HECTORS. DE LEON LL.B., UniverRity of the Philippines Member, Integrat ed Bar of the Philippines ~'orm er Associ ate Professor, Far Eastern Univers ity
2005 EDITION
.......---·
Philippine Copyright, 2005 by
ISBN 971-23-4207-7
No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission ofthe author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same.
ALL RIGHTS RESERVED BY THE AUTHOR
N.tl.
(.1.·J- 1 j
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PREFACE As the supreme law of the land, the Constitution is by no means selfexplanatory. Yet it is so important a document with which every citizen should be fa milia r as it directly and constantly touches every aspect of h is everyday life; indeed, to be r espect ed, obeyed and defended if our nation must grow and survive. This is the reason for the requirement that "all educational institutions shall include the study of the Constitution as part of the curricula." (Art. XIV, Sec. 3[1] .) To help fill the need for a book on the subj ect, particularly· on the college level, this modest volume, now on its eighth edition, has been written. In an attempt to make it easily understandable, the author avoids legal details and elabor ate citations of cases. The provisions are discussed section by section, amplified and explained in relatively nontechnical language for both the beginning student and the layman. The comments on the more important provisions, especially the new ones, occupy m ore space, s etting forth when deemed necessary, th e reasons for their adoption as wall as t heir practical s;gnificance. Also, much needE>d emphasis is given to the provisions on the rights of the citizens as it is imperatively desirable that they have adequate knowledge of them so that they may bett.er exercise their rights and discharge t heir corresponding obligations to others as responsible m embers of a democratic society.
HECTOR S. DE LEON May 2005
iii
OFFICERS OF THE 1986 CONSTITUTIONAL COMMISSION Cecilia Muiioz-Palma Ambrosio B. Padilla Napoleon G. Rama Jose D. Calderon and Ahmad Domacao Alonto
President Vice-President Floor Leader Assistant Floor Leaders
Committee Chairmen and Vice-Chairmen PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES Chairman Vice-Chairman
Decoroso R. Rosales Gregorio J. Tingson
CITIZENSHIP, BILL OF RIGHTS POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS Chairman Vice-Chairman
Jose B. Laurel, Jr. Joaquin G. Bernas LEGISLATIVE Hilario G. Davi de, Jr. Adol fo S. Azcuna
Chairman Vice-Chairman
EXECUTIVE Chairman Vice-Chairman
Lorenzo M. Sumulong Florenz D. Regalado JUDICIARY
Chairman Vice-Chairman
Roberto C. Concepcion Ricardo J. Romulo iv
CONSTITUTIONAL COMMISSIONS AND AGENCIES Chairman Vice-Chairman
Vicente B. Foz Cirilo A. Rigos LOCAL GOVERNMENT
Chairman Vice-Chairman
Jose N. N olledo Jose D. Calderon
ACCOUNTABILITY OF PUBLIC OFFICERS Chairman Vice-Chairman
Christian S. Monsod Jose C. Colayco
NATIONAL ECONOMY AND PATRIMONY Bernardo M. Villegas Jaime S.L. Tadeo
Chairman Vice-Chairman
HUMAN RESOURCES Chairman Vice-Chairman
Wilfredo V. Villacorta Lugum L. Uka GENERAL PROVISIONS ·
Chairman Vice-Chairman
Florangel Rosario Braid 'J.'eodoro C. Bacani
AMENDMENTS AND TRANSITORY PROVISIONS Chairman Vice-Chairman
Jose E. Suarez Bias F. Ople STEERING
Chairman Vice-Chairman
Jose F.S. Bengzon, Jr. Napoleon G. Rama
PRIVILEGES Chairman Vice-Chairman
Yusuf R. Abubakar Minda Luz M. Quesada
SOCIAL JUSTICE AND SOCIAL SERVICES Chairman
Teresa F . Nieva v
Vice-Chairman
Jose Luis Martin C. Gascon
STYLE Chairman Vice-Chairman
Francisco A. Rodrigo Efrain B. Trefias
SPONSORSIDP Chairman Vice-Chairman
Ser afin V.C. Guingona Edmundo G. Garcia
PUBLIC HEARINGS E dmundo G. Garcia Jose Luis Martin C. Gascon
THE 48 MEMBERS OF THE 1986 CONSTITUTIONAL COMMISSION Commissioners Natividad, Teodulo C. Nieva, Ter esa Ma ria F. Nolledo, .Jose N. Ople, Blas F. Padilla, Ambrogio B. P alma, Cecilia Munoz QueRada, Mi nda Luz M. Rama, Napol eon G. Regal ado, Florenz D. Reyes, Jr. , Rusti co F. de los Rigor, Ciri lo A. Rodrigo, Francisco A. Romulo, Rica rdo J . Rosales, Oecoroso R. Sarmiento. Rene V. Suarez, Jose E. Sumulong, Lorenzo M. Tadeo, J aime S.L. Tan , Christine 0. Tingson, Gregorio J . Trefias, Efrain B. Uka, Lugum L. Villacorta, Wilfreda V. Villegas, B{!rnardo M.
Abubakar , Yusuf R. Alonto, Ahm ad Domacao Aquino, Felicitas S. Azcuna, Adolfo S. Bacani, Teodoro C. Bengzon, Jose, J r. F.S. Bennagen, Ponciano L. Bernas, S .•J., ,Joaquin G. Braid Rosario, Florangel Brocka, Lino 0 . (Resigned) Calderon, .Jose D. Castro, Cris pino M . de Colayco, Jose C. Concepeion, Roberto C. Davide, Hilario, Jr. G. Foz, Vicente B. Garcia, Edmundo G. Gascon, Jose Luis Martin C. Guingona, Serafin V.C. Jamir, Alberto, Jr. B.
Laurel, Jose B. Lerum , Eulogio R. Maambong, Regalado E. Monsod, ChristianS.
- oOo-
vii
PAMBANSANG AWIT NG PILIPINAS
Bayang magiliw, Perlas ng silanganan, Alab ng puso sa dibdib mo'y buhay, Lupang hinirang, duyan ka ng magiting Sa manlulupig di ka pasisiil Sa dagat at bundok, sa simoy at sa langit mong bughaw, May dilag ang tula at awit sa paglayang mina.mahal Ang kislap ng watawat mo'y tagumpay na nagniningning, Ang bituin at araw niya, Kailan pa ma~y di magdidilim. Lupa ng araw ng luwalhati't pagsinta Buhay ay langit sa piling mo. Aming ligaya na pag may mang-a.api Ang mamatay nang dahil sa iyo.
viii
SAYAN KO
Ang bayan kong Pilipinas Lupain ng ginto't bulaklak Pag-ibig nasa kanyang palad Nag-alay ng ganda't dilag At sa kanyang yumi at ganda Dayuhan ay nahalina Bayan ko binihag ka Nasadlak sa dusa lbon mang may layang lumipad Kulungin mo at umiiyak Bayan pa kayang sakdal dilag Ang di magnasang makaalpas Pilipinas kong minumutya Pugad ng luha at dalita Aking adhika Makita kang sakdallaya
ix
Pledge of Allegiance to the Philippine Flag
Ako ay Pilipino Buong katapatang nanunumpa Sa watawat ng Pilipin.as At sa bansang kanyang sinasagisag Na may dangal, katarungan at kalayaan Na pinakikilos ng sambayanang Maka-Diyos Maka -tao Makak alikasan at Makabunsa
X
TABLE OF CONTENTS Preface ..................... ..... ........ ...................................... ........................................... Officers of the 1986 Constitutional Commission............................................. The 48 Members of the 1986 Constitutional Commission ............................. Pambansang A wit ng Pilipinas .......................................................................... Bayan Ko ............................................................................................................... Pledge of Allegiance to the Philippine i<'lag ...................... ............. ..................
iii
tv vii vm ix x
INTRODUCTION A. THE STUDY OF POLITICAL SCIENCE 1.
2. 3. .¥,
5.
Meaning of political science...................................................................... Scope of political science . ..... ..................... ......... .. .. .. ......... .......... ...... ........ Interrelationship with other branches of learning................................ Function and importance of political science ..... ... ................................. Goal in the study of political science courses.........................................
1
1 2 4 4
B. CONCEPTS OF STATE AND GOVERNMENT 1.
Meaning of state..............................................................................................
5
2. 3. 4.
Elements of state ............................................... ......................................... Origin of states ........................................................................................... State distinguished from nation ............... .... .... ........ ................. ..............
5 6 7
5.
State distinguished from government.....................................................
7
6. 7.
Purpose and necessity of government..................................................... Forms of government.................................................................................
8 8
C. THE GOVERNMENT OF THE PHILIPPINES IN TRANSITION 1.
2. 3. 4. 5. 6. 7.
The pre-Spanish. government.................................................................... Government during the Spanish period.................................................. Governments during the Revolutionary era........................................... Governments during the American regime ............................................ Governments during the Japanese occupation........................ ............. The previous Philippine Republics .......................................... ................ The Provisional Government of 1986 .... .............. ........ ........ .... ...............
10 11 12 14 15 16 17
D. CONCEPT OF CONSTITUTION 1. 2. 3. 4. 5.
Meaning of constitution............................................................................. Nature and purpose or function of constitution..................................... Meaning of constitutional law.................................................................. Kinds of constitution.................................................................................. Advantages and disadvantages of a written constitution.................... xi
18 19 19 20 21
6. Requisites of a good written constitut ion ............. ..... ............................. 7. Constitution distinguished fr om statute ................................................ 8. Authority to interpret the Constitution. ...... .... .... ............. .. ... ... .... .. ........ 9 . P urpose in int erpreting the Constitution ... ............................................
21 22 22 23
E. CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 1. The 1935 Con st itution .............................................................................. . 2. The 1973 Constitution ..... ........ ... ........................ .... ..... ....... .. .... ....... .... ...... 3. The 1987 Constitution ............................................................................... 4. Basic p rinciples underlying the new Constitution ................................ 5 . Rule of t he majority ........ .... ... ......... ............ .. .......... .. ........... ....... ............. .. 6. Crt>vernment of law and not of meu ..........................................................
23 24 26 28 29 30
PREAMBLE 1. Meaning of P reamble ......... ......... ....... ...................... ............ .. ...... :... .......... 2. Preamble not essential in a constitution ................... ............................. 3. Object and value of Preamble................................................................... 4. Source of Constitu~io n's aut hority.. ...... .... ..... ..... ... .. ..... ... ..... ..... .. ....... ..... 5. Belief in Crt>d stressed ................................................................................ 6. N ational purposes and aims in adopting the Constitution.................. 7. Attainment of the constitutional goals ... ......... .... ........... ... ........ .... ......... 8. Changes in the Preamble .......... ................................ ......... .......................
ARTICLE I -
32 32 32 33 33 34 34 35
NATIONAL TERRITORY SECTION 1
1. 2. 3. 4.
Necess ity of constitutional pr ovision on National Territory ............... National Territory of the Philippines................ ...................................... Meaning of a rchipelago .. ...... .... ... ...... ......... ... ... .... .... .... .... ... ..... .. .. ........ .. ... Other territories over which the PQilippines has sovereignty or jur isdiction ................................................ ....... ........ .. 5. Other a reas included in the Philippine archipelago. ...... ....... .... .. .. ....... 6. Three-fold division of navigable waters......................................... ........ 7. Jurisdiction over n avigable w&.ters ... ....... ......................... .... ........ .. ........ . 8 . The archipelagic concept or principle of terr itoriality.. .. ... ..... .... ........ .. 9. The Philippine position .............................................................................
38 39 39 39 40 41 41 42 42
ARTICLE II- DECLARATION OF PRINCIPLES
AND STATE POLICIES PRINCIPLES SECTION 1 1.
2. 3. 4.
Th e Philippines , a democratic a nd republican state............................. Manifestations of a democratic a nd republican state. ...... ............ ........ Sovereignty of the people .... ........ .... .. ............. ....... ... .. ...... .. .... .... ............. .. Right of the people to revolt ...................................... ........ ............. ..........
44
44 45 45
SECTION 2 1.
Renunciation of war as an instrument of nationa l policy .................... xii
46
2. 3.
Adoption of the generally accepted principles of international law as part of our law ........... ...................... ........... Adherence to t he policy of peace, etc. , with all nations.................... ....
4-6 47
SECTION 3 1.
2.
Supremacy of civilian authority over the military.......... .. .... ................ Armed Forces of the Philippine<>, protector of the people and the State........ ..... ........ ................................... .... ............................
48 48
SECTION 4 l. 2. 3.
Prime duty of the Government.......................... ....................................... Defense of the State by the people against foreign aggr ession ........... Military and civil service by the people.............. ................ ... ..... ... .........
49 50 50
SECTION 5 1.
Mai ntenance of peace and order, etc. ......................... ..... .. ..... ... ..............
51
SECTION6 1.
2. 3.
Principle of separation of the church and State ..................... ...... ......... Meaning of "establishment of religion clause".......... ............................. No hostility towards religion .................... ................................................
52 52 53
STATE POLICIES SECTION7 1.
Foreign policy of the Philippinl:lS ..................... ........... ........................ .....
54
SECTIONS 1.
Freedom from nuclear weapons policy ........ ................................. ...........
56
SECTION9 1.
Just and dynamic social order... ................. ............ .......... ...................... .
57
SECTION 10 1.
Social justice ............ ....... .. .... .... ............................................ ................... ..
57
SECTION 11 1.
Human dignity and human rights................................ ........... ................
57
SECTION 12 1.
2.
Strengthening the famil y as a basic autonomous social institution ....... ... ..... ... ..... ................... ..... ...... ...... ....................... Right to life of the unborn from conception and of the mother ........... xiii
58 58
3.
Rearing of the youth for civic efficiency and development of moral character ... ............................................................... ..... ........
59
SECTION 13 1.
Role of the yout h in nation-building.................... ............. ............ ...........
60
SECTION 14 1.
Role of women in nation-building. ....... ...... ............. ......... ... ......... ...... ......
62
SECTION 15 1.
Right r,f the people to health ....................................................................
64
SECTION 16 1.
Right of the people to a balanced and healthful ecology ......................
64
SECTION 17 1.
Priority to education, science and technology, arts, culture and sports .......................................... ............. .......................
66
SECTION 18 1.
Labor as a primary social economic force ... ....... .... . ........ .... .... .. ....... .. .. ...
S-1
SECTION 19 1.
Self-reliant and independent national economy....................................
66
SECTION 20 1.
Role of the private sector i n the economy .... ......... ..... ......... .... ........ ..... ...
66
SECTION 21 1.
Comprehensive Tural development and Ul(Tarian reform.....................
67
SECTION 22 l.
Rights of indigenous cultura l communities ............................................
67
SECTION 23 1.
~on-governmenta l ,
community-based or sectoral organizations ............ .............................................. :............. ...............
68
SECTION 24 1.
Vital role of communication and information in nat.ion-building ....... .. .. ...... .. .... ... ........... .... ................ .. ..... ....... ......... xiv
69
SECTION23 1.
Autonomy of local governments ...............................................................
69
SECTION 26 1.
Equal access to opporluni ties tor public service....................................
70
SECTION27 1.
Honesty and integrity in public service ..................................................
71
SECTION 28 1.
Full disclosure by the State of all its transactions ...............................
72
ARTICLE III -BILL OF RIGHTS 1. 2. 3. 4.
Concept of a bill of rights .......................................................................... Classes of rights ..... ............ .............. .............. ........ ..... ............................... Classification of constitutional rights..................................................... State authority and individual freedom..................................................
73 73 74 75
SECTION 1 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
Meaning of due process of law.................................................................. Aspects of due process of law.................................................................... Procedural due process.............................................................................. Substantive due process............................................................................ Persons protected ......... ......... ...................... ... ..... .... ..... ................. .... ..... .... Meaning of life............................................................................................ Meaning of liberty...................................................................................... i\.feaning of property................................................................................... What constitutes deprivation ................................................................... Meaning of equal protection of the laws................................................. Reasonable classificat.ion permitted........................................................ Scope of the guarantee...............................................................................
76 76 77 78 78 78 78 79 79 79 80 80
SECTION2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
Meaning of search warrant and warrant of arrest.............................. .. Scope of the protection............................................................................... When search and seizure unreasonable.................................................. Requisites for valid search warrant or warrant of arrest .................... lVteaning of probable cause........................................................................ Sufficiency of affidavit. upon which warrant is based........................... Sufficiency of de::;cription .......................................................................... Right against unreasonable search and seizure, personal................... When search and seizure may be made without warrant .................... When arrest may be made without warrant..........................................
81 81 8~
82 83 83 83 84 85 85
SECTION 3 1.
Meaning of right of privacy....................................................................... KV
86
2.
a.
4. 5.
Basics and purpose of the provision ....... .. .... ...... ... ............ ....... ... .. ......... . Relationship with right againBt. unreasonable searches and seiz !lres ...... ........ .................... ........ .. ......... ........... ......... Limitations on the right ......................................... ................................... Evidence illegally obtained ....................................... ..... ..... ......................
86
86 87 87
SECTION 4 1. 2.
3. 4. 5. 6. 7. 8.
Meaning of freedom of speech, of expression, and of the press ........ ... Scope of freedom of expression................................................................. Scope of t erms "speech,'' "expression" and "press" ...... ...................... .... Importance of the guarantee .............. .... ........................................... ....... Freedom of expression not absolute ... ......... ........................................... . Abridgment of ireedom of speech and of the press................ ... ..... ........ Meaning of right of assembly and r ight of petition............................... Relationship with freedom of s peech and of the press.......... .. .. ............
88 88 88 88 89 89 90 90
SECTION 5 1. 2. 3. 4. 5. 6. 7.
Meaning of religious freedom ......... ................. ..................................... .... Meaning of religion ..... ..... ......... .... ........ ................ ...... ......... ......... ............. Aspects of religious freedom ..................... .. .............................................. Freedom of religious profession and worship......................................... Dissemination of religious beliefs ....... ....... .. ............ ...... .... ............ .......... License fee or tax on sale of religious articles ....................................... Religious test prohibited .. ............. ...................... ....... .......... ........ ... .... ......
91 91 91 92 92 93 93
SECTION 6 1. 2.
Meaning of liberty of abode and travel ................. .... .............................. Limitations on the right ............. .... . ................. .... ...... ..... .. ............. ...........
94 94
SECTION 7 1. 2. 3.
Right to information on matters of public concern................................ Scope of the right. .... ........ ... ........... .................. ... ........................................ Limitations on t he rig ht. ...... ...... .... .... .......................................................
95 96 96
SECTION 8 1. 2. 3.
J\.ieaning of right to form associations, etc. ........ ....................... .. ....... .... Purposes of the guarantee.. ..... ......... .... .. ....... .................... ......... .............. Limitation on the right.......................... ....................................................
96 97 97
SECTION9 1. 2. 3. 4. 5. 6. 7.
Essential or inherent powers of government .................................. ....... Meaning of eminent domain ............................ ........... ,.............. ..... .......... Conditions for or limitations upon its exercise... ................................... Meaning of "taking" ............... ...................... ............................... ........ ....... Meaning of police power ................. ................................ ........................ ... Basis of police power ..... .............. ...... ............... .. ....... ...... ............... ............ Illustrations of police power laws ............................................................ "vi
97 98 98 99 99 99 100
8. 9. 10. 11.
Meaning of taxation................................................................................... Theory and basis of taxation .................................................................... Meaning of taxes......................................................................................... Distinctions among the three powers......................................................
100 100 101 101
SECTION 10 1.
2. 3. 4. 5.
Meaning of obligation of a contract ....... .................................................. Scope of terms "law" and "contract" ........................................................ Purpose of non-impairment prohibition.................................................. Wben obligation of contract impaired..................................................... Freedom to contract not absolute.............................................................
102 102 102 103 103
SECTION 11 1.
2. 3. 4.
Constitutional tights of the accused in criminal cases......................... Reasons for constitutional safeguards ......... .... ....................................... Right to free access to the courts and quasi-judicial bodies................ Right to adequate legal assistance ..........................................................
103 104 105 105
SECTION 12 1. 2. 3. 4.
Rights of person under investigation ...................................................... Effect of violation of the rights................................................................. When rights can be invoked...................................................................... Waiver of right of silence and to counsel................................................
106 106 107 107
SECTION 13 1.
2. 3. 4. 5.
Meaning of bail .................................................. ......................................... Purpose and for1n of bail ........................................................................... Who may not invoke the right to bail...................................................... Meaning of capital offense ................... ..................................................... Excessive bail prohibited ..........................................................................
107
108 108 109 109
SECTION 14 1.
2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
Right to due process of law in criminal cases ........................................ Right to presumption of innocence .......................................................... Statutory presumptions of guilt............................................................... Right to be heard by himself and counsel............................................... Meaning and purpose of arraignment .................................. .... .... ........... Importance of the right to counsel........................................................... Right to be informed of the nature and cause of the accusation against him .... ... .. .... ... . ..... .. ...... ... ..... .... . ................. .... .... .... ........... .... .. . Right to have a speedy, impartial, and public trial.............................. Right to confrontation.of witnesses......................................................... Right to compulsory production of witnesses and evidence......................................................................................... Trial in the absence of the accused..........................................................
110 110 111 111 112 112 112 113 114
114 115
SECTION 15
1.
Meaning of writ of habeas corpus ............................................................ xvii
115
2. 3. 4.
Purpose of the writ.. .................................... ............................ ................... How writ operates .................... .... ................ ..................... ............... .......... S uspenflion of the privilege ofthe writ...... .... .. ............. ...... .... ........ .. .. ....
116 116 116
SECTION 16 1.
Right to speedy dispos ition of cas es .... ....... ................ ..... ................. .... ...
117
SECTION 17 1. 2. 3. 4.
Right agai nst self-incrimination .............................................................. S cope of guarantee .. ........... .... .. .. ......... ......... .. ..... ... ......... ... ..... .... ...... ...... .. . Nature of guarantee .... .......... ..... .... ......... .............. .. ............ ... .. ...... ............ Form of t estimony prohibited ...................................................................
118 118 118 :i 19
SECTION 18 L 2. 3. 4.
Right aga inst detention soleiy by r eason of political beliefs and a spiraticns .................................................................................... Meaning of involuntary servitude .... ............ ..................... ............... ........ Purpose and basis of the prohibition ... .. .... .. .. .... .. ... .. . .. .. .. .. .. .. .. .. . .. .. .. ... .. .. Exceptions to prohibition.... ...... ... .. .... .. ........... ........... .... ....................... ....
120 120 12 1 12 1
SECTION 19 1.
2. 3.
4.
Right again st excessi ve fines ...... .. ... .......... .......... ...... .... ... ...... ......... .. ... .. .. Right aga ins t cruel , degrading, or inhuman punishments .................. Purpose of the guarantee .......................................................................... Imposition of the death penalty ........................ ....................... ............ ....
122
122 123 12:3
SECTION 20 1.
2. 3. 4.
5.
J\.leaning of debt .. .... ... . .... .. ...... ...... .... ..... ... .... .. .. ..... .............. ... ....... ............. P urpose of prohibition against imprisonment for debt ........... ......... .... . Prohibition limited to contractua l obligations only ............ ......... .... .. ... Meaning of poll t ax ..................................................................................... Purpose of prohibition against imprisonment for non-payment of poll tax ..... ......................................... ........ ......... ..::-:..
125 125 125 126 126
SECTION 21 1. 2. 3. 4.
Right against double jeopardy.................................................................. Requisites for existence of double jeopardy.................. ..................... .. ... Right to appeal in criminal cases .. ... ......... ...... ............ .. .. .. ... ........... .. .. .. .. . Classes of double jeopa rdy ..... ..... .................. .. ............................ ..............
126 127 127 127
SECTION 22 1.
2. 3. 4.
Meaning of ex post facto law ... .. .. ... .. ......... .. ... ... .... ...... ... ... .. ....... .. ........ .. ... Character istics of ex post facto law ................................. ......................... Meaning of bill of attainder......... ............................................... .............. P urpose of prohibition against bill of attainder ....... ....... ................ ..... .
xviii
128 128 128 129
ARTICLE IV- CITIZENSHIP SECTION 1 1. 2.
.....
3.
5.
6. 7.
8.
9. 10. 11. 12.
Meaning of citizenship and citizen ......................................................... . Distinguished from nationality and nationals ...................................... . Meaning of subject and alien .................................................................... General ways of acquiring citizenship .................................................. .. Citizens by birth ........................................................................................ . Citizens at the time of the adoption of the Constitution ..................... . Citizens by blood relationship ................................................................. . Citizens through el~ction under the 1935 Constitution ..................... .. Citizens by naturalization ...................................................................... .. Meaning of naturalization ........................................................................ Nature of naturalization .......................................................................... . Ways of acquiring citizenship by naturalization .................................. .
130 130 131 131 131 132 132 132 133 134 134 134
SECTION2 1.
Kinds of citizens under the Constitution ................................................
135
SECTION3 1. 2.
Loss of citizenship ................................................. .... ................................. Reacquisition of lost Philippine citizenship . ..........................................
136 137
SECTION4 1.
Effect of marriage of citizen to an alien..................................................
137
SECTION5 1.
2. 3. 4.
Dual allegiance of citizens ........................................................................ Retention and reacquisition of citizenship ...................... ....................... Rights with corresponding obligations.................................................... Duties and obligations of citizens............................................................
Meaning of suffrage . ..... .. ........ .......... ... ... .. ................... .. ...... .. .. .. ... .. .. .... .... . Nature of suffrage ...................................... .............................. .... ... .. .... ..... Scope of suffrage......................................................................................... Qualifications of voters.............................................................................. Age qualification......................................................................................... Residence qualification.............................................................................. Persons disqualified td' vote...................................................................... Arguments justifying the lowering of voting age from 21 to 18 ........................................................................................ Arguments justifying removal of literacy requirement........................ Property requirement prohibited............................................................. Other substantive requirements prohibited........................................... Compulsory suffrage .................................................................................. xix
144 144 144 145 145 146 146 147 147 148 149 150
SECTION 2 1.
2.
System for securing the secrecy and sanctity of the ballot ........ .... .. ........... .. . ..................................................... ......... System for absentee ,·oting by qualified Filipinos ................................
151
152
ARTICLE VI- LEGISLATIVE DEPARTMENT SECTION 1 Meaning of legisla tive pov1er .......... ................................................ .......... Meaning of law ... .. .. .... ........ ............. .... ........ ............. ... ........... ........... ... ....... 3 . Function of Ia v;.s ...... ......................... ............. .......................................... ... 4. Legislative power vested in Congr ess ....... .............................................. 5. Advantages of bicameralism.......... ............ .... ........ ............... ............ ........ 6. Dis adv ant ages of bicameralism ................................................................ 7. Scope of legislative power of Congress .......... ........ .... ..................~. . .... ..... 8 . Clas5ification of powers of C ongress ........... ...... .. .. ... ...... .. ........... ............ 9. Principle of separation of powers............................................................. 10. Principle of checks and balances. ......................... ...... ...... ............ ............ 1.
153
'2.
153 153 154 154 154
155 155
156 157
SECTIONS 2-4 1. 2.
The S enate. ...... ........ .... .. ...... ............. ........ ....... ............ ....... ..... ........ .. .......... Meanin g of r egistered voter and r esidence .............................................
158 159
SECTIONS 5-7 1. 2. 3. 4.
The House of Repre~ entative s .... ...... ... ... ... .......... ........ .. .. ................ ......... Number, el ection/selection a nd classificat ion of members ................... Apportionmen t of elected representatives ........................ ...................... Party-list and sector a l ;:epre sentation .... ............. ............ ... ....... .. .. .........
160 161 162 163
SECTIONS 8-9 1.
Kinds of election for member s of Congress .............................................
164
SECTION 10 1.
Salariel:l of members of Congress .... ......... :............ ............ ................. ......
165
SECTION 11 1. 2. 3. 4.
Freedom fro m arrest of members of Congress ....... ......... .... ..... .... ..... ..... When immunity cannot be invoked ........................................ ............. .... Freedom from being quest ioned for speech and debate ........................ When immunity cannot be claimed ........ .. .. ............. ..... .. .... ... .... ............ ..
165 166 166 166
SECTION 12 1.
Disclosure of financial and business interests .......................................
167
SECTION IS 1.
Disqua lification to hold any other office or employment ........ .............. XX
167
SECTION 14 1.
Fiduciary position of members ...... .................. .. ... .... ........ .... ....................
169
SECTION 15 l.
Sessions of Congress .... .................................... ............. ........ .... .................
170
SECTiON 16 1. Officers of Congress .. ..... .. .. .... .... .... .... ...... .. . .. .. .. ... .. ... .. .. ...... .. .. .... .... ..... ..... . 2. Powers and functions of Senate President and House Speaker .......... 3. Meaning of quorum .. ..... .. ........ .. ... .................. ........................... .. ............... 4. Basis of quorum in each House ................ ................................................ 5. Adjournment in absence of quorum ............ ............................................. 6. Meaning and function of rules of procedure........................................... 7. Limitation"t on power to determine rules......................... ....................... 8. Nature of power of each House to punish its members........................ 9. Votcsrequired................... ................................................ .......................... 10. Each House sole judge of disorderly behavior............... .... ..................... 11. Meaning of legislative journa l .......................................... ........................· 12. Purpose of journal-keeping requi rement........... .............................. ....... 13. Matters to be entered in the journal ............................. ........ .................. 14. Adjournment by either House without consent of the other................
171 171 172 172 172 173 173 173 174 174 17 4 174
175 175
SECTIONS 17·19 1. 2.
Electoral Tribunal in each House .... .................................... .................... The Commission ~n Appointments in Congress .. ..... .............................
176 177
SECTION 20 1.
Records of Congress open to public................................ ...................... ....
178
SECTION 21 1. 2.
Power oflegislative inquiry and jnvestigation ........ ..... .... .......... ........... Scope of the power....................................................................... ......... ......
179 179
SECTION 22 1.
Appearance of heads of departments before each House .....................
180
SECTION 23 1.
2. 3.
Power to declare existence of a state of war... ........ .. ... ................ ........... War contemplated ..... ... ... ... ........ .. .................... .............. ..... ......... .............. Delegation of cmerge11cy powers .............. .................. ....... .......................
181 181 181
SECTION 24 1. 2.
Meaning of appropriations bill................................................................. Kinds of appropriations ..... ... ..... .... ......... ..... ........ .................. .................... xxi
182 182
3. 4.
:Meaning of other bills.............. .... .... ............................................... ........... Bills which must originate exclu ~ ively in the H ouse of Representa tives.......................... ............. ................................... .....
183 183
SECTION 25 1. 2. 3. 4. 5. 6.
7. 8. 9. 10.
Meaning of bu dget....... ................................... .... .......................... ............. Submission of proposed budget by the President...................... ............ lncreaae of appropriation recommended by the President.. ............ ..... Prohibition agains t riders........ .. .... ....... .............. ... ......... .... .... ........ .......... Procedure in approving appro priations ........... ........... .... .. ............ .. ...... .. Requir ements with respect io special appropriations bill.................... Requir ement t o insure a balanced budget.............................. ........ ....... Prohibition against transler of fun ds .......................... ................. ......... .. Rule as to discretionary funds ....... ......................... .............. .... .... .. .......... Automatic reap propriation ...... .. ...... .............. .. .. .. ..... ........ ....... ....... .... ......
185 185 185 186 186 187
187 187 187 188
SECTION 26 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
Limitations on the power of Congress ................ ................ ..................... Prohibition agains t delegation oflcgislative powers ..... ....... .. .............. Prohibition agains t the enactment of irrepealable laws.. .... .. .. .. .. ... ..... Requirements a~:~ to subject a nd ti tle of bills.............. ..... ................... .. .. Meanin g of hodge-podge or log-r olling legislation ...... ...... ... .............. .... Effect of violation of requirem~n t ..................................... .. ............ ... .. .... Exceptions to the requirement ..................... .... ..................... .......... ..... .... Steps in the pa8sage of a bill .. .. ..... ....... ...... .... .................... ......... .... ... ... .. Purpose of provision requiring three readings of bill .. ........ .. .. .... ...... ... Certifica tion of bills by the President ............... .......................... ............ Purpose of requirement that yea:; a nd nays be en tered in the journa l .. ..................... ......... ............. ..... .... ..................... .... ........
188 189 189 190 190 190 191 191 l92 193 193
SECTION27 1. 2. 3. 4. 6. 6. 7. 8. 9. 10. 11. 12.
Meaning of bill ..... .................... ......... ..... ........ ........ .. ............ .... ................. .. Meaning of stat u te ...... ......... ......... ............................. .... ..................... ....... How statutes identified ............................... ....... ............................. ... ...... Forma] parts of a Ja w................ .... .... .......................... .............................. When bill may become a law ..... .. ... ... ............ .. .. .......... ......... .. .. .. .. ...... ....... Veto power of the President .. ............. ..... .......... ....... .. .. ......... .... .... .. .. .. .. .... P urpose of veto .. .. .. .. .. .. .. ... .. .. .... .. .. .. .. .. .. .. .. .. .... .. .. .. .. .. .. .. .... .. .. .. .. .. .. .. .. .. .. ... .. . Pock et veto not a llowed ..... ... ...... .... ... ..... .... ...... ... ..... .... .... ...... .... ... .. .. .... ... When partial veto aJlowed ............ ....... ....... ....... ...... ... ......... .... ...... ... ...... Mea n ing of resol ution.... ..... .... ....... .. .... ....... .. ... ................. .. .. ........ ..... ..... UAe of resolutions .. .. ............ ....... .. ... ... .. .. .... .. ............... ..... .. .. .. .. .. ........ ..... Kin ds of r esolutions .... .......... .. .. ... ....... ............. ............ ...... ................ .. .... ..
194 194 194 194 195 195 196 196 196 196 197 197
SECTION 28 1. 2. 3. 4. 5.
U niformity in taxa tion...................... .............. .......... .. ..... ........... ....... .. ...... Equity in taxation .. .................. ...... .. .................. .. ... .. ..... ........ .. ...... ... .. ....... Progr essive syst em of taxation.... .. .. ...... ............ ... .. .. .. ............ .. .. .. ......... .. Delegation of taxing power t o fix t a riff rat es, etc. .. ............. ................. Exe mption of certain entities and properties from property taxes..... xxii
1.98 198 199 199 199
6.
Votes req uired for grant of t ax exemption ..............................................
~00
SECTION 29 1. 2. 3. 4.
The powe r of appropriation ............ ........... ....... .... .... .... ........ ......... ......... ... Meanin g of ~ app ropria~ion made by law" .................... .............. .............. P rohibition against "JSe of public money or property for religious rurpose ..... ............ .... .... ...... ........ .... ............ ..... .... ..... ..... . Expenditure of special fund........ ...................... .... ....................................
200 20 1 20 1 202
SECTION 30 1.
Law increasing appellate juris diction of Supreme Court ................. ....
203
SECTION 31 1.
P r ol-.ibitiun against gr anting title of royalty or nobility.. ....... ...... .. ......
20~
SECTION 32 1.
2.
Mean ing of initiative a nd referendu m ........ ..... .. .. .... ..... .......... ..... .. ......... · C ongress to provide a system of initiative and referendu m ... .... .. .......
204 204
ARTICLE VII- EXECUTIVE DEPARTMENT SECTION 1 1.
2.
President, t he E xecutive ................................................ ........................... Meaning of executive pow'3r ................................................. .. ....... ... .. .......
206 206
SECTION 2 1.
q ualifications of the President and Vice-President.... .. ........ ... ... .... ......
207
SECTION 3 1.
The Vice-President ...................... .......................... ............................. ........
207
SECTION 4 1. 2. 3. 4. 5. 6. 7.
E lection of t h e Presi den t and Vice -P resident ................................. ...... . Term of office of t h e President and Vice-Pre ~ident ...................... ....... .. Term of office distinguished from tenure of office; right L(> hold office; and office... ..... .. .. ... .............. .... .. .... .. ......... .... ...... .... ...... Reelection of President a nd Vice-Presi dent ............ ...... .. ... .... ..... ........ ... Reasonll for proh ibition 2.gainst r e-election of Pr esident ...... .. ............. Canvassing of r eturns and proclamation ............. ....... ... .... . ..... ............. Election contest involving the position of President or Vice-President ................. ...................... ....... .... .............. .... .............
208 209 209 210 210 211 212
SECTION 5 1.
Oath or affirmation of the President, Vice-Pr.esident , or Acting President...................... ............. .... .......................... .... ........ xxiii
212
SECTION 6 1.
Official r esidence and compensation of the Presid~nt and Vice-President...... ... ................. ................................................. ...
213
SECTIONS 7-8 1. 2. 3. 4.
Classes of Presidenti al succe!!sion ......... .......... ....... ... .............. ..... .... .... .. . When Vice-President s h all act as President .... .................. .................... When Vice-President shall become Prc!:!ident ....................... ................. Where there a re no President and Vice-President.......... .. .. .............. ....
214 215 215 215
SECTION9 1.
Vacancy in the Office of the Vice-President ........................... .. ... ......... .
216
SECTION 10 1.
Vacancy in the Offices of both the President and Vice-President.......
216
SECTION 11 1.
Rules in case of temporary disability of the Presiden t.. .......... ..... ........
217
SECTION 12 1.
When public to be informed of Prt~sident's state of health...................
218
SECTION 13 1.
2.
Disabilities of President , Vice-President, Ml~m bc rs of Cabinet. and their d eputies a nd assistants ..............·.... .............. Rule on nepotis m .. ..................... ......................... ........................................
Appointments preceding a presidential el<:>ction . ........ ............ .......... ..
221
SECTION 16 1.
2. 3. 4. 5. 6. 7. 8. 9.
Meaning of appointment ... .... ... ... ... .. ............ ....... .. .... ....... ........ .. .. .. .. ...... Nat.t..re of power to appoint .. ....... .. .. .. ....... .. ................ ... .. .............. .. .... ... .. Officials whose appointments are vested in the President.................. Confirm ation of appoint ments by Commission on Appointments ....... Appointment by other officials......... ........... ..... ...... .... ................. .......... Kinds of presidential appointments ........................ ........................... ..... Ad interim appointments ............................. .......... ............. .................... .. Kinds of appointment in the career services .. .. ..... ............................... .. Steps in the a ppointing process .......... ..... ............................. .. ........... .. .. .. xxiv
222 222 222 223 224 224 224 225 225
10. 11. 12. 13.
Kinds of acceptance.......... .......................... ........ ........................................ Meaning of designation ......................................................... ..... ... ............ Removal power of t he President............................................................... Extent of the President's power to remove.............................................
226 226 226 227
SECTION 17 l..
2. 3.
Power of control over all executive departments, bureaus and offices ... .................. ............................ ..................... ....... Nature and extent of the power of control................... ................. .......... Power to insure that the laws be faithfully executed.. .. ..................... ..
227 228 228
SECTION 18 1. 2.
Military power of the President ............................................................... Powers of President as Commander-in-Chief of the Armed Forces ... .. .... ..... ........... ...... .... .... ... ..... .. .... ....... ..... .... .... ... 3. Authority of Congress over the armed forces........ ................................. 4. Power to suspend privilege of writ of habeas corpus ............................ 5. Power to declare martial law ...................................................................: 6. Meaning of martial law ............................................................................. 7. Basis, object, and duration of martial law.. ............................................ 8. Restr ictions on the exercise of the two powers . .. .. .. .. .. ... .. . .. .. .. .. .. ... .. ...... 9. Effects of a state of martial law...............................................................
229 230 230 230 231 231 231 232 233
SECTION 19 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
Pardoning power ......................................................................................... Meaning of reprieve and suspension of sentence .................................. Meaning of commutation .. ..... ..................... ........ ...... ...... ........................... Meaning of pardon ........................................................................... .......... Object of pardoning power ..................................................... ................... Kinds of pardon ..... ...... ..................... .......................... ................... ............. Limitations upon the pardoning power................................ .............. ..... Effects of pardon.... .. ......... ..... ............................................. ..... ....... ............ Remission of fines and forfeitures .................................................... ....... Meaning of amnesty............................................................... .... ................ Effect of amnesty........................................................................... ............. Pardon and amnesty distinguished.........................................................
234 234 234 234 235 235 235 235 236 236 236 236
SECTION 20 1.
Authority to contract and guarantee foreign loans ...............................
237
SECTION21 1. 2.
3.
Meaning of treaty ...... ,.......................................... ....... ........ ..... ..... ............. Distinguished from international agreement and ex~utive agreement ........................................ ........................... Steps in treaty-making..............................................................................
238 238 239
SECTION22 1.
Budgetary power of the President........................................................... XXV
239
SECTION 23 1.
Prerogative to address and appear before Congress.............................
Meaning of judicial power......................................... ........... ..................... Scope of judicial power ................................... ... .... .... .... ... ........... .............. Giving of advisory opinions not a judicial function. ... ........................... Judicial power vested in one Supreme Court and in lower courts...... Organization of courts ...... .............. .... ............. ............................. ............. Quasi-judicial agencies........ ................... ......... ...... .................................... Importance of the judicia ry .................................. ....... ................. ............. Independence of the judiciary ..................................................................
241 241 242 243 243
244 244 245
SECTION 2 1. 2.
Power to apportion jurisdiction of various courts vested in Congress .................................................. ... ......................... Jurisdiction of courts ....... ............ ........................... ....... ..................... .......
Composition of the Supreme Court.......................................................... Sitting procedure ............................................................ ...... ...................... Cases to be heard or decided en bane and vote required...................... Meaning of executive agreement............................ .................................. Classes of executi ·1e agreements ........................ ...................................... Meaning of power of judicial review.......................... .................. ............ Limitations on exercise of power of judicial review ....................... ....... Justiciable question disti n guished from political question .............. ....
248 248 249 250 250 250 251 251
SECTION 5 1. 2. 3. 4. 5. 6. 7. 8. 9.
Original jurisdiction of Supreme Court over cases affecting ambassadors, etc. ................................................................ Original jurisdiction of Supreme Court over petitions for certiorari, etc. ....... ................. ............. ....... ..................... ............... Exclusive appellate jurisdiction of the Supreme Court............. ........... Assignment of judges of lower courts to other stations ..................... ... Change of venue or place of trial ........ ................... ........................ .......... Rule-making power of the Supreme Court ..............:.............................. Limitations on the rule-making power of the Supreme Court ............ Substantive and procedural law/rights distinguished.......................... Appointment of officials and employees ..................................................
253 254 255 255 256 256 258 259 259
SECTIONS
1.
Administrative supervision over lower courts .................. ..................... xxvi
260
SECTION 7 1. 2.
3. 4.
Qualifications for members of the Suprem~ Court and any lower collegiate court........................................................... Authority of Congress to alter qualifications of certain constitutional officers ................. ............. ..... .. .................. ....... ........ ... Qualifications of judges of lower courts ..... ............ ................................. The admini stration of justice ...................................................................
261 261 26 1 262
SECTIONS 8-9 1.
Appointment of members of the Supreme Court and judges of lower courts . .. . .. ... .. .. .. .... .. . .. ... .. . .. .. .... .. ... .. .. .. ................
264
SECTION 10 1.
Compensation of members of the judiciary ............................................
265
SECTION 11 1. 2. 3.
Tenure of office of members of t he judiciary .......................................... Meaning of good behavior ......................................................................... Disciplining or dismissal of judges of lower courts ........................... ....
266 267 267
SECTION 12 1.
Prohibition against designation to quasj-judicial and/or administrative agencies.................................. ....... ............. ...
267
SECTION 13 1. 2.
Procedure in rendering decisions .................. ........................................... Requirement in case of non-participation, dissent, or abstention..... .
268 269
SECTION 14 1. 2.
Meaning of decision......................... ............................................ .............. . Form of decision of court ..... .................................... .................. .... ........ ....
269 269
SECTION 15 1. 2.
Maximum periods for rendition of decisions................................... ....... Time limitations mandatory..... ............................................ .. ..................
271 27 1
SECTION 16 1.
Submission of annual report............................. .................. ......................
272
AR'l'ICLE IX- CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS
Disabilities of members of Constitutional Commissions......................
274
SECTION 3 1.
Compensation of members of Constitutional Commissions .................
27 4
SECTION4 1. 2.
Appointment and removal of officials and employees........................... Other common features.............................................................................
Rules of procedure......................................................................................
276
SECTION7 1.
Rendition of decision and judicial review...............................................
276
SECTION 8 1.
Additional functions under the law.........................................................
27i
B. THE CIVIL SERVICE COMMISSION SECTION 1 1.
2. 3. 4. 5.
Composition of the Civil Service Commission........................................ Qualifications ofmembers ........................................................................ Appointment and terms of office .............................................................. Rotational scheme of appointment ....................... ................................... Reasons for creation of the Commission.................................................
277 278 278 278 279
SECTION2 1. 2. 3. 4. 5. 6. 7. 8. 9.
10. 11. 12.
Meaning of Civit Service ........................................................................... Scope of the Civil Service .......................................................................... Constitutional classification of positions in the Civil Service............. The merit system........................................................................................ Non-competitive positions......................................................................... Guarantee of security of tenure .................................~............................. Meaning of"for cause provided by law".................................................. Abolition of position ................... ................................................................ Prohibition against electioneering and other partisan political campaign............................................................................... Meaning of electioneering or partisan political campaign................... Activities not covered................................................................................. Right of government employees to self-organization ............................ xxviii
280 280 280 281 282 283 283 284 284 285 285 286
13. 14.
Right of government employees to strike ..... .......................................... Protection oftemporttry employees.................... ......... .............................
286 287
SECTION 3 1.
2. 3.
4.
Powers and functi on~; of the Commission ............................................... Importance of a permanen t civil service ................................................. Purpose of providing a civil service system. ........................................... Basic requisites of a civil service system............ .......... ........... ...............
287 288 289 289
SECTION 4 Oath to dt!fend and support the
Con:~titution
........................................
290
1. Standardization of compensation............... ..... .........................................
290
1.
SECTION 5
SECTION 6 1.
I neligibility for appointment of defeated candidate in an election ... .. .. ........... .. ... ...... .. ..... .................. .. ... .. ............ .. ...........
291
SECTION 7 1.
2.
Ineligibility for a ppointment of e lective officials ....... .......................... .. P rohibition ag ain ~t hol ding more than one position by appoin tive officials ............... ... ........ ...... ......................... ................
292 292
SECTION 8 1.
2. 3.
Prohibition agains t additional, double, or ind irect compensation...... E"c 2ptions to the prohibition ........ .. .. ........... .. ...... .... ...... .................... ... ... Prohibition again,-.t acceptance of any present, etc. from any foreign st.ate ................................. .................................................
293 293 294
C. T H E COMMISSION ON ELECTIONS SECTION 1 1.
2. 3. 4.
Composition of the Commission on Elections ........................................ Qualifications of members ....... ................................. ..................... ........... Appointment and terms of office ....... ......................... ............ ............ ...... P urpose of the Commission ............................... ....... .......... .. ..... ................
295 295 296 296
SECTION 2 1. 2. 3.
Powers and functions Ofthe Commission............................................... Finality of decisions ............... ........ ........ ......... ..... ................................... ... Rationale of r egistration of political parties .............................. ............
298
300 301
SECTION 3 1.
Hearing of election cases.......... ............................ ..................................... xxix
301
SECTION 4 1.
Regulation of public utilities a nd media ............................. ............ ........
302
SEC'flON 5 1. 2. 3.
Pardon, etc., of violators of eleetion laws ............. ............. .................. ... Meaning of parole ..... ..... ........................................... ..... ..... ........................ Meaning of suspension of se ntence............................... .. .... ........ .............
303 303 303
SECTIONS 2.
1.
Meaning of pol itical party .... .. .................. .. ... .. .. .. .. .................... ........ .. .. .... F r ee and open party system.. ..... .. .......................... ....... .... .. .. ..... ....... ........
Protection against harassment and discrimination ................... ...........
308
SECTION 11 1.
AutomaLic
relea~;e
of appropriations .......... ................ .. ...........................
309
D. THE COMMISSION ON AUDIT
SECTION 1 l.
2. 3. 4.
Composition of the Commiss:on on Audit...............................................
310 310 :n 0 311
SECTION 2 1. 2.
PowerH and function s of the Commission .............. ... ....... ....................... Concept of examination , auditing, and settlement of accounts...........
312 314
SECTION 3 1.
Exemption of any government entity or its subsidiary ........................
XXX
315
SECTION 4 1.
Submission of report to t h e President and Congress.... ........................
315
ART ICLE X - LOCAL GOVERNMENT GENERAL PROVISIONS SECTION 1 1.
2. 3. 4.
Mea nin g of local governm ~nt....... . .. . .. .. .. .. .. . . ......... ... .... .. . .. ... . .. ..... . .... ....... . Import a nce oflocal governments ....................... .......................... ............ Territorial and political s u bdivisions of the Philippines.. .... .. ........ ..... . Dual status of local governm ents........ ........ .. ............... .. ..........................
3 17 317 318 318
SECTION 2 1. 2. 3.
Mean ing of!,Jca l a u tonomy ............... ................................................ ........ Meaning of decentralization ............. ..... ..... ......... ..................................... Reasons for grant in g local autonomy ........ .. ... ......... ... ........ ......... .... ....... ..
3 19 3 19 319
SECTION 3 1. 2.
Enactme nt oflocal government code ........ ... ... ..... .. .. ...... .. ... ........ .... ......... Mechan isms of r ecall , initiative, and referen dum..... ................... .........
32 1 321
SECTION 4 1. 2.
S u pervi sor y power of P r esident over local governments ...................... Supervisory power with r espect to component unit " ....... .................. ...
322 322
SECTION 5 1.
Taxin g power of local government s con stitution ally gra n ted ........ ..... .
32:3
SECTION 6 l.
Automatic release of share of nation a l taxes ....................................... ..
324
SECTION 7 J.
Share in proceeds of utilization and development of n ational wea lth .... .... .... ..... ... .... ......... .. ... .... ........ ... ..... .... .. ........... .. ..
324
SECTION 8 l.
Term of office of e lecti~c local offic:als ... .. ..... ... .. ....... ........ ... ... ........... .....
3 2o
SECTION 9 1.
S ectora l representation in local leg isla tive bodies .. .. .. .. ................... .....
xxxi
326
SECTION 10 1.
Creation, division, merger, etc. of any local unit ...................................
326
SECTION 11 1.
Creation of special metropolitan political subdivisions............. .. .........
327
SECTION 12 1.
Component cities and highly urbanized cities .......................................
328
SECTION 13 1.
Grouping of local government units ............... .... .................. ............ .... ...
328
SECTION 14 1.
Regional development councils or other similar bodies........................
329
AUTONOMOUS REGIONS SECTION 15 1.
2.
Creation of autonomou~ regions ... ............................................................ Composition and condition for creation of autonomous regions .... ......
330 330
SECTION 16 1.
General supef"\isory power of the President over auton o m ou~ regions .... .......... ........... ..... ... .. .. .... ... .... ... ... ... ..... ..... ...... .. .
331
SECTION 17 1.
Residual powers vested in the National Government................. ... .......
331
SECTION 18 1.
Enactmen t and ratification of an organic act for each autonomous region .... ... ..... ..... .... .... .... .......... .... ......... .... ..... ........ .........
332
SECTION 19 1.
Time frame for the passage of organic
act~
.. ... ........ ..... .................. ..... .
333
Legislative powers of autonomous regions .. .... ....... :........... ....................
333
SECTION 20 1.
SECTION 21 1.
Preservation of peace and order within the regions . ........ .. ...... ............
xxxii
334
ARTICLE XI -ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1 1.
2. 3. 4.
5. 6.
Meaning of public office and public officer............................................. Nature of public office ............................................................................... Meaning of officer and employee.............................................................. Public oftice, a public trust................................ .... ................................... Accountability to the people ......... .. .. .................. ..................... ........ ......... Importance of maintaining public trust in public officers ............. ......
335 335 336 336 337 338
SECTION2 1.
2. 3. 4. 5.
Meani ng and nature of impeachme nt................. .......................... ......... .. Purpose of impeachment ................. .................. .... .................... ................ Officials removable by impeachment....................................................... Removal of other officials................................................................ .......... Grounds for impeachment.........................................................................
339 339 339 340 340
SECTION 3 1.
2. 3. 4. 5.
Power to initiate and try impeachment vested in Congress .... .. ........ .. P rocedure in impeachment cases............................................................. Penalty in impeachment cases ........................................................ ......... Effect of resignation....................... ......................... .......... ......................... Rules on impeachment...... ......................... ........... ....................... ..............
342 343 343 344 344
SECTION 4 L
The anti-graft court known as the Sandiganbayan ...............................
344
SECTIONS 5-11 1. 2.
Office of the Ombudsman to be known as Tanodbayan ........................ Rationale for creation of the two bodies..................................................
346 347
SECTIONS 12-13 1.
Powers, functions, and duties of the Ombudsman.................... ............
Right of the State to recover ill-gotten wealth.......................................
351
SECTION 16 1.
Prohibition against grant ofloan , guaranty or other form of financial accommodation ........................ .............................. .........
xai ii
352
SECTION 17 1.
Declaration of assets, liabilities and net worth ...... ...............................
352
SECTION 18 1.
Duty of allegiance to the State and the Constitution ...........................
353
ARTICLE XII- NATIONAL ECONOMY AND PATRIMONY SECTION 1 1. 2.
3. 4. 5. 6.
Concept of national economy and patrimony ........... ................. ............. Three-fold goals of the national economy ..................... .......................... Strategies to accomplish goals ... :....... ................... .... .... .............. ............. Guidelines in the development of the national economy ...................... Promotion of industrialization and full employment............................ Protection of Filipino enterprises against unfair foreign competjtion and trade practices........................................................
354 355
356 356 357 359
SECTION2 1.
2. 3. 4.
5. 6. 7.
8. 9.
State ownership of natural resources...................................................... Objectives of policy on natura] resources ............................................... Alienation of agricultural lands of the public domain ...... .................... Exploration, development and utilization of natural resou:rc2s .......... Period of agreement for exploration, etc., of natural resources .......... Agreement for exploration, etc., of natural resources limited to Filipinos.............................................................................. Protection of marine wealth ................................ ............ .. .......... .. .... ....... Small-scale utilization of natural resources by Filipinos to be allowed . ...................................................... ..... . .... ....................... Technical or financial assistance agreements with foreign-owned corporations.......................................................
361
362 362 363 363 364 364
365 365
SECTION 3 1.
2. 3. 4.
5.
Classification of lands of the public domain........................................... Basis and 1·ationale of classification........................................................ Determination of size of landholdings and conditions therefor ... .................................. ........ .... ..... ..... ...................................... Maximum size of landholdings................................................................. Grant, now a mode for the aequisition of public lands .........................
366 367 367 367
368
SECTION 4 1.
Congress to determine specific limits of forest lands and national parks..............................................................................
370
SECTION5 1.
Protection of rights of indigenous cultural communities to their ancestral lands............................................... x.xxiv
371
SECTION"S 1. 2.
Use of property bears a social function................................................... Right to own, Cl:ltablish and operate economic enterprises................. .
372 373
SE CT10N7 1. 2.
3.
Acquisition of pri vate lands.............. ...................... .................................. Proh ibition aga inst alien landholding...................... .... .. ......................... Consequence of violation of prohibition... ............................. ..................
374 374
375
SECTION 8 1.
Right of natural-born citizens who have lost their citizenship to acquire private lands ......... ........ ............... ....... ........ .
375
SECTION9 1.
Independe nt t.1conomic and planning agency headed by the President. t.o be established ...................... .. .................. ..... .... .
377
SECTION 10 1. 2. S. 4.
Filipinization of ce-rtai n areas of in vestmen ts ..... ............................ ..... Higher percentage of Filipino ownership.................. . ................ ............ Existing laws limiting certain activities to Filipi n<• citizens or corporations ..... .... .......... ............. .... ................................. . Regulat ion of foreign inve stm ent~ .. ........ ...... ..... . .. .. ... ... .... ....... ...... ...... ... .
379
3 79 380
380
SECTION 11 Meaning of franchise.. .................... ..... .................... .................. .... ............. Meaning of-public utility.. .......................................... .................. .... ......... 3. Limitations upon grant of fra nchise, etc. ......... .... ........................... ....... 4. Purpose oflimiti ng period of franc hise.......... ....... .... ... ....... ................... . 5. Equity participation in public utilities ........... ... ..... .. ........................ ...... 6 . Foreign par ticipation in any public utility.. .. ........ .. .. .. .. ............ .. ........ ... 1. 2.
382 382 383 383 383 384
SECTION 12 l.
Adoption of ''Filipino First" p olicy .. .... ................................. ....................
384
SECTION 13 l.
P romotion of trade policy that serves t he general welfa re ..................
385
SECTION 14 1. 2. 3. 4.
Promotion of national talent pool of Filipinos ............ ........................... Encouragem ent. of appropri ate technology .......... .................. ...... ........... Regu lation of technology trans fer .... .. .. ................................ ....... ...... ...... . Practice of all professions limited t o F ilipino!' .................. ...... .... ........ .. .
XXXV
387 387 388 389
SI<~CTION
1.
15
Agency to promot.e viability and growth of cooperatives to he c!'eat.ed .........................................................................................
389
SECTION J6 1. 2.
Formaliun. orgllnization. and regulation of corporations.................... Creation of government-owned or -controlled corp0l'at1ons .................
390 391
SECTION 17 1.
Temporary take-over or- direction of private busim!;;S by the government ..............................................................................
392
SECTION 18 1.
Go\•ernment ownership of husine!'is ............................ .... .. ....................
392
SECTION 19 1. 2. 3. 4. 5. 6.
Meaning of monopoly................................................................................ Regulatiun or prohibition of private monopolies ................................... Meaning of restraint of trade................................................................... Meaning of competition ............................................................................. Meaning of unfair competition................................................................. Comhination!'i in test.r-aint. uf trade and unfair compP.tition prohibited .......................................................................
393 393 393 S93 394 394
SECTION 20 1.
Central monetary authority to be established.......................................
395
SECTION21 1.
Rules with respect to foreign loam;..........................................................
396
SECTION22 1.
Act:; which circumvent or negate Articl(> XII .........................................
396
ARTICLE XIII- SOCIAL JUSTICE AND HUMAN RIGHTS SECTIONS 1-2 1. 2. 3. 4. 5. 6. 7.
Concept of social justice............................................................................ Duty of State to prc,motc social justice .................. ,................................ Beneficiary of social justice policy ........................................................... Social justice and property rights............................................................ Social jui
397 397 398 399 400
400 401
8.
Constitut ional provisions on social j ustice .... .............. .............. .. ...........
401
LABOR SE CTION 3 1.
2. 3. 4. ;). 6.
Prot ect ion to labor................................ ... ............................... .................... Promot.ion of full employment and equal work opportunities ............. Rights of workers....... ....... ... ....... ...................................... ..... ... .................. Principle of shared respon s ibility .................................... .......... .. ... ......... Methods for resolving labor di~p utes ... .............. .......... ........ .. ... ... .. ......... Roci procal rights of labor and en terprises............ ..... ..... .... ... .. ............ ...
403
404 405 407 407 408
AGRARIAN AND NATURAL RESOURCES REF ORM SECTION 4 1.
Undertaking an agrar ian r eform pr ogram .............................................
409
SECTION 5 1.
P lanning, organi1.ation, and management of the program......... ..........
411
SECTION 6 1.
2.
Dis pos ition of othe r natural r esources an d of pu blic a gr icultural es tate::> ........................................................... .................. Resettlement of landless fa rme rs and farmworkt~rs ..... .. ......................
412 412
SECTION 7 1.
Rights of subsistence fish e r me n and fishworkerf-! ..... ... ...... .. ..... ...........
413
SECTION 8 1.
Inves t ment incen tives to landowners........... .. ........ ....... .. .. ... .... .. .. ........ ...
41 3
URBAN LAND REFORM AND HOUSING
SECTION 9 1.
Undertakir..g a continuing urban land reform a nd housing program ........... ......................................... ... .......... .........
414
SECTION 10 1.
Ej ectm~nt
and rese t tlement of ur ban 0 1· rural poor dwellers.. ........ ................... ........ ........ .. ...... .... .. ... .... ..... ...... ...... ....
416
HEALTH SECTIONS 11·13 J. Protection and promotion of the right to hE>alth ..... .... ........................... xxxvii
417
WOMEN SECTION 14 1.
Protection of working women ....................... ............................................
420
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS SECTIONS 15-16 1. 2.
Role and righto of people's organizations...... ........ ..... ... .. ...... ...... ........... Obligatlons impo:;ed on the State ............... ......... ............ ............ ............
421 422
HUMAN RIGHTS SECTION 17 1. 2.
The Commission on Human Rights ................................ . . Reasons for creation nf t.he Commissinn ........... ............
422 423
SECTIONS 18-19 1.
Powers and functions of th(~ Commi;;sion ....... ........ .. .. ......... .............. .....
425
ARTICLE XIV- EDUCATION, SCIENCE AND TECHNOLOGY,
ARTS, CULTURE AND SPORTS EDUCATION 1. 2. 3. 4. 5.
SECTION 1 Concept of education............................................ ..... ... ........... .. ................ Ways for acquiring ed ucation ................ ........................... ....................... Goals in giving priority t-o (~duca tion, etc. .......... ................ .................... Right of all citizen~; to quality education ...... ....... ...... ..... ....................... Duty of the State to protect and promote right to quality educat.i1m .................. ............................. .... .. ...... ...........
427 427 428 42R 429
SECTION 2 l.
2. 3. 4. 5. 6. 7. 8.
9.
Complete, adequate, Hnd integrated system of educat.ion to be established, maintained, and supported ................. ............... System of education t o be relevant to the needs of the people and society .................................. .... ............................. System of a free publ ic education to be estabiished and maintained... .. .. ... ................... ......... ............ ..... ............................. Compulsory elementary education for all child,·en of schoo l age........ Natural right and duty of parcnLli to rear their ch ildren............ ....... .. Righ t oft.he State to a ::;~1fficiently educated citizenry.. .. ........ .. ........... System of scholan;h ip grants, e tc., t.o be estab lish ed and maintained .......................... ..................... .... ...... .... ........ ............... Non-formal, informal, and indigcnom; learning ;;ysterr.s. etc. , to he encouraged ............................. ........ .......... .......... Training in civie:;, vocational cfficiem:y and other skills to be provided....................................... ..... ... .................. ........... xxxviii
430 431
440 440 441 441 442 442 ·!45
SECTION 3 1.
2. 3. -l.
5.
Study of Constitution to be part of school curricula ............................. Educational a ims of schools...................................................................... Importance of values education... .... ........ ...................... ......................... .. Role of other sectors in the educa tion of the youth........ .... ....... ...... ...... Optional religious instruction in pub lic elementary and h igh schools to be a ll owed ........ .. .......... .. ..... ..... .... .. ......... .. .........
446 446 447
448
449
SECTION 4 1.
Complementa ry roles of public and private educational institutions recognized ..... ..... ... .. ...... ...... ....... ..... .... .................. .......... 2 . State power over educational in~ titutions........ .... .. .. ... .. ....................... .. 3. Ownership, co ntrol and administra tion of education al ins tit u t ions by Fi lipino t-'itizcns ..... .... ......... .. .. ... ........... ........... ......... 4. Educational instit u t ions est abli sh ed exclusively for aliens pr ohibited......... ....................................... ............................ 5. Exemption from taxes and duties .................... ........................................
450 451 45 2
453 453
SECTION 5 1.
Regioual and sectoral needs a nd conditions to b«:> taken into account ....................... ............. ............. ........ ..... .......... ................. . 2. Institutions of hi gher !earning t o enjoy academic freedom ................. 3 . 'Meaning of academic freedom ... .... ....................... ... ..... ......... ................. .. 4 . Importance of g uarantee of aca demic freedom ...................................... 5. Guarantee not a cademic licens e .... ....................... ....... .. ............. .............. 6. Right of every citizen to select a profession or cou n;~ of study ... . .. ... ... .. ..... ... .. .. .. .. .. .. .. .. .. ... .. ... .. ..... ... .. .. .. ... ... .. .... .... .. ... .. .. .. .. .... 7. Right of teachers t o profession a l a dva ncement ...... ... .. .... .. .. ... ............... 8. Right of non-tea ching academic a n d non-academic per sonnel ........... . 9. State to assign the h ighest budget a ry priority to education................. .......... .................. ... ......................................... . 10. Duty of State to improve lot of t eachers .... ....... .................. ............. .... ..
455 456 456 157 457 458 458 460
461
461
LANGUAGE SECTION 6 1. 2.
3. 4. 5. 6.
Concept of lan guage .............. :......... ..... .... ............................... ................. .. Importance of la nguage ............................... ..... .......................... ........ .... .. National language is Filipino .. ..... .............................. .... ........................ .. Pilipino not immediately abrogated ...... ............ ..... .... ..... .............. ....... ... Need for a oHtionallanguage .. ..................... ... ........ ..... .... .... .................. .. . Use of Filipino as a medium of offici al communica tion and langu age of instruction .... ............................... ............................
462 462 462 463 464
464
SECTION 7 l.
2. 3. 4.
Official languages ofthe Philippines ...................... ................................ Need for communication skills in E nglish...... ...... .. ............................... . Auxiliary offi cia l languages.. .. ... ......... ................ .. .... .. ..... .... .. .............. .. ... Difference bet ween officia l la ng uage and national lan guage ...... ...... .. x.xxix
465 465 466 467
SECTION 8 1. 2.
Constitution oflicially promulgated in Filipino and English...... ........ . Translation and interpretation ............................... ..... .... .... ....................
467 467
SECTION 9 1.
National language
commi ~?s ion
to be
establi::;ht~d
..................................
46R
SCIENCE &'lD TECHNOLOGY SECTIONS 10-13 1. 2.
3. 4. 5.
Concept of science and technology ... ....................................................... . Science and technology essen tial for national development and progress . ................. . ................ ......................... .... Promotion of science and t echnology................. ...................................... Science and technology education and training ............ ................. ........ Right to inventions, etc ., to be secured...................... ............. .......... ......
469 469 4 71
4 72 473 '•,,,',,,
ARTS AND CULTURE
\.
\\
SECTION 14 1. 2.
3. 4.
Conceptofart sand culture... .. .. .. .. ..... .. ..................... .. ...... .. .... .................. Importance of culture ................................................................................ Promotion of cultu re .... .......... .... .... .................. .... ...................................... Preservation, enrichmen t, and dynamic evolution of a Filipino national culture........ .. .................................. .................
474 4 74 4 75
4 76
SECTIONS 15-16 1.
Cultural trea::;ures ofthe nation .............................. .. .. .......... ..................
4 78
SECTION 17 1.
Rights of indigenous cult ural communities.......... .......................... .......
4 79
SECTION 18 1.
Equal access to cultural opportunities....................................................
480
SPORTS SECTION 19 1. 2.
Concept of sports .......................... ................ .................... ......... ............... .. Promotion of s port;, ...... ............................ ....... ......... :...... .. .. .............. .........
480 48 0
ARTICLE XV -THE FAMILY SECTION 1 l.
Concept of family ...... ................................................. ......... ........................ xl
482
~-
Importance of the family to the State ................................................... .. The Filipino family, the fonr.clation of the nation ................................ . Sphere of law on fan1ily ........................................................................... ..
482
483 484
SECTION 2 1. 2.
Concept of marri
484 484
SECTION 3 1.
Duty of State to defend family right;;...................................................... Sl<~CTION
1.
485
4
Duty to ca!'e for eldel'ly members.............................................................
487
ARTICLE XVI -· GENERAL PROVISIONS
SECTION 1 1. 2.
The Philippine Flag................................................................................... Exemption from flag een•mony on religious grounds............................
489 491
SECTION 2 1. 2.
Adoption or a new name forth(~ country, a national anthem, or a naLional f'C~al ............. ........................... .. ...................... Playing or singing of the 1\ ational Anthem............................................
492 494
SECTION 3 1.
2. :i.
1.
Pri neip le of mnH;u abih ty of the State . .. ... .. .. .... .... .... .... ............. .... .... .... Bases of the principle;;;............................................................................... When suits against the State pf~rmi~siblf .............................................. Waiver of immunity 110t admi!,:sion of liability......................................
494 495 495 496
SECTION 4 1.
2.
Armed Forces of lh~~ Phi hppinc;; to include a citi£en arn1cd force........................................................................................... The citi.,en ar·my {~onccpt.................................. ........................................
496 497
SECTION 5 1.
Rules applicable tc the armt>d forcef<.......................................................
Ownership and management. of mm;s mNlia by Filipino citi <,cns ... ...... .. .... ............. ... .. .. ...... .. ........ ... .. .... ..... .. .. .. .... .. Regulation or prohib ition of mon opoli£•S in cc,mmtrcia l mass media ........ ........ ............. ....... ..... ... .......... ... .... .................. ...... .... .. Regulation of the a dve rtisi ng indu.:.;t;·_v .. ............... .. ... ....... .............. .... .. Ownership and munagement of a clverti:;ing ind w'tt'}' .. ....... ........ ...... ..
504
,.....i'i05
fi05
506
SF.CTION 12 1.
Creation of consu ltative body ror indigcnou;; cultllra l communities. .... .............. .... .. .. ......... ... .... ....... .. .... ....... ... ........ ... ..... ... ....
506
ARTICLE XVII- A..~ENDMENTS OR REVISIONS SI!:CTION 1 1. 2. 3.
Amendment and r evision distin g u ished ... .... .... ........ .. ... ...... .................. Importance of the a mending proeedurP .... ......................... .. .. ............... Methods hy which a mendments or revi.:;ion may be propos ed .......... .... ... ........ ..... ..... ....... ....... .. .. .... .. .... ... .. .. .. .... .... ..
508 508 509
SECTION 2 L
Amendments propo!:!ed by the people th rough in itiative.............. ........
:309
SECTION 3 1. 2. 3.
Methods by which a constitutional con v(~ 1Hio·1 n; ,;y be callf>d . Meaning of constitutional con vent ion .. .. . ... . .. .. ... . ... ...... .. ... .. ... .. ... .. ... ..... Cons titution drafted by an appointive Con .:;titutionnl Commission... .................. .................... .... ... .... ... .... .. ... .. ... ... ... ...... ..... .
510 511 511
SECTION 4 1.
Rati5 ca t.ion by the people ...... ............... ..... .. ..... ....... ..... ..... .... ............. ... ..
512
ARTICLE XVIII - TRANSITORY PROVISIONS l.
Meaning and
purpo~e
of t ransitory pr ovision s ....... ........ .... .... ..... ... ..... .. xlii
5 13
SJ<-:CTIO!"'J 1 1,
Fir:;t el{•ction under the Con,titut.ion ............ , .......................................
513
S.J<:CTION 2 1.
Term of office of .Senator~, Hevrt:·sentatives, and locul of'l'iciais first ele('tcd ............................ ,...............................................
514
SECTlON 3 1.
All exist.\ng law!', ete .. remain valid until amended, l"t~pealed or revoked.............................................................................
514
SECTION 4 L
Renewal vr extension of exi~ting treaties or international agreen1cntil ......... ..................................................................................
515
SECTiON 5 L
Six-year term for incumbeilt President. and Vice-President extended......................................... ................................................... ....
515
SECTION 6 1.
Transitory legislative power of President...............................................
517
SECTION 7 1.
Appointment of nominee::; to sectoral seats ......................................... ..
517
SECTION 8 1.
Metropolitan Authority may be eon:-:tituh:d ...........................................
517
SECTION 9 J.
Sub-provinces to continue to
exi~t
Hnd operate.....................................
518
SECTION 10 1.
Existing courts to <:ontinur. .......................................................................
518
SECTION ll 1.
ln(;umbent members of the judicil.lry to continue in office...................
519
SECTION 12 1.
Adoption of a sy~;tematic p!an to expedite re~olution of pending cases in coLtrts .................................................................. xliii
519
SECTION 13 1.
Lega l effect of lap;;c uf maxim\HO period Cor l'CIHlering j u d icial decision .......... ..... .... ................ ... ... ....... ....... ....... ....... .. ........
519
S ECTION 14 1.
Wl1erc applicable period for rendition of judicial deci:;ion lapsel! after ratificat-i on of C(tnstitution ...... .. ... ...... ... .................. ..
5:l0
SECTION 15 l.
Incumbent members of the Constitutional Commi;;::~ions to continue in office..................... ........................ .... ... .... ........ .... .......
520 !
SECTION 16
,/ /
1.
Right. of separated civil
. ~;crvir.e employnt!~
~·/
ttnd career (Jfficc!'s ... ........
521
of con stit.ut.ional officers.. .... ............ ...... ............... ..... ...
521
S ECTION 17 l.
An nual
sa larie~
S ECTION HI 1.
Incr ease of salary scales of olht!r offi cials an d employee:< ............ .......
51:2
SECTlON 19
l.
Disposition of p roperties, rec:tlt'd::< . et<:. .......................... .... ...................... SECTIO~
1.
;)22
20
Full im plementation of free puhlic seconda 1·y educai.ion ........... .. .. ......
522
SECTION 21
1.
Reversion to State of illegally ucq Llin~d p11b!ic lands and rea_l rights cunnected t.hc1·cwith .. .. ........ ... ....... ..... ............. ........
523
SJ-.; CTlON 22 1.
Expropriation of idh! or aba ndotH1d la nds ... ...... ............... ..... .......... ...... .
523
SECTION 23 1.
Compliance hy adYertising compa nies with min im um Filipino ownership requirement .............. ... .............. .... ............ .... .... S:f~CTION
l.
24
Private armies and other armed groups t.o be d isman tled ...... .. .. ..... .... Jtl!v
524
524
SECTION25 1.
Requirements for allowing foreign military base!! in the Philippines............. ...... .............................. ...............................
525
SECTION 26 1.
Sequestered or frozen properties .................................. ..... ......................
526
SEC1'ION 27
L
Effectivity of the ne"v Constitution....................................................... ...
Reduced to its simplest terms, political science is the systematic study of the stat~:!! and government. The word "political" is derived from the Greek word polis, meaning a city, or what today would be the equivalent of sovereign state; the word "science" comes from the Latin word :~eire, "to know." c 1) The scienc(~ of politics. therefore, has, as its formal object, a basic knowledge and understanding of the state and of the principles and ideals which underlie 1t::; organization and activities . . (2} It is primarily com:erned with the association of human beings into a "body politic," or a politl<:al community (one o1·ganized under government and law}. (3) As such, 1t deals with those relatiom> among men and groups which are subject to control by the state, with the relations of men and groups to the state itself, and with the 1·elations of the state to other states. 2 Scope of political science.
Political science is a very <:omprehen~ive field. Its curriculum is almost certain to include courses in political theory, public law, and public administration as well as in various monl specialized subjects.:i
d) Political theory. --- The entire body •)f doctrines relating to the !Tht! word ''state" should not be wnfu;;ed with t.he states such as tho::;e which comprise the Unitc,d States. As used above, the term is equivalent to "nation" or "country," for E-!Xcllnple. lhc United States, Gr~at Britain, Philippines, Japan, etc. which are state!i in the polit.it:al scientist's sense. tRode:;;, Ander!i>on, and Christo!, Introduction to Political Science, McGraw-Hill, Inc., 1967 ed .. p. 4.) 2 Schmandt and Steinbirker ..t'andamentllls of Government, The Bruce Publishing Co., 1954 ed., pp. 17-18. "Such as local ~ovcrnmcnt, political p.:rties, elections, public opinion, public finance, government. and business, comparative political institutions, international relation!> including diplomucy (or international politicb} and intern~tional organizations.
1
2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
origin , form , behavior , and purposes of t h e s ta te are dealt with in the stu dy of polit ical theory. (2) Public law. - ·· The (aj orga nization of governments, (b) the limitations upon gover nmen t authority, (c) the power s a nd duti e ~ of governmental offices a nd officers, and (d ) th e obligation s of one state to another ar c handled in the study of public la w. In contradistinction to the rules of private law, which govern the rel~tions among individuals, public law is so specialized that separate courses are offered in each of its subdivisions constitutional la.w ( a , b ), admin istrative law (c ), a nd international law (d ). (3) Public administration. - In the study of public administration, attention is focused upon the methods and techniques used in the actua l management of st a te a ffa irs by executive, legislative, a nd j udicial branches of governmen t. As t he compleY.ity of government activities grows, the traditional distinctions a mong t h e powers of these br a nches become even less clear-cut.4 Today, le gislative bodies have been forced to delegate greater dis cr etion to executive officers r esponsible for t he conduct of gover nment poli cies and powers. Thus , we fin d many a dministr ative agencies exercis ing quasi-legislative and quasi-judicial power s , i.e., powers which a re legislative (see Ar t . VI, Sec. 1.) and judicial (se~ Art. VIII, Sec. 1.) in na ture. Administr ative law, a lr eady r efe rred to , nlso any broad study of public a dminist r ation.s
fa ll ~~:~vithffi..-~
scope of "-
Interrelationship with other branches of learning.
No precise a nd definitive bouudal"ies can be placed a round a subject a s comprehensive a s poli tical science . lt shares many points of common inter est with ot her s ocial disciplines . (1 ) H istory. -The bond between the political scientist and the historian is obvious in the observation t hat "history is past politics and politics present history .'' 'fh.e political sci entist fr eq uently a d opts a "his tori cftl approach" and employs knowledge of the past when h e s eek s t o interpret present and probable developments in politica l phenomena.
(2) Economics. - - U ntil late in the 19th century, political science and economics (the study of t he production, distribution, a nd conserva tion, an d consum ption of wealthj were coupled under the name of politica l economy. Today, these fields are j ointly concerned with the fact that economic conditions affect the organization, deve lopment, and activities of states, which in turn modify or even pr escribe economic conditions. The political scientis t regularly adopts an "economic approach" when seeking to inter pret such matter s as "public fin ancial policies'' and government r egulation of business. 'See Jacobsen an d Lipma n, Polit ica l Science, Barnes a nd Noble College Outli ne Seri c~. 1965 ed., pp. 2·3 . -'• See Rodee, Anderson. a nd Christ.ol, not~ J, op. c:it .• pp. 14-15.
I N'rROOUCT!ON A. The Study of Political Science
3
@ Geography. - Geopolitics (a science concerned with the study of the influences of physical factors such as population pressures, sources of raw materials, geography, etc., upon domestic and foreign politics) indicates one approach which a political scientist frequen t ly must adopt to help explain such phenomena as the early growth of democracy in Great Britain and the United States and its retarded growth in certain Continental Europe, and the rise of authoritarian governments in developing countries. (4) Sociology and anthropology. - The political scientist, the sociologist (who specializes in the study of "sudety as a whole"), and the anthropologist (who studies ''mankind'' in relation to physical, social, and cultural development) are all deeply concerned with the origins and nature of social control and governmental authority, with the abiding influences of race and culture upon society, and with the patterns of collective human behavior. (5) Psychology. - The political scientist as well as the psych9logist promote:.; studies of the mental and emotional processes motivating the political behavior of individuals and groups. One of the many topics which the political scientist handles from a "psychological approach" is that of public opinion, pressure groups, and propaganda . (6) Philosophy. - 1'he concepts and doctrines of Plato, Aristotle and Locke (and other universal thinkers about the state) are important to the specialist in academic philosophy and also to the political scientist. These concepts arc the underlying forces in the framing of constitutions and laws. The political scienti st considers the branch of phil o~:;o phy called ethics, too, when he contempl ates the moral background of proposed changes in soc.-ial legislation. (7) Statistlcs and logic. -The political theorist must possess a broad scientific background and a knowlf!dge of current political problems, and he must employ scientific methods in gathering and evaluating data and in drawing conclusions. These invo~ve a proper application of statistical procedures for the quantitative measurement of social phenomena and of logical procedures for the analysis of reasoning.'~ (8) Jurisprudence. --This branch of public la.\v is concemed wit.h the analysis of existing legal systems a nd also with the ethical, historical, sociological, and psychological foundations oflaw ."'A comprehension of the nature of law (whether the ''natural law" or the ''divine law") a nd of statutes enacted by legislatures is indispensable to the political theorist. ~ Law and state are inseparable . A:'tf:...states proclaim laws, effective within their jurisdictions, and enforce them through a system of penalties or sanctions. To maintain a fu11 understanding of the facts of politka l life,
Jacobsen and Lipman, note 4, op. cit., pp. ~~- 5. Rodee, Anderson, an d Christo!, not e 1, up. cit ., p. 14. 6 See Jacobsen and Lipman, note 4. op. ci t. ., p. 4. 6 Sce 7
TtJXTBOOK 0 ~ 'J'HE PHI LI PPINE CONSTITUTION
4
t he political sci en tist has t o combin e the legal with th e extra-legal viewpoints .9 Function and importance of political science.
(1 ) The function of political science i ~ to discover the pr in ciples that should be a dhere d to in public affa irs und to st udy the oper ations of government in or der to demonstrat e wh a t i s good , t o criticize what is bad or inefficient, a nd to suggest improveme nts . (2) Its fi ndings and concl usions may be of immense pract ical u se t o const itution-makers, legislators, executives, and j udges who need models or norms tha t ca n be applie d to imm ed ia te situati ons . Again, t hey m ay be of immense pra ctical use t o individua ls who seek to unde n~tand the state in which they live. ( 3 ) The study of political science deal s also wit h problems of socia l welfa t'e, governmental economic programs, internationa l cooperation, and a wide range of other matters t hat are urgent concern to publi c offi cia ls and to private citi z.ens. 10 /
Goal in the study of political science courses.
! I
Why s hould t he university or college student st udy politica l s~ence? Wha t good will i t do him or he r, in la ter life'! Will it h el p in ge tting a j ob -· in "getting a hea d"? Are political s cience courses ''practica l" (i.e., vocational)? (1 ) E ducation for citiz(mship. - I n answer, it should be ma de clear th at the primary objective of the political science cu rriculum is education for citizenship. The prepara tion of studen ts for careers in politics, law, teaching. the civil service, a nd t he foreign service (though vitally important ) is Recondary to the ta::~k of equipping them to dist:ha rgE> the obliga tions of democratic citi ze nship, which grow consta ntly heavier in the modern world.
(2 J E.c;sential parts of liberal education. _.. Most polit ical scie nce courses should be viewed as esse ntial parts ofl iber"' l e d ucation, bearing no materia h stic pr ice tag an d promising no j ob s ecurit y. Su ch shop-worn adjectives as "pra ctical" a nd "cultural" have no releva nce h ere. I ntelligent, responsible cit izens hip ca n save democracy; ignoranc e and neg ligence can lose it . Democra cy has pra ctical a dvant ages which no one can appraise in monetary terms. Just how much is freedom worth? The oft-repeated but seldom comprehended quota tion, "eter~l vigilance is the price of liberty," r equires amendment. Study, in for mation, a nd understanding of the com plexities of modern government and politics are necessary as eterna l vigilance. ~Ibid.
'~Ibid.,
p . I.
5
iNTRODUCTION B. Concept!:< of Slate and Government
1.3 J Knowledge and understanding of' government. -·· Political science :;eeks to gather and impart this knowledge and understanding. 'fhe "good" . citizen who behavl:!s him1:wlf
B. CONCEPTS OF STATE AND GOVERNMENT Meaning of state.
A stale is a c:ommunity of persons more or less numerous, permanently occupying a definite portion of territory, having a government of their own to which lhe great body of inhabitants render obedience, and enjoying freedom from extt~rnal control. 1 ~ The Philippines is a state. Eiements of state.
.
The modern state has four (4) essential elements. They are: (1) People.- This refers to the mass of population living within the state. Without people there can be no fimctionarie8 to govern an'1i annual growth rate. The 1995 figun~ waH 1>8,616,536 with a growth rab of 2 a2'iL 1
1 ~See
TEX'l"SOOK 0~ THF.
6
PHILIPPl~E
CONSTlTCTION
<2) Territory. - It indudes not only the~~>,Zer _wl:lic!l th!:! jurisdiclion of
the ~tat~ .~~t.e.nds, but also the'f!Y~'=§..~nd J.ik~ "therein , a .~Lt.ain area. of.the
sea wJ~~c_h.ab.ut& upon itB coasts and the a ir space above it. Thus, the domain of the state may be described as terrestrial, ..... ·- . fl. uvial, . . maritiri1e, -- -4·- and C!erial. -~ ~-
~
The smallest s tate in point of territory is Vatican , located just outside the western boundary of Rome with a n area of on ly 1/() s quare mile or 0.43 squa r e kilometer. It would flt in Rizal Park in Manila. The Republic of Nau ru h as an area of about eight (8) square miles or 20 square kilometers . The former Sovi et Unjon 17 was t h e largest state in point of territory with its total la nd a rea of about 8,599, 776 square miles. Now, the biggest st.ate is Can ada, having a n a r ea of:~,852 , 000 square miles whi.ch covers a sur face n early as large as E urope. T h e Ph jlippines has a total land area of about 115,707 squar e miles or 299,681 :.>quare kilometers; 1-'(3) Q.ourrnment.- It refers to
th~~l:lcy__.thl:o a~h
which thc.Yt:ill_Qf!,he
~d, ex.£i.~~~~-~~:~ carried_Q..l_lt. The word is sometimes u~ e'a
to refer to the person or aggregate of th ose persons in whose ha nd::; a r e placed for t he time being t he function of political control. This "body of men" is usually spoken of as "~drn.i.uisir.awm . " The ordinary citizens of a country a r e a par t of the state, but a.re not par t of the government; a nd ( 4) .SD..uerdg.n.ty. - The term m ay be defin ed as the _8!J-_2.J:e.m_e_,P 9."~~er_ of the state> to.£Qm.111and a_~g _ e!lfor<;e .oQa.£_h e-':J.ceto ltl) will fr om people within its j urisdiction and corolla rily1 t o have fre edom from fo reign cont rol. It has , therefore·; two manifestations: . -- . .. ,/:r .
(a)
_i_n f.J:.r.!Jg_l
a nd
0
H
-
O
•
-
-·
/
or the pow«:!~.oLt~u~~\~~th i q_J.t~.t~.r.rjtl) r_y ;
·
(b) ~nal or the fre e99..!!LQLt_he s tate to ~ a uy out its a cti viti es w.itho~syJ.Jectia.n...to .21 control by .9.thtir ~lj!tes·. External sovereignty. i::; often referred t o as m.depe;i"Jim~. . These in ternal and exter nal aspct:ts of sovereignty a rt' not a b:wlutely true in pr actice beca use of the de\'el upment of i nterna tion a l rel a tions a nd consequently, ofinternationa l la\<.· .
~· There are severa l theories concerning the origir, of state::;. amlmg which are: ( 1) !)i t.Ji!~e right theory. - I t holds tha t the s tate is of divine cre ation a nd the ruler is ordained by God to govern t he people. Refer ence h as been m a de by advocates of this theory to the laws which Mos es received at Mo unt Sinai; 17 With the collapse of com munism, the Un ion of S oviet Sociali,:;L Republic (USSR) broke up into several indepe ndent st ates, r eferring to t.hem~;dvcs as the Confederation of lodependent Siates tC IS ). 'AA square tn ile is eq u iva ltmt to 2.59 squa1·c k ilome t ers.
