Political science

CHAPTER 4

A Prelude to the 1987 Philippine ConstitutionBy John Mark H. Nuncio

“Oh how much more of the journey do we have to make in order to actually live the new law

— the law of the Holy Spirit who acts in us, the law of charity, of love!”

-Pope Francis

Leaning Outcome/s:1. Explain the significance of the Constitution in the existence of state and government.2. Comprehend the messages enshrined in the Preamble of the 1987 Constitution of the

Philippines.3. Identify the scope and components of the Philippine National Territory.

The second chapter dealt on the entirety of the state which is

considered to be a very important concept in the field of political science as

it is branded as the basic unit of the international community and the

ultimate expression of political activity among men. The third chapter was

aimed at discovering the historical roots and progression of Philippine

government in order to understand the complexities and changes within the

bounds of local governance. This chapter will be dedicated to the discussion

of the fundamentals of the so called “fundamental law of the land” which is

the guiding light of the affairs of both state and government. In addition, this

will be an opening salvo to the critical study of the document as we enter the

portals leading to the first two fragments of the 1987 Philippine Constitution

—the Preamble and the National Territory.

XAVIER UNIVERSITY – ATENEO DE CAGAYAN

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“The Constitution is the fundamental law of the land.”

CHAPTER 5: DECLARATION OF STATE PRINCIPLES AND POLICIES

CONCEPT OF CONSTITUTION

Creating an Equilibrium

Before we delve deeper into the concept of the organic law, let us first

turn our attentions to the specific field of political law that is germane to the

study of the constitution itself—Constitutional Law.

Constitutional Law is the study of the maintenance of the proper

balance between authority as represented by the three inherent powers of

the State and liberty as guaranteed by the Bill of Rights.1 Genuine liberty

entails exercising it without causing any harm or interception on the freedom

of others. This is the ideal arrangement since by practice, people

unavoidably uses liberty beyond normal control. Hence, the state has been

endowed from its birth with the three inherent powers namely police power,

eminent domain, and taxation in order to regulate the usage of individual

rights. But this does not mean that the state always has the authority to

intrude on an individual’s freedom because in the context of Constitutional

Law, what is being advanced is not supremacy of one of the two factions but

the promotion of the “co-existence” between both sides.

Constitution Defined

Cooley describes it as the “body of rules

and maxims in accordance with which the

powers of sovereignty are habitually exercised.”2

It also refers to “a written instrument by which the fundamental powers of

the government are established, limited, defined, and by which these powers


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are distributed among several departments, for their more safe and useful

exercise, for the benefit of the body politic.”3 The first definition is much

more extensive compared to the second one since it covers even the

unwritten constitutions like customs and traditions. Furthermore, Cooley’s

definition relates on the founding principles reflecting the aspirations of the

sovereign while Miller’s include in its scope the structuring of the

government wherein the several powers are distributed for the promotion of

the common good. In layman’s terms, it is simply defined as the organic or

supreme law of the state.

Constitution vs. Statute

Constitution and statute are two terms belonging to the same world

of legalities but differ in their scope and intrinsic meaning. The disparity is

demonstrated in the following instances:

1. The former elaborates on general items such as policies and

principles while the latter deals on more specific topics. Statutes always

follow the basic rule of legislation known as “singularity of subject.”

2. In addition, in the context of being “open to change,” the

constitution (for the cases of the written, enacted and rigid) cannot be

easily amended while statute is more open to change and can even be

repealed easily with regards to its constitutionality.

3. The constitution is the product of the people’s integral sovereign

power in society while statute is a result of the process of legislation or law-

making as practiced by the legislature.


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4. Lastly, in most cases, there is only one constitution in operation but

there can be several statutes that would be enforced within the bounds of

the state.

Discerning the Purpose

The purpose of the constitution is “to prescribe the permanent

framework of a system of government, to assign to the several departments

their respective powers and duties, and to establish certain first principles on

which the government is founded.”4 Dissecting this statement originating

from American jurisprudence, three points can be extracted:

1. Firstpurpose is to lay down and paint the structure of the

government administering the state;

2. Next is the apportionment of the different governmental powers to

the branch or department that must exercise it so as to avoid concentration

of powers; and

3. Finally, to provide for the guiding principles which aid the daily

affairs of the entire governmental order.

Supremacy without a Doubt


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“Supremacy of the Constitution means that

legislation, executive actions and even the

international law yields to its power.”


The constitution is the supreme law of

the land. Neither legislation nor even the

highest government official exercising

immense powers inside the state can question

the ultimate position occupied by the organic law in the hierarchy of the

political system. The legislature can make laws but such laws are limited

because they must conform to the tenets and principles anchored on the

constitution. In fact, the judiciary checks both legislative and executive

departments by interpreting their actions as “constitutional” or

“unconstitutional.” The people, its creator, in the exercise of sovereign

power may not disregard the constitution5 as well. But it must be

remembered that they can institute changes if ever it is proven that the

constitution does not serve or address the needs of the current situation. The

supremacy scenario can also be observed in the landscape of the

international community due to the fact that in cases of conflict between

international law and municipal (local) law, the latter usually prevails based

on the principle of par in parem non habet imperium. But there are

exceptional cases wherein constitutional inferiority is demonstrated in

upholding the general interests of the people.6

Variety Exists

Constitutions around the globe are not exempted to the phenomenon

dubbed as “variety.” Gradations exist and these are categorized into three

major segments:


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1. There are two kinds of constitution according to form namely

written and unwritten. The differentiation does not rest on the aspect of

being “written” or not because some examples of the unwritten constitution

are in fact written documents. The major distinction is based on the

“organization” of the scattered pieces into one, single collection. The

written constitution is usually the organized one while the unwritten

“consists of rules which have not been integrated into a single, concrete

from but are scattered in various sources.”7 The 1987 Philippine Constitution

is a written one while the English Constitution is an unwritten type.

2. The next one is constitution according to origin which also has

two types: enacted (conventional) and evolved (cumulative). Enacted is a

result of a thorough document construction normally done through a

constitutional convention and is normally instituted at a definite time and

place. On the other hand, evolved is a product of continuous process of

accretion or adding up as it operates from one generation to another. The

present Philippine Constitution is enacted while customs and traditions would

be the best example for an evolved constitution.

3. According to manner of amendment is the last category that

comprises both flexible and rigid constitutions. Flexible constitutions are

characterized by flexibility which implies that it can be changed by mere

legislation. Meanwhile, the rigid one is the type that usually resists change

in the sense that it can only be amended by a specific body and the

procedure itself is quite complex and difficult. The 1987 Philippine


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Constitution is rigid while the constitution of the Scandinavian state of

Sweden is considered as flexible.

Written Constitution: Essential Qualities

Since the 1987 Constitution of the Republic of the Philippines is a

written one, it is more sensible to tackle the essential qualities of a

constitution in the lexicon of the written type.

1. Broadness refers the extensiveness of the constitution in terms of

its scope and reach. Furthermore, broadness relates to the fact that the

constitution “is supposed to embody the past, reflect the present and to

anticipate the future.” Accordingly, it must have the capability to provide

answers or solutions for every contingency.

2. Brevity implies that a good written constitution must stick to the

basics. It is limited in the sense that it should not be a venue for staging the

details which must be addressed and expressed by reinforcing legislation.

Thus, the nature of the document is to prevent the situation wherein it

becomes too “chatty” or wordy.

3. A written constitution must also be definite. This quality relates to

the condition that its provisions must be construed in a clear manner to

avoid vagueness in the interpretation. Such ambiguity may lead to

“confusion and divisiveness among the people, and perhaps even physical

conflict.”8

Written Constitution: Essential Parts


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Almost all texts dealing on the topics of constitution, law and Political

Science are in agreement that there are three essential parts of a good

written constitution. These are the following:

1. The constitution of liberty which is symbolized by the presence

of a Bill of Rights, elaborates the citizens’ civil and political rights as well as

the limitation imposed on the side of the government in the regulation of the

same. It is found in Article III (Bill of Rights) of our constitution.

2. Reflected in Article VI (Legislative), VII (Executive), VIII (Judiciary),

and IX (Local Government) is the second essential part known as the

constitution of government whose main feature is the outlining of the

governmental structure and the respective powers that they must utilize in

the conduct of administration.

3. The provisions relating to the procedures on how to institute

changes in the constitution is referred to as the constitution of

sovereignty. Article XVII (Amendments or Revisions) is an exemplary of this

part.

