act of wilful andserious pollution contrary to thisConventioni. any fishing activityj. the carrying out of research or survey activitiesk. any act aimed atinterfering with any system ofcommunication or any otherfacilities or installations of thecoastal Statel. any other activity not

having a direct bearing on passage

Coastal states have the unilateral right toverify the innocent character of passage, andit may take the necessary steps to preventpassage that it determines to be notinnocent.

5. Archipelagic waters

1973 Constitution, Article I: The watersaround between and connecting the islandsof the archipelago, irrespective of theirbreadth and dimensions, form part of theinternal waters of the Philippines. Thisassertion, together with the straightbaseline method, forms the Archipelagic

Principle, which is now found in the 1987Constitution.

Internal Waters: internal or inland watersconsist of all parts of the sea landwards fromthe baseline as well as inland rivers andlakes. All of them are subject to thesovereignty of the state to the same extentthat the land domain is. Unlike territorialwaters, they are not subject to the right ofinnocent passage by other states.

6. Insular shelf

The continental shelf , archipelagic orinsular shelf for archipelagos, refers to:

A. the seabed and subsoil of the submarine areas adjacent tothe coastal state but outside theterritorial sea, to a depth of twohundred meter or, beyond thatlimit, to where the depth allowsexploitation.B. the seabed and subsoil of areas adjacent to islands.

The coastal state has the right to exploreand exploit its natural resources, to erectinstallations needed, and to erect a safetyzone over its installations with a radius of500 meters. The right does not affect theright of navigation of others. Moreover, theright does not extent to non-resourcematerial in the shelf area such as wreckedship and their cargoes.

6. National Territory in the 1987 ConstitutionOn June 26, 1986, the Committee draft ofthe National Territory noted that the firstparagraph was an exact reproduction of the1973 text. The second paragraph was newand made reference to the 1982 Conventionof the Law of the Sea.

The deliberations of the 1986 ConstitutionalCommission focused on:

(1) Whether to have aprovision on national territory.

This was resolved easily.Much of the 1972 debate wasrepeated. In the end there wasrecognition that such an article

would have an educationalvalue and there wasapprehension that it would bedifficult to explain why after1935 and 1973 provisions onnational territory the newConstitution should fail toprovide for one.

(2) What posture to takerelative to Sabah as covered by theclause all other territories belongto the Philippines by historic right

or legal title.

This was debatedperlongum et latum with a certaindegree of warmth even if itwas not always clear whatindividual delegates, includingsponsor wanted.

This was not thoroughlydiscussed, and nothingconclusive was put down inwriting.

(3) How the definition of territory would relate to the 1982Convention on the Law of the Sea.

a. all other territories over which the Philippines has

sovereignty or jurisdiction 1973: all other territories belonging to the

Philippines by historic right or legal title wasreplaced by 1987: all other territories over whichthe Philippines has sovereignty or jurisdiction.

Those who espoused the 1973 basically wanted toavoid the impression of constitutional abandonmentof the Philippine claim to Sabah. Those who espousedthe new phraseology contended that theirs did notmean abandonment of any claim which might bejustifiable under generally accepted principles ofinternational law.

The principal stumbling block was the phraseexercises sovereign jurisdiction, which could easilybe read to mean that territory not under the effectivecontrol of the Philippines, such as Sabah, would not

be part of it. Fr. Joaquin Bernas SJ provided the solution by

introducing a new phraseology: and all otherterritories over which the Philippines has sovereigntyor jurisdiction, where has was of broader scopethan exercises so that it clearly allowed juridicalretention of a territory even when it was physicallywrested by a stronger force.

c. ...its terrestrial, fluvial, and aerial domains, including theterritorial sea, the sea bed, the subsoil, the insular shelves,and other submarine areas thereof.

This rephrasing was authored by CommissionerAdolfo Azcuna.

It was not meant to and does not add anything to thesubstance of what was already contained in the 1973

definition. Azcunas explanation follows closely the terms of the

1982 Convention on the Law of the Sea. To beginwith, Article 2 of the Convention says:(1) The sovereignty of a coastal State extends,

beyond its land territory and internal waters andin the case of an archipelagic State, itsarchipelagic waters, to an adjacent belt of sea,described as the territorial sea.

(2) This sovereignty extends to the airspace overthe territorial sea as well as to its bed andsubsoil.

(3) The sovereignty over the territorial sea isexercised subject to this Convention and toother rules of international law.



6/6

7. Summary and Conclusion

Like the 1934-35 Convention, the 1971 Conventiondid not claim that a constitutional provision standingby itself is binding international law. During the 1973debates on the provisions on national territory, thelocal newspapers gave the impression that, byunilateral act, the Convention was attempting to addnew territory to what was defined in the 1935Constitution. However, there was no such attempt.The 1987 language attempts to remedy themisimpression.

The only clear claim made by the 1971 Convention of

the power unilaterally to delimit territorial boundarieswas with respect to inland and territorial waters.

Is the Philippine territory bigger because of the newarticle on national territory? Not really.

The Treaty of Paris is the 1935 Constitutionsprincipal point of reference for the delineation ofPhilippine territory. The attempt of the presentprovisions to omit any mention of the Treaty of Parisin the new Constitution only succeeds in putting thePhilippines in an ambiguous if not embarrassingposition.

On the one hand, it wishes to be washed clean of thecolonial taint of the treaty; on the other hand itclaims the longitude and latitude lines of the treatyas the rightful boundaries of the archipelago and ofits territorial waters.

The 1973 Constitution affirmed Philippine title to theBatanes Islands by historic right

The 1973 Constitution ensured the possibility ofclaiming other territories on the basis of historicright or legal title. The 1987 Constitution prescindsfrom the question and reies on generally acceptedprinciples of international law which recognizes legalmodes of establishing legal claim to territory.

What then did the 1973 provision gain for thePhilippines? A security blanket, a rhetorical assertionof historic identity, decolonization on paper, and anembarrassing muddling of Philippine position towardsthe Treaty of Paris.

As to the 1987 version, it merely removed languagepossibly offensive to an ASEAN neighbour andachieved a more logical sequencing of the elements

that make up the territory but preserved everythingelse found in the 1973 Constitution.


Consti 1 Reviewer (Preamble - Art 1)

Documents

Transcript of Consti 1 Reviewer (Preamble - Art 1)