INTRODUCTION B. Concept.s of State and Gon!rnment
7
(2) ~eessi(y m· force theocy... ---It maintains that states must have been created through force. by some great. warriorfo\ who imposed their will upon i..he weak; (3} Paternalistic: theory_ --- It attributes the origin of states to the enlargementof the family \vhich remained under the authority of the father or mother. By natural stages, the family grew into a clan, then developed into a tribe which broadened into a nation, and the nation became a state; and
( 4) Social contract theorY~-- It asserts that the early states must have been for~edby deliberate and voluntary compact among the people to form a society and organize government for their common good_ This theory justifies the right of the people to revolt against a bad mlcr
It is not known exactly which of the above theories is the correct one. History, however, has shown that the elements of all the theories have played an important part in the formation and development of states_ State distinguished from nation.
Nation should not be confused with state a5 they are not the same. ( 1) The ~~js a militical_con~~pt, while vation is an .~nic con~-~pt. A 'l:E.no_rds a,.group ()f p~ople bou~lcl.J~&~.i.~I .P...t-!:.ertain characteristics such as common 'SOcial" origin, language, customs, and traditions, and who believe that they are one and distinct from others. The term is more strictly synonymous with (:_peop~~~ (2) A state is not subject to external control while a nation may or may not be independent of external control; and (3l A single state may consist of one or more nations or peoples and conversely, a single nation may be made up of several states. The United States is a melting pot of several nationalities. On the other hand, the Arab nation is divided politically into several sovereign states. Among them are: Egypt, Saudi Arabia, .Jordan, Syria, Lebanon, and others. The Philippines is a state composed of one nation.
In common usage, how·ever, the two term:'~ are often used synony· mously. The Constitution uses them interchangeably. State distinguished from government.
In common speech, they are usually regarded as identicaL As ordinarily, the acts of the government (within the limits of the delegation of powers) are the act.1-l o! the state, the former is 111eant when the latter is mentioned, and vice versa. The g_Q~E_~me~is only the.__a~~c~_!\u:u.ugh. ~}:litjl t~e3}ate_e~ l.t$._~11--.~~cal}.~.L~- witho~f._~_.g.Q.ve!:_n_!l;!~I.!h_;ou -~t is possible to have a government w1thout a~ Thus, we had var10us governments a~ different periods of our history, from pre-Spanish times to the present.
T EXTHOOK 0::--1 THE PH.ILIPPJNE CON STITlJTTON
There was no Ph ilippin e state during those periods when we were under foreign domination .. ~~'\~ .\~ "'' '· , •·-- /,... ¥'-."~' ':"' j.Jvvi·"'J\ ,:\\'r:~-J-.A\.0.~ t ,~ ~ ....~ - .. . ..)}I'Jtlfl':-. ~v ~~~: ~. 'vf' ·N ,._rv~ .lJf'~)JI'f'U.... ':. ' "· :..~~ "'\vl''\--- ~...,f """ "" A government may change, 1fs form may chan~e. but the state, as1o·ng as its esgential clements ar e present, remains the same. ).I\
Purpose and necessity o1 government. (1) Advancement of the p ublic welfare. - Gover nm ent exi sts and should con tinue to cx i!->t fo r th e benefi t- of the people governed. It is necessary for the protection of society and its members , the security of persons and property, the administra tion of justice, the preservation of the state fro m external d a nger, a nd the advancement of the physical, economic, social and cultural we ll-bei ng of t h o peo ple .
(:l ) Consequence of absence. - Government exista lo do these things which by t heir ..Jery nature, it is bettP-r equipped to a dmi nister for the public welfa re than any priv a te i ndividual or group of individuals. It is obvious that wit hout an organized structure of government, a narchy and disorder, and a gen eral feeling of fea r and inse<.:ur ity will pn~ vail in society, progress and developme nt will not be possible, and va lue:; taken for gran ted in a free modern society such as truth, freedom, j ustice, equality, r ule of law, a nd human dignity can never be enjoye d.
The need for government is so a pparent that even the most primitive socie ties, history shows, had some form of it. Forms of government.
The principal for ms a re the following: (] l A s to number of per:wn.s exerdsing sovereign p ower!'~ :
(a) lviJ/[q)chy or 9lle in which the supreme and fin al authority is in the hands of a single person without r egard to the source of hi:; ·e lection or the nature or d uration of hi.!> t enure. Monarchies a re fur ther classi· fted in to: · /_...r··· 1) Absolute mona.rch:y or one in which the ruler rilles by divine r ight; and
21 L imited monarchy or one in whkh the ruler rule1-:. in accordantt! w!th a constitution; ~W.\IIt ~~n-j~ c.,. .~~ lh J A•·t\~fa_cy or _pt~e in which political power is exercised by a fe w privil eged class which is known 11!-; an a ristocracy or oligarch y; and . .·D em?.lcracy L~\) or .P{te m - w h IC - h po1·ttl<.:a . I power . . exercise . d by a tel 1s 1 rnajOJ"i ty oi"the ·people. '' De mocratic governm ents are fu rther classifi ed in to: 1) J)irect or p ure de mocracy or one in which the will ofthe state is for mulated or expressed di~ectly and imm~diately through the ~\\ ~~\~\-<. '· Ir\l-.-1..~ ·,<:, ~'\o\\\ -
-------
' 9 G >~r ner . Polit.ic~ l
SciCJ)Ce and Government, p. :315.
rNTRODlJCTfON B. Conct!pf.s of Sl
c..J;;- , •.!l. . -
·t~ .......'\l•orv \~~~ ,.L. ...._". ~~-
people in a• mass meeting or primary assembly rather than through the med1um of delegates or representatives chosen t1) act for thern; 20 and 2) Indirect, representative, or n~publican democracy or one in which the ltillof the state is formulated and exp1·essed through the ag_encygf.a..r.clati:v.cly sm.alland select body.oTp-ersons ch075en by the, people to act as their rep_~_esentativer-;. 21
(2) "As
to extent of powers exercised by the central or national govern-
ment: (a) Unitary government or one in which the control of national and local affairs is exercised by the central or national government; and J "---'.A ~'tVv--1.
--'
..--:..
--
.
(b) Federal governmertt or one in which the powers of government
• • .. "- ~v'~· ·are divided between two sets of organs, one for national affairs and the
~-"' "'~-
.
vther for local affairs. each organ being supreme within its own.»phere.
The United States is a federal government. · ·-~.....~ . (), :.~-..- ... ',,n (3) As to relationship between the executive and the legislative branches -...: \-;.···'' ·of'\he government: ~ -:.,._._.. u ; ( ) Parliamentary government or one in which the state confers f ·- ~
upon the legislature the power to terminate the tenure of office of the real executive. Under this system, the Cabinet or ministry is immedi~ 4>'.'-..i ·:f .---. • .t. _ ately and legally responsible to the legislature and mediately or politi·~:.-'t.-:~ ~ cally responsible to the electorate, while the titular or nominal execu• . ._,j.., t.ive - the Chief of State- occupies a pMition of irrespon.sibility; and
.:--/.... -· d·,
(b) Presidential government or one in which the state makes the executjve constitutionally independent of the legislature as regards his tenure and to a hu·g(! exlent as regards his policies and acts, and furnishes him with sufficient powers to p-revent the legi::;lature from trenching upon the sphere ma1·!>.ed out by the constitution as executive independence and pre.rogativG. 22
On the basis of the above dassHications of government, it can be said that the Philippine government is a representative democracy, a unitary and presidential government with separation of powers. It also embodies some aspects of pure democracy such as, for instance, the constitutional provision on initiative and referendum. (see Art. VI, Sec. 32.) Under our Ctmstitution, executive power is vested in the President and the Cabinet, legislative power with the Congress composed of a Senate and a Hou.sc of Representatives, and judicial power with the Supreme Court and the lower ~ourts.-' 1 ~ 0 It iii no longer phyFoically pos~ihle in nn_v country today because of increase of popula· tion, expansion of territory, and complexity of modern-day problems. 21 Garner, note .19, p. :H!). · ztS(
10
TEXTBOOK
0~
TTH: PHTLIPPJ NE CO.NSTITU1'ION
C. THE GOVERNMENT OF THE PHILIPPINES IN TRANSITION The pre-Spanish government.
(1) Unit of government. ·-· Prior to the arriv ~Il of t he Spaniards, the Philippines was compolSed of settlements or villag~!S, each called barangay (consisting of more or less 100 families j, named after balangay, a Malayan word meaning "boat" (ther eby confirming the theory that the early Filipinos came to the Philippines in boats). Eve1·y barang~y was virtually a stat e, for it possessed th e four basic elements of statehood. At times, however, some barangays joined together as "confederations" mainly for the purpose of mutual protection against common enemies. (2) Datu. -- Each barangay was ruled by a chief called datu in some places, and rajah, sultan or hadji in ot.lwrs. He wn::; its c hit~ f executive, lawgiver, chief judge, and military head. In the perfo rmance of his duties, how ever, he was assisted usuall y by a council of e lders (maginoos) which served as his advisers. One cou ld be a datu chiefly by inheritance, wisdom, wealth, or physical prowess .
In form , the bara ng-a y wH s a monarchy with the d<•h t as the monarch. (3) Social classes i11 the ba.rangay. ---The people of the barangay were divided into four classes, n amely: the nobility (maha rlika), to which the datu belonged, the fre emen (tim a.wa), the serfs (a/iping namamahay), and the slo ves (aliping sagigilid). (4) Early laws. -·The early Filipinos had both written and mnvritten laws. The written lawl3 were promulgated by th(: -Spanish era are the "!vlaragtaH CodE'" which was said to h ave been written about 1250 A.D. by Datu Sum akwel of Panay, and t he "Kalantiaw Code" written in 1433 A. D. by Datu Kalantia w. also of Panay. The unwritten laws consisted of customs and traditions wVc:'h had been passed down from generation to gen~ration. ! (5 ) Comparison wWt other ancient govermnrnts. -- It can be said that the laws of the barangay wt~re generally fair. The system of.government, a lthough defective was not so bad considering thl:! conditions in other lands in the age during which it flourishe d. An eminen t s chola r has written: "The Filipino people, l:!ven in the prehistoric times h ad a lread y shown high intelligence and moral virtues; virtues and intelligen ce clearly manifested in their legislation, which , taking into consider atiori the circumstances and t he epoch in wh ich it was fr amed, was clearly a s wi~e, as prudent, and a s humane. as that of t he nations then at the head of civilization. "21
2·'S"'e Grego1·io F. Znide, Phil. Oov't ., 1962 ed., pp. 12· 19: "A Rough Surv~y of tlH~ PreSpanish Legislation in the Philippine;;,'' by .Justice Norbcrto Romualdez, PhiL Law Journal, Nov ., 1914, p. 179.
I~TRODl.:CTION
11
C. T he Government of the Phili ppines in Transition
Government during the Spanish period. 11) Spain's title to the Philippines. - It was based on the discovery made by Ferdinand MagQJlan in 1521, consummated by its conquest by ~1iguel Lopez de L£gazpi forty-five years later and long possession for almost four centuries, until it was terminated in 1898, when by the Treaty of Paris, t he Philippines was ce ded by Spain to the U nit~d States.
(2) Spanish colonial government. -- From 1565 to 1821, the Philippines was indirectly governed by the King of Spain through .Mexico. From 1821, when Mexico obtained her independence from Spain, to 1898, the Philippines was ruled directly from Spain. The council in Spain responsible for t he adminietration of the Philippines was the Council of the Indies. In 1837, it was abolished and legislation for the Philippines was temporarily performed by the Council of Ministers. From 1863, the Ministry ofUltramar (colonies) exercised general powers of supervision over Philippine affairs. Three times during the Spanish period (1810 -1813, 1820-1823, and 1836-1837), the Philippines was given representation i n the Spanish Cortes, the legislative body of Spain. A basic principle introduced by Spain to the Philippines was the union of the church and th e state. (3) Government in the Philippines unitary. - The government which Spain established in the Philippines was centralized in structure and national in scope. The barangays were consolidated into towns (pueblos) each headed by agobernadorcillo (little governor), popula rly called capitan, and the towns into provinces, each headed by a governor who represented the Governor General in the province. Cities governed under special charters were also created . Each of these cities had an ayuntamiento or cabildo (city council). Cebu was the first city to be established in 1565 in the Phi lippines. Th e second was Manila , in 1571. (4 ) The Governor-General. -The powers of the government were actually exercised by the Governor-General who r esided in Manila. He was "Governor-General," "Captain General," and "vice-royal patron." As Governor-General, he had execu tive, administrative, legislative, and judicial powers. As Captain-Gener al, he was Commander-in-C hief of all the Armed Forces in the Philippines. As the vice-royal patron, he exercised certain religious powers. Because of these broad powers, it h
Tl<;XTBOOK ON THE PHILIPPINE CONSTITl.IT!O!\
12
(5) The Judiciary. - Th e R oyal Audiencia \>Yhich was established in 1583 was the Supr eme Court of the Philippines during the Spanish times. Its decision was fina l except on certain cases of great importance which could be appealed t o the King of Spain. It a lso performed. functions of executive and legislative nature . Below the R oyal Audiencia., were two Territorial Au.diencias established in 1893 - one in Cebu a n d the ot her in Vigan - which exercised a ppellate jurisdiction over criminal cases coming from the surrounding territory. In 1886, courts of fin;t instance with both civil a nd criminal jurisdiction were es t ablished in the provinces. At t he bottom of the judicial system were t he justice of t he peace cour ts which were ef'tablished in the tiifferent towns in 1885. In a ddition, there were special courts, like the miJitary and naval courts which h a d j urisdiction over military offenses , and the ecclesiastical courts which had cognizanct~ of canonical matters and ecc] N;iastica l offenses . Treas ury a nd commercial courts wer e Rlso created but were later abolished.
(6) E valuation of the Spanish Government in the Philippines. - The governme nt which Spain established in the Philippines was defective. I t was a government fo r t he Spaniards a nd not for t he Filipino1:1. The Spanish offic ials we re often ine ffic ient. and corrupt . T he union of church and state produced serious stri f~s between the ecclesiastical and civil authorities. Equality before the law was denied to the Filipinos. The demerits, however, of the S panish adm inistration were more than offset by its merits . (a) The S pa ni ~h rule, when viewed in the broader light. of g lobal colonization, was generally mi ld a nd humane. The Filipino people were not brutalized. Spaniards and Filipinos intermarried and mingled socially. Slavery a nd t ribal wars were suppressed; (b) It broug ht a bout th e uni fi eation of t.he Filipino people . The diver se tribes were molded into one people. under on e God , one King, a nd one gover nment, and out of t heir common grievances against Spain , blossomed t.he spirit of nati onalism; and (c) S pain uplifte d the Filipinos from th~ depth of prim itive cult ure and paganism and gave them the blessing!> of C hri ~tianity a nd European civilization. 1 '; Governments during the Revolutionary era. (1 ) The Katipu nan government. - The K atipu nan was the secret soci ety t h at preci pitated our glorious revolut ion on August 26, 1896. It was organized by Andres Bonifa cio, who, together with a group of Filipino patriots, signed the covenant of the Katipunan with their own blood on
2
;;See G.F. ZaidE', note 24, op. cit., pp. 34-35.
I:-.
13
C. The Guve rnment of\.he Phiiippine:; in Transition
July 7. 1892.~6 The c~ntral government of the Katipunan was vest.ed in a Supreme Council (Kataastaasang Sanl{guniani. In each province there was u Provincial Council (Scmggu.niang BalangayJ and in each town, a Popular Council (Sa.ngguniant? Bayanj. The judicial power was exercised by a Judi ci al Cound l (Sanggu niang Huhu mani. The Katipunan was the first clear break from Spanish rule with the ultimate goal to establish a free and sovereign Philippines. It was replace d by another government whose officials headed by Gen. Emilio Aguinaldo as President, were elected in the Tejeros Convention held on March 22, 1897. (2) The Biak-na-Bato Republic. - On November 1, 1897, a republic was established by Gen. Aguinaldo in Biak-na-Bato (now San Miguel de Mayumo, Bulacan). It had a constitution which was to take effect for two years only. It declared t hat the aim of the revolutions was the "separation of the Philippines fro m the Spanish monarchy a nd their form a tion into an independent state." Th e Biak-na-Bato Republic lasted up to December 15, 1897, with the conclusion of t he "P act of Biak -na-Bato." (3) The Dictatorial Government. -Following the outbreak of the Span~ ish-American war on April 25, 1898, Gen. Aguinaldo, in view of the chaotic conditions in the cou ntry, establis hed the Dictatorial Government on May 23, 1898. The most important achievements of the Dictatorial Government were the Proclamation of Philippine Independence at Kawit , Cavite on June 12, 1898 and the reorganization oflocal governments. <4) The Revolutionary Government.- On ,June 29, 1898, Gen. Aguinaldo established the Revolutionary Gove rnment repla cing the Dictatorial Government with himself as President and a Congress whose function was advisory and ministerial. The decree making such change stated that th e aims of the new government were "to struggle for the independence of the Philippines, until all nations including Spain will expressly recognize it," and "to prepare the coun try for the establishmen t of a rea l Republic." (5) The First Philippine R epublic. --On September 15, 18 98, a re\·o tutionary Congress of Filipino rcpresentat.iYes met in Malolos, Bulacan at the call of the Revolutionary Government. The Malolos Congress ratified on Septembt!r 29, 1898 the proclamation of Philippine independence made by Gen. Emilio Aguinaldo in Kawit , Cavite on ,June 12, 1898 and framed the so-called Malolos Consti tut.ion. This Constitution was t he first democratic constitution ever promulgated in the whole of Asia. It esta blished a "free
'16The Katartstaa.san, Ka.g a lanl{galu.ng Katipun.an ng mfla A.nak ng Ba_,·u.n or Katipunno for short was actually the brainch ild of Marcelo H. del Pilar. He tried to establish it in Manila in 11:190 but succE~edl:!d only in 1R92 thr ough the he lp of his brother -in-law DeQdato Arellano and other F ilipino patriots. Del Pilar envi;;iont>d the Katipunan to be the "weapon of the weak" against. coloni·' l rnle in the country. The f(lunding of the radi<'al Kati punan justified the Filipino peoph!'S rt>sort to force because the colonial authorities a.horted La Liga Filipina , the organization through which Filipino dema nds could be pursued peacefull y. With the death of Del Pilar, nonifacio was th,·u!;t into the mat>lstrom of the Philipp in(! revr> lution. He becam e the moving l'< piri t of the Katipunan. The word "Ka tipu nan'' suggests oneness.
T £ XT fi00 K ON THE PHI LIPPI NE CONSTITUTION
l4
a nd indep end en t Phil ippine Rep ublic" whi ch wa s inaugu r a t ed on .Ja nuary 23, 1899 with G(m. Aguina ldo as President. Our First P hili ppi ne Republic was not recognized by t he fa mil y of n at ions. It was neverth eless a n or ganized government beca use it actually existed a nd its author ity wa ~:> accepted by the people. It exis ted from Janu ary 23, 1899 to Ma rch 23, 1901 Y In February, 1899, the United States a nnexed the Philippines a s a r esult of the Spanish-American War a nd in April, 1901, Gen. Aguina ldo was captured . Thus, the Republic was s hort-lived , its in depen dence cut short by the superior might. of a n ew colonia l power. The Ma lolos Constitution which provided for the est ablishment of a P hilippine Republic had no opportunity to opera te. However, this in no way diminis hes t h e histor ica l signifi cance of the Ph ilippine Revolution of 1896. It wa s the first war of independence fo ught by Asia ns a ga inst fore ign domination and it gave birth to the first constitutiona l democracy in Asia and th e West P acific. Governments during the American regime.
(1) The Military Government. - The America n military r ule in the P hilippines bega n on August 14, 1H98, the day aft er the ca pture of Ma nila. The exis ten ce of war gave t he President of the U ni ted St a tes the power to establish a Military Government in the Philippines , a s Comma nder-inChief of a ll A rmed F orces of the United States. His au thority was delegate d t o t he military governor wh o exercis ed as long as t he war lasted, a ll power s of government - executive, legislative, a nd judicia l. Th e fi rst Ame ri can Mili t a ry Governor was General vVes ley Mer ritt, t he second was GeMral Elwell E. Ot is, and the th ird and la st, was Major / Genera l Arth ur J\.b eArthur. (2) The Civil Government.- Pursuant to the s o-called Spoo ner Amendment (on the army a ppropria t ion a ct passed in the U.S. Congress on March 3, 1901) which ended the m ilitary regime in th e Philippines , the Civi l Government was inaugurated in Man ila on July 4, 190 1, h eaded by a Civil Governor whose position was created on October 29, 1901. Th e Civil Governor (the title was la ter changed to Governor-Gene ra l on Febru ary 6, 1905) also exercised legislative powers . He remained as Presiden t of the Philippine Commission, the sole lawma king body of th e government from 1901 to 1907. From 1907 t o 1916, the Philippine Commission a cted a s the upper house of the legislative branch with th e Philippine Assembly serving a s th e lower house. With the pass age of t he Spooner Law in 1901, these two bodies ga ve way to th e Philippine Legislat ure. The Philippines was repr ese nted in the Unite d State s by t wo Resident Commissioners who were elected by the Ph i lip pine Legis lature. T hese com missioners had seats in 27 SE!e
G.F . 7-!!idc. note 24, op. d t., pp. 38-45.
INTRODUCTJON C. The Govemm'!llt of t ht! Philippines iu Tr(l n sition
15
the United St at~s House of Representatives, r eeeiving the same emoluments and other privileges a.s the American members of that body, but without the right to vote.:t~< The fir ::~t Civ·tl Governor was JudgQ William H. 'I'aft 0901-1903 ). He was succeeded by Luke F. Wright (1904-1906) who wa~ the first American to enjoy the title of Governor-General of the Philippines. The last Governor-General was Frank Murphy (198:~-1935) who was also the first High Commissioner of the United States to the Philippines upon the in au~ura tion of the Commonwealth Government of the Philippines. ( 3 ) The Commonwealth Government of' the Philippines. - The next stage in the political development of the Filipinos was the establishment of the Commonwealth Government of the Philippines pursuant to an act. of the United States Congress on March 24, 1934, commonly known as the Tydings-McDuffi.e Law. Among other things, the Jaw provided for a transition period often years during which the Philippine Commonweal th would operate and at the expiration of ::.-aid period on July 4, 1946, the independence of the Philippines would be proclaimed <'!nd established.
The new government of t.he Commonwealth of the Philippines, deemed successor to the Government of the Philippine Islands, was inaugurated on November 15, 1935, following the first national election under the 1935 Constitution h eld on September 12, 1935, with Manuel L. Quezon and Sergio Osmefia, as President and Vice-President, respectively. The Commonwealth Government of the Philippines was republic an in form under the presidential type . The legislative povu~r was first. vested in a unicameral Nat ional Assembly a nd later in a bicameral Congress composed of the Senate and the House of Representatives. The judicial power was vested in the Supreme Court a nd inferior (i.e., lower) courts provided by law. The Government of the Commo nwealth ofthe Philippines was very autonomous. The Filipino~ had almost complete control over the domestic affairs, the United States retaining control only over matters involving foreign affair:-~ . During World War II , the Commomvcalth Government fum;tione d in oxile in Washington from May 13, 1942 to October 3, 1944. It was reestablished in Manila on February 27, 1945 when Gen . Douglas MacArthur, in a ceremony held at Malacafiang Palace on hehalf of the United States Govern ment, lurnt~ d over to Pref:'ident Osmena the full powers and responsibilities of t he Commonwcall.h Government under the ( 1935) Constitution. Governments during the Japanese occupation.
(1) The Jap anese Military Administration. - It was established in Manila on January 3, 1942, one day after its occupation. Under a proclama2
"See Ibid., pp. 54·55.
:"<.
16
TEXTBOOK ON THE PHfl.IPl'INE CONSTITUTION
tion iss uNl by the .Japanese High Command, the sovereignty of the Unite d States over t he Ph1li ppines was declared terminated. (2) The Phihppine Executive Comrnission. - A civil government known as the Philippi ne Executi ve Commission composed of Filipinos with J orge B. Vargas as chairman, wa s organized by t he military forceg of occupation. The com mission exercised bot h the executive and legislative powers. The laws enacted were. however, subject to the approval of the Commander-inChief of the Japanese For ces. The judiciary continued in the same form as it wa~ un der th e Commonwealth. Howevt>r, it funct ioned without the indepen dence which it ha d tradi tionally enj oy ed. 2!l
(3) The Japane~o:e-sponsored Rr~public of the Philippines. -On October 14, 1943, the so-called Japanese-sponsored Republic of the Philippines was inaugurated with .Jose P . Laurel as President. It was ofihe same character as the Philippine E xecutive Commission. Like the latter, the ultimate source of its a uthority was the Japanese military a uthority an d go vernmen t.:JU On August 17, 1945. P r esident Laurel proclaimed th~ dissolution of i.he Republic. The previous Philippine Republics.
( 1) Under .Joint Hesolution No . 9:3, approved by the United States Congresg on .June 29 , HJ44 , the Pr esident of t he United States was aut horized to proclaim the independence of the Philippines prior to July 4, 1946, a fter t he .Japanese had been vanqu ished and constitutiona l processes in t hfl country restored. The Republic of the Philippines wa s formally ina ugur
T he 1935 Constitution served a s the fundamentall"\,w not only for the Commonwealth Government which was inter;upted by th'e ..Sg_cgpd World War but also for the Republic of the P hilippines un til the "ratifi cation" of the 1973 Phili pp ine Constitution establishing a parliamentary form of government, effected by virtue of Procl amation No. 1102 of President Ferdinand E. Marcos
""See ibid.. pp. 100-1 01.
·'''Co Kim Chan vs. Valdez Tan Kch. 75 Phil. 11 3.
1NTHODUCTIO:-.; C. The Gover-nm ent of th~ Philippines in Transition
17
modified parliamentary system of government,:H thus making him its first Pre::1ident. All in a ll , there were nine Presidcnts 32 in the previous t hree r epublics, including President Marcos in his two (2) terms in the Third Republic.J:J The present Republic came in to being upon the ratification of the 1987 Constitu tion (,n February 2, 1987.31 The Provisional Government of 1986.
Before Corazon C. Aquino took her oath of office on the morning of February 25, 1986 at Club !filipino, San ,Juan , Metro Manila, the last day of a four-d ay "people pc>wer" revolt
(l:t Reuolutionary. -- The government was revolutionary because it was instituted not in accordance with t he procedun? provided in an existi ng Constitution. There is a definite acknowledgment in Procl amation No. 3 that the provil:lional government established t hel'ounder was revolutionary in character (without calling itself as such) having been install ed by direct action of the people or by "people power,'' deriving its existence and authority directly from the people themselves and not from the then operati ng 1973 Constitution. (2) De jure I de facto. - The first is one constitut ed or founded in accordance with. the existing constitution of the state (according to law ), while the other is not so constituted or fou nded but has the general support of the people and effective control ofthe territory over which it exercises its powers. A de facto go\'ernmcnt acquires a de jure status when it ga ins wid e acceptance from the people a nd recognition from the community of nati ons. '1 'Se~
"Principlf, (If separnt.ion (If powers" under At·ticln VI, Section 1. Emilio A~:.ruinnlclo 0898-1901J, Jose P. Laurel ( 1943-1945j, :.\1a.nuc~J :\. }{oxas (19461948), El pidio Quiriuo 11948·195:31, l:{amon Mngs-l 986.J. 3 "The last. 1.4-ye~r rule of President Marcos from t h e d~claration. of mart.i<1l law on Sept.embcr 21. 1972 u ntil hi;. ovP.rthrow on Fchruary 25, J9HG by the so·callcd "people power n!volution," waF: generally d~~cribed as dictatorial or auth oritarian . '"With the ouster of President Marcos, Co razon C. ,\quino HJ86-1992), became- the President, follownd by Fidel V. R;~mos (1992- 1998). ,Josf•ph r:. Estrada (!998-200li, and Gloria Macapagai-Arroyo <2001-presentJ. ls~e no te 2 to Art. \'1. Sec. :12. l F'rom 1898 to pre;;ent . we have 14 Presiden tr;, including Manuel Qu~zon 1\935-1944 ! and Sergio Osmei'ln : Hl-14-1946 1 who both served as Comm onwealth PrP.sidcnt.q. Macapagal-Arroyo WH"- elected \"ice-President in 1998. She ,:;·~cceeded b:.">trada a.~ Presidant. in 2001 whe n the l11tter wn~ fcm.:ed to give up the l'residt~ncy. !see not.e 2, to Sc(:. 32 of Art. VI. l Prcsidt\nt. Arroyo wa~ elt>e ted (not rn-clecbH]) for a six-year term in the May 10. 2004 e lflct.ions after serving the Last three! 3 1 year!': of the term of Presi den t F.l!trada. (see Art. VII. s~~. 4, par. 1.) ~!Namely :
o
If!
TEXTBOOK OK THE PHII.ll'PlNE CONSTITUTION
At its inception, the r evolutionary government was ill egal for lack of constitutional basis not having been sanctioned by either the 1935 or the 1973 Constitution. It was a de facto government but acquired a de jure status. There was no question then that the revolutionary government had won continuous public acceptance and support without any rcsistanrB whatsoever anywhere in the Philippines and the r ecognition of practically all foreign governments . (3) Constitutional and transitory. -The provisional government was not. a purely revolutionary rme but a hybrid constitutional revolutionary government, i.e., a revolutionary government. governing under a provisional or in terim constitution the people could invoke to protect their rights and to promote their welfare, to exist for a limited period until the ratification and effectivity of a permanent constitution. There was nothing, however, to prevent the government from amending, suspending or abrogating the Provisional Constitution and adopting a new one or operating without. any constitution. Jn other words, the Provisional Constitution did not have t.he status of a supreme or fundamental law because the government was not created by it and was not bound to obey it.
(4'> Democratic. -The provisional government was claimed to be democratic because it wa~ in stall ed by direct action of the pMple as a direct expression or manifestation of their sovereign will, and. therefore, it was based on the consent of the governed or the approval of the people. (5) Power/:i. - A revolutionary government heing a direct ct'eation of the people, derives its power~ from the people to whom alone it is accountable. It is said that a revolutionary government is clothed with unlimited powers because it makes its own laws; it is "a law unto itself." However, with the adoption of the Provisional Constitution, the revolutionary government opted to abide with and to subject itself to the provisions thereof, pending approval of a new charteL ~·
(6J The ProvisionaL Constitution. - Instead of declaring the 191~ Con-s titution with certain amendments and minus certain article~_...and provisions, as the interim Constitution, Proclamation No. 3 promulgated a Provisional Constitution to repln.cP the former , adopting in toto insnfar as they are not inconsistent with the provisions of the Proclamation, certajn provisions of the 1973 Constitution.
By its very nature, the Provisiona l Constitution 1as wt:ll as the revolu tionary government which operated under it l self-dest1·uc:t upon the ratifi cation and effectivity of tht> new Constitution on February 2, 1987. (Art. XVIII , Sec. 27.)
D. CONCEPT OF CONSTITUTION Meaning of constitution.
In its broad sense , the term constitution refers to "that body of rules and princj_p].e.s ia accu:r.<:!ctn~~- -"~-J~_h....w.hic.h ....t.h.~ . P.9"Yer~ _sove-reignty -~Ye
or
INTRODUCTION D. Concept of Coniltitution
19
.regulas!Y-~rcised .~~ As t hus defin ed , it cover s both..$..i=!:ttelj and .tinwritten ~on stitution~. ·
With parti<:u 1ar reference to the Can stitution of the ..EhJli.pvines, it may be defined as that wdtt@,instrJ.Lm.ent.by which the fl.:l.PdamentalPa.wers_of the government are established, limited, and defined and by which these power_~_ ~1~~ .Qhtributed among .the several d epartment::; or _pran~:hes for tht.!)~-safe and \;sef\.iTex.ercise for the benefit of the people. 36 \Vi~" \'"-.<.. \A\"'.. ¥'1\11.'\ ,, \'"• •
Nature and purpose or function of constitution.
(1) S erves as the supreme or fitndamentallaw. - A constitution is the ylfartf;\!:_ creating the gov~r !!ment. It has the status of a ppr~mlil gr .(undaiiiimtal fii\v·&6 -it:spe~l_l.{s for t.J:'Ie -~[_l_tire people from \\fhomit derives its claim to obedience. It is binding nn all individual citizens and all organs .of the government. lt is the law to which all other laws must conform a nd in accordance with which all private rights must be determined and aJl public authority administered_:n It is the test of the legality of alJ governmental actions, whether proceeding from the highest official or lowest functionary. ~8
(2 ) Establisht!.<; basic framework and underlying principles of government. -The purpose of a cons titution is to prescribe lhe permanent framework of the system of governm ent and to assign to the different departments or branche1:1, their respective powers and duties, and to establish certain basic principles on which the governm ent is founded. ~9 lt is primarily designed to preserve and protect the rights of individua ls against the arbitrary actions of those in authority. 10 Its function is not to legi s lat~ in detail hut to set limits on the otherwise unlimited power of the legislature.
Meaning of constitutional law. Con~ti.tutionallaw may be defined as that branch of puhJic law (see A, supra.) which treats of c.onstitutions, their nature, formation , amendment, and interpretation.
It refers to lhe law embodied in the Constitution a s well as the princi ~ pies growing out of the interpretation a nd application made by the courts (particularly the Supreme Court, being the court of last resort) of the 3
~Sec Cooley, Constit.utionnl limitations. p. 4 .
36
See Malcolm and Laurel. Phil. (;onstitutional Law, p. 6 (J936l. .\1ain, ;n AtL HO. ~~This it; not so unde r the Rritish Constitution in view of the su premacy of P11rliament wh ich det-e rm ines what is con11litutional, and lc!Sislatcs accord ingly. 3 ~Ma!t.•>lrn and Laurel. n<)te 32, op. cit., p. 2. [t actu ally serves as the framework of th e soci;ll. economic and political life ofth t~ nation because i t. governs , a lthough in a general way. practically all areas of human t>n deavor. •"Its effectivene~s as tile supremn Jaw dopends to a great dP.gree upon thl:! people the mselves. Tt becom n,:; a "mMe sc1·ap of paper" if they a llow those in authori ty to viola te it with impunity. The root:> ofcOil;;titutionalis m, it has been ~;a id , lie in the hearts of the people. •1 ~.Statf! v~< .
20
TEXTBOOK ON THE PHlLIPPlf\i .b: CONSTlTUTION
provisions of the Constitution in specific caf.les. Thus , the Philippine Con· stitution itself is bnef hut the Ja w of the Constitution lies scattered in thousands of Supreme Co urt decisionsY Kinds of constitution.
Constitutions may be das1>ified as foll ows: ( U A<; to th eir origi n and history:
(a ) Conventional or enacted. - One which is enactNl by a con~titu c nt assembly or gra nted by a monarch to his subjects like the Constitution of J apan in 1889; and
(bJ Cumulative or evolved . ·-- LikH the Engli!:'h Consli.t ution, one which is a product of growth or a long period of development originat· ing in cus toms, traditions, judicial decisions, etc .. rather than from a deliberate and for m a l enactment. ThE! above cla ssification substa n tially coincides with that of written and unwritten constitutions. (2) As to their form :
(a ) Wri tten. ··- One which has been given definite written form at a particular time, usually by a specially constituted authority called a "constitutional convention"; and (b) Unwri tten. -·- One which is entirely the product of political evolution, consisting targely of a mass of customs, usages a n d judicial decisions togethP.r with a smaller body of statutory enactments of a fundamental character, usua lly bearing diffenmt dates. 42 The English Constitution is unwritten only in the sense that it js not codified in a single document. Part of it is written - the Acts of Parl iament and judicial decisions. Indeed, there is no ConRlitution that is entirely written or unwritten. (3 ) As to manner of am.1mding them :
One regarded as a document of special s anctity which cannot be amended or altered except by some special machinery more cumbrous tha n the ordinary le gi ~ lative procl:!ss;n and \a ) Rigid or inelastic. -
ib ) Flexible or ela.stic. - One which possesses n o h igh er legal authority than ordinary laws and which may be altered in the same way as oth(!r laws. 44 The Phi lippi ne Co n~ti tution ··ro-~; ·b~--classified a!'i con ventional or en· a (;ted . written, a nd r igid or inelastic. It was draft ed by an appointive body called "Constitutional Commission." (see E, in fra.} •'V.G. Since•. Ph il. P ol it i•:a l Law. I! Lh e d ., p. 67 11962i. 1 ' See Garner. Poiitica l Scien ce and C'.r<>vernmcnt, p . 508. '"Strong. ~f
JNTRODUCTTON D. Concept of Constiiu t ion
21
Advantages and disadvantages of a written constitution. (1) It has the advantage of clearness nnd definiteness over an unwritt en one. This is because it is prepared with great care a nd deliberation. Such a conRtitution cannot be easily bent or twisted by the legislature or by the courts, to meet the temporary fancies of the mom ent. Hence, the protection it affords and the righ ts it guarantees are apt to be more secure/ Moreover, it is more st able and free from a ll dangers oft~mporary pop.ulat passion.~ 5
(2 ) Its disadvantage lies in the difficulty of its amendment. (see Art. XVII.) This prevents the immediate introduction of needed changes and m ay thereby retard the h ealthy growth and progress of the state.46 Requisites of a good written constitution.
to form, a good written constitution should be: (a) Brief. - because if a constitution is too detailed , it would lose the advantage of a fundam ent al law which in a few proviHions outlines the structure of the government of the whole state and th e rights of the citi1.ens. Jt would probably never be understood hy t.h(~ pu blic. Furthermore, it would then be nec£;ssary to amend it every once in a while to cover m
(1) A.c:
(b) Broad. - because a statement <.1f the powers a nd functions of government, and of the re lations between the governing body and the gove rned, requires that it be as comprehensive as possible; 47 and (c) Definite. - because otherwise the application of its provisions to concrete situations may prove unduly difficult if not impossible. Any vagueness which may lead to opposing interpretations of essential features may cause incalculable har m. Civil war and the disruption of the !:'tate may conceivably follow from ambiguous expressions in a constitution. 18 (2)
As to contents, it should contain at least three sets of provisions:
(a) That dealing with t he framework of government a nd its powers,. and defining the electorate. This group of provisions has been called the constitution of government; (b) That setting for th the fundamental rights of the people and imposing certain limitations on the powers of the government as a
"'Ibid., p. 524. ' Hfbid. 'The scope must be wide enough to make the Constitution n t
Malcol m and Luurel, note 32, 1lp. <:it., pp. 15- 16.
TEXTI300K ON THE PHILIPPINB CONSTf1'UTlON
means of securing the e~joyme nt of these rights. This group has been referred to as the constitution of liberty; and (c) That pointing out the mode or procedure for amending or revising the constitution. This group has been called the constitution of
souereignty. 49 Constitution distinguished from statute. ( l) A ccnstitution is a legislation direct from the people, while a statute (see Art. VI, Sec. 1.) is a legislation from the people's representatives; (2) A constit.ution merely states the general framework of the law and the government, while a statute provides the details of the subject of which it treats;
(:1) A constitution is intended not merely to meet existing conditions but to govern. the future, while a statute is intended primarily to meet existing conditions only; and
(4) A constit ution is the supreme or fundamental law of the State to which statutes and all other laws mu~t conform. Authority to interpret the Constitution.
( l) Even a private individual may interpret or ascertain the meaning of particular provisions of the Constitution in order to govern his own actions and guide him in his dealings 'Vith other pen:ons.MI (2) It is evident, however, that only those charged with official duties, whether executive, legislative, or judicial, can give authoritative interpre· tation of the Constitution. (a) This function primarily belongs to the courts whose final decisions are binding vn all departments or organs of the government, including the legislature.;, They will thus construe the applicable constitutional provisions not in acwrdance with how the ·executive or legislative department may want them construed, but in accordance with what said provision$ say and provideY (b) There are, however, constitution al questions !i.e .. political questions) which under the Constitution are addresse d to the discretion of the_ other departments a n d, therefore, beyond the power of the judiciary to decide. (see Art. VIII , Sec. 4.) Thus, t he determination of the President as to which foreign gcvernment "is to be ~ecognized by the Philippines cannot be passed upon by the courts.
·~see Garner. In troduction to Political Science, pp. 390-:!98. "'Black , Constitutio nal Law, :~ rd
INTRODUCTION E. Constit ution of thn Rep ublic of the Philippines
23
Purpose in interpreting the Constitution.
The fundamental purpose in construing constitutional provisions is to ascertain and give effect to the intent of the framers and of the people who adopted or approved it or its amendments. It is, therefore, the duty of the courts to constantly keep in mind the objectives sought to be accomplished by its adoption and the evils, if any, sought to be prevented or remedied. 53 It may be assumed that the people, in ratifying the Constitution, were guided mainly by the explanations given by the framers on the meaning of its provisions .""
E. CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES The 1935 Constitution. (1) Framing and ratification. - Briefly stated, the steps which led to the drafting and adoption of the 1935 Constitution of the Phil ippines are as foll ows: (a ) Approval on March 24, 1934 by President Franklin D. Roosevelt of the Tydings-McDuffie La w, otherwise known as t h e Philippine Independence Act, enacted by the United States Congress, authorizing the Philippine Legislature to call a constitutional convention to draft a constitution for the Philippines;
(b) Approval on May 5, 1934 by the Philippine Legislature of a bill calling a constitutional convention as provided for in the Independence Law; (c) Approval on F ebruary 8, 1935 by the convention by a vote of 177 to 1 of the Constitution (the signing began on t he following day and was completed on February 19, 1935); {d) Approval on March 23, 1935 by Pres. Roosevelt of the Constitution as submitted to him, together with a certification that the said Constitution conformed with the provisions of t he Independence Law; and (e) Ratification on May 14, 1935 of the Constitution by the Filipino electorate by a vote of 1,213,046, with 44,963 against. (2) Limitations and .conditions. - While the Tydings-McDuffie Law empowered the Filipinos to frame their own constitution , it contained, however , provisions limit ing such authority. Aside from other specific limitations and conditions laid down therein, it enjoined that the constitution to be dt·afted should be republican in form, should include a bill of rights, •ssee 76 C.J.S., pp. 49-50. G•Nitatan vs. Commissioner of Internal Revenue, 152 SCRA 284, July 23, 1987.
24
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
and should contain certain proVJSlons intended to define the relations between the Philippines and the United States during the commonwealth period and a fter the establishment of the Philippine Republic. The 1935 Constitution ceased to operate during the Japanese occupation from 1942 to 1944. It automatically became effective upon the reestablishment of the Commonwealth Government on February 27, 1945 (supra.) and the inauguration of the Republic of the Phili ppines on July 4, 1946. (3) Sources.- The 1985 Constitution of the Philippines did not contain original ideas of government. While the dominating influence was the Constitution of the United States, other sources were al so consulted by the framers, particularly the Malolos Co.1stitution and the three organic laws that were enforced in the Phi lippines before the passage of the TydingsMcDuffie Law, namely: the Instruction of Pres. Wilham McKinley to the Second Philippine Commission on April 7, 1900; the Philippine Bill of July 1, 1902; and the Jones Law of August 26, 1916 which, of the three mentioned, was the nearest approach to a written constitution. (4) Scope. -The Constitution as approved by the 1935 Constitutional Convention was intended both for the Commonwealth and the Republic . Thus, Article XVII (which later became Article XVIII after the Constitution was amended) declares: "The government established by this Constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawa l of the sovereignty of the United States a1:d the proclamation of Philippine Independence, the Commonwealth of the Philippines sh a ll henceforth be known as the Republic of the Philippines." (5) A mendments. - The 1935 Constitution had been amended three times. Among the amendments are: (a ) that establishing a bicameral legislature; (b) that a llowing the reeligibility of the President and the Vice· President for a second four-year t erm of office; (c) that creating a sepa rate Commi ssion on Elections; and (d) the so-called Parity Amendment which gave to American citizens equal right with the Filipinos in the exploitation of our natural resource s and the operation of public util ities. Concerning women suffrage, this issue was settled in a plebiscite held on April 30, 1937, wh en 447 ,725 women reportedly vote d yes and 44,307 women voted no. In compliaMe with 'th.~ 1935 Constitution (Art. V, Sec. 1 thereof.), the N ational Assembly passed...a la\v which extended right of suffrage to women. The 1973 Constitution. ( 1) Framing. - The experience of more than three decades as a sovereign nation had revealed flaw s and inadequacies in the 1935 Constitution .
INTRODUCTION
25
E. Const itution of th e Republic of t ho Phili ppines
(a) Taking into account the "felt necessities of the times," particularly the new and grave proble ms arising from an ever increasing population, urgently pressing for solution, Congress in joint session on March 16, 1967, passed Resolution of Both Houses No. 2 (as amended by Resolution No. 4, passec on June 17, 1969), authorizing the holding of a constitutional convention in 1971. (b) On August 24, 1970, Republic Act No. 6132 was approved setting November 10, 1970, as election day for 320 delegates to the Constitutional Convention. The convention started its work of rewriting the Constitution on June 1, 1971 . The 1935 Constitution, with reference to the Malolos Constitution, was made the basis for the drafting of amendments to th e new Constitution. The proposed Constitution was signed on November 30, 1972. (2) Approval by Citizens Assemblies. - Earlier on September 21,.1972, the President of the Philippines issued Proclamation No. 1081 placing the entire country under martial law. (a) "To broaden the base of citizens' participation in the democra tic process, and to afford ample opportunities for the citizenry to express their views on important matters of local or national concern," Presidential Decree No. 86 was issued on December 31, 1972 creating a Citizens Assembly in each barrio in municipalities and in each dis trict in chartered cities throughout the co~ntry. Subsequently, Presiden tial Decree No. 86-A was issued on January 5, 1973 defining the role of barangays (formerl y Citizens' Assemblies). (b) Under the same decree. the barangays were to conduct a referendum on n ational issues between January 10 a nd 15, 1973. Purs uant to Presidental Decree No. 86-A, the following qn~stions were submitted before the Citizens' Assemblies or Barangays: 1) "Do you approve of the New Constitution'?"; and 2) "Do you still" want a plebiscite to be called to ratify the new Constitution?" (3) Ratification by Presidential proclamation. - According to Proclamation No. 1102 issued on January 17, 1973, 14,976,561 members of all the Barangays (Citizens' Assemblies) voted for the adoption of the proposed Constitution, as against 743,869 who voted for its r ejection. On the question a s to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 answered that there was no need for a plebiscite. On the basis of the above results purportedly showing that more th'an 95% of the members of the Barangays (Citizens Assemblies) were in favor of the new Constitution and upon the allegedly "strong recommendation" of the Katipunan ng mga Barangay , the President of t he Philippines, through Proclamation No. 1102 on January 17, 1973, certified and proclaimed that
TEXTBOOK ON THE PHIUPPINE CONSTITUTION
26
the Constitution proposed by the 1971 Constitutional Convention had been ratified by the Filipino people and had thereby come into effect.55 (3) Amendments. -The 1973 Constitution had been amended on four occasions. Among the important amendments are: (a) that making the then incumbent President, the regular Presi· dent and regular Prime Minister; (b) that granting concurrent law-making powers to the President which the latter exercised even after the lifting of martial law in 1981; (c) that establishing a modified parliamentary form of government; (d) that permitting n atural-horn citizens who have lost their citizenship to be transferees of private land, for use by them as residence; (e) that allowing the '"'grant" of lands of the public domain to qualified citizens; and (f) that providing for urban land reform and social housing pro·
gram. The 1987 Constitution. (1) Framing and ratification. - The 1987 Constitution was drafted by a Constitutional Commission created under Article V of Proclamation No.3 issued on March 25, 1986 which promulgated the Provisional Constitution or "Freedom Constitution" following the install~tion of a revolutionary government "through a direct exercise of the power of the Filipino people." (a) Pursuant to Proclamation No. 3, the President promulgated on April 23, 1986 Proclamation No. 9, the "Law Governing the Constitutional Commission of 1986," "to organize the Constitutional Commission, to provide for the details of its operation and establish the procedure for the ratification or rejection of the proposed new Constitution."
Under the Proclamation, the Constitutional Commission "shall be composed of not more than fifty (50} national, regional, and sectoral representatives who shall be appointed by the President." As constituted, the Commission was composed only of forty-eight (48'! members- fortytwo (42) men and six (6) women, with a prepo nderance of lawyersbecause of the withdrawal of an opposition appointee and non-accepts~ln cases involving the above proclamation, the Supreme Court on March 31, 1973, by a \•ote of six (6) to four ( 4), dismi;;sed all the petitions filed . It said that "this being the vote of the majority there is no further obstacle •t-o the new Constitution b~i11g considered in force and effect.'' There was, however, no rulint(that.the 1973 Constitution has been validly .t·atified, because six (6) out often (10) justices held that there was no valid ratification, but the votes were not enough to declare that the Constitution was not in force. In suhs~quent cases, the Suprem~o Court recognized the validity of the 1973 Constitution. Javellana vs. Executi\·e Secretary, 1!1 al.; Tan vs. Executive Secretary; Roxas v~:. Melchor; Monteclaro vs. Executive Secrct.ary; Dilag vs. Executive Secretary, 6 SCRA 1048, March 31, 1973. See also Aquino vs. COME!...EC and National Treasurer, 62 SCRA 270, Jan. 31, 1975.
rl\·monuc·J'lON
27
E . Constitution of the RApublic of t he Phili ppine;;
a nee by the Iglesia ni Krista of the President's offer to submit a nominee. (b) The Constitutional Commission, which m arked the fourth exercise in the writing of a basic chartet in Philippine history since the Malolos Constitution at the turn of the century,11G convened on June 2, 1986 at the Batasang Pambansa Building in Diliman, Quezon City. With the Malolos Constitution of 1898, the 1935 Constitution, and the 1973 Constitution as "working drafts," the Commission in addition to committee discussions, public hearings, and plenary sessions, conducted public consultations in different parts of the country. (c) The proposed new Constitution was approved by the Constitutional Commission on the night of Sunday, October 12, 1986, culminating 133 days of work, by a vote of 44-2. A Commissioner57 signed subsequently by affixing his thumbmark at his sickbed on Octooer 14, 1986 so that he actually voted in favor of the draft. Another Commissioner5·' had resigned earlier. The two Commi ssioners 5~ who dissented also signed "to express their dissent and to symbolize their four (4) months of participation in drawing up the new Con~titution." (d) The Constitutional Commission held its final session in the morning of October 15, 1986 to sign the 109-page draft consisting of a preamble, 18 Articles, 321 Sections and about 2,000 words - after which, on the same day, it presented to the President the original copies in English and Filipino. It was ratified by the people in the plebiscite held on February 2, 1987. 1' 0 It superseded the Provisional Const itution which had abrogated the 1973 Charter. (2) Merits and demerits o/' an appointive framing body. ·-- Admittedly, t here were some merits or advantages in delegating thfl drawing up of the n ew charter to an appoi:1ted Constitutional Commission r ather than to an elected Constitut1onal Convention. (a) For one, the Constitutional Commission was r:ut expensive and time-consuming, as was our experience with the 1971 Constitutional Convention and it was thus practical because the <:ountry could not then afford the cost of electing delegates because oflack of funds, and time was of the essence in view of the instability inherent in a revolutionary government a nd the need to accelerate the restoration to full constitutional democracy.
5'This
does not include the 1943 Constitution which wHs drafted and ratified hy a special National Convention of the Kapisanan sa Paglilingkod .sa Bagong Pilipinaf> (KALIRAPI> when the Philippines was under Japanese occupation from 1942-1944 during Wnrld War II. ~ 7 Decoroso R. Rosales, St.. Luke's HospitaL Quezon City. ;,~Lino 0. Brocka. r.~Jose E. Suarez and Jaime S.L. Tadeo. 1 A' 17,059,495 voted "yes" 176.37?C of the t otal votes cusl) ~:~s agains t 5,058, 714 rcpreF
n;XTBOOK ON THE PHILIPPINE COt\STlTUTION
28
(b) However, the strongest a nd most fundamental a rgument propounded against this rnGthod is that an a ppointive body is sus ceptible to the charge of lack of independence a~d the suspicion ofprcssure and even manipula tion by th ~ appointing power. The writing of a Constitution as the highest expreHsion of t he peoplc'!ol "ideals and aspirations" to serve the country for generation s to come is a political exercise of transcendenta l importance in a republican democracy a nd, therefore, only those directly e lected an d em powered by the people must be entr us ted with the task to discharge this grave and solemn responsibility.Gt (3) N eed to cure defect i.n the Constitution. - To havo a truly democratic and constitutional government, it is absoh.ttely necessary that the Constitution be initially drafted by duly elected members of a representative constituent a ssembly or convention a nd later on approved by the people in a plebiscite. Some see the need to Rtraighten out the p resent Constitution which was drafted by n on-elective commissioners a nd ratified under the authority of a revolutionary government. The theory is posited that having it ame nded by electe d delega tes and having constitutional amendments ratified under the d emocratic government, we will have now cured any defect in its formul a tion and ratificati on. 6 ~
Basic principles underlying the new Constitution.
The 1987 Constitution is founded upon certain fundamental principles of government which have become part and parcel of our cherished democratic heritage as a people. A knowledge of t hese principl es is , therefore, essential to a proper understanding of our organic law. Among these principles as contained in the new Constitution nre the fo llowing: (1) Recognition of the aid of Almighty God (see Preamble. l;
(2) Sovereignty of the people Csee Art. II, Sec. 1.); (3) Renunciation of war as an i nstrument of national policy «see Ibid., Sec. 2 .);
( 4) Supremacy of civilian authority over the military 1 see Ibi d., Sec . 3.); (5) Separation of church and S tate
~'The fact, howcver;-that thtl memhort; of the Constitutiona l Comm is:oion were s elected a nd app ointed by th e.: Presliten.t..[!:Q!ll..a-lis t. of nomi netls does n(•t nece,saarily establish that it. was not representative of the sover eign will of t.he Filipino ~ople or that the new Const.itution fails to ex:press their will as to wha t the supreme law ought t o be. Conversely, a constitutional convention. like the ones Wtl have hnd in 1935 a nd 1971 , may not a l way~ be reflecti ve of the senti men ts or dAs ires of the majori ty of the people who e lected it:; delegates. 62See "Though ts: RP Cons ti tution," hy former President Diosdado Macapagal , Manila Bulletin , p. 7, Feb. 5, 1989.
INTRODUCTJO;-..' K Constitution of the: Republic of thE' Ph ilippinl's
29
(6) Recognition of the importance ofthc family al:l R basic social institution and of the vita l role of the youth in na tion-building (see Ibid., Sees . 12, 13; Art. XV. ); (7)
Guarantee of human rights (l';ee Art. III, Sees. 1-22.);
(8j Government through s uffra ge (see Art. V , Sec. 1.);
(9) Separation of powers (see Art. VI, Sec. L ); (10 ) Independence of the judiciary (see Art. VIII, Sec. 1.);
( 11) Guarantee oflocal a utonomy (see Art. X , Sec. 2.);
(12) High seosP. of public service morality and accountability of public officers (see Art XI , Sec. 1.); ( 13) Nationalization of natural resources and certain private enter-
prises affected with p ublic intere1;t (see Art. Xll , Sees. 2, 3, 17, 18.); (14 ) Non-suability of the State (see Art. XVI, Sec. 3.); (15) Rule of the majority; and
(1 6} Governmen t of laws and not of men. The above principles (except Nos. 15 and 16) a re discussed u nder t he corresponding provisions indicated . Rule of the majority.
The observance of the rule of th e majoritys.1 is an unwritten law of popular (i.e., d emocratic) government. The wishes of t h e majority prevail over those of the minority . It does not mea n that the mi nority is left without rights. It is given certain fuhdamental righ ts, like the right to express their opinions, or to protest the actH of the majority a lthough it is bound to abide by the decision of the latter. ( 1) Concept. -
(2) Instances.- In many in Htances, the rule of the majority is observed in our government. Thus, under the new Constitution: (a ) A majority vote of a ll the respective members of the Congress is necessary to elect the Senate President and the Speaker of the House of Representatives (Art. VI, Sec. 16ll ].), and a majority of all the members of Con gress to concur t o a grant of a mnesty (Art. VII, Sec. 19.) and t o pass a law g-ran ting tax exemptions. (Art. VI , Sec. 28( 41.) In case of a tie in the election for Pres_ident (or Vice-President), the President shall be chosen by the majori t y vote of all the members of both Houses of Congress. (Art. VII, Sec. 4 .) (b) A two-thirds majority of a ll its respective members is required to suspend or expel a member of eith er House (Art. VI, Sec. 16[31.); of all the members of Congress to declare the existence of a state of war
6
"'';\1ajority" me
30
Ti':XTBOOK ON THE PHILIPPINE CONSTITUTI ON
(Ibid ., Sec. 23L2.1. l, to reconsider a bill vetO(!d by the President (Ibid., Sec. 27[2j.). and to call a constitutiona l convention (Art. XVII, Sec. 3.); n.nd of all t he members of the Senate t o concur t o a treaty or internationa l a greement (Art. VII , S ec. 21.) and to r ender a judgment of conviction in impeachment cases. (Art. XI, Sec. 3 l6J.) (c) Any amendment to, or revision of, t he Constitution may be proposed by Congress upon a vote of t hree-/ilurths of a ll its members (Art. XVII , Sec. ll.lJ. ), and it sha ll be valid when ratifie d by a majority of the votes cast in a plebi scite. (!bid., S ec. 4.) (d) D ecisions of the Supreme Court en bane h ave to be concurr ed in by a majority of the mentbers who a ctually took part in the deliberations on the issues in the c as;; ~ and voted thereon , to pronounce a treaty, international or executive a greement, or law unconstitutional x x x. (Art . VII1 , Sec. 4. ) In the Court of Appeals, the vote of at least the majority is necessary in m a ny cases. Even in the passage of local ordinances, t he rule of the m ajority is observed. (3) A practicable rule of law. - T he d evice of the majority is a practicable rule of law based on reasun and experience. Democracy assumes that in a society uf r a tional beings, the judg ment a nd experience of the many will, in most instances , be superior to t he judgment and experience of the few ; and hence, t htit the verdict of the majority will more likely be correct than tha t of the minori ty. li is, of course, to be understood t hat the m ajority acts within t lw pale of the law. 64 Government of law and not of men. ( 1) Conc(~pt. -By t his principle, which is also known a nd h as the sam e import as thHrule of !a u·, is meant that no man in this country is above or beyond t he law . E very ma n, however high and mighty his station m ay be, possesses n o greater rightsl;.; than every other man in the eyes of the law. ( 2 ) Exercise of government powers. - A government of laws, as con· trasted with a govemmen t of men, is a limited govern ment. It ha s only the powers given it by the Constitution a nd laws, and i t may not go beyond the gr ants and limitations set fo r th therein.ojfj Its authority continues only with the con::;ent of the people in wh om sovereignty resides. 1 Art. II , S ec. l. )
Where personal whims and u ncontrolled discretion guide the conduct of govornmental action, what exists is not a rule of la w but a r eign of men
.\
'
•;·•Sec Sclum1 ndt & Steinbicker, note 2, op. cit., p. 265. ";Rut where there n re ra tio nal gro unds for so doing. the law may constitut ionally grant special r ights or pri\ilcges t o IJCrsons belon ging to n clas;; (o?.g., to the Pres ident ) which are denied t.o persons who a re not s imilarly situo ted. (see Art. III. Sec. 1.) ''''Sec V.G. Sirwo, n ote 37, op. cit .. p. 126.
INTRODUCTION E. Constitution of the Republic of the Philippines
31
without law. All officers of the government, from the highest to the lowest, are creatures of the law and are, therefore, bound to obey it. A government that fails to enforce the law, in effect, fails to govern.
(3) Observance of the law. -- The same is true of private individuals in the community. They are also bound to respect the sovereignty of the law. A person may not agree with the wisdom and expediency of the law but it is his duty to follow the law so long as it remains in the statute books. He cannot take the law into his own hands by resorting to violence or physical force to enforce his rights or achieve his ends without being criminally held liable for his action. · The principle thus protects most especially the liberties of the weak and underprivileged. (4) Significance of the principle.- It is basic that laws must be obeyed by all and applied to everyone - rich or poor, lowly or powerful - w.ithout fear or favor. The observance of the supremacy of the rule of law by officials, individuals, and the people as a whole is what will sustain our democracy and assure the existence of a truly free , orderly, and equitable society. (see Preamble. )
Every citizen has thus a stake in the rule of laW0 7 as contrasted to the "rule of men." Without it, there is only anarchy, or a mere semblance of order under a dictatorship .
- oOo-
67P roclamation No. 713 (Se;:>t. 22, 2004) declares September of ~;~ve ry year as "Rule of Law" month, and for the Department of Education to implement programs and activities in the observance thereof.
PREAMBLE We, the sovereign Filipino p eople, 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 com mon good, conserve a nd d evelop our patrimony, and secure to ourselves and our posterity the blessings of independence a n d d e mocracy und er the rule of law and a regime of t ruth , justice, freedom, love, equ ality, and peace, do ordain and promulgate this Constitution. Meaning of Preamble.
The term preamble is derived fro m the Latinpreambulare which means "to walk before~" 1 It is an int roduction to the main subject. It is the prologue of the Constitution. Preamble not essential in a constitution.
Technically s peaking, the Preamble forms no integral part of our Constitution. Of itself alone, it cannot be in voked as a sour ce of private right enforceable by the courts or of any governmental power not expressly granted or at least, clearly implied therefrom. 2 It is significa nt to note, however, that a m ajority of the constitutions of the world contain a preamble. Object and value of Preamble.
(1) Sets down origin and purpose.~ of the Constitution. - While a preamble is not a necessary pa rt of a constitution. it is advis able to have one. In the case of the Constitution of the Philippin es, the P reamble which is couched in general terms, provides the broad outline of, and the spirit behind, the Constitution. It serves two (2) very important ends: (a ) It tells u s who are the authors of the Constitution and for whom it has been promulgated; and 1 2
Tucker on the Constitution, p. 381. See 1, S tory on th e Constitution,··P.-.........361.
,"
.
3~
PREAMBLE
33
(b) It states the general purposes which are intended to be achieved by the Constitution and the government es ta blished under it, and certain basic principles underlying the fundamental charter. (2) May serve as an aid in it.<; interpretation . - The PreamblP. has a value for purpose& of const ruction. The statement of the general purposes may be resorted to as an aid in determining the meaning of vague or a mbiguous provisions of the Constitution proper. By way of illustration, the government is without power to impose taxes for private purpose because according to the Preamble it is established for public purpose t he promotion of t he common good - and not for pr:-ivate purpose. Source of Constitution's authority.
(1) The Filipino people. - The Constitution begins and ends 'vith the words, "We, the sovereign Filipino people, imploring the aid of Almighty God x x x, do ordain and promulgate this Constitution." Thus, the Filipino people themselves (not just their representatives) are the source from which the Constitution comes a nd being so, it is the supreme law of the land. The Preamble r etains the use of the term "F ilipino people" to signify their oneness and solidarity. It is different from the term "people of the Philippines" which may refer to the entire body of inhabitants, a mere "aggrupation" of individuals, including aliens. (2) A souere{gn people. - The Constitution calls the Filipino people "sovereign." The first person approach consisting of the use of the pron ouns "we" and "our'' h as also been retained instead of the impersonal t hird person approach (i.e., "the Filipino people" and "their") in the Preamble of the 1935 Constitution. The intention is to stress that the Filipino people in ordaining and promulgating the Constitution do so on their own authority as a sovereign people and not by virtue of the authority or permission given by a superior foreign power. Belief in God stressed.
Our Preamble is in the form of a collective prayer. The Filipinos are intensely religious people. In imploring the z.id of Almighty God, they declare and affirm their belief in the existence of a Supreme Being that guides the destinies of men and nations. They recognize the fact that with th e help of God, t hey will be able to achieve the ideals and aspirations to which they are commit ted. In a sense, they acknowledge God as the source of their authority. · The Philippines is the only predominantly Christian and partly Muslim nation in Asia and East Pacific Region. 3
3Christ ian ity and ].slam are the two leading religions of mankind t hat co·exist in Philippine socie ty today. Isla m came to the sou thern Philippines at about th e beginning of the 14th century, or even earlier, through foreign :.\oluslim traders - and later mainly
TEXTBOOK ON 1'HE PHILIPPINE CONSTITUTION
34
National purposes and aims in adopting the Constitution.
A., set forth in the Preamble, they are: (1)
To build a just and humane society; a nd
(2) To establish a Government that shall: (a) embody our ideals and aspirations; (b) promote the common good;
(c ) conserve and develop our patrimony; and
(d) secure to ourselves and our posterity the blessings of independence an d democracy under the rule of law and a regime of truth , justice, freedom, love, equality, and peace. Attainment of the constitutional goals. (1) Root causes of our present problems. - After more than a half century of independent existence,' the Philippines continues to be beset with pressing economic, political, a nd social problems usually associated with underdevelopment. To be sure, every administration has been responsible, one way or another, for the slow progress of our country. A simple analysis will reveal that the root causes of our country's problems can be traced to a large extent to the government machinery itself - graft and corruption, political wrongdoings, blunders in economic policies, and mismanagement, among others. 5
The public perception of these shortcomings plus the inability of the government to satisfy the basic needs of our increasing population, have engendered misgivings in the minds of many in t he effectiveness of the existing system, and have , in fact, contributed to our lack of unity and oneness as a people.,; (2) Government envisioned by the Constitution . - The two goals - to build the kind of society and to establish the kind of government set forth through Muslim mi:.ettled larg~ly by Christi ans excPpt for the provinces of Maguindanao, Basilan, Sulu, Taw i-Tawi, La nao riel S ur, and Lanao d el ~orte whe n~ the Muslims prepo nderate. · 'From the United States, with the proclamAtion of independence and inauguration of the Republic of the Philippines on July 4, 1946. 5 To the credit of President Ramos, the Philippines, after three decades of turtle -paced growth, has made much headway in its development efforts to achieve th e status of a newly industrialized count.r y by the year 2000. 'This lack of national unity is easily one of the main reasons why the Philippines has been left far behind by its Asian neighbors tJ:!at up to 30 years, with the exception of ,Tnpan, were traili ng the Phili ppines in ex ports a;, weH.,as gross national product CGNPJ. (see Art.
XII, Sec. 1.)
'"""'
\
PREAMBLE
35
in the Preamble - are attainable only if the government actually established js of the character envisioned by the Constitution. (a) That government must be democratic, i.e., based on the consent of the governed, and it must be so not only in its structure but more importantly, in its operation. (see Art. II, Sec. 1.) For instance, it is not enough that taws are just and humane- they must be applied justly and humanely; or that periodic elections are held- they must be clean and orderly and must accurately reflect the will of the electorate. (b) That government must be administered by honest, efficient and dedicated men and women who consider public office as a public trust. (Art. IX, Sec. 1.) (c) That government must be responsive to the people's needs and expectations, exercising power and authority in view only of the common good, always guided and controlled by the laws and the Con'stitution. (3} Single biggest factor for national solidarity. - Such a government is beyond doubt, t he single biggest factor for national solidar-ity for it commands the respect and confidence of the citizens in its ;ntegrity and competence and, therefore, can readily secure their support and cooperation behind great undertakings and, in times of grave crises, count on their loyalty and patriotism to make sacrifices, and if need be, to defend it and the democratic ideals and values (e.g. , rule of law, respect for human dignity, freedom, equality) it stand~ for . ( 4) Key to a succ:essful democracy. -Only when we succeed in establishing a truly popular "government that shall embody our ideals and aspirations,'' as intended by the Constitution, can we overcome \vhatever difficulties and m eet whatever challenges that we face today and that may confront us in the future. Only then can we build for ourselves and the succeeding generations a vibrant democracy that can withstand the toughest tests of events and a::;sure a life of prosperity and progress, justice and dignity for all, especially the poor and the less privileged in our society who up to now consti.tute the vast majority of "the sovereign Filipino penple." ·see Art. II, Sees. 9-11.)
Changes in the Preamble. (1) The Preamble, consisting of 75 words, is one of the world's longest preambles. It has 15 words more than that of the 197a Constitution.
(2) The phrase Almighty God replaced "Divine Providence" in the 1935 and 1973 Constitutions which was considered vague and impersonal. The latter term was used in the 1973 Constitution as a compromise to accommodate some atheists in the 1971 Constitutional Convention. Common good is used to refer to all the people in place of "general welfare" which is not as inclusive as it may be interpreted to refer only lo the welfare of the greater majority (even to the gre at prejudice of the minority), and f'reedom
TEXTBOOK ON T HE Pl\ ll.lPPfNB C0!\1STITVTION
36
instead of "liber ty'' becau se the latter wor d does not cover freedom fr om want, fe ar and ign ora nce. (3)
Other a mendment s are the insertion of the following phrases a nd
words: (a) to build a just a nd h umane societ:v, t o stress that in ordaining a nd promul gating the Con st itution , the purpose is not only t o establish a gover n ment but also such a society where inequalities or inequities in a ny form do not exist. This is esp ecially r elevant in our society toda y where there are so few with so much and so ma ny with so litt}(•; (b ) the rule of la w (see Introduction -E .), the Const itutional Commis sion appar ently having in mind the cou ntry's experi('nce of authoritaria n rule under the fo r mer r egi me which had been accus ed, am ong other s, of huma n right s violat ions. electoral fra uds a n d t err orism, suppression of diSt!ent , abuse of the decree- making powe r , an d un equal application of the law; (c) aspirations, to stand for the un reallze d drea ms of t he nat ion as distinguis hed from "ideals" which r efer t o accepted norms a nd sentiments ; (d) -truth , to emphasize the const itutiGna l policy of t ranspa rency in the a dministration of the govern ment ; a nd (e ) lot'e, as a dir ective principle of the P r eamble together with t ruth , justice, freedom, equality a nd pea ce . In ma ny parts of t he cou ntry t oday , int ense partis an conflict s and political riva lries, not to mention the long-dr a wn communist a rme d rebellion a nd the seces::;ionist move ment in the south,' and the r epeated coup attempts by disaffected military r ebels to overth r ow t he governme nt,k have engendere d hatred, violence and tension!:! , a nd hin der our progres s and development. With · out a sense of love to bind the F ilipin os and m a ke them show mor e com passion, concern a nd u nderstanding for one another es pecially dur ing thes e cr it ical t imes when the cou ntry is confront ed by vexing sociopolitico-economic problems , nation al unity a nd pea ce so vitally needed in th e gr eat tas k of bui lding a s trong and st a ble nation, will remain an elusive goa l.
' Armed dis,.,idence again ilL t he go,·ernm e n t ha,; r aged virtually wit hout let-up !Iince t.be late 1940!1. lt wa!; followed by t he H ukba la h ap re bt! llion, then beginni11g l9i0, by a Maoist in surgency. The sepa ratist n~ht!ll ion among the l\Iu:;lim comm ~&nitic;; of S ul u a nd Wcf
37
Incidentally, the new Constitution is the only one in the world to enshrine "love" in its text which can also be read as ''human fraternity'' or "brotherhood." (4) The word independence in the 19~~5 text of the Pr~amble (which was almost an exact reproduction of the Pn~amble of the U.S. Constitution except for some alterations in phraseology) was changed to "democracy" in the 1973 Constitution for the reason that the term denotes the idea of a colonial status (which was existing at the time of the adoption of the 1935 Constitution), and it is long E.fter 1946 when the Philippines had become legally independent. It is restored to stress our being an independent nation, "free to build and chart our own destiny, in our own time and in our own way."
Of course, there is no nation in the wcrld that is truly independent. Each nation is to a certain degree depEmdcnt upon others, for no nation, no matter how progressive and prosperous, can be completely self-sufficient. The constitutional goal is self-reliance and freedom from foreign control and intervention in the development of our national economy (see Art. II, Sec. 19.} and the pursuit of our foreign policy. (lbid., Rec. 7.)
(5) The words peace and P.quality were inserted in the 197:{ Constitution in view of the turbulence, and the waves of p1·otest against "basic economic and social inequalities" then prevailing in the country at the time of the framing of the same. ThE-se conditions continued to exist up to the last days of the Marcos regime. While the idea which "equality" signifies is already embodied in the term "democracy," it is imperative that emphasis .should continue to be made in the new Charter of the egalitarian objedives of our society. -oOo-
Article I NATIONAL TERRITORY SECTION 1. The n a tional territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories ove r which the Philippines has s overeignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its t e rritor ial sea, the s eabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, a nd connecting the islands of the a rchipelago, rega rdless of their breadth and dimensions, form part of the internal waters of the Philippines. Necessity of constitutional provision on National Territory.
The Constitution begins with a delimitation of our national t erritory. ( 1) Binding fo rce of such provision under internationa llaw. -There is no rule in international law which requires a State to define its territorial boundaries in irs Con::; titution . The r eason is th at \vith or without such a prnvision, a State under i nterna tiona l la w has the unquestioned right to assert juri.sdil'tion t hroughout the e xte nt of its territory. Nor is s uch delimitation binding upon other S tates who are not precluded from claiming title to territories which they think is their!'l . 1
In any case, terri torial disputes have t o be settled ael'Ording to tht> rules ofinternationallaw. (2) Value of provision defining our national territory. - :-\eYertheless, it is important to define as precisely as possible our na tion a l terrhory fo r the purpos e of making known to t he world the «reas O\·cr ,,·hieh we assert title or ownership to avoid future conflicts with other n mions. As a sovereign State, the Philippines can promulgate and enforce laws within our country. Every other power is exclud ed from exe rc is~ng dominion or jurisdiction without t he conse nt of the Philippin es.
1A constitutio n is not internat ional law but only a the state promulgating it.
38
~ to te
' \. .......
la w:
a~
l! uch. it is binding only on
Sec. 1
ART. I. -NATIONAL TERRITORY
39
International law recognizes the supreme authority of every state within its territory, although foreign sovereigns and diplomatic envoys are entitled to exemption from local civil and criminal jurisdiction. 2 (3) Acquisition of other territories. ·-Incidentally, the definition of our national territory in our Constitution does not prevent the Philippines from acquiring other territories in the future through any of the means (e.g., purchase, exchange, etc.) sanctioned by international law. l National Territory of the Philippines.
As provided in Article I, it comprises: (1) The Philippine archipelago 3 with all the islands and waters embraced therein; 4 (2) All other territories over which the Philippines has sovereignty or jurisdiction;5 • (3) The terrestrial, fluvial and aerial domains including the territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas thereof; and (4) The internal waters. (Sec. 1.) Meaning of archipelago.
The term archipelago is derived from the Greek word pelagos meaning "sea." It has been defined as a sea or part of a sea studded with islands, often synonymous with island groups, 6 or as a large group of islands in an ~xtensive body of water, such as sea. 7 In other words, it includes both sea and islands which geographically may be considered as an independent whole. Other territories over which the Philippines has sovereignty or jurisdiction.
(I) The phrase "all the other territories belonging to the Philippines by 2 Every Filipino i.:itizen, however, whether he is inside or outside the country, is subject to the personal JUrisdiction of the Philippines. Thus, he can be made subject to Philippine income tax. ~The Philippi rws. one oft he largellt archipelagos in the world, lies off the southeast coast of Asia. Nearest to it are MalaYsia and Indonesia on the south and Taiwan on the north. Its estimated 7.107 i~lands cover an area of about 300.440 square kilometet·s stretching in discontinuous coastli(1e of 1.850 kilometer;; from north to south. The Philippine archipelago referred to in Article I are those mentioned in Article I of the 1935 Constitution. 'Geographically, the Philippines is compo~ed of three main parts: Luzon in the ~orth, Visayas in the center, and Mindanao in the south. r.Actual exercise of sovereignty is not essential to the acquisition or retention of sovereignty rights over a territory. "See Glossary of Oceanographic Terms (1960}, U.S. Naval Oceano~raphic Office. :see Meritt Students Encyclopedia (1960).
40
TEXTBOOK ON THE PHILlPPINE CONSTITUTION
Sec. 1
historic right or legal title"8 in the former provlSIOn was amended as indicated above. The phras e acquired a definite meaning in the 1973 Const itution as a cover-aU for pending Philippine claim to Sabah (formerly North Bor neo) against Malaysia and the possible ~laim to the so-called Freedom land (a group of isla nds known as "Spratley" islands in the South China Sea) and the Marian as Islands, including Guam (which according to historical documents were under the control of the civil and ecclesiastical authorities in the Philippines during the Spanish r egim e), or any other territory over which the Philippines may in the future fine it h as a right to cl aim. Its inclus ion in the definition of our national tenitory merely provided for the possibility that said territories might eventually become a part of the Philippines but it did not settle t he question of whether they belong to the P hilippines by historic right or legal title. (2) The deletion, h owever, of the words "by historic right or legal title" is not to be construed as precluding future claims by the Philippines to a reas over which it does n ot actually e xercise sovereignty. The change is designed to improve our relations with Malaysia while allowing flexibility in pursuing the Sabah claim. 9 Other areas included in the Philippine archipelago.
Th e Philippine territory consists of its terrestrial, fluvial, and aeriaP 0 domains. Included in its fluvial domains, in addition to the external wat ers, are: ( 1} The territorial sea. - It is that part of the sea e xtending 12 nautical miles ( 19 kms. } from the low-watermark. It is also-called the "marginal sea," the ';m a rginal belt,'' or the "marine belt"; (2) The seabed (or sea floor or sea bottom). -This r efers to the land tha t holds the sea, lying beyond the seashore, including mineral and natural resources;
~Hi.~torit: right h as been tak en to mean title created in derogation of internati onal law th roug h h istorical process by which on e state has asserted jurisdiction originally illegal, which has been acquiesced in by the community of nations. I.egal title, on the other hand, r~ fc,·s to >l der ivative title, ll UCh
SE>c. 1
ART. I . - NATlONAL TERR[TORY
41
(3) The subsoil. -This refers to everything beneath the surface soil and the seabed, including mineral and natura] resources; (4) Insular shelves (or continental shelves).- They are the submerged portions of a continent or offshore island, which slope gently seaward from the low waterline to a point where a substantial break in grade occurs, at which point the bottom slopes seaward at a considerable increase in slope until the great ocean depths are reached; and (5) Other submarine areas. -They refer to all areas under the territorial sea. Among oceanographic terms used are seamount, trough, trench, basin, deep, bank, shoal, and reef.
As part of the national territory, the seabed, the insular shelves, and other submarine areas are necessarily co-extensive with the territorial sea. The Philippines has a right or title to them to-the extent recognized by international law.
Three-fold division of navigable waters. From the standpoint of international law, the waters of the earth are divided into: (1) Inland or internal waters. -They are the parts of the sea within the land territory. They are considered in tht same light as rivers, canals, and lakes within the land territory of a state. They are sometimes called national waters;
(2) Territorial sea. (~pra.)- It is the belt of water outside and parallel to the coastline or to the outer limits of the inland or internal waters; and
(3) High or open seas. territorial sea.
They are waters that lie seaward of the
Jurisdiction over navigable waters. The inland or internal waters and the territorial sea together comprise what is generally known as the·-~erritorial ·waters of a state. Over these waters, a state exercises sovereignty to the same extent as its land territory but foreign vessels have the right of innocent passage through the territorial sea. On the other hand, the open seas are internationai waters which means that they are not subject.to the sovereignty of any state but every state has equal right of use in them. 11 11 Presidential Decree No. 1599 (June 11, 1978) establishes an cxclul':ive economic zone (Eii:Zl of the Philippines extending to a distance of 200 nautical miles beyond and from the baselines from which the territorial sea is measured; except that where the limits overlap the economic zone of an adjacent or neighboring state, common boundaries !\hall be determined by agreement with the state concerned, or in accordance with generally r
TEXTBOOK ON THE PHILIPPINE CONSTI-TUTION
42
Sec. 1
The archipelagic concept or principle of territoriality.
The use of the word "archipelago" in Article I is intended to project the idea that the Philippines is an archipelago (a state composed of a number of islands) and bolster the archipelagic concept (or archipelago doctrine) which the Philippines, together with Indonesia and other archipelago states, had espoused in international conferences on the Law of the Sea. By this concept is meant that an a_rchipelago shall be regarded as a single unit, so that the waters around, between;-·8."nd connecting the islands of the a r chipelago, irrespective of their breadth and dimensions. form part of the interna 1 waters ofthe state, J.i.u biect _iq__iJ~.J~.~-c;llJ.s.i ve sovereignty. The Philippine position.
The archipelago theory is in reality an exception to the three-mile rule (now 12-mile rule). This rule does not adequately protect Philippine interests at all. (l ) In the International Convention on the Law of the Sea held in Geneva in 1958, the Philippine position was exrlained 12 as follows:
"To apply the three-mile rule to the Philippines, with every island having its own territorial sea, would have a fatal effect upon the territorial integrity of the Philippines. It would mean the dismemberment of t he archipelago with the Sibuyan sea separating ti,e Visayas, and the Mindanao Strait and the Sulu isolating Palawan from the rest of the archipelago. These and other areas of waters would cease to be Philippine waters; they wou ld become international waters or high seas, and fishing vessels from all nations can enter to get the fish and other living resources of the sea which nature and Divine Providence intended for the Filipinos. Furthermore, warships of even unfriendly nations could enter these waters and stay there with perfect legal right to do so. At the same time, we would lose a large part of our territory on both sides of the archipelago, towards the China Sea and the Pacific Ocean." As long as the Philippine Constitution stands, as long as the Philippines continues as one united country, a nd as long as the Philippines contitutes one nation, the three-mile limit can neyer be acceptable to us." (2) In a statement before the Sub-Committee II of the Committee on Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction at Geneva on August 16, 1971, the Solicitor GeneraP 3
By the late Senator Arturo M. Tolentino. E stelito P. Mendoza.
12 13
Sec. 1
ART. l. -
NA1'TONAL T ERRITORY
43
of the Philippines reitera t ed t he reasons why the over 7,000 islands composing the Philippines should be treated as one whol e unit: "More than seven thousand islands comprise the Philippines ruled by one whole unitary governme nt, bound by a common heritage, beholden to the same tradi.tion, pursuing the same idea ls, interdependent a nd united politically, economically and socially a s one nation. To suggest that ea ch isla nd has its own territoria l s ea and that base lines mus t be drawn around each island is to s plinter into 7,000 pieces what is a single nat ion a nd a united stat e. One need only imagine a map of the P hilippines wit h t erritorial seas around each island and with pockets of high seas in between islands to r ealize the absurdity of the resulting situation. De pending on the breadth of the territorial sea that may emerge, such pockets of high seas in the very heart of the country may be such small areas of no more than 5 to 10 or 15· square miles. And yet, on account of this, on the pre text of going to those pockets of high seas, any vessel may intrude into th e middle of our country, between, for ex ample, the islands of Bohol and Camiguin which fr om shore t o sh or e a r e separated by no more th an 29 miles." (3 } Even , therefore, a twelve-mile breadth of th e t err itoria l sea would not be acceptable to t he Philippines as it would still r esult in having some pocket s within the sea be tween some islands which would be considered international waters. 11 The a rchipelago principle an d the exclusivi! economic zone rights (see Note 11 are now fully recognized in the U.N. Law of the Sea Convention and, ther e for<:, form part of public international law. It was ratified by the interim Ba t asang Pambansa on Febr uary 27, 1984. 15 -
oOo -
HTh e significance of the archipelagic doctrine is more r ea lized with the present progra m of t ho government to develop a ll its n atura l resources found in i tB water s under the sea and in t he seabed to their fullest. ext en t . The re is now tremendous interest recently generated in off-shore oil exploration in our country . ("The TerritoTial Jurisd ic tion of the Philippine ~;,'' J ourn al of the IBP, Vol. 1, No. 3, p. 176, by ,Judge [now retired .Jus tict:l l Jorge R. Coquia .1 With t he new technology, the exploita tion of seabed mineral r eso ur·c e:-; particularly manga· n esc, nickel and copper, "
Article II DECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES
SECTION 1. The Philippines is a democratic and re publican State . Sovereignty resides in the people and all government au thority eman ate s from them. The Philippines, a democratic and republican state.
T h e above declar a t ion is a r e-st atement (see P re am ble) of the dem ocra tic charact er of our government. A republican government is a democratic government b y r epresentatives chosen by the people at large. The essence, therefore, of a r epublican state is indirect ru le. T he people h ave est ablished the gove rnment to g(lvern th em selves. Its officers from th e high est to t he lowest are ser vants of the people and not their masters. They can only exercise the powers delegated to them by the people who remain as the ultimate sour ce of political power and authority. S ection 1 adds th e word "democratic" because th e govern ment, whi le essent ially a republican democr acy , em bodies some features of a pure democr acy such a s t he initiative and referend u m. (see Art. VI, Ser. 32.j Manifestations of a democratic and republican state.
Th e manifestations of a democratic and republican st a te a r e : ( 1) The existence of a hill of rights (Art. II I. J;
(2) Th e observance of the rule of the majority ilntrodu ction-E. ); (3) The obser vance of t he principle t hat our s is a government of laws, and not of men (Ibid.); (4) The p1·esence of elections thr ough popular will (Art. V.); 44
_f-s
Sec. 1
ART. IT. - DECLARATION OF PRI::-.l'ClPLES AND STATE POLICIES
.,~~
Pri!lciples y
t5) The observance of the pr inciple of separation of powers and the ; system of ch ecks and balances (see Art. VI, Sec. 1.); _;;16) The observance of the principle that the legislature cannot pass c: irrepealable laws (sec Art . VI, Sec. 26.); ~ (7) The obser vance of the law on public officers (Ar t. XI. ); and ,.. ~ (8) The observance of the principle that the State cannot be sued .? without its consent. (Art. XVI, Sec. 3.) ~
Sovereignty of the people.
Sovereignty 1mplies the supreme authority to govern. As the State in whom sovereignty resides, the Filipino people have th e right to con stitute their own government, to change it , and t o define its j urisdiction and powers. (1) Exercised indirectly through public officials. - But the people do not govern themselves directly. Sovereignty (i.e., making laws, en forcing t he same, and deciding cases involving life, liberty, and property) is exercised through duly elected and appointed public officials who, as public servants, a re accountable to t he people. (Art. XI , Sec. 1.) Their a ct s, if within the scope of their delegated powers, a r e, in effect, the acts of the P~P~I (2) Exercised directly through suffrage. - Actual sovereignty is exercised by t h e people through the electoral process. 1 The popular will is best expressed when electoral processes are free , clean a nd honest, on the basi s of universal suffrage (i.e., not granted by status or property) and thr0'.1gh secret vote. It is also imperative that the broadest choice of representatives is available t o the people. Since we a re a r epresentative democracy, the free and true expression of the people's sovereignty is of ~:,rreat importan ce. ~ Right of the people to revolt.