Beginnings of the 1987 Philippine Constitution

September 21, 1972 is the dreaded day of the proclamation of

Martial Law courtesy of one of the most infamous head of state in the

Philippines—Ferdinand Edralin Marcos. Such declaration was fueled by the

various political upheavals in the Philippine political scene at that time

including insurgency movements of militant groups and the fear of a

communist seizure of the duly constituted government. The Martial Law


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lasted for about 8 years and was only lifted in 1981. The growing discontent

among Filipinos regarding the rule of Marcos was heightened when in the

year 1983; Sen. Benigno “Ninoy” Aquino, Jr. returned from his exile in the

United States and was assassinated at the Manila International Airport. Three

years after such heart-breaking murder, Marcos called for a special snap

election which was centered between him and the widow of Ninoy—Corazon

“Cory” Aquino. Massive cheating and electoral fraud characterized the

election process in which the final tally of votes expressed the victory of the

administration. Yet, even though triumph was at hand, the snap election was

one of the major reasons that catapulted the People Power Revolution of

1986. The withdrawal of the military support for the government through the

acts of high military officials Fidel V. Ramos and Juan Ponce Enrile led to the

downfall of the Marcos Administration.

The world’s attention was gravitated to the Philippines in the year

1986 when “the cheapest revolution”9 in history was launched in order to

overthrow the infamous regime of Ferdinand Edralin Marcos. The latter was

forced to go to an exile in Hawaii, United States. When Cory was inaugurated

as President, her administration reorganized the entire governmental order

and promulgated the Freedom Constitution that abrogated the operation of

the 1973 Constitution. The “Freedom Constitution” was the precursor of the

1987 organic law. In the latter part of the same year, she ordered the

formation of a Constitutional Commission through Proclamation no. 9 to draft

a new constitution to legalize the new government. The regular session of


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the said commission was held from June 2 – October 15, 1986. It was headed

by Cecilia Muñoz Palma, the first woman to be appointed to the Supreme

Court of the Philippines, as chairman, together with Ambrosio B. Padilla as

vice-chairman. Napoleon G. Rama served as floor leader with Jose D.

Calderon and Ahmad Domacao Alonto, a muslim legislator, as assistant floor

leaders. Members of the commission came from different walks of life which

encompass such prominent names as former COMELEC Commissioner Rene

Sarmiento, former Associate Justice Florenz Regalado, former Chief Justice

Hilario Davide, Jr., Dean Emeritus of Ateneo Law School Fr. Joaquin G.

Bernas, S.J., award-winningfilm director Lino Brocka, and notable lawyer

Christian Monsod.

After drafting the newly structured and designed fundamental law,

the commission recommended to President Aquino the scheduling of the

plebiscite for the ratification of the proposed code. A three-month period was

given for the people to carefully study and scrutinize such. The plebiscite

was scheduled on the 2nd February, 1987. During the campaign period for the

ratification, Filipinos were quite apprehensivebut eventually, they approved

the plebiscite. The process was a huge success with 76.29% affirming the

ratification while 22.74% were on the contrary. The 1987 text is pretty

lengthy and wordy which is composed of eighteen articles. Historical

experiences have molded it into its present form and substance particularly

the enormous impact of the Martial Law Era.

THE PREAMBLE


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“We, the sovereign Filipino people, imploring the aid of Almighty God, in

order to build a just and humane society, and establish a Government that shall

embody our ideals and aspirations, promote the common good, conserve and

develop our patrimony, and secure to ourselves and our posterity, the blessings

of independence and democracy under the rule of law and a regime of truth,

justice, freedom, love, equality, and peace, do ordain and promulgate this

Constitution.”


A Grand Introduction

A book has a preface, a thesis has an abstract, and for the case of the

constitution, there is a preamble. From the Latin word “praeambulus”

meaning “going in front”, this optional part only serves to introduce the

organic law. Such introduction is achieved through its expression of the

authors of the document and their corresponding ideals and aspirations. It

must be noted that the Preamble is not a source of rights, obligations and

powers for both citizenry and government side. But because it sets down the

origin, scope, and purpose of the Constitution, it is useful as an aid in

ascertaining the meaning of ambiguous provisions of the Constitution.10 For

a better understanding of the messages imparted by the Preamble, several

distinct partitions will be created and analyzed.

We, the Sovereign Filipino People. This opening phrase indicates

the main authors of the Constitution. What is unique in this construction is

that the first person point of view was employed through the usage of the

word “we.” This is very different form the case of the 1935 Constitution

wherein the third person point of view was reflected by the less captivating

description “The Filipino people.” Fr. Joaquin Bernas, one of the framers of


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the current organic document, explained that the “third person approach

(1935) suggests that another power (the United States) was merely

announcing that the Filipinos were finally allowed to promulgate a

Constitution.”11 Hence, “The Filipino people” in the 1935 text clearly conjures

the situation of the Philippines at that time being under the hands of another

sovereign power and has not achieved true independence.

During the euphoria of imperialism, the term “Filipino” does not apply

to the natives of the Philippines. The Spanish colonization has founded a

social stratification where natives were placed at the bottom of the social

ladder while pure-blooded Spaniards (peninsulares and insulares) and

mestizos are situated in a much higher position. These groups were regarded

as Filipinos while the natives were branded as “indios”—a moniker that

signified racial discrimination. It is incredible to know that the framers of the

1973 and 1987 Constitution visualized the commonality among us; that we

are one homogenous body and truly Filipinos by heart.

Imploring the Aid of Almighty God.In both 1935 and 1973 texts,

this phrase is worded as “Imploring the guidance of the Divine Providence”

as a form of respect to the the religious freedom of every person situated in

the Philippine archipelago including non-believers. During the deliberations

of the 1986 Constitutional Commission, it was decided that “guidance” would

be replaced by “aid” since the latter is a “more all-embracing term”12

compared to the former. “Divine Providence” also yielded to “Almighty God”

due to the realization that the latter implies greater intimacy regarding our


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relationship with the Divine and is considered as “more consonant with

Filipino religiousity.”13 Basically, this part of the preamble creates a

remarkable picture on how we value the role of the Omnipotent as the

rudder leading us to our outstanding glories and destinies in life.

Build a Just and Humane Society. The state and the government

being created by the people themselves must uphold and create a social

order that ensures fairness and greatly values human rights and dignity. The

phrase added the notion that a constitution not merely sets up a government

but is also an instrument for building the larger society of which government

is merely a part.14

Establish a Government. This phrase was carried on by both 1935

and 1973 constitutions in their respective preambles. One of the major

intentions in drafting a constitution is to establish a government that would

regulate both internal and external affairs of the state and has complete

autonomy in the eyes of the international community. The Preamble further

defines the “purposes”15 in the establishment of this structure:

1. Embody our Ideals and Aspirations. This refers to the primary

responsibility of the government in advancing people’s interests and not its

own selfish political agendum because the powers of the same emanates

from the governed per se.

2. Promote the Common Good. “General welfare” was used in both

1935 and 1973 texts but it was agreed by the 1986 Constitutional

Commission that “common good” would supplant it in the new constitution.


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The rationale is found in the implication of the former phrase as the greater

good of the majority and not the greater good of all components of society.

Thus, “good” must be common to all.

3. Conserve and Develop Our Patrimony. “Patrimony” is so

extensive when we speak of its scope since it includes everything that is

rightfully owned by the people both material (resources) and immaterial

(customs and traditions) ones. The government must see to it that these

valued belongings of the nation must be preserved, conserved and

developed.

4. Securing the Blessings of Independence and Democracy. This

particular segment is not totally similar to the 1935 Constitution because the

previous organic law’s preamble only mentioned “the blessing of

independence” in the third person point of view. This scenario suggests the

Philippines’ status during the American occupation which is still preparing to

accomplish the colossal goal of self-rule. As seen in the current version,

“democracy” was already inserted in order to mirror the fact that the country

is already a separate and independent state observing the principles of

Republicanism and Democracy. In addition, this phrase is accompanied by

the word “posterity” to stress out that the “securing of the blessings of

independence and democracy” extends even up to the eras of the next

generations.

Dannug and Campanilla also emphasized that the government

established must also operate under the following conditions:


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“The national territory comprises the Philippine archipelago, with all the

islands and waters embraced therein, and all other territories over which the

Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and

aerial domains, including its territorial sea, the seabed, the subsoil, the insular

shelves, and other submarine areas. The waters around, between, and

connecting the islands of the archipelago, regardless of their breadth and

dimensions, form part of the internal waters of the Philippines.”