Section 1 above recognizes that the people, as t he ultimate judges of their destiny, can r esort to revolution as a matter of right. A provision in the Cons titution expressly recognizing the people's right t6 r evolt against an oppr essive or tyrannical government is not necessary and proper. ( 1 ) Being an inherent right, it exists whether or not such right is embodied in the Constitution and , regardless of t he Cons titution, a people will revolt if s ufficiently provoked by oppression or abuses. 'The will or consent of tho people is exp ressed by way of elect ion, plebiscite, initiative. referendum, and recall l,..ee Art . V, Sec. 1.) an d through publir opinion which t hey exert on those who gvvc rn on their behalf, particularly the elective officials. 2 Democracy cannot do witho ut elections which are the means by whi ch the people ll l'e able to boot out corrupt an d incompetent offociub. But because the proce11s is not perfect., election s st ill yield officials who are unworthy of the people's mandate.
TEXTBOOK ON ·rHE PHILIPPINE CONST ITUT ION
46
Sec. 2
(2 ) A constitution in a democratic State enshrines the rule of law and, therefore, any allusion to the right of violent or armed revolution (which connotes an act committed beyond the framework of the rule oflaw) would be inconsistent with the concept of a Constitution. (3) It would also not speak well of the political stability of the State, because such a provision connotes that there is a distinct possibility that the time may come when the people have to revolt against tyranny. (4 ) In any case, in a democratic society where t he consent of the governed is rc-!gularly expressed through open debates and free elections , "prudence, indeed, will dictate that Governments long established should not be changed [through revolution1 for light and transient causes. ";i
SEC. 2. The Philippines t·enounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and a dheres to the policy of peace, equality, justice, freedom , coop eration, and a mity with all nations. Renunciation of war as an Instrument of national policy.
This is the first aspect of the above declaration. It is in accordance with the principle in the United Nations Charter binding a ll members to "refrain in their internationa l relations from the threat or use of force against the territorial integrity or political independence of any state. x x x." The declaration refers only to the renunciation by the Philippines of aggressive 'Var, not war in defen8e of her national honor and integrity. Men and n ations cannot. waive in advance the basic right of self-preservation. Under Article VI, Section 23(1) of t he Constitution, Congress wit h t he concurrence of two-thirds of a ll its members, voting separately , may declare the existence of a state of war. Adoption of the generally accepted principles of international law as part of our law.
This second portion of the declaration binds the Philippines to enforce or observe within its jurisdiction, generally accepted princi ples of international law, whether customary or by treaty provision, as part of the law of the land. Tnternationallaw refers to the body of rules and principles which governs t he relntions of nations and their re5pecti\·e peoples in their intercourse with one another. (1 ) When inienwtional usage to be applied. - International usages or the customs of t.•ivilized nations are given effect by our courts in the absence of any treaty, executive order, legislative act, or judicial decision.
:1
The American Declaration of Independence (July 4, 1976).
Sec. 3
ART. II. - DECLARATION OF PRINCl PU ":S AN D STATE POLICIER Pri nciples
47
An example of a principle established by international u sage is that fishing · boats belonging to an enemy a r e not subject to seizure in time of war. 1
A treaty has force of a statute. -The Constitution gives a treaty the same weight and value as a statute of Congress. In case of a conflict between a treaty and a statute, the prior act is supe rseded by the later one in point of time. When a treaty is superseded by a subsequent statute of Congress, the treaty is repe aled or a brogated as part of the law of the land but it still subsists as an engagement of the Philippines , although it may n ot be enforceable by our courts. The other S t ate may only present its compla int to the political orga n s ( i .e., t he President and Congress) of our government. 2 ( 3 ) Constitution prevails over a treaty. - The phrase "law of the nation''.in the 1935 Constitution was changed to "law of the land" in the 1973 Constitution in order to avoid any conjecture that the generally accepted principles of international law are incorporated into Philippine htw with the force of constitutional provisions.'} The change is retained in the new Constitution. Thus, should a conflict arise between the Constitution and a treaty, the former prevails . (2 )
Adherence to the policy of peace, etc., with all nations.
This third aspect is a corolla ry to the foregoing portions of the above declaration of principle. It s hows a positive attitude on the part of the Philippines toward the observance of the principles of the United Nations Ch arter and to universally accepted rules and principles of international law. In line with the objectives of the United Nations, the Philippines seeks only peace and friendship with her neighbors and a ll countries of the world , regardles s of race, cr el?.d, ideology and political system, on the basis of mutual trus t , respect, a nd cooperation. It suppor ts the right of a ll nations, big and small, to equality, freedom, and justice in their relations with one another and the policy of non-interference a nd peaceful settleme nt of international disputes and opposes the use of force , or the threat of force, in the relations among nations. The Constitution does not imply. however, that the Phi lippines is duty bound to extend diplom atic r ecognition to all nations. (see Sec. 7. )
SEC. 3. Civilian authority is, at all times, supreme over the milit ary. The Armed Forces ofthe Philippines is the protector of the people and the State. Its goal is to secure t h e sovereignty of the State and the integrity of the national t erritory. 'Tho Paquete Habana, 17fi U.S. 677. ~see V.G. Sinco, op. cit. , p. 293. JHl70 U.P. Law Center Cons titutio nal Revision Project, p. 20.
48
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 3
Supremacy of civilian authority over the military.
(1) Inherent in a republican system. - The idea of the supremacy of civilian authority, the highest of such authority being the President, over the military has always been recognized in our jurisdiction by implication from e xpress provisions of the 1935 Constitution and by practice. This deeply rooted pqlitical tradition is also inherent in a republican system of government. Nonetheless, the 1971 Constitutional Convention and the 1986 Constitutional Commission have incl uded t h e above provision as they felt the need for a clear expression in the Charter concerning the supremacy of the civilian authority over the military at all times, particularly during periods of martial law or suspension of the privilege of the writ of habeas corpus. (see Art. III, Sec. 15; Art. VII, Sec. 18.) Even in war, the armed forces is subordinate to civilian authority. (2) A safeguard against military dictatorship. - A civilian, the President is the commander-i n-chief of all armed force s of the Philippines (I bid.) -the army, the navy, the air force, the constabulary, and t he marines .1 As commander-in-chief, h e issues orders to the armed forces. Even the a ppoint ment of their high-ranking officers is vested in the President wi th the consent of the Commission on Appointments of Congress (Ibid., Sec. 16.) Along with Congress, the President determines the military budget and defines the national policy on defense and security. This arrangement is considered an important safeguard against rise of military dictatorship.
th~
Armed Forces of the Philippines, protector of the people and the State. (1) Fearsome image acquired during martial rule. - Under a previous regime, particularly during the early part of martial law, the Armed Forces of the Philippines (AFP), 2 acquired a fearsome image. This was a contributory factor to the failure of the government to contain the growing insur gency problem. Rightly or wrongly, it had been accused of having committed, abetted, or tolerated numerous violations of human rights both against r ebels and the civilian population. Among the cases reported are unexplained or forced disappearance, extrajudicial kill ings (salvaging), massacres, tortures, haml etting, and food blockades .
Many believed that the military organization was being used as an instrument to prop up the continued stay in office· of the then incumbent
1 The Philippine National Police (PNPj (Art. XVI, Sec. 6.l is under the Department of Interior and Local Government which, in turn, is under the control of the President as administra tive head of the executive department. tArt. VII, Sec. 17.) 2 It was change1 hy the organization itself and was called for sometime as the New Armed Forces of the Philippines ( NAFP) to shed ofT its former imag~ during the martial law regime a nd indicate its new r(lle under the new dispensatio n.
Sec. 4
ART. II. - DECLARATION OF PRINCIPLES AND STATE POLICIES
49
Principles
President who a t the time of his overthrow in a peaceful revolution on February 25, 1986 had held power for more than 20 years. This perception was st rengthened by the lion's share given to the defense establishment in the annual budgd and the appointment to sensitive positions in the armed forces, of generals known for their personal loyalty to the President and the repeated extension of their tour of duty. Many of these generals allegedly enriched themselves while in the service but the government remained silent on their cases although they were a matter of public knowledge. (2) Constitutional mandates. - The ConstitutiQn s eeks to change this state of affairs: (a) Through Section 3 above, it defines clearly the function of the Armed Forces of the Philippines (AFP) and its goal in the discharge of this function. It shall be the protector of the people and the State to secure the sovereignty of the State and the integrity of the national territory. This means fighting all forces, internal or external; which seek to overthrow the government, impair t he independence of the nation, or dismember any portion of its territory. (b l Through another provision (s ee Art. XVI , Sec. 5.), t he Constitu tion insures professionalism in the armed forces and insulates it from partisan politics. Furthermore, it directs th e State to "str engthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty." (3) Support of the people. - Adherence to these constitutional mandates is essential if the AFP is to win "the hearts and minds" of the people in the efforts to resolve the long-drawn insurgency problem and fulfill its crucial task as an effective guardian of the nation's safe ty against any threat to its existence, whether from within or from without. The strength of t he armed forces, indeed, of our nation, sterns from the people.
SEC. 4. The prime duty of the Government is to serve and protect tile people. The Government may call upon the people to d efend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render per· sonal military or civil service. Prime duty of the Government.
Section 4 enunciates the first and foremost duty of the Government-to serve and protect the"people. In our contempor a ry set ting, when the country is beset by formidable social and economic problem/ all dellfanding pri9rity attention, part icularly the problems of.lfiass pov~r~y andfinassive ¥employment, the above principle is most proper and timely . It is consistent with the most basic democratic tenet that the government exists for the people and not the people for the government. The State fulfills this prime duty by pursuing and implementing the State Policies mandated by the Constitution in Sections 7 to 28.
1)0
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec.4
In both the 1935 and 1973 Constitutions, "the defense of the State is the prime duty of the Government x x x." This concept is considered anachronistic. It was taken f1·om the Constitution of the Spanish Republic. 1 Defense of the State by the people against foreign aggression.
While the defense of the State is no longer the prime duty of the government, it may call upon the people to defend the State. (Sec. 4.) For self-preservation and to defend its territorial honor and integrity, the Philippines can engage in a defensive war. In recognition of this fact, the Constitution has provided for the above principle. The defense of the State is one of the duties of a citizen. The term "people" may also include aliens since they are likewise subject to regulations adopted by the government for the defense of the State. The constitutional provision covers both time of peace and time of war. Military and civil service by the people. (1) Defense of State performed through an army. - The duty of the government and the people to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty excusable should there be no sufficient men who volunteer to enlist therein. 2 This principle is reinforced by the provision on the formation of a citizen armed force. (see Art. XVI, Sec. 4.)
(2) Compulsory. - Thus, the citizens may be compelled to render personal military, or civil service. Accordingly, the Supreme Court upheld in a case the validity of the National Defense Act requiring compulsory
1 ~The Spanish republican government at least had no reason to insist on it:; order of priority that the first responsibility of the government and the people is to sh,Yulder arms to defend the State. At that time, war·making was the favorite sportt:. in the We: vs. Lagman, 66 Phil. 13.
Sees. 5-6
ART. II. - DECLAHA'flO!\ OF PRINCJPLBS AND STATE POLICIES
51
Pri ncipl e~
military Bervice. 3 Any citizen recruited for the army or civil ser vice pursuant to law for the defense of the State may not refuse on the ground tha: to go to war is against his r eligion. The constitutional provision 1·emoves all dm1bt as to the validity of such law. (3) Meaning of ciuil service. - The term, as used above, refers to any service for the defense of the State other than as soldiers, like as workers in munition factories. ~ 4 ) Personal. One cannot render the service required through another. 'l'he service must be "per sonal."
(5) By law . - The phra~e "under conditions provided by law" is intended to prevent arbitr?.!'iness on the part of certain officials to require military or civil service. 4 It seek s to emphasize the primordial responsibility of the Government "to serve and protect the people'' even when they are called upon "to defend the State.'' ·
SEC. 5. The maintenan ce of peace and order, th e protection of life, liberty, and prope rty, a nd the promotion of the general welfare are essential for t h e enjoyment by all the people of the blessings of democ racy. Maintenonce of peace and order, etc.
The State (Government) shall pursue the maintenance of peace and order (see Art. XVI, Sec. 6. ), the protection of life, liberty a nd property (see Art. fii , Sec. 1.), and the promotion of the genera l welfa re or the common good. Only when peace and order, security, and a life of dignity (see Sec. 11.) are established and maintained, will political stabih ty and economic prosperity become attainable and t he people t ruly enjoy t h e "blessings of independence and democracy." (see Preamble. )
SEC. s:The separation of Church and State shall be inviolable. '1C. A.
1\Jo. 1.
'Pre~ide ntial
Decree No. 170() !Aug. 8, 1980), otl)erwise known as uThc National Service Law,'' provides for compu]t<;c>ry "national service" for all citizens of the Philippines which, a;; used ir, th e Decree, "shall con;;ist of three (31 main programs, namely: civil weltiue service, law enfnrcem!.'nl. .service, and military l.>er vice." Each citiY.tm shall rcndor the service in any of the program!~ or a combination thcrerof and t;uch senicc shall be 1.:redited in h is favor for the purpose of fulfilling educational requirem<:nt!l established by law. The Deer~ amended C.A. No. 1. In view of widespread protests which h ave been registered by various sectorR, its implemen· tativn was suspended by Memorandum Order No. 11 of the P resident at all schoolleveis effective school .vear 1986-1987, except. the provisions on military service. The Secretary of Education, Cult.urc a nd Sports inow Sccretnry of Educationl is directed to review the law and submit r t>commendation,:;. Su bsequently, RA. No. 7077 (,Tunc 27, 19911, the ucitizcn Armed Forces of the Philippine:; Resen· ist Act,'' was enacted . R.A. No. 916:1 (::;ee note 1 to Sec. 13.1 ame nded Sections 2 and a of Presidential Dccr~o No. l 706 ;ind Sections :JH and 39 of R.A. No. 7077.
TEXTBOOK
t)!\'
THE PHILIPPINE CO:-;"STITUTION
Sec. 6
Principle of separation of the church and State.
The principle of the SE>para tion of Church and State being inviolable (i.e., secured or protected from violation) is implied from the constitutional prohibitions that "no law shall be made respecting an establishment of religion" (Art. III, Sec. 5.1 and that "no public money or property shall ever be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit , or s upport of any sed, church, denomination, sectarian institution or system of n~ligion.'' (Art. VI , Sec. 29l21.) Settion 6 merely affirms this old constitutional principle. The principle simply mean s that the church is not to interfere in purely political matters or temporal aspects of man's life and the State, in purely matters of r elig ion and morals. which are the exclusive concerns of the other. 1 The demarcation line C'alls on the two institutions to "render unto Ceasar the t hings that are Ceasar's and unto God the things t hat are God's." Thi s is not as simple as it appears for the exact di vidir.g line between t he r espective domains or jurisdict ions of the Church and t he St~te has always been the subject matter of much disagreement.2 The term "church," as
us~d
in the Constitution, coYers all faiths .
Meaning of "establishment of religion clause.''
The ph•·ase "no law respecting an establishment of religion " h as been referred to a s the "establishment of religion clau se."3 In the words of
'Durin~ th e Sp11 nish !·egimf!. not only wa;; there no !>cpflrlltion of church and State, but the church arrogated unt u its;>lf powr:rs that properly be longed to the Sll:lte. Th~ church tolerated, and l t ) 80m!c' extent. perpctun~ d the abuses of the coloni al regi m e . The original ra ~ionale behi nd the separa tion was t hH;(·ording to th e gos p e l a!! falli ng with in its di ,·i ne missio n. In con nection wi t.h the Day of Prayt?r fo r the Nation held on September 2 1, 1999 i11it.iated by the Cath olic Church, t h e Archh i;;h"P of ~1anil a issued a circular giving th e main r<:a:;ons why t.he chur ch ha~; a m ission in poi itic;;. as follo w:;.: 'First. because politics has a mor:-11 dimension. Politic;; if\ a human activity. It may hurt o r l:>E'nefit people; Second, because tht· (;u;,pd and l.he Kingdnrn nfGod callth~ Church to politi('al im·o l\'t:?ment. To prodai m the go>-p<;l for all •~rt~a l ion neccs;;arily incl udes llvangelizing th e political world; Third, because the m is;;ion nf t.h1; Church of integral ~;a lvation involvt-~ the political sphe re. Meaning, salvation in vo l ve~ th e tntal pE>n;on, so ul a nd body, spiritual a nd temporal; Fourth, because the ii
Sec. 6
ART. II. - DECLARATION OF PR£NCIPI.ES AND STATE POLIC IES Pri n ciples
53
Thomas Jefferson, using a metaphor, this clause was intended to erect "a wall of separation between the Church and the State . "~ And it means that: ( l.) The State r;hall have no official religion;
(2> The State cannot set up a church, whether or not su pported with public funds; nor aid one religion, aid all religions (see Art. VI, Sec. 29[2].), or prefer one religion over another; (3) Every person is free to prClfess belief or disbelief in any religion; (4) Every religiou s minister is free to prad.ice his call ing; and (5) The State cannot puni sh a person for entertaining or professing r eligiou s beliefs or disbeliefs. G No hostility towards religion.
The command that Church a nd State be separate is not to be interpreted to mean hostility to religion. In so far as religion instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated.G As a matter of fact, the Preamble of the Constitution starts with these words: "We, the sovereign Filipino people, imploring the aid of Almighty God . . ." Wit.b these words, the Filipino people "manifested their intense religious nature and placed unfaltering reliance upon him who guides the destinies of men a nd nations.""' Furthermore: ( 1) Our Constitution and laws exempt from taxation, properties devoted exclusively to religious purposes (Art. VI, Sec. 28[3.1.); (2) The use of public money or property is not prohibited when a priest, preacher or dignitary as such is assigned to the armed forces, or to any penal institution or government orphanage or leprosarium (Art. VI , Sec. 29[2]. ); (3) Optional religious instruction in public elementary and high schools is by constitutional mandate a llowed (Art. XIV, Sec. 3[3.1.); (4) Thursday and Friday of Holy Week, Christmas Day and Sundays are made legal holidays8 because of the secular idea that their observance is conducive to beneficial moral results; and •Everson vs. Board of F.ducHtion, 330 U.S. 1. 6 Soc Ibid. There is nothing in th e Constitution prohibiting the ch urch from expressing its views or stand on public i&sl•'e s. sAglipay vs. Ruh. 64 Phil. 201. ' lhid. . ' Executive Order No. zrn {J une 30, 1987 ! list,:; Ma nndy Thursday and Good Friday (movnhlc date) as rcgulllr holidays l:lnd All Saints' Day INov. 1) and Chdstmn" Day !Dec. 25) a.c; nationwide ilpecial holidays. isee Adm. Code of 19H7 [~;xec. Order No. 2921. Book I, Sec. 26.) Proclamntion No. 192a (Oct. 27, 1979J established the annual celebration ofl\:ntional Bible Week and National Rihln Sunday. Procla mations No. i"ifi !Nov. 21. 1986J and 1\o. 1067 !Aug. 26, 1997) call forth~ oh;;t~rvance ofN11tional BiOle Week on the lnst week of J anua ry each year with the l<~t!t Sunday a:o Bihk Sunchty. Proclama tion No. 1067 calls for "natiom1l a ttention to be focused on the imporiM•ce of reading and .studying thc Bible in molding the !:lpiri t.tJtll. mora l. und social fiber of
54
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 7
(5) The la w punishes polygamy and bigamy, and certain crimes against religious wors hip are considered crimes against the fundament al laws of the State. 9 With in the limits prescribed by the principl e of separation of Church and State, th ese two great entities could work together in harmony to serve the welfare of the people. HI
STATE POLICIES SEC. 7. The State shall p ursue an independe nt foreign policy. In its relations with other states the p aramount consideration shall b e national sovereigntyJ territorial integrity, national interest, a nd the right to self-determination. Foreign policy of the Philippines.
Foreign p olicy is the basic direction underlyi ng the conduct by a St ate of its affairs uis-a -vis those of other States. It is a set of guidelines followed by a government of a country in order to promote its nationa l interest through the conduct of its relations with other countries. Under our constitutional system. Congress shares with the President the responsibility of formulating the country's foreign policy alt hough the conduct lhereofis primarily r eposed in the executive depart ment. (see Art. Vll, Sec. 22.) The President formulates our for eign policy principa lly with the help of the Department of Foreign Affairs. (1) An instrument of domestic policy. - I ts importance in the survival and progress of a country cannot be over-emphasized. It is the sole weapon of a State fo r the promotion of national interest in internati ona l affairs. Thus, fore ign policy is but a r eflection and a n ins trument of domes tic policy, t he former being related t,o and dict ated by the la tter. They are not only mutually consistent but complementary .1 the nation." Proclamation No. 498 1Nov. 26, 2003; dedares Novi:" mber 26. 2003, the end of Ramadhan, as n s pecial non-workin g day throughout th e cou ntry f Feast of Ra madhan}. R.A. No. 9177 tNov. 13, 2002) declares th e first day of shal(·u·al. t he 10th month of th e Islamic calendar, a national ho lida y for the observance of E idul Fitr. and the lOth day of Zhul Hijja , th e 12th month of Islamic calendar, a r egiona l holiday in the Aut onomous Region in Muslim Mindanao . 132-133; see Aglipa~· Y.i> . Ruiz. 64 Phil. 20 1. 11 'ln a speech before the Manila Rotarians on July 24 , 1979, Jaime Cardinal Sin said: "The Church and tho State are two e ntities that play an importa nt role in our life. Let us keep them separate hy all means hut let us not interpre t se paration as segregation. Let us believe th
~ (!C.
7
ART. H.-- DI~C LARATIO:-\ OF PRf~ C il'LES AND STATE POLICIES St ate I'olicie~
55
(2) Pursuit of an independent foreign policy. - The Constitution mandates the State to pursue an independent foreign policy, aware of the unwelcome conseque nces of a poli cy characterized by excessive dependence on a nother country . ~ An independent foreign po~il.')' simply means one that is not subordinate or subject t o nor dependent upon the support of another governmt'nt. It is not one that completely rejects advice or assistance from without. Neither does it mean abandoning traditiona.I allies or being isolated fro"Ql the international community. To be realistic, a foreign policy must have a global outlook in view of the delf:'t.erious effect on the country's relations with other countries of a foreign poli cy that revolves only on our r elations with s elect members of the interna tional community. Being a small developing nation, we must make no enemy if we <.:an make a friend. In general, our basic f01·eign policy objective is to establish friendly relations with all coun tries of the world regardless of race, religion , ·ideology and social sys te m and to promote as much beneficial relations with them particularl y in economie and trade activities. (3} .Param oun t consideration. - - The Constit ut ion r ecognizes t hat in the pursuit of an independent foreign policy in an interdependent world, new realities and new situations may require the Philippines to m ake a reapprail'lal of the conduct of its foreign relation s . Indt~pendence in the making and conduct of foreign policy is relative. The national inte:·est will not be served by trying to deal with regional and international issues in absolute terms. Ours must be a policy of flcxibili ty a nd pragmatis m guided only by the welfare of our people a nd the security of our Republic.
The framing of a fo reign policy is shaped by how interests n rc
idcntifi~~·J
and det ermined
a t a ny given moment. Philippine int.eres t!:l h ave- vnriel11n ~co p~ and magnitude thro ugh the
ycn rs bN:i.\use of our ch a nging- wncerns and partly het"ause th e world hii;; continued to sh rink int o a n infinitely com plex web of interdepen dence «nct intercts and ultima tely, benefit. the F ilipino poople. An informed citizenry wi ll t hus r ea l iz~ w hy fc•reign poli<'y and diplo macy have to be invol ved in the w11r against the proliftlr a t ion of n u clear ~tnd other wea pons C)f mass des tructior.; again1ement; why we s to. nd fa~t on our fa ir trad e commit ments; why we strengt hen bilatera l rc~l a ti ons in order t o open wor ld mark ets for Ph ilipp ine products, promote irwe:>tments and tour;sm , a nd ta p o>our..:es for official rlrretary of ForP.ign Affairs, P a norama, .June 10, 2004, pp. 8, 26.1 ~ By way of illust ration, the domestic policy of our count ry a fte r becoming independent in 1946 wa.'> to r econs t.ru ct th e economy r avaf::cd by World Wa r II for wh ich the Ph il i ppi ne ~ needed foreign aid rea di ly a vailab le from t h o U.S. As a r c!lult. t.he foreign pCJlicy of t h e count ry was l o a lign itself with the U.S . on many international issu os.
TF.XTBOOK ON THE PHILIPPINE CONSTITUTION
56
Sees. 8-9
In its relations with other states, the paramount consideration of the Philippines shall be national sovereignty, territorial integrity, n ational interest, an d the right to self-determ ination. (Sec. 7. )
SEC. 8. The Philippines, consistent with the national inte rest, adopts and pursue s a policy of freedom from nuclear weap· ons in its territory. Freedom from nuclear weapons policy.
The intent of Section 8 is to forbid the making, storing, manufacture or t esting in our country of nuclear we apons, devices or parts thereof as well as the use of our territory as dumping site for radioactive wastes and the transit within our territor y of ships or planes with nuclear weapons. It does not, however, prohibit the use of nuclear energy for medicine, agriculture, and other peaceful or beneficial purposes. Congress will have to provide the mechanics to effectively implement Section 8. (1) As subject to exception. - The records of the Const itutional Commission1 support the position that Section 8 does not absolutely ba n nuclear we-apons fr om Philippine territory. The phra s~ "consistent with the national interest," may reasonably be interpreted to mean "subject to national interest." In other words, if the n a tional interest so dictates, the storing of nuclear weapons in our territory may be permitted at least on a transitory basis, considering that it wa s not prohibited under the then existing mi litary bases agreement with the United States whose va lidity a nd term of effectivity until 1991 are implicitly recognized by the Constitution. (see Art. XVIH , Sec. 25. ) (2) As an absolute ban. - The phraseology, however, of Section 8 may be unders tood as providi ng no qualification, exception, or condition if the phrase "consistent with national interest" is taken as the reason for the poli~y, that is, the Philippines "adopts and pursues'' the policy because it is consistent with national interest. The Constitution itself bans nuclear weapons as a policy and precisely emphas izes t hat such policy is Mconsistent with the n ational interest.'~~
SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the p eople from pove rty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
!Vol. IV. St!pt. HJ, 1!186, p. SlB. Senaror Arturo M. Tol+mtino, Manila Bull etin, July 28, l!:H\8, p. 7.
1
Se~:;;.
10-11
ART. II. - · OF.CLAJ:{ATION OF P RINCIPLES AND STATE POLICIES St.'llt! Policies
57
Just and dynamic social order.
(1) Policies necessary to be pun~uecl. - The State shall promote a just and dynamic social order. This is accomplished through policies that provide adequate social services (in the fie ld of health, education, housing, etc.), promote full employment (see Art. XII, Sec. 1, par. 2; Art. XIII, Sec. 3, pa1· 1.), a rising standa rd of living, and an improved quality oflife for all. (]bid., Sec. 1.) (2) Soluing the problem of mass poverty. - The Preamble calls for the "establishment of a just and h umane society." Such a society must insure th e prosper ity and independP.nce of the nation and fr ee the underprivileged and th e marginalized sectors of our popu lation from poverty. The goal is to reduce t he political and economic power of a privileged few by equalizing widely differing standards and opportuniti!:!S for advancement and to raise the mass~~s of our people from their poverty to a qualitative life worthy of hum an dignity.
With the eradication of mass poverty, the State solves a t the same time a chain of 'Social problem s that comes with it: social unrest, breakdown of family syste ms, diseases, ignorance, criminality, and low productivity.t
SEC. 10. The State sh a ll promote social justice in all phases of national development. Social justice.
This policy mandates the State to promote social jus tice in all phasei:' of n ational d~velopment. In the fu lfillment of this duty, th~ S tate must give prefere ntial attention to the welfare of the less fortunate members of the community- the poor, the underprivileged, those who h ave less in life .
It i!-1 discussed full y under Article XIII (Social Jus tice and H uman .Rights).
SEC. 11. The State values the dignity of every human person and guarantees full r espect for human rights. Human dignity and human rights.
In a democratic state, the individual enjoys certain righ t" \\·hich cannot be modified or taken away by the lawmaking body. Thc::e> rights are recog-
'!'over t.y h as alway~ been an issue in our cou ntry . .\bn,· con~idt-r it as the root cause of oth er problems the people are facin~ whh. La test sun·~,. , h:; t h ~> :\ationai Sta tistics Office iN SOJ show that the country's wealth r"'main!:' nne•·(·J:l~ di;.tributed as the richest fP.w families continued to amass the lion's 11hare of the (·)L!mry·~ to t;~ i income while '•he poor earned only a fraction of the riche>:t lO'if. It wi;f ;;1 1:-;!) that Adam Sm ith, the father of modern economics wrote: "No Sf)Cicty can S l!n:h· be t1 ···u :·ishmg and happy, of which by far the gr.eat.e r part of the members a1·e poor anu miserahle.··
58
TEXTBOOK ON
TH~~
P HILIPPI!\E CONSTlT UTION
nized or guaranteed because of t.hP. of every human person.
beli~f in
Sec. 12
the inherent dignity and worth
The value accorded to human dignity is measured b,y the exte.nt of respect for human rights. In pursuit of this constitutional poli cy , it is the duty of th e State to enact measures and develop programs that will promote human dignity and protect the people from any threat of violence or use of force or deception for the purpose of exploitation. 1
This topic is discussed at length under Article III (Bill of Right.s) and Article XII! (Social Justice a r..d Human Rights). SEC. 12. The State r ecognizes the san ctity of family life and shall p rotect and strengthen the family as a basic autonomous social institution. It shall equaJly protect the life of the mother and the life of the unborn ft·om conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficie ncy and the d evelopment of moral character s hall receive the support of the Government. Strengthening the family as a basic autonomous social institution.
The above declaration not onl,Y has given constitutional ba:sis to the family as a basic autonomous social institution, but in addition, mandates the 3tate to recognize the sacredness of famqy life and to strengthen the family. (see Art. XV.) Under the provision, the government may not enact any law or initiate measures that would break up or weak
'The • Anti·'l'r!l flicking in Per>:~ons Act oi 2003'' 1 KA. :\1) . 920~. ~lay 26, 200~) penaliz~!s trafficking in perl:'nm; especially wo men a nd chilrlr!Ht. Under the Ac•. "trafficking in person~" rP.fers to the racruit ment, t.rnn;<;port.atiou , transfer, h arboring or receipt. of ptlrsons for the purpo~e of cxploitntion which indudes prostitution , forced labor or services, or t.hc rcmo"<.!l or s ale of or gan s. :Articles 2Hi-2:l2 t.htm:of;
.>t~c .;\rt.iclr~:;
56-t)ll, 68, H9·15l, Family Code.
Sec. 12
ART. II . - DECLARATIO N OF PRINCIPLES AND STATE POLICIES State P olicies
59
F rom that moment, the unbor n child is considered a subject or a possessor of human rights. He has a basic human right to life which the State i$ m a ndated to protect, along with infants and children. (Sec. 12.) In short, once conceived, a child has a right to be born. The provision protecting the unborn prevents the possibility of abortion being legalized by futur e legislation . It manifes ts the Constitution's respect for hum a n life . (2 ) The S tat e has still a nother compelling i nterest aside from the r igh t to life of the unborn- th e health of the mother whose life it shall equally protect. (Ibid. ) The sacrifice of t he life of the unborn when medically established as necessary to save th e life of the mother is not abortion.
Rearing of the youth for civic efficiency and development of moral character. ( 1) A duty both of parents and governmen t. - T he com mon welfare of society as well a s the good of the individual depends to a great exten t upon t he pr oper e ducation a nd t r a ining of children. The youth of t od ay will oe tomor row's cit izens. These cit izens will be a s they h ave been pr epared a n d guide d in t heir youth. The governmen t, therefore, should equally share in the i nherent right and duty of par en t s in the training of thei r children to be good, useful, and worthy citizens by giving them support t o prepare their children for future positions of r esponsibility and leade rsh ip. 2 (2) Rig ht of State to interfere w ith educo.tion of children. - The above provis ion must not, however, be int erpreted to mean thai , as in a totalitarian State , t he children wi ll be consi der ed the p ro perty of the State. So. t he Sta te ca nnot b y law com pel th e pare nts to m ak e their children accept in str uction in public schools only. Such a law con sti tu t es an unreasonable interference with the liber ty of parents to direct the upbringing a nd educa t ion of ch ildren under their control. The child is not a me re creation of the State.
The State, however, has the power reasonably to regula te all schools, their tea chers and pupils; t o refJ.uire that all children of proper age attend school , th a t teachers shall b e of good moral character and pa t!·iotic disposition, t hat certain studies plainly essential to good cit ize ns hi p must be
2'J.'radit iona l Filipino fam ilies h ave been charact cr iz<'d h~· cln:;.- ~a m i !~· tics. The influen~ of th e 1-'ilipino family is slowly d isappearing becau se of th e- t cm pvr ;try or permanent. ab~ence of the pa rent s , with the father or the mother, or both. ha,·:ng t <' work away fr om home. This pare ntal a bsenteeism has led the youth to turn to their pc:(·r , al;;o th ~ concern of the influence of peen t h a t may lead children to j uvenile delinquE'ncy Without t heir parents guiding them, m a ny yo ung people arc led to go a 1:1 tray a nd to de,·elop di~t orted values and undesirable beha viors. Both the church and i h "' ~ play in inculcating pos itive values and attitudes which wil l s tre ngthen thE' cha r ac ter of ou r youth .
60
TEXT!:lOOK ON THE P HI L!Pl'INE CO!"STITUTION
Sec. 1:1
t augh t , and that nothing be taugh t which is mani festly inimical to p u blic welfar c .3
(4) Duly of S tate to e ncourage edu cational inst itutions. -Viewed in t his light, the Statf! should encouragt! r ather t han hinder t.he operation of private a nd parochial schools so long as these schouls meet the secula r educational requireme nts which the government has the a uthority t o im pose .J
SEC. 13. The State recognizes the vital role of the youth in and shall promote and protect the ir physical, mora l, spiritual, intellectua l, and social well-being. It shall in· culcate in the youth patriotis m and nationalism, and e ncourage their involvement in public a nd civic affairs.
nation~building
Role ot the youth in nation-building.
The a bove d ecla ration is rel a ted to the pr eceding provis ion . (1) Today's youth, more knowledgeable and intelligen t. ·- The bulk of our popula tion is made u p of th ~ youth, nearly half of it comprising the \'t!r y young people who
3 Pien :e vs. Society of Sisters, 268 U .S. 510 . •schmandt and S t<•inbicker, The Fu ndamentals of Government. The Bruce Co., 1954 ed ., p. 180.
'By defin itio n ,
11
you ng p erson is one who is between 1 ~ and 30 years old.
Puu lishin~
AR'l'. JL- DECLARATION OF PRINC:JPLES ANI.l STATE POLICIES Shl.t<· Polic'ie;;
61
patriotism and nationaliHm (Att. XIV, Sec. af.2J.), promote positive personal and social values among them , and encourage their active involvement and parlicipation (e.g., by giving them represent~:~tion ) in public and civic affairs2 (Sec. 13.J to the fuJlest extent pos:-;ible. (3) 1oday'.'l youth, tomorro w '.~ leaders. - By harnessing their enterprising spirit and progressive ideali::;m, young people can become effective players in our collective effort to build a modern Philippines and, properly trained and guided, will in time assume with dignity a nd honor the places
2 l'residen tial Det,retl No. 603 (Dec. 9 . 1971 ), kn<)\\' 11 as the Child and Youth Welfa r e Code, lists the 1·ights and rt-spon;,ibilities of c:hildnm, and specifies the rights, duties, and liabilities oftht- parent.!\ in the rearing of their children. (see Art. XV.) R.A. No. 8044 (June 7, 1995), otherwise kn\)wn as the ~Youth in Nation-Building Act, creates a National Yo uth Commist them to pa rti cipat E' and orga ni:>:e hus incss enterpril!f~S. Exec. Order No. Mlii (Junt- 9, 199~J creates YEl' National Coop<:> rntor~ Council that will oversee, pla n a nd coordinate th1: implementation of the YEP. Ex N·. Order ~o. 275 (Sept. 14, 1995i create::: a committee for the special protection of thildren from a ll fo1·ms of negh,ct, a buse, cn~+~h.y , •~xploitation , discrimination and tlther conditions prejudicial to their development. R.A. No. 8:no hl:'s a National Coundl fot• Children·~ Te\evH;ion iKCCT) with the function. a mong oth er s, t<• formula te togeth er with t.h .. tt'lcvision broadt·a«t ind u ;;t ry, a set of standards for television progra ml> s h own duri ng child-viP.wi ng h ou l'8 3nd work cl<•!';cly with the indu s try for the ado ption and implementation of said :>la ndnrds. R.A. No. 9l63 (Jan. 2~. 20021, emitted t he "Nll~i(nHsl Service Training Program f::\STPi Act of 2001." allows college students to choose among t.he pT(tgram's three :;t!rvicc co mpo· ncnt~ ·- "Reserw) Offict>rs' Training Corps'' (ROTC), literacy tr11i ning service, an d tivic wei· fa re training service - ;;pccially de,;igned to t.mhance the youth's active contribution to the gcnP.ral welfare. Nov.:. nsale aud fem ale st udent.:; of any baccalaureate degrf\e course or at lea~t t wo Y'!ar technical-vocational course;s in public and priv~•le P.ducational in~titut ion:> will be r equired t u complete one of t.he NSTP com ponents a s r equi"ilfl for gr aduation. The :"STP is 8 prog ram aimed a t enhancing !:ivh. cunsciousne,:;s and defense prepa rcdnes:;- in rhE' you th hy dcvdoping the ethics of se rvice and pa t.rioti ~; m while undergo ing tr~~ining tn any of thethree program componE-n t s. The Reserve Officers ' Training Cl)rp.o is a program instit uti•malizcd under :::ection.; 38 and 39 of RA. No. 7077 de-:;;igned to providc military tr:~ining to t••rl iar" !.:•·.:! 8tud e nt~:< in order t.o motivate, tra in, organize, and xnohli ztl thHm for national defen:;!' pn·part:dncss. The Department cf Defnn ~•: (DND 1 is directe d l,o funnulute and -.do pt , pro lf~:~m of l'.:>sistance andiur inccntiv~ to t h ose l:l ludf~nts who wi ll take t his tomponen t . Tht• RO TC i ~ made opt ional by t he Act.. The literru:y training .Yt!rt•ice' is de~i gnlld lo train s tud ents to b~>co r:-u• teachers of literacy. a nd numeracy :;kills to sc hoolchildren, out-uf·llchoolyoulh and ';: h ~ r ~e-gments of society. The ,·ir.·ic u·el/'are train ing :>til'l!ice refers to programs or acti\'itit· < t ~•.:l t ('·~·ntribute to the general we lfnn:: and betterment oflifc for communi tic:; or t.he ~nhan c.:-n:c·n t uf its facilitie$ , especially tho<>e devoted to improving health, education, cnvirc>n::lelit . .-rttrepreneurship, safety, r~c reation and rnol'als of the citizenry. The Commission on H igher Education !CHED •a na T ~chn u:al Education and Skills Development Authority !.i <~nd Colleges ~ t'ASUC •, Cwrdinat ing Cou nt'il of Pri"ate Ed ucational Associations (COCOPEAl and other concerned gowmlm('n t ag~ncies. may de,:;ign and implement $uCh other program components as may be ncce~;;ary in co nsonance with the provif'ions ofR.A No. 9163.
62
T EXTBOOK ON THE PHILIPPI NE CONSTITUTION
Sec. 14
of th~ir elders in the high councils of the n ation. Our children a re our hope; they are our future -th e nation's futu re in fact.J
SEC. 14. The State recognizes the rol~ of women in nationbuilding, and shall e n sure the fundamental equality before the law of women and m en. Role of women in nation·building. ( 1) Proven capabilities of Filipino women. - Filipino women, past and present, have proven their capabilities in all fields of human endeavor- in private business, in the professions, in the arts, in education, in civic work, and in public service - even in positions of international leadership such as in the United Nations and other international organizations. And Filipino heroines who figu red prominently in gaining our independence are not fe>v. They fought with courage and dedication in t he struggle for Philippine freedom against a colonial master and, during the last. war, in the battles for liberation against a forei gn invader. In the recent past, they were in the forefront ofmoveme:1ts for the restoration of democratic processes in our land against a discredited regime which t'inally culminated in its overthrow. Today, Filipino women have been involving themselves in worthy causes and activities of national concerns. They have always been ready to heed the country's call to service with two of them having steered the nation's ship of state. 1 They help shape a better fut ure for all Filipinos. It can s afely be said that the Philippi nes is well a he ad of many other countries of the world in terms of leaders hip roles of Filipino women both at home and abroad. Many Filipinos sta nd out a mong the women of the world as being especially educate d, talented, and liberated. (2) Expa.nsion of H'omen's role. - The Constitution gives recognition to the role Filipino women have played and continue to play as partners in the task of n ation-building. They have a greater role in society today. They cor:stitutt> more than one-hal f of the population , a powerful political and economic force indeed in Philippine society. By sheer force of number a lone, it is only right that their voice be heard on matters a ffecting their ' The Local Govem ment Codo t R.A. N o. 7160, Chap. 10, Sec. 439. · declares Dece mber 7· 11 of every year a>< "Youth Week" to highlight the critiC'al r ole the youth plays in nation-
building. Proclamatio n No. 521 {Dec. 1 i , 2003) decla res the la,;t week of Februa ry of ever y year as "Nat ional TOYM Week." ' Th~ Outstanding Young ~len~ • TOY~t • Awards which has been instituted by the Junior Chamb~r of the Philippines \Jaycees'· a voluntary,organization of Young Filipinos "strivin g to build a better nation and to develop bette r citizens," s ince Octo ber 15, Hl59." has no t only become one of th e cou ntry's mos t coveted a wards for yo ung men, bu t a lso an inlititution recognizing e xcellence in our young Filipinos, aged 18 to 40. The TOYM F oundation m a de up of TOYM aw!\rdees seek to promote the ideals of leadership, excellence, integrity. character and servic~ to the n ation." ' Presid!H>t Corazun C. Aqu ino, 1986-1992 and P resident Gloria Macapagal·Arroyo, 2001prcsen t .
AR'J'. H.- DECLARATION 01'' PR1NCII'U:S AND STATE POLICIES State Polici{!S
63
welfare and the country as a whole. It 1~ sirnpl<~ justice that they be given a legitimate share with men in leadership and major dt~cision-making process, at all levels and in all spheres of hnman activity outside theh· homes. In pre-industrial societies, domestic work was assigned to wow~n who were looked upon merely as men's helpmates and creative som·ces of human life. The traditional view that the role of women is primarily childbearing and child-rearing and performing household chores should be abandoned. 2 While the social rol
In economic life, for instancP, the Stat(~ must promote and uphold the equality of men and women in employment, terms of employment, opportunities for promotion, t.he practice of profession, the acquisition, control, and disposition of their property, pursuit of busine1>s, etc. In certain situations, they are entitled to special protection from tht> Statt!:5 (.sl'f! Art. XIII, Sec. 14.)
SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among
them.
2'fhe fact. is that. Filipino v.-onwn (•ontribulf• gn!<\Uy ~o human d<>vcloprr.c-:1t in thE' Philippines by the quantity and qu:• take for g1·ant.ed. ·'Majority of the country's impoverished women Ji,·e in the rural arr·r,;.. Oi;:pendng indu~tr·ies and employment opportunit.ie!'< in thel'e arE'a!:' and maximizin.: t:ducation and t1'<1ining for t.hem to increase their effic-iency in ~conomit ac·tivitil:':' w~ll ~o a long way in r;•ducing povm·ty amon~ them and dcvcbpmq their competitiH:rw~.~ ;n l ;v, open labor mar· kilt. Empow<·rnwnt of Filipino \j;vmE'n is g+merally belit•,·ed to h~•vt- ;1!1 ll:lPr••nct•.<. men cannot be consid~red, as a g<>ncral propo~ition, superior to wom+.!n. -SDcspit~~ m~ny advanc(!;; in many aspects of lif<:>. m.my Pli:'t':i .,f gcmdcr-hascd violen~e persist and ofwn go unreported. It includE's any act tl•:H re;;uh~ in. or i~ likely to result in physicaL sexual or p,.:.ychological harm or ~uffering t;_, "··~m<·n. including threats of such a-cts or arbitrary depri vat.ion of liberty. Some of the ("llllntry·;; more importa"nt laws that respond to gender-based viol<~ncc arc: c ll the Anti-S~:.xual !laras:.
64
TE XTBOOK O:"l' THE PrtlLTPPlNE CONST!Tt:TION
Sec. 16
Right of the people to health.
Wholistically defined , health is the state of physical, social and mental well-being rather than merely the absGnce of physical di:>eases. The State has the obligation to promote and pro tect the right of the people to health. To better fulfill th is duty, it m ust instill health consciousn ess among the people. This topic is discus:sed lengthily under Article XUI (Social Justice and Human Rights), Soctions 11 to 13. SEC.16. The State shall protect and advance the right of the people to a balanced a nd healthful ecology in accord with the rhythm and harmony of nature. Right of the people to a balanced and healthful ecology.
Ecology is tha t branch of science th at dealH with the study of the interrelationships t1f living things (organis ms , pl ants and a nimal s! and their environments. (s ee Art. XII, Sec. 3. J (1) Causes of' environm ental degradation. -The Constitution, in Section 16, takes cognizance of the continuing degrad ation of the Philippine environment which has become a matter of national concern caused by r a pid urbanizai.ion (migration of peopie from rural area.;; to urban centersJ, industrial g rowth, population expansion, na tural r esources utilization, the us e of modern technology, and ot.her socio-economic factors, and consequently, the need for at1 environmental protection program to prevent further injury an.d/or damage to plant and a nimal life and property and, more important, to protect human life, health and safety.'
( 2 ) Effect on quality of life.- Many people today are u nable t<.• live in dignity a s human beings because they cannot acquire the necessary food, housing, health, sanitation an d education as a result of the deterioration of t he eJtvir onment. The qu ality of life of th e people cannot advance unless the living environment is nurture d and valuable natural resources are protected a nd pre served. ~ 'R..A. No. 8 7MJ (.Jun~ 23, 19!)9/, otherwi;;e known ttl' U1e "Philippine Cle<~n Air Act of 1999," provides for a l'omprehon.sive air pollution control policy. H.A. No. 9003 !.Tan. 26, 2001}, otherwise known as the "Ecological Solid Waste :'l-1anRgemen t A<·t of 2000,'' provides for a •1 ecological solid waste managemen t p:-ogram , creates t he necessary institutiona l mechanism~; and iru;en· tives, prohibit;;, certain acts, anrl provides p~n<~lties. R.A. No. 9275 (March 22, 2004), otherwise lmown as tho "Clean \V;1ter Act, provides for a compre hensive water management. program to P?.. teet th e co untry's water bodies from land- based sou rces of pollution s uch as industries, mining, agricultural ope'rAtions, and community or household acth·ities. t o en surP. the effective utilization and conservation of the nation';; water and resources. "The Philippines is an archi pelago. Some 7,000 isl11nds com prise thi::; beautiful country of ours. &dies of water, river system;;, lakes, chains of mountains, and vokanoes are our country's major features. 'Togethc. r with th e coastal and marine areas, t hey te~m v.ith Oora and faun a.
·.'
.l Sec. 16
/'
ART. H.- DECLARATION OF PRINCIPLES AND STATE POLICIES State Policies
65
(3J Relation~hip h£>tween development and environment.- The ]essons drawn from ecological studies in the United Nations show that politkal, social, and economic growth and development are crucially dependent upon the state of the human envir·:. nment.;~ For this reason, the improvement of the quality of our envil'Onment should occupy a higher place in the scheme of priorities of the goyemment..
The lore;;t covers of our country harbor ;~orne 8,120 species offloweting plants (including ~he rare Waling-Waling and Cattleya nrchidsl, some 3,50:l species of indigenous trees (sut:h as the world-famous Narr·a, Yakal, Molave, and Kamagongl, 640 species of moss, 240 species and sub-species of mammals, and many more flora and fauna, Our count.ry's marine areas harbor some 3,500 fish species (esp~.:ially our world-famous Tuna, Tanguigi). One square kilometer of coral reef~; produces more than 200,000 tons of fish and other marine products every year, Truly, our beloved Fhilipines de;;erves to be called the "Pearl cf the Orient." Urbanization, industrialization, defore;;tation, and rapid population growt.h are some of the major factors that contribute to the degradation and destruction of our environment and its million;; of pricelesg denizens, Illegal logging and the kaingin system of farming have denuded our forests- from '2(imillion hecta.-e;; a hundred years ago to 5A million hectares today. Every hour, ;;om~l 63 hectares of fore1;t.s ar~l cleared. Of the 44,096 square kilnmeters of roral reefs, almost 70'/c· have been declared by th!:' Bureau of Fisheries and Aquatic Resource:; as being in fair to poor condition. Environment l'xpert.s, howev('r, are optimistic that these conditions can be anested and our country':;; environrnent can be rehabilitated. Effective implementation of our count,·y's various environmental law,:;, recycling, proper waste disposal, and massive reforestation, can promote such rehabilitation. (:\ianila Bulletin Bditorial, June 17, 2004,} Let us help foster public awareness about the urgent need to preserve our environment and our country as the •Pearl of rhe Orient Seas!' 3 Sevm·al factor:; haYe been cited as re;;ponsible for the growing threat to planet earth and, therefore, to human and animal life on it. These include the build-up of carbon dioxide and methane creating the phenom~~non of the greenhouse effect (due to pollutants from increased combuEtion fossil fuP.ls. deforestation and burning forests) and the depletion of the ozone layer which pose the danger of warming up, if not overheating, the earth and exposing coastal areas to tidal waves wilh the melting of the polar ice, The release of "greenhouse gase,;;," primarily carbon dioxide from the burning of fossil fuels, traps the sun·.~ heat and prevents it from radiating hack into space. Scientists have documented an increase in unreasonable weather, t.emperat.ul'e P.xtremcs, forest tires, altered rainfall and drought patterns (which disrupt food t-1uppli~~), and <>cvere storms and downpours. The re<:a;;nn for the latter iB simple: as the atmosphere warms, it accelerates the evaporation of surfat(· "·at.;,r;:. It al;;o expands the air to hold more water. So, when a normal storm occ\as, it re~ult:> in nuJre intcn!;e rainfalL Warning also accelerates the breeding rates of disease-carrying in~ects. Overpopulation in developing CO)untries has also affected the envirunme:n. Protection of the environment is a global issue and every nation is duty·bound to prot~•:t !c.- own. In the face of drastic disruption~ of weather patte1·ns around the world, global ~-t>operation and efforts are needed to help solve the growing hazards to the habitability of our planet for all life forms. It is not hard to forsee the kind of political instahilitv and ;,ona I disorder that can result from climatic in!;tability. • All living creatures, including those found in the seas and oc-eans, are feeling the change in climactic conditions and are trying to adjust hy moving or migratmg The Earth is reacting to the weather changes, as seen in the shrinking glaciers. th(' sp'imng cof chunk~ off the Antarctic ice sheet, and the freak weathet· phenomenon .such as El :\u'lo ar.d La Xiil.a, Fish are becoming harder to find, their habitats being destroy€d evm1 before tl:ey are old enough to reproduce. The planet is losing plant and animal spt'('ies at a rate that has nor been seen for eons, World Environment Day is observed on June 5 of each year as one of the principal vehicles through which the United Nations stimulatt>!:' wol'lu.wide attention to the importance of sustaining the environment and enhancing the political actwn to protect its lite-supporting features.
66
TEXTBOOK
0~
THE PH!LIPf>lNE CONSTITUTIOl"
::lcr ;;. 17-20
SEC. 17. The State shall give priority to education, science and t echnology, arts, culture, and sports to foster patriotism and n ationalism , accelerate social progress, and promote total human liberation and develop ment. Priority to education, science and technology, arts, culture and sports.
Thi::-; topic is discussed under Article XIV with the above subj ects as title.
SEC. 18. The State affirms labor as a primary social economic force. It shall protect thE' rights of workers aud promote their welfare. Labor as a primary social economic force.
This topic is discussed under Article Xl ll 1 Social Rights), Section 3.
Ju~ti ctJ
and Human
SEC. 19. The State shall d e velop a self-reliant and independ· ent national economy effectively controlled by Filipinos. Self-reliant and independent national economy.
Section 19 states the Co)n;stitutiona] guidelines in the development of the economy: economic s!:!lf-reliance, independent national economy, a nd effective F ilipino control of the economy. This topic is di1;eussed in detail under Article XII (National Economy and P atrimony), Section J.
SEC. 20. The State recognizes the indispe nsable role of the private sector, encourages private e nterprise, and provides incentives to needed investme nts. Rote of the private sector in the economy.
In r ecognition of the jndispens able role of th ~ private sector as the main engine of economic development, tht' S t a t e is · mandated to encourage private enterprise and to provide incentives to needed investments, whether local or foreign. The Constit ution does n'Jt fa vor an economy managed or controlled by the State. Governme nt is often con.:,idered a poor manager . Controls breed corruption and d iscourage business. They play favorites, thus discouraging those not favored. Under the principle of subsidiary adoi-'ted by the Cons titution in the a bove provision, the government should not engage in particular busi ness
Sees. 21-22
ART. II. -DECLARATION OF PRINCIPLES AND STATE POLICIES State Policies
67
activities which can be competently and efficiently undertaken by the private sector unless the latter is timid or does not want to enter into a specific industry or enterprise. (see Art. XII, Sec. 6.) The government was not established to engage in bu:)iness. The duty of the State is to make the economy a system fot free and private ente1·prise with the least government intenention in business affairs. This topic is discussed fully under Article XII (National Economy and Patrimony), Sections 1, 2, 6, 10, 16, 17, and 18.
SEC. 21. The State shall promote comprehensive rural development and agrarian reform. Comprehensive rural development and agrarian reform.
"Comprehensive rural development" covers all phases of rural development- economic, social, political, cultural, and even industrial. This topic is discussed under Article XIII (Social Justice and Human Rights), Sections 4 to 8 and Article XII (National Economy and Patrimony), Section l.
SEC. 22. The State recognizes and promotes the 1·ights of indigenous cultural communities within the framework of national unity and development. Rights of indigenous cultural communities.
As used in the Constitution. the term "indigenous cultural communities" refers to those non-dominant groups 1 in our country which possess and wish to preserve ethnic, religious, or linguistic traditions or characteristics markedly different from the rest of the population. 2 Section 22 recognizes constitutionally the existence and the rights of the indigenous cultural communities. It directs the State to promote their rights within the framework of national unity and development. Thus, the State is bound to consider the customs, traditions, beliefs and interests of indigenous cultural minorities in the formulation and implementation of state policies and programs. In a multi-ethnic society like ours, the above
'They c:onsist of about sixty-three (63) ethni~· or tnbal gToup;; scattered throughout the country from Batanes inhabited by lvatan tribe; lii Saranggani inhabited by Samals. About half of the members of these tri~al group;; lu:>lon.,: :v :hE' )lu;;lirn group that dominates the provinces of Cotabato, Lanao, ~uln. Zamb•langa. and Basilan. 2See Committe,; on National Integration Report :\o. 1, Annex B-1, p. 1, Feb. 2, 1972, 1971 Constitutional Convention Se~ Pre;;ide:mial Denee No. 1414 (June 9, 1978).
TEXTBOOK ON THf<) PHTUPPI.NE CONSTITUTION
68
Sees. 23-24
provisi on i~> necessary in promoting the goal of national unity and devel opment.3 (see Art. XVI , Sec. 12.) Under the provision, the government may even enact laws especially for them taking into account their customs, traditions, belie fs, and intel·ests.4
SEC. 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation. Non-governmental, community-based or sectoral organizations.
The State is required to encourage these organizations because recent events have shown that, under responsible leadership, they ca n be active contributors to the political, social , and economic growth of the country. It should r efrain from any actuation t hat would tend to interfere or subvert the rights of these organizations which in the words of the Constitution are community-based or sectoral organizations that promote the welfare of the nation . This topic is discussed at length under Article XIII (Social Justice and Human Righb; ), Sections 15 and 16 which categorically state the role and rights of people's organizations as vehicles to enable the people to part.icipate and intervene meaningfully and effective ly in decisions which direL"tly affect their lives.
SEC. 2'1. The State recognizes the vital role of communication a nd information in nation-building.
·'The Phili ppinns, perhaps owing lto its >t r<" hi p~lngic n ature, is as di vc.· r~t> a,; >~nv n at io n in the world. With several linguist ic ~roups, it h as a significant n umber of indigE'nous peoples. In Mindanao, for ;..xample, th(' indigenous peoples are collective>ly called .~um ad.< meaning "horn of the earth." Asidt! from them. thi>rc are other l!thno-linguistic ~r,)uf." if' th(' \"•s aytri b uted into v;tr ious subgroups. As a ~roup . 1he indigenous com m umti es a r~ pc>lirically 11nd economically marginalized, a condition that can be attr ibut"d tc: a host of factors , not the least. of which is thei r lack of access to the : re-q uired for their mate ri al sun·ivnl and the improvement nf thl'\ir quality of life. 'Thus, in line with the national polil:y to faci!itf the members of indigenous cultural nH:llmunities and accelerate- the d •' \ ,•lo pMent of the areas occupied by them, the Civil Scrvicn Commission is require d by !a" •..:· j,!i·.-., special civil service examinations to qu alify them fur 11ppointmcnt in the civil tierv irc · Pres. Decree No. 807, Sec. 23; see Pres. Uet:rees No. H32 t~ nd 1125.) Consistent a lso wi th the spirit of t he constitu t ional provision, t he "Code uf M•Jslim Personal Laws of the Philippines" re~'Ognizes the Rystem of Filipino Muslim lnws, c:odifies Muslim laws, and provides for its itdministration among :.\1u~lim!:l. (J'res. Decree No. 1083, F(\b. 4, 1977.) R.A. No. 837 1 !Oct. 29, 1997J, known as the Indigennus Peoples Hight.!:' Act of 1997 i_IPRAI, protects and promotm.; tht~ rights (particularly over their ance;o tral lands in communal (,wne rship) of indige nous cultural communities and crcat~s the National Co oun i!<>~ion on Ind igt>nous People.
Sees. 25-26
ART. IJ.- DECL.-\RAT!ON OF PRIN CIPL}:S AN D STATE POLICH~~ St at e Polici~>
69
Vital role of communication and information in nation-building. Communication and information , a~ U!-;t'ld above, include not only print or broadcast media (radio and television) bu t als o motion pictures , advertising, cabl e, tele phone and teleg•·aph. 1 Those mean~ of communication designed to gath er a nd convey ne\\'S or inform ation to the public are called P.J.jlf?.S . Tf~ because they reach the mass of the people. (see Art. XVI, Sec. · 11[1]. ) That t hey play a critical role in nation-building is very obvious . (1 ) Form ation of an enlightened c:itizenr:y. - Mass media ~h ape people's thoughts and beliefs , their attitudes and va lues. In a country like the Philippines composed of people with diverse cultures, they can be an effective instrument in promoting nat iona l integration and preserving Filipino values and t raditions. By educating the citizenry on important pubHc issues, they also he lp create a s trong, vigilant and enligh tened public opinion so essential to the successful opera tion of a t'epublican democracy. (2 I Promotion o(efficienc,'}' and economy in government. a.nd business. In fo r mation and comm unication can be used to li nk our geographically dispersed population and help effect fas ter delivery of educational, medical, and oth er public services in remote areas of the country. In a ny organization , ready information maximizes int~rnal elfkiency. Partjcularly in busi ness, il reduces cost of production and services.
(3) Developm ent of society. - On the mater ial side , it is diffic ult to im agine a progressive country, in today's wn-:-ld of hi gh -tech computers , internets, cyherc;pace and informat.ion highways, vvith antiquated communication a nd information structures. In the l f.Li>t few years, the world ha s witne ssed a steady stream of technological progress in this fie ld. The Philippines must keep abreast of communicaLion innov·ations but a t t he same time be selective and discriminating Lo insure t hat only t.ho~:~e "suita ble to the needs a nd aspira t ions of th e nation" !Ibid.; Sec. 10.) Hrr. adapted. Utilized and m nnap.;ed wise ly and e fficiently, communication and informat ion are very u~;e ful tools for the fH.:onomic, social, cul tural and political d evel cpment. of society.
SEC. 25. T he State s hall ensur e the autonomy nfl o c~ I go,·ernm ent s . Autonomy of local governments. T his topic is
discus s(~d
in Articl e X (Local Gr.n·ernmr.nt l.
SEC. 26. Th e S t ate sh a ll guarantee equ a l access to opportun ities for public serv ice, and p rohibit political dynasties a s may be defined by law. 1 1'elecommunication companie:; that me rt> ly sl'ne all carriers lor tnm!'mitting spl:'cific messngcs to sp ecific addressees (.IT reci p ient~ a re public u tili t.ies (Art . XII. Sec. 11. l, m •t ma ss media.
7()
TEXTBOOK ON THE
PH I LIPPT~ E
CONSTITCTION
Sec. 26
Equal access to opportunities for public service.
This topic is discussed under Article VI (Legjslat.ive D~partment), Sections 4, 5, and 7 and Article X (Local Governmen ti, Section 8. Addition ally:
Limitation of terms of office. - The provisions li miting the ter ms of offi ce of elective officials (President, Vice-President, Senators , Representatives, and local officials) enha nce equal access to political opportunities although they ma y not completely do a way with the evils s pawned by political dynasties that proliferated i.1. th e country in the past. With his political and economic r esources, an elective official can have a close kin or trusted foll ower run for the same position and continue to exercise control through the latter. Hence, the need for a declaration expressly prohibiting political dynasties. (1)
Prohibition of political dynasties. - The constitutional policy on the prohibition of political dynasties expresses a national commitment to democratize election and appointment to positiuns in the government and eliminate a principal obs tacle t o "equal a ccess to opportunities for public ser vice." It is not uncommon to have most of the top e lective positions in a province (or city l down to the barangays occupied by one family and close relatives of t he fa mily members. Politicia ns form husband-wife teams, or father-mother, son -daughter t eams and hold to elective posiLiC'ns for decades. The dominance of political fa milies in the past not only kept more deserving but poor individuals from running or winning in elections; it also enabled powerful a nd affluent politicians to corner appointive po~ition s for their relatives and foll ow ers as if th ey alone are gifte d with the ability to serve the country . 1 (2)
(3) Prohibition con stitutionally m andated. - Th e law imp lem en ting the constitutional policy shall define what constitutes political dyna3ties , having in mind the evils sought to be e t·adicated an d the! nted to ins ure the widest possible hase for the se lection of elective go\·ernment officials regardless of political, economic. and social status. Xo~ e that the State is expressly mandated to prohibit "pol i~ ical dynasti es:· Congr e ::;~ ha:s no discretion on the matter except merely to spe ll out the meaning and scope of the t erm.
1 'fhe m ulti-party system (see Art. IX·C, Sec. 6 .J is designed not only to guarantee wider access to opportuni ties for public s cr·vicc but it is also mea nt t o do away with politica l dynasties as en uncia ted in Section 26, togeth er with th e te rm li mits impose d lik ewisP. by the Constitutio·n on elective public officials. (sec ArL. VI, Sees. 4. 1: Art. VII, Sec. 4; Art. X, Sec. 8.) As n oted above, h owe ver, the membe rs of the political clan , because cflh eir political clout, are th e ones who get elected, and those who a r A not elected, get a ppoi n ted to h igh positions in the nalional government.
Sec. 27
ART. ll.- DECLARATION OF PRlNClPLES AND STATE POLICIES State l'olicie~
71
SEC. 27. The State shall maintain honesty and integrity in the public service And take positive and effective measures against graft and ~o.rruption. Honesty and integrity in public service. ( 1) The perennial problem of graft and corruption. - In the Philippines, every new administration since the postwar period has made a pledge to eradicate graft and corruption in government. The popular perception, however, is that this baneful ill has become more rampant and sophisticated through the years. To be sure, the above provision was incorporated in the Constitution because of revelations of "unprecedented magnitude" of graft and corruption allegedly perpetrated by officials in the highe~:;t drcle of the government during a previous regime. ( 2) Ways to attach problem . - The malady of graft and corruption must he eliminated or at least minin1ized to a tolerable degree because of the staggering amount of public money that has been lost through it. What is needed is moralleadet·ship by example on the part of the top officials in the government and a continuing, uncompromising, well-coordinated campaign against all forms of dishonesty and venality in the public service which have considerably slowed down thE: socio-economic progress of our country. Having honest Presidents with the best of intentions is nni enough to reduce corruption to minimal proportion. This perennial problem cannot be solved by mere empty promises and congressional inquiries, but by prosecuting without fear or favor and putting behind bars so-called '"big fishe s'' found to be involved as concrete examples of the government's determin a tion to achieve decency in the public ::;ervice.
Any campaign against this scourge of society will be made more effective if accompanied by a morality cru~:;ade. 1 (3) Need for honesty and integrity in public: service. - The ful fillment of the constitutional mandate will go a long way in strengthening the
'Exec. Order No. 314 (April :10, 2004), a~ a mended by Exec. Order N o. 317 >June 8, 2004). creates th~ Prc»idential Commi!!!don on Va lues Formation (PCVF), ht-tlderl h.\' the l'n~sident as Chairper;;on . The PCVF "!'lhall servnt may work haud-in-hand wi th ~:ivil ~ocie ty 1md the privat.e sector in Lh<: c:-:t,~ l)li- lmH:nt of a strung foun dation fnr moral value formation in the government burP privat<· citizens withnut government remuner11tion J of th e Cou ncil shall be compo~ cd of lay leaders as invited by the Presidt:mt. (Exec. Order No. :l47, July 11, 2004. I
72
TEXTBOOK ON THE PHILI PPINE CONSTITUTION
Sec. 28
people's trust in the government and its leaders. It will also ensure the efficient use of t he meager resources available for national development. This topic is furth er elaborated under Article XI (Accountability of Public Officers), Sections 1 and 2.
SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Full disclosure by the State of all its transactions.
(1) Duty of the State. - Section 7 of the Bill of Rights tArt. Ill.) guarantees the people's right of information on matters of public concern and access to records pertaining to official transactions of the governme nt. On the other h a nd, Section 28 requires the State to make public its transactions without demand from individual citizens. It s tresses the duty of the State to release the information. ( 2) Transactions covered. - The policy covers all State transactions involving public interest, i.e., transactions which the people have a right to know particularly those involving expenditures of public funds. The law, however, may prescribe reasonable conditions for the disclosure to guard against improper or unjustified exercise of the right. The policy will not apply to records involving the security of the State or which ar'-! confiden· tial in character. (see Art. III, Sec. 7.)
The policy of full d iclosure is in line with the constitutional mandate of an open, accountable and transparent government. (see Art. VI, Sees. 12. 16[4~ 2D;Ar.t/VII, Sees. 12, 13[par. 1), 20; Art. IX, D-Sec. 3; Art. XI, Sec.
17.>f'1Y'.--:' !v .
-- oOo-
Article Ill BILL OF RIGHTS
Concept of a bill of rights. ~Jilll.Jlir.ig}J!Ji_may
be defined as a declaration and enumeration of a
pcr~nd privileges which the Constitution is designed to protect
agamst violations by the government, or by an individual or groups of individuals. It is a charter of liberties for the individual and a limitation upon the power of the State. 1 Its basis is the social importance accorded to the individual in a democratic or republican state, the belief that every human being has intrinsic dignity ~.nd worth which must be respected and safeguarded. The new Constitution incorporates in Article Ill all the basic rights in the former Charter. It also awards new rights to the individual. (see Sees. 8, 11, 12, 13, 18[1], 19.) Classes of rights.
The rights that a citizen of a democratic into:
state~enjoys
may be classified
Natural rights. -They are those rights possessed by every citizen without being grantea by the State for they are given to man by God as a human being created to His image so that he may live a happy life. Examples are the right to life and the right to Jove; (1)
(2) Constitutional rights. -They are those rights which are conferred and protected by tne Cot'iStitution. Since they are part of the fundamental law, they cannot be modified or taken away by the law-making body; and (3) S,tatutG•ry rights. They are those rights which are provided by laws promulgated by tne law-making body and. consequently, may be abolished by the same body. Examples are the right to receive a minimum wage and the right to adopt a child by an unrelated person.
The human rights secured hy the Constituti on include social and economic rights not just political and civi I rights . They are as follows: ( 1) Political rights. ··- They are such rights of the citizens which give :-----...,...._ them tne power to participate, dir ectly or indirectly, in the establishment or administration of the government. 2 Among these rights are the right of citiz enship (Art. IV.), the right of suffrage (Art. V. ), and the right to information on matters of public concern (Sec. 7. ); (2) ()uil 1jgl]J.s. -They are those rights which the law will enforce at the insta;-ceof private individuals for t he purpose of securing to them the enjoyment of their means of happiness.;; They include the rights to due process and equal protection (Jf t he laws (Sec. 1. ); the rights against involuntary servitude (Sec. 18f 21.) and imprisonment for non-paymE.>nt of debt or a poll tax (Sec. 20 .); the constitutional rights of the accused I Sees. 11 to 22); the social and economic rights (in.f'ra .J; religious freedom t Sec. 5 !: iiberty of abode a nd of changing the same (S('<.:. 6. >:and the right again:;t impairment of obligation of a contract . (Sec. 10.) F reedom of speech, of expression, or of the press, the right of assembly a nd petition, and the right to form associations (Sees. 4, 8.) a re likewise civil rights. However, they partake of the nature of political rights when they are utilized as a means to participate in the government; (3 ) Social and economic rights. -They include those rights which are intended to insure the well-being and economic security of the individu~ll. The right to property (Sec. 1. ) and the right. to just compensation for private property taken for public use lSec. 9.) belong more appropriately under this third category of r ights. They are also provided in the articles dealing with the promotion of social justice (Art. XIIU, the conservation and utilization of natural r(~sources (Art. XII, Sec. 2. ), and the promotion of education (Art. XIV, Sees. 1. 2, 5[ 4, 51. ), :>cience and technology (Ibid., Sees. 10-13.), and arts and culture. ([bid., Sees. 17. 18.) Political and civil rights can have meaning only if co ncrete mt>asures are taken to breathe life and substan ~e t.o social and economic rights which include cu ltural rights; 4 a nd (4) Rights of the accused. - They are the (civill rights intended for t he protection of a person accused of any crime, like the right a gainst unrea'-V<•ra v;.. Avclino, 77 Phil. 221. 'lMalcolm & Laure l, op. r:it .• il· 378. 4 The concept of human rights do:Js not mere ly involve pol itu~i!l concerns but also encom· passes social and economic liberties or what advocates call "positive liberties" such as the right to healt h care, education, sholter, and food, a nd other basic ;;ocial se rvices which require concrete action Rnd measures on the pa rt of the government e,;pecially amid t he high incidence of po\- ert.y in our country. (see Art. II, Sees. 9- J 1. > They arc as important, a nd in some cases, even mort~ crucial than the other rights as thE.>i r long sta nding non -ob»ervance may bring about social unrest and political instability. if not violant r adical ism or revolutionary conditions.
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75
sonable search and seizure, the right to presumption of innocence, the right to a speedy, impartial, and public trial, and the right against cruel, degrading, or inhuman punishment. The provisions (Sees. 11 to 22.) par~ ticularly and directly dealing with these rights are discussed subsequently. State authority and individual freedom. (1) State, an instrument to promote both individual and social welfare. - The State, as an organization, exists to promote the happiness and welfare of both the individual and the group of which he is part. It is not an end by itself for the glorification of which the life, libe·rty, p1·ope1·ty, or happiness of tl}e individual may in all cases be sacrificed. Neither is it a means for the realization of the best life only by the individual for which the group may at all times, if necessary, be staked.s LiberJ.y_.is....a...bJessing wi~ll.().!:!.L:Whi_cl! Iif~ is a _rn~s~, bl!L~h9.t11
(2) Conflict between individual rights and group welf'are. - Conse· quently, in some cases, the individual must yield to the group; and in other cases, the group to the individual. It is for this reason that the Constitution creates a domain of individual rights and liberties, which ilprotected from encroachments whether by individuals or groups of individuals, and even by the government itself. For the same reason, the Constitution provides, expressly or impliedly, that i11 certain cases, when demanded by the neces· sity of promoting the general welfare of society, the government may interfere with these rights and liberties. 9 (see Sec. 9.)
'#The people must be strong enough to maintain its control over the gOvernment and the government must be strong enough to maintain its existence and protect the interests of the people. (3) Role of judiciary - How far, consistently with freedom. may the rights and liberties of the individual be subordinated t
SJose M. Aruego, Phil. Government in Actiun '1962 ed. '· p. 81. 6 Calalang vs. Williams, 70 Phil. 720. 7 Rubi vs. Provincial Board, 39 Phil. 660 ~Jose M. Aruego, op. cit., p. 81. 9 lbid. 10 Rubi vs. Provincial Board. 39 Phil. 660.
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TH~;
PHILIPPINE CONSTITUTION
Sec. 1
cratic society. There can be no absol ute power whoever exer cis es it, for t hat. would be tyranny; yet there can neither be absolute liberty for that would mean license and anarchy. 11 On the judiciar·y, in appropriate cases, r ests primarily this all important duty of balancing the interes ts of the indivi dual and group welfare in the adjudication of disputes that is fai r and just to the parties involved and beneficial to the larger interests of the community or the people as a whole. In the exercise ofth~ power of judicial review (see Art. VIII, Sees. 4, 5.), our courts, ultimately the ):iupr~m e Court, act as arbiters of the limits of governmen tal powers especially in relation to individual rights .
.'t1.&~
SECTION 1. No person sh all be deprived of life, liberty, or property without due process of law, nor shall any person b e denie d the equal protection of the laws. Meaning of due process of law.
Under the Constitution, a person may be deprived by the State of his life, liberty, or property provided due process of law is obse rved. But what. is meant by due process of law'? No exact definition has been given to the expression , the r eason being that t he idea expr essed therein is applicable under so many diverse conditions as to make a ny attempt a t precise definition im possible. F or our purpose, however, we can safely say that any deprivation of life, liberty, or property by the State is with due process if it is done I J l under the a uthority of a law that is valid (i. e., not contrary to the Con stit ution) or of t he Con ~titution itself, and (2) afte r . compliance with fair and reasonable methods of procedure prescribed by law. 1 Aspects of due process of law.
Due process of law has, therefore, a two-fold aspect, namely: (1 ) E_rocedural due process which •·efers to the method or manner by which the law is enforced. requires, to p a raphra~ e Da niel Webster's fam ous d ef~ nition (in his a rgument in the Dartmouth College case, 4 Wheat 518.), a procedure "which hears before it condemns . which proceeds upon inquiry, and renders judgment only after trial.'" An indispensable requisite of this aspect of due process is the requirement of .!}.Q.tic~ . anc:l hea.r.i1.1_g; and
n
(2) §.!!bstantive due process which req uires tha t the law itself, not merely the procedures by whfchthe law would be enforced, is fair , reason-
"Ichong, et al. vs. H ernandez, et al., 101 Phil. 1155. ' De Leon and De Leon, Jr., The F undamentals ofTaxat.ion, 2004 Ed., p. 26.
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Sac. 1
77
able, a nd. just. In other words, no person shall be deprived of his lifE', liberty, or property for arbitrary reasons or on flimsy grounds. Thus, not only what m ay be done by any governme nt age ncy but also how it may be done should satisfy the requirements of due process in order to. ··make the deprivation valid under the Constitution. It is only in a totalita rian state that an individual may be punished for a crime or deprived of the enjoyment of his rights at the pleasure or whim of "one in authority" because the principle of the rule of law (see Int r oduction-B .) is not observed . Procedural due process. (1) In judicial proceeding::;. - For the most part, procedura l due process h as its application in judicial proceedings, civil or criminaL It requires:
(a) An impartial court clothed by law with a u thority to hear and determine the matter before it; ( b ) Jurisdiction lawfully acquired over the person of the defendant or property which is the subject matter of the proceeding; (c)
Opportunity to be heard given the defendant; a nd
(d ) Judgment to be rendered after lawful h earing.2 .Thus, there is a denia l of procedural due process where an accused has been charged with an offense (e.g. , theft) and convicted of anothera (e.g., robbery). Of course, the plaintiff h as a lso a right to be given opportunity to he h eard on his claim. (2 J J n administrative proceedings. - Due process, however, is not always judiciai proce ss. In certain proceedings of an a dministrative character ,4 notice and hearing may be dispensed with, where because of public need or for practical reasons, the same is not feasibl e. -T hus, an offender may be arrested pending the filing of charges, or an officer or employee may be suspended pending an investigation for violation of civil service rules and regulation.
It is sufficient if opportunity is later given to the individual adversely affected to test the validity or propriety of the admini stra ti\'e action on appeal to superior administrative authorities or to the court. or both.
2See B11nco Espaiiol vs. Pala nca, 37 Phil. 921: Lorenza n <~ v;::. Cayetano, L-37051, Aug. 31, 1977. ~sec P~ople vs. Abad Santos, 78 Phil. 774. 4 J.udicial proceedings arc those that are conducted hefurt~ cnur t s of justice, wh.ik.admifl · .i.stratil.ie prpceediru:s arc 'hose that are heaTd by bodies, agencies, or offices (e.g., National La bor Relations Commission, Securitie:o and Exchange Commission, etc.) under the Executive Department or by the independen t. G<>m;titut.ional Commission!! lsee Art. lX.), which aro empowered to render decisions or judgm ~ nts' in appropriate cases falling under their raspective jurisdictions.
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78
Sec. 1
Substantive due process.
Viewed in its substantive aspect, due process of law requires that the law in question affecting life, liberty, or property be a valid law, i.e., within the power of the law-making body to enact and is reasonable in its operation. (1) Thus, a tax which is imposed for a private purpose constitutes a taking of property without due process as it is beyond th~ authority of the legislature to levy. (see Preamble .) There is still a denial of substantive due process even if the law provides for a notice and hear ing in the assessment and collection of the tax. The reason is that tax can be imposed only for a public purpose (e.g., construction of public school buildings, promotion of science, payment of salaries of government officials and employees, etc.). (2) Likew)se, the taking of property for private use or without payment of just compensation offends substantive due process. (see Sec. 9, infra.) Persons protected .
The term "person" in the above constitutional provision embraces a ll persons within the territorial jurisdiction of the Philippines, without regard to any differe nce of race, color, or nationality, including aliens. ~Private corporations, likewise, are persons wi thin the scope of the guarantee in so far as their ,property is concerned .5 But not municipal corporations (local governments) as they are mere cr eatures of the S t ate .fi Meaning of life.
..Lite, as protected by due process of law, means something more than mere animal exis tence. The prohibition against its deprivation without due process extends to all the limbs and faculties by which life is enjoyed. 1 Meaning of liberty.
Lib.er.tJ', as protected by due process of law, denotes not merely freedom from physical restuint (e.g. , imprisonment). It also embraces the right of man to use his fac ulties with which he has been endowed by his Creator subject only to the limitation that he does not violate the law or the rights of others . Liberty is not license or unlimited freedom to. act accor ding to one's will. Thus, one may enjoy the liberty of speech, but he could not use it to urge the overthrow of the government, or to defame a nother.
~smith
Bell & Cn. v !;. Natividad, 40 Pt.il. 137. Yick Wo. v;;.. Hopkins, 18 U.S . 3515. 'Munn vs. lllinois, 94 U.S. 13a. 6See
ART. lli. - BILL OF RIGHTS
Set·. 1
79
Meaning of property.
ProP.§rty, as protected by due process of law, may refer to the thing itsetf or to the right over a thing. The constitutional provision, however. has reference more to th(l rights over the thing. It includes the right to own, use, transmit and even to dcstt·oy, subject to the right of the State and of other perso ns.~ What c·onstitutes deprivation . -----. . ----- -. •____.w _ "' -.._ _~_
What the Constitution prohibits is the deprivation of life, liberty, or property without due proce~s oflaw. ( 1 ) Depr~uation nf life. It refers not merely to the extinction of human existence It include$ the loss of any of the various physical and mental attributes (e.g., limbs, oyes, brain, power of reproduction, etc.) which man must have to live as a human being. To be sure, some people would prefer death to living without eyesight or as a bedridden invalid.
(2) Deprivation of' liberty. -To constitute deprivation of liberty, it is not necessary that aftrson be detained or confined. Liberty need not be lost in its entirety. To the extent that one is unduly prevented from acting the way he wishes to do, there is a diminution ofliberty. For example, a law which requires every parent to send their children only to public schools is unconstitutional as an unreasonable restriction on the tiberty of parents to direct the education of their children under their control. Such a law deprives the parents of their liberty without due process oflaw. (see Art. II , Sec. 12, supra.)
(3) Deprivation of property. - With reference to property, it is not Mcessary that it. be physically taken away from one entitled to it..-lffere is also deprivation, when its value is destroyed or its adaptability to some particular use, or its capability for enjoyment is impaired. Thus, there is dP.privation of property without due process of law where the O\': ncr is constrained to devote it, wholly or in part, to public use without compensation, as where carriers are required to furnish free transportation of persons or goods under certain circumstances, or \•.•here the value of an exclusive franchise (see Art. XII, Sec. 11.) is destroyed by government competition.(• Meaning of equal protection of the laws.
Equal protection of the laws !:iigni5es that "all per~on s subject to legislation shoukl be treated' aliki; under like circum stances and conditions both \n t he privileges conferred and liabilities imposed .··:: ~see Malcolm, Phil. r.onstitutional Law, ~Black. Constitutional Law, 3rd cd., pp.
pp. 324-:l:<>:577-575. T~;norio ,·s. !vlanila Railroad, 22 Phil. 411; see Art. III, Sec. 9; Art. XJI, Sees. 3, 17, and lb: An. XIII, Sees. l, 4, and 9 which, among other~> constitutionally limit the right to su bstan~ivc due proce:i in property. '~'1 Cooley 824-825.
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Sec. 1
The gua·rantee does not require that persons or things different in fact be treated in law as though they were the same. Indeed, inequality will result if the law will treat them alike as when different net incomes (e.g., PlOO,OOO and PlO,OOO) are taxed at the same amount. What it prohibits is class legislation, which discriminates against some and favors others whe n both are similarly !'iituated or circumstanced. Thus, for example, a law imposing professional tax of PlOO on lawyer s (or any profession) residing in Manila and P75 on lawyers residing outside Metro Manila is within the prohibition as it is patently discriminatory and unreasonable, since they are still "similarly situated," their places of residence being totally irrelevant to the amount of tax that Hhould be paid. Reasonable classification permitted.
Where there arc reasonable grounds for so doing, persons or their properties may be grouped into classes to each of which special legal rights or liabil ities may be attached. 11 No violation is committed as long as the classification is .reasonable, not .atibitrary or capricious. Thus, t here is no denial of the protection where under the law (1 ) foreign corporations are made to pay higher amount of taxes than that paid by domestic corporations;
(2) certain professions (e.g., su mo \vrestling) are limited to persons of t he male sex ;
(3) certai n privileges for leaves and shorter hours of labor extended to women (by reason of the physical structure a nd maternal function s of women) a re not extended to men; 12 (4) preference is l{iven to Fj]ipino citizens las against aliens) in the lea se of public market stalls; 1a
(5) different professions are taxed at
di ff~re nt
amounts; 14 and
(6) employment in factories of children under designated ages is prohibited. 1~
Scope of the guarantee. (1) The prohibiti on contain ed in the guarantee of equal protection (and due process of law Jtr. is a restraint on all the organs of the government and
1
:3 Willoughby 1937. Am . •Tur. 177-178. i:JCo Chiong vs. Cuadcrno, Ha Phil. 242. 1 'Se ~ R.A. No. 7160 (Local Government Code}, Sections 139, 151. 1 ~Pres. Decree No. 442 (Labor Code of th e Philippines I. as amended, Article 13. 16lo many cases, laws which have been held invalid as denying due process oflaw have ah;o been held All denying equal protection ofthc laws or r;ice L'er.~a. Both guarantees provide for broad standards of fairness but where th~ arbitrary gov
ART. III. - BILL OF RIGHTS
Sec. 2
81
on the subordinate instrumentalities and subdivisions thereof, and on the t hree inherent powers of governments, i.e., police power, taxation, and eminent domain; 17 (infra.) (2) The guarantee is available to a11 persons. Aliens are thus includPd; so are pl'ivate corporations in so far as their property is concerned. 18 But r.n_unicipal corporations, being a creature of the State, cannot invoke the protection; (3) ILdoes. rurt._exteruLt.o.. righis...w.hich J'l.I:.~....mU.itiC~ The State is not prevented from restricting the enjoyment of political privileges (e.g., right to vote) tO such classes of i tl'l citizens as it may see fi t; and (4 ) It is also not intended to enforce social equality. While all persons are equal in worth, they are not equal in all things, (see Art. XIII, Sec. 1.)
SEC. 2. The right of t h e people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shaH be inviolable, and no search w arrant or warrant of arrest shall issue exce pt upon probable cause to be determined p er sonally by the judge after examination under oath or affirmation of the complainant and the witnesses be may produce, a nd particularly describing the place to be searched and the p ersons or things to be seized. Meaning of search warrant and warrant of arrest.
(1) A search warrant is an order in writing, issued in t h e name of t_he People ofth.e Phil!pptnt~s, signed by a judge and directed to a ·peace officer, commanding him to s earch for certain person al property and bring it M ore t he court.1
-
(2) If the command is to arrest a person designated, i.e., to take him into custody in order that h e may be bound to answer for the commission of an offense, the written order is called.-u~r..qnt o{arrept. 2 Scope of the protection.
( 1) ..?ersons. -The protection applies to everybody, to citizens as well as aliens in the Philippines, whether accused of crime or not. Corporations are also entitled to the protection.
17 1
People vs. Vera, 65 Phil. 56. Bell v!:l. Natividad, 110 Phil. 136. (see 3 Willoughby \929.)
~S mith
1 See Rules of Court, Rule 126, Sec. 1. ¥See Ibid., Rule 113, Sec. 1.
TEXTBOOK ON THE PHILIPPINI<~ CONSTTTUTION
Soc. 2
(2) Houses. - - The protection is not limited co dwelling houses but extends to a garage, warehouse, s hop, store, office, and even a sa fety deposit vault.a It does not extend, however, to the open spaces and fi~ld.~ belonging to one. 4 (3) Papers and effect. - They include sealed letters and packages in the mail which may be opened and examin ed only in pursuance of a valid search warrant.:>
When search and seizure unreasonable.
In general, all illegal ~earches a nd seizures are unreasonable while lawful ones are r easonable. A sea rch or seizure ma de without a search warrant is not necessarily illegal , and one made under a search warrant is not necessarily legal.
What constitutes a reasonablf! or unreasonable search or s~ izure in any particular case is a _purel~icial question (i. e., only courts are empowered to r ule upon), determinable from a consideration of the circumstances involved. ""Requisites for valid search warrant or warrant of arrest.