1. Under the Rule of Law. The created “medium of the state” must

follow and be guided by the laws of the land. It bolsters the principle that

“ours is a government of laws and not of men” which means that no person

or institution is above the law.

2. Under the Regime of Truth, Justice, Freedom, Love, Equality

and Peace. “Justice” and “liberty” were enshrined in the 1935 text while

“peace” and “equality” were added in the 1973 Constitution. What is new in

the 1987 document is the inclusion of the words “truth” and “love.” Truth

was incorporated in order to impart to the readers of the Constitution how

dismaying and hateful the acts committed by the previous administration

(Marcos) in plunging the public into the pool of myriad lies. On the other

hand, love symbolized the successful staging of the bloodless revolution

against the iron rule of a dictator.

THE NATIONAL TERRITORY

Territorial Jurisdiction of the Philippines

Territory is one of the four elements of the state and just like the effect

of the decimation of people, destruction of the government, and loss of


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sovereignty, without it, the existence of the state would be in huge peril.

Thus, it is important for a state like the Philippines to define the nature,

components, and scope of its territorial integrity. As expounded by Article 1,

the general scope of the national territory of the Republic of the Philippines

includes:

1. The Philippine Archipelago. It is generally understood that the

Philippine archipelago is the aggregate of the major island groupings namely

Luzon, Visayas, and Mindanao. An archipelago whose etymology originates

from the Greek word pelagos(meaning “sea”)is composed of several islands

or groups of islands surrounded by water. Tracing the national territory

provisions of the 1935 Constitution, the “Philippine archipelago” also covers:

a. The whole Philippine territory ceded by Spain to the United

States of America via the Treaty of Paris which was contracted between the

two parties on the 10th of December, 1898.

b. Sibutu Islands and Cagayan de Sulu which were clarified by

the Treaty of Washington that was signed on November 7, 1900.

c. Turtle and Mangsee Islands through the Convention between

the United States of America and Great Britain whose purpose was to delimit

the boundary between the Philippine archipelago and North Borneo. The said

convention was signed on January 2, 1930.

2. Philippine Waters. “Waters” in this sense applies to all the water

forms found in the entirety of the territory. Due to the nature of the

Philippines as an archipelagic state, the waters embracing its islands


17


(internal waters) are also considered as vital parts of its territorial control.

Moreover, the term includes the territorial sea, contiguous zone, and

Exclusive Economic Zones (EEZ).

3. Other Territories. These “other territories over which the

Philippines exercises sovereignty or jurisdiction” entail the inclusion of the

following:

a. The islands of Batanes as reflected by the clause “all territory

over which the present government of the Philippine Islands exercises

jurisdiction”16 in the 1935 Constitution.

b. Those realms belonging to the Philippines based on historical

right or legal title, such as Sabah in Northern Borneo, enshrined in Article 1

of the 1973 fundamental law.

On a more specific perspective, the territorial jurisdiction of the

Philippines is comprised of three kinds of domain namely:

1. The terrestrial domain corresponds to the Philippine landmass and

land forms making up the whole archipelago such as mountains, hills,

valleys, volcanoes, islands and islets, etc. Furthermore, this domain

embraces the natural and mineral resources found in (floras and faunas) and

below (subsoil) the land surface.

2. On the other side, fluvial domain relates to the national waters

enclosed by the archipelagic baseline and the expanse of water located

outside of the same marker. It also incorporates the seabed, the insular

shelves, and other submarine areas.


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a. National waters include the water forms situated within the

Philippine landmass like lakes, falls, rivers, canals, bays and streams as well

as the internal waters identified by the archipelagic doctrine.

i. Archipelagic Doctrine is a generally accepted principle

in International Law that is being incorporated and can be found in the last

part of the National Territory provision. It states that “the waters around,

between, and connecting the islands of the archipelago, regardless of their

breadth and dimensions, form part of the internal waters of the Philippines.”

This doctrine is usually applicable to those states whose territory is

archipelagic in nature such as the Philippines, Indonesia, and Japan. It

solidifies the fact that in the case of archipelagic states, the islands, even

though separated by bodies of water, will still be treated as a “single integral

geographical and political unit.”17

ii.Straight Baseline Method is the most commonly

employed method in order to determine the territorial baseline. Unlike the

normal baseline method which follows the contours of the landmass, it is

done by determining the outermost points of the archipelago and connecting

such points with straight lines producing an irregular polygon. The waters

within the baselines shall be considered as internal waters; while the breadth

of the territorial sea shall then be measured from the baselines.18

iii. The Constitution treats the waters inside the baseline

as internal waters but International Law through the United Nations


19


Convention on the Law of the Sea (UNCLOS) considers it as archipelagic

waters.

In the eyes of the municipal law, no foreign

vessels can enter the internal waters without the state’s consent.

On the other side of the scale, International Law

recognizes that foreign vessels may navigate the archipelagic waters in the

exercise of involuntary entrance only.

Passage is innocent as long as a ship refrains

from engaging in certain prohibited activities which includes but not limited

to weapons testing, spying, smuggling, serious pollution, fishing, or scientific

research.19

Involuntary Entrance refers to emergency

scenarios wherein a foreign vessel enters territorial waters by reason of lack

of provisions, ship is incapable of continuing the voyage, weather

disturbances, etc.

b. Outside the baseline, one can find the territorial sea, the

contiguous zone, the Exclusive Economic Zone (EEZ), maritime areas, and

the open sea.

i. The dimensions and measurements of the first three are

also determined by the UNCLOS, an international agreement which was

partaken by the Philippines as one of the signatory states.

ii. The territorial sea or waters is about 12 nautical

miles from the baseline. The coastal state exercises full sovereignty and


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jurisdiction over this area; yet foreign ships can enter it on account of the

right of innocent passage and involuntary entrance.

iii.Another 12 nautical miles from the baseline of the

territorial sea is the contiguous zone where territorial jurisdiction of the

coastal state is not absolute. Even though control is limited in this area, the

coastal state is still entitled to “prevent infringement of its customs, fiscal,

immigration or sanitary laws and regulations within its territory or territorial

sea.”20 In addition, hot pursuit can still be conducted in this zone.

iv. Just like the previous zone, the Exclusive Economic

Zone or EEZ (about 200 nautical miles from the archipelagic baseline) is also

not a solid component of the national territory of the Philippines. What is

significant about this area is that the coastal state has the right to explore,

exploit, conserve, and manage the natural and mineral reserves as well as

install structures and conduct marine scientific research within its maritime

dominion.

v. Maritime areas include the seabed, the subsoil

beneath the seabed, and the insular shelves which are predominantly found

within the areas of the territorial seas, contiguous zones and the EEZ.

vi.The high seas also known as international waters or

open seas are definitely beyond the jurisdiction of the coastal state. No

entity owns such and everyone in the family of nations may traverse it.

Accordingly, “like air, it is common to all mankind.”21


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3. Lastly, the aerial domain implies the vertical control of the state

and covers the air space directly above the land and waters comprising the

territory. Basically, the state has exclusive and complete control of this

domain and from time to time, may proclaim fly bans resulting to the

situation where foreign aircrafts may not be allowed to land unless there is a

prior authorization or agreement concluded. Remember that this domain

does not encompass the outer space which, including the moon and other

celestial bodies is not subject to territorial claim by any state. Its nature is

comparable to the open seas whose exploration is completely free.

ENDNOTES


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Chapter 5

Declaration of State Principles and PoliciesBy John Mark H. Nuncio

“The dignity of each human person and the pursuit of the common good are concerns which

ought to shape all economic policies.”

-Pope Francis

Leaning Outcome/s:1. Know the state principles and policies guiding every structure and person within the

Philippine State.2. Distinguish the difference between state principle and state policy.3. Explain the “non-self-executory” nature of state principles and policies.

The concept of the Constitution, the messages contained in the

Preamble and the scope and components of the Philippines’ national territory

was extensively discussed in the previous chapter. These segments are

important because understanding the nature of the constitution makes us

more aware of its supreme power over the Philippine soil; the Preamble

introduces the objectives, aspirations and ideals hallowed in the fundamental

law; and the provision on the National Territory helps us understand and

determine the extent of the state’s control with regards to its territorial

integrity. In this chapter, another important component of the Constitution

will be uncovered which serves as the lighthouse of the governmental vessel.