They are:
q) lt must be issued upon probable cau ~e; (~l The probable cause must be determ ined per!'lonally by th e judge himself;fi
(3) Such determinatio n of the exjstenct- c.f probable cause must he macte after examination by the judge of the com p!ai na nt and the witnessr>s he may produce; and ·
(4) The warrant must partit:ula rly describE- th e place to be :::earched, and the persons or things to be seized. The law prohibits the issuance of a seal'ch warrc.nt fur more than one :specific offe nse. 7
56 c ..J. 1166. ' He::.t cr ,., .Un ited States. 205 U.S. 57. '•Ex Parte Johnson, 96 U.S. 727; sec Sec. all). ';Only the judge C!lll validly determine the existence of probable cause for the issuance of a war ran t of a rrest or search warrant and he must $0 det.e:-mine per;;onally. 7 Rules (If Court, Rule 126, Sec. 3. Such a s for "illegal traffic of narcotics and contraband'' which is a generic tf'rm covering all f{Oods exported from or imported into the country contrary to a pplicable f;latntes. N't~cessarily' t hen, more tha n one o ff~nse could arise from the activ ity designated. (C•1stro vs. P;lba.lan, L-281i42, April 30, 1976.) 3
ART. III. - BILL OF RIGHTS
8 :~
Meaning of probable cause.
By probah~ Cf4M~Ke is meant such facts and circumstances antecedent to the issuance of a warrant sufficie nt in themselves to induce a cautious man to rely upon them and act in pursuance thereof. 8 It·presupposes the introduction of competent proof that the party against whom a warrant is sought to be issued has performed particular acts, or committed specif'ic omissions, violating a given provision of our criminal laws ." Sufficiency of affidavit upon which warrant is. based. I
)'he true test of suffi ciency of an affidavit to warrant issuance of a settrch warrant is whether it had been'drawn in such manner that perjury could be charged thereon and affiant be held liable for damages caused. Thus, where it was shown that in the application sworn to, the affiant made his own personal inves tigation, and testified that at his own knowledge , he knew that the accused was lending money without a license, cha r ging us urious r ates of in ter est , a nd was keeping and using books of accounts and records rela tive to h is activities as money lender, his affidavit was considered sufficient for he could be liable for perjury if the facts turned out to be not as stated under oath. 10 'fhe affidavit is .insufficient if it is based on mere information and belief, or on mere hearsay .11 Sufficiency of description. (1 ) .El~e._. - A description ofthe place to be searched is sufficient if th e officer with a s earch warrant can. with reasonable effort , ascertain a nd identify the place intended. Thus, it has been held that the description of the building to be searched as "building No. 123 Rizal Avenue, Manila .. is a sufficient designation of th e premises to be searched .12 (2) Person. -As a rule, a wa rrant of arrest for the apprehension of an unnamed party upon whom it is to be served is void except. in those cases where it contains a description of the person or such as will enable the officer to identify the accused. Accordingly, in a case where the search warrant stated that John Doe (used when the name of the person is unknown ) had gambling apparat u s in his possession in the building occu-
"Al va rez vs. CFI, 66 Phil. 33; U.S . vs. Addison. 2H PhiL :36o. ~La Chemise Lacoste If>'. FernAnde:.:, 129 SCRA :l7J. ~fa,· :21. 1984 ; Stonehill vs. Diokno, ?,() SCRA :383, June 19, 1967. Thi~ degree of proof i>- lower than prima facie. (see S€c. 14[2]; Art. XVlll, Sec. 26, par. 2.) l"Yec Sue Koy vs. Almeda, 70 Phil. 141. ~ 'Alvarez vs. CFI. 64 Phil. 3:3. 1 ~Peoplc vs. Veloso, 48 Phil. 169.
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84
ON THE PHILIPPINE CONSTITUTION
Sec. 2
pied b.v him at J 24 Calle Arzohi spo, City of Manila and as this John Doe was .Jose M. Ve loso, the manager of the club, the police could identify John Doe as Jose M . Veloso without diffi culty. 1:1 (3) Property. - - The description of t he property is required to be specific only in so far as the circumstances will ordinarily allow. It has been held t hat where by th8 natme 1>f thE:! property to be seized, the description mul::lt be rath et:··general, it is no t r equi red that a technical description be given as thiR would mean no search warrant could issue. Thus , in a case, the dc::;cription "that there are being kept in said premisc~s hooks, receipts, lists, charts and other pap ~~rs used by him in connection \Vith his acti vities as money lender , charging <1 usurio us rate of interest, in violation of the law" was con ~idered s ufficient becau se the omcer of the law who executed the wanant was thereby placed in n poRition en abling him to identify the articles, which he did. l-1 But: a search warrant which d escribed the effects to be searched a s "fin ancia l records, vouchers, x ~ x andior typewriters ::;howing all busin ess transactions including disbursemen ts, receipts, balance sheets and related profits and loss s tatements" was held invalid as it authorized the seizure of records pertaining to all busin.es.-; tran sactions of the persons n a med r egardless of whether the t ransactions Wf!re legal or illegal. It is a general warrant because it do~ s not particularly describe the things to be seized. 1o·, Right against unreasonable search and seizure, personal. (l i Thl:' legality of a scMch and seizure co n be contested only by the party whose pt-~ )·sonal rights wey·e involved. Con6equently, one who is not the owner, le s~cc or Ia wfu1 occupant. of premi ses searched ~ann,)t rais e t he question whether thf~re has been an unlawful search or seizure,1"
(2) Without a prope1· search warrant (see requisites), no public official has the right to enter tht~ premises of a n oth er without his con sent for t he purpose of sean:h and ;;eizure. It. does not admit of doubt, therefore, that a sea rch or seizure cann()t be considered as u n..reasonable a nd thus offensive to the Constit.nt.ion if consent be shown . .F or this im munity from unwarranted intrus ion i!' a per so nal right which may be waived, either expressly or implied1y. 17
• 1/;id.
" Alvarez v~ C f.'J, 64 Phil. :35; People vs. Rubio, 57 Phil. :~RI) '·\Stonehill v.~. Diokno, 20 SCRA a8:~ . Ju ne HJ, 1967. It ha,: bee n held that th e requiRite ao; t.o a panir1tlar desc rip tion () { t.hc thi ng:; tn. be sc iJ.!:!d wa;; not co mplied with hy a search warr ant is:;ucd for ·'!lar coti c!i a nd othnr w n traha nd" liS they may comprehend any personal property . iif Cu!'-t
ART . 111.- BILL OF RIGHTS
Sec. 2
85
~~-~!U~~~!~.n..~n~t~~!~!J.r..~.may be mi!_f1.~ ~!!n.Q.I:!Lw~rranJ~
In the following instances: (1? Where there is consent or waiver; 18 (2') Where search is an incid ent to a lawful arrest;l 9 /
(3) In the case of contraband or forfeited goods being transported oy ship, automobile, or other vehicle , where the officer m aking it has reasonable cause for believing that the latter cont ains th em, in view of the difficulty attendant to securing a search warrant;20 (4-( Where, without a search, the possession of ar ticles prohibited by law i.s disclosed to plain view or is open to eye and hand; 21 (5)' As an incident of ins pection, supervision and regulation in the exercise of police power (see Sec. 9.) such as inspection of restaurants by health officers, of factories by labor inspectors, etc. The same thing may be said of inspection of books of accounts by revenue cxaminers;22 and (6) Routinary searches usually 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. 23 \!h.e.n ar!.~l ma_y: be made without warrant.
A peace officer or priva te person .may, without. a wanant, arrest a person:
U) When, in his presence, the person to he arrested has committed, is actua lly committing, or is attempting to commit. an offense; ~2) When an offens e has in fact just been committed and he has personal knowledge of facts indicating t hat t he person to be a rrested 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 24 The accompanying search and seizure of the effect s (e.g., stolen goods) or instruments (e.g., gun, knife) of the crime shall also be lawful although done without a search wa~rantJ!_!Li,t.j~~Q incident to _ajawfuLarrest.
16
People vs. Malasugui, 63 Phil. 223. Alvaro vs. Dizon, 76 Phil. 837; Rules of Court, Rule ll a. wr..1 agon<'ia vs. Palacio, 80 l'hil. 770. 2 'State vs. Quina, 97 S.E. 62. 22See Can don vs. Blait·, 48 F. 2d 648. 2 ~See 47 Am. Jur. 513-515. ~'Rules of Court. Rule 11 3, Sec. 5.
19
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
86
Ser.. 3
SEC. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Meaning of right of privacy. Th~ r.tghJ g[priJJ.g~ is concisely defined as the right to be left alone. It . has also been defined as the right of a person to be free from undesired publicity, or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. 1
Basis and purpose of the provision.
( 1) The right to privacy is considered as belonging to that class of rights which every human being possesses in his natural f.;tate and which he does not lose or surrender by becoming a member of organized society. It has its foundation in the belief in a person's inherent right to enjoy his private life without having incidents relative thereto made public against his will. The right has been equated with the right to live as one chooses under the law free from interference in the pursuit of one's choice. (2) By the above constitutional provision, there is an express recognition that persons may communicate and correspond with each other without the State having a right to .J!!:Y.into such communication and correspondence2subject to the ever pervading police power ofthe State. (see Sec. 9, iit{ra.) Letters and messages are usually carried by the agencies of the government and unless adequate safeguards are provided for, their privacy may be eventually violated and great harm inflicted upon the citizen as a result. 3
Relationship with right against unreasonable searches and seizures.
The constitutional provision on the right of. privacy complements or implements the security of the citizen against unreasonable searches and seizures. The right is but an aspect of the right to be secure in one's person. 4 'See 41 Am. Jur. 925. Taiiada and Fernando, op. cit., p. 260. 3 Laurcl, Political Social Problems {19a8), p. 59. •Material Distributors, Inc. vs. Natividad. 84 Phil. 127. 2
Sec. 3
ART. ITT. - BILL OF RIGHTS
It has specific reference to forms of communication
The right is not violated when the interference is made: (_1) Upon lawful order of the court; or (.2') When public safety or order requires otherwise at; prescribed by law. (Sec. 3[1].) The first limitation mu!:lt be interpreted in the light of the requirements for the issuance of a search warrant. (supra.) The second limitation means that the right is subject to the police power of the State (see Sec. 9.), and in this case, the intervention of the court is not essential. The judicial process is slow. Thus, while the judge is contemplating his decision, the "objectionable" materials may already be causing damage that could easily have been averted otherwise. However, the exercise of the pow('r by an executive officer without court order is subject to judicial review where the existence of the limitation is being questioned by an aggrieved party. 10 !.;Y.!~~.n~~ !!J~g~lly_Q~taineQ..
(1) l.Iw1imissi.ble. - Any evidence obtd'ined in violation of the right against unreasonable search and seizure and the right to privacy of communication and correspondence is i~admissible for any purpose in any proceeding (Sec. 4[2). ), judicial or administrative. (2) B~asq_n. --The reason for the inadmissibility of evidence competent as such, which has been u.nla.w.fully acquired, is that its exclusion i~ the only practical way of enforcing the constitutional guarantees. The action tor damages against the erring officers, their criminal punishment, and such ot.hcr remedies as may be provided by law , do not. always afford sufficient protection against their violation .ll
·' See Olmstead vs. U.S., 277 U .S . 438. •A device with a receiver so d elicate that when placed agai n:Ound wave:; originating in another room. ;Sec Goldman vs. U.S., 316 U.S. 29. •Republic Ad !\"o. 4200 (.Tun~:~ 19, 1965.) pcnaliz~),; wirt~·tapping nnd other related violations of the privacy of <'ommunication. •Katz vs. U.S., 389 U.S. a47. "lf-ior. Lukban v;;. Villavicencio, 39 Phi.!. 778. 11 Se~ St.onehill vs. Diokno, L-19550, Jnne 19, 1967.
88
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 4
( ~~ ) Right of owner. - Since evidence obtained illega lly is not admissible, the owner has a right that the articles seized be return!!_d, unless they are in themselves prohibited or forbidden by law such as illegal drugs, unlicensed firearms , etc.
SEC. 4. No law s hall 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 of grievances. Meaning of freedom of speech, of expression, and of the press.
The constitutional freedom of speech and expression, and of the press, otherwise known as the freedom of expression, implies the right to fre ely utter and publish whatever one pleases without previous restraint, and to be protecte d against any responsibility for so doing as long as it does not violate the law , or injure someone's character, reputation or business. It also includes the right to circulate what is published. Scope of freedom of expression.
The constitutional guarantee of freedom of expression includes the specific guarantees of free speech and free press, the rights of assembly and petition, the right to form associations or societies not contrary to law, and the right to religious freedom. Scope of terms "speech," "expression". and "press." ( 1) "Speech" and "expression'' include any form of oral utterances . They cover picketing for by it one silently expresses what he has in mind, display of a flag, and salute to the flag. They also embrace expression by means of motion picture. (2) The "press" covers e,·ery sort of publications: newspapers, periodicals, magazines, books, handbills, leaflets, etc . Radio and television as instruments of mass communication may also be included within this term.
Importance of the guarantee. (1) Promotes growth ol the indiuidual and the nation . -If man is not free to communicate his ideas to others, not on ly is l:is own moral and intelle-:tual development stifled but his fellowmen are deprived of the benefit and stimulation which he might impart to them. And unless individuals are at liberty to discuss the various issues that confront the community, the government, and the whole web of social relationships, the search for truth and perfection is impeded.
t;M Sec. 4
ART. III. - BILL OF H.lGHTS
89
Freedom of express ion is, therefore, an inalienable human right that flows from t he very nature of man. As such , it must be nurtured and protected by t.he State. 1 Without the right, the full and proper growth of the individual, nay, the nation is invariably stunted. (2) Makes possible, scrutiny of acts and conduct of public officials. "No one can doubt the importance of the right: (a) to canvass the acts of public men and the tendency of public measur es, (b) to censure boldly th e conduct of rulers, and (c) to scrutinize the policies and plans of the government. If we would preserve [this right], public opinion must be enlightened; political vigilance must be encouraged." 2 (3) In.c; u res a respon.c;i ue and popular governmen t. - It is only through free debate and free exchange of ideas that a government r~mains responsive to the will of the people and peaceful change is effected.3 The people must be able to voice their sentiments and aspirations so that they may become active particip a nts in the political process (i.e., public discussions , referenda, initiatives , recalls , plebiscites and elections) as well as in national development. Freedom of expression not absolute.
The right of freedo m of speech and of the press is essential to the preservation and operation of a stable demO<:racy; but even this right is n ot absolute at a ll times and under all circumstances. It is always subject to some regulation by the State in order that it m ay not be injurious to the r ight of the community or society; and this power may be exercised under the police power of the State to promote or protect the public welfa re . ...... Any one who s landers or libels another may be penalized. Furthermore, "lewd and obscene" speech is not entitled to constitutional protection nor are "fighting words," words that by their very utterance injur e a nd provoke others to attack. One has no right to stand up in a crowded theater and yell "fire" merely to see the confusion and possible panic that will result. Seditious speeches are also outside the protection of the Constitution . Were the right to free speech absolute, he ca nnot be prosecuted for he would only be exercising his freed om of speech. Abridgment of freedom of speeCh and of the press.
The abridgment of tb~ liberty, however, can be justified only where there exists substantial danger that the speech will likely lead to an evil the government has a right to prevent. This is known as "the clear and ll.\~§...entdang~r.rlll~.:'' How substantial the danger must be and ·trnmediate the evil results, depends upon the n ature of t he interest t hreatened. 'Schmandt and Steinhicker, op. cit., pp. 16:1-164 Taiiadll. a nd Fernando, p. 313, citing Story . 3 Do J onge vs. Oregon, 299 U.S. :3fi:i . 2
90
TEXTBOOK ON THF; PHTLIPPJN.E CONSTITUTION
Sec. 4
For example, persons di stributing handbill s announcing a public m eeting may not be denied the rig~t to do so merely because there is a clear and present danger that the streets will become cJuttered. A town or city has the right to keep its streets clean. but the interest in clean streets does not justify suppression of spee<:h. On the other hand, a conspiratorial group may be punished for publicly advocating violent overthrow of the government, even though the likelihood of such an overthr ow is remote. The interest in preserving our gover nment against violent overthrmv is more substant ia l t.han that in keeping streets clean. The former justifies restrictions ::. m speech even when the danger is remote, whereas the latter docs not justify restriction even when the danger is immediate. 4 But where the seditious words do not pose a clear and present danger t.o the State as when they were uttered before a group of old men and women, the utterances may not be punishable. Meaning of right of assembly and right of petition. (1 ) The. r.igh.t of_q.J>Sfa_n_Q(y moans the righ t on the part of the citizens t.o meet peaceably for consultation in respect to public affairs. 5
(2) The right. of_.peti.ti.fm means t he r ight of a ny person or group of persons to apply, without fear of penalty, to the appropriate branch or office of the government for redress of grievances. 6 Relationship with freedom of speech and of the press.
The right to assemble and the right to petition are necessary consequences of our republican institution and the complement of the right of fr ee speech.' All these rights while not id en t ical, are cognate a nd inseparabl e.8 As in the case of fret:'dom of speech and of the press. the rights of assembly and petition include at the very least, immunity from previous restraint and against any subsequent punishment. for thl'ir exercise except that it may be restrained or interfered with when thf·re is a clear and pre~ent danger of a substantive evil that the State or go\·ernment has a right to prevent under jts police power. (see Sec. 9.1
"'S('e Corwin and Pel1a:::on, l:nderslanding th~ ConAilution, p. 121. 5 Th~ Public .Assombly Act.
Sec. 5
ART. III.- BILL OF RIGHTS
91
It has been held that any !'ltatute or ordinance authorizing an administrative official at his own di1u:retion to grant or refuse a permit for the use of streets and other public places for processions, parades, or meetings, there being no standards required of said offi<.:ial to follow in deciding whether to grant or use s uch a permit, is a violation of the right of assembly. Under our democratic society, no such unlimited and unregulated power may be validly granted. 9
SEC. 5. No law shall b e made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and wot·ship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Meaning of religious freedom.
The constitutional guarantee of religious freedom is the right of a man to worship God, and to entertain such religious views as appeal to his individual conscience, without dictation or interfer ence by any person or power, civil or ecclesiastical. 1 It forbids restriction by law or regulation of freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose.2 Meaning of religion. B~ligt.o.n...._ in its broadest sense, includes all forms of belief in th e existence of superior beings exercising power over human beings and impoBing rules of conduct with future state of rewards or punishments." It has 1·eference to one's views of his relations to his Creator , and to the obligations they impose of reverence to His being and character and of obedience to His will. 4
Aspects of religious freedom.
!_;
As guaranteed by the Constitution, religious freedom namely:
ha~
two aspects,
,().) The s eparation of Church and State secured in the fi r st sentence of t ha·provision; and 0
See Primicias vs. Fugoso, SO Phil. 71.
116 Am. Jur. 648. Cantwell vs. Connecticut, 310 U.S.
2
~Ibid.
•Aglipay vs. Ruiz, 64 Phil. 201.
2~6.
92
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 5
(2) The fr eedom of religious profession and wor ship , in the second sentence of the provision. The first aspect is discussed under Article II, Section 6 (sup ra.) which declares t hat "the separation of Church and State shall be inviolable." Freedom of religious profession and worship.
It bas two aspects, namely: (1) EI:u.do.m to .belieqe in a religion.. - Everyone has absolute right to believe whatever h e wishes. A state may not com pel a religious belief n or deny a ny person any right or pri vilege because of his beliefs or lack of them. It cannot inquire into the truth or vahdity of a religious doctrine. The theory is that a religious belief by itself cannot in a ny degree affect public interest; and (2) F..r.eedam J.Q qct in accordance u:ith such belief -The r ight to act in accordance with one's belie{ is. iiot.. and ·cannoCb'e_,.. absolute. ·-·- ..---·., Conduct remains subject to r egulation and even prohibition for t he protection of s ociety.s Religion may not be used to justify action or refus al to act inconsistent with the public safety, hc~th, mora ls, or general welfare of society, or violative of the criminall~w . :t'hus, no one has a right t o refuse to defe nd the country in time ofwar, .to refuse to pay taxes, or to practice polygamy, o-r to invade the right of othe rs even in the name of religion. P ersons may resort to prayers for the healing of the sick but this religious right may not be fraudulently used as a cloak to e ngage in heali ng for commerci$1.} purpose u s ing prayer and such religious rites as a curative agency. 6 ,· I t has been held , however , t h at it is violative of r eligious fr eedom to compel one to salutfl the flag, sing the national anthem and recite the patriotic pledge, during a flag cere mony on pain of being dismissed from one's job or of being expelled from school, when these a re considered as " ru:ts ..af..Yl.P.r§,h.ip" or "religious .devotil:m'' to an image or idol which a re contrary to h is religion. 7
Dissemination of religious beliefs.
The con stitution al guarantee of the free exercise and enjoyment of r eligiou s profession and worship carries with it the right to disseminate r eligiou:s beliefs and information. The right to believe a nd to worship would be incomplete without the constitutional right to sh ate one's views with othen and to seek to win them to one's faith , by giving analysis of contra ry views a nd by solicitation of finan cial assistance in carrying the truth to others.' sSee- Car.twe:l ,-s. Connecti cut. 3 10 U.S. 296. •See People , .3. Dit>l. (CAl 44 O.G. 590, Aug . 22. 1947. ' Ebralinag ,., . Di 'ision Superintendent of Schools of Cebu, 219 SCRA 256 (1993 ). ;Cooley. p. 96;}
ART. lll. - BILL OF RIGHTS
Sec. 5
93
Any restraint on the right to disseminate religious ideas and information can only be justified (like other restraints on free dom of expression, supra.) on the ground that there is a clear a nd present danger of any substantive evil (e.g., disruption of public peace) which the State has the right to prevent. 9 To provide public officials, for instance, with discretionary power to grant or withhold pe1·mits for distribution of religious publication would be abridging freedom of religion (and of the press, and of speech). Any infringement of religious freedom may be justified only to the smallest extent necessary to avoid grave danger to public welfare and security.10 License fee or tax on sale of religious articles.
Permission or condition for exercise of right. -The right of a person to believe carries with it the right to disseminate his beliefs. The imposition oflicense or permit fees on the sale or peddling by a religious organization of religious literature and other materials from house to house, conducted not for purpose of profit, would impair t he constitutional guarantee of the free exercise and enjoyment or religious profession and worship.11 The right to peddle religious information is similar to the right of the priest or minister to preach a sermon in his church. 12 (1)
As a license fee is fixe d in amount and has nothing to do with the r eceipts or income of the taxpayer, such fee , when a pplied to a r eligious sect, would, in effect, be imposed as a condition for the exercise of the sect's right under the Constitution. 13 (2) Imposition of financial burden after exercise of right. - The Constitut.ion, in Section 5, does not, however , prohibit imposing a tax on the sale of religious materials by a religious organization. Such tax, unlike a license fee, does not restrain in advance the exercise of religious freedom . : ~ It is generally applicable to all, and imposed after t he activity taxed is completed, and the fact that the activity is conducted by a religious sect is only incidental. Religious test prohibited.
The Constitution expressly provides that "no religious test shall be r equired fo r the exercise of civil or political rights.'' I Sec. 5.) A~.r_i.c;~pJ~iblt_.l:J.aciety
9
vs. City of Maniln, 101 P hil. 386. Anuccnsion vs. National Labor Union, 80 SCRA 330 •19771. "American Bible Society vs. City of Manila. supra. ' 2 Murdock vs. P.::nnsylvania, 319 .U.S. 105. '"Tolentino vs. Secretary of Finance. 54 SC'AD 6il , 235 SCRA 630 (1994).
10
"ibid.
94
TEXTBOOK 0:-.J THE PIIILIPPINE CONSTITUTION
Sec. 6
(1) A religious t.est is one demanding the avowal or r epudiation of certain re iigious beliefs before the performance of a ny act. 15 Thus, under t his injunction, laws prescribing the qualifica tion of public officials or employees, whether appointive or elective, or of voters, may n ot contain r equirements of religiout-1 beliefs. { 2 ) The e~p:r~~13ion civil ar p qf:Uicq,l riglt_(c; (s upra.) is to be understood as includi ng the individual rights safeguarded by the Constitution a n d statutory laws.
T he reason for the provision is easy to understand. Without s uch pr ohibition, r eligious freedom becomes meaningless. The State, without such a bar, notwithstanding the doctrine of its separation from the Church, could in fact a ccord prefe rence to a r eligious orga nization .16
SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful orde r of the court. Neither shall the right to travel be impaired e xcept in the interest of national security, public safety, or public health, as may be provided by law. Meaning of liberty
abode and travel. :. /
;
T he liberty of ~t.wsi_f:.UJtl.J..£1. is the right of a person to have h is home in wh a tever pl ace chosen by him a nd thereafter to change it a t will , and t o go where he pleases, ·vithout interference from any source. :The right is qualified, however , by the clauses "except upon lawful or der of the court" a nd "except in the interest of nationa l security, public safety, or public health as may be provided by law." (Sec. 6. ) The 193 5 Constitution tipeaks only of the liberty of abode. The right now in cludes the right t o travel. 1
limitations on the right. The phrases "~~ept l!P.9ll~a~ful order of t he cou_rt" a nd "~~~.~l?.t. _i!.t.t.~~ in ter~st ~f~ tiec~, P.l191ie .-~~e_!:y, or E_~,.Ql!_c__p_ealth" means, in other words, subjecft'i:rthe domina nt police power (see Sec. 9, infra.) of t he State. Thus, the lawmaking body may by law provide for the observance of curfew hou rs in ti me of war or national e mergency, the commitment of mentally der anged p2rsons to a mental institution, the confinement of
,,;Corwin, The Constitu tion and What l t Means Today, p. 151. "1'a nada vs. Ferna ndo. p. 283. Reason a nd the common good manda te that p ublic officials a nd employee~; part icularly those occupying high positions in the governUlent should m eal certain moral st.andard1;-. 1
;Salonga vs. Her mo!Sa. 97 SCRA 121 (1980).
ART. 111. -
St' C. 1
BTLL OF TUGHTS
95
those with communicahle diseases to a hospital, the arrest and d etention of persons accused of crimes, etc. Note that under the second limitation, a cnurt order is not necessary. The determination of the proper executive officer (e.g., President) is subject to judicial review .2 A person whose liberty of abode is violated may petition for a wl'it of habeas corpus (see Sec. 15.} against another holding him in dete n tion.:1
SEC. 7. The right of the p eople to information on matters of public concern shall be r ecognized. Access to official records, and to doc uments, and pape rs pertaining to official acts, trans· actions, or decisions, as well as to government research data used as b asis for policy d eve lopment, shall be afforded the citizen, subject to such limita tions as may be provided by law. Right to information on matters of public concern.
The right of access in the above prov1s1on impf~lllents the right to information. The a rguments gi ven for the inclusion <~tion 6 (now Sec. 7.) in the 1973 Constitution are: <_1 ) It is in consonance with the principle of popuJc... s-overeignty. In a democr atic society, th e sovereign people have th e rigJ< ~ of access to the rP.cor ds of their government; (Jl) It will enable the people to participate more effectively i n governmental affairs especially in questioning the acts of the authorities;
($) It will make denunciation of government more factual, r esponsible, and effective;
(1') It will provide a detcrnmt to the commission of venalities because of the resulting awar eness of officials that their acts wilJ be exposed to the full light of public scrutiny; 1 and ($-) It will n~ duce public su~picio n of otlicia ls and thus fo ster ruppol't and harmony between the government and the people. 2 In view of Section 7, there can be no doubt as to the \onstitutionality of any law making the refusal t o gi.vt- such information or denial of access the reto a punishable offense.
~sec
Villavicencio vs. Lukban, 39 Phil. 778 (191!h V l'l. Salazar, 82 P hil. 851.
J[bid.; Cauncn.
Sec Val mon te v~ . Belmont e, J r ., 170 SCRA 256 1 1911~ 1. Committ
~sec
TEXTBOOK ON 'l'HE PHILIPPINE CONS'riTUTTON
96
Sec. 8
Scope of the right. (.1) The right embraces all public records;
(2) It is limited to citizens only but is without prejudice to the right of aliens to have access to records of cases where they are litigants; and (3) Its exercise is s ubject to s uch limitations as may be provided by law.
Limitations on the right.
It is recogni ~ e d tha t records involving the security of the Sta te or which are confidential in character should be excepted. Presently, certain public records are declared confide]lti al either by law or by a dministrative regulations. Instances of these ar~ inc:ome tax r eturns under the National Intern al Revenue Code;'the condition or business of banks under the Central Bank;3 acfo.u nts perta ining to military intelligence funds; ~ertain army r ecords; a~.:~isbarment proceedings. (see Art. VI, Sees. 16l4l, 20.) Any law which prohibits disclosure of information by government agencies must f;trike a healthy balance between the need to afford protection to vital secrets affecting national interest or security a nd the imperative of safeguarding the basic right of the people to know about the activities of their government. I~ line with the constitutional policy to enhance free flow of information, and to pr omote trans parency in the conduct of public affairs, the disclosure of information must be the general rule, not the exceptio n. The burden is on the government to justify the withholding of information or document, not on the person requesting it .
SEC. 8. The right of the people. including those employed in the public and private sectors, to form unions, a ssociation s, or societies for purposes not contrary to law shall not be abridged. Meaning of right to form associations, etc.
The r:.igh..UQ..{Q.[]TI, . associati.D~ is the freedom to organize or to be a member of a ny group or association , union, or society, and to adopt the rules which the members judge most appropriate to a chieve their purpose. With or without the above provision, it may be assumed that this right exists. It is clear that the right to join an association includes the right to leave a nd cancel his membership with said orga nization or t
3
See PresidentiA l Decr~e No. 72.
1
See Anucension vs. Natio nal Labor Union, 80 SCRA 350, Nov. 29, 1977.
--
Sec. 9
ART. JII. - BILL OF RIGHTS
97
Purposes of the guarantee. (1) Undoubtedly, the purpose of the constitutional guarantee is to encourage the formation of voluntary associations so that through the cooperative activities of ind1viduals, the welfare of the nation may be advanced and the government may thereby receive assistance in its ever· increasing public service activities. 2 (2) By enabling individuals to unite in the performance of tasks which singly they would be unable to accomplish, such associations relieve the government of a vast burden. The needs of the social body seek satisfaction m one form or the other, and if they are not secured by voluntary means, the assistance of the government will inevitably be invoked. 3
Limitation on the right. l'h~ .J:ighL to f<;>r:m...a.§.s
Even without the qualification, however, it is deeme d to exis t by virtue of the inherent power of the State to protect and preserve its existence. But unless an association or society coald be shown ·to create an imminent danger to public order, public peace, public morals, Ol' public safety, there is no justification for abridging the right to form unions, associations or societies.~
SEC. 9. Private property shall not be taken for public use without just compensation. Essential or inherent powers of government.
The totality of governmental power is contained in three (3) great powe rs, namely: }ln.We.r ..oLeminent domain, police po.w.er, and pa.wel:...Of ~.e_a,t.jQ~! These powers are similar in the following r espects: (1 ) They all rest upon necessity because there can be no effect ive government without them; (2) They are inherent in sovereignty; hence, they ca n be exercised even without being expressly granted in the Constitution although the condi-
~v.G.
Sinco, op. cit .• p. 669. Schmandt and Steinbicker, op. cit., pp. 184-185. 4 Tiu'iada and Fernando, op. <:it., pp. 264-265. lt i:> to he noted th a t there is in the Revised Penal CodA th~ ~rime of illegal a!\sociation penalized in Article 147 thereof. As defined in that article, illegal a~;~ociations are th ose "totally or partially organi~ed for t he purpose of committing any of the crimes punishable under thi;; Code or for .some purpose contrary to public morals." Both the officers and members of said association!l are subject to the penalties prescribed therein. Presidentia l Decree ~o. 885 defi nes and outlaws subversive organi· zations and a ssociations and penalize!:' membership therein. 3
TEXTBOOK ON THE l 'lULIPPINE CONSTITUTION
98
Sec. 9
tions for their exercise may be regulated and limited by the Constitution and by law; (3) They are ways by which the State interferes with private rights and property; ( 4) They are all legislative in character ; a nd (5) They all presuppose an equivalent compensation1 received, directly or indirectly, by the person affected by the exercise of these powers by the government. (infra.) Meaning of eminent domain.
Eminent domain is the right or power of the State or of thos e to whom the p~~~;···has···b~~n lawfully delegated to take (or ex propriate) pr ivate property for public use u pon paying to the owner a just compe nsation to be ascertained according to law. (see Art. XII, Sec. 18.) Conditions for or limitations upon its exercise.
They a re: (1) l};U$.te.rv.:~se.- Public u se may be identifie d with "public benefit," "public utility,'' or "public advantage." 2 lt.xnay be ide ntifie4..with wbatey~_rjs...he neficiaily. ..employed fo r th e comm unity :l That the expropriation of a land may actually benefit only a few families, does not dimini sh it s public use character. It is of no mom ent that the land 8ought to he expropriated is of s mall area, e.g., less t han hai f a h~cta re only.~ Ifthe property is t aken by a private corpor ation (e.g .. Meral.co, a public utility given t he power of eminent domain ) to enable it t o fu rnish the public with some necessity or conve nience (e.g., electricity), the use is public; (2) Ptzyment JJL)JJ.s1 cam.p£.11Ji.CJ.~ian. -- Under the Local Government Code, 5 t ht:l a mount to be paid for the expropriated p roperty sh a ll be determined by the proper cou rt, based on the fair market va lue~ a t the time of the taking of the property. 7 T he owner may contest in cour t the va lue determined by the assessC>r; a nd
1
Set- 1 Cooley 27-30. See Guido vs. Ru ral Progr ess Adm., 84 P hil. 8 47 . Presideniia l llecrec No. 1259 (Oct . 2 1, 19 77 ) fur ther defines th e policy oo the expropriRtion of private pro~ rl.y for ~;ocialized housing for t he lower a nd mieller would sell and a willi ng buyer would bu.Y n eit her b~i ng under abno rmal press ure." · 7 Sec. 15 then•of. 2
Sec.9
99
(3) Qb:'>e!~anp~ c1.d'!-~.P!..
(2) '!'he "takinrg':_mJJ,s.t.be-dir.ect. -The Constitution does not require that property losses incident al to the exercise of governmental power be compensated for. For instance, the passage of a rent control law (a police power measure) could deprive lessors of the right t o charge a higher rent, a nd so decrease the value of their property but the government is not required to awa rd compensation. 10 The property must "be ta ken" a s defined above. Meaning of police power.
eQlice pow.cr h as been referred t o a s the power of the State to enact such laws or r egulations in relation to persons and property 3S may promote public health, public mora ls, public safe ty, a nd the general welfare and convenience of the people.11 .... ,.... .........
,. ,
-J.._It has been n egatively put forth as the inherent and plen~r;; power in the State which enables it to prohibit all things h urtful to the comfort, safety and welfare of society. 12 ;-s.. ' Basis of police power.
It is bas ed on t wo La t in maxims, sal.u.s .p apu/.i_s_u.prema est le.x. (the we lfare of the people is the supr eme law),1and ~~-CJtJ.fJ.r:e...tuo.. u.t nJie.num non
•u.s. vs. Causby, 328 U.S. 256. Stearns vs. Minnesota, 179 U.S. 22.1. LOCorwin and Pel tason, Understanding the Consti tut ion. p. 134; e.g., Batao Pambansa Big . 8 77. 11S ee U.S. vs. Gomez, 31 J:>hil. 218. ~Rub i vs. Provincial Board, 39 Phil. 660. 13See E . ~. Fernando, op. cit .. p. 120. u s ee Barbeir vs. Con r.olly. 115 U.S. 28. 9
1
100
TEXTBOOK ON THE PHCLIPPINE CONSTITUTION
Sec. 9
Illustrations of police power Jaws.
Illustrations of police power statutes or ordinances are gi ven below. (1) f..y,Q.Jic lte.alth,- -Those regulating the medical profe ssion; provid·
ing for the segregation of lepers; providing maternity leave for wor king women; limiting the working hours to eight; requiring every building or premises to be connected with a s anitary sewer system; prohibiting the sale of fresh meat, except in refrigerated establishments, outside the public mar kets, etc.; (2) Euhlkl11J2r:Jlls.. - Those punishing vagrancy and prostitution; pro· hibiting gambling; providing a license tax for maintenance or operation of public dance halls ; punishing usury, etc.; (3) &.blk .sil{£1~ - Those requiring a license for the right to drive motor vehicles; providing for the closure of certain streets to traffic of animal-drawn vehicles (calesas) ; requiring compulsory military service; prohibiting the carrying of concealed deadly weapons; authorizing the demolition of buildings or improvements which constitut e a fire h azard, etc .; (4) G~!J.~ [CJ:LY!.eJiC?-!:..f!. and con!Jenien_Gf. - Those requiring compulsory registration of lands; authorTiir1g the removal of billboards offensive to sight; penalizing the turning loose oflarge cattle or permitting them to run loose in streets and pla zas of municipalities; regulating th e slaughter for human consumption oflarge cattle still fit for a gricultural work; r egula ting distance between gasoline stations; regulating prices of commodities a nd rents of houses, etc. 15 Meaning of taxation.
As a power, ta:«.tJ.i.Ql!: is the power of t he State to impose charge or burden upon p_ersons, proper,!y, or property r ights, fo r the use and support of the government and to enable it to discharge its a ppr opriate functions. Theory and basis of taxation. (1 ) The power of taxation proceeds upon the theory t hat the existence of government is a necessity, that it cannot continue without mea ns to pay its expen ses, a nd that for these means it has a right to compel all its citizens and property within its limits to contribute. 16 (2) The basis of t axation is found in the reciprocal duties of protection and support between t he State and its inhabitants. In return for the
'sThe S tate can deprive pers ons of life, liberty, or property provided there is due process of la w; a nd persons may be clas sified into classes and groups provided everyon e is given the eq ual protection of the law. (S ec. l. J The test or standard as always is reason. Police power legislation must be firmly grounded on public interest and welfare and a r easonable relation mus t exist betwe~n purposes and mea ns to achieve the s ame. 16 See 51 Am. Jur. 37·39 .
. ·.-·· .
/
ART. Ill. - BlLL OF RIGHTS
Sec. 10
101
citizen's contri bution for the support of the government, the State is supposed to make adequate and full compensation in the form of benefits and protection which it gives to his life, liberty, and property. Taxation is necessary to enable the State to exercise its police power to promote the general welfare. Meaning of taxes.
Taxes are the enforced proportional contributions from persons and property levied by the lawmaking body of the State by virtue of its sovereignty for the support of the government and all public needs. They are the financial burdens or charges imposed by the government upon persons or property to raise revenue for public purpose or purposes. Distinctions among the three powers.
They a r e, among others, the following: Q} As to authority which exercises the power. - Taxation and police power are exercised only by the government, while the exercise of the power of eminent domain may be granted to public s ervice companies; (2} As to purpose. - In taxation, the property (generally in the form of money) is taken for the support of the government; in eminent domain, for public use; and in police power, the property is taken or destroyed for the purpose of promoting the general welfare; (3") As to effect. - In taxation, the money contributed becomes part of p~blic funds; in eminent domain, there is a transfer of the right to property whether it be ownership or a lesser right; and in police power, there is no such transfer; at most, there is a restraint in the injurious use of property; (~) As to persons affect.ed. - Taxation and (usual!y) police power operate upon a community or a class of individuals, while eminent domain operates on an individual. as the owner of a particular property; and
(5) As to benefits received. - In taxation, it is assumed that the individual receives the equivalent of the tax in the form of benefits and protection he r eceives from the government; in eminent domain, he receivesjust compensation for the property expropriated ; and in police power, t he compensation of the individual is not immediate and usually annoyance and financial loss are caused to him leaving the reward to be reaped through his altruistic recognition that the restraint is for the public good. 17
SEC. 10. No law impairing the obligation of contracts shall be passed. 11See
U.S. vs. Toribio, 15 Phil. 85; Churchill and Tait vs. Rafferty, 32 Phil. 586.
TEXTBOOK ON T HE PHILIPPINE CONHTITUTION
102
Sec. 10
Meaning of obligation of a contract.
The oQ.lieation Q[a co.nJrru;.,t is the la w or duty which binds the parties to perform their agreement according to its terms or intent ,1 if it (agreement) is not contrary to la w, morals, good cus toms, public order, or public policy. 2 Scope of terms "law" and "contract."
The law, the enactment of which is prohibited, includes executive and administrative orders3 of the President, administrative orders issued by heads of departments, and ordinances enacted by local governments. The guarantee is not violated by court decisions or by acts of boards of officers acting in a quasi-j udicial capacity (like a judge). ( 1)
( 2 ) The contract, the obligat ion of which is secured against impairment under the Constitution, includes contracl..s entered into by the government. An example of impairment by law is when a tax exemption based on a contract entered into by the government is revoked by a later taxing statute. 4 The Stat e when contracting does so upon the s ame terms as a private individual or corporation and may not plead it s sovereignty as justification in impairing a contractual obligation which it has assumed. 5
A contr act which is entitled to prot ection against impairment must be a
valid one. Note that marriage is more than a mere contract; i t is a status. Hence, it is outside of the contempl a tion of the constitutional provision. (see Art. XV, Sec. 2.) Purpose of non-impairment prohibition.
The prohibition is int ended to prl)tect creditors, to assure the fulfillment of lawful promises, and to guard the integrity of contractual obligations.6 Business problems would a rise if contracts were not stable and binding and if the legislature can pass a l aw impairing an obligation entered into legally. The provision implements the constitutional right to freedom of contract. ·
\ \Sturgess vs. Cr own shields, 4 Wheat 122. Art. 1306, Civil Code. 1 3E xecuti:!!_!...Qrders a re acts of the President provid ing for rules of genertil or permanent character in i mt~lemeotation or execut ion of con sti tutional or statutory pow.~rs. (Adm. Code of 1987, Book HI, Sec. 2.) Before the effectivity of the new Constitution, the Presi dent exercis ed legisla tive powers through t he issuance of executive orders . A dmin istrative Orders are a cts of the President which relate t o particular aspect..'! of governmen tal operat ions in pursuance of his duties as administrative head. (Ibid., Sec. 3 .) See Art. VII, Section 17. 'See Cassa nova vs. Hord, 8 Phil. 125. "Willough by, op. <:it., p . 1224. ~v.G. Sinco, op. cit., p. 640. ~see
ART. III. - BILL OF RIGHTS
Se('. 11
103
When obligation of contract impaired.
The obligation of a crmtract is impaired when its terms or conditions are changed by law or by a party witl:out the consent of the other, thereby we!lkening the position or rights of the latter. 7 A law which: ( 1)
takes fr om a party a right to which he is entitled under the con-
tract; {2) deprives him of the means of enforcing such right; (3) imposes conditions not expressed in t he contract, or dispenses with those which are; or (4) diminishes the consideration agreed upon by the parties, as to diminish the value of the contract, is void as impairing thE.> obligation of the contract within the meaning of the Constitution. For instance, a law increasing or decreasing the rate of interest for the loan of money cannot apply retroactively to loans contracted before its enactment , otherwise impajrment will result. Laws impairing thP. obligation of contracts a re necessarily retroactive or retrospective. There will be no impairment if the law is given prospective effect. Freedom to contract not absolute.
· .· The freedom of contract is necessarily limited by the exercise of the police power of the State in the interest of general welfare (see Sec. 8.) and especially in view ofthe explicit provisions in the Constitution with reference to t he promotion of social justice. (see Art. XIII.) Thus, the abolition of s hare tenancy as well as the introduction by compulsion of the leasehold system (after a contract of share tenancy has been adopted between the landlord and the tenant) has been sustained in the valid exercise of police power (sup ra. } , share tenancy being recognized as the root cause of the land problem s and agrarian unrest in the country!
SEC. 11. Free access to the courts and «rna.si=iud.ic.jpl bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Constitutional rights of the accused in criminal cases.
Br_iefly . ,., . ., they may be enumerated as follows : (f)
The right to adequa te legal assistance; /"
' Sec Edwards vs. Kearney. ~6 u .S. 607.
104
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 11
(2) The right, when under investigation for the commission of an offense, to be informed of his right to remain ~\lent and to havt: counsel; (8 ) The right against th e use of torture, force, violence, threat, intimidation or any other means which vitiates the free will;
(4) The right against being held in secret, incommunicado, or similar form s of solitary detention ;
.- ---·
(5) The right to bail and against excessive bail; (6 ) 1'he right to due process of law; (7 ) The right t() presumption of innocence; (8) The right to be heard by himself and counsel; (9) The right to be informed of t he nature and cause of t he accusation against him; ( 1-0) The right to have a s peedy, impartia l, and public trial;
(l l) T he right to meet the witnesses face to face ; ( ~) The right to have compulsory process to secure the a ttendance of witnesses and the production of evidence in his behalf;
(1-3) The right against self-incriminat ion ; ( 14) The right against detention by r eason of political beliefs a nd a spirations;
( 15) The right against excessive fines;
(16) The right against cruel, degrading or inhuman punishment; ( 1J7) The right against infliction of t he death penalty except for heinous crimes; anc.l
( 18) The right against double jeopardy. Reasons for constitutional safeguards.
There are several reasons underlying the tenderness of our Constitut ion on t he subject of the rights of an accused. (1} A criminal case, an unequal contest. - For one thing, every crimina l case is a contest between an individual a nd the government. It is of necessity an unequal contest because the parties are of unequal strength. The government is very powerful. It is_ _the. iepository of the enormous power of organized s ociety . In order to reduce the passibiiities of injustice, the Constitution seeks t o r edress th e imbalance between these parties by guaranteeing the accused the right to an im partial trial, the privilege of cross-examination, a nd othe r pr·ocedural safeguards .
.{2) Criminal accusation, a very serious matter. - Moreover, experience tea~hes that it is a very serious matter for the government formally to accuse a man of having committed a crime. The defendant by being me rely a ccus ed may find himself in immediate trouble, whether guilty or not. He
Sec. 11
ART. III. -BILL OF RIGHTS
105
may lose his job, or be suspended from it pending trial. His reputation is under an immediate cloud. The accused, therefore, needs every possible opportunity to establish his innocence, as soon, as publiciy, and as decisively, as possible} (3) Protection of innocent, the underlying purpose. -The purpose then is not to coddle wrongdoers or to protect the guilty but to assure that truth will be discovered and that justice, which is the very end of government, will be done. Under the Constitution, the acquittal of the innocent is given more importance or preference than conviction of the criminal. Indeed, in a criminal prosecution the interest of the government is not that it shall win a case, but that justice shall prevail. 2 For as the Roman praetor said: "It is better (0 Caesar) that a thousand guilty men be free than one innocent man be deprived of his life or liberty." The raison d'etre for this principle is the assumption that the long arm of the law would, sooner or later, catch up with the guilty party. Right to free access to the courts and quasi-judicial bodies.
The guarantees of due process and equal protection of the laws assure all per&o:ls like access to the courts as well as quasi-judicial bodies of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts. s· But such guarantees are futile if persons are prevented from going to courts on account of their poverty. Within this category may be mentioned the low-paid employees, domestic servants and laborers who, to collect their small salaries and wages, might have to go to court and yet are without means to pay filing or sheriffs fees and attorney's fees. 4 To give reality to these constitutional rights, our Constitution has expressly included the above provision.s Right to adequate legal assistance.
.It may nut be sufficient to just grant the rights of a pauper. (i.e., exemption from payment of court fees) to poor litigants.~~he State has also the constitutional duty to provide free and adequate legal assistance to citizens when by reason of indigence or lack of financial means, they are unable to engage the services of a lawyer to defend them or to enforce their rights in civil, criminal, or administrative cases.
'Fellman, op. cit., pp. 1·3. vs. Platon, 69 Phil. 556; Tan, Jr. vs. Gallardo, L-41213-14, Oct. 25, 1976. 'Barbier vs. Connaly, 113 U.S. 27. 'Cabangis vs. Almeda, 70 Phil. 443. ''V.G. Sinco, op. cit., p. 703. 'See Rules of Court, Rule 3, Sec. 21. ~Suarez
TEXTBOOK ON THE PHILIPPINF. CONSTITUTION
106
Sec . 12
SEC. 12. ( 1) Any p erson under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and t o have competent and independent coun· sel preferably of his own choice. If the person cannot afford the services of counsel, h e must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be u sed against him. Secret detention places, solitary, incommunicado, or other simi· lar forms of detention are prohibited. (2 )
(3) Any confession Ot:' admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, a nd their fami· lies. Rights of person under investigation.
Any person under criminal investigation for the commission of an offense shall have the right: (.1·) to be informed of his right to remain silen t; 1 ~2) to have competent and independent counsel preferably of his own choice or to be provided with ono; 2 (3) against the use of torture, force, violence, threat, intimidation, or any other means which vitiates the free will; and
(4f) against being held in secret, solitary, incommunicado, or oth er simiiar forms of detention.:J /
,/
Effect of violation of the .~'ighls:··"'
To gi ve force and meaning to the constitutional provision, any confession obtained in violation of any of the above rights is declared inadmissi-
1 While an accused is under custody, his silence may not be taken as e\•idence against him, otherwise his right of silence would he an illusion. (People vs. Alegre, 94 SCRA 109. ) tThe right to counsel may be waived £!Q.Y,ig_e_g ~Vfl.t ~h.e ..w.ili'ttt.is..m.ada~e.o.t.4!.a.ud ~l~m~.!:ilY..Y!'.itl:!~uJJ ~.,tq_c_l~rs~§Jl
Sec. 13
ART. III. - BlLL OF RIGHTS
107
ble in evidence before any proceeding4 and violators· shall be subject to penal and civil sanctions to be provided by Jaw. For humanitarian reasons, such law to be enacted by Congress shall provide compensation for and rehabilitation of victims of torture or similar practices, and their families. 5 When rights can be invoked.
Section 12 provides the procedural safeguards to secure the rights of the accused particularly the privilege against self-incrimination of persons under arrest or in custody of law enforcement officers. The words ~d.e.r i_ny~!Jtjg~~jQ:Q" includes ~Y..S.tQ.dis!UJJ..ID..r.Qg.~Ui.o.n QdnYe.l?~!gG.~t.io'!l where the proceeding is r..ot a mere general inquiry into an alleged crime, but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation. These rights are thus available the moment an arrest or detention, with or without a warrant, is made. The authorities must insure that the accused is apprised of his rights and that they are availed of by him. Waiver of right of silence and to counsel. Th~
rig_ht pf ~il.E2!l.~~a.,n<;l ~~ ~oun§~l~aJl.n.Q.t be w..aiYflrl...e.xce.ptin.. writing This requirement which is not found in the 1973 Constitution is directed against abuses in the past whereby written waivers by the accused or detained persons without assistance of a lawyer were employed to circumvent constitutional protection on human rights.
~.!}~. i~_t~e pr~~e_n~~-QLc.m.u::w.el.
SEC. 13. All persons, except those charged with offenses punishable by .reclusion perpetuo 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 l];abeas corpus is suspended. Excessive bail shall not be required. Meaning of bail•
...IJ.fJiJ.. is the security required by a court and given for the provisional or temporary release of a person who is in the custody of the law conditioned
4 , The failure of an accused under police custody to deny statements by another implicat· ing him in a crime especially when such accused was neither asked to comment nor reply to such implication or accusations, .t;.Q.l)IJOt.l;w.J:.Qnsidered a tacjt adtnia.aio.u Qf.the..cr.S (People vs. Alegre, supra.) "RA No. 7309 (~arch 30, 1992) creates a B..om of.Claima under the Department of Justice for victims of unjust imprisonment or detention and victims of violent crimes.
108
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
SE!{:. 13
'
upon his appearance before any court as required under the conditions s peci fied. 1 Purpose and form of bail.
~r)" The purpose of requiring bail is to relieve a n accused from imprisonm~nt until his conviction and yet secure his appearance at the triaP The right to bail is granted because in a ll criminal prosecutions, the accused is presumed innocent. (see Sec. 14[2].) (;f it may be in the form of cash deposit , property bond, bond secured from a surety company, or recognizance. 3 Who may not invoke the right to bail.
The right t o bail is avail able to any person arrested, detaine d, or otherwise deprived of his liberty, whether or not an information (criminal complaint ) has been filed against him. 4 ( 1) It cannot be invoked where the applicant is not yet in custody of the law because he went into hiding and is at Jarge, and hence, a free man even when he has already been criminally charged in court. The purpose of bail is to secure one's release and it would be incongruous to grant bail to one ywho is free .5
(2) It is a lso not available to one charged with capital offense or an offense punish able by reclusion perpetua, life imprisonment, or death if the evidence of his g uilt is strong. (Sec. 13.) The judge, however, has no a uthority to deny baii without t a king into account the evidence presented, a t the time the accused applied for bail, as to JY.~ guilt. There must be a hearineEven when evidence of guilt is strong,~!'J:il may be granted where there is no probability that the defendant would fle e r ather than face the verdict of the court, 6 or after conviction , on humanitarian ground where the life or health of the convict may be endangered by continued confinement pending appeal. 7 (3) Under the Rules of Court, "no bail sh~ll be a llowed after the Judgment has become final, or after the accused has co,.;,menced to serve sentence. ''8
1
/ _/
I
See Rules of Court, Rule 114, SE!{:. 1. . Almeda vs. Villaluz, L·31665, Aug. 6, 19'i;J. 3 See Rules of Court, Rule 114, Sec. 1. A'fecQilnizg.nce is a simple personal obligation or unde~taking ente red into before a court and having no money penalty attached. (Webster's 3 rd Jot. Diet.) Thus, a n accused may be te mpo rarily released on his own recognizance to the custody of a responsible member of the community. Congress must enact a law providing when recognizance may be allowed in lieu of bail. •Teehan kee vs. Ro vira, 75 Phil. 635. 5 Feliciano vs. Pasicolan, L-14657, July 31, 1961. 6 See Rules of Court, Rule 114, Sec. 21. ' See Montano vs. Ocampo, 49 O .G. 1855, Jan. 29, 1953. 8 De Ia Rama vs. People's Court, 77 Phil. 46. 2
Sec. 14
ART. HI.- BILL OF RIGHTS
109
When the privilege of the writ of habeas corpus is suspended, the right to bail, even for the commission of national security crimes (see Sec. 15.), is still available except as provided in Section 13. Meaning of capital offense. l'i.tr;_apita(._9ffen~e, for purposes of the above provision, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished with reclusion perpetua, life imprisonment,9 or death.
Excessive bail prohibited.
The Constitution ordains that excessive bail shall not be required. (Sec. 13.) Without the explicit injunction, the right to bail would be a meaningless farce.
WhJ!t .arrw\.rn.L1~ a
reason~b.h~_P.~!Lr.~sts_mainly \.lllQnj;_hEt gi!)~r~ti()n of He has to take into a,ccount in deciding the matter, among nature of the offense, the penalty which the law attaches to it, ihe prbbability of guilt, and~he financial condition of the accused. 10 That which is reasonable bail to a man of wealth is equivalent to a denial of right if exacted of a poor man charged with a like offense.U Also, the amount of bail may be reasonable if considered in terms of surety or property bond, but excessive if required in the form of cash. Th~LQ.P.tilm.to..~W.S..La.c.ash bond n.:r:im~d..ly.JwlQ.ngS_.t.o. the accused. 12
.th~jl,ldg~. others~he
SEC. 14. (l) No person shall be held to answer for a criminal offense without due process of law.
{2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause ofthe accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after ar:raignm~.n.L !r.t~!.m_~..IrrOC_~~.d.~.o~withstandin.a...th~.~b .s~fth~.accused.P.ro..Y.ided that h~ has been duly nqtifi~.4 a~d bj~J~!ll.!!-:~-~~-~P.P~~;rJs unj!lstifii!Ple.
9 R.A. No. 7659 (Dec. 13, 1993) has restored the death penalty on certain heinous crimes. Section 13 speaks of reclusion perpetua, not life imprisonment. In law, they are different penalties. For ou1· purpose, we shall not concern ourseh·es with the fine distinctions hf'tween the two. Suffice it to say t;•at under the R~les of Court, life imprisonment is included. (Rule 114, Sec. 7.) 10 See Rules of Court, Rule 1 J 4, Sec. 10. "1 Coole:v 644. '~Almeda vs. Villaluz. L-31665. Aug. 6. 1975.
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
11 0
Sec. 14
Right to due process of law in criminal cases.
A person cannot be held to answer for a criminal offense without due process of law. (Sec. 14[1]; see Sec. 1, supra.) Due process in this context pertains more to the procedura l aspect. It requires that:
The accused must be ( a ) tried before a competent court (i.e., court having jurisdiction);
given a fair and impartial trial; and (c) allowed to use all legal means and opportunity to defend himself; and (~) The judgment awarded against him must be within the authority of a valid law. As applied to a criminal trial, denial of due process, it has been said, is the failure to observe that fundamental fairness essential to the very concept of justice. 1 (b)
Right to presumption of innocence.
In all criminal prosecutions/ the accused is presumed innocent until the contrary is proved. (Sec. 14[ 2].) (1) A ..s.a£eguard. agg,~n.f!~.fal.s_f!_ conv.!£.!ion. -This presumption of innocence is a guarantee that no person shaiT be convicted of a crime except upon confession or unless his guilt is established by proof beyond reasonable doubt which is more than just a preponderance of evidence sufficient to win in a civil case. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the government and all t h e resources, authority and influence at its command.3 The presumption takes an even more paramount significance in offenses involving the capital punishment.• (2) Re..fl!:l-ire!J1f.!1t.Q[ P!09[ gfgu_i_l~.IJ.~YQ~.d.r~Cl:§I9JJ:.C!£~e__
Lisenba vs. California, 814 U.S. 219. ,.rhe term t;dmi.M~ .J!!OS~i oss has always been interpreted to mean proceedings before the t rial court ft~JP.~ JtX!'!.!.gl)!l'le.n!!!nJm.l~.nJ.Q._the rendition of decisi~Jl!. (People vs. Corachea, 91 SCRA 422, July 16, 1979.) 3 People vs. De Guzman, 194 SCRA 601, March 4, 1991. •People vs. Lagmay, 306 SCRA 157, April 21, 1999. ~Thus, a suspended PC-CIS was acquitted of the charge that he "knowingly and falsely represented himself to be [such an) agent" in the ::.bsence of proof tha t he was duly notified of his dis missal before the commission of the alleged crime to ove rcome the constitutional pres umption of innocence . (Gigantoru vs. People of the Phils., L-74727, June 16, 1988.) 6 People vs. De Guzman, note 3.
Sec. 14
ART.
m. -BILL OF RIGHTS
111
In case there is a reasonable doubt of his guilt, the accused is entitled to acquittal." ... It is better to acquit a person upon the ground of real;lonable d~~~!-~_':.-en. t~~--~~-ii ~:~:illai~!i.i~iliiiFe-g~i.J~y;_t.hanto1ni1Tcti_m E~Iso~~e~t__ _ ~Q.!l~ __'£h_o mav.hti:nJl$..J;lllt...''il • Statutory presumptions of guilt.
There, is, however, no constitutional objection to the passage of a law providing, even in criminal prosecutions, that the presumption of inno· cence may be overcome by a contrary presumption, founded upon the experience of human conduct- that when certain facts have been proved, they shall bP- prima facie (i.e., sufficient for proof if uncontradicted) evidence of the existence of the main fact in question. 9 The State is only required to establish a prima facie case after which the accused is given an opportunity to present evidence to rebut it. 10 Under our Rules of Court, for instance, it is presumed "that a person found in possession of a thing taken in the doing of a recent wrongful act (i.e., theft) is the taker and the doer of the whole act." 11 The ground for the presumption is that men who come honestly into the possession of property have no difficulty in explaining the method of which they come into such. 12 If upon such presumption taken in connection with the other evidence, it may fairly be concluded beyond a reasonable doubt that the accused is guilty of the;~ft, a judgment of conviction may properly be entered. 13 Right to be heard by himself and counsel.
Implementing the right to be heard, the Rules of Court provides: '-l) "In all criminal prosecutions, the defendant shall be entitled x x x to be present and defend in person and by counsel at every stage of the proceedings, from the arraignment to the promulgation of the judgment. ;4 ~) "The accused must be pre5ent at the arraignment and must per3onally enter his plea.'"
(3 J "After a plea of not guilty, the accused is entitled to two 12 1days to prepare for trial unless the court for good cause grants him further time. 16
"See Rules of Court, Rule 133. Sec. 2. "Peoplt! vs. Manoji, 68 PhiL 471. 9 1 Cooley, 639-641. '('People vs. Mingoa, 92 Phil. 857. t:Rules of Court, Rule 131, Sec. 5. : 2See U.S. vs. Ungol, 37 Phil. 835; U.S. vs. Espia. Hi Phil. 506 ~3 U.S. vs. Cat.imbag, 35 Phil. 367. 1 ' Rule;; of Court, Rule 115, Sec. 1. ''•Ibid., Rule 116, Sec. Hbl. 1 ~/bid., Sec. 9.
112
1'F.XTBOOK ON THE PHILIPPIN E CONSTITUTION
Sec. 14
f4) "Before arraignment, the court shall inform the accused of his right to counsel and s hall ask him if he de~ires to have one. Unless the accused is allowed to defend himself in person, or he has employed counsel of his choice, the court must assign a counsel~__9{jcio to defend him ." 17
Even if the guilt of the defendant is very apparent, a hearing is still indispensable. He cannot be punished upon a doubtful assumption. 1A Lack · of notice of h earing violates procedural due process.19 Meaning and purpose of arraignment. ( 1) The arraignment is made in open court by the judge...ar..cl.c.r.k. and consists in furnishing the accused a copy of the complaint or information with the list of witnesses, r eading the same in the language or dialect known to him and asking him whether he pleads g uilty or not guilty. 20
The compla int is filed in court usually by the prosecutor after due investigation. ( 2) It is at t he stage of arraignment that the accused, for th e. first time, is granted the opportunity to know the precise charge t hat confronts him Y
Importance of the right to counsel.
The right to.be..h.eard would.. b.e.of lit.tl~_;;\Y~!Uf...i.tdoes_:r!~~JP..~ludU}].~
tight tu..be. h~rd
by_~:unsel
Even the most intelligent or educated m an may have no skill in the scien ce of t he law , particularly in the rules of procedure a nd without counsel, he may be convicted not because h e is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. I t is for this reason that the right to be a ssisted by counsel is deemed so important that it h as become a constitutional right~~ not subject to waiver by the accused. 2:1 Right to be informed of the nature and cause of the accusation against him.
( 1) Sp_e.cific..a.Jk_gqij,gn::; of cri m,~ charge4. - This right implies that the offense which a person is accused of be made known to him. The criminal complaint or information should be sufficiently clear to a person of ordinary intelligence as t.o what the ch a rge is so as to enable him to prepare his defense. It is imperative that. he is thus made fu lly aware of possible loss of '''!hid., Rule 116, Sec. 6. '"RcycJS v:>. Subido, L-27916, Aug . 21, 1965. '"Sec. of Finance vs. AgaH
S ec. 14
ART . III. -
BILL OF RIGHTS
113
freed om , even of his life, depending on the nature of th e crime imputed to him .z4 (2) flgi!~~.J!::t.._!?LCl:.(}_C.fiS~.!J. .YJ..!J:Q.s_~..r.i:KIJL.b'U:!i2Jgtetf:. - - This requirement of notice is indispensable inasmuch as in criminal cases not only the liberty but even the life ofthe accused may be at stake. Thus, there is a violation of the right whe1·e an accused h as been charged with an offense and convicted of another, 25 or where no a rraignment (supra.) of the a ccused has taken place. 26 The proceedings in s uch case may be challenge d and annulled in the proper court, at the insta nce of the accus ed. But a n accused may be convi cted of a less er offen se (e.g _, theft ) included in t hat (e_g. , robbery ) which is charged. Right to have a speedy, impartial, and public trial. (1) ,Speedy_lzjgJ. - Our s tatutes do not define wit h precision what constitutes time for speedy trial. It has been said, however, that a "speedy trial" means one that can be had as soon as possible, a fter a person is indicted and within sue!:! time as the prosecution, wit h r easonable diligence, could prepare for it. It sh ould be a t rial "conducted according to fixed rules, regulations , and proceedings of law free from vexatious, capricious, and oppressive delays." It does not mean undue haste but one conducted with reasonable promptness consistent with due course of justiceY It neces sarily depends upon the circumstances. Consequently, reasonable postponements are allowed. The observance of the right to have a speedy trial is important. A long _ .i~§jn_the._Lrial. of cas.e..s. 'to this end, no m a n can be a judge in his own case and no ma n is permitted to try ca ses where he has an int.er.e.at •.p~<;:P._niarypr otherwise, in the putcome}9 Thus . a com-iction under an ordinance whereby a portion of the fine imposed we nt to the judge and the remainder to the municipa l treasury is a violat ion of du e process oflaw.
"l•Borja vs. Mendo?.a, Sll p ra ; Mat ild e, J r. vs. Jab~on . L -:3 ~ 39 :2 . Dec. 29, 1975. 1 ~Peoplc vs. Abad Santos, 78 P hil. 774. 2G U.S. vs. Sobrevinas, 35 Phil. 32. ~ 7Conde vs. Rivera, 45 Phil. 650: Kalaw vs . Apo,;tol. 64 Phil. 852. 28P eople vs. Orsal, 112 SCRA 226 · 1982 ·. Bd>·.-~Q >.J9J. • Feb. 12, 1998), known as the "Speedy Trial Act of 1998," prescr ibes a time limit for trial. be tween arraignment and trial, and following an Order for !I new t riaL to emure a speedy trial of all criminal caRes. 2 ~ln rP. Murchison, 349 C.S . 133.
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
114
Soc. 14
Evgn__pr.ru:e.d.ure which would offer .euen. onl:y .a . p.os.•£b.Le. .t.em.ptatian .to tb.e tofo.rget t.he bu:r:-
judg~
(3) P..ublic tr..iaL -The requirement that the t rial be public is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials. A public trial is not of necessity one to which the whole public is admit ted, but it is one so far open to all, as that of the accused's friends and relatives and others who may be inclined to watch the proceedings in order to see if justice m.intellig!m.ili':.JLI\d..im.P~u:t~Uy _a.
of witnesses. The accused person has the right to meet the witnesses face to face . There are two important reasons behind this right. ( 1) G.r..osl:l:...~gJ.minatio.ILQ[¥JJ1.~§.~-~~-Qy_j.h.g...Q£tY.~ed. - The first is to give the accused an opportunity to cross-examine witnesses against him to test their recollection and veracity. He may not, therefore, be convicted upon ;he mere depositions or ex parte (of or fro m one party) a ffidavi ts (sworn written statements} of his a ccusers. Thus, a doct or who executes a medical certificate must be presented for examination. (2) As_s._e~.!llJJ:.fl!J..t...l!J_Jl' lf.. q_9!!:J:L9f' witneti.i...sr.M..ib.WJy . -- The second is to give the judge, as the trier of facts, an opportunity to sec the dcnwanor and / appearance of witnesses while testifying.a3 .. - -- -·-·--..,
Right to compulsory production of witnesses and evidence.
The accused has the right to have compuhmry process issued t o secure the attendance of witnesse s and the production of evide nce in his behalf. (Sec. 14[ 2].) ·
·IO'fumey vs. Ohio, 27:3 U.S . 510. ·"Tan, Jr. vs. G~ llardo, L -41213-14, Oct. 5, 1976. '12See Cooley, Principles of Constitutiona l Law. l3rd1 320-321.; see Rule;-; of Court, Rul e 119, Sec. 13. 3 ·lU.S . vs. Javier , 37 Phil. 449; U.S. vs. Tanjuanco, J Phil. 374 ; U.S. vs. Bello, 11 Phil. 526; People vs. E s1.enzo, etc, and Ojoy, L-4116t'l, Aug. 25, 1976.
Sec. 15
ART. lJI. - BILL OF RIGHTS
115
(~ Under the Rules of Court, an accuse d per son is e ntit led to have subpoenas (order to a per son to appear and testify in court) issued to compel the attendance of witnesses in his favor, including a warrant of arrest, if needed.a4 He must , h owever, make reasonable and diligent effort to ha ve them cited to appear and testify, otherwise, the court may properly r efuse to postpone the trial inspite of the absence of his w itnesses. ~r, He may a ls o ask the court to order a person to produce in cour t certa in documents, a r t icles, or other evidence and testify with r espect to th em . This order is called subpoena d uces tecum. 3 ~ ( 2 ) Likewise, the court, u pon pr oper a pplica tion of t he defendant, may order th e prosecution t o produce or permit the inspection of evidence (e.g., written statements given by th e complainant a nd other witnesses in any investigation of the offense) material to any matter involved in the action, in the possession or under th e control of the prosecution , the police, or any other law-investigating agencies .37 Thus, another mode is assured the accu sed of meeting the evidence that might be presented to prove his guilt. Trial in the absence of the accused. ~e c~n~!~tutional ri_gh~. ~_! th~ acc~_ed .t<.?.~e_p~.r ~~~~l.l y p_r e.sent .~nd. to
~~-_!?.~rd_i_r!_Jlis d~fe~~~..Y. hi'Q:12 elf ma_y_Q_e__!V~iv~
proceed notwithstanding the abse:11ce of the a ccu sed provided that three condi tions concur: ( 1) _He has b~en a.n:.~!g~~~. iss
(2) Be. ~_as be..~I_l. duly ..Q.Q.t!(i,e~
of..the .tri.~}~ and
(3) !:!is f~.il~~.~.~~- a.P.p~a.:U.!?. .VJljJJ.&tifi.a.hle, (Sec. 14l 2J.) The rule is in the int er est of a speedy administration of justice which sh ould be afforded not only to t he a ccused but to t h e offende d party as well . An accu sed cannot, by sim ply escaping, t h wart his pr osecution a nd possibly, eventu al conviction provided only t hat the three conditions mentioned are present . 39
SEC. 15. The privilege of the writ of habeg s cQrpus shall not be suspended except in cases of invasion or r e bellion when the public safety requires it. Meaning of writ of habeas corpus.
T he wr:iJ._Q{_h_ab~JJ.~..S.9.r.J2u.s is an or der issued by a court of competent j urisdiction, direct ed to th e per son det aining another , commanding him to 3' See
Rules of Court, Rule 2 1, Sees. 1, B. vs. Pellejera, 17 Ph!l. 587; C.S. vs. Garcia. 10 Phil. 384. 36See Rules of Court, Rule 116, Sect io n 11. 3;See Ibid. 3 ABo rja vs. Mendoza, supra. ~&Peo ple vs. Salas, 143 SC RA 163. July 29, 1986. ~t.J. S.
3
TEXTBOOK ON THE PHILIPPINE CONS'l'ITUTION
116
Sec. 15
produce the body of th e prisoner at a designated time and place, and to show sufficient cause for holding in custody the individual so detained. Purpose of the writ.
It has for its purpose to inquire into all manner of involuntary r estraint or detention as distinguished from voluntary· anci'..i(; -relieve a person therefrom if such restraint is found illegal. 1-'he wri~ is the proper remed_y .i n each a_nd every case of..dewntion 'V!' ithout l ~gal cause or aut!l.ority.1 Its R.t.~_nc!p:a_l.P.Y....IP.Q~.~--t.h~.:n..ia.1u...sllihe.in.di vidual a t.hberty. How writ operates.
This is how the writ of habeas corpus operates to safeguard the liberty of a person: The ..w.:is~meE .~!. _a~y_p~rs~ in his behalf petitions the proper court, which immediately issues the writ. It is sent to the person having another in his custody. Such person is order ed to produce the prisoner in court at a specified time , together with an explanation of the cause of the detention, called the.r£1Jg_f:!.· After the order is obeyed, the judge scruti nizes the return and then decides whether it shows that the imprisonment is authorized by law. If so, the prisoner is remanded- sent back to custody. If not, he is set free at once by the judge. 2 Suspension of the privilege of the writ.
"(be P£i.V..iJ.f!ile of the writ of habeas corpus (not the writ itself) ~E.. '!)~ . , . ..§.llSp~nde~- by the Presf4~nt (Ar'f.' VII; 8ec~· l 8."fit}._~ase only of i.IJ.yasio.!! or ' , .r_egellion,t~ben pul?lic safety_req~iFes it.3 Consequeb.,tly, the person under '"'-·-·. detention by the government may not obtain h is liberty by its use. \
While the person detained mus t still be produced in court, the official or person detaining him may ask the court not to continue the proceeding any further as t he privilege of the writ as to that particular person seeking release has been suspended. Unlike in cases where the privilege of the writ is available and in full force and effect, the judge thus may be prevented in the event of suspension fro m determining whether or not the detention is authorized by law. 4 But the Supreme Court is empowered to inquire, in an appropriate proceeding filed by any citizen, whether or not there was factual basis to justify the suspension by the President of the privilege.
'Villnvwencio vs. Lukban, 39 Phil. 778 . See Chafee, The Most Im portant Ri ght in the Constitution, 32 Boston Univ. Law Rev. 143; see Rules of Cou r t, Rul e 102. !YJ'bc phrase "or imnUnent danger ther eof ' in the former provis ion has been deleted hecause of its ambiguity. •See Tanada and Fernando, op. cit., p. 530. 2
SP.C. 16
ART. lll. - BILL OF RIGHTS
117
The suspension _?f tl't~ .P~~vileg,eof the writ enab.l~s the State "to hold in preventive-i'inpr1~~.nli!~nt~~c,l!Il_g i_n_v.:~~.>tigation and trial of perscms who_ E,lot agafnst it.'o:r cqrpm.it acts that ..endanger its very.exi_st~nc~,''" (see Sec. 13.) This topic is further discussed under Article VII (Executive Department), Section 18.
SEC. 16. All persons shall have the right to a speedy disposi· tion of their cases before all judicial, quasi-judicial, or adminis· trative bodies. Right to speedy disposition of cases. (l). T!t~...~b.<>.V..~ .P!~visj.f>_t:l.~!ili.<.>lds the time-hQnored_ traditj.<>..r.u~Ls.pe~dy iu.~t_i_'l~(Qt
as &tate.d. in.the...2ld fi.ic.wra..- ':d!lsti~-~- 9~}Ji_y~ ~S.i'l.§tic~ denWL" Its express inclusion was in response to the common charge against the perennial delays in the administration of justice which in the past has plagued our judicial system. One need not stress the fact that a long delay in. the disposition of cases creates mistrust of the government itself and this may pave the way to one's taking the law in his own hands to the great detriment of society. On the other hand, th~__o]?_s~rvan.c.~_ c;>[ "tl").,eright to a sp~~dy disposition of. their ca~~~:~n..han~~-s.th.~..P~Q,ple's re~.Q~G.i.J~n: 1huruv .and faith in..their. iQ.Y_EITnm.~m.t
(2) The right to a speedy disposition of cases can be invoked only after the termination of the trial or hearing of a case. Like the right to speedy trial in criminal prosecutions (Sec. 14[2].), it is necessarily relative. It is consistent with reasonable delays and usually depends on the circumstances.2
"See Padilla vs. Ponce Enrile, L-61388, April 20, I98:t 'Section 14 guarantees the right to speedy trial in criminal cases. Section 16 covers all phases of any case before judicial, quasi-judicial, or administrative bodies from its filing to its disposition. 2 Beavers vs. Haubert, 198 U.S. 77. 8 Examp1Ps of mea11ures intended to promote expeditious dispensation of justice are Presidential Decrees No. 26, 77, 126 and 204; see Sec. 14, last sentence, supra.
118
TEXTBOOK ON THE PHILIPPI NE CONSTITUTION
Sec. 17
quasi-judicial (i. e., executiv~ agencies performing adjudica tory functions similar to those of courts, like the National Labor Relations Commission, Securities and Exchange Commission, etc.) a nd administrative bodies (i. e., executive agencies perform ing limi te d adjudicatory functi ons, such as the bureaus under the differ ent departments).
SEC. 17. No person s hall be compelled to be a witness against himself. ¥ight against self-incrimination.
No person s hall be compelled to be a witness against himself. (Sec. 17 .) This is a protect ion against self-incri mination which may expose a person to criminal liability. It is founded on grounds of: ( 1) Public policy, because if the party is thus required to testify, he would be placed .. li.n der the strongest temptation to commit the crime of . pe_~:u.r1; and (2) Humanity, because it prevents the extor t ion of confession by duress. 1 - -- -.... Th e constitution a l gu ara ntee protects as well the right of the accused to silence, and his silence, meaning, his failure or refusal to testify, may not be used as a presumption of guilt or t aken as evl'dence against h:m. 2 Scope of guarantee.
The right against s elf-incrimination applies in crimina l cases as well as in civil,·administrative, and legislative proceedings where the fact asked for is a criminal one. It protects one whether he is a party or a witness.3 Nature of guarantee. (1 ) rl!.e._right _ i~__purely persona l an_t;l ma,y_l,>_e,_W.4.i.v.~ ~- It was never intended to permit a person to plead th e fact that some t hird person might be incriminate d by his testimony, even though h e were t he agent of such person. 4 (~ ) It may not be invoked to protect a person against being compelled to testify t o fac ts which may expose him only to public ridicule or tend to disgrace him ;
Ci ) It may not be invoked simply because the testimony might subject one to some liability not arising from any criminal a ction;
1 U.S. vs. Navarro, 3 Phil. 63 . zu.S. vs. Luzon , 4 Phil. 343; Chavez vs. Court of Appeals, 24 SCRA 663. JBermudez v.:;. Castillo, 64 Phil. 483; McCarthy vs. Arnsdtein, 266 U.S. 40. 4 People ve. Alegre, L·30123, NQv. 7, 1979; Hale vs. Henke l, 201 U.S. 43.
Sec. 18
ART. IlL - BILL OF RIGHTS.
119
(4) It is applicable only to a _pr_~s~nt n.ol fl__p_~~.! .£.riminality _which involves no present danger of prosecution. Hence, a witness cannot refuse to testify as to a crime which has already prescribed" (i.e., the crime is no longer subject to prosecution due to the lapse of a certain period of time); and
f5) It can be availed of only against testimonial compulsion. ::
Form of testimony prohibited.
The constitutional guarantee that no pers~m shall be compelled to be a witness against himself is limited to prohibition against <;,ompu~o.ry_tesn mQ.niC1!...§.~lfiA~l-ill}jQ~!!Ql!..- extricating from defendant's own lips, against his :will, an admission of his guilt. ylt extends to the production by the accused of documents, chattels, or other objects demanded from him, for then he is compelled to make a statement, express or implied, as to the identity of the articles produced. 6 The refusal of a person to produce a specimen of his h.~D.!iw...riting is also included within the privilege. The reason is that writing is not a purely. mechanical act. It requires the application of intelligence and attention and is equivalent to testimonial compulsion. 7 However, there is no violation where:
\1)
the accused is forced to discharge morphine from his mouth;8
~) the accused is compelled to place his foot on a piece of paper to secure his footp1·int; 9
(;~,) the accused is compelled to be photographed or to remove his garments and his shoes; w (4) where a woman accused of adultery is compelled to permit her body to be examined by physicians to determine if she is pregnant; 11 and ,·
V$) th~. uolly~tary col):_fe~~!9n (given in the preliminary investigation) of
the accused is admitted at the ·trial. 12 SEC. 18. (I) No person shall be detained solely by .reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shaD exist except as a punishment for a crime whereof the party shall have been
duly convicted. 5
lbid. Wigmore, pp. 864-865. 7 Beltran vs. Sam:-;on. 53 Phil. 5 70. 8 U.S. vs. Ong Siu Hong, 36 Phil. 7:'15. 9 U.S. vs. Sale:-;. 25 Phil. 337; U.S. vs. Zara, 42 Phil. 308. 10 People vs. Otadora, 86 Phil. 244. 11Villaflor vs. Summet·.s, 41 Phil. 62. 12 People vs. Carillo, 77 Phil. 572. 6
120
TEXTBOOK ON THE PHILIPPI NE CON'STTTUTION
Sec. 18
Right against detention solely by reason of political beliefs and aspirations.
(1) In.ca.rc..e.m iio_n,y.;i_(hQut r,:h.fJ.rges qf~pqfiJi&aJJlri§ongs."- Upon the declaration of mar t ial law on September 21 , 1972 under Proclamation No. 1081 of the then incumbent Presi dent , the military establishment carried out a nationwide arrest and detention of known political opponents and critics of the administration. Thousands of people were arrested and jailed during the whole period of martial rule for a ttacking certain acts and policies of the President, for exposing graft and corruption in the govern· ment (or even cracking jokes about its slogans) for criticizing the President and members of his family, for being m embers of cause-oriented and nationalist organizations, etc. Many remained in incarceration for years without charges filed against them. They came to be known as "political prisoners" or "political detainees." '·
Even after the lifting of martial law by Proclamation No. 2054 on January 17, 1981 up to the February, 1986 "people power revolution," the privilege of the w rit of habeas corpus remained s uspended "for the crimes of insurrection or rebellion , subversion, ccnspiracy or proposal to commit such crimes and for all oth er cr imes and offenses committed x x x in connection therewith." Many more were arrested and detained after the lifting of martial law, for denouncing, among others, the authoritarian rule of the President, human rights violations by the government, and enrichment in office of people close to the President and the First Lady, for advocating political, social and economic reforms, for espousing a lltgedly radical doctrines, or for participating in protest movements and demonstrations, or on mere suspicion of being subversive s or communist sympa· thizers, and then charged with having committed crimes against national security and public order. (2) ~-E¥2£antee agg!.l)§!.t hay!rtDr:.i.§.9TY!!..§...of. conscience." - The inclusion in the Constitution of the right against detention merely by reason of one's political beliefs and a spirations is a r esponse to these r ecent events in our history a nd manifests the great importance t he framers attach to it s protection. It is a positive declaration that within the democratic fram ework, the
w t)ple, for example, can freely s peak of what they think is wrong with the government and its leaders, or seek changes in the government and its policies which they believe to be necessary or the r emoval of publi c officials unworthy of their (.rust. It is a guarantee that h enceforth , one can voice his contrary views and ideas about the exist ing politi~al and social order, t hat he can articulate his hopes and aspirations for the country, without peril to his liberty. (e:ee Sec. 4.} It is a prohibttion directed to the government against having "prisoners of conscience." Meaning of involuntary servitude. l.ml.gl~J:llt~,n_!?__l}r:_r;i~~ge denotes a condition of enforced, compulsory service of one to another. It has been a pplied to any service or labor which is not
ART. III. - BILL OF RTGHTS
Sec. 18
121
free, no matter under what form such service may have been rendered. 1 It includes: ( 1 l SlaveQ' or the state of entire subjection of one person to the will of anothet·; and
{ 2) feonage or the voluntary submission of a person (peon) to the will of another because of his debt. The term "slavery" is not employed in the Constitution because slavery, as it existed in Europe and America, has never been practiced in the Philippines. Purpose and basis of the prohibition.
The purpose is to maintain a system of completely free and voluntary labor by prohibiting the control by which the personal service of one is disposed of or coerced for another's benefit which is the essence of involuntary servitude. 2 Human dignity is not a merchandise appropriate for commercial barters or business bargains. Fundamental freedoms are beyond the province of commerce or any other business enterprise. 3 ~~p_ti_o~s_ t()_P!.9.1J.iP.iti()f1.:
Not every form of fon~ed labor is within the scope of the provision. Thus, the prohibition does not apply:
const~tutionaJ
o:J ~rime
when the involuntary servitude is imposed as a punishment for a whereof the party shall have been duly convicted
~) when personal military or civil service is required of citizens for the defense of the State (Art. II, Sec. 4.); ~m to injunctions requiring striking laborers to return to work pending · settlement of an industrial dispute; 4
(4) to exceptional services, such as military and naval enlistment. ThuS, a statute punishing sailors who desert their ship do not contravene the constitutional provision. From immemorial usage, sailt1rs may not leave their ships during a voyage;'' ,5.) to exerci.se by parents of their authority to require their children to perform reasonable amount of work; and
(6) when there is a proper exercise of the police power of the State. (supra.) Thus, persons may be required to assist in the protection of the
1
Rubi vs. Provincial Board, 39 Phil. 660. See Bailey vs. Alabama, 269 U.S. 269: Pollock,.~. \\'iJ::am.<, :~22 U.S. 4. ~caunca vs. Salazar, 82 Phil. 851. •Kaisahan ng mga Manggagawa sa Kahoy \·:.. Gotamco Sawmill, 80 Phil. 521. "Robertson vs. Baldwin. 165 F S. i'].'). 2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
122
Sec. 19
peace and order of the community, 6 or to help build or repair public highways and streets. 7
SEC. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Ne ither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall b e reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against .any prisoner or detainee or the use of substandard or inade.«fuate penal facilities under subhuman conditions shall be d"alt with by law. i I
Right against excessive fi~es.
Tl}e__q~~-!?tj_q~ !!tle impose ~. i~e addressed .to .the sound...di..scretion .af..the ..cow:.t. Jf it keeps within the limits of a statute, the fine cannot usually be held unreasonable. 1 Courts will be justified in declaring a fine prescribed by a statute excessive only when it is cle arly so, considering the nature of the offe ns e and t he ability of t h e person punished to pay the fine. Right against cruel, degrading, or inhuman punishments. ·
This right as.. con.tra~distin guished .from the right.. against the use..of can only....be..inY:oked.aitez:...c.onYic.ti.un.for a crime. (1 ) 8.arm afpun ish ment. -- It can be said that punishments are cruel and/or inhuman whe n they involve torture or lingering death, such as burning a live, mutilation, starvation, drowning, and other barbarous punishment. The punishment of death by hanging, electrocut ion , or musketry is not considered cruel within t.he meaning of t hat word a s used in the Constitution. 2 Nor is it inhuman. l.2f${i&rLP or banishment from a certa in locality as a punishment is neither cruel nor inhuman and s o valid, 3 1
~rtur.e.. LSe.c....l21.2.1),
f}!Q i S QID~!!..~j!L~llg. wrumil.bring,a_s_hame and humiJ.ia.tlim.. tQ. .~ ~!..2~·~po ses him to .~n~:mp~ o.r ri
!i~-.. :.r.~~_p~C!__E..~!!_h Ulll~!l.P~i-~_g.
.
U.S. vs. Pompeye1, 31 Phil. 245. ' Henlev vs. State, 41 SW 352; Dennis vs. Simon, 36 NE 832.
6
'U.S. V l>. Valera, 26 Phil. 898; U .S. v~;. Sing, 37 Phil. 211. See Weens vs. United States, 217 U.S. 349. snut ace Ibid.