“The Philippines is a democratic and republican State. Sovereignty resides

in the people and all government authority emanates from them.”23


A Brief Reminder

Article II of the 1987 Philippine Constitution is the elaboration of the

principles and policies which are characterized as:

1. Must be observed and advanced by the different branches of the

government in the conduct of their affairs and the working out of their

respective functions.

2. Serves as a reminder to the government that if it cannot uphold

these principles and policies, the purpose of its creation will be defeated.

3. The present constitution’s declaration is quite similar with the

nature of the former two (1935 and 1973) yet the line of differentiation lies in

the attempt of the 1987 text to distinguish the two terms. Principles are

binding rules which must be observed in the conduct of government whereas

policies are guidelines for the orientation of the state.22

4. It must also be emphasized that these principles and policies are

non-self-executing in the sense that they normally require legislation or

executive action to reinforce its implementation in the entirety of the state.

With reference to Philippine jurisprudence, an exemption was made

concerning Section 16 of Article II which is now considered a provision that

vests a right that can be invoked by the people.

The discussion regarding Article II would be divided into two sets: the

first six subtopics are the state principles while the rest pertains to the

various state policies.

Republicanism and Democracy


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The concept of republicanism and democracy is enshrined in the first

section of Article II which is accompanied by the striking statement

“sovereignty resides in the people and all government authority emanates

from them.”

Republicanism is a representative form of government in which

people elect their representatives whose primary function is to promote the

interests of their respective constituents. Its salient features are

representation and renovation. In the present text, this was paired with the

word “democratic” which mirrors the rebirth of democracy after the ousting

of the Marcos Administration from the reins of governance. Democracy is

basically defined as the government of the people, by the people, and for the

people. There are notable manifestations23 of a republican and democratic

state namely:

1. Principle of ours is a government of laws and not of men

which relates to that specific arrangement where laws are placed at the

highest level of the governmental hierarchy;

2. The rule of majority which implies the importance and gravity of

the voice of the greater number in decision making. This can also be seen in

the electoral arena where the victorious one is determined primarily by

plurality. Plurality does not necessarily mean achieving the conditions of

majority;

3. Accountability of public officials reinforced by the common

notion in public governance known as “public service is a public trust.” These


“The Philippines renounces war as an instrument of national policy, adopts

the generally accepted principles of international law as part of the law of the land

and adheres to the policy of peace, equality, justice, freedom, cooperation, and

amity with all nations.”

25


official are elected by the people; thus, they must bear in mind that their

supreme boss will always by the voting public;

4. The existence of a Bill of Rights in the fundamental law in which

both civil and political rights are enumerated and delimits the government in

the intervention of the exercise of the same; and

5. Observance of the principles of tripartite Separation of

Powers, Checks and Balances, and Blending of Powers. The first

principle relates to the three departments of the government which are

delegated with specific powers of execution, legislation, and interpretation of

the laws. Checks and balances is a corollary principle of the former that

refers to the mechanisms by which each branch can countercheck and

correct the mistakes committed by the other department. Finally, blending of

powers corresponds to the reality that the three branches can share same

functions to foster cooperation rather than complete isolation.

Doctrine of Incorporation

Section 2 is a principle that directly relates to the membership of the

Philippines to the community of nations. Being a part of the international

web, the Philippine state observes the following:

1. Renunciation of war as national policy;

2. Doctrine of incorporation;and


26


3. Harmonious relationship with othernations.

In its, traditional sense, war is a contention between two or more

states, through their armed forces, for the purpose of overpowering each

other and imposing such conditions of peace as the victor pleases.24 In the

past centuries, war has been an instrument to appease conflicts between

states and nations in the belief that in the conclusion of war, a period of

peace would be established as the triumphant and losing party are

identified. In short, it is viewed as a necessity in solving international

disputes. But in the contemporary times, as proven by historical experience,

war is already contemplated as an illegitimate and detestable act

condemned by the family of nations due to the fact that it can cause large

scale destruction not just to the physical structures of the states but to their

human resources as well. Inspired by the Kellogg-Briand Pact, the 1935

Constitution first adopted such policy which was carried over to the 1973 and

was continued in the present text. Furthermore, Article 2 of the Charter of

the United Nations provides the prohibition on the usage of force and threat

“against the territorial integrity or political independence of the state.”25 It

should be noted that there are two general types of war.

1. War of aggression sometimes called offensive war is when one

state, in its own priorities and interests such as territorial expansion, attacks

and subjugates another state. This type of war can be waged in the light of

initiation or provocation. International law views a war of aggression as

illegal and contrary to the utmost priority of establishing peace and friendlier


27


relations among member states of the international community. War of

aggression is the one renounced by our Constitution.

2. Defensive war is launching a counter-offensive attack against an

aggressive state in order to preserve the existence of the state by invoking

its right of self-defense. A defensive war is justifiable In the eyes of

international law since it is based on the Just War tradition which expresses

that “the justice of war are commonly held to be: having just cause, being a

last resort, being declared by a proper authority, possessing right intention,

having a reasonable chance of success, and the end being proportional to

the means used.”26 The present Philippine Constitution encourages this war

as a means of maintaining the existence and integrity of the state.

The phrase “adopts the generally accepted principles of international

law as part of the law of the land” is a reflection of the Doctrine of

Incorporation. Since international law cultivates the amity within the

international arena, it is a well-accepted fact that its tenets do not

undermine the well-being and rights of the member state. Thus, as a “good

law”, it is automatically fused in the body of the laws of the land. Through

this doctrine, local tribunals such as Philippine courts of justice have applied

the principles of international law in a number of significant decisions over

outstanding cases. But it must be remembered that the relationship between

international and municipal laws is not always pacified because there are

also times of conflict involving actual controversies that must be settled. In

case of friction, the state must first extinguish the choice of giving effect to


"Civilian authority is, at all times, supreme over the military. The Armed

Forces of the Philippines is the protector of the protector of the people and the

state. Its goal is to secure the sovereignty of the state and the integrity of the

national territory."

28


both bodies of rules. But if the worst case scenario happens when one must

choose between the two sides of the coin, it is understood that since

municipal law is the fundamental law of the land, it must be upheld over

international law. This situation merely proves that the latter has no “teeth”

when interests of the concerned state are compromised.

Civilian Supremacy

Section 3 reflects the intention of the framers to emphasize that

thwarted acts during the authoritarian rule of the Marcos Administration

should not be repeated by clearly wording the rationale of creating an armed

forces of the Philippines. There are three underlying ideas in this provision:

1. The first sentence where the phrase "at all times" can be found only

stresses the fact that being a democratic state in which the people is the

prime source of all sovereignty, militaty authority will always yield to the

civilian power. Unlike authoritarian governments that are characterized by

the iron rule of the militia, the Philippine state only employs military power to

overrule the civilian supremacy in specific times "when civilian auhority has

lost its legitimacy." (Bernas, p. 65)

2. The second statement whose core thesis lies on the phrase

"protector of the people and the state" that entails the optimum role of the

armed forces in advancing the general well-being of both the populace and


"The prime duty of the government is to serve and protect the people. The

government may call upon the people to defend the State and, in the fulfillment

thereof, all citizens may be required, under conditions provided by law, to render

personal military or civil service."

29


the state and in the avoidance of committing abuses regarding the exercise

of military power.

3. The last statement of the provision corresponds to the necessity of

creating armed forces for the "guardianship of state sovereignty" (Bernas,

65) and the protection and defense of the territorial jurisdiction of the

Philippines in cases of invasion.

Moreover, civilian supremacy is demonstrated by the situation wherein

the President, a civilian individual, is granted by the Constitution with the

necessary military power as the Commander in Chief of the Armed Forces of

the Philippines.

Duty to Defend the State

Section 4 deals on preserving the existence of the state which should

be a matter of cooperation between the government and the governed most

especially during period of exigencies. The present provision is somewhat

different from the 1973 text since the latter implies that the duty of

defending the state always rests on the government and the people. Due to

the regretful experiences from the Martial Law Era wherein national security

measures were prioritized rather than the sentiments of the people, the

framers reconstructed it in such a way as to elevate the primary duty of the


"The maintenance of peace and order, the protection of life, liberty, and

property, and the promotion of the general welfare are essential for the enjoyment

by all the people of the blessings of democracy."

30


government to serve the multitudes within its territorial jurisdiction. But it

further elaborates that at certain points in time, specifically national

emergencies such as the decimation of the armed forces; it may tap the

strengths and capability of the people for the defense of the state. Hence,

citizens would be mandated to render personal military or civil services.