1
Sec. 19
ART. III. -BILL OF RIGHTS
123
(2) /iJ.usm.t.ity o.r._.r:iJJ.r.aJ.i.Qll.JJiP.Ull~t. - It is ordinarily not taken into account in determining whether the punishment is cruel or inhuman. Hence, the mere fact that a punishment is displ·oportionate to the natul·e of the offense would not make it cruel or inhuman. But all punishments greatly disproportionate to the nature of the offense as to be shocking to the human conscience would be both cruel and inhuman. Thus, the penalty of life imprisonment or even death is not cruel nor inhuman when imposed for treason, parricide, murder and other heinous offenses especially when aggravating circumstances attended their commission; but it is cruel and inhuman if imposed for petty crimes like slander or theft of small value. It is not to be lost sight of that to be prohibited by the Constitution, the punishment need only be cruel, degrading, or inhuman.
Purpose of the guarantee. The purpose of the guarantee is to eliminate many of the barbarous and uncivilized punishments formerly known, the infliction of which would barbarize present civilization. 4 The Constitution mandates that the employment of physical, psycho· logical or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions should be dealt with by law. (Sec. 19[2}.) This cuntemplates the improper, unreasonable, or inhuman applicatjon of penalties or punishments (Sec. 19[1].) on persons legally detained. Imposition of the death penalty. Section 19 abolishes the death penalty. It shall not be inflicted unless Congress decides to reinstate it ''for compelling reasons, involving heinous crimes" in which case it shall apply only to such crimes subsequently committed.5 Death penalties already imposed upon the effectivity of the new Constitution were automatically commuted to reclusion perpetua or life imprisonment. (Sec. 19.) The Constitution does not define what are ':Q._e.jn.oul5..crimes" but they can be said to cover offenses that are exceedingly. or .flagrantlf.had or.Wl o.r..t.b.qs_e .~o.mmi.W~cl...w.ith ..~l'tr~-m~LqY..~U.Y. ..a..s.... to shock the _ggD~.r-~Lmoral ~· such as treason, parricide, drug-trafficking, murder. robbery with homicide, rape with homicide, killing a person in stages. etc., especially if the crime is committed against children or defenseless people.
4See McEivaine vs. Brush, 142 U.S. 155. Examples of such punishments are those inflicted at the whipping post or in the pillory. burning at the stake, breaking on the wheel, disemboweling, and the like. ~R.A. No. 7659 (D.ec. 13, 19~3) restores the death penalty on certain heinous crimes and R.A. No. 8177 designates death by lethal injection as the method of carrying out the capital punisfiment-or death amending for this purpose the Revised Penal Code.
124
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
S()C. 19
( 1) Arguments against death penalty. -
The propon ents of th e abolition of the death penalty are of the opinion that: ~) It is cruel a·nd inhuman for the convict and family who are traumatized by the waiting e ven if it is never carried out;
(~ There is no conclusive evidence from penologists that it has a special deterrent effect on criminality ; (c) It deprives the cop..via-ora.' chance of rehabilitation and reform ation, death being ir:t;€versible; /
(d) There is always a possibility of\error in condemning a person to death;6 and \
(~ The state has no right to deprivh._~ person of his life; God is the giver of life and only He can take it. 7
(2) Arguments in favor of death penalty. retention of death penalty say:
Those who advocate the
(a ) It is not cruel and inhuman because the manner by which it is executed (now by lethal injection) does not involve physical or mental pain nor unnecessary physical or mental suffering, and it is imposed only for heinous crimes; (b) It does discourage others from committing heinous crimes" and its abolition will increase the crime rate; (c) A convict by his own acts has forfeited his right to life and sho~n his moral incapability to be reh abilitated and reformed;a
6 Th is raises the question of making a judgment on which is the greater evil: to take the life of an innocent person or to allow a vicious criminal to live and po!!Ribly escape prison. 1The Catholic Church has been the foremost advocate of pro-life movements acknowledging and defending the right to life. The Catechism of the Catholic Chur ch Cl992 edition>says: "The t r aditional teaching of the Church has acknowledged as well-founded the righ t and duty of legitimate public authority to punish malefactorR hy means of pena lties' commensurate with the gravity of the crime, not excluding in cases of extreme gravity the death penalty." (Catechism. Section 2266.) The 1997 revisio n on the death penalty states in relevant part: •Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense ... . Assuming that the guilty party's identity and responsibilit.y have ~o fully det ermined , t he traditional t eaching of t he Chur ch does not exclude r ecourse to the death penalty, If this is the only possible way of effectively defending human lives against the unjust aggressor." The new language basically cortveys the same idea as the 1992 edition. The doctrine, however, remains the same: th e right should be exercised only in cases of absolute necessity, that is, 'when it would not be po!!sible otherwi.se to defe nd society." In the Encyclical "The Gospel of Life" (March 25, 1995), Pope John Paul II declares that today as a r esult of steady improvements in the organization of the penal system (No. 56), the cases of absolute necessity are very rare, if not practically n on-existent. 8 Pra.ctically all human beings fear the loss of thei r lives so that the death penalty cannot but have a powP.rful deterring influence on humnn conduct. ~There is no statis tical evidence to prove that punishment by imprisonment alone has been effective for purposes of rehabilitatio n of criminals, particularly wit.h the subhuman con ditions in our penal ins ti tutions.
s~c .
20
ART. Ill. - BILL OF RIGHTS
125
(d) Its imposition is filled with numerous legal safeguards; 10 and (e ) The State has the absolute right to take the life of a person who
h as proved himself a great menace to society by way of self-defense and as an example and warning to others. H
SEC. 20. No person shall be imprisoned for debt or nonpayment of a poll tax. Meaning of debt.
Debt.. as intended to be covered by the constitutional guarantee, means any liability to pay money arising out of a contract, express or implied. 1 Purpose of prohibition against imprisonment for debt.
The prohibition was brought about by the force of public opinion which looked with abhorrence on statutes permitting the cruel imprisonment of debtors. The Constitution seeks to prevent the use of the power of the State to coerce the payment of debts. The control of the creditor over the person of his debtor has been abolished on humanitarian considerations. One should not be punished on account cf his poverty.
Mm:e.oxer, the..g.oy.ernm.entis..Jl.Gt a proper .par~ .to.. private disputes. It should not render its aid to one who deems himself aggrieved by ~mprison ing the other for failure to pay his debts. 2 .:But if the debtor has property, the creditor has the right in a civil case to have such property attached (i.e., taken into legal custody) as a means of enforcing payment of the debt.
. Rroh ibiti.o.n.limi.ted....to..cmltractual obligatioas ~The inhjbition was never meant to include (1) damages ansmg in action ex delicto (criminal actions), for the reason that the damages recoverable therein do not arise from any contract entered into between the parties, but are imposed upon the defendant for the wrong he has done and 10 Although the death penalty has a lways been part of the ;;tatute book. specifically the Revised Penal Code, a nd many sentences h ave been imposP.d , very few executions have been cttuied out. The first execution by letha l inj ection of a conv icted rapist was carried out on February 5, 1999. It was 26 y~ars ago during martial law ..,.-hen a military tribunal imposed the deat.h pena!ty by firing squad on the h ead of a dn::g-pu:;hing syndicate. He was shot in public. 11The State derives its authority ultimately from Gi:>d. ~ay not a criminal's right to life give way to the right of s<><:i~ty tc salf-defense''
'Tan vs. Stewart, 42 Phil. 809. S ee Canaway V!; . Quintin, 42 Phil. 802.
2
126
TEKTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 21
are con sidered a s a punishment therefor, nor ( 2) fines and penalties im~ posed by the cour ts in criminal proceedings as punishments fo r crime. 3 !A pe.x:sruuna.~J>.e...imJ.U'.lli!?..!l~.dJ.9J.:..failur~ to__ paJ!_t~ (as it is not a debt). In other words, debt , as used in the Constitution, r efe rs to civil debt or one not arising fr om a criminal offen se. Meaning of poll tax.
(
/ '
A p.alL Jax (or personal or capitation tax) is a tax of a fixed a mount im posed on individuals r esiding within a specified territory, whether citizens or not, without r egar d to their property or th e occupa tion in which they may be engaged.4 The community tax (formerly r esidence t ax) is in t he nature of a poll tax . Purpose of prohibition against imprisonment for non ~ payment of poll tax.
The constitutional right is a m easure dictated by a sense of h umanity an d sympathy for t he plight of the poorer elements of th e population who c)fnot even affor d to pa y their ced ula or poll taxes, now community t ax.5 t. , But a person is s ubject to impr ison ment for violations other t han for non-payment of the commu nity tax (e.g., f~§if!c~.tj Qp_g.fJh.e COm.J.!!UQ.ity t.l:i.X.. certificate), and for non-payment of other taxes if so expressly provided by th e pertin ent law. SEC. 21. No person s h all be twice put in jeopard y of punish· ment for the s a m e offense. If an act is pwlished b y a law and an ordina nce, conviction or acquittal under either shall constitute a b ar to anot h e r prosecution for t h e same a ct. Right against double jeopardy.
The r.ight_gggj_~~t_Q,OY..Q!_ej_egn.fy:sJ~ means that when a person is charged with a n offense and the case is ter minated either by acquittal or conviction or in any other manner without the express consent of the accu sed, the latter cannot a gain be charged with the sa me or identical offe nse .1 The guarantee protects against the perils of a- second punishment a s well as a second trial for the s a me offense.
3/bid . 'See 51 Am. J ur. 660. lV.G. Sinco, op. cit. , p. 682. 1 Melo vs. People of the Phils ., 85 Phil. 766; Rule 116, Sec. 1; Rule 117, Sees. 5. 9 ; Rule 118, Sec. 1.
Sec. 21
ART. HI. -BILL OF RIGHTS
127
B.eq.y!sjt~~ tc:>r. exJste.n(:.e. of. do.~ble. j~p~r~Y~. Und~r present law and jurisprudence, the accused is pJaced in double jeopardy if the following conditions are present: ()!} He has been previously brought to trial; (;l) In a court of competent jurisdiction (i.e., court having jurisdiction);
(3) Under a valid complaint or information (i .e., sufficient in form and substance to sustain a conviction); (4) He has been arraigned (see Sec. 14[2].} and pleaded (either guilty or not guilty) to the charge; (~) He has bee11 convicted or acquitted or the case against him has been dismissed or otherwise terminated without his express consent; and <,~)
He is being charged again for the same offense.2 The right cannot be invoked where a petition for a declaration of a mistrial is granted on the ground that the proceedings .have been vitiated by lack of due process, e.g., the prosecution and the judge who tried and decided the case acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution from offering all the evidences which it would have otherwise presented, but also predetermined the final outcome of the case. A re-trial becomes necessary. 3 Right to appeal in criminal cases. ~ 1) The gox.er~ has no right, therefore, to appeal from a judgment of acquittaL (tt} The Wd:Used.,. after having been convicted, may appeal to a higher court, but the latter may raise the penalty imposed on him by the lower court and such is not secondjeopardy.4
Classes of double jeopardy.
It is to be observed that the provision deals with two classe:> of double jeopardy. .{1) Under the first sentence, the protection is against double jeopardy for the same offen8e and not for the same act, provided he is charge-d with a different offensetso an aci may give rise to more than one offense) except if the "act is punished by fl law (enacted by Congress' and an ordinance" (enacted by a local legislative body) in which case -conviction or acquittal under either shall constitute a bar to another prosecution for the same act."
2
See Rules of Court, Rule 116, Sec. 1; Rule 117, Sees. 5, 9; Rule 118, Sec. 1. Galman vs. Sandiganbayan, 144 SCRA 43, Sept. 12, 1986. •Kepner vs. U.S., 195 U.S. 100; Trvno vs. U.S., 11 Phil. 726. 3
TEX'rBOOK ON THE PHILIPPI NE CONSTITU'l'lON
128
Sec. 22
~) The second sentence contemplates double jeopardy of punishment. ~nd it applies a lthough the offenses charged are di fferent, one constitu~i{ig a ~·iolation of a statute a nd the other of a n ordinance. /
for 'the same ac! (e .g., 1llegal const ruction)
SEC. 22. No ex post facto law enacted.
or bill of attainder s hall be
Meaning of ex post facto law.
An
~as.tJMt.Q...WJR.
is one wh ich, opera ting retrospectively -
(rJ makes an a ct done before the passage of a law, innocent when don e, criminal, and punishes such act; or (~
aggravates a crime or makes it greater than when it was commit-
ted; or
(3) changes the punishment and inflicts a greater punishment than what the la w annexed to the crime, when committed: or (4) alters the legal rule s of evidence, and r et:eives less testimony than or different testimony from what the law requ ired a t the time of the commission of the offense, in order to convict the otfend er. 1 CbaraQter_i~1iC~_9.f expo~t taJ:~o _Ia~.
They are: (}) Ex post facto laws relate to penal or cri minal matters only {c;iY.il. iQ.~~[.~$tl'UU.e protected.by the.. nan-impairment clan~); G2) They are retroactive in their operation; and
C~) They deprive persons accused of crime of some protection or defense previously avail able, to their disadva ntage. E x post fact o laws are absolutely prohibited unless they are favorable to the accused. An example of an ex post fa cto law is a statute declaring as usurious a nd unlawful, the rate of interest provided in a contract which was not usurious under the laws in force a t the time of the execution of the contract. 2 Not e: Usury is no longer punish able by lcnv. Meaning of bill of attainder. ~. bill ofattaindg_r is a legislative act which inflicts punishment without a judicial trial.
If the punishment is less than death, the act is ca lled a b.il.l .9[p_gjft...uJJJ,...d It is included within the meaning of bill of attainder as used in the Constitution.
)1.£!l9~.~ti~s.
vs. Hull, a Doll. 385; Me kin vs. \\'o lfe, 2 J'hil. 74. U.S. vs. Conde, 42 Phil. 766.
'Ca ld~r 2
Sec. 22
ART. llL - BILL OF RIGHTS
129
Purpose of prohibition against bill · of attainder.
The prohibition against the enactment of bills of attainder is designed
as a general safeguard against legislative exercise of the judicial ft,nction, or simply, trial h)' legislature. (1) In a case where a law passed by the United States Congress declared in une of its sections that three government employees named therein were not to receive any salary after a certain date because of their subversive activities, the U.S. Supreme Court held that the enactment was in the natur e of a bill of pains and penalties , the Congress assuming the r ole of a judge and giving no hearing to the parties. Hence, the provision was void. 3
Ql') A law passed declaring members of an association guilty of subversion and subjecting them to imprisonment is unconstitutional because it convicts and penalizes without the benefit of judicial trial. ( ~f But the detention of a pri soner for a certain period pending investigation and trial is not a punishment; it is a necessary extension of the wellrecognized power of the State to hold a criminal suspect for investigati(m. 4
- oOo-
3
U.S. vs. Lovett, 328 U.S. 303. 'People vs. Carlos, 78 Phil. 535.
Article IV
CITIZENSHIP SECTION 1. The following are citizens of the Philippines: {1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
<2) Those whose fathers or mothers are citizens of the Phil· ippines; (a) Those born before January 17. 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
t•) Those who are naturalized in accordance with law. Meaning of citizenship and citizen. C.itizellfihi.p is a term denoting membership of a citizen in a political society, which membership implies, reciprocally, a duty of allegiance on the part of the member and duty of protection on the part of the State . Cit.i~*m is a per son having the t itle of citizenship. He is a member of a democratic community who enjoys full civil and political riP,hts, 1 a nd is accorded protection inside and outside the territory of the State. Along with other citizens, they compose the political community.
To be a Filipino citizen, a person must belong to any of the classes of citizens enumerated in Section 1. Distinguished from nationality and nationals.
From the point of view ofintemationalla w, the terms "citizenship" and "citizen" do not exactly mean the same as "nationality" and "national." The latter t e rms have a broader meaning, embracing all who owe allegiance to a state, whether democratic or not, without thereby becoming
1
Subject to special disqualifications provided by law.
130
Sec. 1
ART. lV. - CITIZENSHIP
131
citizens. Thus, prior to the granting of Philippine independence by the United States on July 4, 1946, the Filipinos were deemed American nationals because they owed allegiance to the United States but were not citizens thereof. We can, therefore, say that the nationals of a state include not only its citizens whl) enjoy full civil and political privileges but also all others who are not its citizens, but because they owe allegiance to it, are not regarded as aliens. While all citizens are nationals of a state, not all nationals are citizens of a state. Meaning of subject and alien.
A citizen is a.!'Ilember of a democratic community who enjoys full civil and political rights. In a monarchial state; he is often ca lled subject. / ·' ""
An q,(f,€n is a citizen of a cou.ntry .who is residing :n or passing through anqthe; .~ountry. He 1s popularly called "foreigner." He is not given the full rights citizenship (such as the right to vote and to hold public office) but is entitled to receive protection as to his person and property.
to.
General ways of acquiring citizenship.
They are: Inv.Ql!IJJ:"jgr:t. !J1~J.ltgd ..
- By birth, because of blood rt:!lationship or place
of birth; and Y.o.lunJaty.methili:L - By naturalization, except in case of collective naturalization of the inhabitants of a territory which takes place when it is ceded by one state to another as a r esult of conquest or treaty.
These two modes of acquiring citizenship correspond t o the two kinds of citizens- natural-born and naturalized citizens. (infra .) Citizens by birth.
There are two principles or rules that govern citizenshi p by birth, namely: ( 1) J.u..s..sangu.inis. -Blood relationship is the basis for the acquisition of citizenship under this Tule. The children foll ow the citizenship of the parents or one of them. This is the predominating principl e in the Philippines (see Sec. 1[2].) ; and
(2) J¥.~ s_oli.o.I.J!J..S l(J.Cf. - Place of birth serves as the basis for acquiring citizenship under this rule. A person becomes a citizen of the state where he is born irrespective of the citizenship of the parents. '!'his principle prevails in the United States. It does not mean though that the principle of jus sanguinis is not likewise r ecognized.
132
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. l
Citizens at the time of the adoption of the Constitution.
The citizens referred t o a re those considered Filipino citizens 2 under the 1973 Constitution at the time of the effectivity of the new Constitution on February 2, 1987 by virtue of Proclamation No. 58 of the President. The purpose of Section 1(1) is to protect the status of those who were already citizens at the time the new Constitution took effect. However, it is not the intention uf the Constitution to legalize the stat1.1s of those who acquired their citizenship through fraudulent means. A Filipino citizen under the 1973 Constitution who has lost his citizenship at t he time of the ratification of the new Constitution is not a citizen of the Philippines. Citizens by blood relationship.
The Philippines, in accordance with Section 1, paragraph 2, foll ows the principle of jus sanguinis. In the de termination of the citizenship of the child, Filipino mothers are placed by the Constitution on equal footing with their husbands. This dignifies the Filipino woma n. )i'he father or mother may be a natural -born Filipino or a Filipino by n aturalization or by election. Under the provision, a child born of a Filipino citizen is a citizen of the Philippines although illegitima te since the Constitution does not m ake any distin ction. ilf the child is born in a state where the rule of jus soli obtains, or the chlld's fathe r or mother is an alien whose country follo ws also the principle of jus sanguinis, it would be a case of dual citizenship. (see Sec. 4. ) Citizens through election under the 1935 Constitution.
Under the 1935 Constitution, a child born of a Filipino mother, who was married to a forei gner, is born an alien and remains an a lien during his minority until he elects Philippine ci ti zenship. ~ Prior to such election, he has an inchoa te right to Filipino citizenship.' If he is born after the ratification of the 1973 Constitution on J anuary 17, 1~73, he is a citizen
2 (1) Those wh o are citi:zens of the Philippines at the time of the adopti•>n of this Con stitution; (2) Those whose fa •hers or mothers arc citizens of the Philippines; (3) Those who elect Philippine citizc:1ship purs uant to the provisions of the Constitution of ninete en hundre d and thirty-five; (4) Those who are naturalized in accordance with law. (Art. III, Sec. 1, 1973 Constitution .) aThose whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philip pine citi1.e nship.'' (Art. VI, Sec. 11 4) th ereof.) The phrase "upon reaching the age of majority" has been construed to mean within a reasonable period after reaching the age of the majority. Generally. election should be made within .three yeau after reaching such age. (Op. of Sec. of Justice No. 129, S . 1948.) . 'See VillahermoRa vs. Corom. of Immigr ation, 80 Phil. 54l: But there is no need to elect Philippine citizenship if during his minority his mother reacquire~ her citizenship.
Sec. 1
ART. IV. -- CITIZENSHIP
133
under Section 1, paragraph 2 thereof, making the <:hildren of a fem ale citizen Philippine citizens without having to make an election. In the latter instance, he is a citizen from birth. The rule then, as it is now, is that a Filipina does not lose her citizenship by her marriage to an alien. (Sec. 4.) However, it was not clear whether those who had elected citizenship under the 1935 Constitution (having been born before the effectivity of the 1973 Constitution on January 17, 1973) are to be considered as natural-born Filipino citizens. Under Section 1, paragraph 3 in relation to Section 2, they ar e now declared as natural-born citizens. ~'Q_ill~timate
chU4.l.oJl9.WltJ_he citizenship of hi.a..kgaliy_kn.o:w.n.:paren.t...t.he..mo.th.er.Hencf...the.r.e. ja.also no need to ele.ct.PhiliP.llinf~.
Citizens by naturalization. In the contemplation of the Constitution, even those who are not Filipino citizens at birth and who cannot take advantage of the right given to the children of Filipino mothers, may become citizens by naturalization. In other words, citizenship may not be based on the principle ofjus sanguinis. Section 1, paragraph 4 which declares as citizens of the Philippines "those who are naturalized in accordance with law" possesses great significance. 1 u/6ertain rights and privileges, duties and obligations limited to Filipbio citizens.- Under our Constitution and our laws, there are certain rights and privileges that could be enjoyed only by Filipino citizens. Thus. under the Constitution, only qualified citizens can exercise the right of suffrage.
134
TEXTBOOK ON THE PHIUPPINE CONSTITUTION
Sec. 1
On the other hand, extreme care must be taken that our naturalization law, in barring undesirable aliens, does not unduly discourage the worthwhile aliens who are likely to be valuable additions to the ranks of Filipino citizens. For them, too rigid an application of a naturalization law m ay prevent t hem from attaining Philippine citizenship. Not only they but the country may be the loser. 5 (4 ) Ideal policy on naturalization. - T,he policy on naturalizat ion should be guided by our own national interest. Perha ps the ideal is that only those who have come to love the country, who h a ve integrated t hemselves into the cit izenry, and who can cont ribute to the development of the nation should be conferred citizenship by naturalization. 6 Meaning of naturalization.
Na turalization is the act of formally adopting a foreigner into the politic~fi)~dy·Of-tfi.e state and clothing him with the rights and privileges of citizenship. It implies the renunciation of a former nationality and the fact of entrance to a similar relation towards a new body politic.7 Nature of naturalization.
An alien does not h ave a natural, inherent or vested right to be admitted to citizenship in a state. Citizenship is a m atter of grace, favor or privilege which a sovereign government m ay confer on, or withhold fro m, an alien or grant to him under such conditions as it sees fit without the support of any reason whatsoever.8 Citizenship in our Republic, be it ever so small and weak, is always a privilege; and no alien, be he a subject of the most powerful nation of the world, can take such cit izenship for granted or assume it as a matter of right. 9 In view of the above principles, the rule is t hat in case of doubt concerning the grant of citizenship, such doubt should be resolved in favor of the State and agains t the a pplicant for n a turalization. 10 Ways of acquiring citizenship by naturalization.
A person may be naturalized in three ways: (1 ) By judgmen~e:..sowt. -The foreigner who wants to become a Filipino citizen must apply for naturalization with the proper Regional Trial Court. He must have all the qualifications and·none of th e dis qualifi-
~&!e F.M. Fer nando, Phil. Pol. Law, p. ll 5. . •see ~LOI No. 270 and Naturalization," by Sol. Genera l Estelito P. Mendoza, IBP Journal, Vol. 3, No. 4, p. 265. 7 2 Am. Jur. 651. 8See 3 C.J.S. 832-834. 9 Ng Sin vs. Re public, 97 Phil. 9A8. wcheng vs. Rep ublic, L- 16999, Ju ne 22, 1965.
Sec. 2
ART. IV. - CITIZENSHIP
135
cations provided by law, and must comply with all the procedure and conditions prescribed. The Revised Naturalization Act 11 is the present naturalization law. Such law shall also continue in force pursuant to the transitory provisions of the Constitution (Art. XVIII, Sec. 3.); or (2) Jb...cJ,.irect_ act of C.o!lgress. - In this case, our law-making body simply enacts an act directly conferring citizenship on a foreigner; or (3)...§..J.._q4~.~.11i.s{rr!:ti~~-P!:.QCee4i.!JJl.S. - Under R.A. No. 9139 (Jan. 8, 2001), known as "the Administrative Naturalization Law of 2000," aliens born and residing in the Philippines may be granted Philippine citizenship by administrative proceedings before a Special Committee on Naturalization, subject to certain requirements dictated by natiqnal security and interest. The applicant must possess all the qualificati.mls and none of the disqualifications provided in the law. The petition for citizenship shall be filed with the Committee which has the power to approve, deny or reject applications for naturalization as pt·ovided in the law.
SEC. 2. Natural-born citizens arE'; those who are citizens of the Philippine~·fr.;m birth without having to perfonn any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Kinds of citizens under the Constitution.
They are: ( 1) IY..O;~ur~~:!!or'!:..._Ej_tize_n~._-
They refer to those: ~) who at the moment of their birth are already citlzpn_;; of the Philippines, and C•) do not have to perform any act to acquire his Philippint> r.itiJ.Pnship. So, a child born of Filipino parents, or a Filipino fath"'r or a Filipino mother after the ratification of the 1973 Constitution on ,J ::\nuary 17, 1973, is natural-born citizen. lt would seem that a natural-born citizen who has lost his citizenship but subsequently reacquired it is not a natural-born citizen in view ofletter (b) above. (see, ho\~o:ever, R.A. No. 9225, infra.) The term, however, includes the citizens mentioned in No. (2) (except naturalized citizens) and No. (3) below. In effect, all citizens are naturalborn except ~hose who are naturalized and who subsequently reacquired
HC.A. No. 473, as amende% An alien woman married to a foreigner who subsequently becomes a naturalized Filipino citizen acquires Philippine citizenship the moment her husband takes his oath as a Filipino citizen provided .she does not have any of the disqualifications under the law. (N. Chiong v.s. Galang, L-21426, Oct. 22, 1975; see Pres. Decree No. 1379, May 17, 1978.)
TEXTBOOK ON THE PHILIPPINE
136
CO~ST ITUTION
Sec. 3
t heir citizenship. Those born of Filipino m others before J a nuary 17, 1973 but wh o failed to elect Philippine citizenship u pon reach ing the age of majority (see Note 3. ) are aliens but they can be Filipino citizens by naturalization; (2) 9./ti~ffi§..gj__the t_i_f!l:e. .o.f.t.h.,.g _ad.9.PJ!O..l1..Qit.h&..JJ&W Con§titution. - They r e fer to t hose who are considered citizens of the Philippines under the 1973 Constitution a t t he time of the adoption of the new Constitution (supra.); (3) I:.i.t.iz.~'l.Ji. _through_~.€.~.~i2.!:.· - They refer to those born of Fihpino mothers before January 17, 19'73 who, upon n~ a.ching the age of majority , elect Philippin e citizen ship after the r atification of the 1973 Constitution (even pr ior to the effectivity of the new Constitution on Feb. 2, 1987) pursuant to the provi s ions of the 1935 Constitution. (Sec. 1[3]. ) T hey are placed on the level a s those born of Filipino mothers on or after January 17, 197:3; and
( 4 ) l:i..a.Lf.!.ml~~ecl. citizens.- They refer to those who were originally citizens of another country, but wh o, by an intervening act (i.e ., nat uralization), ha ve acquired n ew citizenship in a different country.
SEC. 3. Philippine citizenship may be lost or reacquired in the manner provided by law. Loss of citizenship.
A Filipino citiz<>n may lose h is citizenship in any of the fo llowing ways and/or events: (1) Y!.)l,;:_'.:s!:LU
f:·a
They are: ~~P . 1 ~:._;
h·.· naturalization in a foreign country (see R.A. No. 9?25, in-
l.
111
by
~pr~renunciarion.of. citizevshi.p ;
'f ) b~ s~l?.~_c.E!l?~!J.gJ5L~.D..Jla.th 0f aJlegia~ to support the constitul ion
a nd laws of a fore ign country; and
(li) by t !:1.o..de:rin.g. s.ervice to, or .ac.cept.ing..commis~n in the armed forces of a fo reign country (except under certain circumstances); and !2) } rHJQluf!tp,ril;y. - They are: (a:) by_ ~J.t~~UaJj
and ··
......
--· -·
(b) by having been declared by competent a uthority, a desert~ in th e Philippine armed forces in time of war. ·- - - -- The voluntary loss or renuncia tion of one's nationality is called ~xpatria
tion.. In time of war, however, a Filipino citizen cannot expatriate himself.!
'Sec Sec. 1, C .A. No. 63, as amended by R.A. No. 106, 2039, and 3839.
ART. IV.- CITIZENSHIP
Sees. 4-5
137
Reacquisition of lost Philippine citizenship.
Qjti.Z.~!!.SN.P...l.!l~.Y .. ~e. rP;~.9..uir~.Q: 2 (.t) By IJ:S,till'JJ...li~~.t.ion, provided the applicant possesses none of the disSualifications provided in the naturalization law;3 ~2) By r~~tr_iatiQn ..Qf_d~s~u:ters of the Philippjne armed forces and women who lost their citizenship by reason of marriage to an alien, after the termination of their marital status; and
j~) By d.irec.t act of the Congress of the Philippines. ~6epatriatiag;ds effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and registering the same in the proper civil registry. , . cih'ttl'IJ'I'l•n ~111 JKCJC<~>~~>fl:' ,,qt.,,,:cdl7L-.. 1'?ftn~
'"' \'V
· . "'(·:'1\e. "
1JS . "'' 1•1' I r\~
,1
t ,... f'.,J1 fr.t~ 1\ (Jo.~'~~ ':;·~ '[\-.
(!-<~· ·
T
1
\
'
SEC. 4. Citizens of the Philippines who marry aliens shall retain their citizenshipt unless by their act or omission they are deemed, under the law, to have renounced it. Effect of marriage of citizen to an alien.
Under Section 4;~' citizen of the Philippiues who marries an alien does not lose his/her Philippine citizenship even if by the laws of his/her wife's! husband's country, he/she acquires her/his nationality. The e~!!-~p_tiqn.J~. wh~r~H~'b.): ..th.cir_ ru:Lor_..omissiruLthey areH . deem.ed, .r.e.ru>.unte.d .the.ir..ci.ti.zenship," such as (under an existing law) subscribing to an oath of allegiance to support the constitutjon and the laws of a foreign country. A Filipino woman, who upon marriage to an alien acquires his citizenship, will possess two citizen~hips --Philippine citizenship and that of her husband. 'l.~
SEC. 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Dual allegiance of citizens.
Section 5 prohibits more particularly naturalized Filipinos from practicing what is called "dup.l all~e" which refers to the continued al1egiance of naturalized nationals to their mother country even after they 2 Commonwealth Act l':!P· 63, as amended. grr.,; the rn11nner by which Philippine citizenship may be lost and rt>acquin•d. RA. :\c.. 9225 ·cn(ro • allows natural-born citizens to rt>tain their ~:iti:z.cnship aft"r being naturaliz('d in a for<>ign country, amending C.A. No. 63 undt>r which natural horn Filipino$ who become nd citizens of another country automatically lo!;e their Filipinu f.'itizemhip. ~c.A. No. -tn.
1!:18
TEXTBOOK ON THE PHILIPPINE
CO~STITUTIO N
Sec. 5
have acquired Filipino citizenship. It is declared inimical to national interest, and Congress is r equired that it be dealt with by law. 1 D..M.c.ll._Q.i1j~ensf!ft!, on the other h and, refers to the possession of two citizen ships by a n individual, t h at of h is original citizenship and t hat of the country where he became a naturalized citizen . Note that what Section 5 prohibits is not dual citizenship (see Sees. 1[21 , 4 .) but dual allegiance of citizens. Du al citizen~hip arises because our la ws cannot cont rol la ws of other count ries on citizenship. While it is not per se objectionable, the statu s of dual citizenship m ay be r egulated or restricted by law where it is conducive or could lead to dual allegia nce.
In t he case of public officers a nd employees, whether elective or appoint ive, dual cit izenship may btl const it utionally pr ohibited by law for as public servants, th ey are required to serve the people "with utmost x x x loyalty" and "act with patriotism" (Art . X!, Sec. 1.i in t he performance of their duties and functions . fletention and reacquisition of citizenship.
; \;. F ilipinos abroad m ay now acquire dual citize nship. ~:~·. N.q.__922§, the "Pt izenship Re tention a nd Re-ac g,u ~~.i_t_~n A c_!,_Qf 200 3~' J ap proved Augus t 2.9,.-2603.),..deClares1 tthe -poilcy. of the State that all Philippine cit izens who become citizens of a nother country shall be deemed not t o have lost their P hilippine citizenship under the conditions of the Act. ( 1) RetenJ. i!J rL.Q/. P~ iljpp~n~. c~t izensh ip. -- Any provision of law to the cont r ar y notwithstanding, natur'iil -bofii~ citizens of the P hilippines who have lost their Philippine citizenship by r eason of their naturalization as citize ns of a foreign count ry are deemed to have r e-acquired Philippine citizenship upon t aking th e fo llowing oath of allegiance to the Republic:
"I _, solemnly s wear (or affir m ) t hat I will support a n d defend the Constitution of the Republic of the Philippines a nd obey th e laws a nd legal orders prom ulgated by t he duly constituted au t horities of t he P hilippines; a nd I her eby declare that I r ecognize a nd accept t he supr~me a uthorit y of t he Philippines a nd will maintain t rue faith an d allegiance thereto; a nd tha t 1 impose t his obligat ion upon myself voluntarily without mental reser vation or purpos e of evas ion ." The nat ural-born citizens of the Philippines who, after t he effectivity of the Act , become citizens of a foreign country shall r etain their Philippine citizenship upon taking the aforesaid oath . ·
'The insertio n of t he provision was directed mainly to le ading members of the F ilipino· Chinese comm un ity who contin ued to maintai n the ir close ties wit h either the Re public of Chi n a 10r Taiwan · or the P eople's Re public of China on t.he m a inland t h rough massive econom ic in \' eStment s and ope n polit ica l act ivit ies there. It was clai med that the Federation of Filip ino-Chine::e Chamber of Commerce (FFCCC) wa s even r eprc»ent e d in the Legislative Yuan of Taiwan .
ART. IV. -CITIZENSHIP
Sec.5
139
(2) Derivative citizenship. -The unmarried child, whether legitimate, illegitimate or adopted, below 18 years of age, of those who re-acquire Philippine citizenship upon effectivity of the Act shall be deemed citizens of the Philippines. (3) ~CiYil_s.md.pol.i..tic.u.l.r.ights andliJJbiliti~.- Those who retain or reacquire Philippine citizenship under the Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(.e.) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, R.A. No. S189, oth~rwise known as "The Overseas Absentee Voting Act of 2003," and other existing laws; ~) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;
~{) Those appointed to any public office shall subscribe and swear to oath of allegiance to the Republic oi the Philippines and its duly constituted authorities prior to their assumption of office. They must renounce their oath of allegiance to the foreign country where they took that oath;
an
~J) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (e-) The right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:
Of are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (2) are in active service as commissioned or non-commissioned officers in the armed forces of the country of which they are naturalized citizens.~ Rights with corresponding obligations .
.Jjitizens should realize that for every right (see Art. III.' there .must be a c8rresponding duty. If the people are aware not only of their rights but also of their obligations, there will be less misunderstanding and less conflict in society. One of the reasons for the turmoil and ferment in many countries is the attitude of demanding one's rights under the law and yet being forgetful of one's duties as a citizen. 2
Secs. 2-5, R.A. No. 9225.
TEXTBOOK ON THE PHILIPPINE CONSTITUTWN
140
Sec.5
Rights become fully available for enjoyment only when all the ~itizens, without exception, comply loyally with all their obligations. The rights to life , liberty, and property, for instance, are but partially available for enjoyment so long. as there are members of the political community who are deficient in that necessary complia nce. Conversely, the enjoyment of rights becomes ample and real to the degree that the citizens willingly carry cut their obligations. a Dut.i.e~. ~-l'!.d~blis.~tiol'!_s ..of .£.i!~~r:'-~·
Among oth ers, the more important duties and obligations of every citizen in a democratic society are enumerated and explained below.
(.:() To be loyal to the Republic. - By loyalty, we mean faith and in the Republic and love a nd devotion to the country. The citizen must be proud of his country, its customs, traditions, language , and institutions . H e must share in its glories and feel sad in its misfortunes. 4 It is the "home of our people, the seat of our affections, and the source of our happiness and well-being." 5 A citizen owes, not a qualifi ed a nd tempor"lry, but an absolute and permanent allegiance which consist s in the obligation of fidelity and obedience to his governmf:nt. 6 He must not commit any act of disloyalty, such as treason, rebellion, sedition or other s imilar act. On the contrary, the citizen mus t be willing a nd ready whene,·er necessary to cast his life and fo rtunes in defense of his countr y. · (2) To defend the State. - Men may differ and do differ on religious beli~-fs and creeds, government policies, the wisdom and validity of laws, even t he correctness of judicial decisions and decrees , but in th e field of love of country, n ational unity, a nd patriotism, they can hardly afford to differ for these are matters in which they are mutually and vitally interested, for to the m they mean national existence or survival as a nation or national extinction .' confiden~e
"Love of country, however, is not shown by words but by deeds. It is not an occasional virtue to be exhibited new and then; it is a flame that should be kept constantly aglow in our he arts. It m~ans an unflinching determination to se rve and defend one's country at all times and a t. all costs."-!! The citizens receive benefits and protection from the State of which they are a part. In 1·eturn, it is their primary and honorable duty to defend it against any peril, whether from within or from without. (see Art. II, Sec. 3.) ~J.P.
Laurel, Forces that Ma ke a Nation G1·eat, p. 10. •See G.F. Zaide , op. cit., p. 263. ~Code of Cit izenshi p and Ethics. 6 Laurel vs. Misa, 76 P h il. 372. 7 Ger ona vs. Sec. of Education, 106 Phil. 2. SJ.P. Laurel, op. cited, p. 12.
ART. IV. - CITIZENSHIP
Sec.5
141
(.3) To contribute to the development and welfare of the State. - The development and welfare of the State should be the concern of every citizen for he will be the first to enjoy the benefits thereof. Anything that affects the country and the people as a whole indirectly affects him, individually and personally. He is affected by its ills and disorder, its growth and stability.
The citizen can contribute to the development and welfare of the State in many ways- by paying taxes willingly and promptly, by cooperating in its activities and projects (such as the preservation of peace and order, conservation of the natural resources and the promotion of social justice by suggesting or supporting measures beneficial to the people as a whole), by patronizing local products and trades. by engaging in productive work, etc. The citizens should ask not wht~ l. the country can do for them. They should rather ask themselves what they can do for their country. (4) To uphold the Constitution and obey the laws. -The Constitution is the expression of the sovereign will of our people. It is the shrine for all the hopeR and visions fot· our nation. Laws are enacted in accordance with it for the good of all. It is, therefore, the duty of every citizen to defend and respect the Constitution and obey the laws. If the people would disregard them, the government would collapse, and this would mean lawlessness and the di sintegration of the social order. The Constitution contains provisions designed to insure that it is accorded the due respect that it deserves. (see Art. VII, Sec. 5; Art. VIII, Sec. 5[2, a]; Art. IX, B-Sec. 4; Art. XIV, Sec. 3[1]; Art. XVI, Sec. 5[11.) ($) To cooperate with duly constituted authorities. -- Community living imposes obligations and responsibilities upon the individual. The larger interests of the group and the nation that he must serve necessarily involve his own, and he would be recreant to the claims of those interests if he did not actively concern himself with the affairs ofhis government. 9
It is not enough, for example, t hat a citizen should take care that in hi s daily life he does not violate any of the multitudinous rules, regulations, and ordinances of the State. He must also see to it that the laws are observed by the whole community, that the officers of the law attend to their enforcement and properly perform their duties. Supine and passive inaction is worse than actual and flagrant infringement of the law of the land. In the latter case, the law itself provides a remedy and administers a corrective measure to the· erring individual. But the law is powerless to deal with that type of citizen, who is wanting in civic courage that he allows crime to be committed under his very nose without even lifting a finger to prevent its execution or to see that justice is done, who is lacking in civic pride that he tolerates the evil
9
[bid. , p. 85.
142
TEXTBOOK ON THE PHTLIPPINE CONSTITUTION
Sec. 5
and graft in the community without even taking any step looking towards their eradication, who h as such a distorted sense of civic values the.t sv long as his selfish pursuits are not molested, he does not give even a thought to whatever happens to his neighbor or to his fellow citizens for that matter and who does not care a bit whether there was ever such a thing as "government" or not . 10 ~~)
To exercise rights responsibly and with due regard for the rights of
othe~s. -Society is composed of men , each with interest of his own. In the
course of life, the interests of man conflict with those of many others. Amidst the continuous clash of interests, t he ruling social philosophy should be that, in the ultimate social order, the welfare of every man depends upon the welfare of all. 11 It is necessary that the citizen be imbued with a sense of awareness not only of his rights but also of his obligations to his fellow "citizens." He must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith .l 2 The classical theory that "he who uses a right injures no one" is repugnant to the modern concept of social law. For this reason , it is not permissible t o abuse our rights to prejudice others. Thus, the own er of a piece oflan
IOJbid. 1
'A.M. 'l'olentino, op. cit., p. 56. See Art. 19, Civil Code. 1 ~Von Tuhr, 267-268, cited by A. M. Tolentino.. "3 Colin and Capitant, 835-836, cited by A.M. Tolentino. URubi vs. Prov. Board, a9 Phil. 660. 12
Jijfbi d.
'
Sec. 5
ART. IV. --
CITIZE~SHIP
143
from the cult of ease or self-complacency but from the crucible of grim struggle and patient industry." 1 7 It is assumed, of course, that employment opportunities are present, for without them , full compliance with the constitutional mandate cannot be expected. (81 To register and vote. - Suffrage is both a privilege and a duty which every qualified citizen must perform. It is through suffrage that the will of the people is expressed. The quality of public officials and the policies of the administration, indeed the success or failure of the government, depend, directly or indirectly, upon the voters. The constitutional obligation is not complied with simply by registering and casting a vote. It carries with it the duty of using mature and independent judgment and reflection on the issues presented and/or the qualifications and fitness of aspirants for public office. The voters should particularly be discriminating and even skeptical in evaluating the credentials of candidates, especially those for President and Vice-President, because the election of the wrong candidates could adversely affect the lives of our people and the destiny of our nation. They should look beyond their physical attributes and flamboyant rhetorics and what their propagandists make them appear to be, scrutinizing their track record in public office, their experieace, educational background, and leadership qualities, as well as their lifestyle to get a true gauge of their character, capability, and sincerity to serve the people. In short, the voters should judge candidates on the basis of personal attributes (who he/she is), platform (what he/she stands for ), and track record (what he/she has done). In our form of government, where the conduct of public affairs is regulated by the will of the peopl e or a majority of them, expressed through the ballot-box, the importance of suffrage can hardly be overemphasized. "If exercised with purity and noble purpose, it is the security of popu lar sovereignty. On the other hand , if perverted or basely surrendered because of money and favors," or apathy of the people to the need to guard and protect their votes zealously against election frauds, "it serves instead to undermine the entire edifice of our democratic institutions." 1 ~ The people are the arbiters of their destiny, and if they allow themselves to be fooled, threatened, or bought, they m<)St certainly deserve the kind of government that they get. - oOo-
1
~J.P.
18
/bid.
Laurel, op. r.ited, pp. 4 1-45.
Article V SUFFRAGE SECTION l. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who a re at least eighteen years of a ge, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall h e imposed on the exercise of suffrage. Meaning of suffrage.
.. $yfl.!:!:l:g£ is the right and obLigation1 to vote of qualified citizens in the election of certain n a tional and local officers of the government and in the decision of public questi ons submitted to the people. Nature of suffrage. (1 ) ~....!.:rJ:ereprjyilege. -Suffrage is not a natural right of the citiz e n~ but mer ely a privil ege to be give n or withheld hy the La wmaking power s ubject to constitutional limit ations. Suffrage should be granted to individual s only upon the fulfillment of certain minimum r.onditions deemed essenti a l for the welfare of society.
(2) ~pc~hffqJ:/Jf:.glJJ. - I n the sense of a right conferre d by the Constitution , ~lli.fr1l~~j.§...cl~~ifie.d..a.s..a...p!ilitic£.Lr!&ht., enabling every citizen t o participate i n the pr ocess of government to a ssu r e that it d erives its powers from the consent of t he governed. ~ (see Art. II , Sec. 1.) The pr inciple ~s t h a t of one m a n, one vote. (supra.)
Scope of suffrage.
Suffr age includes : (1) .f.J~£ff01_L_._ - Strictly speaking, it is the means by which the people choose the ir officials for definite and fixed periods and to whom they
'It is not, h owever, manda tory. J'ungutt
2
144
ART.V.--SUFFRAGE
Sec . 1
14 5
entrust, for the time being as t h eir r epresentatives, t he exercise of powers of government;:~ (2) ..:f.le.kiscit~. - It is the name given to a vote of th e people expressing their choice for or against a proposed law or enactment submitted to them. In the Philippines, the term is applied to an election at which any proposed amendment to, or revision of, the Constitution is submitted to the people for thei r ratification. (Art. XVII, Sec. 2.) Plebiscite is likewise required by the Constitution to secure th e approval of the people directly affected bef::~re certain proposed ch anges affecting local government units may be implemented (Art. X, Sees. 10, 11 , 18.); ( 3 ) ..Rfl&re.nd.1JJ!1. - It is the submission of a Jaw or part thereof passed by t h e national or local legislative body to the voting citizens of a country for th eir ratification or rejection (see Art. VI, Sec. 32.);
(4) {!!:!ti.ali.ne. -·It is the process whereby the people directly propose and enact laws. Congress is mandated by the Constitution to provide as early as possible for a system of initiative and referendum. (]bid.) Amendments to the Constitution may likewise be directly proposed by the people through initiative (Art. XVII, Sec. 2.); and ( 5) ~ - It is a m ethod by which a publ ic officer may be removed from offi ce during his tenure or before the expiration of his term by a vote of the people after registration of a petition signed by a required percent age of the qualified voters. (see Art. X, Sec. 3.)
Qualifications of voters.
He must be: (J) a citizen (male or female) of the Philippi nes; (.2) not otherwise disqualified by law;
(a} at least eighteen (18) years of age; and C 4~ have r~sided in the Philippines for at least one (1) year and in the place wherein he proposes to vote for at least six (S) months pre<.:!:'ding the election.
Age qualification. Obviously, there must be somE: minimum age for \"Oting. ~o one, no m atter how ardent his be hef in clcmo,~ racy, has ever conte ndt?d that hum aT' beings must be permitted to part.ir:-ipate in the s election of public officia ls from the day of their birt h . Th i::. _,;uffrage qualifi cati on is hased on the assumpt ion that under a certain nge, human beings do not have the maturity . experience, education, and sense of judgment that will enable them to vote with any reasonable degree of intelligence.
~Ga rchitorenji
vs. Crcscini . 39 Phil.
25 ~
146
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 1
No general agreement exists as to the exact age at which the individual supposedly attains the maturity sufficient for political participation. While ther e is a minimum voting age in every state, no country, however, has as yet seen fit to set a maximum age limit. 4 Residence qualification.
A vo~r. must have been a permanent resident of the Philippines for at least on~JH-year preceding the election. Six (i) ·:months residence in a province, city or municipality is considered the minimum length of time within which a person can adequately familiariz e himself with the needs and conditions and the personalities of the locality. Giving him a right to vote before that period, it is contended, will result in unpurposive and mechanical voting. 5 The requirement as to residence is desirable in order tha t registration lists may be prepared and checked in ample time to prevent fraud. 6 Persons disqualified to vote.
The responsibility of determining who may be "disqua lified by law," and, therefore, may be precluded from exercising the right of suffrage, is left by the Constitution to Congress. As to who are disqualified to vote, the law7 enumerates them as foll ows: (}) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or granted amnesty. But such person shall automatically reacquire the right to vote upon expiration of .fiY.e. ( ~) .Y.~fir_s after service of sentence; (.2) Any person who has been adjudged by final judgment by competent
court or tribunal of having committed any crime involving di.s.loya.lty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless r estored to his full civil and political rights in accordance with law. Such person shall likewise automatically rega in his right to vote upon expiration of_five (5) years after service of sentence; and (-!3) Insane or incompetent persons as declared by competent authority.
The above persons are not qualified to vote even if they have the necessary qualifications.
'Schmnndt & Steinbickcr, op. cit.. p. 249. 3 See The Manila Tirnl!fl Guide to the Proposed Constitutional Amendments ltn 1973 Constitution), p. ao. 0 Jacobscn >lnd Lipman, ()p. cit., p. 82. 7 The Om nihu~; Election Code of the Philippines lB .P. Big. 881.), Section 118.
Sec. 1
ART. V.- SUFFRAGE
147
Arguments justifying the lowering of voting age from 21 to 18.
The following have been given: (.1) It has t h e effect of broadening the base of democratic participation in the political process; (~) The voting age of21 years is as old as the Roman Empire; therefore, it is obsolete; (~) It is the (alleged) findings of medical science that today's 18-yearold is physically a t least 3 years a head of an 18-year-old of 1900; (~) The communication media explosion has resulted in making 18year-old citizens better informed than their parents;
(5') The Philippines is becoming an increasingly young country and the youth are more idealistic and are more change-oriented than their elders; (6.) The objection that 18-yea r-old citizens lack the maturity to exercise a n important political right widely is at best a debatable question; (7) If at the age of 18 one can enter into a marriage contract, which is the most important in the life of a person, there is no reason why an 18year-old should not be permitted to vote; (8) If at the age of 18 one is mature enough to fight in defense of his country, he is old enough to be given a voice in the determination of its public policy; (9:1. By including those under 12 but at least 18 to vote will make them feel that they are part of the decision-making process and thereby at least increase their loyalty to our institutions; and q,O) Voting is the major if not the sole participation of common citizens in the political process of the State. It is, under present circumstances, the most effective medium for securing consent to or rejection of government short of extra-constitutional remedies. The smaller the number of elector s in a particular community, the more limited the basis of consent . The reduction of the voting age is consistent with the theory of popular sovereignty which is one of the fundamental premises of our government." Arguments justifying removal of literacy requirement.
The 1973 Constitution"removed the requirement under the 1935 Constitution on ability to read and write such that then as now an illiterate person has the right to vote. The illiterate voter is not necessarity an ignorant voter. The arguments for its removal have been summarized9 as follow s:
•see 1970 UPLC Constitution Revision Project, pp. 219-225. 9 By the late Senator .Jose W. Diokno.
148
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 1
"This requirement 1that a voter must know how to read and write] cotJfuses literacy with intelligence. and learning with wisdom. A Filipino does not cease to be a !t'ilipino because he is ilUterate; a man pays taxes and he bleeds and he dies for his country whether he signs his name with a flourish or with an "X." Some 28% of our people- roughly about 4.3 millions among us who are more than 21 years old - are illiterates. They cannot, it is true, read newspapers or magazines but they listen to the radio; they join conversations and discussions with their neighbors at comer stores, at cockpits, and over the family wash; they know what is happening in their community and in the country. Yet they are denied the right to take part in their government and to help shape their destiny. Should we wonder that they would feel little loyalty to our democracy, and fall victims easily to the evils of other ideologies that falsely offer them the dignity of helping to shape th~ir destiny? Granted that to give them the right to vote may pose practical problems of how their votes could be cast and counted, but these problems are not insurmountable. After all, our first election law did not require literacy in order to vote- only property. Later on, property ownership was eliminated and literacy substituted. Thus, from the rule ofthe properties we pass to the rule of the learned. It is time we effect the rule of the people." 10
Property requirement prohibited. Under the present Constitution, Congress cannot also impose property requirement for the exercise of suffrage. (Sec. 1.) • (1) Property ownership .nl!.t.P: _t~§.t qf.gJLi:fl_dividual's caJl.aY..~ -The justification.for the abolition of property qualification is the assumption that ownership of property, per se, neither adds to nor detracts from a man's capacity to function properly and fully as a social and political being. Today, the argument that only property holders have "a stake in the community" is considered obsolete. It is the h.~man person. .not. property, that is to be represented, and given primacy in the hierarchy of values. 11 (2) P.r!!I!J~rty_r.e._gy.t_rgm_ent
J.llJ.n:t?nt. - The imposition of property qualifications on the voters would be inconsistent with the very nature and essence of our republican system of government ordained in our Constitution, for said political system is premised upon the tenet that sovereignty resides in the people and all governmental authority emanates from them (Art. II, Sec. 1.), and this, in
1
"1970 U.P.L.C. Constitution Revision Project, p. 222. "Schmandt & Steinbicker, op. cit., p. 253.
Sec. 1
ART. V . -
SUFFR AGE
149
tu rn , impli es necessar ily th at the righ t to vote a nd to be voted shall not be depen dent upon the wealth of the individual concern ed. J~
(3) fropg,_{y..r.f!.qi..J-i.rf.rn~en_t ,_i '}t;f!!.~ si~J...~n ~..!!'!th _s_oc_ial l'!:!_~ice P!!'!~ieJe. . ~;5oci a l justice presupposes equal opportunity for all, rich and poor a like.'\. (see Art. XIII , Sec. 1. ) Accordin gly, n o person s h a ll , by r ea son of poverty, be
denie d the chance to vote and t.o be elected t o public office. In a case, t he Supreme Court deda red a s unconstitutional a law 1 l requiri ng a ll candidates for public offic es to post a s urety bond e quiva!ent to th e one (1) year s ala ry or emoluments of the position for whkh t hey a r e candidates which shall be forfeited if t he candidates, except when dN:lared winner, fail to obt ain at le ast 10% of th
Congress is prohibited by t he Constitution to impose additional substant ive (not procedural) requirements for vot ing similar in nature
literacy or ownership of pr1>perty. (Sec.
1.)
to
Examples are:
( 1) EdY:~g_t,iQll._ - As a general principle, the more ed ucation a man h a s , the better and more valuable m ~mb er of socie ty he will be. Yet it is quite possible for a per son to become an important asset t o government and t he socia l body with litt le or no formal schooling. Formal education itself is no guara ntee of good citizeni'hip or of in telligent voting. r'urthe r more, the r equir em ent of a high sch ool or even an element ary e ducation would disenfranchise large segments of the poorer classes of our population. ' 1
(2) Sex. - The a ntagonis m in the past to female s u ffrage stemmed in some d"egre e from tho belief that a woman's place was in the h ome and tha t the performa nce of public dutie!> was the function of t he male members of the family. In other cases, t h e opposition was based on political expediency rathe r than o n principle. At the present t ime, unless one is willing to contend that women, simply by virt u e of t heir womanhood, are incapable of free a n d intelligent socia l and political activity, t her e would seem t o be no adequate or justifiable basis fo r depriving them of equa l voting r ights with menY' (3) Taxpaying a!Jj_lity. - This re ::;triction is rela ted to pr operty requirement for..votlng~--C-ongr~ss cannot by la w deny to an individual t he right to vote on th e groun d that he' is exem pted from tax ation or is not li able to pay t ax or the t axes paid by him or for which he is lia ble d uring t he year a re below a specified a mou nt.
' ~R. A.
No. 442 1. vs. Rorra, lfi SCRA 7. S qll. 7. 1965. "Schman dt and Steinbicker , op. cii., pp. 252-255. 16/hi d. ~'~Ma gu era
150
TEXTBOOK ON THE PHILIPPI:--iE CONSTlTUTION
Ser. 1
Compulsory suffrage.
The 1973 Constitution made registering and voting a mandatory obligation of every qualified citizen. 16 Noteworthy is the fact that Section 1 uses the word "may" as in the 1935 Constitution in place of the word "shall" in the 1973 Constitution. In view of the permissive language of the Constitution, it is doubtful whether the failure to perform the obligation to register and vote can be criminally punished. Should voting be made compulsory? (1) Arguments against compulsory ,c;uffrage. - Those who are against any system of coercive voting say that it is not only undemocratic but that no useful purpc.se would be served by dragging the people to the polls against their will. They maintain that it is not the size but the quality of the vote cast that is important, and that 1ndividuals forced to exercise suffrage might do real injury to the public good by voting blindly and unintelligentlyY There is no means of compelling a person to vote intelligently or to study the personalities and issues involved in an election. 18
Even assuming that the voter has the r ight to invalidate his ballot by leaving it blank, still it would prevent those who feel strongly against the candidates or the particular manner of holding a n election from expressing their moral indignation by openly boycotting the election and persuading others to follow suit. 19 (2) Arguments in favor of compulsory suffrage. - The proponents of compulsory suffrage, on the other hand, contend that a requirement that would force an apathetic individual to the polls would make him aware of the responsibility that rests on him and would encourage him to becQme acquainted with the issues and personalities involved in the election. Once inter est is awakened by actual participation, the matter of coercion, they feel, would become a secondary motive. In the Philippines, for instance, it is not u:::~.common to see political leaders dragging- their constituents to the polls on election day. This shameful spectacle will not take place if suffrage were an obligation. It should be noted that people are more prone to sell their votes if they depend on politicians to bring them to the polling places. Furthermore, compulsory suffrage is the only way of assuring the accurate representation of the will of the people. If suffrage were not exercised then, the theory of popular sovereignty (supra.) would become a myth. In the long run , the participation of the people in the government t hrough the ballot is more important than the result of an election or a
1 "Article VI, Scctior> 4 of the 19n Constitution provideE>: "It shall be the obligation of Q\•ery citizen qualified to vote to register and cast l1is vote." 17 Schmandt and Steinbicker, op. cit., p. 257. tP.Jacobse n and Lipman. op. cit. , p. 87. 1 !Yl'he !.\1anila Time;; Guide, supra, p. 32.
SP.c. 2
ART. V. -- SUFFHAUE
plebiscite. A defaulting maj ority will only by a voting mia01·ity.
mak~
151
possible a government install(>d
Unfortunately, no definite study has as yet been made of the effects of compulsory voting in any of t he countries which employ it. Hence, there is no way of actually determining whether the obligatory franchise improves or d etracts from representative government.:!<)
SEC. 2. The Congress sh all provide a system for securing the secr ecy and sanctity of the ballot as weU as a system for absentee voting by qualified Filipinos abroad. The Congress shall a lso design a procedure for t h e disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the s ecrecy of the ballot. System for securing the secrecy and sanctity of the ballot.
The right t.o vote has r efer ence to a consti tutiona l gua1·antee of the utmost significance. It. is a right. without which the principla of sovereignty residing in the pc~opl(~ (Art. II , Sec_ 1.) becomes nugatory.' It is essential then to insure that the voters !'ha ll exercise their right freoly , "uninfluenced by threat s, intimidation or corrupt motives" and "to secure a fair and honest count of the ballots." 2 To accomplish this aim, Congress is dir('cted by the Constitution "to provide a system for securing the secrecy and sanctity of the ballot." With the enfranc.hi~('m ent of the illiterates and the cxis tcncl' of many diflabled voters , this responsibility of the legislative body assnmt':> mor l' importa nce. The sanctity of the electoral process requirflS secrer~: of thevote. Cong1·ess will have to enact a law prescribing proc:t>dures that wi ll enable the disabied and the i lliteratcs to secretly cast thf!i r ballot:; without requiring the assistance of other persons, to prev1mt th ~:: m fr
~"Schmandt.
and
su~inbic kc-r,
"r>.
l"i! .. p. 257 .
'See Pungut.an v;;. Ahubakar, L-:3illi4l, .J.ln. :.!···,. L<:-.! G:\rdine-r v~. Romulo. 26 Phil. 521. t•Jn ma ny progres;.;ivo n>tmtries with ro:~·ri·;.t·cr.~;,,. !<,rm,; •o f f;i\\"Pr n nwnt., :.he vot;:ors m t:~rely pnsh button;;: or <;h()o;;e amon;; the c<,jc.r.:·::i :•.<, lr. ordcr l!l vot ~:: Lhf;'y de• t•ot havc to 2
wr·it e 0 (\tnes of candidat<•s on tht' bt~llot.
1fi2
Tf~XTBOOK
S ec. 2
ON THE PICILIPPl NF. CONSTITLITIOK
Until Congress provides for the appropriate procedure, they shall be a llowed to vote under the exi s ting law and such rules as the Commission on Elections (Art. IX, A-Sec. 6, C-Sec. 2LJ J.) may promulgate to protect the secrecy of the ballot. This prevents their disenfr a nchisement while the law referred to h as not yet been en acted by Congresfi . System for absentee voting by quali1ied Filipinos.
Section 2 extends the ri ght of suffrage even to Filipinos abroad provi ded they possess all the qualifications mentiono.d therein and none of tlw disqualificat ions provided by law.4 Filipinos who by force of circumstances (e.g., the need to earn a living) have to temporarily work and reside abroad but maintain their love and loyalty to their native land are still part of our Republic. They are also affec ted by the qua lity ofpublic officials and the policies of the government. 'I'hey remain lia ble to pay taxes, a nd arc subj ect to many of its l aw~;. H ence, t hey sh ould a lso be given the constitutional r ight to vote ..> Congress is mandated to provide a system of absentee voting by qualified Filipinos abroad. It is hound to set aside funds a nd othf!r r equirementR for the purpose a nd to provide safeguards to ensure that t~1ection s overseas are held in a free , dear and ord erly manner.''
- oOo .-'
'Lo.cal..alls.cJllJ'II: vnti.rul_is provided ~mdcr R.A. N<1. 7166 !~ov. 26. 1991 J wh ereby government official ~ nnd employees, ind uding mcmbf!r~ of the Armed Forcc.-1 nf the Philippines (AFP'> and th e Phi li ppine National Police (PN Pi. who are r egis tered vott~ r;;, ;1n a llowed to vote for the po~;i ti<.>nt; of President, Vico-Prt>siden l, and Senato r;;, in place!; wht>ro they are nnt. registered hut. where they are t empora r ily assignerl on election clay l.o p~rfonn elcct.ion dut.y. The snow privilege is given tq. teachers assi gned to pe;·for m poll duty in placN; whP.re they arc not rP.gi,;t.er ed. ·'The· Con.•t.it.ut.ional Commission inl.~ nded t.o benefit pnrticuiMly F il ipino c·•>JHract. workers in the Middle J::ast, Africa, Asia, th e Americat< and Eu rop<~. who have b~en earnin~ and remitting billiom:< c1f dollars a year. SAri(ms JH·oblems and co mpli <'verbial g r<'E'ncr pas l u r t>/; ilhroad and ha vo indicated more than I million J'ilipin o immigrant l', and 11bout 500.000 have rn ana~ed to c:nter and rem ain illegally. according to T:.S. im migr ation official.~. ThE> Filipinos constitute, in fact, the higg<:>st group o1 A!iian immigrant:::. lllvide;; for a systcrn nf overseas absentee voting h~.. qu:Jtifi>?d cir.i;r.rns 11 hr'.lad . .For purpOS':'l' :>f t he Art, t;J.b3en.~...ua.t.i.IJ.g refers to th e process by which q ualified •: i ~i ;o.ens of thc Phil ipp i m~s :1broad exE' rci!ir righ t t.o vot e. All citizens of t.he Philippine!\ aln·oad. who arc not ntherw ise disqual ified by law. a t leas t. l H yean uf a j!c on t.he dar of electi ons, may vote fn.r Ntl ~.i.d_!!.r!~ . vice-president. ,.enators and 2art.v· list. re>prc· .i~nlinive.s. The law enumerates who ~
;., ,
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'~~·
Article VI LEGISLATIVE DEPARTMENT SECTION 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. Meaning of legislative power.
Legis/olive power is essentially the authority under the Constitution to and subsequently, when the need arises, to -~and -.;epea1 them. 1
~laws
It is the peculiar task of the legislature to prescribe general rules for the govern ment of soci~1 ty. This legislative fun ction involves the determination of the legislative policy and its promulgation as a defined and binding rule of conduct 2 through the enactment of a law.
Meaning of law.
The term laws, as nscd above, refers to statutes which are the writtt>n enactments of the legislature governing the r elations of the p1:ople among themselves or hetween them and the governm ent a nd its age11cies. Function of laws.
·,
Through laws, the legislature defines the rights lind rlutie!:' of citizen:::. imposes taxes, appropriates funds, defines ..crimes and p1·o\·id e ~ fM th ~ir punishment., creates and abolishes government office~. dett:!nnin.:·;; their jurisdiction a nd functions, and in general, regulates hum an co nduct and the use of property for the promotion of t he common gc>(Jd. Such laws are valid or void, a s tested by tht.·ir conformity or nonconformity to the Constitution. 'The law!; mu;;t. be in keeping with the tim<:'s. Wh :11 i ;; l<';:i<\ l i; r.•-t r;e ,·.:~;:a r i ly just.. or may hecome unj 11!>t because of changed conditions. Law;: t~r.a.;t ed 10 p~· ·m;:otE- ju;;tic<' may in:; t.ead serve to pmmote or perpetuate inj ustioo. Tha t is'' hy ex:.• tin~ l>!w.-; rna~· need amendment or revision, or h ave to be repealed . .:sec Ocr,ei1a v::;. COMELEC, 95 SCRA 75.5, .Jan.~~. 1~1.:.u . 153
TEXTBOOK
154
0~
THF.
PIII LIPPI~E
CONSTITUTION
Sec. 1
Legislative power vested in Congress.
By granting th t~ legi ::
Among the argumentA propounded in favor of bicameralism are:
l.lJ A ~;econd chamber (Senate) is nccel';sm·y to serve as a check to ha::>ty and ill-considered legi slation: C2) It serves as a training gr
(3) It ests;
provide>~
a
(4) A bicameral big interests; and
r~?.pres entation
legi~la t ur<~
i!'
fo r both
l es~
r·.~ gional
and national inter-
susceptible t o bribery and control of
(5:1 It is the traditional f<.lrm (:!f legislatiYc body dHti r.g from ancient times; as sueh, il has be en tested and proven in the crucible of human expe rience. 4 Disadvantages of bicameralism.
Some of the argument.:; (1 ) The bicameral machinery;
ag ain~t
~ et- up
it
has not ,,,...orkGd out a s a n effective fi::>caUzin g
(2> Although it affords a double consideration of bill s, it is no assurance of better com;iden~d and be tter deliberated legislation; (3) It p1·oduces du plication of efforts nnd serious of!.adlocks in the enactment of important measures with the Coufere.ru:c._C.\llnmit.t.c-~ of hoth
l egLJ atur ~;> an~: it is morn ~;conomical · legisla t ion is a('h ieved . Its clisaduanlag••.~ ar,1: thern i;; 1111 ch P.Ck aga in.<:s t h a sty and ill -con sidtr ed Jegis lnti<"l; ~tnd it i;; more su sceptible
"Con .• irlered the ad,.>OJI/op,•:; of
lt
u ni<·:unE.'r:> t
re~pOII!lihil ity is P.a s il y tixl' cl: o. nci prompt ~ction in
to the infl•I\-n ('t> of big
int~1-csts.
The main !'Cn•wn, hc.wcvt-r. fM plir>g· a unicameml ll"jpsl aLun• in the 1973 ConRtitu· LiN1 i:: th:\t· it wa:; <:l<·t'ln<~d mr,rc s u il, tained with t.hf! instituti.m of ll m cHiiliPd parliament.ary syst~m by the 19kl c•mstitution<) l !HIH:rH.hnent..c:.
'rh-: Constitutional Co mwi ,;sion ,,-hil:h clraft.••d the prns1:nt. Co n~; titutio al· voted 23·~2 in fnvor ef bicumerali~.m . ·' 1886 UPL C0nslirut i•Jn l'roj t~c t, Legi~ lative l>f.'partm<:nt., pp. 6 -8,
Sec. 1
ART. Vl. ·- LEGISLATIVE DEPARTMENT
155
Houses, derisively called the "third chamber," practically arrogating unto itself the power to enact law under its authority to thresh out differences; (4) All things being equa l, it is more expensive to maintain than a unica m eral legislature; and (5) The prohibitive costs of se natorial elections h ave made it possible for only wealthy individuals t o make it to the Senate; a nd as to the claim that a Senate is needed to provide a training ground for future leaders, two of our Presidents5 became chief executives even if their service was confined to the H ouse of Representatives. 6 Scope of legislative power of Congress.
A grant of legislative powt1r means the grant of all legislative powers7 for a ll purposes of civil government. 8 Accordingly, the legislative power of Congress, except to the exte nt reserved to the people by the provision on initiative and referendum (see Sec. 32.), may be characterized as plenary or general (not enumerated) subject only to specific limitations in the Constitution. Th e delegated powers of our Congress are broader t han the American Congress. The latter's legislative powers are confined only to those granted by the Federal Constitution. Hence, powers not granted or powers that cannot be reasonably implied from the granted power s are denied to the American Congress. Classification of powers of Congress.
The primary function of Congress is to legislate. The Constitution, however, has also expressly given it powers which are non-legislative in character. Th e powers of Congress may be classified into: (1) .Ge_71,_~mU?gj§.Jat~~- 11.9.W_g.r. - I t is the power to enact laws intended as rules of conduct to govern the relations among individuals or between the individuals and the State. Congress can enact any law as long a5- it is not contrary to the Constitution. Unl~othru:wisedecre.e d_by a competent
.£ourt..Q .li:!.W..i~. Ptg§_q.ro..~ ..k..oos.titu t.iQ.nal. (2) &?!!.2fi£q_p~-~l!!.§.o. - They are powers which t.he Cons titu,rion expressly directs or authorizes Congress to exercise like the power io choose who sh all become President in case two or more cand idate.:: have an equal and highest number of votes (Art. VII, Sec. 4, par. -t. 1. to confirm certain appointments by the President (!bid., Sec. 16. '·• to promote social justice ' Ra mon Magsaysay and Dios dado Macapagai 1 ' 1986 UPL Constitution Project, Lcgislattn Depa r~:nent . pp. H-11. President C. Aquino is a plain housewife without any ex pcrie nc:(• m tht: goq~rnment . 70campo vs. Cabangi!>. 15 Phil. 626. RQ cccna vs. COMELF.C. :::c,p,·a.
I ,., ,
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156
'
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TEXTBOOK ON THE PH!LIPPINI<: CO:\'STITUTTON
Sec. I
iArt. XIII, Sl!C. l.); to declare the existence of a state of war (Sec. 23[11. ), to (· impose taxes (Sec. 28l1J.}~ to appropriate money (Art. 29[l]. );"to impeach . (Art. XI , Sec. 2.}, to act as a constituent assembly (Art. XVII, Sec. l.J, etc.; ( 3 J 111J.P.Lie_f! _ po~cers. - They arc those essential or necessary to the effective exercise of ihe powers expressly granted, like-the power to conduct inquiry and investigation in aid oflegisla tion (Sec. 2l.)(to punish for contempt, .to determine the ru)es of its proceedings (Sec. 16[31.), etc.; and
( 4) frl.h.er.ent .P.DW_ers. - They are the powers which are possessed and can be exercised by every govern ment because they exiRt as an attribute of sovereignty. In other wo rd ~, t hey a re al ways deemed conferred by the people even if not expressly granted by them in t he Constitution. These powers which are legislative in nature are th~ · powcr of taxation, ·p'ower of eminent domain, tfnd police power_ll They fall under the generallcgif'llative powers of Congr<:!ss. Principle of separation of powers.
(1) Presidential system. - The powers of government, by virtue of this principle, are divided into three (3) distinct classeR: the legislative, the executive, and the judicial. They arc distributed, respt>ctively, a mong the legislative, executive, and judicial branches or de partments of the government. Under t h e princi ple of co-equ al and coordin ate powers among the th ree (3) branches, the officers en trusted with each of these power s are not permitted to encroach upon the powers confided to the others. If one department goes beyond the limits set by the Constitution, its acts are null and void. The a doption of thi ~; principle was motivated by the belief that arbitrary rule would result if the same person or body were to exercise all the powers of government. wThe accumulati on of powers in one person or department of government is considered one of the chief cha r acteristic evils of tyrannical and despotic forms of government..11 The idea is not to set one branch against the other but, above a ll , to promote governmental efficiency by insuring that all functions of government are performed by the people (or branch) especially assigned to discharge them. Under this system adopted by the 1935 Charte r and the present Constitution, the President who is the head of government is elected directly by t he people fM a fixed term of office. (2) Parlia.mentary system. - The three-fold ·division of power is observed in the presidential form of government which is distinguished by the separation of authority between the executive and legislative organs. Under the parliamentary fo.rm, there is a fus ion rather than a separation
3
See "Esscntin i o.- inherent powers of govern men t " u nd(!r J\rtirle III, Section 9. "V.G. Sine<', op. cit.. p. 12S. !tll Am. Jur . :H-!0.
s..... 1
ART. VI. ·-·· Ll::GIS LATIVF. OI<:P:\RT:\.JENT
157
between the two organs so that. in a sense, the iwo are one body performing two governmental functions: policy-making and policy-executing. Under this system, the Prime Minister who is the h ead of government i.:; e lected by parliament without a fixed term of office. (:1) Fnmch presidential-parliamentary system . - This is a variant of the two types of government. The present government of France established in 1958, is known as the Fifth Republic. Its Constitution establishes the familiar organs of a parliamentary system (e.g., a cabinet and Prime Minister) but delegates broad power s to the President a nd places serious limitations on legislative powers .
The Philippjnes, under the 1973 Constitution, as amended, patterned its government after the French system. The effect of the 1981 amendments was to modify the parliamentary structure ordained by the 1973 Constitution without, however, returning the government to the presidential system provided by the 1935 Constitution. What was established then was a form of government which was a middle ground between the two systems- one which established a legislative body from which the Prime Minister elected by it and th e m ajority of the membership of the Cabinet were to be drawn, alongside a s trong President elected directly by the people, who had a tenure independent of the legi s lative body. Principle of checks and balances.
Under the Constitution , there is no absolute separation among th~ three principal organs of government. Constitutional provisions at1thorize a considerable amount of encroachment (tr checking by one department in the affairs of the others. The system of checks and balances is also obsE'rved along with t he doctrine of separation of powers to make the presidential system workable. The three co-equal departments are est.ablished by the Constitution in as balanced positions as possible. To maintain this balance or to r('store it if upset, each department is given certa in powers with which to check the othe rs. Thus: (1) Checks by the President. - The President m ay veto or disapprove bills e nact~d by Congress {Sec. 27ll j.), and through the pardoning power, he may modify or set aside the judgments of courts. (Art. \'II. s~c. 19.)
(21 Checks by Congres.;. --··On the other hand , Congress may override the veto of the President (Sec. 27l l J.); reject cE'rtain a ppoi ntments of the President (Art. VII, Sec. 16.); .r evoke the proc lamation of martial law or sus pension of the privilege of the writ of habi?08 corpu s by the President (Ibid. , Sec. 18. ); and amend or ren1ke deci~ion,;: of the courts (by the enactment of a new law or by an ame ndment of the old, giving iLsuch meaning a nd interpretation as to wipe out the effect of s uch decisions). It has likewise the powm· to d e fine. prt:>::cribe. and apportion the jurisdiction of the various courls iArt. VIII. Sec. 2. !: preBcribe the qualifications of
TEXTBOOK ON 'l'HE PHTLlPPINF.
158
CONSTlTUTJO~
Sees. 2-4
judges of lower courts (Ibid ., Sec. 7[2].); -determine the salaries of the President a nd Vice-Pres ident (Art. VII, Sec. 6.), the members of the Supreme Court and judges of lo\ver courts (Art. VIII, Sec. 10.); ,a nd impeach the P resident and members of the Supreme Cour t. (Art. XI, Sec. 2.) (3) Checks by the judiciary. - The judiciary , in turn, with.the Supreme Court as the fin al arbiter may declare legislative meawres or executive acts unconstitutional (Art. VIII, Sec. 4L21.) and).'determine whether or n ot there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part" of Congress or the President. (Ib id.. Sec. 2, par. 2. )
SEC. 2. The Senate shall b e composed of twenty-four Senators who shall be elected at large b y the qualified voters of the Philippines, as may be provided by law. SEC. 3. No person shall be a Senator unless he is a naturalborn citizen of the Philippines, and, on the day of the election, is at lead thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. SEC. 4. The tenn of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth d ay of June n ext following their election. No Senator shall serve for more than two consecutive terms. Voluntary r e nunciation of the office for any length of time shall not be considered ac; an interruption in the continuity of his service for the full term for which he was elected. The Senate. (1) Composition and election. - It is composed of24 Senators. They are elected at large (nationwide) by the qualified vote rs, as may be provided by law . (_,ec. 2.) Unless otherwise provided by la w, the regular election of Senators shall be held on the second Monday of May. (Sec. 8.) (2) Term of office. - It is six (6 ) years. It shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election. (Sec. 4, par. 1.) The Constitution has a similar provision with respect to the President and Vice-President (Art. VII, Sees. 3 and 4.) except that the hour a nd date of commencement of their term of office cannot be changed by law. (3) Qualifications. - A Senator must be:
(a) a natural-born citizen of the Philippines; (b) at least 35 years of age on the day of t he election (i.e., day of the balloting); ( c ) able to read and write;
ART. VI. -·· LF.(\ JS LATIVE D.El'ARTMJ-~NT
Sec. 5
(d i a
regi~ t ered
159
voter; and
(cJ a resis for not l es~ than l\vo 12; years im mediately pr~::cedin g tlw d ay of th;~ election. USee. 3 .) The above qunlifi.cation::. are heyon
SEC. 5. (1) 1.'h(~ House of Representative s shall be composed of not more than t;wo hun d r ed and fifty member s , unless otherwise fixed by law, who s hall h e elected from l e gisl a tive districts apportioned amoug the provinces, cities, uud the Metropolitan Manila area in a ccorda n ce with the number of t heir t·espective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provide d by law, shall he el ecte d through a
~ s tory ,
Cunni!:t of Law;;, 7t h c d., p.
-~.
TEXTBOOK O:N THE PHILIPPINE
160
CO~STITt !TLON
Sccl;. [,. 7
party-list system of registet·ed national. regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total numbe r of representatives including those under the pat·ty list. For three conse.:::utive terms after the ratification ofthis Constitution, one-halfof the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indig· enous culturE.l communities, women, youth, and s uch othe1' sectors as may be provided by law, except the religious s ector.
(3) Each legislative district shall comprh;e, as far as practicable , contiguous, compact and adjacent territory. Each city with a population of a t leas.ttwo.hundrediifty_.thons.awl, or each province, s hall have at least one representative. (4) Within three years following the r e turn of every census, the Congress shall make a reapportionment of legislative districts hase d on the standards pt·ovided in this section.
SEC. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day ofthe election, is at least twenty-five y e ars ofage, able to read and write, and, except the party-list representatives, a r·egistered voter in the district in which he shall b e elected, and a resident thereof for a period of not less than one year imme diately preceding the day of the election.
SEC. 7. The Membet•s ofthe House ofRepresentatives shall be elected for a tenn of three years which shall begin, unless otherwise prov ided by law, at noon on the thirtietl• day of June next following their e lection. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time sha ll not be considered as an inten-uption in the continuity of his service for the full term for which he was e lected. The House of Representatives. (1 ) Composition and election/selection. - It is composed of not more than 250 members popula:rly known as "Congressmen.'' They are elected from legis lative or coiLgrossional districts a nd through a party -l ist system. The party-list representatives are filled by seleetion or election from the labor, peasant, etc. a nd other sectors as m a y be provided by law, except the religious sector. (Sec. 5(1 j.) G nless othe nvise provided by law, th e regular election of the members of t he House of Repres entatives shall be held on the second :Monday of May.
(Sec. 8. )
t\RT. VI.-· LBGlSLA'I'lVE DEPARTMENT
Sec; . 5-7
161
(2) Term of' office. - .1 ~. ~~-t~z:_c_<:__!.~!_y e_ar s, to begin al ~:>o, unless otherwise provided by law, at noon on tlH! 30th day next follo\ving their election. (Sec. 7, par. 1.) The House of Representatives is intendt:ld to be close to the peop le . T he shorter term of three (3) years is expected to make the representatives more respon1-;ive and sensitive to the needl'i of their constituents.
It is a lso consistent with the constitutional policy of accountability. (see Art. X I, Sec. 1.) If the people had made a mistake in their choice of the incumbent congressman, they would not have to wait a long bme for the opportunity to correct th e mistake by withholding a new man date. (3 ) qua.l_i[i~(l_ii_ons~- A r epresentative must be: ( !l)
a natural-born citizen of the Philippines;
(b) at least 25 years of age on the day of the election; 1 (~)
able to read and write;
(.d) except for a party-list representative, a r egistered voter in the dis trict in which he shall be elected; and
(c) a resident the reof for a period of not less than one ( 1) year preceding the day of the election. y Wt) l'C coerced into submission by "profes~ional politici :10s'' who had be~:ome powerful on account of long t enure. The term lim its for electt'd public officials will level the playing field for canchdates espeeinlly f(•r newcomers to the political arena. Number, election/selection and classification of members. ( 1) The Constitu tion limits to Zli_Q...the maximum number of member i'> the House of Representatives may have. Th e samt~ may be increased by 'The
rr.pre~.-,ntarivcs
appointt>u frorn t.hc youth
1()2
TEXTBOOK ON 'fH:E ? II1Ll i:'.PI:\F.: CO;-,".ST!TU'JON
St)CS. G-7
law. Fixing a ceiling in its m e mbership which ~:annot be changed without constitutional amendment m ay not be practical, for \vhat m ay b f) an ideal number today nHty not he so a nymore in the yE'urs to com<~. As our population g rows, the number uf constituents enlarges and as they incrc!ase in number, ~o does the need for a larger representation of the people in the H ouse of Repl'esentalives if it is t o lw truly represemative of the peop le. (2) The members of the H ouse of Representatives shall be elected fl'om legis lative districts and throug h a pa rty-list system of registered n ational , regional and sectoral parties or ortzanizations. The party-list rcpresentative.s shaJl constitute 20';;; of the n umber of representatives in the lower hou::~e, including t hose under the party-list. (!bid) For three consecutive terms after the r a tification of the new Constitution, on.e -half (I/2) of the seats aliocatod to party-list r~p rBs cnt ativcs shall be filled , as provided by law , by selection or election from the labor, peasant, ut·ban poor, ind igenous C\dtural communities, women, youth and such other sectors as may be provided by law , except the religious sector.a (Sec. 5(2].)
(8) Thus, the members of t he H ouse of Representatives may be classified in to diiltrict, party-list, a nd sectoral reprc:;e ntatives with the last to exist only for three t3) conser.utive t erms after the ratification of the Cons titution. Apportionment of elected representatives. (1) .CIEJ.dWrw. s...h t.aJJJ201:.ti.on.me.nJ. - It i5 a r l:lquirernent under Section 5 th Rt th<~ tlectt~d repre~ent ativeil frnm legislative districts shall be a pportion ed or distribu ted amon g th l' provinces, ci ties and the Metropolitan Manila area suhject to the following conditions:
(~{Such a pportionme nt shail be made in accordance with the number of their r espective inhabitants; QJ) It sha ll be made on the b a!:' is of u uni for m and
prog ressi v~
ratio;
(_c) Each legislative district s hall comprise a s far a s practicable, crmiiguom:, compact and a djacent terr itory;; a nd (d'l Each cit y with a population of at least 250,000 or cac:h province shalt have at least one rep resentativ~.
t2l Ra.tio to be adopted. - Under th ~ Con stitution, th e ratio to be adopted must be uniform, say, tor e xample, one territorial u nit for every 250,000 inha bit anis or fra ction thereof. T hus, ev<~ ry elected rep re ~;~ntati v e
"Executi ve Ord<:r No. 198 \Jun1! 18, 19lfi) provides for t.hc n:anncr cf nomimnion and appoi ntment of f;ectoral representatives. ~This is to prev(: nt the practice known a;; '~m a ndt~dng" w here:by a tel'r\torial unit j,; divid ed int o election d istrict;. in an unnat ur;1l and unfair way with the purpose uf giving vne political part.y an electoral majority in a h1rge n umJ.,n,r nf di:;;trit:t~ wh ile <:
Sec!;. 5-7
ART. VI.- LEGISLATIVE DEPARnlEN1'
163
represents a territoria l unit whose population is nearly equ al with t h e others. This insures that the majority vote of such members ofthe House of Representatives represent the p opular majority. The ratio must also be progressive, for the size of the House of Represent a tives must be consider ed. It must not be too big as t o be unwieldy. So, a s population grows, the ratio may be increased, say fr om 250,000 to 300,000 inhabitants for each legislative district. (3) R epresentati(}n of ,Provinces and cities. - - 'l'he new Con stit ution provides, however, t h aV,:(regar dless of their population) provinces (wi th their component cities) sh all have a t least one (1) r epres entative each. But, a cit y wit h a population of at least 250,000 sh all have a t least one (1) representative. (4) Reapportionment of legislative districts. - With in three (3) years following the return of every census, Congress is mandated to make a r eapportionment or redistribution oflegislative dis tricts based on the above standards provided by t h e Constitution (Sec. 5[4]. } so th at inequalities of r epresentat ion that a rise becau se of changes in population ma y be corr ected. Party-list and sectoral representation.
(1) A im of the party-l ist system. - The bas ic aim of representative government is to attain the broadest possible represent a tion of all interests i n its law and policy-ma king body. It becomes necessary io give an opportunity to the various S()~.! <1.~, e~9:0.9.IT!i.~, ~1ll~t,t.r..~ L g~.9gr~p_hical and other grou£§... or sectors of our society to have their voices heard. And because they are usually withou t sufficient funding or political machinery, it becom es incumbent u pon the government to extend such opportunity without the need to go through an expensive elector al cont est.5 For this reason , th e party-};st systein has been adopted in th e new Constitut ion to assure th em of r epresentation in the high est law-making body of the Republic. (2) AppDilltlll£1111li..ele.cJ.ioiJ..J){ . .$£ctJJmLJ:ep.r£B.erJJ.atiu.e.s... -- Under the party-list system, in addition to the members of the Hou se of Representatives elected from the legislative districts,~~ of it s total composition or membership (ora_ratio of_ o~~..P.i'!r~Y~U~t.Jepre_s_ent~tive. for every_ 4 leg:i sla~ ~!v_e__qi s.tri~t re_pr~seut.a~ ) shall be elected from a list of registered national, r egional, and Sector al part ies or organization s. tsee Art . IX, CSecs. 7, 8.) The maximum number of party -list r epr esent a tives strikes a balance between those directly elected in t heir districts and those elected under t he party-list. Thus , if there are 250 member s , 50 t h ereof must be p a rty-list representatives. P eople will vote not for individual candidates
'•1986 VPL Constitution P roj ect, L.,gislative Department, p. 28.
164
T~~XT BOOI\
0 :" TI-ll<: l'IU\...IPPTNE CONSTITL'TIO N
Sees. 8-9
but for the regis tered par ties which will be entitled to such n umbe r of se ats depending on the pe rctmtage of votes rece ived. However, for the first three ( 3) consecutive terms from the time the party-list system ha s been in operation after the ratifi cation of the new Constitution, one half (1/2) of the seats allocated t o party-li st represen tative s shall be filled , as provided by la w, by selection (i.e. , appointment) or election, from the la bor, peasant, urba n poor, indige nous cult ural communities , women, youth a n d s uch other sectors as may be provided by law, except the religious sector. 6 <3) Need {or sectoral representation. - Sectoral representation is necessary because it is almost impossible for , say a farmer , laborer or public school teacher , to win in an elect ion . It will foster the rise of non-traditional, political parties and gn~ater participa tion for \'arious interest groups, not to mention genuine grassroots consultation . After th ree (3) consecutive terms, it is expected tha t enough of the people or ganized sectorally
SEC. 8. Unless oth erwise provided by law, the regular election of the Senator s and the Me mbe rs o f the House of Repre sentatives shall be held on the second Monday of May. SEC. 9. In case .o f vacancy in the Sen ate or in the House of Representatives, a special election may he called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Kinds of election for members of Congress.
There ar<> two <2) kinds of elections for members of Congress , namely: (1) B..~~lC!:.?~J!..l!!.~!io n . --It shall be held on the S £~n~I':fonda..L9J Ma_y. Congress may, by la·w, provide otherwise. (Sec. 8. ) If the election is held
~w hai is prohihitcd is r cpresentc!t ion of a ny .u- ii~jous Aeci or. A priest, minister or other religiou.;; dignitary may beco nw a sct~tora l rcp re;;ent at. i\'l' of a ny oth er sC'ctor. "Th{: a lloca tio n of 112 of party -l ist represcntativ•~s t o t h e disadvantagHd ! for the first three (3 i consecutive t erm;; is a com promise betwe'o'n two (2) vie ws in the Cons tit utional Commission, one was that t hcy s h ould he as!< ured of rese r ved seats in th~:~ Hous e of Represen tat-ives tind the ot.hcr, that they ~hould compete in th~~ regular p arty-li.;;t sy8te m just a s a ny ot.he r party or lll'ga nization. ,·,J(laqu in G. B<: rnas , S.J., !\fah il:. Bulletin , April 29, 1988.) The fi r st. party-list elect io n un d!'r R.A. No. 7 94 11 Mar. 3, }f)q !) l wa" lwld d uring the May 11. 1998 n ationa l clcctiOH:L Only 12 of tlH' 12 1 m·g anizatio n:; ga rncr~· d ~JHJugh votes (at least 2'1<.) to qualify fur r epr«:scn ta linn in Congrt:;s.
Sees. 10-11
AHT. VI. --
LEGISLATIV~
D.EPA}{'l'MENT
165
beyond the term of office , the member!:; of Cong rc~s cannot hold over. The purpO S\~ of a regular election is to give the people an opportuPity to renew or withhold their mandate on elected officials; and (2) Special election. - It may be called in case a vacancy arises in the Senate or House of Representatives to illl such vacancy in the manner prescribed by law. The Senator or Representative e lected shall serve only for the unexpired term. (Sec. 9. ) The authority to call a special election may be given by law to the Commission on Elections. The holding of a special election is not made mandatory by the Constitution.
SEC. 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all tb~ Members of the Senate and the House of R epresentatives approving such increase. Salaries of members of Congress.
Under the above provision , Congress is not prohibited from increasing or decreasing t he salary of its members. However, any increase can take effect only after the expiration of t he full term of the members approving such incrNtse. This rule applies even as to members who voted against the increase. The obvious purpose of t.he restriction is to prevent Congress from increasing the salary of its members dm·ing theh· incumbency. To be 5ure, Congress has the power to provide for higher compensation, but with the length of time that has to elapse before an increa~e becomes effective, there is a deterrent factor to a ny such measure unless the need for it is clearly f(>]t. 1
SEC. 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member 8hall he questioned nor b e held liable in any other place for any speech or debate in the Congress or in any committee thereof. Freedom from arrest of members of Congress.
Section 11 provides for the parliamentary immunities of the members of Congress. Every member of Congress is entitled to the privilege from arrest while Congress is in ~ession, ~~.ether or not_ h e i;2 attending sess.i.oll.
1Phil.
Con,;t.itution As;'lo<:iation v,.;. MJ.thay, L-2i'in54 , O c:.t. 4, Hl66.
TEXTI:\OOK ON THE PHH.ll'l'INF. CONSTlTlJ'l'ION
166
SAc. 11
Congresg is considered in session, reg ular or special, fo r a s long as it has not adjourned. Like the guarantee of freed om t>f speech or debar.o {infi·a.), this privi~ lege is intend ed to enable members of Congress tn disch arge their functi ons "ldequately and without fea r. It ir-; true that the privjlege may be abused. However, the harm \Vhich would come fr om its abuse is considerf!d slight compared to that which might arise if t.h.e privilege were not given. When i.!f!rnunljy_cam:w.tll~.i.r:.t.YQ~~d.:
The immunity ca nnot be invoked where: ()) The offense by reason of whi ch the a rre~t is ma de is punishable by more than six (6 ) years imprison ment. In this case, the seriousntlss of t he offense l~.oes not justify the grant of the privih!ge ; or ~2) Congress is no longer in ses!'.ion. In such case, the reason of the privilege docs not obtain.
T.h!:l..Pr.iY-i} ege j ~ -~. P.er sonal one an<,i IQ!lY b~
waive~.·
Freedom from being questioned for speech and debate.
A member of Congres:-; enjoys parliamentary immunity in that he shall not be questioned nor be h dd liable in any ot!wr place for any ~ peech or debate "in tht-! Congress or in any committee t he reof." The quoted pht·ase should he construed t o mean that the sta tem ents must be in connection \Vith or in reh1tion to the pe rform ance of leg-islative duties.
Like t lw privilege from arr est, this privilege is s ecured not to protect the mt~rnbe rs a gain s t prosecution, but for the bcnetit of t he people , by ena bling their ,·eprescmtati ves to discharge the function s of their office without fea r of prosecution. ci vil or criminal.;
!/h~?.r:tl!!l~_u ~!Y...E~~!!.~!.~~~~ ~ i~.~d. The privilege cannot he cla imed when!: (( ) The m ember is not m:ting a s a a1 ember of Congress, for he is not entitled to any privileges a bove hi s fellow citizens; nor are the rights of the people affected if h e is placed on tht~ sa me gro und on which his constituents stand;~ and (2) The m ~ mber is bei ng questioned in Cougn•ss itself, whenever said body.:considers that hi~ vvcm i s a nd conduct are disorderly and unbecoming of a member tiH:reof.
'Coffi n vs. Coffin, ·t Mn""'· 1. )Jbicl .
Sees. 12·1:1
AH'f. VI.- LEGISLATIVE DEPARTMENT
Hi7
SEC. 12. All :Members of the Senate and the House of Repre· sentatives shall, upon assumption of office, make a full disclo· sure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. Disclosure of financial and business interests.
To promote a high standard of integrity in the legislature, Section 12 imposes two obligations on alJ members of Congress: (,1) To make a full disclosure of their financial and business interests, upon assumption of office; and (.2') To notify the Hous~ concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. 'l'he first obligation is necessary in view of the prohibition in Section 14 against having financial interest in any contract with, or any franchise or spedal privilege granted by, the governm~nt. Note that Section 12 requires ".fu!J. disclosure." If a member of Congress withholds or hyies any information of his interests, he may badisciphned -.censured, suspended, or even rxpelled by the chamber where he belongs. As to the second obhg~ttion, it is a betrayill of public trust for a member to vote for the approval of a proposed legislation from which he expects to derive tinancial advantage especially if he is the author thereof. (see Ar~ XI, Sec. 1.) Even if he is not engaged in a business activity when he file;; u bill but later gets jnto su(:h business, he is still required to disclose new business interests and notify the House concerned of the potential conflict of interest. Note that a legislator may still propose the bill referred to.
SEC. 13. No Senator or Member of the House of Representa· tivcs may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or ·controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may ha·ve been c&·eated or. the emoluments thereof increased during the term for which he was elected. DisquaUfication to hold any other office or employment.
Sections 13 and 14 provide for certain disabilities for members of the fir~t with respect to their right to hold any other office or employment, and the second, with respect to their right to engage in certain activities. Precepts of propriety and ethics underlie the constituCon~:,rress,
loH
TE XT ROO K nN T HF: PH ILIPPi i\'E CONS"l' lT UT IOl'\
S ec. 14
Uonal pr ovision disqualifying mem bers fro m holding t:erta in offices in the gove rnmen t. 1 U nder this provisio n, a member is disqi.talilie d to hold two classes of office, namely: ( l) .In.cP.mpa_ti}J._le_qffice . - This incl udes any kind of office or e mpl oyment in th e gover nmenC or any subdivision , agency, or ins trumentality .:hereof, including govern ment-owned or -controlled corpora tions or their s u bsidiaries du r ing his t erm. T he phrase "any_Qther..Qf1 kl;UU: .e.:rop_)Qy!l_l ~D t." indude s any position in the government outside of Congress . inclu ding ex officio mem bersh ip of a ny nom:ongress ion nl bod.v, committ0.e o1· ~.:omm •.-:. sion in a ny guise whatsoever. The prohibitiou i'i nds its r ati ona le in the need for members of Con gress t o de vote their time a nd attention to the disch a rge of t heir legisl ativc res ponsibilities.
A Sena tor or Representative who acc epts any other office or employmen t in the government during hi s term for feits h i:; seat. l t i~ violative of the very essence of dem ocracy a nd politically immora l Cnr a mem ber of Congress to tur n his ba ck on his bounden duty to ser w the people who elected h im to be th eir r e prese ntativn in Congress and e xpected him to serv e as such for the full term. Hi s occupying a nother position depr ives his w nstituency of its r e presen tation in C ongres~. (2) E.!J.r:bid.si&n office. - This r efers to a ny office c r ~ ated or the emoluments of which have been increased d\U'ing .tl~ .tr.:on.. for which he was elected (S ec. 13.), not merely during h is t enu r e or period of actua l incumbcn<.:y. Th e ~tc:r.iod .of jne.ligi.b!J..i.I.Y"::\\:~:~ r~ s P~.<:t to. th~i>9 ..t:wg.Gl.Q. ~.e..s....Qf..Qffke. doc.s.nn.t come .to an. wd..J;mtil_a f_!:.e l~ .t.h ~.m ~_b er_§.lw !L have 1(~t\ hi!§; offl~-~b.y Ulc terminaiion ..of. bi.s._t.c.an.. not tenure. (Se e Art. VII, sl~C. 4.} ~f.e, E\. .memh~.r..._Q;'!J.l. .Jl
even i.f h~ r~s!gl:l_~..oz:_lo~e~-~~i~_.s~~t. Without the prohibition, me mbers of Congres ~ might be te m pted to crea te offices or increase t heir emolument s for personal gain. S E C. 14. No Se nator or Member of the House of R e presen t at ives may personally appe ar as counsel before any court of justice or be fore the Electoral Tribunals, o r quasi-judicial a nd other administra tive bodie s. Ne ither shall he, directly or indirectly, be interested financ ially in any contrac t with, or in a n y franc hise or spe cial privile ge grante d by the G overn ment, or a ny s ubdivision, age ncy, or inst rume ntality the reof, including a n y government-owne d or -cont rolle d corporpt ion, or its s ubs idial·y, dul'ing his t erm of office . He shall not in terve ne in any matt-e r before a n y office of th e Gove rnme n t for his pecuniary benefit or where he may b e calle d upo n to a ct 011. acco unt of his offi ce.
' V G. Sin(:o, op . cit .. p. 1.59.
ART. VI . - LEGISLATIVE DBPARTMENT
169
Fiduciary position of members.
'I'hc- prohibi tions under thic;; subject underscore the fidnciary nature of the position of a member of Congress and thus lend effe~ tivene::;t'i to the ptinci ple that public office is a public trust. (Art. Xf, Sec. 1.) They may be grouped as foJlows: (1 ) ~Pl!.f...(frG!I.9£! as__f:..()_U.!J.§fl.l...l:J..eL(J.r.e.f.!.J}..J!..i:.QJ.fLt.rtfJli.fil.il;J:., P.tc. -- A member of Congres:s shall not appear personally as counsel before any court of justice or before the Electoral Tribunals or quasi-judicial and other administrative bodies. The purpose is to remove any possibility of influence upon the judges of these courts or heads or members of these bodies who might be swayed in their decisions by their hope for future appointments to higher positions. t\npg ~r._g_nce.ia...P.rDhibit.rui...e...~iLno- fc..cs.....ru:e. cbarged...for .it.
With respect to appear~t nc.- before the Electoral 'rrihunals, the reason for th(: prohibit-ion is the inconsiste ncy of a mE·mher's position in representing a party who may not be entitled to be a member of tht~ body to which he belongs ..F:x~rtion of undue influence is also ilought to be avoided; (2}. Fi~tEncial ~.n.t.!J~·e_st f_r!-_f!IJ.X.J:.Ontract wilhJl.!&...{JJJJ.lJ?.r..l1JlJ.1:JU... --He shall nr,t, direct.ly or indirectly, be int.ere:>ted financially in any contract with t he government, etc., during h is term of office, whether as an individual or as a member of a partnership or as an officer of a corporation. Financial interest in such contract by the spouse is indirect financial interest by a member of Congress ..t.But it docs not extend to such contract entered into by a son or brother of a member of Con gress unless used as dummy or the member is pecuniarily interested in the contract. The purpose of the prohibition is to prevent a member of Congress from using whatever innu
W) fJ1wncia l ipterest in .a ny_~Jf~t;jqJ__ JlJ:i.l!.i!r:.g(~ .gr{.l._nted by
ii~S._g_or!!.r..rt~
.nv:mt., -- He shall not, directly or indirectly, be intere ~t~d financ ially in any franchise or special privilege granted by the govcrnnH?llt. etc., during his term of office. The reasop for t his prohibition is lihv.·i st> to prevent members of Congress ft·om making use of their inf1ucnce for purposes of financi al benefitorreward ;and (4J Intervention in certain matters. - H<> shall not intervene in any cnuse bcfo~e--any- oi£i~e- ~{the govern ment for his pecuniary benefit or where he may be called upon to act on account of his office or to give his vote as member of Congres.s. The prohibition seeks to insure that h i;:; en~ry vote on any pending lc.:gislati,·e measure shall be dictated by no
or.ma"tter ..
TEXTBOOK ON THE
170
PHILIPPIN ~
CQNSTI'l'FTION
Sec. 15
oth er conside rat ion t han t he public ~·o
iion. SEC. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may dete rmine until thirty days before the opening of its next regular sess ion, exclusive of Saturdays, Sundays, and le gal holidays. The Preside nt may call a special session at any time. Sessions of Congress. (1 )
& gular..g.ssio(t. -
Congress shall convene once
~ very
year on the
w.ur.th..M®.QruL_9JJ.l!Jy fo r its regula r session unl ess a different date is fixed by law. Once it is convened, the .session sha ll continue for such numb ~r of d ays as it may determine .until a o_day~ before ::;pening of its next regular session, exclusive of Saturdays, S undays and lega l holidays . There is, however, no prohibition from holding sessions on Sat11rdays, Sundays, and legal holida ys. Congress shall be virtually in session for t he entire year. It is only proper that it be on the job throughout the year. Lawmaking is a full-time obligation and not a mere sideline . .Members of Congress receive fixed yearly income .1 During a r egular session, the Congress may legislate on a ny matter it deems fit. (2 ) $pg_c:JE! §ession. - -· It takes place when the Presiden t calls Congress. during the time thariT is in recess, to s ession to consider such subjects or legisl ations as he may designate. Its duration is not limited by the Constitution. The President m ay designate t he subjects in his proclama tion or s pecial messa ge calling Congress to n special session, but the power of Congress is not limited to the subjects specified . It may enact Ia·ws relat ing t o other subjects. The Presi dent may also limit the duration of thl~ session but once it is a lrea dy in special session, Congress may determine th e duration in accordance with the needs a nd exigencies of the buoiness before it.
Secret meetings of Congress or any of its com mittees are called ~~-~-\!: .fuu~.§.lim_s." A...£..l9..e.~g ~-~.§~lQ.!Ll!?..hgt_9_if t...lu.~iS_$.\HdO.. be discussed i nvo! v e s 4l,;;t.ti.Qn!.\l5.e.!,;..\l:r.UY:,. (see Art. 16l4] .)
' Under the 1935 Constit11tion. the Congress was mandated to hold once a year only a 100-day regular s c!lsion toxclusive of Sund ays . This number of days of regular ses>~i•ltl did not g ive Congre;;s enough ti me to pass importan t bills a s shown by the fact th at yearl y the P reside nt had to call Congrc!!S to a s eries of E;pecial sessio ns.
SC'c. 16
ART. VI.··-- LEGISLATIVE DEPARL\J[VI'
171
SEC.16. (1) The Senate shall elect its President and the House of Representatives its Speaker·, by a majority vote of all its respective Members. Each House shall choose such other officers as :it may deem necessary. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. (3) Each House may determine the rules of its proceedings, punish its :Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each Honse shall also keep a Record of its proceedings.
(5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
Officers of Congress.
shall, by a majority vote of all its respective members, elect the &enhl.e...E.r.es:idcni and ~er oCthe tl_Q!:!._se oL~ill2I!Z§i~T)tatives. The Senate President and the Speaker hold their office at the pleasure of the respective members of both Houses. (2 1 Each House is authorized to choose such other officers as it may deem necessary (Sec. 16[1J.), such as a Senate President/Speaker Protempore, a floor leader, a secretary, a sergeant-at-arms, a disbur&ing of:· ficer, technical assistants, etc. The rules of the present House of Repl~e sentatives provide for the election of three ~-Dep:u.t,y S.ne~k~r~ in place of one (1) Speaker Pro-Te~1pore. It is important that the officers of both Hcuses be elected at the earliest possible time so that they can get organized .into a working body to perform their constitutional duties and functions. (1) Congress
Powers and functions of Senate President and House Speaker. The Constitution does not define the powers and functions of the Senate President and the Speaker of the House of Rer-resentatives. They
,_
rgxTBOOK ON THE PH1LIPPlN£ CONSTlTUTION
1 ~"
Sec. 16
are , however, implied from their position as a dministra tive hea ds a nd presiding officers of their respective cha mbers. As .such, they pres ide over their sessions, preserve order and decorum, decide a ll questions of order, sign a cts, r esolutions , orders a nd warra nts, issue subpoenas, a nd a ppoint personnel, and discipline them. Other powers may be given t o t hem by the rules of their respective Houses for purposes of efficient sta ff s ervices oflegislative work. Meaning of quorum.
A ~uorum is such a number of the membership of an a ssembly or collective body as is competent t o transact its business.1 In other words, it is that number that makes a lawful body and gives it power to pass a law or ordinance or do any other valid corporate act. 2 Ordinarily, a quorum is body.
at.leas.t~i:la1[£lus
one of the members of a - -···-·
Basis of quorum in each House.
Under the Constitution, ".AJnru.Qri.ty_of e ach House" shall cons titute a q uorum to do business (Sec. 16(2J .) duringit~--sessions: whether regular or special. There is a differ ence between "a majority of all the m embers" of a body and "a majol'ity" of the body, the latter requiring less number than the former. Under Section 16(2), the basis of the quorum is not the number of all the members who constitute the entire m embership of each House. Members suspended or otherwise prevented from participating in the functions of either House or who fo r the time being may be outside the Philippines a nd on whom Congress has , ther efore, no coercive power to enforce its authority and command, s hould not be counted.3 Adjournment in absence of quorum.
In the a bsence of a quorum , a smaller number m ay adjourn from day to day and may compel the attendance of absent members in such manner, and under such penalties, as each House may provide. (Ibid.) This smaller body is competent to issue orders for the arrest of the absent members a nd t o choose a n acting Senate President or Acting Speaker as an emergency measure. 4 1
See 51 C.J. 305. vs. Tayo, 6 SCJ{A 1042, Dec. 29, 1962. 3 C nder the 1935 Constitu tion which has exactly t he same provisio n IArt. VI, Sec. 12l2) t hereof.), it was h eld that the basi~> of the quorum in the House of Representatives (the h>wc1· chamber) is the nu mber of th ~ mem ber:; who were withi.u_t):le P hilippines ,51nd on whom tb,e !!~~~s.~ !I.!!!!. <:Qer_~i~_ru.!.w~r...!g.Jlufur.cc.. i!.:i.AllLho.J:i.4>-.and <·omala!l!h. lAvl
ART. VI.--·- LEGISL ATIVE
Sec. Hi
Dl~PARTMENT
Without the above power of each House, member s who refuse to attenn its sessions could obstruct legislative work. Meaning and function of rules of procedure. ..li!!J:!~-~[E!Oc~c!.__u.!._~-~l}re the rules made by any legislative body to regu late the mode and manner of conducting its business.
They are intended for t he orderly a nd proper disposition of the matters before it. Thus, the procedure and r ules to be observed in its deliberations (e.g ., what committees, and upon what subjects they shall be a ppointed; what shall be the order in which the business shall be taken up; in what order certain motions shall be received and acted upon); election of officers ; penalties to be imposed upon erring members ; and ma n y other kindr ed mat-ters, are proper subjects of the r ules of procedure." Limitations on power to determine rules.
The Constitution empowers each House to determine the rules of its proceedings. (Sec. 16(3].) Any such r ules is subject to revocation or modification by each House. I
T he rules promulgated sh ould not ignore constitutional restraints or violate fundamental rights. 6 They cannot repeal or alter statutes. Th~ reason for this is that the Constitution and statutes are superior to the internal rules of Congress. Nature of power of each House to punish its members.
The powQr to punish or expel a member need not be specified in the Con stitution s ince it would exist, whether expressly conferred or not. It is a necessary and incidental power to enabl e each House to perform itE- h igh functions. It is a power of protection. A member may be physically, ment ally, or morally u nfit, or afflicted with contagious disease, or insane. or noisy, or violent and disorderly, or in the habit of using profane. obscene a nd abusive l a nguage. Even in the a bs ence of parliam entary customs and practices, legislative bodies have the power to protect thems elves by the punishment and expulsion of a member. 7 T..h.~-~-th~.t.J.h~. .QQ.TI.!>.t itl!tiQn ..~X..P.:res§Jy giv~s ea~h H ous~_t.hU.9-'Y.e.r to. disorderly behayioi_ilbad.Lda.e.Ji...not imply ibat it b.~ILI!Q ..P~~r..19.Jn.mish..fQr_~Jm t~m p.t any o~her pers.o.n..~ P.!l.n!~.b.. .i~~..mb.~s.J.o.r
'\See He iskell vs. Ma>"r, 4 At!. l1 7. ~u.s . YS. Balin, 144 U.S. 5 . 7 Co<>ley, Co nst. Li mit, 8th E d ., p . HIO . "Arna.ult vs. Nazarene), 87 Phil. 29 . Contempt i$ willful disoix>dit>nce to or open dis respect of !I cou rt or legi 11la t in~ body.
TEXTfiOOK ON ·rHE PHlLIPI'INE
174
CONSTTTUT'IO~
Sec. 16
Punishm.en t may .take...the .form. oLr.e.u.riman.d,_fitte.•.forfcit..ur.e..of salary, i.mP.ti~'!.~.!l)_e n_h_~spensiop__,__~.n.Q._£X.Pl,ll~i.9~
Votes required.
'fo s uspend or expel a member, the concurrence of b&:o.-.thir<;lli.(lf all th~ members of each House is necessary. If the penal ty iU:QR.~nsio n, this sha ll ~-;;;.-;~~L6ii~ciRY.~.?t61-"dj
··-··---------
--- ... ---- ---
l f-ach Hou>w hal> no power to suspend a member for an indefinite period ofttme. 9 An in definite suspension is considered worse than expulsion in the sense that in lhe former, a vacancy d oes not a rise and consequ en tly, th e people are deprived of the opportu n ity to elect a replacemtmt for the period of the suspension. Each House sole judge of disorderly behavior.
'fhe courts arc not authorized to control, revise, or forbid t he exerci!'le by Congr ess of its power to punish a mem ber for disord erly behavior . It must necessarily be the sole judge of wh at constitutes disor derly behavjor not only because the Constitution has conferred jurisdic~i on u pon it, b u t because the matter m ainly depends on factua l circumstances of which said body knows best. 10 (see , however, Art. VIII, Sec. 1, par. l.J Meaning of legislative journal. A]t;g_i~;la tive jouJ.:n_al is defined as the official record of what is done and passed in~ i"~g-fslative assembly. It is so-called because the proceedings a re entered therein in chronolog ical order as t hey occu; from day t.o day.
The record is frequently spoken of in t he plural as t he "journals."11 Purpose of journal-keeping requirement.
The Constitution r equires t h e Congress to "k eep a journal of its proceedings , and from time to time to publish the same,excepting_svch paJ::t.s as may, in its judgment, affect n.a tional security." (Sec. 16[ 4].) ' . . . ...... _. _
.
The object of the requirement is to insure publicity of the proceedingJS of Congress, and a cor responding r esponsibility of the members to th eir r espective con s tituents. Reasons of public policy d~mand a recor d of the actuations of a legitlla tive body kept in permanent form and open to p ublic inspection . The journals fulfill t hat role. They a re public because all a r e required to confi)nn t.o them, and they a re permanent to assure t hat rights-
,.
YSee Alejandrino v,:;_ Quezon, 46 PhiL fl:{ . 10 See French YS. Senate. 146 Cal. 604; Osmei'ia v:;. Penda t.u n , 109 P hil. 863. 11 Cu!;h ing, Law anrl Practi~:e in Legislat ive t\s.;emblies, c i t()n in Montgomery vs. Gasto n, 126 A\11. 125; 5 1 L.RA. :{96, <1 01.
SP.c. 17
AR'r. VI. - LEGISLATIVE
DE PART~1E~T
175
acquired upon the faith of what has been declared to be the law shall not at som e future time be destroyed by facts made t o res t only in the memory of individuals. 12 Matters to be entered in the journal.
The Constitution requires the following to be entered in the journal: (1) The y eas (affit·mative votes) a nd nays (negative vote~) on any ques· t ion, at the r equest of one-fifth of the members present {]bid.);
(2) The yeas and nays on the passage of a bill upon its last reading (see Sec. 26(2].) ev en in the abs ence of a request to that effect as it is of great importance that. such vote be recorded so that the people may know the stand of their representatives on a particular measure; ( 3 ) Such other matters which each House in its discretion m ay direct to be so entered in the journal; (4) The yeas nnd nays on the repass age of a bill vetoed by the President and the names of the members of each House voting for or against (Sec. 2'7Ll].); and (i)j The vote of each member of the House of Representatives in impeachment cases. (see Art. XI, Sec. 3[3].)
Matters which in the judgme nt of e ach H ouse affect national security s hall als o have to be entered in the journal but they shall be excepte d fro m publication. (Sec. 16[4 ].) Each House shall a lso keep a Record ofits proceedings. (Ibid.) Adjournment by e•ther House without consent of the other.
During the :::;essions of Congress, either House may adjourn for not more than three (3) days. Without the consent of the other , it cannot adjourn f
SEC. 17. The Senate and the House of Representatives shall e ach have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Mem he rs, th ree of whom sh all be Justices of
, .... . . .
11
See FiP.Id vs. Clark, 143 U.S. fH9 ; lf.5. vs.
Pon.~.
24 Phil. 729.
176
TEXTBOOK OX THF. PHILIPPINE CO:>:ST!Tt..:TlON
SfCS. 17-19
the Supreme Court to be designated by the Chief.Justice, and the t•emaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. S:t<:C. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected hy each House on the basis of proportional representation from the political parties and the parties m· organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. SEC. 19. The Electoral Tribunals and the Commission on Appoint.mcnt.s shall he constituted within. thirty_
(1) Composition. constitution andjurisdidion.- An ~~1ectoral Tribunal, composed of nine (9J members - three ~:)).Justices of the Supreme Court designated hy t.he Chief ,Justice and six i6) members of the Senate or the House of Representatives, as the case may be, chosen on the basis of proportional representation from the political parties and t.he parties or organizations registered under the pm·ty··list system represented therein -is created in each House of Congress. It ~ha1l be constituted within :30 days after the Senate and the House of Hepresentatives shall have been organized with thf~ election of the President and the Speaker. (Sec. 19.) It has exclusive juri~diction over all contests relating to the election, rctums and qualifications of t.heir respective members. (sec Art. IX, C-Sec. 212].) (2) Reason for creation. - Under the 1973 Constitution, this power was given to the Commission on bledions. 1 It would seem inappropriate~ for
'Article Xri, C-Stwtinn 2r2) thereof.
1 i-19
S !:'CS.
AHT. VI. ·-· LEGISLA1'lV8 DgPART.M EN1'
177
' an admin istrative a gency. an i ndependent constitutional body notwithstanding, composed wholly of a ppointive members, to act as a judge of election contests affecting elected members of no less than the legislative organ of the State. On the other hand, it would be imprachcal to make each House the sole judge of snch contests as this would make the procedure unwi eldy and the deliberation immersed in partisan polltics. The Electoral Tribunals, by their composition and the method by which they arc consti tuted (Sec. 17.) , solve the problems presented above . With a mixed membership partly tak'3n from the Supreme Court and partly from t he House concerned, an independent bociy of sufficient stature "invested with a m easure of judicial temper" nnd free from the cont r ol of political parties is created to in.sure a fair and impartial determination of election contests involving the right to legislative seats. The system also enables Congress to concentrate on its prope1· function
which is lawmaking. rather t h
contt~sls.
The Commission on Appointments in Congress.
Composition, constitution, and naturt'. --The Commission on Appointments is composed of 2:'.5 members ·- the Pre~ident of the Senate as ex officio chairman, 12 Senato1·s a nd 12 members of tht! H tlttse of Representatives, elected by each House on the ba~i:.: of proportional tepresentation (1 }
from the political parties and the parties or organiz ati ons registered under the party-list system. Like the Electoral Tribun als, the Commission on Appointments is constituted within 30 days after the S enate and the House of Representatives shall h ave been organized with the election of the Senate President and Speaker. It meets only whi le Congress is in session, at th e call of its Chairm <'l n or a maj ority of it;:. members, to discharge its power s and functions. (Sec. 19. )
As created and constituted, it is a ::;.ort of joint committee of the Senate and the House of Representatives. Cnlike an ordinary joint committee of the two Houses, however, which has to report it!-l action to Congress for approval or disapproval, the Commission on Appoin tments acts independe ntly of Congress and is legally not responsible to H . Once created. it operates as a distinct entity, legislative in composition but executive in fun ction. 2 (2) Power or function. - The p ower of the Com m ission on Appointmen ts is to approve or disapprove appoin tmen ts submitted to it by t he Presid ent. It must act on all such appointments. by a majority vote of all the members, within ·ao session days of Congress from their submission. The Commission on Appointm ents is. in a way. th e representative of
~.G.
Sinco, op. cit .. p. 195 .
178
TF.XTBOOK ON THE PHILIPPINE CONSTITL1TlON
Sec.-. 20-21
Congr esf:; v~ste d \Vith full authority to consider the nominations made by the President to the more important positions in the government.~ {3) Rewwn for creation. - The creation of a Commission on Appointments, which was prov.ided in the 19~5 Constitution, is based on the principle t.hat it is best to have a deliberative body pass upon appointments to important positions in the government. The Philippine experience in the 14 years after the declaration of martial law in 1972 showed that on~ person cannot cany out the job of srr~ening prospective appojntees as well, as a larger body can. The complaint against the practice, however , u nder the 1935 Constitution was that the appointment process became highly partisan, considering that membership of the Commission was drawn along party lines.
It is a good procedure to give the names of presidential nominees the widest publicity possible before appointil"ents are finalized in order to afford the public an opportunity to present their ol~jections to the nominees. 1
;SEC. 20. The records and books of accounts of the CongrE>ss shall be preserved and b e open to the public in accordance with law, and such hooks shall be audited _b y the Commission OJl ~qdi t which shall publish annually-an itemized list of amounts paid to and expenses incurred for each Member. Records of Congress open to public. Congress is enjoined by the Constitution to preserve and open its records and books of accounts to the public. (see Art. III, Sec. 7.) Such hooks s ha ll be audited by the Commission on Audit, which shall publish annually an itemiz£>d list of amounts paid to and expenses incurred for each member.' This requirement, however, is not absolute. Congress may prescribe by law the conditions to be complie d with in the exercise of t he right vf inspection of its records and books of accounts. The con sti tutional provision will limit the opportunity to misappropriate public funds.
SEC. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly publishe d rules of proce~ dure. The rights of p ers ons appearing in or affected by such inquiries shall be respected. ·'I bid. 4 1986 UPL Constitut.ion Project.,
Legi;;l ~:~tive
Department. pp. 28-29.
'The above provi~inn i.o; not. found in thP. 1935 Constitutiotl; ht•nce, t.he hook:> of account.:. nfCongros.s had never been op~ned to the public. There was a strong public suspicion thnt the members of Congrerss thcm;;elves rect:'ived most of the extrnvagtmt clerical hire and tho soCt!llcd congressional allowan ce;, a.nd other mi;;cellan~~ous cxpHn.;e.s. This alleged practice wa:; one of the principal reason,; for lhe e ro..::ion oft he people's confidt:>ncc in thflir Congress and, to some llx t.ent, in the govcrnm t:nt itself.
AR'r. V I. -- LEUISLAT I VB DEPARTMF.N1'
Sec. 21
179
Power of legislative inquiry and investigation.
Section 21 authorizes each H ouse or any of it;; committecH 1 to conduct inquiri es (investigations ) in aid of legislation. Even in the absence of the provision, however , Congress may exercise t.he power to investigate as it is an essent ial and appropria te auxiliary to the legi sl<~tive function. ( 1) Sound legit-dation. · - A legisla tivE> body cannot legislate wisely or cffectiv~ly ·IiiTh._e.. of informa tion respecting the conditions which the legislation is in te nded to affect or changf); and where the legisla tive body does not itsel f possess the req uisite information - which is not infr equently true -· re courH: mus t. be had to others w bo do possess it. So, some means of compulsion may be essential to obtain what is needed. Congress has the power to punish for contempt a person •vho r efu ses to give testimony or in formation p()rtinent to the inquiry within its jurisdiction .2
abseii.ce
(2) Other desirable bem~fits . - ·This incidenta l function of a legisla tive body ·otht~ t· deH1rabie resul ts . Legislativ~ h~~arings enable the public to inform itself on governmental problems. They can l:llso help crystallize and influence public opinion on important issues. A law enacted after it h a .:; been shown by facts brought out in such hearings that warrant its inco.r poration in t he statute-hooks, enable8 the executive to enforce it mor e effectively and the courts to apply it more wisl:!ly or correctly.:~
produc-es·
Scope of the power.
( 1) lii.d.t.Q_Qthfl!. ~eg.i:'>latiue fnnction.~. - The power of inquiry and investigation4 exists n ot only. to enable Congress to dii:~charge effectively its primarily legislative or lawmaking functions. U likcwisP. extends to hearing-s on other matlt~rs within its jurisdiction notably the power to impeach , to propose amend ment~, and to take disciplinary action a gainst its members.' (2 1 .L_i~tL£0.J.Jons._-
In legisl ative investigations, as in the court!S of the (:onstitutional rights (e .g., rights against sel f- incrimination. r ight to counsel, etc.) of pcr son:s appearing in or affected by s uch inquiries must be r espected. Each H ouse is required to publi sh the r ules of procedure to be followed in said inquiries for th(: guidance of any person who may be summoned before it. Thus, the hearings must be conducted strictly in accordance with said rules and not. dopend on the whim s and caprices of the membe!'s of the investigating committee.
justic~.
The r equirement seeks to ensure that this vital powP.r s erves only the purpose of legit imate inq~iry. In the past Congress, this power has been abused by some legislators hy making it an instrument of oppression. ' In order to di.stribute their work . p;1rt.ic ularly of :;tud~·ing ch(' great num ber of hills filed, both Houses arc div ided into CommitlP.!:'s. 'lArnault vs. N<. Llrmgh~~ rty . 273 l!.8. 135. ' See V. G. Sinco, op. tit., p . 199. ' The ConstiLution speak.; of~inquiri cs" t o gather bcti' l O niu llld r'ernando. up. cit., p. 7134.
lRO
TEXTBOOK ON THE I'H ILI I'l'lNF: CONSTITUTTON
Si.lt'S. 22·23
SEC. 22. The h eads of d epartments may u p on their own initiative, with the co nsent of the President~ or upon the req uest of either H ouse, as the rules of each House shall provide, app ear b efore and be heard by s uch Hou s e on a ny mat t er pertainin g to their departments. Wr itten questions sh a ll be submitted t o the P r esident of the Senate or the Speaker of the Hou~e of Repre· sentatives a t least t h r ee days before their scheduled appear· a n ce. Interpellations sh all not b e limited t o written quest ions, but may cover matters relate d thereto. When the security of the State or the public interest so requires and the President so s tates in writing, the appearance shall b e conducted in execu· tive session . Appearance of heads of departments before each House. ( 1) Under Section 22, heads of depart ments cannot be r equired to a ppear before either House under pain of being decla r ed in contempt1 in view of the separation of powers between th e legis lati ve and executive bran ches. Th e President may prohibit t he appearance of hea ds of departments before Con gress. Note t ha t Section 22 r efe rs only to heads of departments and not to lower executive officials . (2) They may appear u pon their own initiative with the consent of the President, or even without the consent of the President, upon the request of either House on any matter pertaining to their departments. Such appearance i s useful as a device for monitoring the programs , activities, and the management of the affa irs of the various departments particularly if the proceedings a re a dequa tely communicated to the people wh o will be in a better p
(3-) Written questions shall be submitted t o the Sena te Preside nt or the Spea ker of the House of Re pl'esentativ~s at least three {3) days before the scheduled appearance of t he depa r t ment h ead concerned t.o give him time to prepar e h is a n swers and to submit document~ in support thereof. However, the interpellations to be made may covt:r not only the written questions s ubmitte d but also matters re lated ther eto. (.4) The proceedings s hall be open to the public like other sessions of each House, but it sha ll be conducted in executive sessions when t he security of t he State or public interest so re quire~ and the P resident so states in writing. SEC. 23. (1) The Congress, by a vot e of two -thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. '.CGlle~s willful disobedience to a la wful order of, or op<"n disrespect of, or willful obstr uct ion of, a legi:;lative body (or a court) in the couri'll'l of exercisi ng its powe rs.
S<' C.
23
ART. VI. - LEGISLATIVE DEPARTMENT
181
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. lJ....nle&.s.Qoner. w.ithdra_w_n_b_y_~~~.QlJJtiQn..2Ube Conaress, ~Sh.F~wer.~ .shall ~.~.R~~.. Y.~Wn. the...ne.xt.adj.ournment the&'eQ4 Power to declare existence of a state of war.
The Constitution grants Congress the sole power to declare the extstence of a state of war. The concurrence of two thirds...uf both Houses in joint session assembled, voting Sl:lparately (not jointly) is required for the exercise ofthis power. (Sec. 23[1].1 Because war directly and vitally affects all the components of the entire n ation, it is deemed essentia l that the reAponsibility to make such declara tion should rest with the direct representatives of the people in Congress. While the responsibility to make the declaration rests on Congress, the President, however, through his dealings with a fore jgn country, may bring about a state of affairs that Congr ess may be left with no alternative but to r ecognize and declare t he existence of a state of war. The President. may find it necessary to engage in war without waiiing for Congress t1 make a declaration of war. War contemplated.
The war contemplated here is ~-A~~nsive, not an aggressiv~- V{ar, because by express constitutional provision, the Philippines renounces war as an instrument of nationa l policy. (Art. II, Sec. 2.) The phrase "to declare war" in the 1935 Constitution was changed to
".t.o..d.e.dare..ilie....ex.i~..oi.:w.iLf" in the 1973 Constitution which is retained in the new Constitution except with the insertion "of a r.tate" because the original provision in the 1935 Constitution may give the impression that Congress can declare a war of aggression. Delegation of emergency powers.
Section 23(2) is an exception to the rule that the Congress may not delegate its legislative aut.hority to any other office, agency, or entity. (see Sec. 28f2].) During grave emergencies, it may not be possible or practicable for Congress to meet and exercise powers. To.. met:t any s.uch occasion, .the ~Cog~itY:1~0..!l. ~~JLrkS_~ly_p_er.lllils .C..ongr.e.s.s. t.o_.grant I egi sla t.i ve..puw.e.r.s. t.o. the J:!;.esi dg_Qh_~:t,I.l;>j~.t.W. certain conditions .as. fuJ.lows:
. <:!.! The emergency powers may be granted by law to the President only tn t~mes of war (whether declared or not) or other national emergency (e.g., rebellion, grave economic depressionJ. It is the Congress that determines whether there is a war or national emergency (see Art. XII, Sec. 17 .);
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{1) The said powers must be exercised only during a limited paiod, that is, for the duration of the war or other national emergency; ~) They must be exercised subject to such restdt:tions (e.g., requiring the President to make a report to the Congress when it meets in session) as the Congress may prescribe;
(4r They must he exercised to carry out a national policy as declared in the law delegating the authority; and (,5) They shall automatically cea~e upon the next adjournment (i.e., adjournment of the next sesgion) of Congress, unless sooner withdrawn by resolution in view of its opinion that the emergency has ceased. This provides a safeguard against the exercise of emergency powers by the President even when the national emergency for which the powers were intended no longer exists.
SEC. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose Ol' concur with amendments. Meaning of appropriations bill. Anappropriatfoi~S b~!l is one the primary and :';pecific aim of which is to make appropriations of money from the public treasury. A bill of general legislation which carries an appropriation as an incident thereto to carry out its primary and specific purpose is not an appropriations bill.
Kinds of appropriations. An appropriation. is an authorization made by law or other legislative enactment, directing payment out of governmtnt funds under specified conditions and/or for specified purposes! Appropriations may be: (1) Annual or general appropriations. - They set aside the annual expenses for the general operation of the government. The general appropriations bill is more popularly known as the budget;
(2) Special or supplemental appropriations. -They include all appropriations not contained in the budget. They are designed to supplement the general appropriations; (3l Specific appropriation.. - One which sets aside a named sum of mor.ey for the payment of a particular expense; and
(4) Continuing appropriation.- One which provides a definite sum to. be always available from year to year, without the necessity of further !Administrative Code of 19~7 (Exec. Order No. 292.J, Book VI.
Ch~pter
l, Section 2(ll.
ART. VL. -· LEGISLATIVE llF:I'ARTME:>l'T
Sec. 24
..-· 183
legislative action, for the purpose appr.)priated even after the original amount shall have been fully spent. When the original amount is spent, a like amount is automatically appropriated for the original purpose.2 The provision of the Constitution fixing the annual salaries of <;ertain constitutional officials (see Art. XVIII. Sec. 17 .) operates as continuing appropriations for their respective salaries. The new Charter, however, affords Congress the necessary flexibility to adjust upwards the salaries in response to inflation, suhjed ic limitations provided. Section 25(7) provides for automatic rcappropriations in case offailurc of Congress to pass the general appropriations hill for the ensuing fiscal year. Meaning of other bills. (1)
J1f.utmu!l.bi!l. -One the primary and !:ipecific purpose of which is to
raise revenue. (2l T_~t.riff hill~ -- As used in the Constitution, it has r(>ference to one imposing cu~toms duti es for revenue purpose~. A bill imposing high tariff rates (rates of customs duty) on certain imported a rticles to protect local industries against foreign competition (which is its primary purpose) is not a revenue bill and, thert:lfore, not a tariff bill as contemplated by the Constitution, although incidentally it•creates substantial revenue. { 3) .!$.ill_ G_'{f_l/J9..rLz ~~z_g i.nr:r.ea.£.C....Q{..11te._pu blic...d..e.bt. - One which creates public indebtedness such as a bill providing for the i ~:->uance of bonds hnd other forms of obligations. Such bonds are to he paid with the proceeds to be derived from taxation and other sources of government revenue. 3 ( 4l 8ill~al applicati(Jn. - One affecting purely local or municipal concerns like one creating a city or municipality or changing its name. (5) Private bill. - One affecting purely private interest, such a~ one granting a franchise to a person or corporation, or C•impensation to a person for damages suffered by him for which the government considers itself liable.
Bills which must originate exclusively in the House of Representatives.
Under Section 24 , the House of Representatiws hnz, the exclusive authority to take the initiiltive in the presentation of the bil ls mentioned. These measures may not originate in the Senate, but the Senate may 1 ' See V.G. Sinco, op. ('it .. p. 210. The Admini;.trat.ive Cod~: of 19irt defin '~" the term as r~·nnd the budget year."
TEXTBOOK
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0~
'l'H E PHT1.1f·J'L'\ E \'U:\S1TI't ..fJ O;\
Sec. 25
propose amendments to them aHd refus<· t o hppro,•~,- them if their amendments a re not accepted by the- HPn!:'e of R ~ p!"e:-:e nt.a ti, · es. It is said that the Hou ~t- of RPpre-~£'"t.?. ti v~.:- !wing thE' more popula r branch of Congress, bE'ing c:loscr t o thE r>t-> Pp} f>. an d ha ,·i ng more freq11 en t contacts with them th an t hP S E'na l.e. shou;rl ha"t t.bf: -rri "ileg£' oftak\ng the initiative in the proposal of rcveJnh~ a n d t.ax pro.it:-cts, the disposal of the
people's money, and the contracting of publi(: indebtedness. 'fh ese powers of initi ative in the r aising and spending ofpnblic: funds enabl(' the House of
Representatives not only to impl ement ~ut !'ven t o det e rmine t he fiscal policies of the government. The operation of the Governm e nt as specified in th e budget. The form, content, and manner of preparation ofthe budget ~hall b e prescribed by law. (2) No provis ion or enactment s hall b e embraced in the general appro priations hill unless it rP.late~ specifi cally t.o some particular appropriation there in. Any such provtsion or enactment shall he limited in its operation to th e appropriation to which it r e lates.
(3) The proce durP in appro ving appropr·iations for the Congress shall strictly foll o w th e proced ure for approving appropriations for othe r departments and agencies.
(4) A s pecial appropriations hill shall s pecify the purpose for which it is int.ended, and shall ·he supported by funds actually available as certified by the National Treasurertor to be raised by a corresponding reve nue p r oposal there in. (5) No law shall he pas!'ed a u thor i zing any transfer of appropria tions; however, the Preside nt, th~ President of the Se nate, the Speaker of the House of R e presentative:'. the Chief Justice of the Supreme Court, and the heads of Con$tit.utional Commissions may, by law, be authorized to a ugment any item in the general appropriations law for their respe ctive offices from savings in other items of their r espective appropriations.
(6) Discretionary funds appropriated for particular offi· cials shall be disbursed only for publi<: purpose s to be supported by a ppropriate vouchers and s ubject to such guidelines a s may be prescribed by law.
qhi.d. , p . 196.
Sec. 25
ART. VI. - LEGISLATIVE DEPARTMEN1'
185
(7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding ftscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. Meaning of budget.
A ..f2udge~ is the financial program of the national government for a designated calendar year, consisting of statements of estimated receipts from revenues and expenditures for the calendar on which it is intended to b e effectiYe based on the results of operations during the preceding calendar year. l It refers to the financial plan required to be prepared pursuant to Section 16f 1), Article VIII of the Constitution. Submission of proposed budget by the President.
The "budget" of expenditures and sources of financing, including receipts from existing and propos~d revenue measures (see Art. VII, Sec. 22 . i which the President has to prepare and submit to Congress is intended a:, a guide for the latter to follow not only in fixing the amount of appropriations but also in determining the specific governmental activities for which public funds should be spent.2 The form, content, and manner of preparation of the budget shall be prescr ibed by law. 3 (!bid.) Increase of appropriation recommended by the President.
Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. (Sec. 25[1 J.) Bein~ responsible for the proper operation of the executive department, the President is naturally the party best qualified to know the maximum amount that the operation of his department r equires. 4
1The fiscal year fur all bra nc.)Jes, subdiv1sions, instrumentaliticR, departments. bureaus, offices, a nd agenct P.!'. of the government, including government-owned or -.:on trolled corpora· tion s, is thf! period beginnil1g with t.h e 31Bt d11y of ,January and end• ng with 31st day of Decem her of each calendar year . ;rv.G. Sinro. op. cit, p. 209. ~The Admini,;t.rat.ive Code of 1987 (Exec. Order No. 292.1. in Book VI thereof, governs national gMArnmPnt budgeting, more specifically: budget policy an d ~pproach, preparation, authori za t i budget is prepar~>d by the Department of Budget and Mana~ement. •V.G . Sinco, up. cit., p. 209.
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COI.'\STTTV1'l0~
Sec. 2:>
Neither can Congn·Rs in crease its outlay and t hat for the j udiciary a\Hl t.he constitutional bodies in the propos<"d budgPt on the theory t hat the t·e i!' already a consensus tm the amounts needed by them when th
The m ai n object of the rest.rictions in Section 25(2 l is tn do away with what. are called riders. (sec Set:. 2611J. l A~ is a provision or enact ment. im;erted in tht! general a ppropriations hill which does not relate to some particular appropriation therein. A provision, for instanec, in the general appropriations law "p rohibiting governm ent officers and ~rnployees to do private \·vork" or refer1·ing to the ''calling to active duty and the rcver~ion t.o inactive status of reser ve officers"s is a rider as it has no direct con,lection wit.h any definite item of appropriation in thC' law. Such provision shall be of no ee·ect. In h~gal contemplation, it i~ as though it has never been passed.
The objective of the Constitution is not only to prE!vent the general appropriations bill from being u~ect as a vehicie which controversial legislative m atter s may be enat:ted int.'> law \':ithout due ron~ideration , but also to facilitate the enactment of s uch an im portant. lfnv t hat will set t he government machinery in motion.t\ Any provision or enactment. in the general appropriations bill shall be limited in its operation to the appropriativn to which it relates. iSec. 25l21. J Procedure in approving appropriations.
The Const.itution .requires a stan d~rd procedure in approving appropriations. The procedure adopted for approving appropriations for other departments and agencies shall be followed $trictly i11 e by Congress of its pow(~r to appropriate. Under the 1935 Conl';titution, the appropdations for both h ouses of Congress, unlike in the case of Lhe budgets of other government agencies, were not deliberated upon in opr:>n session.
'{.Tar~:i a v:;. M n~.a. L-a::nt3, Ju ly :30 , 197f). "DP.l. II. Mendoza , "Tht:! New Bud)(to tarf P rovisi•ml:l." in C. H. Mont.cjo. "The N!!w Con;;ti· tution" ( 19731, p. 1.23.
Sec. 25
ART. VI. - LEGISLATIVE DEPARTMENT
187
Requirements with respect to special appropriations bill.
The Constitution requires that: \l) It should specify the purpose for which it is intended; and (~) It should be supported by funds actually available as certified to by the National Treasurer or to be raised by a corresponding revenue proposal included therein. (Sec. 25r 41. ) The restrict ions are intended to put an end to the legislative practice under th e 1935 Constitution of passing appropriations bills without the corresponding funds. Requirement to insure a balanced budget.
The Constitution requires that the level of expenditures must be within the level of the revenues expected to be raised from existing and proposed revenue measures (Sec. 25[4]; see Art. VII, Sec. 22. ) to prevent deficit spending. In the old Congress, some members indulged in the practice of introducing or advocating legislation for additional expenditures (e.g., subsidies, salary increases, etc.) while at the same time opposing measures that would raise revenues to finance the additional expenditures that they themselves proposed. This inconsistency is no longer possible under the new Constitution which expressly requires that the appropriation proposals must be accompanied by certification of actual fund availability or corresponding revenue-raising measures. Prohibition against transfer of funds.
The Constitution prohibits t he enactment of any law authorizing any transfer of appropriations from one branch to another. (Sec. 25[5].) The provision. is aimed at stopping th e practice in the past of giving the President a uthority to transfer funds from one department to another or under one a ppropriation law to another, which in effect invested him with the legislative power to appropriate, thereby providing a loophole for violations of the a ppropriations act. The prohibition plugs this loophole. However, the President, the Senate President, the Speaker, the Chief Justice of the Supreme Court, and the heads ofthe Constitutional Commissions may be authorized by law to augment any item in the general appropriations law for.their r espective offices from savings in other items of their respective appropriations. (]bid.) Rule as to discretionary funds.
Congress may appropriate funds (e.g., intelligence funds) for certain operations or activities of the government to be disbursed at the discretion of particular officials. This is allowed when it is not possible to determine
TEX'l'BOOK ON THE PHILIPPINE CONSTITUTION
188
Sec. 26
beforehand when the expend itures have to be made, the exact a mounts needed, and the specific u::;e thereof. Or when, for reasons of national security, such expenditures are classified or forbidden to be disclosed to the public by law or administrative regulations. As a safequa rd against illegal , unnecessary, a nd extravagant disbursements, or misappropriations by officials authorized to spend such funds, the Constitution imposes the following conditions: ( l)
The disbursement must be only for public purposes;
(2) It must be supported by a ppropriate vouchers; and (3 )
It must be subject to s uch guidelines as may be pres cribed by law.
(Sec. 25[6J.)
Automatic reappropriation.
In case of fai lure of Congress to pass the general appropriations bill for the ensuing fiscal year , t.he general appropriations law for t he preceding fi scal year sh all be deemed re-enacted. It shall remain in force and effect until the general appropriations bill is passed by Congress. (Sec. 25f7].) This provision is not found in the 1935 Constitution.
It is evident that the conseque nc~s of failure, voluntary or otherwise, on the part of Congress to enact a general appropriations law for lhe operations of th e government are serious; and so the wisdom of a constitutional provision for the automatic reapprop ri ation of the same a mounts appropriated for t h e preceding fisc al yea r is beyond question.; SEC. 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title the reof.
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies t h ereof in its final form have b(:'len distributed to its Members t hree days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays ente1·ed in th~ Journal. Lhnit~tic:>n_~ Q~. !f:tE!..R~~~r. Q!.. £!?_'!9~ess.
The legisla tive power is not without. limitations. Such limitations may be classified into: (1)
tS.u.b.s.tant.i.IJ.&.. -Th ey refer to the subject matter of legislation, and
they may
b~:
'See Buck, The Budget in Gover nment of Today, p. 219.
AH.'l'. VI - LEGISLATIVE DEPARTMENT
189
(a)J.....11JJ2(£1!1-.J.f:!.nit[_tJ.!!?.!!:..f!.: ·- They do n ot arise from any specifi c provision of the Constitution but a re inferred from the nature and character of our government, such as the prohibitions against the delegation of the power to make laws and the passage of irrep~a lable laws; {b) .§E.eE.iJ!£. l~m i!:_atioiJ§.~'!:. generql_legi§_Lgjive poulfu:s. - They restrict t he field oflegislation in general and they a re mainly found in the Bill of Rights; and (c) ~.l!.®£_lj_mit(1t.~Q1J.ti..!>!J_~~<,!ifie p_(J.ll!.f?F§.: - They are scattered in different parts of the Constitution. Thus, on the power to tax, the rule of taxation must be uniform a nd equitable; on t he power to appropriate, public funds must not he a ppropriated to religious purpose; on the power to declare the existence of a state of war, the concurrence of twothirds of all the members of Congress must be obtained, etc. ; and
(2) £ Q!'.1!1JJ1. - Th ey refer to the procedural requirements to be complied with by Congress in the passage of bills and the form and content of the same. Examples of such limitations are found in Sections 26 and 27{1). Prohibition against delegation of legislative powers.
One of the settled maxims of constitutional law is that one department of the government may not delegate to another department or t o any other body the powers entrusted to it by the Constitution. Thus, Congress is prohibited from delegating its legisl ative powers. In the a bsence of this rule, the principle of separation of powers can h ardly exist. The rule of non-delegability of legislative power, however, is not absolule. It does not apply: ( 1) ~h~.r~ tb~. 4.e.legatiQtL~ ~ .. ~J:i:I!T~~l.Y..autlwriz~d_.by_ . the..Gons.tit ution.. (see Sees. 23[2 1. 28l2] supra. ); a nd ( 2) ~-~!.~ ~P.!: ci~~~_g~t0.t;.}.~"!lla.9.~.~())9~~! ~~!!!Oe~k~· (Art. XI , Sec. 5. J This exception is logical for , after all, municipal corporations are merely instrumentaliti
Prohibition against the enadment of irrepealable laws. (1) &s.e.Jl.C.£. cif..1£.1li§.l_q_tJJl.~.. J29..?1!e r,._ - Legislative power is the authority to make laws as well as to alter and repeal them. The continuous making of laws - new laws as well as those that a mend, alter. or repeal existing ones - is the very essence of legislative power. The legislative prerogative to
•u.s. vs. New Orlean.:,;, 9H U .S. 381.
TEXTBOOK ON THE PHILIPPINE
190
CON~TITUTIOK
pass laws cannot be curtailed; otherwise, time m ay come when succeeding legis lative bodies will have nothing more to do because the entire fie ld of legislation has been completely exhausted through the enactment of permanent legislation. (2 ) Can.se_q !lences to public welfare if laws irrepealable. - Furthermore, injurious -conseq U:ence·s- ·to. th·e· couii·t;y.:.·y;.-~·uid··;:-e·s~iTtif legislation passed by the lawmaking body assumes a permanent character. The policy of the state would become fixed and unchangeable on great n a tional interest in spite of cha nged conditions arid times. Laws enacted seve ral decades ago for a pa rticula r need may no longer be beneficial today. If th ey cannot be r eplaced, they will retard, if not destroy, the public welfare. 2
Requirements as to subject and title of bills.
A proposed law is called aJllJ:b. The Constitution requires that ~_x_bill
p.a.s.s&i..hy . C.ongr.e.s.a...shall .emhr~~-QJ.U.L.Q...n.JLS_\!'!Jj~.<:~ .!YP.i~.h...J! hall M-~~= P.r.f.ll.~ ~.cJjn~th.eJitk..t~of.
(Sec. 26(1]. ) The purpos es of t he constitution a l
requirement are:
CJ-) To prevent hodge-podge or jog-rolling legislation; (~)
To prevent surpr ise or fraud upon the legislature; and
(.3) To fairly a ppri se the people , through such publications of legislative ·proceedings as is usually made, of the subjects of legisla tion that are being considered, in order that they may have opportunity of being heard t hereon by petition or otherwise, if they shall so desire.3 Meaning of hodge-podge or log-rolling legislation.
li.odge:Jl.odge 9Li9ll.:[email protected] (i.e., omnibus bill) refers to any measure containing several subjects on unrelated m atters combined together for the purpose of securing the support of members of the legislature severally interested in the different subjects of the bills.
If these subjects were to be presented in separate bills, the likelihood is that none of them might obtain a m ajority vote .~ Effect of violation of requirement.
The constitutional provision prohibits the passage of two classes of bill s , to wit: ( l) A bill containing provisions (riders) not fairly embraced in its title or r elated to its subject matter (see Sec. 25(2].); and "Sec Bloomer vs. Stailey, 5 McLean, 15S F~d. Cas. 3 Cooley, op . cit .. p. 172. •v.G. Sinco, op. r.it., p. 225.
s(~(·.
2G
ART. VI. -
LE GISLATtVE D KPA Hl'MEl\"T
191
~) A bill wh )~~ h ~·m?odi.us di/(crr.nt :mbjt·cts notwithstanding that a ll of the m are expressed m 1ts tith .
.In the fi r s t ca::;e. t ht' b ill i t: •·a lid except th~! provi::-;ion:; n ot fairly e mbr aced i n th e ti tle. In the second ca ::;e . the whole a ct is void .
el c:_c.eptions. tQ.th~..reQY.imment.
It does not a pply to: (•.l) Local ord inances as they do not partake of the nature of la ws but Rr e mer e rules provid ed for the fu lfi llment of l aw s; ~ and (2 ) Propel' cod1f1cat ion s a nd revis ions of st atut es . T h us. a l aw wit h t he titl e "An Act to Orda in a n d Jm;t it ute th e Ci vil Code of the Philippines" or with the title "An Act Amending the Ci vi I Code of the Philippine8" is valid a lthough it may contain httndred s of different ma tters, for the very denomination '·Code'' i ~ sufficient to p ut the members of the legislature and the people on tlH~ i r g uard. 0 Steps in the passage of a bill. ~~J). Fzn;t R!!ad ing. - Any m E:! mher l)f eithe r Hou1:1e may p r.e::~c nt a p roposed bill ( R<.>e Sec:. 24.1. sip,n!":l by him. fo1· First Re
(2VRe{erral to a ppropriate committee. -- Imm ed iately aftt!r th e F irst Reading, the bi'!l ..i::; referred to the proper Cllmmitt('e or coromitteeg for ~> tu dy and con:-;id(!ration. It may conduct hee~rin gs a n d consultati9n meetings. It then appr·oves t he hill with or with out amen d ments or r ecommends !:iUbstiLu tion or consolidat ion with simi la r bill s fi led . If disapproved itct h e committee, t he bill d ies a natured d
(4l/Debat es. -- t-\ g
'•U.::<. v~ . F.spititu S <1 nfo. :~2 Phi l. Gl(l. "See Ignacio v,;. L'r
v~.
Buc nviaj e , 47 Phil.
~:36.
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
l92
Sec. 26
ments s hall be done in accordance with the rules of either House. The Houge may either "kill" or pass the bill. A bill approved on Second Reading s hall be included in the calendar of bills for Third Reading; (5j Printing and distribution. - After approval of the b1ll on Second Reading, t he bill is then ordered prin~ed in its final form or version and copies of it are distributed among the members of the House three d ays before its passage except in case of bill s certified by the President (Sec. 26[21. );
(6) Third Reading.- At this stcge, only the title of the bill is read on the floor: Nominal voting is held. Upon the last reading of a bill. no a mendment thereto is allowed and the vote thereon is taken immediately thereafter, and yeas and nays entered in the journal. (Ibid. ; see Sec. 16[ 41.} A member may a bstain. As a rule, a majority of the members constituting a quorum 1s sufficient to pass a bill; (7} Referral to the f"Jther House. - If approved, the bill is then referred to t he other House where substantially the same procedure takes place. If the other House approved the bill without changes or amendments, the final version is signed by the Senate President and the Speaker of the House of Representatives. t8) Submission to joint bicameral committee. - Differences. if any, between the House's bill and the Senate's amended version, and uice ven:a are submitted to a conference committee of members of both Houses fo r compromise or to reconcile conflicting provisions. If either Ho .1se accepts the changes made by the other, no compromise is necessary; and (9! Submission to the President. - A bill approved on Third Reading by both Houses shall be printed and forthwith transmitted to the President for his action - approval or disapproval that is, he either signs it into law or vetoes and sends it back with his veto message. If the President does not communicate his veto of any bill to the House where it originate-d within 30 days from receipt thereof, it shall become a law as if he signed it. Bills repas~;ed by Congress over the veto of the President a utomatica11y becomes a law. (Sec. 27(1].) Purpose of provision requiring three readings of bill.
Note that t he three readings of a bill must take place on separate days -- not in one day. (Sec. 26[2].) The purpose is to prevent hasty and improvi dent legislation and the railroading of bills, and ·to compel the car-eful examination of proposed laws or, at least, the affording of the opportunity for that purpose. 7 In the past, railroading of bills made possible the adoption of voluminous measures without the benefit of discussion and public information because, oftentimes, the three readings were done in one singte day. ~sec
Cooley, op. cit., p. 286.
A.~
Sec. 2'7
r '. L -- ~ ECIS L:\ riVE
DEP,\R'f:\fENT
193
Certification of bills by the President.
The Consti tution prOIJde,; that "no btll pa.s~ed by either House .shall become a law unlc~s it !-las pclf.>::.t;!d three read ingl:i on separate day::;, and printed COpieS th e r ~•of iTJ. It:; fiuaJ fOftu have been UiStributed to the ffif·mbers three da y~ bef<.:re it.::. pllSsage .'' Th!=~Jf.S~.P.ti!.m t u ~li_eJ!.\LQ.~g r~~Win:n1~nt it) ~--"'.th~J:L~.h~__?resident ~er.tifies .ID.~~.La._public calami ty o.t:
to t}le n.~£~~?.sity _of i.EL u_nr!wdi
.emerg.en.c:y;' !_Sec. l612}. • With thi.s proviaion, a certification may be issued to a bill only ~ Jw:et a..IJ.u!Jl~~---~-(~i'I.rnitv ol:.gmerg_~.Y- It aims to put a stop to the practice of tne xnb~r~ of the !.~: ,i Con gress under the 1935 Constitution to get from t.he Pr esid~n l Ct.'rt.l!~ t at.i 1H1 uf their biHs fo r po litical convenience . This practice m a tl ~ po~~;:;d:: !!:' tht) t~ aa dment ·.;flaws without sutiicient debate and the b11ving ol tq:-- ~:non ty to \ns1gr.iticant bllls over more important ones by the .simple lad •)f l?n~i>id.ent1a l -:ertlft{:ation. Purpose of requirement that yeas and nays be entered in the journal.
It is a lso pru\o' ide d in tiw Ct)H~tit utinsidered m andatory . It is intended to fix upon each membBr the respon:'ith ility for his a ction in legislation, and also to furnish conclusive evidence whether the ' bill has been passed by the requisite majority or not.'
SEC . 27. (1) Every b ill passe d b y the Congress shall, before it becomes a law , be present~d to t h e President. If he approves t he same, he shall ~; ign it; oth~r-wise, he shall veto it and return the same with his objections to the House where it originated. which shall enter the objections at large in its ,Journal and procee d to reconsider it.l.f, after su(.'h r·econsideration, two-thirds of all the Memhers of s uch House ~hall agree to pass the bill, it shall be sent, together with the objt>t~tions, to the other House by which it shall likewise be r~<.~o nsidered.. and if approved by two-thirds of all the .M embers of that House, it shall become a law. In all such cases, the votes of each House shall b e determined by yeWJ or nays, and the names uf the Members voting f()r or against shaU be entered in its Journal. The President shall communicate his veto of any bill to the House w h e.re it originated within thirty
-~cooley,
op . c1r. ..
~P- :.wv-~:n.
T EXTBOOK
19-l
0~ TH~~
PHll.IPP lXE
CONS1'lTIJTIO~
Sec. 2 7
d.ays after th e date of receipt t h ereof; otherwise, it shall become a law as if h e had signed it. {2) The Pt·e side nt shall have t h e powe r to veto any particular item or ite ms in an appropriation, revenue, or tariff bill, but the veto shall not affect the ite m or items to whi ch he does not object. Meaning of bill.
A pill is a draft of a la.w submitted to the consideration of a legislativE! body for its a doption. • Meaning of statute.
A
is the writien will of the legislature a s a n organized body according to the form necessary to cons titute it into a law of th e state, and rendere d aut hentic hy cer tai n prescribed forms a nd solemnit'ies.:t $_taty.,ft
expre~sed
The term "act" is often used in referring to a statute. How statutes identified.
Statutes pas::;ed by the former Congr ess are, for purposes of formal refere nce, denom inated as· a cts . They are identifie d by their serial numbt:~rs (e.g., Republic :\ct No. :~86;. Where a specia l title is supplied fo r a particular statute (e.g., "Civil Code of t.hH Phili ppine:'~ "), such title may a lso be used fo r ide ntifica tion. Statutes enacted by t he former Batasang Pambansa are also identified by th eir Rerial num bers (e.g.. Bata:) Pambansa Blg. 25 ). Formal parts of a law.
The formal pa rts of a statu te (or bill) a re the following:
(]) .:J'JJ.l~:. ··-It announce:-; the subject matter of the act. (see Sec. 271.11. supr a . ) Thus, Republic Act No. 386 h as for its title, ·'An Act to Orda in and
Institute the Civil Code of the Phil ippincH ." Laws en acted by the former Batasang Pambansa are e nt itled in a si m ilar manner . Thm>, Batas Pambansa Blg. 25 gives a s its title, "An Act Regula tin g Rentals of Dwelling Units or of Land on which Another's Dwelling i:-; Located and for Other Purposes"; (2 } fLtt.Jl.!!J:.Q.k . ·- It follow!:! t he tit le an d precedes tbe e nacting cla use. It is a sort of introduction or preface of a law. The purpose of the preamble is to explain the reasons for the enactment of a law :-:~ nd the object::; sought to be attained. It is not considered pa rt of t.he s ubstance of t he law. The 1
Bouvi er.'s Law Dictionary. Am. Jur. t5.
2 50
Sec. 27
ART. VI.- LEGiSLATIVE DEPARTMENT
195
Constitution does not contain any specific provision requiring the use of a preamble in any legislative enactment; (3)_/t..!.]._g.cling cl_gu.s.e. - It immediately precedes t he body of the statute and it serves as a formal means of id entifying the legislative body that enacts the law. Republic Act No. 386 has for its enacting clause, "Be it .enacted by the S e nate and House of Representatives of the Philippines in Congress Assembled." In the case of the Batasang Pambansa, the enacting clause is as follows: "Be it enacted by the Batasang Pambansa, in session assembled." The Constitution does not also require the use of an enacting clause in bills enacted into law;
(4 ) Body. itself; and
It is that portion containing t he proposed l aw or statute
(5) .§ff'e.c!!!!J~y ~l(ll~Sf· - I t is that portion providing for the time when the law shall take effect. A law takes effect 15 days following the completion of its publica tion in the Official Gazette (which is the official publicat ion of the Philippine government) or in a newspaper of general circulation in t he Phil ippines, unless it is otherwise provided,3 e.g., a date is fixed for its effec ti vity.
When bill_Ql~~ beco~TI_e. ~JC!W.
A bill passed by Congress may become a law in any of the following ways:
ii i When the President approves the bill by signing it; ($) When he vetoes the bill and retu.i.·ns the same with his obj ections to the House where it originated , and the same is repassed over his veto by a vote of tw.D-t:hiul§__Q[ alL the ~mbe~ (not merely two-thirds of al l the members present constituting a quorum) of both Houses; and (.S ) If the President does not commu nicate his veto of any bill to the House where it originated within thirty (30) days a fter the date of receipt thereof, in which case it s hall become a law as if he had signed it. (Sec.
/fh~ ~ign.atJ.l.U...oi..kM..P resid.eru llLD.!li.necessar}:..ia...enada law when the ..{l~QP!e by vjr_~u.e qf tb~ir~Y.e.d..gp;v ers~re.c.tly .uarticipat.e_in....the.legi sl a
..t.i.Y.e
P.I'QGeSS
by i n.1ti.~ ti.Y_e ."§I.J._d._r ef~r~n.dP._m,\( Sec. 32. )
Veto power of the President.
The wor~ is the Latin term for "I forbid" or "deny." It is the power vested in the President to disapprove acts passed by Congress. The veto
'3
Executive Ordc:r No. 200 iJune 18,
I~H7 J .
TEX'l'l:lOOK ON THE PHJLIPP.INE CONSTITC'l'TON
J96
message to the Hous e whe re t he bill origi nated the bilL (Sec. 27l11.)
~ xpl ains
Sec. 27
h is objections to
Purpose of veto.
Two fundamental reas.:>ns have been given to the gra nt of the veto power to the President, to wit: ;;;n To enable the executive depa rtment to p rotect its integrity as an equal br a r.ch of the government and thus m aintain an equilibrium of governmental powers; and (2i To provide a check on hasty, corrupt, or ill-considered legislation. 4 /
Pocket veto not allowed.
Under the Constitution, the P resident does not have the so-called PD.cli&J.IldQ..J2QI£J2', i.e. , disapproval of a bill by ina ction on his part. The
fai lure of the Presi dent t? communicate his veto of a ny bill presented to him within 30 days after the date of receipt thereof a utomatically causes the bill t o become a law. (Sec. 27[1].) The rule corrects t he Presidential practice under the 1935 Constitution of releasing ve to m essages long after he should have acted on the bill . It also avoids uncer tainty as to what new laws are in force. When partial veto allowed.
As a genera l rul e, the President may not veto a bill in. pa rt and approve it in part. Th e exception is provided in pa r agra ph (2) of Section 27 which gra nts the President the power to veto any particular item or items in an appropri ation, revenue, or tariff bilL (see Sec. 25.) The veto in such case sha ll not affect the item or items to which he does not object. Without the exception , the entire appropria tion or r evenue meas ure would be nullified simply becaus~ the President disapproves even one particul a r item th erein , and this might adversely affect the operations of the government if no funds are available or taxes cannot be collected .6 The item or items vetoe d may be repassed ove r the veto of the President in the same manner as ordinary bills . The vetoed items shall simply be not given effect. Meaning of resolution.
Enactments of t he la wmaking body .r11ay al so he made in the form of res olutions. A_ resolutia~ has been defined as a fo rm al expression of opinion, will, or intent by an official body or assembled group. 6 • ' See People vs . Councilmen of Buffalo, 20 N .Y. Sup. 51 , cited in V.G . Sinco, p. 287. ~Del. V.C. YAncha, "l'he P ll rl iam!lnt." in C. R. Montcj t\ supra ., p. 121. 6 Webater's Th ird New l.ntcrn atiomt l Dictionary , 1976 ed.
Sec. 28
ART. Vl.- LEGiSLATIVE DEPA.RTMF;NT
197
Use of resolutions.
(1} Resolutions are employf\d with respect to matters within the exclusive ·authority of the lawmaking body and do not, t herefore, require the a pproval of the President for their effect.i,·ity. Thus, the rules of procedure of a lawmaking body, orders imposing some penalty upon any of its members, or proposals for constitutional amendments would be embodied in resolutions. (~) They are a lso used when a lawmaking body expresses an attitude or opinion. Thus , resolutions would be proper in expressing condolences on the death of a member or of a high government official , or in declaring its opinion on important national questions. C3') Under Section 28(2) (supra.), the power to fix tariff rates, etc. dele'gated to the President m ay be withdrawn by the lawmaking body by
means of resolution. Kinds of resolutions.
A resolution may he: (1) simpft if passed by either House for its excl usive use or purpose; (2) .cQll.Clll'J.QJJ, if passed independently in one House and ratified by the other in the same manner as a bill; and ( 3 ) ~t.. if approved by both Houses meeting in joint session but voting S13parately (e.g ., oue proposing a mendmen ts to the Constitution).
There is no provision in the Constitution requiring thB approval by the President of any kind of resolution. SEC. 28. (1) The rule oftaxation shall b e unifonn and e quitable. The Congress shall evolve a progressive system oftaxation. (2) The Congress m ay, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and e xport quotas, tonnage and wharfage dues, and other duties or imposts within the framowork of the national deve lopment program of the Governme nt. (3) Ch aritable ·institutions, churc h es a nd parsonages or convents appurt'>..nant thereto, mosques, nonprofit cemeter ie'i, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educatio nal purposes sh a ll be exempt from taxation. (4) No la w granting any tax e xemption shall be passed without the concurrence of a majority of a ll the Members of the Congress.
TEXTBOOK ON THE PHILIPPI NE CONSTITUTiON
198
Sec. 28
Uniformity in taxation.
U.l1if.(u:mity in fu.;r.aJ.iQT!- means that ''all taxable articles or properties of the same class sha ll be taxed a t the sam e rate." 1 Diffe rent articles (or other subjects, like transactions, business, rights, etc. i may, therefore, be taxed :1t different rates or amounts provided that the rate (not necessarily the amount) is the same on the same class everywhere.2 Uniformity implies equality in burden, not equality in amount. Thus:
}1'> A tax of P2 .00 per square meter or fraction thereof imposed on every billboard or sign anywhere in thE7. country was held valid as against the contention that it was void for 1ack of uniformity. 3 (2) There is no violation where those with different incomes are made to pay different rates of tax because in this case, the incomes are considered as belonging to different classes.
(.3) All residential houses, regardless of their assessed value, may be considered for p urpose s of taxation as belonging to one class (i.e., residential property) and made s ubject to the same tax rate (e.g., 2.5% of assessed value) but different amounts of tax depending on their value. The law, however, may validly further classify such property a ccording to their assessed va lue a nd levy different rates, and consequently , different amounts of tax on the basis vf such value. The reason for the rule of uniformity in taxation is that not all pN ~' (' :l ". properties, or transactions are identical or similarly situated. The cla,.;cl ificati.on of the subjects of taxation must be based on reasonable and substantial grounds. An arbitrary classificati on will offend the guarantee of"equal protection of the laws." (see Art. III, Sec. 1, supra.) Equity in taxation.
Aside from the requirement that the rule of taxation shall be uniform, the Constitu tion also mandates that it shall be equitable. (Sec. 28lll. ) Uniformity in taxation is effected through the apportionment of the tax burden among the taxpayers which under the Constitution must be equitable. To be sure, a tax law m ay prescribe a uniform rule of taxation and yet it may b ~ inequitable a s where the r ~tes of tax are excessive or confiscatory. The concept of equity in taxation requires that such apportionment be more or less just in the hght of the taxpayer's ability to shoulder the tax burden (usually measured in terms of the size of wealth or property and income, gross or ne tj and if warrante d (in certain cases, like the tax on gasoline), on the basis of the benefits he r eceives from the government.
:Tan Kim
v~.
C.T.A., L-18080, April 22, 196:3. Stanley. 32 Phil. 51 1. achurchill v~. Concepcion, 110 Phil. 3:n. ~oe Villt~ ta v~.
AR1'. VI.···· LlWlSJ.A'J'IVE DEPARTl\H:NT
199
Progressive system ot taxation.
To achieve the equHy objective in taxation, the Constitution enJoms Congress to "evolve a progressive syst"::!m of taxation." This means that tax laws shall place more emphasi s on direct (e.g., income, donor's, and estate taxe~ ) rather than on indirect t a xes (e.g., customs duties and value-added taxes which the taxpayer can recover from the consumer by adding the same to the price), with ability to pay as the main criterion. The individual income tax provides the best example of a direct and progressive tax. The rate of the tax increases as the tax base or bracket (amount of income) increases. Delegation of taxing power to fix tariff rates, etc.
By express p•·ovision of the Constitution, Congress is authorized to delegate to the Pre~ident its power to fix within specified limits tariff rates, import and export quotas, tonnage and wharfage dues, 4 and other duties or imposts . The aut hority so granted is, however, subject to such limitations and restrictions as the Congress may seem wise to impose because Congress is prohibited from abdicating its lawmaking power over the subjects mentioned. For in:-;tancc, the de legation of power must specify the minimum as well as th~ maximum tariffs. Furthermore, the authority given to the President mt1st be cxe!'cised within the framework of the national development program of' the government. (Sec. 28[21.) The above is another exce ption to the rule against the delegation of legislative pow er. (see Sec. 2:3f21.) Exemption of certain entities and properties from property taxes.
Section 28(3 ) pro\'tdes that the institutions and properties mentioneci therein shall be exempt from taxation. Other exemptions are provided by statutes , but in those cases, they may be withdrawn. The exemption covers only property taxes and not other taxt>s.'" The test of the exemption is the use of the property and not owner!>hip. Thus, a property leased by the owner to another who uses it "actuaJiy, directly, and exclusively" for religious, charitable or educational purpose is exempt from property tax but. t he owner is subject to income tax. eYen if the income is
'Tottnnge du(!.~ ~arl'! thr lel engaged in foreign or coa:;t wise trade based (rn the quality , weight or m~·a .:;ure receiYecl and!or discharged by s uch ves.;;cl. !Sec. 2801, Ibid.) "Ladoc vs. Comm., L-19201, June 16 . HHi;)
200
TEXTBOOK ON THE PHILlPP tNE CONSTITl;TION
Sec. 29
used or devote d by him or another fo r religiou:;, ch aritable or educational purposes . Note that with res pect to cemeteries, only those which are non·pr ofit are exempt from taxation. All revenues and assets of non-stock, non-profit educational institu tions used a ctually, directly, and excl usively fo r educational purposes are exempt fr om pr operty a nd income taxes and customs duties. Proprieta ry educational institutions including those cooperatively·owned may li ke wise be entitled to such exem ptions subject to such limitations provided by law, including r estrictions on dividends and provisions for investmen ts. Grants and donation s used actually, directly, and exelusively for educational purposes are also exempt from tax l:lubject to conditions prescribed by law. tArt. XIV, Sec. 4l3 , 4].) Votes required for grant of tax exemption.
The Constitution requires the concu rrence of a ..!!J!lli>ri!Y.JJ.LillLlh&_ lll2rn.berJ> of Congress to pa ss a law granting an y tax exem ption (Sec. 28[4j.)
a s a s afeguard a gainst t he indiscriminate grant of ta'< exemptions. U nder the 1935 Constitution, a simple majority of th e quorum was sufficient.
SEC. 29. (1) No m oney shall be paid out of the Treasury exce pt in pursuance of a n a ppropria tion made by la w . (2) No public money or prope:"ty shall be appropriate d, a pplied. paid, or e mployed. directly or in direc tly, for the use, benefit, or support of any sect, church, denomination, sec tarian institution , or system of r eligion, or of any p riest, preache r, minister, or other religious teacher, or dignitary as s uch, exce pt whe n su ch priest, preach e r , minis ter, or dignitary is assigned to the armed forces, or to any p e nal in stitution, or governme nt orphana ge or le prosarium. (3)\:.All money collected on any tax levied for a s p&.-'ial purpose shall be trea ted as a special fund and p aid out for suc h purpose only. lfthe purpose for which a special fund was c rea ted has been fulfilled or abandoned, the bala nce , if any, s hall be transferred to the gene·r al funds of t he Government.
The power of appropriation.
Tile power to appropriate public fun ds for the maintenance of t he government and other public needs is a vital government function which is vested in Congress. Section 29( 1) is bal:!ed u pon the p rinciple that t he ,people's money may be spent only with their consent. That consen t may be expressed either in the Constitution itsel f or in valid a cts of Congress as the direct representative of the people. It a cts as a legislative check upon
St'c. 29
ART. VI. - LEGISLATIVE
DEf'.\.RT~U:i\"1'
20 1
the disbursing power of the President, or the heads nf departments and other executive officials. Without the restriction. gc)vernment funds would be misused. 1 In case a special election for President and Vice-Prek:li dent is called by Congress, the appropriations for the same shall be charged against any current appropriations and shall be exempt from the requirement of Section 29(1!. (see Art. VII. Sec. 10.) Meaning of "'appropriation made by law."
An appropriation is per se nothing more than the authorization by law that money may be paid out of the public treasury -' It i::; the setting apart or assigning to a particular use a certain sum of the publit: funds.
The provision of the Constitution does uot speak of an "appropriation made by Congress" but rather "by law,· a term which CO\'ers both stat:utes and the Constitution. In case of!a'if~~e on the part of Cvng•ess to p~ss the general appropriations bill for the ensuing fisca l year. the general appropriations law for the precedin g fiscal year :;hall be deemed reenacted and shall remain in force and effect until the ge neral appropriations bill is passed by Congress. (Sec . 25l7l. ) Such general appropri ations for the preceding year fall under "'an a ppropriation mad~~ hy law. " Prohibition against use of public money or property for religious purpose.
It is fundamental in democratic governments that taxes may be levied for public purposes only. Since the government is e~tablished for a public purpose, public money can be used only for that purpose. A tax levied for a private purpose constitutes a taking of property without due process of law, and is invalid. !Art. III . Sec. 1, wpra. ) S ection 2 9 ( ~ : is based on the requirement that taxes can only be imposed for a public purwlse . Thus, a public land may not be donated for the com;truction of churches . convents or semmaries. The prohibition, however, is not violated when: (1) P~ -···Where the \1se of public money is not for the benefit of the priest, , . as such but i::; in the nature of compensatic.n to the priest, etc., wb. . :;,;[gne:d to t.he armed forces, or to any penal institution, or gover nmen •. cpha :· ~~e •)r lepr,J~;ari um tSec. 29[2].);
<2 ) _8eligious us.fl...l_nc i_den~.l ·'· i1er· ·.; use of public property for relig1ous purposes is ii'cidental anci tempoL
:st!e V.G. Sinco, op. cit. .. p. 21)5. ~St!t~
Campagna vs. U.S., 26 Ct.
~02
TEXT ROOK ON THE PHILIPPlKE CONSTl'rUTION
Sec. 30
a uthorized to make~Hence, tht! u se of p11 blic streets for re! igiou s processions a nd hold ing of m~ssc!' at t,hc Ri zal Pa rk and in otlwr public proper·ty does not offend the provision.:.: ~imilarly, the payment a s retirement, death , or dis ability benefits to a pri est of fu nds co ntributed to the Socia l Security System does not violate Section 29(2) of the Con!->t.itution where such payment is made to the priest not because he is a pri est but because he is an employ~e: 4 (3) U.s.e,._J2/.{}ili~jn n(t tl~ t£.:. - · Where , for e xample, public fun ds e re used for postag~ stamps commemorating the celebution in Manila of the 33rd International E ucharistic Congress orga nized by the Roma n Catholic Church and the purpose is to advertise t.he Philippines and not to favor any particular church or denominations;" \4) P.QJ!rn&at..b..aMiLQIL~Q.atr.Q:£.t.. -- \\onere, for example, r ent;.:; are paid for a portion of a church or other building belonging to a secta rian institution leased by the government for school or other public purposes since th~ public receives the full bene fit of its contract:" and
(5) .QQ.!?dii d~.ra tion .r.f!ce_ijJed. - Where, for example , free supply of water is given by a m unicipa lity to a r eligious orga nization not on aceount of any religious consideration but in exchange for a don ation of property made t o the former by the latt<.!r.; In short, it is the appropriation of public money or property mainly for rehgious purpose that the Constitution does not s a nction. I see Art. III, Sec. 5; Art. II, Sec. 6. ) Expenditure of special fund.
A tax may be im posed for a s pecial publ ic purpose. In s uch case, the mon ey r aised from such tax sh all be treated as a special fund and paid out for s uch purpose onl y. It cannot be sp ~nt for any other publ ic p urpose. If t he special purpose has been fulfilled or a bandoned. the bftlance, if any, shall be transfer red to the genHral fun ds of the governmen t. ISe<:. 29[3 ].) The specia l fu nd then <:easel> to ex ist. SEC. 30- No law shall be passed incre asing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its a dvice and concurrence.
:s vs. Metrop ulitnn Water Distri ct, 46 Phil. 292.
Sec. :11
ART. VL- LEGISLATIVE
DEPARTMr~NT
203
Law increasing appellate jurisdiction of Supreme Court.