1. Personal means that in rendering such services, it must be done

through actual actions and should not employ any other mediums like

sending representatives to do the task. This precludes the hiring by the rich

of mercenariesor professional soldiers to take their place in the defense of

the State.27

2. Military services refer to functions which are combatant in nature

and require physical appearance in the field and the taking of life using

arms.

3. Civil services cover non-combatant responsibilities such as medical

assistance, preparation of arms, tasks germane to the headquarters,

planning, etc.

The Blessings of Democracy

Section 5 is a principle that relates to the things that must be satisfied

by the state and the government via the three branches namely the

executive, legislative and the judiciary. As long as these identified items are


"The Separation of Church and State shall be inviolable."

31


not realized, it could be considered that the fullness of democracy is still to

be grasped. In a democratic state like ours, importance is given in the

attainment of peace and order so that the inherent human rights to life,

liberty and property would be safeguarded from abuse and guided in terms

of exercising them. In addition, the advancement of the general welfare is

highlighted by this section which pertains not just to the welfare of the

majority but to the welfare of the state as a whole.

The Wall of Separation

Section 6 is the last state principle that speaks of the formation of a

wall that evidently delineates the borders between governmental or secular

matters from the religious or ecclesiastical domain, vice versa. The wall itself

is not promoting complete isolation or hostility for the two parties.

Accordingly, the state recognizes still recognizes the church and religion as

tools to uplift the well-being of the people. 28Human beings couldn’t be

separated from God and the state being a creation of man, would also be

inseparable from Him. The Separation of Church and State is reinforced by

the following constitutional provisions:

1. The Freedom of Religion clause found in Article III (Bill of Rights),

Sec. 5;

2. Prohibition on the registration of religious sects as political parties

enshrined in Article IX-C (Commission on Elections), Sec. 2, Par. 5;


32


3. Article VI (Legislative Department), Sec. 5, Par. 2, which states that

the religious sector has no sectoral representation in congress (party-list

scheme); and

4. Prohibition on the release of funds or appropriation that would be

dedicated for sectarian benefit courtesy of Article VI , Sec. 29, Par. 2.

Conversely, there are some notable provisions in the fundamental law

that provides for exemptions from this principle:

1. Churches, parsonages, and other religious structures, used for

religious purposes shall be exempt from taxation specifically real estate tax

(Article VI, Sec. 28, Par. 3);

2. Appropriation for sectarian benefit in light of the cases of priests

assigned to the armed forces, penal institutions, and other government

operated establishments devoted for social welfare (Article VI, Sec. 29, Par.

2);

3. Optional instruction of courses or subjects related to religion in

public elementary and high school education institutions as a respect for

academic freedom (Article XIV (Education), Sec. 3, Par. 3); and

4. Educational institutions must be owned by Filipinos but those which

were established by religious entities are exempted from this rule (Article

XIV, Sec. 4, Par. 2).


33

"The State shall pursue an independent foreign policy. In its relations with

other states, the paramount consideration shall be national sovereignty, territorial

integrity, national interest, and the right to self-determination."

“The Philippines, consistent with the national interest, adopts and pursues a

policy of freedom from nuclear weapons in its territory.”


Independent Foreign Policy

Section 7 reiterates the genuine independence that the Philippines

has reached after being under the control of several foreign powers like

Spain, United States of America and Japan in the past. This provision also

relates to the fact that the Constitution reminds the state and the

government operating within in to maintain its political independence and

should evade from being controlled by other states when it comes to its

foreign policy stance. Self-rule will always be upheld by the Philippines as it

establishes relations with other states in the international community and

priority should be given in the protection of its national sovereignty and

territorial integrity.

Nuclear-Free Philippines

Since, our country is a part of the community of nations which

advocates for world peace and international harmony and despises the

utilization of nuclear warfare due to its destructive nature, the Philippines

declares itself as nuclear-free state. But this declaration is not absolute since

Section 8 is a janus-faced provision in the sense that it also encourages the


34

“The State shall promote a just and dynamic social order that will ensure

the prosperity and independence of the nation and free the people from poverty

through policies that provide adequate social services, promote full employment,

a rising standard of living, and an improved quality of life for all.”


utilization of such if it’s consistent with the national interest. Hence, it’s not

part of our national objective to be a nuclear armed state but if future

scenarios permit us to develop our nuclear capability and program; we can

do it in pursuit of the right to self-existence.

Just and Dynamic Social Order

A just and dynamic social order is a common goal of every state

around the globe mainly because it’s a determining factor whether a state is

truly independent or not. The forging of the state through peaceful or violent

means is not the terminal point since the individuals who created it must

sustain the power fueling such creation. If a state cannot provide for the

needs and wants of the population, the latter has the right to hate it. Thus,

this provision pertains to the duty of the state and the government to

mitigate poverty and other societal problems which still imprisons the

Filipinos even until today. Strengthening the nationalism that molded the

state is the key towards realizing real freedom.

Social Justice

Social justice is neither communism nor despotism, nor atomism,

nor anarchy, but the humanization of laws and the equalization of social and

economic forces by the State so that justice in its rational and objectively


35


secular may at least be approximated.29 The concept of social justice is

based on the very essence of justice which is described as the giving of what

is due to the person. The policy on social justice strengthens the belief that

inequalities lurking in society must be lessened in order to grasp the goal of

justice which every citizen in a democratic state should enjoy. What is

unique about the provision in the present text is that it does not only cover

economic inequalities but also speaks of political and cultural ones.


36


ENDNOTES


Enumeration of Rights:

1. Due Process2. Equal Protection

37


Chapter 6

The Bill of RightsBy Mery Cericel A. Omongos

“Human rights are not only violated by terrorism, repression or assassination, but also by

unfair economic structures that creates huge inequalities.”

-Pope Francis

Leaning Outcome/s:1. Understand fully the basic principles of Bill of Rights2. Differentiate between the different criminal procedures before, during and after trial.

The Three Generations of Human Rights:

1. 1 st Generation Rights

a. The first generation which is the “civil-

political rights” primarily deals with

individual liberty and how to protect

the individuals from the state. It also promotes norms pertaining

to physical and civil security like no torture, slavery, inhuman

punishments, etc. Civil-political rights have been legitimated and

given status in international law by Articles 3 to 21 of the

Universal Declaration of Human Rights and the 1966

International Covenant on Civil and Political Rights. 30

2. 2 nd Generation Rights

a. This generation relates to the “socio-economic” which refers to

the government intervention which constitute duties within

them. It guarantees equal conditions and treatment.31 It puts


38


emphasis on the provision of goods meeting social and

economic needs like shelter, healthcare, education nutrition,

work and fair wages, and also living standard.

3. 3 rd Generation Rights

a. These rights are those which go beyond the mere civil, social and

political rights. These rights are those which can be enjoyed

collectively. It also refers to the rights of people and groups held

against their respective states align with the final tenet of

“fraternity.”32

The Bill of Rights is a statement of the basic rights, liberties and

privileges of the people which the Constitution is designed to protect against

encroachments by the government.

Section 1: No person shall be deprived of life, liberty and property without

due process of law, nor shall any person be denied the equal protection of

the laws.

There are two aspects of due process. First is the procedural due

process and second is the substantive due process. Procedural

due process refers to the procedure, method, or manner by

which the law is enforced. The requisites are the following:

1. There must be a competent court to hear and decide the

matter before it;


39


2. Jurisdiction must be lawfully acquired over the person of

the defendant or over the property which is the subject of

the proceedings;

3. That the defendant must be given an opportunity to be

heard; and

4. Judgment must be rendered upon lawful hearing.

Substantive due process refers to the intrinsic validity of law that

interferes with the rights of a person to his life, liberty, or property.

Classifications of Constitutional Rights

1. Political Rights – it refers to the rights of the citizens to participate to

participate, directly or indirectly, in the administration of the

government. (Right to Vote and be voted).

2. Civil Rights – this right refers to which the law enforces to private

individuals for the purpose of securing them of their means of

happiness. 33 A civil right is a right or privilege that can be enforced by

an individual. These rights include freedom of speech, press, and

assembly; the right to vote; freedom from involuntary servitude; and

the right to equality in public places.34

3. Social and Economic Rights - it refers to those rights which are intended

to ensure the well-being and economic security of the individual.

4. Rights of the accused - it refers to those rights intended for the

protection of a person accused of any crime. These rights include the


40


right to be heard, rights against self-incrimination, right to legal

assistance, etc.

Definitions:

Person- it embraces both natural and human being as well as legal,

juridical or artificial being or one created by the operation of law such

as partnership or corporation.

Life- implies more than mere animal existence. The inhibition against

it deprivation extends to all those limbs and faculties to which the life

is enjoyed (Justice Field, 1877).

Liberty- right to freedom of movement. The right of the citizen to be

free from mere physical restraint. The right to be free, to live and work

where he wills to earn his livelihood by any lawful calling. However

these rights are subject to restrictions and limitations as may be

provided for by law.

Property – anything which is or may be the object of appropriation. It

includes the right to acquire, own, hold, use, enjoy, manage, pledge,

mortgage, sell, or otherwise transfer it or even destroy it subject to the

right of the State and other persons.

There is deprivation of life when one loss any part of his body such

as arm, leg, nose, brain, ear and any other parts of the body both external

and internal. There is deprivation of liberty when a person was imprisoned

or detained without just cause. There is deprivation of property when one


41


was deprived of the used of his/her own property by means of destroying

his/her enjoyment of using those properties.

Equal Protection of the law simply means that mean and women,

regardless of his/her status should be treated alike before the law. It

guaranties equality, not identity of rights. (UP law, bar op review)

Section 2: The right of the people to secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever

nature and for any purpose shall be inviolable, and no search or warrant of

arrest shall issue except upon probable cause to be determined personally

by the judge after examination under oath or affirmation of the complainant

and the witnesses he may produce, and particularly describing the place to

be searched and the person or things to be seized.

Related Rights:

Section11: Free access to the courts and quasi-judicial bodies and adequate legal

assistance shall not be denied to any person by reason of poverty.

Section 12: Right of a Person under investigation

Section 13: All persons, except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall, before conviction, be

bailable by sufficient sureties, or be released on recognizance as may be provided

by law. The right to bail shall not be impaired even when the privilege of the writ of

habeas corpus is suspended. Excessive bail shall not be allowed.

Section 14: Rights of a Person Criminally Accused



1. Due Process2. Equal Protection3. Rights of the

Accused

42


Section 19: (1) Excessive fines shall not be

imposed, nor cruel, degrading or inhuman

punishment inflicted. Neither shall death penalty be

imposed, unless, for compelling reasons involving

heinous crimes, the congress hereafter provides for it. Any death penalty

already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading

punishment against any prisoner or detainee of the use of substandard or

inadequate penal facilities

Section 21: No person shall be twice put in Jeopardy of punishment for the same

offense. If an act is punished by law and an ordinance, conviction or acquittal under

either shall constitute a bar to another prosecution for the same act.

Section 22: No ex post facto law or bill of attainder shall be enacted

When is search and seizure reasonable?

All searches and seizures which are illegal are deemed to be

unreasonable while lawful searches and seizures are reasonable.

Search Warrant – is an order in writing, issued in the name of the People of

the Philippines, signed by the judge and directed to a peace officer,

commanding him to search for personal property and bring it before the

court.


43


Warrant of arrest- is a writ authorizing an officer to arrest or take a person

into custody in order that he may be bound to answer for the commission of

an offense.

Requisites of a valid warrant:

1. It must be issued upon probable cause;

2. Probable cause must be determined by the judge himself

3. Warrant must be issued only after examinations under oath of

affirmation of the complainant and his witnesses; and

4. Warrant must particularly describe the place to be searched and

the person or things to be seized.

Probable cause- it refers to the antecedent facts and circumstances as will

induce a cautious man to rely upon them in pursuance thereof. It can be

determined by the judged only.

Valid arrest without warrant:

1. When at his presence, the person to be arrested has committed, is

actually committing, or is about to commit a crime.

2. When an offense has in fact just been committed and he has personal

knowledge of the facts indicating that the person to be arrested has

committed it; and

3. When the person to be arrested is a prisoner who has escaped from a

penal establishment or place where he is serving final judgment or


44


temporarily confined while his case is pending, or has escaped while

being transferred from one confinement to another.

Search and seizures valid without warrant

1. In case of war or national emergency

2. If done in the valid exercise of the police power of the state

3. Routinary searches made at the border or at ports of entry in the

interest of national security and for the proper enforcement of customs

and immigration laws;

4. Where there is consent or waives of the right against unreasonable

search and seizures;

5. If what is searched and seized is a contraband or article prohibited by

law;

6. If the search and seizure is incidental to a lawful arrest.

Section 11:

The provision speaks that all persons, regardless of social status are entitled

to equal protection of the laws. In criminal cases, the court is mandated to

appoint counsel de officio if the accused cannot afford the services of a

counsel de parte.

1. Counsel de Officio- lawyer free of charge

2. Counsel de parte- private lawyer not free of charge

Section 12.(a) Any person under investigation for the commission of an

offense shall have the right to be informed of his right to remain silent, and


45


to have a competent and independent counsel preferably of his own choice.

These rights cannot be waved except in writing with the presence of counsel.

(b) No torture, force, violence, threat, intimidation, or any other means

which vitiate the free will shall be used against him. Secret detention places,

solitary, incommunicado, or other similar forms of detention are prohibited.

(c) any confession or admission obtained in violation of this or section

17 shall be inadmissible in evidence against him.

(d) the law shall provide for penal and civil sanctions for violations of

this section as well as compensation to the rehabilitation of victims of torture

or similar practices, and their families.

When do rights begin to be available?

It begins when the person is already in custody and during the

custodial investigation initiated by the law enforcing officers.

When the right does ends?

The right ends at the time of the filing of criminal case in the court.

How can these rights be waived?

The rights can be waved in writing with the presence of counsel.

Effect of the admission or confession obtained in violation of section

12:

Any admission or confession obtained in violation of the preceding

section shall be inadmissible. Justice Frankfurther, in US vs.Nardone

once said, “Once the primary source is shown to have been unlawfully

obtained, any secondary or derivative evidence are also inadmissible”.


46


This is not because such confession are likely to be true but rather the

act itself is more on accusing rather that inquiring.

Sanctions for violation:

Penal and civil sanctions for violations of this section as well as

compensation to the rehabilitation of victims of torture or similar

practices, and their families shall be provided for by the law.

Section 13: The Right to Bail

Bail- is a security given for a temporary released of a person who is in

the custody of law with conditions specified in accordance with law.

Reclusion perpetua- entails imprisonment for at least thirty [30]

years after which the convict becomes eligible for pardon.35

What is the purpose of the Bail?

It is to relieve an accused from imprisonment until his final conviction

and to secure his appearance in court.

When it is available?

Before final conviction of the Regional Trial Court (RTC). However, the

court (RTC) after conviction may, in exercise of its discretion, grant the

bail to the accused where the life or health of the convict may be

endangered by continued confinement pending appeal.

When not available?


47


1. The bail is not available to those accused who committed an offense

which is punishable by reclusion perpetua when the evidence of guilt is

strong;

2. After the judgment has become final; and

3. After the accused has commenced to serve his sentence.

Section 14:

Right to due process of law before conviction

The due process of law requires that the accused must be tried by an

impartial court and competent court which has jurisdiction over the

accused. Then there must be hearings and the accused must be

allowed the use of all legal means to defend himself.

Right to be presumed innocent

In all criminal prosecutions, the accused must be presumed innocent

until the contrary is proved. The accused need not to prove that he is

innocent of the crime he is charged but the burden lies to whom who

alleges who must prove that the accused is guilty beyond reasonable

doubt.

Right to be heard

The accused shall enjoy the right to be heard by himself and counsel.

Depriving him of such right is denial of due process.

Right to be informed of the nature and cause of accusation

It is the right of the accused to be informed of the nature and the

cause of the crime filed against him for the accused to know for what


48


cause and of what nature he is being charged. This is done during the

arraignment in an open court by the judge and by giving him a copy of

the complaint or information with the list of witnesses.

Right to have a speedy, impartial and public trial

The accused should be given a trial which is free from unreasonable

delays which should be conducted by a judge who is absolutely neutral

and no bias.

Public Trial refers to a trial which is open to the public.

Right to confrontation of witnesses

The accused has the right to meet the witness face to face for him to

inspect their credibility and the accuracy of their testimonies.

Right to compel attendance of witnesses

Under the Constitution, the accused is entitled to have subpoena

testificandum and subpoena ducestecumfor the purpose of compelling

the attendance of the witnesses for the former and the production of

evidences for the latter.