Congress cannot diminish or otherwise impair (reduce) the original and appellatejurisdictiou of the Supreme Court (see Art. VIII, Sec. 2, par. 1.) as enumerated in Article VIII, Section 5(2). But Congress can increase its jurisdiction by assigning to it additional cases for adjudication. As it is, the Supreme Court is already burdened with a heavy load of cases. If its appellate jurisdiction is further increased, the Supreme Court could never reduce much less eliminate the backlog in its docket. Furthermore, by the very nature of its work as a court oflast resort with administrative supervi~ion over all lower courts (Art. VIII, Sec. 6.l, it is in a better position to determine what cases should be elevated to it for review. Hence, any law increasing its appellate jurisdiction must he with its advice and concurrence. It is not necessary to make a prohibition in connection with it~ original jurisdiction because the Supreme Court is essentially an appellate court with jurisdiction over judgments and orders of all lower courts in specified cases, and increasing its original jurisdiction to include cases other than those mentioned in the Constitution (see Art. VIII, Sec. 5lH -~ wm force it to conduct hearings and trials and thus make impossible the performance of its constitutional powers and functions. SEC. 31. No law granting a title of royalty or nobility shall be enacted. Prohibition against granting title of royalty or nobility. (1) Under the above constitutivnal provision, the system existing in some countries, like England and Japan, ranking certain persons as belonging to an upper class called the "nobility" is not allowed in the Philippines. The reason behind the principle is the ~,galitarian principle underlying our Constitution. 1 It is consistent with the declaration that the Philippines is a republican and demo~ratic State (Art. II, Sec. 1.) as opposed to a monarchial or aristocratic form of government. "The prohibition of titles of nobility may truly he denominated the cornerstone of republican government; for so long as they are excluded, there can never be serious danger that.t)le government will be any other than that of the people."2 · (2) The prohibition of titles of royalty or nobility is directed_to Congress. Thus, the Sultan vf Sulu could validly create titles of royalty or nobility and confer them on visiting dignitaries from the legislature or on members of the Cabinet. The prohibition prevents the Cl'!-~ati.on of a privi-
tSee Tailada and Fernando, op. cit., p. 432. Hamilton, The r'ederalist !No. 84J.
2
204
TEXTBOOK ON THE PHI UPPll\E
CONSTI 'l'UTIO~
Sec. 32
leged cla!>s which may transmit their classification by inheritance to their children.:;
SEC. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of any petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. ·· ·· Meaning of initiative and .referendum. (1) JtJitjg,_[iue. - If is the reserved power of the people to directly propose a nd enact laws at polls called for the purpose independently of Congress or of a local legislative body. (2 J...-!ff!1er:e_ndu!....T!:.. - It is the process by which a ny act or law or part thereof passed by Congress or by a local legislative body is s ubmitted to the people for their approval or di sapproval.
Congress to provide a system of initiative and referendum.
The Consti tution in Section 32 h as institutionalized what is popularly known as "people's power" 1 which was manifested with unprecedented popular s upport during and after the 1986 presidential "snap" election and in the "EDSA revolution."2 It manda tes Congress to provide, as early as 1 ·
1970 lJPLC Constitutiun Revision Project, p. B9.
Thc t~rm wh ich has b~en iden t ified wi th Prc!'\id~n t Corazon C. Aqu ino who led it wi t h the support of the Catholic Church, later became a paradigm of change in authoritarian regimes worldwid~. It involv~d the largely p~accful ma ss demonstrations of gren t number of peo ple gathering in meetings, marching, chanting, denouncing wrongdoings, and demanding reforms, culmina t i•;g in the ou ster' of Prcs\d~nt Ferdinand Jo: . Marcos and his subseq uent forced exile tu Hawaii. His last 14 year rule after the declaration of martial law in 1972 wa~< perceived to hE' dicu•torial llnd reprc.~sivc. ~This feCit was re peated 15 years later by what h 11~ been r eferred to as Eds a II, wh i<·h started on the nigh t of January 16, 2001 at the sa me spot ofthe EDSA-Shrim. and ended with t he swearing on .January 20, 20~ I of Vice-President Gloria Maccpagal-Arroyo as the n~ w President in place of President Josep h E. E:;t rada whu wa.o fo rced to give up the presidency over alleged corruption and misr u le . 'l'he occasion for the ou ster was the wal k -out ()f prose~o"\t tors in the impeachment trial of President l!~strada t riggering mass demonstrations and withdrawal of institutional support led by the top military generals, ca binet m embers, ll.nd justices of the Supreme Court. "EDSA I" was a ncar bloodless military "break-away" supported by t h e overwhelming strength of un a rmed civilians t ha t assembled at EDSA on February 22·25, 1986, while "EDSA II" was a peaceful civilian uprising, without force and arms, th is time supported by unarmed top officers tmd men of the Armed Forces of t.he Phili ppines (AFP l an d the Philippine Nationa l Police {PNP). 1
Sec. 32
ART. VI. - LEGISLATIVE DEl'ARTME!\T
205
possible, for a system of initiative and referendum, and the exceptions therefrom. The condition for the exercise of these reserved powers is the registration of a petition therefor signed by at least 10% of the total n'..lmber of registered voters with every legislative district being represented by at least 3% of the registered voters in said district. Other details for its implementation are to be determined by law to be enacted by Congress. Under Article XVII, Section 2, amendments to the Constitution may be directly proposed by the people through initiative. The incorporation in the Constitution of the devices of initiative and r eferendum for proposing legislation or constitutioual amendments, or subjecting acts of Congress or a local legislative body for approval or rejection gives substance to the time- honored principle that in a republican and democratic State "sovereignty resides in the people and all government authority emanates from them." (Art. II, Sec. 1.) Through these processes, aside from elections, plebiscites, and recalls, the people are able to articulate what they feel about certain political, social, and economic issues confronting the country and, in the exercise of the ultimate, reserve power of sovereignty given them, resort to direct action to compel obedience of the government to their own demands, s hort of waging a revolution against it. Our government, however, remains essentially a republican democracy. (see Art. II, Sec. 1. } -oOo-
Article VII EXECUTIVE DEPARTMENT SECTION 1. The executive power shall be vested in the President of the Philippines. President, the Executive.
Following the 1935 Charter, Section 1 vests the executive power in one person alone - t.he President of the Philip pines. It. is, therefore, accurate to refer to him as t he Executive, not merely Chief Executive. The President in a president ial system of government is, however, referred to also as the Chief Exeeutive. Under both the 1935 Constitution and the present Constitution, the President is both the head of State and the head of the government. Unlike the Prime l\linist c r under the 1973 Constitution (as amended), the President is not a legislative leader with membership in Congress. H e is purely an executl ve. t Meaning of executive power.
Executive power has been defined as the power to administer the laws, which means'c a'r:rying them into practical operation and enforcing their due observance.2 The "laws" include the Constitution, statutes enacted by Congress, decrees (issued under the 1973 Constitution), and executive orders of the President, and decisions of courts.
SEC. 2. No person may be elected President unless h e is a natural-born citizen of the Philippines, a registered voter, a ble to read and write, at least forty years of age.on the day of the election, and a resident ofthe Philippines for at least ten years immediately preceding such election.
'We ha v<' 1-1 l'nl~i dc·n t ';; from 1898 up to the pl'esent. (see Note 34 to Introdu ction-C.) Coolt'y . f;nn .~ t. L imit.n iuns, 8th ed., p. 183.
2
206
Sec:;. 3·4
ART. VII. -
J<~XEClJTIVE
207
DEPMtTMENT
Qualifications of the President . Vice-President.
d
;
tion 2 provides for the basic or minimum qualifications of the Presi(l) He is a natural-born riti ?.en oftbe Philippi nes;
<2) He is a registered voter;
(3 J H e is
abli~
to
n~ad
and write;
14 ) H e is at least forty ( 40 ) yea1·s of age on the day of t h e election (not proclamation or assumption of offi ce) for President ; and
(5) H e ;,-- a resident of the Philippines for at immedia tely prc:.·eding such election. 1
~east
ten ( 10) years
The Vice··President must h a ve the same qualifications as the President.
SEC. 3. There shall be a Vice-Pres ident who shall have the sam e qualifications and term of office and b e elected with and in t h e sam e manner as the President. He m ay be r emoved from office in the same m a nner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. The Vice-President.
The Vice-President shall have t he same qualifications and term of office a s the President and may be r emoved from office on impeachment a::. in the case of t he Presiden t. (Ar t . XI, Sec. 2. ) He may l e appointed as a member of the Cabinet without need of confirmation by the Commission on Appointment::; in Congress. To reque ~t confirmation would degrade the dignity of the high office ofVice-President.
SEC. 4. The Preside nt and the Vice-President shall be elected by direct vote of the p eople for a term of six years which shall begin at noon on the thirtieth day of June next fol1 owing the day of t h e election and s h all end at noon of the same date six years thereafter . The Pres ident shall not be eligible for any re-elec· tion. No person who has su cceeded as Pres ident and has served 1A,.; t.O llli:!CI.ning of "rcgi;;to red voter" a nd "n;:;i(h'll('C ," .;f!p Articl(' vr, Section a. it is believ~d that the Co n><~e!l t:xc·cuti Ye al:>i lity to occupy the highest offic•~ of tht• land. ''Nev~rtheles1:1,
208
TKXTB
Sec.4
as such for more than four years shall be qualified for election to the same office at any timt::. No Vice-President shall serve for more than two successive terms, Voluntary renunciation of the office for any length of time shall not bE' <:.onsidered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular election for President and Vice-President shaH be held on the second Monday of May.
The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after tl.e day of the election, open all the certificates in the presence of the Senate and the House ofRepresentatives injoint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elect.ed, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress~ voting separately. The Congress shall promulgate its rules for the canvassing of the certificates.
The Supremt' Court, sitting en ba.nc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President m· Vice-President, and may promulgate its rules for the purpose. Election of the President and Vice-President tl) S')'.'ltem of d;rect uoting. -The Constitut-ion retains the system of. direct poputar e]c(~twn of the President despit.e criticism for abetting massive vote-buymg and other undesirable practices. · Ca i This is considered more democratic and more in keeping with the Filipino culture and tradition tha l they individually vote for their leader - their choice of th~ man who woulrl be their President. The people should not bP deprived of the right to choose the head of their government, considc;·ing that, having exercised it since 1935, this right has acquired special significance for them.
Sec. 4
ART. VII.. ·- EXEC UTIVE DEPARTMENT
209
{b ) On the part of the President, the fact that he has popular suppor: would enable him to muster the necessary courage to effect policies promotive of t h t- greater good despite opposition from vested interests.: Moreover, since there is a need for a strong national executive who can deal effectively with the problems of national survival as well as unite the numerous ethnic groupings constituting our nat.jon during these crucial times, a President elected by the lawmaking body with no fixed term may become subservient to the members to keep their support.
(2 j Election by Congress in case of a tie. - In case of a tie, however, the President shall be chosen for the term fixed in the Constitution by a vote of a majority of all the members of Congress in session assembled. (Sec. 4, par. 5.) The Vice-President j s elected with and in the same manner as the President. (Sec. 4, par. l.i Unless otherwise provided by law, the regular election for President and Vice-President shall b e held on the second Monday of May. (Ibid., par. 3.) Term of office of the President and Vic~President.
The President and Vice-President. enjoy security of tenure. Their term of office iR six (6) years "which shall begin at noon on th e 30th day of June following the day of the election and shall end at noon of the same date six (6) years thereafter." ipar. 1.) The Presiden'"-elect and Vice-President-elect shall assume their office at t he beginning of their term5. (Sec. 7 , par. 1. ) Term of office distinguished from tenure of office; right to hold office; and office. (1) The phrase term of office refers to the period, duration or length of time during which an officer may claim to hold the office as of right, and fixes the interval after which the several incumbe nts shall succeed one another .
(21 It is not to be confused with tenure of office (or actual incumbency} which represents the period during which the incumbent actually holds the office. The tenurf! may be sh orter t han the term for re a sons within or beyond the power of the incumbent. The President may be removed from office by Congress by means of impeachment. (Art. XI, Sec. 2. ) A vacancy in the Office of the President arises in case of permanent disability, death, or r esignation of the President. (Sec. 8.)
1
19R6 U.P. Law Constitution Revis ion Project, Executive Department, p. 8.
TEXTBOOK
210
0~
THE
PHILIPPf~ E
CONSTlTUTIO!'J
Sec. 4
(3) A right to hold office, on the other hand, is t he just a nd legal claim to enjoy the powers and responsibilitit-s of th e office. (4) The off'ice is an institut ional unit of government. while term is a matter of time during which a person may hold the office. 2 (see Art. XI, Sec. 1.)
Reelection of President and Vice-President.
A per son who haR held the office of President is a bsolutely disqualified for any reelect ion. In th e case of toh e Vice-Presi dent, he cannot serve for more t h an two (2) successive terms (Sec. 4, par. 2. ) but he is still eligible for election as President. A Vice-Pr esident who h as succeeded a nd served as President for more than four (4) years (even in an acting capacity) is also disqua1ified for election to the same office at any other time.:i (Ibid., par. 1.) The voluntary renunciation of the office ofVice-Pn:lsident for any length of t ime does not interr'~pt the continuity of the service for the full term of six (6) years. {Ibid ., par. 2.) T hus, a Vice-President wh o voluntarily r enounced or resigned from hi s office is deem ed to have served for six (6) years for purposes of the ban against r eelection. The President is not eligible for any r eelect ion. (See Art. II, Sec. 26. ) But they may be elec!:~d to a lower position. Reasons tor prohibition against re-election of President.
The following have been give n: (1) A President see king a second term is vulnerable to constant politica l pr ess ures from those whose support h e must pr eserve and h as to devote h is time and energy to consolidate this political s upport. In the context of Philippine P.xperience, every President elected to t he Office h as used th e first t.erm to work for r eelection; (2) A President who seeks a second term is under a ten·ific handicap in the performance of his functions . The result h as been that political motivation is attributed to practically every act he performs; moreover, the danger of alienating much needed votes may be an o b ~tacle to the proper and impartial performance of his duties; (3) A President seeking reelection will even usE' pub lic funds for t he purpose even to the extent of making t he gov ern m ~nt bankr upt because no incumbent Pr esident would like to go down from power as a leader repudiated by his people;
Nt!evo vs. Angeles, 76 P h il. 12; Aparri vs. Court of Ap peal!'!, 127 SCRA 231. Jan. :~ 1 , 1984; <1uekt>ko vs. S'lntos, 76 Phil. 237; Pan•dt>s vs. ~fenal!ad, 56 SCHA 522, April l:'i, 1974; O livc rM> vs. Villaluz, 57 SCRA I 63, May 30, 1973. 3 S!!t~ note 34 to Introduction-C. 2
S ec. 4
ART. VU. - EXECUTIVE DF:PARn.lENT
2 11
(4) The prohibition also widens the base of leader ship. In theory, no man is indispensable in a democracy, and any person, no matter how good he is, may be replaced hy other s equally good; (5) The ban will also put an e nd or at least hamper the establishment of political dynasties;' {6) The six-year term will give the President a reasonable time within which to implement his plans and programs of government. He can concentrate on being President free from the demands of pa r t isan politics;fi and
.. ... (7 ) The criticism agai n ~ t a six-year term without reelection that six (6)
years are too long for a bad President but too short for a good one, and that the people will suffer most from a lameduck presidency may be remedied by the provisions on impeachment. {see Art. XI, Sec. 2. ) A term, no matter how long, is short for a good President. The main argument against the absolute prohibition on reelection is that it forecloses the possibility of a good President being recalled to the office at some future time should his services be required. Imposing a complete ban on reelectiun will , in effecl, penalize th e people from calling back to the Presidency a person who has rendered s ign a l s ervice to the na tion, should that need for such man arise. As an alternative. the ban should be on immediate reelection in order to prevent the President from using his office to advance his candidacy .R Furthermore, the people a re the wisest judge on how many terms a President (or Vice-President) is going to have.
Canvassing of returns and proclamation. (1 ) Returns transmitted to Congress. - The returns of every election for Pre::;ident and Vice-Pres ident are canvassed I exa mined for authenticity) by the board of canvassers of each province or city, adding all the returns in ev~ry town in the province or every district in the city. These r eturns which show the r esult of the voting must be duly certified by the corresponding board. Then , they are transmitted to Congress directed to the President of the Senate who shall, not later than thirty (30) days after the day of the election and in the presence of the Senate and the House of Representatives in joint public session and upon determination of the authenticity and due execution thereof' in the m anner provided by law,
'Sec 1970 UPLC Con:;titution Revis ion Proj ect, p. 442. &1986 UPL Constit ution Re-vision Project, Exccutive Depart men t . pp. 12- 1:3. 8 1970 UPLC Cons titution Revis ion Project, p. 442. ' The ph rase "u pon determination of the a uthenticit y an d due execution thereor' h al> been a dded in view of t he national exper ience in the J986 ":;nap" pr•csidential election. The Ba t asang Pambansa majority pa r ty insisted that in the counting of vot es it s duty was purely ministerial and, therefore, rould n ot go beyond the returns. The n ew phrase is intended to emphasize that Congress must first be satisfied on the genuineness of the returns. If they are obviously false, statistically improbable, or patently irregular (e.g., the n umber of votes cast exceeds the number of registered voters), Congress i~ empowered to reject them or make an inquiry with respect to the same. (1986 UPL Constitution Revision Project, Executive Depart ment, p. 9.}
212
TEXTBOOK ON 'I'HE PHlLlPPINF. CONSTITUTION
Sec. 5
canvass the votes. (Sec. 4, par. 4.) Congress is empowered to promulgate its rules for the canvassing of the certificates. (]bid., par. 6.) (2) Plurality rule sanctioned. - The Constitution does not prescribe any minimum number of votes to he cast in a presidential election nor any majority vote needed for the prodamation of the winner for it merely provides that "the candidate havi ng the highest number of votes shall be proclaimed elected. (Ibid ., par. 5.) It sanctions the plurality rule. Thus, a minority President may be elected ( i .e. , by t he votes of less than 50f;:{, of the number of registered voters) if there is a low t.urnout of voters or there are more than two ( 2 l candidates . (3) Candidate to be proclaimed. - The person having the highest number of votes shall be proclaimed elected. In case of a tie between two or among more than two candidates, that is, more than one candidate shall have a n equal and highest number of votes, one of them shall be chosen President by a vote of the majority member~;hip of Congress in session assembled. (Ibid. , par. 5.) The candidate thus chosen shall then be proclaimed elected. Election contest involving the position of President or Vice-President.
The Supreme Court, sitting en bane (as one body ), shall now be the sole judge of all contests r elating to the election, returns and qualifications of the President or Vice-Preside nt. It may promuigate its rules for the purpose. (Ibid., last par.) Under the new Constitution, the Supreme Court, itself, as such, shall be the sole judge of electoral disputes involving the President-elect or VicePresident-elect.
SEC. 5. Before they e nter on the execution of their office, tht" President, the Vice-President, or the Acting President shall take t h e following oath or affirmation: "I do solemnly swear (Ol' affirm) that I will faith· fully and conscientiously fulfill my duties as President (or Vice-Preside n t or Acting President) of the Philip· pines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Na tion. So h elp me God." (In case of affirmation , last senten ce will be omitted.) Oath or affirmation of the President, Vice-President, or Acting President.
Oath is an o-.;tward pledge made under an immediate sense of responsibility to God. If the President., Vice-President or Acting President does not believe in God, he makes an affirmation. Instead of saying "I do solemnly
S e (:.:;. 6·7
AKT. Vll. -
EXECUTTVI<~
DEPARTiviE!'I T
2 13
swear" he declares, "I do solemnly affirm. " I n such case, he omits the last sentence: "So help me God." The oath-taking marks the formal induction of the President, VicePresident or Acting President in office. It is mandatory. He cannot enter on ihe execution of his office without taking the prcs.-:ribed oath or affirmation. The President is enjoi ned by the Constitution, a mong others, to "do justice to every man" because of the vast powers of his office which if abused could cause much harm and injustice.
SEC. 6. The President shall have an official residence. The salaries ofthe President and Vice·President shall be determined by law and shall not be decreased during the ir tenure. No increase in said compe n sation shall take effect until after the expiration of the t erm of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other s ource. Official residence and compensation of the President and Vice-President. (1) The official residence of the President shall he de termined by law. (2) The annual compen!;ation of the President and Vice- President shall be provided by law.
(a) During their tenure of office, the President a nd Vice-President shall not receive any oth er emolument (e .fr . p er diems, allowances, and other remunerations) from the government or any other source. Without the prohibition, they may he able to make use of their positions for pecuniary gain.
(b) The compensation of the President and Vice-President, as fixed by law, cannot be increased or decreased by Congress during their continuance in office. A law increasing the salary of the President or Vice-President shall n ot benefit the incumbent Pres ident or Vice-President at the time of the enactment of said law, for the increase shall not take effect until after the expiration of bis term during \vhich such increase was approved . The prohibition is for the purpose of securing t he independence of the President or Vice· President from Congress. (c) The Constitution , in the Transitory Provisions, fixes the initial annual salary of the President at P300,000.00 and t he Vice-President at P240,000.00. Congress may provide otherwise subject to Section 6.
SEC. 7. The President-elect and the Vice-President-elect sh a ll assume office at the beginning of their terms.
2 14
TEXT BOOK 0!\' THE P HII.lPPl::'-JE
CO~STITUTTON
Sees. 7-8
If the President-elect fails to qualify, the Vice-Presidentelect shall act as Preside nt until the President-elect shall have qualified. If a President shall not have been chosen, the Vice-Presidentelect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the Preside nt, the Presid ent-elect shall have died or shaH have become permanently disabled, the Vice-President-elect shalJ become President.
Where no Preside nt and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker ofthe House ofRe pt•esentatives shall act as President until a President or a Vice-President shall have been chosen and qualified. The Coagress shall, by law, provide for th e manner in which one who is to act as President shall be selected until a President or a Vice-President sha ll have qualified, in ca se of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. SEC. 8. In case of d eath, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired t e rm. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the S enate or, in case of his inability, the Speake r of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of d eath, permanent disability, or resignation of the Acting President. He shall serve until the Pt·esident or the Vice-President shall h a ve been elected and qualified, and be subject to the same r estrictions of powers and disqualifications as the Acting President. Classes of Presidential succession .
The Constitution pr ovides for t wo (2} classes of P r esidential su ccession, to wit: {1) J3.efore a~ of offi,:e by the President -elect a t the time fixed for t h e beginning ofhiR term (Sec. 7.), i.e., at noon on J une :30 following the . day ofthe election (Sec. 4 , par. 1.); and
(2) An~r..ass.umptiun of office by the President-e le ct at (or subsequent to) the time fixed for the beginning of his term . (Sec. 8.)
.
ART. Vll. - EXECUTIVE DEPARTMENT
Sees. 7 -A
215
When vice-President shall act as Presi®nt. The President-elect and the Vice-President-elect shall a!':sume office at the beginning of their terms, i.e., at noon on the 30th of June next following the day ofthe election. (Sec. 4, par. 7.) In any of the following cases, the Vice-President shall act as President: (1) If the President-elect fails to qualify; or ( ~-
If a President shall not have been chosen ; or
(a) In case of temporary inability or incapacity of the President to discharge his powers and duties. The Vice-President-elect shall act as President until the Presidentelect. shall have qualified, or a President shall ha\·e been chogen and qua lified (Sec. 7.), or the disability shall have terminated. (see Sec. 11.)
In any of the following cases: (} 1 If at the beginning of the i,erm of the President, the Presiden t -elect shall h ave died or shall have become permanently di<>abled (Sec. 7, par. 4.); or
c.zi. After as~umption of office, in case of death, permanent disability, r emoval from office, or resignation of the President, in which case the VicePresident shaJl serve the unexpired term. (Sec. 8, par. l.l In the above cases, there is a permanent vacancy in the office of P resident. Where there are no President and Vice-President.
(1) ft~fo.rfEJJ.§..SUllJ:l!Jio!!: - -The Senate President or, in case of his inability, the Speaker of the House of Representatives, sh all act as President until a President or Vice-President shall have been cho.c;en and qualified where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or b eco me permanently disable d at the beginning of the term of the President. (Sec. 7, par. 4.) ( 2) Afte.!_ (JR_S.lf.!.!~Pti_o~- The Senate President or, in case of his inability, t he Speaker of the H ou.se of Representatives, shall act as President in case of death , pPrmanent disability, removal from offlce. or resignation of both the P resident and Vice-P re sident until the President or Vice-President shall have been elected and qualified. (Sec. 8, par. 1.) (3) Where Senate President and Speaker al~;o unable to act as President. Congress is mandated to provide by law for the case when both the S~n ate President and the Speaker are also unable to act as President, or tor the case of death, permanent disability or res ignation of the acting
-
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Se(':>. 9·10
President, as to who shall act as President, including the manner of his selection, until the President or Vice-Pt·es1d~nt shall have been elected and/ or qualified. (Sees. 7, 8, last pars. i
SEC. 9. Whenever there is a vacancy in tht.~ Office of the VicePresident during the term for which he was elected, tbe President shall 1mminate a Vice-President from among the l\lembe'";s of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of aH the Members of both Houses of the Congress, voting separately. Vacancy in the Office of the Vice-President.
In case a permanent vacancy occurs in th(! Office of the Vice-President during the tc1·m for which he was E>lected, the President shall nominate a Vice President from among the members of the Senate and the House nf Representatives. The nomination is subject to confirmation by a majority vote of all members of both Houses of Congress, voting- Reparately. The nmninee ~hall assume office upon such confirmation.
.
SEC. 10. The Cong1•ess shall, at ten o'clock in the morning of the third n._-:-- In case of a permanent vacaney in the Offic-es of both the President and Vice-Preuident, the Congres!' shall convene and enact a Jaw calling for a special election to elect a President and VicePresirlE!nt. The convening of Congress cannot be suspended nor the holding of the i>p~cial election postponed as required by Section 10. The bill calling
Sec. ll
i\Hl'. VII . -
gx~CUTIV E
DEPARnff:NT
217
f(l r the ~ p eci,=tl election is not subject to tht> requirements prescribed in Scct.i nn.s 25(4) a nd 26t2 ) of Articl e VI.
C2 l ~ .i'J..e.xt Presiclential ekc_ti.QJJ., .-=::- No spec~ial election shall be called if lhe vncancy occurs ~.tb._il} 18 ffiQ.~ before the date ofthe next Pl'l~sidcn tial e lection. The reason is obvious. Such special electi on becomes unneeessHry and costly since t.he elected President and Vice-Preside nt will serve! only for a s hr,rt period to end wh en the term of their successors begin.
S EC.ll. Whenever the Pres ident transmits to th(: President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers a nd duties of his office , and until he transmits to th em a written d eclaration to tbe contrary. such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet tra nsmit to the President of the Senate and to the S p eaker of the House of Representatives tlteir written declaration that the President is unable to discharge the powers a nd duties of his office, the Vice-President shall immediately ass ume the powers a nd duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of RepresentatiYes his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to t;he President of the Senate and to the Speaker of the House of R epresentatives their written declaration that the President is una ble to discharge the powers and dut ies of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after r eceipt of the last written declaration, or1 if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the Preside nt is unable to discharge the powers and duties ofhis office, the Vice-President shall act a s President; otherwise, the Preside nt s h a ll continue e xe rcising the powers and duties of his office. Rules in case of temporary disability of the President.
Both the 1935 and 197a Constitutions containf!d no provision on how and by whom a Pregident's temporary incapacity or inability was to be d etermined nor how and by whom his fitness to re.=;um(! the pre~idential
21S
TF.XTBOOK ON '!'HE PHlUPP1NE CONSTITVTJON
Sec. 12
office was to be te.sted. 1 Hence, the authority that was to decide whether there was a permanent or temporary disability to warrant presidential succession was the President himself. A disabled Pre.siden:t could insist on his capacity. Section 11 solves the vexing problom of determining t.be existence and termination of presidf'nlial incapacity in cases of dispute. (1) l}!claration.. fui_.t.ll._~_p_,~~si.d_e_Y!:_t. -The President may transmit to the Senate President and t.he Speaker of the House of Representatives hi~ written declaration that he is unable to discharge the powers and duties of his office. In such case, the Vice-President shall be the Acting President until the President transmits to the two officials a written declaration of the termination of his incapacity. (Sec. 11, par. l.l (2) I!.£.~!gra:.~!'!.'!•.b~. rrz._e_'!_I}Z.l~!...S._qf_~l]_l}_ c;_gf2!:!_1_f,t. - In case a majority of all the members of the Cabinet- who are all the President'8 men--- transmit such written declaration, the Vice-President shall immediately assume the powers and duties of the Office a1> Acting President. Thereafter, upon transmitting his written declaration that no inability exists, the President shall reassume the powers and duties of his office. (pars. 2 and 3.) (3) .Q.g_cis(f?f!.9..Y.Q(!l~gr__~ii_~_f(L__~(!3_e of_9_ disp!:f.!!!..: -- In case of a dispute on the matter between the PreRident and the majority of all the members of the Cabinet, Congress by a 2/~~ vote ofboth Houses, voling separately, shall decide the existence and/or t£>rmination of presidential incapacity. (last par.)
SEC. 12.ln ca'5e of serious illness oHhe President, the p!Jblic members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. ~~UJ:)~jn(~rme.J_~( t:h~ ~tat~Qf_I!~~_he~_!_I!:..:_fhe
When public to be informed of President's state of health.
The problem of temporary incapacit-y was l).ighlightcd during the presidency of Ferdinand Marcos in 1983 when his illness and lack of provision for succession exacerbated political and economic unc(~rtainties. 1 All kinds of speculations about his physical condition were mad0 and heard especially during the last yean; of his administra~ion .. This problem, a serious matter indeed involving as it docs national Elccurity r.nd public interest., has been solved by Sedi'Jns 11 and 12. In case · of serious illness of the Presi.dent, the public has a right to be informed of
'1970 lJPLC Cons I itut.ion
H~vision
'1986 L'PL Constitution Rcvio;il>n
Project, p. 44il.
l'roj~ct,
Executive Dcpartmcmt, p. 20.
Sec. 13
ART. VTT. - RXF:CUTIVE
DE PARTME~T
219
the state of his health. To safeguard the interest of the nation, particularly during abnormal times, the Constitution declares that Cabinet members in charge of ~.tion.~L.~~C\lrity a nd f9.t..e.i_gn_:[email protected]~ and the OUQL
............. - ····--·-·
SEC. 13. The President, the Vice-President, the Members of the Cabinet, and their d epu t ies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or he financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumental· ity thereof, including government owned or controlled corpora· tions or their subsidiaries. They shall strictly avoid conflict of inte rest in the conduct of their office. The spouse and relatives by oonsanguinity or affinity within the fourth civil degree of the Preside:!\! shall not during his tenu"'relieappointed ofthe-Constitutional Commis· sions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or -controlled corporations and their subsidiaries.
as Members
Disabilities of President, Vice-President, Members of Cabinet, and their deputies and assistants.
(1)-PLohibW.on.s. durin.g..J..b.e.i.r..t.eau.ra. -During t heir tenure, the President and Vice-President, as well as Members of the Cabinet and their deputies and assistants are subject t.o prohibitions, n amely:
fl> They shall not hold, unless otherwise provided in the Constitution (see Sec. 3; Art. VIII, Sec. 8fll; Art. IX, B-Sec. 7, par. 2; Art. XII, Sec. 9, par. 1.), any other office or employment; ' 'b) They shall not practice any other profession; ~)
1'hey shall not participate, direct ly or indirectly, in any busi-
ness; {d) They shall not be financially interested, directly or indirectly, in any contract with, or in any franchise (see Art. XII, Sec. 11.) or special privilege granted by t he government or any subdivision, agency or instrumentality thereof including any government-owned or -controlled corporation or their subsidiaries; and (~.) They shall strictly avoid conflict of interest (between personal or family interest and public interest) in the conduct of their offi.c€.
220
Tt:XTijOOK ON THE PHILIPPINE CONRTITll'fiON
(2) Purp_ose of" pr.(~/:t.~hf,tions .. - The purpose of the prohibitions is to insure that the otlicials m~ntion~d (the President particularly) will devote their full time and at.tention to their official duties, prevent them from exte nding special favors to th(•ir own private business which come~ under their official jurisdiction, and assure the public that they will be faithful and dedicated in the perfl)rroa nce of t.heir function s. 1 (3j O~her o!J'i~_iql,s s_~f!.}f.£i..l2_s_imil.C!l:J!.!'Phibj_J..~Q..7'}_. - Similar restrictions apply to the Member s of Congress iArt. VI, Sees. 13 , 14.) and of the Constitutional Commi~si o n s (Art. IX, A-Sec. 2. ), and th~ Tanodbayan and his Deputies. (Art. XI , Sec. 8.) They seek to stress the principle that public office is a publie truflt.
Bu.l.e_on nepotiSQl· In addition to the above disabilities, the President is prohibited during his tenure from appointing his spouse and relatives by consanguinity or affinity within the fourth dvil degree fe.g., up to first cousin, grand nephew and grand niece) to any of the positions mentioned. (Sec. 13, par. 2. ) The Constitution seeks Lc> s t op the practice i.n t he past when the President appointed his wife , children and many of their close relati ves to high positions in the government.
SEC. 14. Appoint ments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office. Appointments extended by an Acting President. (1 i 'e owers and functions of Acting. Pre.si.ri_r~_at. - An acting President exercises the power~ and functions of the Office of Prcsid~nt until a Presi dent shall have qualifi ed or shall have been elected and quahfied (Sees. 7 and 8.), or his tempora1·y incapacity shaJl have terminated. (Sec.Jl.) H e is not the incumbent President. He has not become President to ~erve the unexpired portion of the term. There is only a temporary vacancy.
(2) Revocation by _ q_!~c tt~~ - PrE!sident... ()_fJh(: .. a.PR_~_i.'!_!!_!l:_en_t_s.,.. - The- appointments extende-d by Mls. UnU('l' tho ~amc rul1~s, d(1partment hoad11 m u;.;t make
Se-es . 15· 16
221
But h~ must make the revocation within 90 days from his a ssumption or reassumption of office . The period is deemed sufficient to enable him to study the a ppointments . At the same time. it prot('cts the govE.'rnment officials concerned from having the ~ word of Damocles of possible removal or replacement hanging over their heads indefinitely.
SEC. 15. Two months immediately before the next presiden· tial elections and up to the e nd of his t-erm, a President or Acting President shall n ot make appointments, except temporary ap· pointments to e xecutive positions when continued vacancies therein will prejuclice puhlic.sex-vice or endanger public safety. Appointments preceding a presidential election. (1} f.r:qhtb.ited if mqde w.ithia...t.wo C2J month:< before. - Section 15 prohibits an incumbent or Acting President io make appointments within two (2l months preceding the date of the next presidential election and thereafter until the expiration of the term of t.hc incumbent President or the tenure of the Acting President. The purpose is to stop or curb the possible misuse by t.he outgoing President of the power of appointment for the purpo·s e of enlisting political support during the Presidential election and for partisan considerations after his dd'eat.
In the past, two former Presidents extended so-called ''mass rnidnight" appointments or last-minute appointments to f:.wor(.>d purty men or recommendees of political supporters. (2) bcep#on,s~ - .I.empor.acy .appoi.ntrnonts to e.xer.u.t.i.Y..e. PQ.Sition.a.~-h.~D ~ntinued vacal).cies woul~ prej~g.icc_ .P_l!bli~ _ sery-ic~- or ~J}[email protected] l~fety are not cover~d _by the p~~!}-~~~~-oE-:.Jhe reason is vP.r y obvious. Note
the requisites, the appointment~ must be: { ct I t E.'mporary in nature; {b) to executive positions; and (c) urgent in the jntere8t of pub lit: service or public safety. Permanent appointments to judicial positions are, therefore, also covered by the prohibition. (see Art. VIII, Sec. ~ . par. 2.) (3) Allowed if made more than two (2) months bt>fore. -·Appointments, whether permanent or temporary, to executive or judicial position. extended by the incumbent or Acting President more than two 12) months preceding the date of the next Presidential election, are valid. What Section 15 prohibits are appoi.ntments, whether permanent or temporary, to executive positions, made within the two (2)-month period except in respect t o temporary appointments to executive positions which have to be filled immediately.
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of
TE XTBOOK ON 'l'HE PHILIPPI Nr: CONSTITUTION
Soc. 16
colone l or naval captain and other officers whose appointments arc vested in him in this Constitution. He shall also a ppoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be author ized bylaw to a ppoint. The Congress may, bylaw, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the r ecess ofthe Congress, whether voluntary or compulsory, but such appointments shall be effective only until disap· proval by the Commission on Appointments or until the next adjournment of the Congress. Meaning of appointment.
Appointment is the ac~ of desi.gnation by the executive officer, board, or body to whom the power has been delegated, of the individual who is to exercise the functions of a given office. 1 Nature of power to appoint.
The power of appointment is intrinsically an executive prerogative. The legislative body creates the office, defines its powers, limits its duration, a nd provides the compensation. This done, its legislative power ceases. It has nothing to do with designating the man to fill t he office. 2 The exec utive nature of the appointing power does not imply ~hat no appointment by Congress and the courts can be made. They m ay also appoint t hose officers who an~ necessary to the exercise of their own· function s . (see Art. Vl, Sec. 16fl); Art. VIII, Sec. 5(6J.J Officials whose appointments are vested in the President. (1) Un der S ection 16. - The power of the President to appoint high officers in the government. is shared by the Commission on Appointments' power to ratify or reject. The officials whom the President i::; authorized to a ppoint under Section 16 are:
The heads of executive departments, 3 "ambassadors , and other public ministers and consuls; la)
'Meclu~m . Puh. Offices and Officer s, Sec. 102: Borrom eo vs. Marian o, 41 Phil. 322; Aparr i vs. Court of Appeals, 127 SCRA 2:31, Jan. ;n, 19A4. ~see Gov't. of the Phil. Is. v ~. Springe r, 50 Phil. 259. ·'The.)' n~fer to dt~ pa rtmcnt ~
ART. VII .-· 1•:XI':CUT1VE DEPARTMENT
(b) The ~)ffi cers t)f tht' Armt~d F'orCL' :< rank of colont:>l or m1v
(Jf
t he Philippines from the
::c) Other oHil:c~J·.s <.vhnse appointments are ves t.cd in the Pl'esident by the Constitution; (d) All other officer s of the Government who::;e appointments a1·e not otherwise pro\ided for by law, and they refer to officers to be appointed to lower offices cr~ated by Congress where the latter omits to provide for appointments to said officG~. or provides in an unconstitutional way fm such appointm ents; and (e ) Those whom h e m ay be authori z-ed by law to appoint s u ch as the heads of govf'r'1ment- own~d or -controlled corporations, department undersccretarie;s , heads of bureaus and offices, and other officials. The Congre~s may impose qualification::; for appointment offices of relevance to the dutitlS to be performE-d.
t~>
public
(2) Under oth'!.r rnm.•i:-;ions . -- The Prt>sident, likewise, under other provisions ofthc Coustitution, appoints the members of the Supreme Court und judges of lower courts including the St=\ndiganbaynn (Art. VIII , Sec. 9; s ee Ar t. XI, Sec.. 4.), the regular members of the Judieial and Bar Counci l tArt. VIII. Sec. 8f21.), the Chai rm<.~n and the Commi ssio ners of the Civil Service Commission (Ibid., C-Scc. H2ll, t he Chairman and the Commissioners of tht~ CommiHsion oo Aud i~ (!bid., D-Sec. ll2].), and the Ombudsman anrl his D£>pulies. (Art. XL Sec. 9.\
The Com.;titution does not. stHtt:' the appointing uuthority with respect t'> the Chairman and M embcr.s. of the Commission on Human Rights. (Art. XIII , Sec. 17.) Tht>re is no doubt, however, that the p ower to appoint them i s lodged in the President. (seP. Sec. 16. ) Confirmation of appointments by Commission on Appointments.
Only the officer!S in the tirst three (aJ groups enumerated in Section 16 art:! appointed by the Pre~ i den t with the <:onBent. (confirmation) of the Commission on Appointments. Departmt>nt undersecretarie::; and heads of bureauH and cer.-t.{lin ofli.ces under t he different depal'trncnts which are not <.:
? r·csidential As~i::;taJ•t on L~gi >;< l ~r(iv nnt head departments and t hdr appoi ntment.<; ;:~t· not ,;uhmit.ted w lht~ Commi~!'>iun on Appointments for confirmation.
224
T EXTBOOK Ol\i THE PHILIPPINE COt\.STITl.:T JON
Sec. 16
officers whose appoiutment:s are sup posed to b~ made only according lo merit a nd fiLn ess. (Art. XII. B-Sec. 2l2] .) · ' The m ember~ of the judjciary and the Ombudl;man and his D eputies arc
Congress may, by la w, vest. in the courts , h eads of departmen ts, agt~n cies, <.:omrnission s, or boards, the powe1· to a ppoint other officers lower in rank (e.g , Chiefs of divisions or sections) in th eir respective offices. {Se c. 16 , par . l. j ThE:' phras<: "lower in rank'' refers to officers subordinate to thosE- enumerated offi~;ers in whom respectively the power of a ppointrnent may be vested - t he heads of executive departments , agencies, commis sions, and hoards. 1\ ppointm ents of minor employee~; may a lso be ve sted in the m. The Supre nw Court a ppoi;1ts all offici als and employees of th e judiciary.
Appoint.rr:ents which are r equired to be submitted to the Commission on i\ppointments a re (~it her: i 1 J regular appoi ntments or those m ade during the sessions of Coog-reRs !Sec. lG, par. 1. ); or
l 2} acl int.erim appointments or those made during a r eccs :) of Congress . Ubid., par. 2.J With respect to r egu lar appointmen ts subject to confirmation by the Commission on Appointment s, the President issueR a nomi nation as a prelimina ry to 3ppointment, to be a pproved by the Comm ission on Appointments. So there i:) no appointment yet in th~ s tr ict sens e until it is confi.rm ('d. It is clear that there are three (3) stages in regul ar appoiutments, to wit: n omination by the P resident, con sent by the Commission on App(lintnHm ts, and appointment by the President.
Ad interim appointments. The second p a ragra ph of Section 16 r efers to ad interim appointmen ts or appointments made by the President during the recess of Congress,
II HT. VII.·-
Sec. 16
!o;Xl-~CUTIV E
DEPAR'DfF.NT
225
whether such r~ces s is voluntary or compuls~n·y. Compulsory recess takes place when Con gn~ss a djo urns, while voluntary recess is that which takes pl ace before t he adjoumrnent of Congres..;, like a Ch ristmas Hlccs~. Under the Constit nlion. the Commission on Appointments, which approves major appoi.ntmenls of the Pres ident, m eets only whe n Congress is in session. tArt. VI , Sec. 19. J The 1·ece!'\s appointment power keeps in continuous ope ration t h e busi ness of governm ent when Congress i ;; not in session. But the appointments shall cease to be e ffective upon rejection by the Commission on Appo intments or, if not acted upon, at the adjournmen t of the next s e~sion, reguiar or special, of Congress. In other wo1·ds, in the secund situation, the appointment remain-" eil'ective until the end of the session foll owing su ch appointment or "until t h e next a djournment,'' not until t he next (vulnntary; reepgs. This is to give the Commission on A ppointmen ts time to delibe :·ate upon the ~1ppoint me nt before confirming or rejecting i L. Section 15 gives th(• President t he: power to make temporary appointments . Section 16 ip
They Me: ( l J Permcu1ent . .. _. <.1rH· which is issued to a per:;on who meetti all the requireme nts for the p1.l:'i tion to which hoi~ appointt:>.d; it lasts until it is lawfully terminated . ThP. holde:r of s uch appo intmr:: nl eannot be removed except only for cause: 1 and (2 1 T,·mporory or ru.'tin!J. - one which is i s~;ue d to a perl:'on who meets all the require!llent;: for the posilion to which h e is being appointed except the appropriate ei\'il ~c n ice ellgihility; it shall not exceed 12 months, but the appointee may be replaced socincr if a qualified civ.il service eligible becomes available. The h older of such appointment may be removed any time e ven without a h(·rtring or cause.:· Steps in the appointing process.
They are: (l ) Ap{Jointmen t. - It is the m:t of t he appointing power. It may include the issuance by the Pr~id cnt of the commi lision, which is the written evidence ~f the appoin tme nt: and
······
(2) A cceptance. - It is the act of the appointee. He m ay or may not accept the a ppoin tment. But a cceptance thereof is neces»ary to enable hi m
1Pr·esrdcnt.ial 'Jhirl.
UP.l:l't:"
Xo. bOI.
;S('C.
2!1.
2~6
TI<:XTBOOK ON T HE PHJLTPPJN E CONST ITUTIOK
SE::c. 16
to have full possession, enjoym e-nt, and responsibility of an office. It is not, however, necessa ry to t he lega li ty of the appointm e nt..~ Kinds of acceptance.
Acceptance may be: ( 1)
Express. -- whe n doM verba lly or in writing; and
( 2 ) I mplied. - when, wit h out formal acceptance, the a ppointee enters upon the exercise of the duties and functions of a n office .
The best formal evi dence of the acceptance is undoubtedly the qualification of the officer appointe d by taking the oath of office. In some instance!:!, the law requires th ~tt a bo nd be p()sted. Meaning of designation.
Designation is simply the mere imposition of new or additional duties upon an officer already in the government Mrvice (or any other competent person) to temporarily perform the functions of an office in the executive branch when the officer r egularly appointed to the offi ce is unable t.o perform his duties or there <:xists a vacancy. 7 It is, therefore, d ifferent from appointment. Removal power Qf the President.
Removal is th e ouster of an incumbent before the expiration of his term of office. The Constitution contains no provision expressly ves ting in the President t hP. power to remove executive officials from their· posts. Nevertheless. the power is possessed by hi.m, as it is implied from any of the fol1owing, to wit: (1 >
from his power to appoint which carries with it t he power to re-
move; (2) fro m the natur·e of the "execut ive power·· exercised by the President, the power to r emove being executive in n::~turc (Sec. 1.); (3 )
from the President's d uty to execute the laws (see Sees. 5, 17 .);
(4) from the President's control of all departments , bureaus a n d offices (Sec. 17.); and (5) from the provision that "no officer or £~mployee in the Civil Service shall be removed or suspended ex(:ept for cause provided hy law." (Art. IX, B-Sec. 2[3J.)
6
Borromeo vs. Manalo, 41 Phil. 322; Lacson vs. Romero, 84 Phil. 740. "Administrati,·e Cnde uf 1HH7, Book IJ J. S ectiun 17.
s~c .
17
ART. Vll. - F,XECUTI VE DEPARTM J:;:-IT
227
Whet·e the power to appoint is vested by law in the courts, tht:! h eads of departments, etc., Congress may ulso provide that those appointed may be removed by them , subject to .such r estrictions a s it deems best to impose for t he public: interest. Extent of the President's power to remove.
With r espect to officers exercising purely executive functions whose tenure is not fixed by law (i.e. , members of the Cabinet), the President may remove them with or without cause and Congress may not restrict such power. (1)
(2) With respec t to otfic er~> exercising quasi-legislative or quasi-judicial functions (e.g., members of the Securities and Exchange Commi~:~s ion), they may b"' removed only on grounds provided by law to protect their independence in t he di.sdtarge of their duties; ( 3 ) With respect to constitutional officers r emovable only by mean s of impeachment (see Art. XI , Sec. 2.), and judges of lower courts (Art. VIII, Sec. 11.1, they are not subject to the removal p ow~r of the President; and
(4) With respect to civil service officers, the Presidt>nt may remov(! them only for cause as provided by law. (Art. IX , U-See. 21:11.1
SEC. 17. The Pres ident sh all have control of ail the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully e xecuted. Power of control over alf executive departments, bureaus and offices.
T he above pJ·ovision emphasizes the rolE> of the President a s administrator. As administrative head, the duty of the Presidtmt is to see to it that every department, bureau and office under the executive branch it; managed and maintained properly hy the person in charge of it in <:w:ordance with pertinent Jaws and regulalions. 1 There arc two factors that. contribute to the effective hold and cont r ol of the Pregiden t over all executivt' de partments, bureaus and offi<:es, to wit : The power of'appointm,•nt ~Sec. 16.), with which he may choose men of competence and confidence; and (1}
(2) The power ol removal (which is implied in the power to appoint), with which h e may weed out incapable and dishonest officials.
V.G. Sinco, op. cit .. p. 235.
1
228
TEXTBOOK ON Till'; l'HILIPPINE CONSTITUTION
Sec. 17
Naturt3 and extent of the power of control.
( 1) Over cabinet members. -·The power of control of the President is in line with the concept of Cabinet me mbers serving as a lter egos (Lat., another I.) of the President. It implies that he may alter or modify or set aside what a subordinate officer had done in the performan<.:e of his duties and to substitute his judgment for that of the latter/ act directly on any specific functio n c ntruRted to the offices concerned, direct the performance of a duty, r estrain the commission of acts, determine priorities in the execution of plans and programs, and prescribe standards, guidelines, plans a nd progra ms. (2) Over other subordinate officers. -- The power of contr
(1) Primary function of President. - As the Executive in whom the executive power is vested (Sec. 1.), the primary functi on of the President is to enfor<.:e the laws . Before assuming office, h e 'is required to take an oath or affirmation to the effect that as President. of the Philippines, he will, among others, ''execute its laws." (Sec. 5.) Now, he "s h a ll insure, that the laws be faithfully executed." (Sec. 17 .) (2) More of (l mandatory dut:y than a power. ·-- The function of the President to sec that the laws a re faithfully executed is more of a duty than a pow er, to be discharged by him personally and through subordinates under his control or supervision. (see Art. X, Sees. 4, 16.) To say that the Presi· dent can forbid the execution of the laws is tantamount to investing him with the power to make a mockery of the legi slative process and the a dministration of justice. It is his mandatory duty to enforce the laws of the land regardless of his opinion about their wisdom, advisa bility or validity. A law is presumed valid and constitutional until judicialJy declared otherwise.
2See Monda•lo vs. Silvos a, 97 Phil. 143. 'l'fh e law is the Civil SE-rvice DecrP.e of the Philippines.
Sec. 18
ART. VII. - EXECUTIVE DEPARTl\·l ENT
229
SEC. 18. The Pres ident shall be the Commandet•-in-Chief of all armed forces of the Pbilippin~s and wheneve r it becomes nec:sary, he may call out such armed forces to prevent or suppress lawle-:;s viole nce, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, bJ~ rna~ for a period not ~xce~~!n~ts!x~. d~J suspend the privilege of the writ of habeas corpus or place the Philippines or any part the r eof under martial law. Within forty~eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in p~~2!l or in .w.rjtin.g to the Congre~s. The Congress, voting ..~!!.tll:• by a vote of a t least . ~- majority of all its Members in regular or special session, may revoke such proclamation or s uspension, which revocation shall not be set aside by the President. Upon the initia tive of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to b e determined by the Congress, if the invasion-er rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the s ufficiency of the factual basis of the p roclamation of martial law or the suspension of the privilege of th e writ or the extension thereof~ and must promulgate its d edsion thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or l egislative assemblies, nor authorize the conferment of jurisdiction on military courts and a gencies over civilians where civil courts are able to fun ction, nor automatica lly suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to p ersons judicially charged for rebellion or offe n ses inherent in or directly connected with invasion. During the suspe~sion ofthe privilege of the writ, any person thus arrested or d etained shall be judicially ch arged within three days, otherwise h e shall be released. Military power of the President,../ ·.
The a bove section prov)des for the military power of the President. (1) Powers to meet emergency situations. - It mentions three extraordina ry remedies or measures which the President is empowered to utilize
230
St-c. 18
TEXTBOOK ON T HE PHILIPPINE CONS1'lTUTJON
in meeting emergency s ituations:to'call out the armed forces; t.o suspend the p rivilege of t he writ of habeas corp us; and t o declare martial law. The Constitution has provided another built-in measure to cope with any crisis or emergency: emergency powers expressly delegated to the President b y Congress (under Ar tich~ VI, Sec. 2;1f2l.l. ( 2) Commander-in-Chief of' the Armed Forces. - The Const itution makes the President, a civilia n, the Commander-in-Chief of all armed forces of the Phil ippines. 1 He i!> authorized, whenever it becomas neceasary, to call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion . This provision ensures the supremacy of the civil authorities over the military forces of the government. (see Art. II, Sec. 3. )
Powers of President as Commander-in-Chief of the Armed Forces.
The President is not only a civil offlcial. As Commander-in-Chief of t he Armed J:t'orces , he is also in a sense a military officer. He is not, however , a member of the a r med forces, and consequently, he is not subject to court martial or military discipline.2 As Commander-iu-Chief, the President ha s control of the military organization and personnel whether in peace time or in war time. Re is givE>n the broad powers to call out the armed force s to prevent or su ppl·e ~~'> lawless violence, invasion , or rebellion. A-le is also empowered to <.:ff•a ie military tribunals to try persons who violat e military laws or commit crimes agains t n ationa l security. H.9we ver, e v_e n in ~ st~J~ of.;nartia,U£Y£., m_i}ij:ary__~ourts an.~l. agen_cies ha:ve no jurisd~ct~~m over Gi.Yih~u.s.v.:.lliu:f:.civil c.ourts ar.e ..ahle to functio.u. (Sec. 18, par. 4.)
_q[J,he ~rrn ed for ces to hi!?. military f O.JJ1.Ifl.a.fld..b.~!~!!!i_~t9_~~-~-...
~~perts ,_ -- ~~(
t:.he
ulti}1}~te
Authority of Congress over the armed forces.
,·Congress shares with the President his authority over t he armed forces. It ~upplie s the money a nd makes t he laws for thei r governance. To it belongs the sole pow~r to decla re the existence of a state of a war. (Art. VI, Sec. 23ll]. ) Power to suspend privilege of writ of habeas corpus.
Two conditions are necessary in order that the President may suspend the privil ege of the writ:
,Ther~ must be invasion or rebellion; and 'This powe r covers the Philippi ne National Police (P:-/P ). Sw1:1rtz, The Powers or the President C196a), p. 215.
1
AR1'. VTL - EXECUTIVE DEPARTMBNT
Sec. 18
231
(~).
The public safety must requi re the suspension. This particular topic has previously been discussed under the Bill of R.ightf:<. ( see Art. III, Sec. 15, par. l, supra. ) Power to declare martial law.
The conditions for a valid suspension of the privilege of the writ of habeas corpus are also the requisites for the declaration of martial law by the President. fl9wev_e..r...the..C.oru;.titutionmak.e..s it clea.r. t.b.~J. th.~prqslama tion of martiall~-w...9.Q~.s not automatically suspend the privilege of the writ.
~(Sec~·i8,
par. 4. )
The s us pension of the privilege s hall· apply only with respect to persons 1 judicially charged for rebellion or offenses inherent in, or directly connected with invasion. (Ibid., par. 5.) A person arrested or detained must be released if not judicially charge d within three (3J days. Ubid. , last par.) This mandate is directed against the practice in the past of detaining indefinitely persons for alleged political offenses without charges being filed against them in court. And even when the privilege of the writ of ha.beas corpus i~; suspended, th e right to bail is not impaired . (Art. III, Sec. 13.) The power to proclaim martial law includes the power to make all needful rules and n~gulations with the force of law until the termination of martial rule .
Mean!ng.oLmartlal law:. (1) In its comprehe n~ive sense. it includes all laws that have reference to and are administered by the military forces of the State. They include: ta) The military law proper, that is, the la ws enacted by the law· maKing body for the government of the armed forces; and (b) Tht~ rulct< governing the conduct of military forces in times of war and in places under military occupation. ( 2) In its strict sen:·w, it is that Law which has application when the military arm does not supersede civil authority but is called upon to aid it in the execution of its vital functions.~ The Constitution refers to this meaning of martial law. Basis, object, and duration of martial law.
(1) Basis. - The right to declare, apply, and exercise martial law is one of the rights of sovereignty. It is as essential to the existence of a nation a~'. the right to decl a re and carry on war. 1 The power is founded on necessity and is inherent in every government. ~See ~51
Willoughby, 2nd ed., p. 1586. Am. Jur. 24 1.
TEXTBOOK ON
232
Tim
l'HILll'PIIS'~: CONSTI1'VTIO~
Sec. 18
(2) Object. - -· The object of marti al law is the preserva tion of the public safety and good order. ~U nless the right and power exi ~t, p(~ace , good order, security - government itsel f - may be des troyed and obliter ated ... when the domination of la wless elements becom es so powNful that it cannot be stopped b y the civil a u thor ities. (3 ) Dur·ation. - Bei ng founded 011 neeessi ty, th e exercise of the power may not extend beyond what is required by thP. exigency whith it ca ll forth .G Section 18 (par . l. i sets a t ime lim it for th e d uration of t he state of martial law and t he suspension of the: privilege of the writ of h abf•as corpus. Restrictions on the exercise of the two powers.
The Constitution imposes reslridion::; on the Pre"ident\ power t.o declare martial la w and to !:;uspend t he privilege oft.he wri t. o!'/wb(~ns corpus. The lessons learned by the people from 14 year~ of marti al rule m ainly account for their imposition. Moreover, these extraordinary powers fall heavily on .human rights. Only when a bsolutely necessary should the Constitution provide for a der·ogo.tion from the ccmplcte exercise of such rights, and whe n carried out, should cause the least curtailment th ereof. 7 The r estrictions are on the conditions. duration, a nd effects of the exercise of the powers. They a rc: (-1 )
There must be (actu al ) i nvasion or rebellion a nd pulllic sa fety the prodamation or s uspen::;ion;
rc~quires
(2J Th e duration sh all not e xceed 60 d ays un less exte nd ed by Cong t·ess (which must convene within 24 hours fo!Jowiug tho p roclamation or suspension without need of a call ) upo11 the initiative ol the Pres ident, i.e., he must ask for extension of the proclama tion or s uspen sion for a period t.o be determined by Congress i.tsclf(Sec. l R, pars. 1 nnd 2. J; (3) The P resident m ust submit a re port in person or in writ ing to Congress within 48 hours from the proclamation or sul;pen sion (!bid.) to guide Congress in decid ing the a ctjon il shou ld takt>, i. e., re vocation or extension; (4) T.h~ procla mation or suspension :rnay be revoked by majority vote of all the m embers of Congress voting jointly (not separa tC'ly i which r evocation sh aU noi be set asid!! by the Presidl'nt {]6id.J; (5) The S upreme Court may inq uire into t he suffi ciency of the factual basiR of the proclamation or suspenRion. (ibid., par. ;-u So, the a ction~ of
'' Th u;;, it is eS~t!ntially a police power·. (see Art. ITT, Se<.:. 9.1 uMoyer vs. Peabody, 212 U .S. 78; Dunc•u\ v:;. Ki:ihnnamok u , 2:.l7 U.S. 304 : Lawyer:;' Journal, Oct. :n , 1972. ' W86 UP L Constitution P roj t>Ct., E:~W('Uti w' De paa·tmc nt, pp. 24-:.15.
Sec. 18
ART. VII.-- EXECUTIVE DEPARTMt::-\T
233
both the President and Congress lin case of extension) are made subject to judicial review; and (6) The effects of a state of martial law are clearly spelled out, to define the extent of the martial law power. (par. 4.)
Effects of a state of martial law.
The definition of the extent of the martial law powers is made by way of denials, stating what are not the effects of a state of martial law. (par. 4.) Thus: (1 J 9P.?m.t.ipn !Jf..th.e C.an.s.tiJJJ.ti.tm. - It does not suspend the operation of the Constitution. The declaration does not mean that the military authorities will take the reign of government. Under the Constitution, civilian authority is at all times supreme over the military. (Art. II, Sec. 3.) The guarantees of the people found in the Bj]] of Rights continue to exist. Whatever interference there may be with individual liberties or property rights must be justified, as in the case of police power (see Art. lii, Sec. 9.), by absolute necessity in the interest of national security or public welfare.
( 2 :1 .EUJ1&t.i.u!11i.. of.duiL fXlUI.~ JJ.ll.d.._l£gi.sl.a.tine_.asse.m.blie11....- It does not supplant the functioning of the civil courts or legislative assemblies. The proclamation of martial law serves as a warning to the citizens that the military powers have been called upon by the President. to assist him in the maintenance of law and order. ~o new powers are given to the President; no extension of arbitrary authority is recognized; "fi.o civil rights of the individuals are suspended. 8 M.~.r.t.i.~l.J~wj~ decl!!r.~.d- m.~_ili_tQ . a.ssist.. the .civil government,.not. to supplant: it-.
(3) .J.u.~tion of military coud,s and agenc"S· - I t does not authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. Under martial law, for instance, a person may not be arrested and detained indefinitely without court orders and civilians may not be tried by a military commission or court-martial for a crime relating to national security. When martial law is declared, civil authorities are not superseded by military authorities. Nor are civil laws suspended. (4) .fri_vi(W,!!_Qf. the writ of hab~a8_<;.C!fl!..US . ...._ It does not automatically suspend the privilege of the writ of habeas corpus. The privilege continues to be available to persons under detention until ~uspendt~d by the President, subject to the restrictions imposed. (Sec. 18, par~. 1 and 3.) The suspension shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Any person thus arrested or detained shall be judicially charged within three (3) days; otherwise, he shall be released. (Ibid., pars. 5 and 6.) This provision could effectively negate the suspension when an actual emergency occurs.
•sec 3 Willoughby, 2nd ed., pp. 1591-1592.
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PHILIPPI~E
CO:-;;STlTUTION
8 ec. 19
SEC. 19. Except in cases of impeachment, or as otherwise provide d in this Constitution, the President may grant r e · prieves, commutations, and pardons, and r e mit fines and forfeitures, after conviction by final judgment. ~
He shall also have the power to gra,nJ . ~IJ!!!~~~y with the concurrence of a majority of all the Members of the·Congress.
~doning power . ........ The power to gr ant pardon and other a cts of clemency to violators of the law is traditionally vested in the Chief Executive of th~> n ation. 1 The Constitution gives this power to th e P resident in th e above provision. This power ca nnot b e taken away from him nor can the exe rcise th ~ reof be su bject t o limitations or condit ions beyond those provided by the Constitution. (see in fra.) Neither m ay the courts inquire into the wi~ dom or reasonableness of a ny pard on g ranted by the Presi dent. Hi s d iscretion is absolute. (see, however , Art. VIII, Sec. 1, par. 2 . .1 The pardoning power extends t o all offenst's, including criminal cont empt (disrespect to or disobedience to a court whi ch amounts to a crime). It does not give the Pr esident the po\ver t.o exempt, except ftom punishment, anyone from the law. Meaning of reprieve and suspension of sentence.
•
..Be.pJ:J:.eue is the pos t.pon em <~ nt of t.he execution of a death f\e ntence to a certai n date. It is diffen mt from suspension of senten ce wh ich is t he postponement of a sentence for a n indefi.nite time. Meaning of commutation. QQJJ:J.nz utation is the reduction of the sentence imposed to a lesser punishment, as from death to life im prisonment . lt may he granted without t h e acceptance a nd even against th e will of the convict.
Meaning of pardon.
J'g.r d_q_n_ha s been defim: d a s an act of grace proceeding fr om the power ent rusted with the execution of the laws (Pre::;identi which c xemp1 s the ind ividual on whom it is bes towed , from the punishmen t the law inflicts for a crime h e has committed.2 (as to meaning of parole, see Ar t. IX, C-Sec. 5, infra.)
1 See Pres. Decrees No. 95, 124, :Hi4, 433. and 598. The l'rcsidt!nt acts gt!nerally, pursuant to the r ecommendation of t he Board of P ardons an d Parole which i~; headed by the S ecretary of Justice a s its chairman. 2 De Leon vs. Director of Pri~ons, :n P hil. 60.
Sec. 19
AHT. Vll. - EXECCTIVE DEPARTMENT
235
Object of pardoning power.
Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly miti· gate guilt. To afford a remedy , it has always been thought essential in popular (democratic) governments, as well as in monarchies, to vest, in some authority other than the courts, the power to ameliorate or avoid particular judgments.3 Kinds of pardon.
They are: (1) . -bbsgl.l:J.J:~. - when it is not subject to any condition whatsoever. It becomes effective when made; and (2).il.!J.T'ldit~
l..i mJJations uportth.e par:®nln~ow.er. They are the following:
!(.t') It may not be exercised for offenses in impeachment cases (Art. XI, Sec. 2.);
I)) It may be exercised only after conviction by fin&l judgment (par. 1.); t;B) It may not be exercised over ciuil contempt 4 (as for refusing to
answer a proper question when testifying as a witness in a case); and <¥ ' In case of violation of/election law or rules and regulations, no pardon, parole, or suspension of sentence may be granted without the recommendation Comm.i§.§.i_Q!L9.n..El.~kt.jons. (Art. IX, C-Sec. 5.) ._.......... - -. ·-· ... . .. . of.....the ... . .. ··- -·--. Effects of pardon.
They are the following:
q1 It removes penalties and disabilities and restores h1m to his full civil and political rights; "Ex-parte Grossman, 267 U.S. 870; see Art. 5, R~vised P enal Code . In the review of decisions in criminal cases i"cluding those where the death penalty is imposed, the Supreme Cout·t must reiy on the evid~>nce as presented to and evaluated by the lower courts. On the other hand, the President, in the t>xercise of his constitutional prerogative to grant pardon. stay of execution, or commutation of sentence, can take a broader look and con;;ider facts and circumstanees beyond the ~;;videntia1·y record. •It is the failure to do ;;omething ordered by a court to be done in !l civil action for the benefit of a party and is, therefore, an offe nse against thE! party in whose beht~lf the ot·der is made. {17 C.J.S. 8.) CJi.min.aL~'J.t@U?.i.. on the other hand, is any conduct directed against the dignity or authority of a court, which tends to bring the court into disrepute or disrespect. (17 C.J.S. 7.)
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
.Sec. 19
r-2 ) It does not discharge the civil liability of the convict to the indi vidual he has wronged as the President has no power to pardon a private wrong;'' and (3) It does not restore offices, property, or rights vested in others in ~onseque:nce of the conviction. 6 Under our law, a pardon shall not work the restoration of the right to hold public offices or the right of suffrage unless such r ight b~ expressly restored by the terms of the pardon. ~ Remission of fines and forfeitures.
The President has the po,.,.·er to remit fines and forfeitures for all offenses after final conviction. Th1s power may not be exercised by any officE:r other than the President. But Congress may constitutionally authorize other officers such as heads of depart ments or bureau chiefs to remit administratiue .fines and for feitures. 8 Remission prevents the collection of fin es or the confiscation of forfeitecfpro.pcrty. The power of the Pre sid~nt is limited to fines or forfeitures as have not been vested in third parties, or paid into the treasury of the governm ~nt, as fund s cannot be paid out of the treasury without the authority of Congress. 9 (Art. VI, Sec. 29[1J.) Meaning of amnesty. AJ!!J!:.'!~!~' is an act of the sovereign power .granting oblivion o~ a gen ~ral pardon for a past offense usually granted in favor of certain classes of persons who have committed crimes of a political character, such as t:-eason, sedition, or r ebellion.
Effect of amnesty.
Amn esty abolishes a nd puts into oblivion the offense of which one is charged, so that the person released by amnesty stands before the law precisely as though h ~ had committed no offense. 10 (sea effects as to pardon , supra. ) Pardon and amnesty distinguished.
The distinctions are: (!) P ardon is granted by the Presi dent alone after conviction, while amnesty, with the concurrence of Congress (Sec. 19. ),.before or after conviction; 5
20 R.C.L. 563; see ArU;. 36, 133. Revised Penal Code.
GEx·partf'. Garland, 4 Wall. 333.
'Art. 36, Revised P enal Code. ~22 R. C .L. 53 1. 9 20 R.C.L. 531-532; see Romero vs. Amparo, 91 Phil. 221:1. 1 L'See Barrioquinto vs. Fernande:t, 82 Ph~!. 642.
Sec. 20
ART. Vll. - EX E CCTTVE DEPARTMENT
237
(2) Pardon is an act offorgiveness, i.e ... it reli eves the offender from the consequences of the offense, while amnesty is an act offorgetfulncss, i.e., it pu ts into oblivion the offense of which one is charged so that the person r eleased by amnesty stands in the eyes of the la w as if he had never committed the offense; (3) Pardon is granted fo r infractions of the ~ eace of the State, while amnesty, for crimes against the sovereignty of the State (i.e ., political offenses); and
(4) Pardon is a private act of the President which must be pleaded and proved by the person who t;laims to have been pardoned, because the courts take no judicial notice ti1ereof, while amnesty by proclamation of the President with the concurrence of Congress is a public act of which the courts will take judicial notice. 11
SEC. 20. The President may contract or guarantee foreign loans on be half of the Republic of the Philippines with the prior concurrence of the Monetary Board, and I'Oubject to such limita. tions as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-owned and -controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Authority to contract and guarantee foreign loans. (1 ) E xclusive executive function. -The President may contract foreign loans on behalf of the Republic of th e Philippines without t he need of prior congressional approval. When obtained by private persons, natural or juridical, he may guarantee such loans. There is possibly no official better qualified to enter into such negotiation than the President. He is the official best supplied with information as well as with executive and legislative assistance to determine the advisability of obtaining loans as well as the country's capacity for making good use of such credit. 1 (2) Concurrence of Monetary Board required. - The authority of the Presi dent is not ab solut~. The contract or guarantee mu st he with the prior concurrence of the Monetary Board of the Central Bank now, Bangko Sentra.l ng Pilipinas (BSP), which is required to make a report to Congress contai ning the matters mentioned. The prior concurrence of the Monetary Board is required because, as the custodian of the foreign reserves of the country, it has the expertise to determine the r eason ableness of the con'
1
l hid.
'Del. M. Cuarderno, Sr., "The C11biner GoV\)rnment," in C.R. Montejo, supm, p. 151.
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238
Sec. 21
tract or guarantee and whether the proposed foreign loan is within the capacity of the country to pay. The report will guide Congress in the enactment of whatever legislation it may deem necessary to protect the national interest. In the past, huge foreign loans were contracted or guaranteed by the government even against the advice of the Monetary Board with disastrous consequences to the economy. Many domestic private firms with borrowings from overseas sources heavily backed up by government guarantees defaulted on their obligations. 2 (3) Checks by Congress. -The reasons for not requiring congressional approval for foreign loans are: first , the loans urgently needed by the country may no longer be available when concurrence which usually takes some time is finally obtained, and second, an obstructionist Congress could withhold approval for political reasons. However, as a check on executive power, Congress may, by law, place limitations on its exercise (Sec. 20; Art. XII, Sec. 21.) and make the neces sary investigations in aid of legislation (see Art. VI , Sec. 21. ) if it believes that the borrowing based Ofl the Monetary Board report is not justified. It has the power to determine the organization and composition of the Monetary Board. (see Ibid., Sec. 20.) Furthermore, an appropriations law is needed to pay out of the treasury a foreign loan. (see Art. VI , Sec. 29f ll.) l:{~te ti:t_at s~~~iO)) 20 . spe~~~ - only o(.f~r~i_g~ _l'?a ns. With re_§.P.~ft tt:' 9.2!!1_~st.~c -~
unless .re.quired..by.law.
SEC. 21. No treaty or international a&P'eement shall be valid and effective unless concurred in by at lel:\~Uwo··thirds. of all the Members of the Senate. Meaning of treaty. A!!.~ may be defined as a compact made between two or more states, including international organizations of states, intended to create binding r ights and obligations upon the parties thereto. Thus, a treaty may be bilateral or multilateral. It is also known as. a pact. convention, or...cha.ct.er. ,
Distinguished from international agreement and executive agreement.
The phrase "or international agreement" has been inserted in order to preclude any ambiguity in view of the technical meaning that the word "treaty" has acquired in contemporary international law "as an interna2It has heen claim t'd that about 112 of the more than $26 billion debt t hen of the Philippine!" wa~ (;O!"It ractcd through the initiutive of President Marcos. Now, the President cannot borrow or g ua:·antce loans at will.
Sec. 22
ART. Vll . -- EXECUTIVE DEPARTMENT
239
t iona] agreement between states." This definition excludes agreements entered into between states and international or ganizations. Hence, the need to introduce the phrase as among those requiring the concurrence of th e Senate. 1 However, the phnu;e does not cover executive agreements 2 which have been traditionally recognized in t.he Philippines to be well within the prerogative of the President to make without need for legis lative concurrence. In the Philippines, t h e amen dment ~ to th e 1.947 U.S.-Philippine Military Bases Agreem ent. were f'ffected by mean s of a~ executive agreem ent . ~ ~xecutive agreements , however. serve a ul:leful purpose and our courts 'recogni7.e th e power of the President to enter into them without Senate concurrence. 3 Steps in treaty-making.
There are two general steps in the entire treaty-making process, namely: ( 1 ) N egotiation.- In th e field of initiation and negotiation, the President a lone has the sole authority. The reason is that secrecy, dispatch, caution, continuity, and a ccess to information ·are essential ingredients in t h is task which the President alone possesses. Confidential information a r e passed and premature di sdosures may not only cause serious embarrassment. but may likewise imperil the successful accomplishment of the n<.:got iations;·1 and (2) Approval or ratification. - As a general rule, no treaty or international agreement shall be valid and effective unless concurred in by at lea.st 2/3 of a ll the members of the Senate. This is only logical, treaties and' international agreements being part of the law of th e land and they affe<"t our international relations, pei ng in the nature of a contract between the parties.
SEC. 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general approp1·iations bill, a budget of expendi· tures and sources of financing, including receipts from existing and proposed revenue measures. aM.~9§.~~ry PO~~:V~r 91 1h.~.P.L~~!dJ.mJ.~
The President is e;ntrusted by t he Constitution with the task of-prepa r ing t he budget of receipts a nd expendit ures based on ex isti ng a nd proposed r evenue m easures and other sources of fi nan cing ie.g .. loans) and of sub-
'198o UPL Constituuun R~ vi ~i on J'rc]cct, Exccuti,·t- Depnrtment, p. 34. to the making of executive agreement, sec Anic!e VIII, Section 4f2). ')1970 l:PLC Constitution Rt-vision Project, p. 459. •sec N.A. Gonzales. rJp. cit ., p. 331. ~As
240
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s~c.
23
mitting it to Congress within thirty (30) days from the opening of each regular session. (see Art. VI, Sec. 15.) The budget t hus submitted sh ;·ill be the basis of the general appropriations act to be enacted by the CoP.gress for the followi ng year. 1 (]bid., Sees. 24, 25.) The constitutional mandate requiring Congress to consider first the budget reverses the practice of the old Congress which yearly took up the budget not at the beginning but at the end of the legislative year.
SEC. 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. Prerogative to address and appear before Congress.
This provision furnishes an opportunity on the part of th~ Presiden t at the opening of the r egular session of Congress (see Art. VI, Sec. 15.) to give information on the "state of the nation" and to recommend to the consideration of the legislative body such measures as he may deem necessary and proper. Such measures are, of course, merely propoJ.als. They have no binding effect until enacted by the Congress. The address may also contain guidelines of national policy. The President may appear before Congress at any other time he may choose after the opening of its regular session .
-oOo -
1As to mt!lming of"budge t.,'' "appropriatio ns bill," etc .. see Article Vl. Sections 24 and 25.
\
Article VIII .f.!-~DICIAL
DEPARTMENT -fc,~{~
--\L- rot
,i
SECTION 1. The judicial power shall be V€'sted in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual conb·oversies involving rights whi<:h are legally demandable and enforceable, and to detet-min€' whethe1· or not there bas been a grave abuse of discretion amounting to lack or excess ofjurisdiction on the part of any branch or instrumentality of the Governm€'nt. Meaning of judicial power.
Judicial ppUJ~r is the power to apply the laws to contests or disputes concerning legally recognized rights OJ' duties between the State and private persons, or between individual litigants in cases properly brought before the judicial tribunals. 1 Scope...ot;.udic.ial.pnwer.
(1) .d!_lju_(]_(c;at~lfY-Jl1.lli~I!.I- - It includes the duty of courts of justice:
-
(crl to settle actual controversies involving rights which are legally demandable and enforceable; and
·- -
to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction finfra.J on the part of any branch or instrumentality of the government. (Sec. L par. 2.'1 (.b)
To be legally demandable and enforceable in courlR, rights m11st he .d!:l.ri~ from law. (e.g .. right of wife to recei\'e support from her husband) or ,remgnized.A¥.-law (e.g., rjght of cr~ditor to collect indebtednt>!'is of debtor under a contract of loan). G.r.aU£..!lhJJ.J:;tLaf-..dis.CL~et.imJ, as used above, has ?een judiciall_y def\ned to ·~ean "w.u:lu;~p:r.jcious ~nd _a:rbitra_ry_:~~rc~seof .J.P.sigment a~ Js equivalent. m the. eyes cl tllil.law,.. to la{;k of Junsdktwn:' 2 \ha,t i§,J(I.ck vf autllllrity. t.o..act Qn..the matter in di.sput~. See BhJck, Ciln.-1 it.ut i rm ~i I Law. 2nd ~o-d .. p. 8~. an1l Tgn
1
~Palma
:241
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
242
Sec. 1
fow,
not even the President or Congress can escape judicial scrutiny when facing complaints of great indiscretion or abuse of authority (e.g., arrest and detention of persons without charges; declaration of martial law without suffici ent factual basis) by invoking the political nature of their acts or pronouncements. (infra.) (2) PQWt?r...ofjudi(:f:g,Jr,ey f!!U!.: -
It also includes the power:
\,a) to pass upon the validity or constitutionality of the Ia ws of the State and the acts of the other departments of the government (see Sec. 4f2J. ); (.b) to interpret them; and ( ll) to render binding judgmcnts. 3 (3) lr.t:~.i.cJe!liG.:(.P_O..l:£.~~· - It likewise includes the incidental powers necessary to the effective discharge of the judicial functions such as the power to punish persons ~djud ged in contempt. (see note 1 under Art. VI, Sec. 22, supra. )
Giving of advisory opinions not a judicial function. (1) A./J.mc.ti..o.l:l... Q[.e~ecutiv~.Q{fic.iaU..- The judiciary is entrusted by the Constitution with the function of deciding actual cases and controversies. It cannot be required by law to exercise any power or to perform any duty not pertaining t.o, or connected with, the administration of judicial functions.4 It is not its function to give advisory opinions. (see Sec. 12.) It is a function of executive officials.
(2) J!_o~:trinf! of:separq~fon._.!_JfP.2.W.er~: -This doctrine callR for the oth'}r departments being left alone to discharge their duties as they see fit. The President and Congress are not bound to seck the advice of the J udiciary a s to what to do or not to do. It is ~ prerequi site that something had been accomplished or performed by either of them before a court may enter into the picture. At such time, it may par.s on the validity of what was done but only when propedy challenged in an appropriate legal proceedi ng:~
(3) Pe[Ld_(}!lf;:Y_o[ma[J-~. ac~y.~!._c.c:.ses. - Furt hermore, with so many cases pending in courts wherein there is an actual and antagonistic assertion between the parties, it would not serve public interest at all if on hypothetical questions or m atters their time and atte ntion would still have to be devoted. 6
supra., op. cit., p. 82. •Noblejas vs. Teehankee, L-28790, April 29, 1968. 6'fan vs. Macapagal, L-34161, Feb. 29, 1972; Plana.!; v:;. Gil, fi7 Phil. 62. 6 Serrano vs. Amorcs, L-34370, ,Jan. 17, 1975.
3 Black,
Sec. 1
ART. Vlll. - ,JUDICIAL DEPARTMENT
243
Judicial power vested in one Supreme Court and in iower courts.
Judicial power, under the Constitution , is "vested in one Supreme Court and in s uch lower courts as may be established by law." (Sec. 1.) The judiciary composed ofthe courts is one ofthe three main divisjons of power in our government. As the highest court of the land, the decisions of the Supreme Court are binding on all lower tribunals.
Classification of court8. - Under the provisirm, only the Supreme Court is a .fQnsJ.itJ.i.ti.OB.al ..s:.WJr:J. in the sense of being a creation of the Constitution. All other cour ts, including the Sandiganbayan (see Art. XI. Sec. 4. ), ar~a.~rJ.Jory c.ourt.s,).n the sense that they are creations of law. They are referred to as lower courts in the Constitution, meaning courts below that of the Supreme Court. (1)
(2) Creation and abolition of courts by Congress. - In the exercise of its legislative power ,J(:ongress may 3bolish any or all lower courts and replace them with other courts subject to t he limitation that the reorganization shall not undermine security of tenure. (Sec. 2, par. 2. ) It cannot, however, abolish the Supreme Court; neither can i.t create an additional Supreme Court because the Constitution provides for only "on~....S.\!J).r.eme CQ!,.U:t.~. Neither can it abolish the Sandiganbayan because its existence is constitutionally recognized although Congress, in th e exerc;se of its legislative power, may determine its functions and jurisdiction. (see Art. XI, Sec. 4. )
Organization of courts.
( O...Bcgylq'.:__£9..Y::~_s . - Th e Philippine judicial system consists of a hierarchy of courts r esembling a pyramid with the Supreme Court at the apex. Under t he Judiciary Reorganization Act of 1980 (as amended), t he other courts are:
(a) A Court of Appeals with 69 'Justices headed by a Presiding Justice which operates in23' divisions each comprising three (3) members. The Court sits en b~nc only to exercise administrative, .ceremonial, or other non-adjudicatory functions; (b) A Regionai 'rrial Court presided bx_ 720 Regional Trial Judges in each of the thirteen (13") regions of the country; and (c) A Metropolitan Trial Court in each Metropolitan area established by law; a Municipal Trial Court in every city not forming part of a metropolitan area and in each of the municipalities not comprised within a metropolitan area and a municipal circuit; and a Municipal Circuit 'l'ri.al Cout·t in each area defined as a municipal circuit comprising one or more cities and/or one or more municipalities grouped together accvrding to law.
TEXTBOOK ON T HE l'HfiAPPINE CONSTITUTION
244
Sec. 1
A court may consist of several branches. (2) Bpe.cia.l cour.ts.; -- Aside from the regular courts, there are under present laws special courts: (a) The 8andil{_a1Jllqyan £:with 14 justices a nd a. Presiding Justice) which operates in five (5) divisions each comprising three {3) members, was created by Presidential Decree No. 1606 pursuant to the mandate of the 1973 Con stituti on .~ IL"shall continue to function a nd exercise its j urisdiction" a!) provided in sai d decree or as may be provided by a suhsequent law. (see Art. XI. Sec. 5. l fb l T~e Cnu rt n{ Tq:r Appeo.(.s. (with five justices and a Presiding justice) was. created under Republic Act No. 1125, as am~ded by R.A. No. 9282, which has exclusive appellate jurisdiction to review on appeal, among others, decisions of the CommisRione r of Internal Revenue involving internal revenue taxes and deciBions of t he Commissioner of Customs involving customs duties. Quasi-judicial agencies .
Administrative bodies under the executive branch per forming quasifunctions, like the National Labor Relat-ions Comm ission, th e Employees' Compensation Commission, the Securities and Exchange CommiRsion, the Insurance Commission, etc., and the independent Constitutional Commission!5 do not form part of the integrated judicial system.
judi c ial~
The same thing may be said of courts-martial. They are agencies of executive character. The a uthori ty for the ordering of courts-martial pertains to the President as Commander -in-Chief of the Armed Forces of the Philippines independently of legislation to aid him in properly commanding the Armed Forces a nd e nforcing discipline. 10 Importance of the judiciary.
The courts perform a crucial function in society. ( ll (.'o_n[icJen£.~•.ifl_fhe..fJi..r:.t.rJj!J.. an.cJ_€J!e'l. admi_rJ:i$t,T:gtjp_r;_g[ justic;_(}. the language of Lord Bryce:
In
"Nothing more clearly touches the welfare a nd security of the av er~ age citizen than his sense that he can rely on the certain and prompt admin istration of justice. Law is respected and supported when it is trusted as the ::;hield of innocence and the in;tpartial guardian of every =Pr~sident.ial Decree No. 108:3 I.J<'t>b. 4, 19?7}, otherwise known as the Per~onal Law>< of tht> Philippine~." created os part of th e judicial system,
"Code of Muslim courts of limited juri>'
s~c.
1
ART. VTJl . - ,HJD£CIAL DEPARTMENT
245
private civil right. x x x But if the law be dishonestly administered, the salt has lost its savour; if it be weakly or unfaithfully enforced, the guarantees of order fail , for it is more by the certainty than by the severity of punishment that offenses are repressed . If the lamp of justice goes out in darkness, how great is that darkne8s. " 11 ( 2) .£.r.~S.e.r.:v..ntiQ!1Jt.[Jhe governmkt. --- According to Chancellor James Kent: "Where there is no judicial department to int.crprP.t and execut.e the law, to decide controversies, a nd to enforce right!'!, th e government must either perish by its own imbec.:ility or the other departments of government must usurp powers for the purpose of commanding obedience, to the destruction of liberty." 12 (3) B.e.spet;t.fo_r_:_.lg_w _g_'1¢_f!rs!.f.~· - - In the words of Mr. Justice Arthur Vande1·bilt: "It is in the courts and not in the legi slature that our citizens primarily feel the keen cutting edge of the law. If they have respect for the work of t he courts, thei r respect fo r law will survive t he shortcomings of a ny other bran ch of the government; bul if they lose their respect for the wor k of the courts, their respect for law and order will banish with it to the great detriment of society." 13 Independence of the judiciary. (1) ..\lain constitutional provisionr; safeguarding judicial independence. - In a democracy, the courts enjoy independence, that is, they are free to perform their functions without interference from the executive or legislative bra nch of the government. 14 For a government of law and not of men ca n be assured only by a judiciary that is independent and free , passionately devoted to the impar tial admir.istration of justice. This being true, the Constitution secures, in a number of ways, the independence of the judiciary, to wit: (~ Congress may not deprive the Supreme Cour t of the constitutional powers granted to it (Sees. 2, 5.);
(b) Congress cannot prescribe the manner in which the Supreme Court should sit, and determine the number of Ju~tices composing the court (Sec. 4[11.); (c) The Supreme Court is given the authority to appoint all officials and empl oyees of t he judiciary {Sec. 5[61.); 11Modern
Democracies, Vol. 2, p. 384. in G ..l". Zaide . .~upra , p. 142. 1 3Th~ Challenge of Law Reform, pp. 4-5 lpamphlei}. 14 True judicial independence implies indepcndt>m:t> not only from the other branches of the government but also from any other ins titution, organization, or person. It is also essentia l that cou rts are not infl uenced by the vagaries of public opinion or sentiment nor !!WIIyed by any pressure from interelit groups. 12Cited
TEXTBOOK ON THI-: PHILlPPTNE CONSTTTUTION
246
Sec. 2
(A) The members of the Supreme Court and judges of lower courts enjoy security of tenure (Sec. 11. ); (e) Their salaries cannot be decreased du1·ing their continuance in office (Sec. 10.); (() The members of the Supreme Court can only be removed through the difficult process of impeachment (Art. XI, Sec. 2.); and (g) The judiciary enjoys fiscal autonomy. (Sec. 3.) (2) Other constitutional provisions. - The constitutional policy of an independent judiciary is further strengthened by the provisions transferring (from the Department of Justice I to the Supreme Court the adminis· trative supervision over all courts and the personnel then~of (Sec. 6.) and the authority to assign temporarily judges of lower courts to other stations as the public interest may require (Sec. 5l3J.), and the provision giving specific authorization to the Supreme Court to order a change of venue or place of trial to avoid a miscarriage of justice. I. Sec. 5l4J.) The prohibition against members of Congress personally appearing as counsel before any court (Art. VI, Sec. 14.), while designed to shield them from corruption, works equally to promote the independence of the courts.