Section 15: The privilege of the writ of habeas corpus shall not be

suspended except in cases of invasion or rebellion when public safety

requires it.

Writ of Habeas Corpus- is an order in writing issued by a court of

competent jurisdiction, addressed to the person detaining another, directing

him to bring the person being detained at a designated time and place, and


49


to show sufficient cause of the detention. Thus, the primary function of the

writ is to release a person from unlawful detention.

Suspension of the writ of Habeas Corpus:

1. In case of invasion;

2. Rebellion when public safety requires it.

Section 16: All persons shall have the right to speedy disposition of their

cases before all judicial, quasi-judicial, or administrative bodies.

The Constitution guarantees the right for every person to have a

speedy trial.

Section 17: No person shall be compelled to witness against himself.

1. Any confession or admission obtained in violation section 17 hereof

shall be inadmissible in evidence against him.36

Privilege against self-incrimination:

1. This is to protect the accused form giving testimonies which could be

used against him in any criminal proceedings. It covers only

testimonial incrimination obtained compulsorily.

2. The privilege is based on the constitutional ruling that no person shall

be compelled to witness against himself.

3. The privilege covers handwriting in connection with prosecution for

falsification, for this involves the use of the mental process37

(Exception: Physical or mechanical act. In the following cases, the

accused can be compelled to produce the following by which the result

can be used as evidence against him:


50


1. Accused is fingerprinted

2. Accused is compelled to be measured or photographed or to

remove his garments or shoes

3. Footprint

4. Discharge a morphine from his mouth

5. A woman accused of adultery is compelled to have her body

examined by physicians to determine if she is pregnant.

Section 21:

Double Jeopardy means putting person twice in danger of being

prosecuted again for the same offense.

The Right against double jeopardy prohibits the prosecution again if any

person for a crime of which he has previously been acquitted or convicted or

the case has been dismissed or otherwise terminated without his express

consent, the accuses cannot again be charged with the same offense.

Requisites of Double Jeopardy:

The accused is placed in double jeopardy if the following conditions are

present:

1. There must be a valid complaint or information;

2. Filed before a competent court with jurisdiction over the case;

3. To which the defendant had pleaded; and

4. Of which he had been previously acquitted or convicted or which was

dismissed or otherwise terminated without his express consent.38


51


Section 22:

Ex post Facto law pertains to a law which takes effect retroactively and the

one that would make a previous act criminal although it was not at the time

it was committed.

Characteristics of an Ex post Facto law:

1. The law must refer to criminal matters;

2. Retroactive in its application;

3. To the prejudice of the accused.

A law is ex post facto if:

1. A law makes an act criminal and punishable although it was not at

the time of the commission;

2. A law which aggravates a crime, or makes it greater than it was

when committed;

3. A law which imposes heavier or greater punishment when it was

not at the time it was committed;

4. A law which alters the rules or evidence and receives less or

different testimony than the law required at the time it was

committed in order to convict the offender; and

5. A law which deprives the accused of some lawful protection to

which he has become entitled, such as amnesty granted by a

previous law.

Bill of Attainder refers to a legislative act which inflicts punishment of a

crime without the benefit of trial.


52


Section 3: (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or

orders requires otherwise as prescribed by law.

(2). any evidence obtained in violation of this or the preceding article

shall be inadmissible for any purpose of the proceeding.

General rule:

That the person may communicate and corresponds with each other

without the state interfering them. Opening of mails, emails, text

messages, tapping of telephone calls are clear violation of the person’s

right to privacy of communication and correspondence.

Exception to the general rule:

1. Upon lawful order of the court.

2. When public safety or order requires it as prescribed by law.

Effect of evidence illegally obtained:

Any evidence obtained in violation of the right of privacy of

communication and correspondence is inadmissible for any purpose in

any proceedings.




Accused4. Freedom of

Expression

53


Section 4.No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people peaceably to assemble

and petition the government for redress

grievances.

Related Rights:

Section 7: Right of people to information on

matters of public concern shall be recognized.

Section 8: The right of the people, including those employed in the public

and private sectors. To form unions, associations, or societies for purposes

not contrary to law shall not be abridged.

Scope of Protected Freedom:

As provided in the Constitution, the protected freedom includes freedom of

speech, freedom of the press, right of assembly and petition, and right to

form associations or societies not contrary to law.

Speech includes any form of oral utterances. Expression covers physical

gestures and bodily movements and press covers any kind of publications

like magazine, newspaper, books, periodicals, etc.


54


Limitations:

1. The Freedom of Expression is not absolute. It should be exercised

within the bounds of laws enacted for the promotion of social interest

and the protection of other equally important individual rights.

2. Laws against obscenity, libel, slander, right to privacy of an individual,

right of the government to be protected from any seditious attacks,

fighting words.

3. In exercise of police power of the state to promote or protect the public

welfare.

Section 7: Right to information

Scope: access to the following records:

1. Official records

2. Public documents and papers pertaining to official act,

transactions or decisions

Limitations:

1. As may be provided by law. (Confidential records involving the security

of the State)

Section 8: Right to association

This is to enable individuals to engage in activities pursuing common

objectives which are permissible under conditions set by law. However, this



1. Due Process2. Equal

Protection3. Rights of the


Expression5. Freedom of

Religion

55


right is subject to limitations under the police power of the state as long as it

is not contrary to law.

Section 5.No law shall be made respecting an

establishment of religion, or prohibiting the free

exercise thereof. The free exercise and enjoyment of

religious profession and worship, without

discrimination or preference, shall forever be allowed.

No religious test shall be required for the exercise of

civil or political rights.

Religious Freedom pertains to the right of the individual to worship God

according to the dictate of his/her conscience or not to worship Him at all.

Rooted in the separation of Church and State (as reflected in the

Constitution), the clause prohibits excessive government entanglement with,

endorsement or disapproval of religion.39

Freedom of Religion has the following Constitutional Guarantee:

No law shall be made respecting an establishment of religion. Therefore, it

would be unconstitutional to enact a law:

1. Establishing a State Religion

2. Setting up a church of the State

3. Prohibiting the establishment of a Church

4. Punishing a person by reason of religious belief

5. Prohibiting the exercise of religion






Religion6. Liberty of Abode

and Travel

56


The free exercise and enjoyment of religious beliefs and worship shall

forever be allowed. No law shall be made prohibiting the free exercise

thereof.

Elements of Religious Freedom:

1. Freedom to belief which is absolute.

2. Freedom to act on one’s belief is not absolute subject to the

regulation of the State.

Section 6.The liberty of abode and of changing the same within the limits

prescribed by law shall not be impaired except upon lawful order of the

court. Neither shall the right to travel be impaired except in the interest of

national security, public safety, or public health, as may be provided by law.

Article 13 (2) of the Universal Declaration of Human

Rights emphasized that “everyone has the right to

leave any country, including one’s own and return

to that country”. Thus, Liberty of travel is the right

of a person to travel or go to places where he wills

to go to.

Limitations:

1. Upon lawful order of the Courts

2. In the interest of national security, public safety, or public health, as

may be provided for by law.





57


Section 9: Private property shall not be taken for public use without just

compensation

Section 9 speaks of the Power of Eminent Domain being one of the inherent

powers of the State which includes the following requisites namely:

1. Taking of private property

2. For public use

3. With just compensation

4. Upon observance of due process

There is taking when the expropriator enters a private property thus

depriving the owner of his beneficial enjoyment of his property.40 There is

public use when the taking is made for public purpose, welfare and public

benefit. Whatever may be beneficially employed for the general welfare

satisfies the requirement of public use.41 There is just compensation when

there is fair market value of the private property taken by the government.

Though the non-payment of just compensation does not give the owners the

right to recover, however, the private owners can demand the government

for the payment of the fair market value of the property.42

There is observance of due process in the taking of private property when

the owner of the private property was given of his right to be heard on the

issues whether the property to be taken will be used for public and whether

he/she will be paid on a just compensation.

Section 10: No law shall be made impairing the obligation of contract.










and Travel7. Non-impairment

of contract8. Freedom from

Involuntary Servitude

58


1. The Civil code defines contract as “a meeting of minds between two

persons whereby one binds himself, with respect to the other, to give

something or to render some service”. (Article 1305)

2. The purpose of this article is to safeguard the integrity of valid

contractual agreements against the unwanted interference of the

State.

3. There is impairment when a party is deprived of the benefits of the

contract; when a stature alters the terms and conditions of the

contracts by adding new duties, terms or lessening the burdens of

one’s party.

4. However, notwithstanding with its validity, a contract may be impaired

when a law passed is a proper exercise of police power, it will prevail

over contract. This is because public welfare is always superior to

private rights.43

Section 18: (1) No person shall be detained solely by reason of his political

beliefs and aspirations.

(2) No involuntary servitude in any form shall

exist except as a punishment for a crime whereof

the party shall have been duly convicted.

It is true that no one should be detained solely by

reason of political beliefs for belief only exists only

in mind and it is guaranteed in the Constitution

that the Freedom to belief if absolute. However,


59


limitation comes in if the belief will be transmitted into actualization that

violates existing laws.

Involuntary Servitude refers to the condition of one who is compelled by

force, coercion, or imprisonment, and against his will for another, whether he

is paid or not.44 The concept includes the following:

1. Slavery- the state of entire subjection of one person the will of

another.

2. Peonage- it is a system by which a debtor who cannot pay their

debts are forced are forced to render personal services to their

creditors in payment of their debts.

Exceptions of Involuntary servitude:

1. When it is a punishment for a crime whereof the party shall have

been duly convicted.

2. When citizens are required, under conditions provided for by law,

to render personal military or civil service.45

Penalties or punishment prohibited by the Constitution:

1. Imposition of excessive fines

2. Infliction of cruel, degrading or inhuman punishment

3. Imposition of death penalty except in cases when congress, for

compelling reasons involving heinous crimes provided for it.

A fine is excessive when it exceeds that limit prescribed by law.

A punishment is cruel, degrading and inhuman when it involves a

deliberate design to increase the suffering of the prisoner.46 That







and Travel7. Non-impairment

of contract8. Freedom from

Involuntary Servitude

9. Non-imprisonment for non-payment of debt

60


when the punishment brings dishonor or humiliation or

disrespect to the victims.

Heinous Crime refers to crimes which offenses involved great injury or

offensive or shocking, such as child abuse, rape, murder, treason, robbery

with homicide, parricide etc.

Section 20: No person shall be imprisoned of debt or non-payment of poll

tax.

Debt

1. Refers to any civil obligation arising from

contract expressed or implied.47 It also

includes even debts obtained through fraud

since no distinction is made in the

Constitution (Ganaway v. Quillen)48

2. The Constitution provides that no person

shall be imprisoned for non-payment of

debt, thus, a person who contracted a loan

should not be imprisoned for non-payment

thereof and the proper remedy should not

be criminal prosecution but a civil action for

the recovery thereof.

Poll Tax (residence tax)


61


Defined as specific fixed sum levied upon every person belonging to a

certain class without regard to his property or occupation.


62


ENDNOTES


1Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), p. 1.2Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), p. 3.3 Justice Miller’s definition, as cited in Ricardo S. Lazo, 2009, Introduction to Political

Science, (Manila: Rex Book Store), p. 56.411 Am. Jur. 606, as cited in Antonio B. Nachura, 2006, Outline Reviewer in Political Law,

(Quezon City: VJ Graphics Art Inc.), p. 2.5 Roman R. Dannug and Marlo B. Campanilla, 2004, Politics, Governance and Government

with Philippine Constitution, (Quezon City: C & E Publishing), p. 249.6 As reflected in the landmark case of Marcos vs. Manglapus (177 SCRA 669).7Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), pp. 4-5.8 Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), p. 6.9Corazon Aquino, Restoring Democracy by the Ways of Democracy,

<http://www.coryaquino.ph/index.php/works/article/353b89aa-f2dc-11df-b3cf-001617d76479>,

accessed 16 May, 2014. 10 Joaquin G. Bernas, SJ, 2009, The Constitution of the Republic of the Philippines: A

Commentary, (Quezon City: Rex Printing Company, Inc.), p. 4.11 As cited in Roman R. Dannug and Marlo B. Campanilla, 2004, Politics, Governance and

Government with Philippine Constitution, (Quezon City: C & E Publishing), p. 265.12 Joaquin G. Bernas, SJ, 2009, The Constitution of the Republic of the Philippines: A

Commentary, (Quezon City: Rex Printing Company, Inc.), p. 2.13 Joaquin G. Bernas, SJ, 2009, The Constitution of the Republic of the Philippines: A

Commentary, (Quezon City: Rex Printing Company, Inc.), p. 3.14 Joaquin G. Bernas, SJ, 2009, The Constitution of the Republic of the Philippines: A

Commentary, (Quezon City: Rex Printing Company, Inc.), p. 3.15 As cited in Roman R. Dannug and Marlo B. Campanilla, 2004, Politics, Governance and

Government with Philippine Constitution, (Quezon City: C & E Publishing), p. 269.16Article 1 (National Territory), Section 1 of the 1935 Philippine Constitution.17Aruego, 1975, as cited in Roman R. Dannug and Marlo B. Campanilla, 2004, Politics,

Governance and Government with Philippine Constitution, (Quezon City: C & E

Publishing), p. 169.18 Antonio B. Nachura, 2006, Outline Reviewer in Political Law, (Quezon City: VJ Graphics

Art Inc.), p. 27.19 Robin R. Churchill, Law of the Sea, updated 23 September, 2013,

<http://www.britannica.com/EBchecked/topic/530433/Law-of-the-Sea#ref913545>, accessed

15 May, 2014.20Section 4 (Contiguous Zone), Article 33. UNCLOS Part II

<http://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm>, accessed 2

May, 2014.21Coquia and Santiago, as cited in Roman R. Dannug and Marlo B. Campanilla, 2004, Politics,

Governance and Government with Philippine Constitution, (Quezon City: C & E

Publishing), p. 174.

http://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm

http://www.britannica.com/EBchecked/topic/530433/Law-of-the-Sea#ref913545

22 Joaquin G. Bernas, SJ, 2009, The Constitution of the Republic of the Philippines: A

Commentary, (Quezon City: Rex Printing Company, Inc.), p. 37.23 Antonio B. Nachura, 2006, Outline Reviewer in Political Law, (Quezon City: VJ Graphics

Art Inc.), p. 64.24 Roman R. Dannug and Marlo B. Campanilla, 2004, Politics, Governance and Government

with Philippine Constitution, (Quezon City: C & E Publishing), p. 367.25 Antonio B. Nachura, 2006, Outline Reviewer in Political Law, (Quezon City: VJ Graphics

Art Inc.), p. 71.26 Alexander Moselely, Just War Theory,

<http://www.iep.utm.edu/justwar/>, accessed 12 May, 2014.27Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), p. 56.28 Roman R. Dannug and Marlo B. Campanilla, 2004, Politics, Governance and Government

with Philippine Constitution, (Quezon City: C & E Publishing), p. 383.29Calalang vs. Williams, 70 Phil. 726, as cited in Isagani Cruz, 2007, Constitutional Law, (Quezon City: Central Book Supply, Inc.), p. 66.30http://www.globalization101.org/three-generations-of-rights/ 31http://www.globalization101.org/three-generations-of-rights/ 32http://www.globalization101.org/three-generations-of-rights/ 33http://philgovernment.blogspot.com/2009/12/classification-of-constitutional-rights.html 34http://civilrights.uslegal.com/#sthash.iMTZQIP0.dpuf

35People vs. Baguio, April 30, 1991, 196 SCRA 459

36 Art. III, Sec 3 (3), 1987 Constitution.

37Beltran v. Samson, 53Phil 570; Bermudez v. Castillo, 64 Phil. 485 (1937)

38People v. Ylagan, supra; People v. Obsania, infra; People v. City Courts of Silay, infra.

39 Victoriano vs Elizalde Rope Workers Union, 59 SCRA 54, 1974

40 Republic vs. Castelvi

41 Heirs JuanchoArdona v. Reyes, 123 SCRA 220

42 (Republic v. CA, G.R. 146587)

43 PNB v. Remigio, G.R. 78508, March 21, 199544 State vs. West, 42 Minn. 147;43 N.W. 84545Isagani Cruz, Constitutional Law, 2007 edition, Central law Bookstore. Pp 280-28146Isagani Cruz, Constitutional Law, 2007 edition, Central law Bookstore. p 35247Isagani Cruz, Constitutional Law, 2007 edition, Central law Bookstore. p 2764842 Phil. 805.

http://civilrights.uslegal.com/#sthash.iMTZQIP0.dpuf

http://philgovernment.blogspot.com/2009/12/classification-of-constitutional-rights.html

http://www.globalization101.org/three-generations-of-rights/



http://www.iep.utm.edu/justwar/

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