In the final analysis, every judge sets the threshold of his own independence. No constitution can do that for him if he does not possess the strength of character expected of those appointed to the bench. (see Sec. 7 .) (3) Criticism of courts. -The courts are not !:leyond criticism because of the constitutional guarantee of freedom of expression. (Art. III, Sec. 4.) But criticism should be fair and constructive and based on facts. Irresponsible criticism also tends to erode the faith of the people in the administration of justice. Respect of the people for the courts is the only sure guarantee for their stability and permanence. 1"
SEC. 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over. cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. Power to apportion jurisdiction of various courts · vested in Congress. The power to define, presc1·jbe, and apportion the jurisdiction of the various courts is vested by the Constitution in Congress. However, there are three (3) limitations to the exercise of this power. namely:
16
Andres vs. Cabrera, 94 SCRA 512, Dec. 14, 19i9.
S~<;.
ART. Vlii.- JUDICIAL DEPARTMENT
9
247
(1 ) The Congress cannot diminish or otherwise impair the original and appellate jurisdiction of the Supreme Court over cases enumerated in Section 5 (infra.);
(2) No law shall be passed r eorganizing the judiciary when it undermines security of tenure guaranteed in Section 11; and (3) ·No law shall be passed increasing the appellate jurisdiction of the Supreme Court without its advice and concurrence. (Art. VI, Sec. 30.)
Jurisdiction of courts.
Jurisdi(:tio!J. is the power and authority of a court to hear , try, and decide a case. It may be: (1) ..Ge.acraJ. --when it is empowered to decide all disputes which may come before it except those assigned to other courts (e.g., jurisdiction of the Regional Trial Courts); (2)_I,Arn:itecj_, - when it has authority to hear and determine only a few specified cases (e.g., jurisdiction of special courts, supra.); (3), Orig~TJ:.g,.l. time;
-
wh en it can try and decide a case presented for t he first
(4 ) gpp~t.lr£tg_.- when it can take a case already h eard and decided by a lower court removed from the latter by appeal;
(5) .E.~r;.Zu..ff.i_l!e. - when it can try and decide a case which cannot be presented before any othe1· court; (6) Concurrent. cognizance-or-a case;
when any one of two or mol'e co urts may take
(7) CLimi.rt.fl
SEC. 3. The Judiciary shall enjoy fiscal autonomy. Appro· priations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. Fiscal autonomy.
Section 3 seeks t o further insure the independence of the j udi ciary. 'l'he appropriations for the judiciary may not be reduced as provided above but they may be increased. The Constitution takes into account the fact that the administration of justice, in the past, has always been at the bottom list of priorities in government budgetary appropriations. The prohibition again st reduction by Congress of the appropriations for the judiciary below the amounts appropriated for the previous year assures, at least, that the minimal funding requirements of the judiciary will be met.
248
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec.4
After approval, the appropriations shall be automatically and regularly released, thus making it financially independent, without having to plead to the President or budget officials for their release.
SEC. 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en bane or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en bane, and all other cases which under the Rules of Court are t•equired to be heard en bane, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, in· structions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least th.t:e.e~~b_M~JP.!mn. When the required number is not obtained, the case shall be decided en bane: Provided, That..no .sl2~tti._ne or principl~_R.m~y_Q~__m.Q~ifl~d.orHre.versed ~~E:Pt by th.e. co\lT.t.mting.m ban.c-1 (3)
Composition of the Supreme Court.
The new Constitution retained the membership of the Supreme Court of fifteenJ15) me~.Qers including the _Chief Justice under the 1973 Charter (Sec. 4[1].) to cope with the continuing increase in the number of cases brought about by a growing population. The Constitution requires any vacancy to be filled within ninety (90) days from the occurrence thereof. In the past, vacancies in the Supreme Court sometimes remain unfilled for a 1ong time. Even when the membership of the Court was fixed at fifteen ( 15), it was seldom constituted. Sitting procedure.
The Supreme Court may sit and hear casesilll.b..f£nc (i.e., as one body) or in divisions of three <:U, five (5), or seven (Jj membe?s:'{Sec. 4r1D)t is now the Supreme Court that decides whether or not it will sit in divisions.
Sec. 4
ART. VIII. -JUDICIAL DEPART:I-1ENT
249
On t he basis of fifteen (15 ) members, the number of divisions will be five (5), composed ofthree f3 ) members each; three (3), composed of five (5) m embers each; or two (2), meeting separately. In case of two (2) division8, there wilJ be eight (8) members including the Chief Justice in one division, and seven (7) in the other. The different sizes of the divisions would indicate the relative importance of the case being heard. By sitting in divisions , the Supreme Court increases its capacity to dispose of cases pending before it. The decision of a divi sion is the decision of the Supreme Court itself. Although a doct rine or principle of law render ed en bane or in division may be modified or reversed only by the court sitting en bane (Sec. 4(3).), there is always the possibility that each of the three (3) divisions may render inconsistent decisions. Cases to be heard or decided en bane and vote required.
They are:
(j) All cases involving the constitutionality of a treaty, international or executive agreement, or law (statute) shall always be heard and decided by t h e Supreme Court en bane. To declare a treaty, international or executive agreement, or law, unconstitutional, the ~o_nctJ..r.r.!:!n~(L.Qf..i! maiori.ty Qf th.e. .Jrle.IJl.b.~§- who actually _took pa.rJ....i.nJh.~u;leliberatio.n~Q. th.eJ.s~_j.n.Jhe. .case .and..Jlaie.d..the.re.on is. requiri.d. (Sec. 4[2].) When the necessary majority cannot be had, its constitutionality shall be deemed upheld. The quorum of toe Supreme Court when sitting en bane is eight (f?J. H ence, the votes of five C9J are sufficient for rendering a decision on ~li cases required to be heard en bane provided they actually took part in the deliberations on the issues in th e case; (2) All other cases including those involving the co~titutionality, applicat ion or operation of president ial decrees, proclamation s, orders, instructions, ordinances and other regulations which under the rules of court are r equired to be heard en bane shall be decided with the concurrence also of the ?umber provided above (Ibid.);
(8") In administrative cases where the decision is for the dismissal of a judge of a lower court, the same majority vote is necessary to order such dismi ~sa l (see Sec. 11, infra.);
(4) Cases heard by a aivision shall be decided or resolved with the concurrence likewise of t he same majority of the m ember s who are at least three (3) in number but if such required number is not obtai ned, the case shall be decided en bane (Sec. 4[3).); and (_5) Cases modifying or r eversing a doctrine or principle ..of layv laid down by the Court in a decision rendered en bane or in division shall be decided by the Court sitting en bane. (!bid.)
TEXTBOOK ON THE PHILIPPINE CONSTITL'TION
250
Sec. 4
Meaning of executive agreement.
An .e.~gcutjve agreem.~ is an agreement entered into by the President on behalf of the Philippines with the government of another country and is effective and binding upon the Philippines even without the concurrence of Congress. 1 The line between such agreement and a treaty (see Art. VII, Sec. 21, supra.) is not easily defined although it may be generally said that the former deals usually with routine matters not thought to require the formality of a treaty. 2 From the point of view of internationallaw,3 there is no difference between treaties and executive agreements in their binding effect upon the states concerned. Classes of executive agreements.
Executive agreements may be classified into two groups, namely: ( 1) Those ma.ckp,ure.l~ as...exec_utive acts affecting external relations and independent of legislative authorization. 'fhey are used in the settlement of pecuniary claims of citizens against foreign countries for violation of rights protected by treaties or by rules of international law; and (2) 'I.hQ§...e_ ~.!':terl!.cl. _i'.tto_j_n_pJ.~rsuqnc~_!2LQcts 9LJ;ongres§_. They affect internal affairs and domestic rightg_ They include tariff and postal arrangements, visa fees, commercial relations, and matters affecting trademarks and copyrights, and the like. An example is the executive agreement entere::l into between the President of the Philippines and the President of the U-nited States on July 4, 1941, known as the Bell Trade Agreement which was entered pursuant to a congressional acL 4 Meaning of power of !udicial review.
The power of.iJJ£l.k-_iq,lJ.'(!.Ei.f.?:Y is the power of the courts, ultimately of the Supreme Court, to interpret the Constitution and to declare any legislative or executive act invalid because i'i: is in conflict with the fundamental law. This authority is derived by clear implication from the provisions of Sel~ tions 4(2, 3) and 5(2, a, b), Article VIII of the Constitution. Through such power, the judiciary, the Supreme Court partiCularly, enforces a~d upholds the rule of law and supremacy of the Constitution. It is because the courts are the official (but not necessarily the only) interpreters of th~· Constitution that a study of 0ur Constitution is, in large measure, a study of judicial decisions and opinions on the meaning and application of its provisions.
'This is debatable. (see Article VII, Sec. 2l.J The 1947 R.P.-U.S. Military Bases Agreement was merely an executive agreement. (see A1·t. XVIII, Sec. 25.} "As to meaning of international agreement, ~ee Article VII, Section 21. •See V.G. Sinco, op. cit., p. 296. The act i.;; Commonwealth Act No. 733. 2
Sec. 4
ART. VIU. -,JUDICIAL DEPARTMENT
251
The power of judicial review now includes "the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." (Sec. 1, par. 2.) This is true although the question before the court may be political in character, which ordinarily cannot be inquired into by the courts. (infra.) Limitations on exercise of power of judicial review.
Iu. ..~§.~s involviqgJb.~..~on~Jj~_l!tiopalitY..Qf.~'f_!:l_a_ty..~ _]avv_,_p_l~~~ig_~~~i<:l!. .P.ecr~_e, .~.tc.J .th~_U!l}!~~lions ar~~ 0) There must be a concurrence of at least a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon (Sec 4[2, 3].);
(~)
·. A law, @must be sustained unless clearly repugnant to the Constitution in view of the presumption of validity. Jn other words, when there are two possible interpretations, by one of which a statute would be unconstitutional, and by the other would be valid, the court should adopt the latter;5 (;}''(The question of.wisdom, propriety, or necessity of a law, etc., is not open to determination by the court;6 and (4) Political questions are generally addressed to the political (i.e., elective) branches (namely, the President and Congress) of the government and are, therefore, notjusticiable. 7
.._- .. -
. :_
Justiciable question distinguishe41 from political question.
A justiciable questio'f] is one which affects personal or property rights accorded to every member of the community in cases properly brought before the judical tribunals. It is one which is proper to be examined or decided in courts of justice because its determination would not invol\'e an encroachment upon the legislative or executive power. Thus, issues concerning the claim of a person against another. the guilt or liability of one accused of violation of law, the powers of a government agency or office, the right of a citizen in relation to the government, and generally those involving the interpretation oflaws, treaties, or the Constitution, are essentially within the competence of courts to pass upon.
:.chippewa Indiana vs. U.S., 301 U.S. 358. 6 See U.S. vs. Ten Yu, 24 Phil. 40. 7 -The C....Q.~~i.~~-~!•m,however, CX_£!'_~~~lY. confers upon tl}e_?~reme Cou.rt the eower to dechu:e.a....u·~Jl,Il£onstjtutional dcspite..the..eminently pplitical char~:ot.i-.r.~~ti:;rii~-ki~i (Sec. 4(2].) and..to. determine_w,b.e~or..not.ther.e.has been a graye abuse ofdis~:retiQO Qn th.e. p<.~rtQf.1hc..P.n.ai.~r...kQngr~ (Sec. I, par. 2.1
252
TEXTBOOK ON TH E PHIL£PPINF. CONSTITUTION
Sec. 5
A P..Olitical question, on the other hand, is one which, under the Constituti on;-<'fs- i;"be d;cid~d by th e people in their sovereign capacity, or in regard to which full discreti onary authori ty h as been delegated to the legislative or executive branch of the government." The term connotes a question of policy in matters concerning the government of the State as a body politic. It is concerned with issues dependent upon the wisdom, not the validity or legality, 'of a pai.'ticular measure or a contested act. 8 . For example, the :Supreme Court cannot inquire into the reason for the expulsion uf a member of Congress, or determine what constitutes disorderly behavior by a membcr9 (Art. VI, Sec. 16131.) or pass upon th e question a s to who h as been elected Senate President or Speaker of t h e H ouse of Representat.ives 10 {Sec. 16[ l l l because the Constitution has conferred jurisdiction upon the matter to Congress itself. The matter of whe ther 0r not the holding of a referendum is unnecessary has been held to be a political question, involving as it does the wisdom of the decision of the political branch of the government to cal l for a referendum.U But if t h e cont roversy involves the issu e of whether or not th ere has been a grave abuse of di~cretion a mounting to lack or excess of jurisdiction on the part of a ny branch or instrumentality of the government, m· violation of constitu tional limitations on power, the same may be heard by the courts. (see Sec. 1, par. 2.) SEC. 5. The Supreme Court shall h ave the following powers: (1 ) Exe rcise origina l jurisdiction over cases affecting ambassadors, other public ministers and consul~, and over petitions for certiorari, prohibition, mll.ndamus, quo warranto, and
habeas corpus. (2) Review, revise, r ever se, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final judgme n ts and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, inte rnational or e xecutive agreement, law, presidential decree, proclamation, orde r, instruction, ordinance, or regulation is in q uestion. (b) All ca~es involving the legality of a n y tax, impost, assessment, or toll, or any p enalty imposed in r elat ion thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
&fanada vs. Cuenco, 103 Phil. 105 1; sec .Ja vell11na vs. Executive Secretary, et al., L36142. March :31 , l973. '>St>e Osmeria vs. P end atun , L-17144, Oct. 2fl, 1962. 1 '' Avelino vs. Cuenco. 83 Phil. J7. "De La Llan1:1 vs. COMELEC, L-47:245, Dec. 9. 1977 ..;
St~c. fi
ART. V1/l. -
JUl>lCIAL DF,PARTMENT
253
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other s t a· tions as public interest may require. Suc h temporary assign· ment shall n ot exceed six m onths without t h e consent of the judge concer ned . (4) Orde r a change of ve nue or place of tria l to avoid a mis carriage of justice. (5} Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, pradice, and procedure in all courts, the admission to the practice of law, the Integrated Ba r , and legal assistance to the u nderprivileged. Such rules sh all provide a simplified and inexp e n sive procedure for the s p eedy dis posit ion of cases, shall be uniform for all courts of the same grad e, and s h a ll not diminish, increase, or modify substantive r ights. Rules of procedure of s pecial courts a nd quasi·judicia l bodies shall r emain effective unless disapproved by the Supre m e Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civ il Ser vice Law. Original jurisdiction of Supreme Court over cases affecting ambassadors, etc.
The words "ambassadors, other public ministe rs a nd consuls" include all possible diplomatic agents which a ny foreign power may accr edit to a nother state.1 They refer, t herefore, to those of a foreign country, and not thos e of the Philippines. The origi na l jurisdiction conferred is concurrent (sup ra. ) with th at of Regional 1'ria l Courts whose decis ions m ~y be appeale d to the Supreme Court.2 As a rule, ambassador§and othe[.J2J,!blic mini st~rs a re exempt from the jurisdiction of tribunals of the country to which t,h ey are accredited. T his is based on the principle of i nternationallaw that they a re con~idered extens ions of the sovereignty of the states which thty r epresent . .1\....c.o.o.sul, h o wey_~E.Lis .n. o~. ~~-~i~k~ ..0~ ~:t~_priy.H~..K~~ anrl.i.!!!.Qlhl.n.~.U~~.Qf an ambass.~,slor ~ r . minj,ste.r . a.n.c;!. ~.~ .. §.\,l.bj~~ t ~9 . -~h.e. Ja.J~:->. o~ tl:t~ co~ n~ ry _~o whi~h. h~_j_s , 3 P,;~cr~_d!ted. A ~9.1J.§!Y.U h~~J. i.~?. Q
U.S.C.A ., Cot\!\t. Pa rt 2, p. 235. d t.i ng 70 Op. Atty. Gen. U.S . 20U. See Schnekenhergcr vs. Moran, 62 Phil. 429. 3 lbid. 1
2
254
TEXTBOOK ON THE PHrLIPPJNE CONSTITUTION
Sec. 5
Origir1al jurisdiction of Supreme Court over petitions for certiorari, etc.
The Supreme Court exercises original jurisdiction over petitions for the issuance of writs of certiorari, prohibition, manda mus, quo warranto, and habeas corpus. 4
It has original and exclusive jurisdiction (supra.) over petitions for the issuance of writ of certiorari, prohibition, and mandamus against the Court of Appe al s.~ (1) Cer.~iQr.arJ. -(as a special civil action, not as a means of elevating an appeal, infra.) It is a writ issued from a superior court (Supreme Court, Court of Appeals, or Regional Trial Court) requiring a lower court or a board, or officer exercising judicial functions to transmit the records of a case to the superior court for purposes of review. It will lie when such tribunal, etc., has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion, and appeal or any other remedy is not available to the aggrieved party.6
(2) Pro.h.i,p~ti_on,, - I t is a writ by which a superior court commands a lower court or a corporation, board or person acting without or in excess of its or his jurisdiction, or with grave abuse of discretion, to desist from further proceedings in an action or matter. It will lie only when no appeal or any other remedy is available to the aggrieved party. 7 Prohibition is a negative remedy prohibiting the doing of a certain act.
(3) M..q.IJdft.TJJ-U§: - It is an order issued by a superior court commanding a lower court or a corporation, board, or person t o perfonn a certain act which it is its or his duty to do. Again, this writ will lie only when no other remedy in the ordinary course of law is available. 8 Mandamus is an affirmative remedy ordering a certain act to be done. (4 ) Q.HQ....J£.arrq,7J:!£1. - It is an action by the goverpment to recover an office or franchise from an individual or corporation usurping or unlawfully holding it .9
In addition, the Supreme Court exercises original and exclusive jurisdiction over all contests relating to the election, returns, and qualifications of the President and Vice-President. (Art. VII , Sec. 4, last par.)
'R.A. No. 296 (.Judiciary Act of 19'48), Sec. 17, as amended. This law has been superseded hy Batas P~:~mbansa Blg. 129, but only the provisions of the former which are inconsistent
wi th those of t he latter are
de~me d
repealed or modified.
~Ibid.
"See Rules of Court, Rule 65, Sec. 1. 7 See Ib id., Sec. 2. ASee Ibid., Sec. 3. 9 See Ibid., Ru le 66, Sec. 1.
ART. VIIl.- Jt:DICIAL ImPARTMENT
Sec. 5
2o5
Exclusive appellate jurisdiction of the Supreme Court. Th.~ __ex~l-~_~iY-~- -~p.J2elt~-~~jurisdt~!_i_o..n_ ·(supra.) Qf__th~ Supr~:m.~ _Q
the appellate court 1:eviews_ all the_fl!ldings oUJl~nd of
fu.c.J of a lower court as in special proceedings (e.g., adoption and custody of minors). (2) By certiorari (as a means of elevating an appeal), the appellate or superior court can review only questi~~~2r errqr.s of l~w decided or committed by a lower court (e.g., appeal from an order or decision of the Court of Appeals). A que~l.~Q.IJ. _of_!a_w is that which involves no examination of the probative value of the evidence presented by the parties or any of them in the lower court (e.g., constitutionality of a law). Ail.uestion offac.t (e.g., whether or not a particular event has taken place) cannot be reviewed by the Supreme Court on certiorari on the theory that the lower court which "heard the case, observed the demeanor of the witnesses or otherwise acquired acquaintance with the issues and incidents thereof,"12 i!:l in a better position to pass upon the question. Assignment of judges of tower courts to other stations.
Section 5(3) modifies the rule established under the 1935 Constitution13 which empowered the executive department to designate or transfer to another district a judge appointed for a particular district, but with the approval of the Supreme Cour~.. Under the provision, temporary assignments of judges of lower courts may be made only by the Supreme Court. This additional comtitutional power further enhances the independence of the judiciary by eliminating possible political influence in such assignments. It is also consistent with the transfer of the adminiotrative supervision of the judicial machinery to the Supreme Court. (Sec. 6, infraJ
(l.J The requirement that the temporary assignment of a judge to another station for a p!:!riod longer than six (6J months must be with his See V.G. Sinco, op. cit .. p. :]07. lbid., p. 316. So, it may be provided that the remedy shall be by certiorari only. 12 Macandile vs. Macalino. L-24874. Sept. 30. 1978. 13 Article VHI. Section 7 thereof. 10 11
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
25(i
Sec. 5
consent accommodates t he demand for such detail when required by the exigencies of the service (e.g. , to relieve the clogged dockets of a court which is vacant) while at the same time protecting the right of a judge to permanency at a station. · (~) I.Lthe...tr~:usfe..r.i&.~_pcrm.t,!~.e nJ 9.U~..... [email protected] be.J~ff~.~.ted wrtl!_!!t~ c~:!!~.~-(lt ?.f_t~ ~ i~~~-~()~.<:~1.:~~4--~119: . by_th~ -~~t~Q§i.~m . iill.ment
.by.the_.Ere.sid&ru. (Sec. 5[3].) The reason is that a judge enjoys security of tenure (Sec. 11.) and such transfer is tantamount to removal from one office (former station) and an appointment to a new office. The ~tation of a judge is the place where he is assigned by law to hold regular sessions. A regional trial court judge is appointed by region. He may be assigned to any regionaf branch of the court in the city or municipality within the same region without the need of his consent because the whole region is his station.14 C_l!f!!).Q~ of v~n'!~ Qt.PI@c:e
9t t_r~!~
The Supreme Court can order a change of venue or place of trial whenever the imperative of securing a fair and impartial trial or of preventing a miscarriage of justice so demands. (Sec. 5[4]. ) This had been done before in one case under the 1935 Constitution by the Suprem e Court where the complainants who were also the prosecution witnesses in several criminal cases against the accused, a member of a family known to be very powerful and influenti al in the place of trial, were reluctant to testify, it appearing that they had reasons to fear that attempts would be made to silence them, and there was no guarantee that such a possibility would not take place. 15 Rather than make the Supreme Court rely upon the general grant of judicial power , the present Constitution expressly invests the Supr.em e Court with the specific prerogative to transfer the place of hearing in the interest of truth and justice.
The Supreme Court is vested by the Constitution with full legislative authority to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice oflaw, the integrated bar, and legal assistance to the underprivileged. The rules promulgated are called the "Rules of Court." Such rules have the force and effect of law. Rules of procedure of special courts (i.e. , Sandiganbayan, Court !)f Tax Appeals) and quasi-judicial bodies (e.g., Insurance Commission, Securities
1
~B.P.
Big. 129, Section 17. vs. Gu t ierrez, l r 32282-83, Nov. 26, 1970, popularly k nown as the ~nantay Case"; see also People vs. Pelotin, L-35377-78, July 31, 1975; Mondiguing, et al. vs. Menabad, L-41313, Nov. 6, 1975. 1
~People
Sec. 5
ART. VIII.- ,JUDICIAL DRPARTMENT
and Exchange Commission) sh all remain effective unless the Supreme Court. 16
257
di ~approv ed
by
(1) E!l:ate.c.t.i.O.ll- .and enfJu:..c.e.nzr;!~.t...Pf £..o.n.~tj_tt;tJ.i!.>.'!:..a:f rights_. - The Consti· tution accords great importance to the full enjoyment by the people of their constitutional rights that even the Supreme Court is enjoined to promulgate rules of procedure concerning their protection and enforcement in cases pending befo1·e the courts. These rights a re mostly found in Article III. The Constitution recognizes the evils of what has been termed as "compartm~_ntalized ju~t!_<::~" _whereby through unequal application of the law, those who have power or influence are favored to the detriment of poor, ignorant or helpless litigants_
In criminal prosecutions, the Constitution seeks to avoid the conviction or punishment of an accused who may be innocent. (2).J!kJJ.di.JJg. - It is the act of presenting one's claim, answer, or arguments in defense or prosecution of an action. The term is often used to refer to any paper filed in court in connectior. with a case before it. In a strict sense, however, £!~~s are the written allegations made by parties to a case for the purpose of presenting the issues to be tried. 17 Examples of pleadings are the written complaint and the answer thereto . (3) j>ractice...JJLlfilli.. - As generally understood, it is the doing or performing of services in a court of justice, in any matter pending therein. In a larger sense, it includes legal advice and counsel and the prepa ration of legal instruments and contracts a lthough such matter may not be pend· ing in court. 18
(4) P~w:.e....- It refers to the method by which substantive rights may be enforced in courts of justice. The rules on court procedure promulgated by the Supreme Court are now embodied in the Revised Rules of Court of the Philippines (effective Jan. 1, 1964).
(5) .d.¢r.n..issi9l1.. ~Q t/Je..IJ.m.ctic~p.l.lam_or to the !;Jar..- A person is s aid to be admitted to the Bar or is a member of the Bar when he is authorized by the Supreme Court to practice law in the Philippines. He is authorized if he has the necessary legal , moral, and educational qualifications, a nd the prepa ration or training in law and h as passed the required examination. 19 (6) J.llifJJ.r..g_~$..4.. qq._r:._. - It means the official national unification of the entire lawyer population of the Philippines in a single organization. This requires membership and financi al support (in reasonable amount) of every a ttorney as conditions sine qua non to the practice of law a nd the retention of his name in the Roll of Attorneys of the Supreme Court. ~e Supreme Cou r t m~:~y not exe rcise th e power with respect to the interna l ru les of the Constitutional Commissions \Ar t. IX, See A-Sec. 6; Art. XIII, Sec. 18f2 l.l which are independent bodies but it may exercist' t.ht~ power of judicial r eview over the m in cases involving constitut ional or legal questions. 17 41 Am. Jur. 288. ·~7 c .•J.s. 704. lDScc Rules of Court, Rule 138, Sec. 11.
TEXTBOOK ON THE PHIUI'PINE CONSTITliTION
258
Sec. 5
The term ".B.ar" refers to the collectivity of all persons whose names appear in the Roll of Attorneys of the Supreme Court. An Integrated Bar (or Unified Bar) perforce must ir.clude all lawyers. 20 Th ~ general purposes of an integrated bar are: (a) To elevate the standards of the legal profe ssion; (b) To improve the administration of j ustice; and (c) To ena ble the bar to discharge its public res ponsibility more effectively.2 1 17) Lega.L.JlE.s.iBJIJlJ..<;.? ..!..Q .. t!J.,~ .l:lnc.Jerp riu~. - Poor and uninfo rmed litigants are entitled to legal assistance from the government in defending or enforcing their rights to r edress the imbalance between the parties in civil a nd criminal cases. For instance, they are given lawyers, free of charge, to reprelSent them and are exempted from paying court fees. Without governmental help, victims of injustice may take the law in their own hands to vindicate their rights. The consequent mistrust of the judicial process paves the way to the breakdown of the law. The rules concerning legal assistance to the underprivileged must assure that free access to the courts a nd quasi-judicial bodies is not denied to any person by reason of poverty. (Art. III, Sec. 11 .) The observance of this constitutional mandate will go a long way in instilling in the people faith in our justice delivery syRtem as the haven of their rights and freedom. Limitations on ttl.~ .r.YJ~m@~ng. .P.9_~~r
2J.~!:te -~':I.Pre~e.~Q~rt.
They are the following: ~l.) Such rules shall provide a simplified and inexpensive procedure for the s peedy disposition of cases; (2) They shall be uniform for alJ courts of the same grade; and (3) They shall not dimini!:ih, increase. or modify substantive rights (as distinguished from procedural rights). (Sec. 5[5.1.) Congress h as the power to repeal, alter or a mend the rules promulgated by the Supreme Court. ~ 2
~0 Rcport
of Commission on Bar Integration. p. 305. ' R.A. No. 6397, Sectio n 1. Pursuant to Article X, Section 5(51 of the 1973 Constitution, the Supreme Court promulgated Rule 139-A {effective ,Jan. 16, 1973) of the Rules of C:ourt which contains the rules on the Integrated Bar of the Philippi nes, tho n ational official organization of lawycrR in the Philippines. ,UTbe new Constitution deleted the phraRe "which, however, may be repealed, altered, or supplemented by the Batasang Pambansa." Nevertheless, it is submitted tha t Congrc~s still retains the power since it possesses a ll legislative powers exce pt only those which have not been expressly withheld. 2
ART VIII.- JUDICIAL DEPARTMENT
Sec. 5
259
~UP!l~!ln~iy~~l..l~..P.t~~Elc!~raU~w/right~
..d.istinguiShed, (1) Substqn.tive lau: is that part of the law which creates, defines, and regulates rights concerning life, liberty, or property, or the powers of age ncies or instrumentalities for the adm inistration or public affairs, whereas fi:1-jectiJ1§~9.L~.lJJ:l!_Slia:.l (or procedural j law is that part of law which prescribes the method of enforcing rights or obtaining redress for their violation. Examples of substantive law are the Civil Code, Code of Commerce, Insurance Code, Corporation Code, National Internal Revenue Code, Revised Penal Code (criminal law), and the Constitution. 23 The adjective law in the Philippines is governed by the Rules of Court promulgated by the Supreme Court and by special laws. It neces!:iarily includes the rules relating to courts and their jurisdiction, pleadings (supra.j, remedies, trial, and evidence. (supra.) From the foregoing discussion, it is plain that the substantive law is useless without the adjective law, as it will simply be a collection of unenforceable rights and duties, while without the sub5tantive law, the adjective law would have no reason for its existence , as it would merely provide for the enforcement of rights which are not prescribed. 2 ~ (2) SJ.J:b~1.aJJJJyi:L...ligh &s are rights which substantive law declares or rights concerning life, liberty or property. Examples are the rights provided in Article III (Bill of Rights) of the Constitution. Procedural rights, on the other hand , refer to the remedies or means by which an aggrieved party, whose (substantive ) rights have been -violated, may bring h is case to suit, trial, and judgment. An example is the right of a party to appeal a decision of a low~r court to a higher court.
In some cases, however, a right cannot be neatly classified as substantive or procedural. This is particularly true with respect to the constitutional rights of the accused (see Art. HI, Sees. 15-22.) which are implemented by the Rules of Court.. ~ppoimm~mt9.t.Qffll:t~'~-~Q9 eo::u~!Qy~.
The Supreme Court has the power to appoint all ot1icials and employees of the judiciary in accordance with the Civil Service Law. (Sec. 5[6]; see Art. IX, A-Sec. 8; B-Secs. 2[2], 6-8. ) This authority further enhances its independence as envisioned by the Constitution. It was formerly provided by law. Once appointed ,. they shall be entitled to the protection of the provisions of the Constitution on Civil Service. (ibid., Sec. 2f3], infra.) It should be recalled that Congress may, by law, vest in courts, a uthority to appoint "other officers lower in rank" in the judiciary. (see Art. VII, Sec. 16.)
21 ·
2
See Bustos vs. Lucero, 81 Phil. 640; Primicias vs. Oca mpo, 93 Phil. 446. ' Melquiades J. Gamboa, An Introduction to Phil. Law (1955), 6th ed., p. 97.
260
1'1-~XTB OOK
ON THE P HILIPPINE CONSTIT UTION
s.,.cs. 6-7
SEC. 6. The Supt·eme Court shall have administrative supervision over all courts and the persormel there of. Administrative supervision over lower courts.
The Supreme Court exercises administrative supervision over all courts from the Court of Appeals down to the lowest cour ts a nd the personnel thereof. This is one of the fundamental changes introduced in respect of the judicial system by the 1973 Constitution. The 1935 Chart er was silent on this poin t. Under the law then in force, the lower courts wer e subject to the adminis trative supervision of the President who exercised it thrcugh the De partment of J us tice h eaded by the Secretary of .Justic:e' who was no more and n o less than the alter ego (Lat. , another I.) of the P resident. It was n a tural tha t decisions taken eve n in t he matter of supervising judges and personnel of lower courts were sometimes heavily influe nced by poli t ical considerations. The change removes possible executive intervention in t he affairs of the courts and the administration of just i ce. ~ The power of administrative supervision of the Supre me Court extends to the Sa ndigan.bayan, a special court (see note 5, under Art. XI , Sec. 2. ), because Section 6 r efers to "all courts.":l SEC. 7. (1) No pers on shall be a ppointed Membe r of the Supreme Court or any lower collegiate court unless h e is a n a tural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have b een for fifteen years or more a judge of a lowe r court or engaged in the prac tice of la w in the Philippines. (2) The Congress shall prescr ibe the qualifications ofjudges of lower courts, but no pers on may be appointed judge the reof unless h e is a citizen of the Philippines and a member of the Philippine Bar. (3) A Member of the Judicia ry must be a person of proven competence, integrity, probity, a nd independence. 1The fo r mal tra nsfer of adminii'l trati ve su p~ 1·vis iou ove r infl!. rior (no w l<>wcr) co ur ts from the Department of Justice to the Supreme Court was eftb:tt~d by Presidential De~rec No. 185, iss ued Ma y 7, 1973. It is now ~xercised by the Supre me Court through an oflice headed by a Court Admi nistrator who is ap poi nted by the Chief .f ustic~ . (Pres. D~cree No. 828.) 2 Be that as it may, the additional work imposed by the pr·ovision on the Supreme Court canno t but adversely atle r:t its adjudicative functions particular ly in th e face of the increas ing number of ca sef> that are brought before it. 3 l t ha::~ betm hA!d th <'~t the exl!rcise of the rule -maki ng power of the Sandigan baya n is s ubject to th e approv a l of the Supreme Court. ha ll re main effecti ve un les>; dis approved hy the Supreme Court. t Sec. 5[5 ).)
Al{'l'. V III. - JUDIClAL
Sec. 7
DEJ:'ART~1ENT
~61
Qualifications for members of the Supreme Court and any lower collegiate court.
The
qualification~
for a member of the Supreme Court are:
( 1),1Ie must be a nAtural-born citizen of th e Philippines. (see Art. IV, Sec. 1.) Therefore, a natura lized citizen may not be appointed; (.2{ He must be at lea s t fo rty (40) years of age; (3} He must have, for fifteen {15) years or more, been a judge of a lower court or engaged in the practice ofla w in the Philippines (Sec. 7111.); and
(41 He must be a person of proven competence, integrity, probity and independence. (Sec. 7l3). ) This criterion hao something to do with the qualities of mind a nd spirit which a member of th e j udiciary m u st possess. It is intended as a guide to the r ecommending body (Judicial and Bar Council) anrl the a ppointing authority (President), and a s a reminde r to the appointee. ' This qualification is prescribed for a ll members ofth ejudiciary. Its indispensability is easily s een when it. is accept ed th at any system of justice is only "as good or as bad a s ils judges.'' The qualifications of members of a ny lower collegiate court (composed of more than one judge, i.e., Sandiganbayan, Court of Appeals,
Congress is not empowered to increase or decrease the qualifications of the Justices of t he Supreme Court a s laid down by the Constitntion .2 The same thing may be said in connection with constitution al provi si ons providing for the qualifications of members of Congress, the Preside nt, and the members of Constitution al Commissinns, the Ombudsman , a nd his Deputies. ( Art. XI , Sec. 8.) Congress is not prohibited, how ever, from prescribing disqualifications t.e.g., conviction of a crime for the position of Just.jce of the Supreme Court)
as long as they are relevant to the nature and fun ctions of the office. 1 Qualifications of judges of lower courts.
They are :
(l) Constitutional:
\a) H e must be a citizen. He..1l_~~.d_p..qL9.~.. l!.~tur a. l ~ hor~:.. This is to obviate the objection against naturali zed citizens being treated as 1 1986 UPL Con sti tu ~ion Project. ,J udicia ry, p. 3. ' See Va rgas vs. Rilloraza. 80 Phil. 297. 3Sce V.G. Sinco, op. cit., p. 313.
262
TEXTROOK ON THE P HILIP PI_:i!E CON STIT'CTION
Sec. 7
s econd-class citizens. In the case of members of appellate courts, the :-nat ural-born requirement was retained principally by reason of the · fact that their decisions are generally final; a nd (b) He must be a member of the Philippine Bar (Sec. 7[2].), i.e., a lawyer whose n ame is duly inscribed in the Roll of Attorneys 4 Of the Supreme Court. (sec Sec. 5[5], infra.) Membership in the Bar (infra.) is a prerequisite to the practice of law in the Philippines. It is obvious that judges should possess proficiency in law in order that they can competently construe and apply the law to cases before them, so as to forestall any harm or prejudice to litigants. Hence, the r equirement of me mbership in t he Bar a nd practice of law for appointment t o the judiciary; and (c ) He must be a person of proven competence, integrity, probity and indepen dence.5 (Sec. 7[3].) The above are the minimal qualifications which cannot be altered by Congress. ' (2) Statutory. - - Congress is given t he authority to prescribe additional qualifications fo r judges of lower courts. These statutory qualifications are now provided for under a law passed by the defunct Batasang Pambans a. 6 The administration of justice. (1) NaJ.J.!,li. - "Compared to other public functions and (luties, the dispensing of justice, being extremely important, is both delicate a nd singular. To sit in judgment over one's fellowmen, to pass upon their contr oversies involving their rights and fortunes, and in criminal cases, de termine their innocence ot· guilt, which decision affects a nd involves their freedom, lheir honor, even their lives, is no ordinary chore or busin ess. It is a serious task, weighty and fraught with grave responsibility and of far-reaching effects, a task earnest and solemn almost partaking of the divine."7
(2) .Ch.a.r:ac.te.r._a.ncL.fit.n.~_o{ iud_g_e_.~. - The possession of the legal qualifications prescribed for appointment to the judiciary and the existence of constitutional safeguards to protect judicial independence (supra.) are n o assurance that the appointee will discharge the duties of his office impartially, free from all outside pressure a nd influence . '· ,) :' "There can be no surer guara ntee for a true administration of , justice than the God-given character and fitness of those appointed to ~It is the official record cont aining the names and signatures of those who are autho rized to practice Jaw. (Pangan vs. Ra mos , A.M. No. 1053, Sept. 7, 1979.) · 5/fhis additional criterion for selection of members of the judiciary is left to the subjective determination of the Judicial and Bar Council and the President. 6 S ec Batas Pambans a Blg. 129. 7 Dissenting: Justice M. Montemayor in Ocampo vs. Secreta ry of Justice, 51 O.G. 147, Jan. 18, 1955.
Sec. 8
AH.T. 'liii.- .JUDICIAL DF:PARTMENT
263
the bench. The judges may be guaranteed a fixed tenure of office during good behavior and a salary that cannot be decreased, but if they are of such a stuff as allows them to be subservient to one adminis tration after another, or to cater to the wishes of one litigant after another, the independence of the judiciary will be not hing more than a myth or an empty ideal. The framers of our Constitution wanted the person exercil:ling the judicial function to be absolutely impartial and independent-minded so that the parties before him can obtaia and receive justice based only on the merit of their claims 'h. x x however humble and lowly and poor they may be, and regardless of wealth, power and influence of their adversaries."8 (3) Judicial standards more exacting. -There is no place in the judiciary for those who cannot meet the exacting s tandards of judicial competence a nd integrity. Although every office in the government is a public trust, no position exacts a greater demand on moral righteousness and uprightness of a n individual than a seat in the judiciary. 9
SEC. 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Member, a representative ofthe Integrated Bar, a professor oflaw, a retired Member of the Supreme Court, and a representative of the private sector. (2) The regular members of the Council shall be app()inted by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative o~ the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Coun~il. (5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. S f bid. 9Baria
vs. Bercacacio, A.M . No. 561-MJ, Dec. 29, 1976.
264
'tEXTBOOK ON 1'HE PHI LlPPl NE CONSTlTUTlON
Sees. 8-9
SEC. 9. The Members of the Supreme Court a nd judges of lower courts shall be appointed by the President from a list of at l east three nominees prepare d by the Judicial and Bar Council for eve ry vacancy. Such appointments n eed no confirmation. For the lower courts, the Preside nt shall issue the appointments within ninety days from the submission of t he list. Appointment of members of the Supreme Court and judges of lower courts.
(1) Non-political process of selection and appointment. - The appointing power is veste d alone in the President. (Sec. 9. ) Under the 1973 Constitution, only the Presidtnt w as involved in the a ppointme nt of high offici a ls of the gov ernment, including members of the judiciary. There was no effective r emedy in case of abuse by the President of his appointing power. The situation was a little better under the 1935 Constitution. The members of the Supreme Court a nd judges of lower courts were appointed by the President of the Philippines with the consent of the Commission on Appointments in Congres s. However, this power of Congress to confirm appointments to the judicia ry was sometimes a source of political "haggling" and "horse trad ing" which affected the judicial independence of the appointees. A non-political process of selection and appointment of members of the j udiciary is now provided. ( 2 ) List of at least three (.'3) nominees. - The President shall appoint from a list of at least (3 ) nominees prepared by the Judicial and Bar Council for every vacancy. The President cannot appoint anybody out side of the list but he can ask for a dditional nominees. Such appointments need no confirm ation from the Com mission on Appoin tmen ts. This avoids the pitfalls of the 1935 Cons titution .
The President shall issue the appoint ments of judges of lower courts within 90 days from the submission of the list. (Sec. 9. ) ( 3) Judicial and Bar Council. - Instead of leaving its creation to legislation, the Constitution itself creates the Council, providing at the same time its composition, appointment of the members, their terms of office, their emoluments, and their functions. 1 (Sec. 8 .) Although it is not expr essly mentioned by the Constitution as a qualification, a member of the Council, like a member of the judici a ry, must be a person of proven competence, integrity, probity and independence. (Sec. 7[3J.) The broadbased membership of the Council will help ins ure quality appointments to the judiciary.
' Executive Order No. 216 declares t he etfcctivity of the creation of the Judicial and Bar Council on J uly 10, 1987, t he date of its promulgatio n.
Se~.:l.i .
10·11
ART. VIII. -
JUDICIAL DEPAR'f}..1ENT
265
( 4) Exclusive authority to recommend appointees to judiciary. - ln the past, appointments to the judiciary were claimed to have been influenced by political and other extraneous reasons. It is expected that giving to the Judicial and Bar Council, in place of the Commission on Appointments, the exclusive authority to nominate justic;es and judges will further insulate the judiciary from political intrusion, result in the appointment only of persons "of proven competence, integrity, probity and independence," contribute to the substantial improvement of the administration of justice, and enhance the faith of the people in the courts and their respect for law. Critics say, however, that the new nominating and selection process h as not completely removed politics and outside influence in the process. SEC. 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. Compensation of members of the judiciary.
(1) Prohibition against reduction. - The salary ofthe members of the Supreme Court and of judges of lower courts shall be fixed by law. Until Congress shall provide otherwise, the initial annua l salary of the Chief Justice is P240,000 and each Associate Justice, P204,000. (see Art. XVIII. Sec. 17 .) After Congress has fixed the compensation of any of them, it may not reduce the same during his incumbency. (2) Purpose of the prohibition. - The purpose is not to benefit the judges but to attract good and competent men to the bench and to promote their independence of action and judgment.t As has been said: "In the general course of human nature, a power over a man's subsistence am oun t~ to a power over his will." 2 There is n o prohibition , however, against in· crease in sa]a!'y which may be made effective immediately. The salaries of the members of the Supreme Court and judges of lower courts are subject to the payment of income tax.a ·sEC. 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they -reach the age of sev~p..t~-Y~$!!_s or become incapacitated to discharge the duties of their office. ':l'l!~ .S~P..r~me CoJJ.I1.&UJ bane. ~l!.~Jt ~.~~ .tA.~ ..P.9W.e.r ..t2.. dis~ipline. judges. of lower courts,. or. prd.e r.their d~~~~~~J..P.Y-.1! vot.e..ofa.majority.of the Memher&.:Wh.o tctually too~ part in ti~e delib~r..~i
..
""
:.... 253 U.S. 246; Perfecto vs. Meer, 86 Phil. 552 ; Enden<:ia vs. Davi d, 93 1.Evans vs. Gore, Phil. 696. ~A. Hamilton, The Federalist. No. 79. ~Nitafan vs. Comm. of Internal Revenue , 152 SCRA 284, July 2.'5. 1987.
266
TEXTBOOK ON THE PHILIPPINE CONSTIT'C'TION
s~c.
11
Tenure of office of members of the judiciary.
(1) im.p£lr.t.aD.t:..Ulf_B£.CJJJitLail&.IuJ,[~. - S ection 11 insures the security of tenure of the members of the Supreme Court and the judges of lower courts. They shall hold office during,a:ood behavior until they reach the age ~ ~e.veptf.<7.Q) year~ or ~~~QIJ.:l.ejn~a.P.~~it~t~
Summers vs. Ozaeta, 81 Phi l. 754. De La Llana vs. Alba, 112 SCRA 244, March 12, 1982.
1
3
s~c.
12
ART. VIII. -JUDICIAL DEPART:-.1ENT
267
Meaning of good behavior.
Qood behavior is conduct authorized by law. So, mere mistake or error of judgment is not a breach of good behavior, within the meaning of the Constitution, to just1fy expulsion from office. 3 ( 1 ) With reference to the m embers of the Supreme Court, it implies that they have n ot committed any of the offenses which are gr oun ds for impeachment. (see Art. XI, Sec. 2.)
(2) As regards judges of lower courts, the determination by the Supreme Court as to whether there has been a de viation or not from the r equirement of good behavior is conclusive since it alone has t he power to order their dismissal. Disciplining or dismissal of judges of lower courts.
The present Constitution gives to t he Supreme Court the power to discipline judges oflower courts, 4 including justices of the Court of Appeals and the Sandiganbayan. By a vote of a majority of the me mbers who actually took part in the deliberations on the issues in the case and voted thereon, it can order their dismissaF• (Sec. 11.)
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Prohibition against designation to quasi-judicial and/or administrative agencies.
In the past administration, m embers of the judiciary were sometimes designated to executive positions in the government, a t t he same time retaining their rank or seniority as such members. This practice is no longer possible under the new Cons titution. Section 8 prohibits the designation by the President of members of the Supreme Court a nd of other courts established by law to any agency performing quasi-judicial and/or administrative functi ons. 3 State v.s. Roll. 1 Ohio Decision, 284. •See Supreme Court Resolution dated July 25, 1974. The misconduct of a judge that will warrant disciplinary action by the Supreme Court must have a direct r elation to and be connected with the performan~ of his offici al du ties, not h is character as a pr ivate individual. (Salcedo vt~. Judge, A.M . No. 1810-CTJ, June :.:!9. 1979.) 5 During the effectivity of the 1935 Constitution, the powe r to discipline or remove judges of lower courts was exercised by the President upon recomme ndation of the S upreme Court in the caF;e of judges of the Courts of First Instance trictjudgc in the case of municipal judgl'~. (see R.A. No. 296, Sees. 67 and 97.)
TEXTBOOK ON THE PHJLIPPI:-:E CO:\STITl:TiO:S
261:\
The following rea::;ons rnay be given for the prohibition: (1) Such designation violates the doctrine of separation of powers between the judicial and executive branches of the goHrnment; {2) It ' may compromise the independence of the members in the perform ance of their judicial functions; and (3) With so many cases pending in courts, the practice will result in further delay in their disposition. The Supreme Court and t he Court of Appeals particularly, which are already burdened with heavy load of cases, could never r l;ldllCe, much less eliminate, the backlog in their dockets if thei r members co uld be assigned to non-judicial agencies .
SEC. 13. The conclusions of the Supre me Court in any case submitted to it for decision en bane or in division shall be r eached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issue d and a copy thereof attached to the record of the cas e and served upon the parties. Any Member who took ao part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same r equirements shall b e observed by all lower collegiate courts. Procedure in rendering decisions.
The above provision prescribes the manner by which the conclusions of the Supreme Court and all lower collegiate courts i.n any case submitted to them for decision shall be arrived at. A certification of complianee, i.e., that the case has been assigned to a member for the writing of the opinion of the court, signed by the Chief Justice or Presiding Justice or P residing Judge must be issued and a copy t h ereof attached to the records of the case and served upon the parties. (Sec. 13.) The certification should not identify the member to whom the case has been assigned. The purpose is to avoid t he pr actice of assigning a case to a justice for study a nd decision by him alone , t he remaining just.ices affixing their signa tures to the decision merely as formal routine. -It is }!.l:~~l!lb.~nt_~~--~h.~ i'::sti.:~s !~ !a~~. P.~!~}~_t_~e _cg_n~icl._~r.~.ti9n__?.J!.£.~~t;i_§_i()t1 _~f ey~.n:-~A~-~ wb_~he r ~th~__C:_ O_\!r:t_sits ~7!-..~f!-_n.c or J~ qi"i_sio~...L.~~-f~!~-~!2Y..i~~-tice is .~iven the ~ssign ment . fo.r.. the .. ~:r.i.ting. Qf .tJ:H~...QPi!l.i
1
S~:~e
V.G. Sinco, op. c:it., p. 325.
ART. \ 'l.II . - JUlHCTAL DEPARTMENT
Sec. 14
269
Requirement in case of non·participation, dissent, or abstention. ~~~ml>~r uf.~!"l~. ~uprem~..QQ!:!!:L9.r a_ lo~~.r-!:!.Qll.egi!!te ~lliJ.rt who
(Q_r hi_s._non :P~:r:~icip a.!~~~.LQi ~-~-I!.h.• s>L.a..9.~~-§!!1.!-ion. (Sec. 13.) This requirement as to dissenting opinions is a recognition of the value of such opinions. There is no guarantee that the decision reached by the majority is conect and just in all cases. }Jfhile the dissenting opinion does not express the law on the subject, if well rea:;oned and supported by cogent considerations, it may influence the Supt·emc Court, and even become the majority opinion, in the decision of future and analogous case~ · "A dissent in a court of last resort is an appeal x x x. to t he intelligence of a fu ture day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.":l As it is the duty of every member of a collegiate court to take part in the study and resolution of every case before it, he must state the reason for his non-participation or abstention. His vote could h ave resulted in a different decision.
SEC. 14. No decision shall be rendered by any court wit hout expressing therein clearly and distinctly the facts and the la w on which it is based. No pe tition for review or motion for r econsideration of a decision of the court shall be refused due course or d e nied without stating the legal basis therefor. Meaning of decision.
&ili&J:J...is the judgment r endered by a court of justice or other competent tribunal after the presentation of the r espective positions of the parties in an ordinary or criminal case or upon a F;tipulation of facts upon which the disposition of the caso is based. 1 Form of decision of court. ~y_decision of a court shall clearly and distinctly stP.te..th.e fac1£.~n
~Tai1ada
and Ft:rmmdo, up. t:it., p. 1156.
:chief ,Justice Hughes, The Supreme Court of the Uni t.ed States, p. 68. See Soncuya Vl). Nat. Loan & Invest. Board, 40 O.G . nth Supp., p. 297. Section 14 ha!> l~en held to apply only to courts of ju stice. Thus, it does not apply to the Constilutior.a l Commission!! CArt. IX.) (Mangca vs. COMELEC, 112 SCRA 27:-l, Feb. 12, 19l:!:3.J There is. however, no reason why the rt!quirement. a11 to the form of de cision of a court ~ hould not be made to apply also to decisions of
2
270
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 15
j udiciary is that th u decision rend ered makes clear why either party prevailed under t be law applicable to the facts established.3 The rule applies to the decision s not only of the Supreme Court buj:, also of all lower courts. With respect , however, to petitions fo r review or motions fo r reconsideration of a decision of any court, it is sufficient for the court to state only the legal basis for its refusal to give th em due course or for their denial to save time for the court.~ It would seem t h at a court is not required to cite the factual or legal basis of its resolution granting a petition for 1·eview or motion for reconsideration of its decisions. It is certainly desi rable in the interest of clearness and certainty, that courts should state t he facts and the reasons upon which their decisions rest; 5 otherwise rights based upon them would have no concrete and lasting evidence, and errors committed by courts lower than the Supreme Court might escape detection and rem ain uncorrected to the detrime nt of the parties and t he administration of j ustice!;
SEC. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twentyfour months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case o r matter shall be deemed s ubmitted for decision or r esolution upon the filing of the last pleading, brief, or memorandum r equired b y the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding p eriod, a certification to this effect signe d by the Chief Justice or the presiding judge shall forthwith b e issued and a copy thereof attached to the record of t he case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, t he court, without prejudice to s uch responsibility as may
"Bernabe vs. Geraldez , L-39721, J uly 21, 1975. 'The 1973 Constitution (Art. X, Sec. 9 lhe re of.) empowert"!d t h e Supreme Co urt to promul gate ru les on t h t promulgation of what a r e k n own as ~minute resolutions." As distinguished from a decision, a m inute reRolulion s tates briefly the action a court ha8 taken on a petition or motion without citing the factual and l egal basi;; of such a resolution (e.g. , "Denied for lack of merit" or ucranted"l. ''Ocampo vs. Cahangi.s, 15 Phil. 828. "V.G. Sinco, op. cit ., p. 332; Bernabe vs. Geraldez, supra; Lee vs. Court of Appeals, L-28126, Nov. 28, 1975.
Sec . 15
ART. VJll. - Jl"DICLU DEPARnfENT
271
have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Maximum periods for rendition of decisions.
By constitutional mandate, the various courts must decide or resolve a case or matt.er submitted thereto within the following periods from the date of submission: ( 1)
Suprema Court. - within twenty-four (24 l months;
(2) The Court of Appeals and other collegiate appellate courts - within twelve (12) months unless reduced by the Supreme Court; and
(3) Lower courts - within three (3) months unless reduced by the Supreme Court. (Sec. 15[1].)
A case or matter is deemed submitted for decision or resolution from the date the last pleading (see Sec. 5[5].), brief, 1 or memorandum 2 is filed. (Sec. 15[2.1. ) Upon the expiration of the corresponding period , a certification to this effect ( i.e. , that the period has elapsed) signed by the Chief Justice or the presiding judge must be issued a copy of which is required to be attached to the record of the case or matter, and served upon the parties. (Sec. 15L3].) Time limitations mandatory.
The time limitations established above are mandatory. They are in~ tended to ease up ~he clogging of court dockets and to implement the right of party lib gants to speedy justict> (see Art. III, Sec. 16. ) under the familiar aphorism that "justice delayed is justice denied." Under Section 5(5 ), the rules promulgated by the Supreme Court shall provide a simplified and inexpensive procedure for the speedy disposition of cases. Violation of Section 15( 1) by the Supreme Court will constitute culpable violation of the Constitution, a ground for impeachment of the members of the Supreme Court. (Art. XI, Sec. 2.) A court must still decide a case or matter even after the lapse of the applicable maximum period provided above without prejudice to the responsibility of the justice or judge concerned. (Sec. 15[4].)
1li is a written statement pre pa red by a counsel and presented to an appellatP. court setting forth. often in cvnside ra hle deta:l, the main contentiOM of his client with the :mpporling arguments, facts and l a w. 2It is a written presentation of the arguments of a party in a case submitted to the court afte r the trial or hearing but before a judgment or decision is rendered.
272
TEXTBOOK ON THB PHILJPP[NE CONSTITUTION
Sec. 16
SE C. 16. The S u preme Court shall, within thirty days from t he o pening of each regula r sessio n of t h e Congress, s ubmit to t he P reside n t and t h e Congress a n annual r eport on the opera· tions a nd activities of the Judiciary. Submission of annual report.
T he a bove provision requires the Supreme Court to submit to the President and Congress an annual report on the operations and activities of the j udiciary. Through such r eport a nd the recommendations that the Supreme Court may m a ke, the President and Congress may be guided in proposing or in the. enactment of legislations affecting the courts a nd the administration of justice. (see Art. VII, Sec. 23. ) It s hould be noted that it is these organs that determine the appropriations for the expenses of the judicia ry. -oOo -
Article IX CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS
SECTION I. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commis· sion on Elections, and the Commission on Audit. Independent constitutional bodies.
Aside from the t hree (3) grand departments or branches entrusted with the exercise of the traditional powers of government, i.e., the Presidency and ex~cutive offices, Congress, and the Supreme Court and lower courts , the Constitution has directly created independent bodies charged with specific functions. Their creation is established in the Constitution because of the extraordinary importance of their functions and the need to insulate them from undesired political interference or press ure. Their independence cannot be assured if they were to be created me rely by statute.
/'tind~l' the Constitution , t hese agencies are thttl.Civil Servic~ommis sio'n, th!tommission on Electioo~the Commission on Audit, th~Commis sion on Human Rights 1 (Art. XIII , Sees. 17-19.), and the Office of the Ombudsman. (Art. XI, Sees . 5-14.) The Electoral Tribun als and the Commission on Appointments in. Congress (Art. VI, Sees. 11-19.) are likewise directly created in the Constitution . .hl...t.h._g~~.~.rc_Ls~ .9.fthe!I..Y.Q.W.~..I§ ..?.'9d_f'Jl19~i9.1'lli,.t.h.eyJtr~-~-l.l.Pregle wit.J!:jn
Like t he other organs of the government, however, their acts are subject to scrutiny by the Supreme Court on certiorari.
.. .1The term of office and othAr qualificatio ns and disabil it.ies ')f tht:! members of the Commission 0:1 Human Rights shall he provided by law. I Art. XIII. Sec. 17.)
273
274
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sees. 2-4
SEC. 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of h is office, nor shall he be financially interested, directly or indirec tly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or -controlled corporations or their subsidiaries. Disabilities of members of Constitutional Commissions.
The fiduciary nature of a public offic.q which the Constitution expressly guards in the case of the President, the Vice President, members of the Cabinet, a nd their deputies and assistants (Art. VII, Sec. 13.), and the members of Cong:ess (Art.VI , Sees. 13-14.) is a lso protected in relation to t he members of the Constitutional Commissions . Their disabilities during their continuance in office are similar to those imposed on the President and the Vice-President.
SEC. 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not b e d ecreased during their tenure . Compensation of members of Constitutional Commissions.
Section 17 of Article XVII (Transitory Provisions) prescribes the initi?.l annual salaries for the Chairman a nd Members of a Constitutional Commission at P204,000 a nd Pl80,000, respectively, which can be increased but not decreased by law during their continu ance in office. Any decrease will affect only the Chairman or the Commissioners appointed s ubsequently to the enactment of the law. (see Art. VIII, Sec. 10.) It would seem that Section 17 of Article XVH does not apply to the Commission on Human Rights. (see Art. XIII, Sec. 17 .) Sa id provision refers to the "Constitutional Commissions" which, under Article IX, do not include the Commisl>ion on Human Rights. •
SEC. 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law. Appointment and removal of officials and employees.
As independent bodies charged with the sole a nd exclusive responsibility for the proper management of their respective offices, the four (4)
ART. IX. - CONSTITUTlONAL COMMISSIONS A. Common Provisions
Sec. 5
275
Constitutional Commissions have, accordingly, the power to a ppoint their own officials and employees and to remove them. In th~JL~F.ci~~_Qf. .s uc h...P.Q:W..~ 1 _!h~y .S:r..e ~ ybj ect ..t~Lt.he .Jll:Qyjs ions of tlw .Civil Service Law. Said law m ust, of course, be in accordance with the pro.~isi~ns. of the--Constitution , particularly those on Civil Service. CArt. IX, B-Sec. ll2); see Art. XIII, Sec. 18[10].) Other common fea'iures.
In addition, to further insure the exercise of their powers and functions with the highest degree of independence against outside influences, the Constitutional Commissions have been given these common features: (1) They are multi-headed bodies;
(2) They are categorized as "independent" by the Constitution; ( 3)
Their power s a nd functions are defined in the ·Constitution;
(4) The Commissioners are required to be natural-born citizens of the Philippines;
(5) Th eir terms of office are staggered with a two-year interval; (6) The Commissioners appointed a re ineligible for reappointment for a period beyond the maximum tenure of seven ( 7) years;
(7 ) Appointment t.o any vacancy is only for the unexpired portion of the term of the predecessor; (8) The Commissioners cannot be appointe d or designated in a tempor ary or acting capacity; and
(9) The Commissioners are removable only by impeachment. 1Art. XI,
Sec. 2.) The last five (5) features (Nos. 5 to 9) do not a pply to the Commission on Human Rights. (Art. XIII, Sec. 17.) Note, however, that under the cited provision, only "the term of office and other qualifications and disabilities of the members of the Commission" are mentioned which shall be provided by la w. 1 Under the law, a special retirement scheme is provided for members of the constitutional commissions. 2
SEC. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly release d.
1
Although Article XI, Section 2 Flpeaks of "the members of the Constitutional Commiswithout distinction, it refers only to the three (3) Constitutional Commissio n~ created in Arti cle IX. 'S ee R.A. No. 3595, as amended hy R.A. No. 1568 and P.D. No. 1582. See Footnote 1. sion~;"
276
T~XTROOK
ON THE t'HJ LIPP1 NE CONSTITCTION
Sees. 6-7
Fiscal autonomy.
Like the Supreme Court, the Con ~titutional Commissions enjoy fi scal autonomy to s trengthen t heir independence in the perfo rmance of their co n~titutional functions. Note, however, that unlik l~ in the case of the judiciary (see Art. VIII, S ec. :u, there is no prohibition against the t'eduction of the appropri a tion ~ fo r the Constitutional Commissi~'ms below tho amount appropriateri for the previou s year.
SEC. 6. Each Commission en bane may promulgate its own rules concerning pleadings and practice b efore it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights. Rules of procedure.
E ach Commission I'm brznc is authorized to promulgate its own rules governing pleadi ngs a nd p ractice befo re it or any of its offices. (see Art. VIII, Sec. fi[5] . .l Such rules shall not dimini sh, increase or modify substa ntive rights as distinguished fro m procedural rights. (see Ibid . )
SEC. 7. Each Commission shall d ecide by a majority vote of a ll its Members any case or matter brought before it within si:"f~ ~ays from the date of its submission for d 2cision or resolution. A case or matter is d eem ed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, a ny decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty d ays from receipt of a copy thereof. Rendition of decision and judicial review.
( 1) Any case or matter brought befor e each Commission must be decide d by a majority vote of all its members within sixty (60) days from the date of its subm ission for decision or resolution. The period begins to run from the filing of the last pleading, brief, or memorandum (see Art. VIII. Sec. 15[21.) requi red by th e rules of the Commission or by the Commission itself. 12) An aggr ieved party may bring any deci sion, order or ruling of each Commission to the Supreme Court on certiorari (see Art. VIII, Sec. 5r2].) within (30) days from receipt of a copy thereof. By certiorari, a party raises questions of law in the Supreme Court. The findi ngs of fact made b"y a Commission are conclusive upon the Supreme Court. (see Ibid., Sec. 5l2, e].) Under C-Section 2(2 ), decisions, final order s or rulings of the Commis-
ART. IX. -CONSTITUTIONAL COMMISSlONS B. The Civil Servict> Commission
277
sion on Elections on election contests involving elective municipal and barangay offices are final, executory and not appealable. Congress is empowered to prescribe by law the manner and period of review of the decision, ordt>r, or ruling of each Commission.
SEC. 8. Each Commission shall perform such other functions as may be provided by law. Additional functions under the law.
In addition to their constitutional functions , "each Commission shall perform such other functions as may be provided by law: ' Thus, by means of legislation, the Commissions can be given the necessary measure of flexibility in the discharge of their constitutional t asks . Of cou1·se, Congress cannot diminish the powers and functions granted by the Constitution to the Commissions.
B. THE CIVIL SERVICE COMMISSION SECTION 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall b e natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five ye ars of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediate ly preceding their appointment. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Ofthose first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Composition of the Civil Servic;e Commission.
It is composed of a Chairman and t wo Commission er s. cSec. 1[1).) The former Civil Service Commission before the 19n Constitution was a statutory one-man Commission. 1 Its conversion into a collegiate body is envisioned to enhance its independence on the theory that it will be more
:R.A. No. 2260, as amended by R.A. No. 6040.
TF.XTBOOK ON THE PHILIP P INE CONSl'T'J'UTION
278
Re c. 1
r esistan t to political pressure or in f.!uence tha n a body h eaded b y a s ingle i ndividua l. Qualifications of members.
They are: (1 ) Thr~y mu~t
be n a tural-born citizens of the P h ilippines;
(2) They must be a t least thirty-five (:35 ) years of a ge at the tim e of their a ppointme nt (r ath er t han a~sum ptio n of office );
(3) T h(>y must. be persons \Vith proven ca pu.city for public admi nistr at ion. Knowl e~ge of law or experience in the practice of law is n ot regu ircd hy the Constj t ution pres umably beca use the position calls m0rc (~Jl .i.s.l::I:ati~.!.Ui!:Y..!.ath er th a n ~L!<9J.J:l.P.Ctepce . Th ere m ust be a showin g tha t they hav e heen 'i~"' thc"~'e f'v1~e"' a n effective public administrator. T his is necessary hecau:::le t h e Commissioners are r espon sib le for an agency tha t performs significant func tions;2 and
as
(4) T hey m us t n ot have been candidates for any elective position in the el ections imm ediately preceding the ir a p pointment. This requir eme n t insures t he p olitical neutrali ty of pros pective a ppointees a n d effe ctively precludes the appointment of JlOlitic.aUyrq:u~.lli:l.<~- I see S ec. 6.) '-· .....( ; ...:...
... ~ f .... .. .. '- ·-"!"
Appointment and terms of office.
They sh all be a ppointed by the P resident wi t h t h e con:>ent of th e Commission on Appointments for <1 term of seven (7 ) years wi t hout reappoi ntment. Of the Comm issi oners firs t a pp oin te d, one sh a ll h old offi ce fo r seven (7) years, another for five \5 l y ears, and the third for three (3 ) y~ars without reappointment . Reappointment cannot be made in favor of a Commissioner who has been jus t appointed for a term ofless than seven (7 J yea rs afler the expiration of his term. Subsequent ap PQintm ents shall h e for a term of seven (7) years . The appointment or designation of a ny Member in a temporary or acting capacity is not a llowed.'1 (Sec. 1(2j .) · Rotational scheme of appointment
This sche me ofmtational a ppoin tme nt is i n tended to give continu ity to th e Commission by allowing t h e term of only one Comm issioner to expire every t&.o..J2).~s . Consequently, its m embers would invariably have the benefits of th e experi ence of older members in the performance of its fu n ctions. Moreover, it is unlikely, in the ordi nary course of e vents, that
~19811 lil'L Constilu tion Projcd . The Constitutional Com m i;;:;ions, p. l:i. "Presiden t F . :-.-ia rcos appointed in an adin::! l:
ART. IX.- CONSTITUTIONAL COMMlSSlONS
Sec. 2
279
R. The Civil Service Commission
the same President will be ahle to appoint all the members of the Commission. This is also the policy in the other two Commissions. !infra.) The operation of the rotational plan requires two conditions, both indispensable to itR workability: (1) The terms of the first three (3) Commissioners should common date; and
~tart
on a
(2) The appointment to any vacancy due to death, resignation. or disability should be only for thE> unexpired balance ofthe term of the predecessor. The starting point of the terms of office of the staggered 7-5-3 year terms of the first appointees to the three (3) constitutional commissions. regardless of the dates of their appointments and assumption of office, i:< on Et.hruary 2, [email protected] date of the adoption of the Constitution.
Reasons for creation of the Commission.
The creation of an independent centralized agency having direction and control over the civil service system and empowered to enforce civil service legislations was believed essential to the operation of the system, and its inclusion in the Constitution, an additional safeguard for the successful implementation of the merit system. A Civil Service Commis~ion created by statute is subject to reorganization or abolition at any time. But even discounting this possibility, the power over appropriations is a mighty weapon which Congre~s can readily wield over the Commission. On the other hand, under his power of control, the President can reverse or revise decisions of the Commission. Because of its independence from the political branches of the government, a constitutiona.l body as the Civil Service Commission could more effectively resist the pressures of politicians and thus ensure that selection and advancement in the Civil Service are attained through merit and fitness. 4
SEC. 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or -controlled corporations with
-Qri,gi~.c.b..arters. ·--· ... .~
(2) Appointments in the civil service shall be made only according to merit and fit:q_~ to be deter~ined, as far as practica,ble, and, except to position~ which arelpolicy-determin· ing, pri:rt'1arily confidential, or highly technical, by competitive examination. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. 'See 1970 UPLC Constitution Revision Proje-ct, pp. 653-655.
TEXTBOOK ON
280
THI<~ PH lLlPl'l~E
CONSTITUTLON
Sec. 2
(4) No officer or employee in the civil service shall engage, directly or indirectly, in a ny electioneering or partisan political campaign. ~) The right to self-organization shall not be denied to government employees.
(6) Te mporary employees of the Gove rnment shall b e given such protection as may be p1·ovided by law. Meaning of Civil Service.
T he term Civil Servic_e m eans that professionalized body of men a nd wom en who have made of the government service a hfetime career. It has also been u sed to r efer to that portion of the public ser-vice that is "governed by the meri t principle in the .selection of officers a nd employees.'' 1 Scope of the Civil Service.
The Civil Service embr aces every branch , agen cy, subdivision, and im;trumentality of th e governme nt, includi ng every gover nment-owned orcontrolled corporation with origi na l charter .2 (Sec. 2[1].) The intention of the Constitution is to extend t he r~quirements a nd benefits of t.he Civil Service System over the administrative personnel of the entire governmental organization - nationa l an d local including the military esta blishment.3
Un der the Constitution (see Ar t. XII, Sec. 16.1, only government-owned or -cont rolled corporations can be created hy special law or charter. But they can be created under the general incorporation law 4 in which case they arc not embraced within the scope of the Sen ·ice. Constitutional classification of positions in the Civil Service.
On t he basis of appointment, the Constitution classifies positions in the Civil Service into two principal groups/' namely:
' i''ield, Civil S~rvice Law 3 ( l9:Hl L Sect ion 2( I l placing em ployee!' of government-ow ned M -con trolled co rpora tio nf; u nder t h e Ci'-i l Servi.:e is implemented hy Presidential DccreA No. 807 (infra. !
1974, as
amend~~ ll.
;Not all th ~: provision~ of the C:on ~titution on the civil Hc rvice arc ,.;trictly abo u t the civil scrviee only. (see R-Secs. G, 7, 8.i 'The Corporclt}()n Code of th e PhHippines,lB.P. 13lg . 68.1 :;l'~d.c.nt jal Decree.liD..Jilll ( Ci vii Service Decre e) ,·echu;sificd the category of po!;itions in Lhe Civil Service (from compe Li i ive st•rvi ce, non -compt!ti tive or uncla;;~ified service. and exP.mpt sen;icol into: < ll ~!.. ~'?IJD!.i.CJ' ch aracterized by:
Sec. 2
ART. IX. -CONSTITUTIONAL COMMISSIONS B. The Civil Service Commission
281
(1) .Corn.p.ctitiue. -Those whose appointments are made according to merit and fitness to be determined as far as practicable by competitive examinations;" and (2) J::!.g_n-co!!JJ2~Wive. -Those whose appointments do not haw to take into account merit and fitness as determined by competitive examinatjons. To the latter belongs those. positions described by the Constitution as ;'policy-determining, primarily confidential, or highly technical in nature." (Sec. 2[2].) But their appointments shall still be made according to merit and fitness.
The merit system. (1) Me.r.~t...4!!1~rmingd.J!Jr9.Jillh..~.QfJJ:Pgti.tjve examination-'.!.- As a general rule, the selection of any appointee to any government position "shall be made only according to merit and fitness to be determined as far as practicable x x x by competitive examination." ([bid.) It is obvious from the provision that the recruitment of government personnel is not to be made on the basis of an indiscriminate or whimsical method of selection or on consideration of friendship, kinship, partnership or social connections. Merit and fitness as qualitative factors in the selection of civil servants have reference to personal qualifications for competence and ability to perform thE> official task. A person's qualifications in this regard are to be determined by competitive examinations as far as practicable. 7
(2) _Qtjter_!!_t~t_h,g_cj~o[_de~er"!f.'!:ing_Tl!:_eri~. -Where competitive examinations are not practicable, other methods of determining merit and fitness may be resorted to, such as by an investigation of school records, experience in actual work, achievements of a character relevant to the position to be filled, and such other tests modern educational science has produced.~ According to Presidential Decree No. 907 (supra.), "graduation with honors earned under the competitive atmosphere of the academic community is as good as a qualifying mark in a competitive examination to determine merit and excellence for public employment."
higher career positions; and (2) Nan·Cru:ccr Sert'i~e characteri1.ed by 1 <1'1 <'ntr:~nce -:,n oa;;es other than those of the usual test of merit and fitness utilized for the car.:-.::r ;;er\·ice: 1b1 ,ical ~pECialists ha;;ed on t.h~ir :J.Ualifications and the requirements of public service.' •ee al~o Pre:<. Decree No. 1408, June 8, !9i8.1 'V.G. Sinco, op. cit., p. 413. "Ibid.; sec also Presidential Decree No. 997, supra.
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Sec. 2
Ik1!!fJ..t.tir..o_f!l_ S)!Sl.~!!! ·
--The merit system, 9 as shown by experience the world over, secures efficienc y in govern ment service a nd promotes social justice. Efficiency r esults becaus e selection and promotion of ~m ployees is based not on political considera tions but on merit and fitness. Social jus tice, on t he other hand, is subserved because the merit system guarantees equality of opportunity (see Art. XIII , Sec. 1, supra.. ) to all deserving applicants desirous of a career in public service. '(' (3)
Non-competitive positions.
They are the following: (1) .P_olicy
(3 ) _!Jighly techni£!!L where it s occupant is required to possess skill or training in the supreme or superior degree, 12 like that of a scientist. The position of legal counsel of a govern ment ~ow ned or -controlled corporation is highly technical in nature, and at the same time pri marily confidential. 1'l In such case, the occupant canno.t insist on a fixea or a definite term if the la tter asped predominates.
Those holding primarily confid ential positions hold office at the pleasure of the appointing power (e.g., private sec1·eta ries of certain officers; confidential agents). 14 According to the Supreme Court, when such pleasure turns into displeas ure, the incumbent is not removed fr om office, bu.,
9 Presidential Decree No. 1409 (.fum• 8, 197Hl creates in the CSC a Meri t System Boa!'d re na med by the Administrative Code of Hl87 (Exec. Order No. 2n.! n11 the t-1erit System Protection Board, whose primary function , Among {>t.he rs, is to hear un.:l dc(·ide cai'C!l brought before it by officers a nd employees who feel aggrieved by determination of a ppoi nting authoriti~s involving appointment, promotion , t r ansfer , detail, l!tC., a s well as complain ts against ofticers in the government arisin g from violations of the merit. system. 1"1970 UPLC Constitution Project, p. 646. Letter of £nstructio n No. 799 IJan. 29, 1979) direc ts every ministry (now d epartment.) and al'cncy of the gove rnm ent including govern ment-owned and -controlled corporatiQn ::; and regi onal offi ces to o~;tablish a Selection Board and a P romotion Board to as$iSt the appointing authority in the sele<:tion and pr<>motion of personnel in the Civil Service, and thereby implemen ts the merit syst em ordained by the Constitution and th e Civil Service Law. 11 See Santos \ 'S . Mallari, 87 Phil. 289. ' 2Ibid. '"See J:>.N. B. n•. Besa, L-26838, May 29, 1970. "See, however, Cari no vs. ACC FA. L ·19080, Sept. 29, 1966; Gray vs. De Vera, L-23966, May 22, 1969.
Sec. 2
ART.IX.- CONSTITUTIONAL COMMISSIOl\t: R. The Civil Service Commission
his term merely expires in much the same way that a person who has fixed term of office is not removed upon the expiration of his term. 1 =Guarantee of security of tenure.
The merit system established in Section 2(2) does not necessarily imply that the persons so appointed have securitv of tenure. There is thus in Section 2(3) a guarantee of se~urity of tenure to officers and employees in the Civil Service. The constitutional guarantee is of utmost value in maintaining morale and in promoting efficiency. Any employee whose continuance in office 1s dependent upon the whim or pleasure of his superior, is likely to be the victim of fear and insecurity. His inefficiency can be expected, as a matter of course. under the above provision, if faithfully enforced, civil servants can be confident of staying in their respective positions as long as they do their work efficiently and wel1. 1G Meaning of "for cause provided
by law." (1) Substantive requirement. -The phrase17 means for reasons which the law and sound public policy recognize as sufficient ground for suspension or removal. It means legal cause or cause provided by an existing tau·, and not mer~ly causes which the appointing power in the exercise of discretion may deem sufficient. It implies, moreover, that such cause must relate to and affect (as a general rule) the functionR of the office which the officer or employee holds. 1 ~
'"Hernandez vs. Villegas, L-17287, June 2H. \965; Angeles vs. Mutuc. L-20:HJI) ~ov. :29. 1968: Salazar vs. ~1athay, .Jr. & Suhido. L-44061, Sept. 30, 1976. '~See Taiiada and Fernando. op. cit., p. 1202. 17The following, among other!:>, are dedared to be grounds for ilisciplinary aC'tinn in accordance with the civil service law: (1} Di8honesty, oppres:;ion, or misconduct; (2) Habitual drunkenness; (3) Neglect of duty; (4l Disgraceful or immoral conduct.; (5J Being notoriously undesirable; (6j Physical or mental incapacity; l7 J Frequent absences or tat·dine:;s; (8J Inefficiency and incompetence in the performance of official duut-.;;: C9} Insubordination; OOi L~nding money at usurious rates of interests; i 11 l Willful refusal to pay just debts: ( 12) Pnnmit of private business, vocation or profession w!thout :securing the pcrmis:sion rcquir.~d; and ( 13) Nepotism. lsee Pres. Decr~e Xo. 807. Sees. 36[a]. 49. • Also Admini:ltrative Code of 1987, Book V, Title I. Subtitle A. St-ction 46. 1'Tec.:;on vs. Romero, 84 Phil. 74.
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284
Ser.. 2
(2) Procedural requirement. - Basically, the guarantee of procedural due process requires notice and opportunity to be heard before one is suspended or dismissedY' Under the law, no complaint against a civil service official or employee shall be given due course unless the same is in writing and ~ubscribed and sworn to by the complainant.20 Abolition of position.
Congress may abolish any civil service office unless it is a constitutional office. When the office itself is legally abolished, there is no removal. Removal from office contemplates that the incumbent is separated but the office or positicn itself subsists. The Constitution protects an officer or employee only as long as the position remains. 21 No person has a vested right to an office which cannot be disturbed by le'gislation. 2:l Abolition, however, may not. be used as a cover for circumventing the guarantee of security of tenure. Thus, it has been held that a civil service officer or employee (in the local government) may not be removed by the abolition of the office in bad faith.n Th e principle that valid abolition of an office is neither removal nor separation of the incumbent, does not apply to the judiciary. A judge's right to his full term is not subject to the contingency that Congress may, for the public good, abolish his office. (see Art. VIII, Sec. 2, par. 2 .) In fine, abolition of an office is invalid if it involves an office provided in the Constitution or a judicial position, or is done in bad faith. -~.Qbi.P.U!.QD..~.9i\iO.l!t ~le.c.t(Qn~r~n.9..~nst9.ther ~an politi~~~mpaigq.
Sec Reyes vs. Subido, 66 SCRA 203, Aug. 21, 1975. Presidential Decree No. 807, Sec. 36(c). ~'Manalang vs. Quitoriano, 9·i Phil. 903. 22Z2 R.C.L. 378-379; Baldoz vs. Office of the President, I.-44622, Aug. 26, 1977. 2''Briones v11. Osmena, 104 Phil. 588. 24 United P ublic Workerli vs. Mit chell , 330 U.S. 100. 20
Sec.~
ART. JX. - - <.;ONST1TU1'IOKAL COMMIS~IONS R. The C ivil Sen·ice Cummitision
285
(2) f)y:_tm.t_Q[JN.LtisJJJ.atiQ..TJ:)n elections. - Officers a nd employees in the Civil Service a r e "servants of the Stata a nd not the agent s of any politica l group."25 Their loyalty l:>hould be t o the publi c service, not to the "rulers" of the m oment. Under t he provis ion, their participation in any e lection is limited to t hat of voting. In fact, it is an obligation, although it is not m a nda t ory, of every citizen qualifie d to vote to r egist er a nd cast his vote. (see Art. V, Sec. 1.) However, t hey have the right to express their views on political issues provided such expression does not amount to any "electioneering or pa rtisa n political campa ign ." (3) OJ[icers _an.Q._employees covered. --The prohibi tion covers member s of the armed forces (Art. XVI, Sec. 5[3]. ) but it refers only to t hose in t he a ctive service, exclu ding those in the re_ser ve fqrce. 2 ~
Civil Service, as used in Section 2(4 ), refers only t o career service. Elective officials and members of the Cabinet who are holding political offices are not embraced in the prohibition . 2 ~ Meaning of electioneering or partisan political campaign.
Under t he 1935 a nd the 1973 Constitu tions , the term used is "any partis an political activity" which is practica lly synonymous with ''a ny electioneering or par tisan political campaign" as used in Section 2( 4 ). Both refer to acts des igned to h ave a candidate elected or not, or to promote the candidacy of a person or persons to a public office. They include such activities as participation in political campaigns, conventions, caucuses , pa r a des or r allies, making s peeches or commentaries for or against the e lection of any party or candidate, publishi ng or distribut ing campa ign literature or materials, and soliciting votes or contribution s, either directly or indirectly. 2 ~ Activities not covered. ( 1) ~rtisa n actil.;ity_. -The pr ohibition in Sect ion 2(4 ) is directe d against "any e lectioneering or partisa n political campaign," and not against every kind of political activity .J.fly political activit.Y..i.§. .P-SJ.!tisAg,.lf.it....is. dire~t:~~-tQwar_d th e a dvancement of a part ic11Jar party ~!_.Q~at~ An activity is qgt part jsa l} i~it i§ addn;1§§ed to th.e...at..tainment of the objective ·~qf i!l.s.~riug free, QrQ&rly.. _b.2.D&§t, peaceful. and...cr.edihle ..elections." (see CSec. 2 f4]. } ( 2) }lgJ_r.J:§.~~Q!l.Q[..J.Li~li tical issu e>t... - Considering the freedom of expression which is equally secured by the Constitution even to gove rn·
HCaillers vs. Bonif<1Ci11, 65 P hil. :32 1. 2 ~/hid.
27
Sce :::lantos vs. Yatco, 106 Phil. 745. V'fhe Omnibus Election Code (B.P . Blg. lUll.), Section 79(b); Presidenti al Decree No. 807, Section 45.
2HH
TEXT BOOK ON THE PHILIPPI NE CONST\'l'UTION
s~c .
2
ment employees, th ey may express their vie ws on current political problems or issues, or mention the names of candidates for public office whom t hey support. 20 (~) C.!J_]]lJ2.Q-.ign,?ng..fg_r._,_q_r__g.gq_ilJ:$.tJ!_-p_lg.bisc.~~__j_nj tia.£~_..Qr_r._eff!_~"!
qpestion. - Such participation does not constitute parlisun political activity. Plebiscite, initiative, or referendum is not a n election within the meaning ofth.~ ,above prohibition. It involves only issues, not candidates for public office,. 'Bence, officers a nd employees in th~ Career Civil Service can actively pa;tici pate in the discussion of plebiscite, initiative, or referendum issues without violating civil service rules and regula tions. Right of government employees to self-organization.
Section 2(5J grants to government employees in the civil service the right to form unions enjoyed by workers in the private sector.:Jo A parallel provision is Section 8 of the Bill of Rights which declares that "the right of the peop le including t hose employed in the public and private sector s to form associations, unions, or societies for purposes not contra ry to la w shall not be abridged." Eve n if th ere is no statement of the right to selforg3ni zation in t he Constitution , governme nt workers can form associations for purposes not contrary to law. The grant of the right to union ize was born out of the traditional n eglect of government workers in terms of salaries, fringe benefits, promotions and working conditions which are ta ken for granted in the priva te sector. Through unions, government employees can promote their interest an d the interest of t he public service. They can seek peaceful remedies for their grievances and work for mutual benefits without going through the long process normally provided unde r civil service regulations. Rightotgo'leUlJD~nUmm!QY~s to ~.tr!.!i~(1 ) G,r..an,L.Qf...rigltt not advisable. - It is not clear whether or not the constitutional gr;nt.ofti~; right to self-organiza tion carries with it the right to strike. If the t wo rights are to be considered separate and distinct from each other, t he a n swer must be in the negative for the latter right is not expressly given; if otherwise, Section 2(5) together with Section 8 of the Bill of Rights, must be construed , as granting the right to strike as well. Be that as it may, to allow government workers to strike is not advisable in the long-run. A strike declared by members of the civil service can paralyze or disrupt government operation and ultimat~ly prove prejudicial
29
See Presidential Decree No. 807, Sectio n 45. Executive Orde\· No. 180 (June 1, 1987) provides guidelines for t.he exercise of the right ,p,f Eo.,;er/)i-5"e.Ii,femployee::! t o organi~~· 1t doC,.s riot aJ?.ply't? !J:l.e'm"b.ef~ ~(.~he::!\r~i!i_Ji:Q.r.~·es o(. the Philippi nes, incl uding police officers, policemen, firemen. and jail guards·.~ · · ., "0
...... -
.
ART. IX. - CONSTITUTI0t\AL CO~lMISSIOKS
Sec. 3
287
B. The Civil Service Com rnission
to public interest. The right can be taken advantage of for political or whimsical purposes, or for purposes other than for redress of legitimate grievances...A..st.:r:ik~. by governm.ept e'!.l.t p1oyees ~:ould be u:>cd as a coer~ive ~pon. to destp.bilize the gover,nme_nt. ~- · · · · (2) .Righi_!lQLgr:.a_nteg_bv laU?.- - Even as the right to strike is constitutionally granted, Congress may. by law, deny the right to strike to some sectors of labor like m e mb~!r!. of the armed forces and police and firefighting units, a nd even to civilian employees operating communications, financial institutions and other vital public ser"ices. It can provide the details fo r the exercise of the ri ght. Un der Sect ;on 3 t par. 2. ) of Article XIII, the right to strike shall be exercised "in accordance with law," i.e ., subject to limitations that may be provided by law.... 'tb.tl.e__ is no .la)L permitting public
em pl o~o...strik.e.
1
"e~~n of tempor¥y emp~ee§_.
Employees in the government given tempora ry appointments do not enjoy sec urity of tenure. They may be replaced anytim e a qualified civil service eligible becom(!S available, or at the discretion of the ap,)ointing authority with or without cause notwithstanding that their performance meets the standards of public service d<.~ manded of them. The Constitution mandates t hat tempurary employees in the govern · ment be given protection as may be provided by law. iSec. 2[61. • The aim of s uch law is to prevent indiscriminate dismissals of temporary personnel and to see to it that their sepa ration or replacement is made only for justifiable reasons. Such laws may even grant to temporary employees who have rendered continuous and faithful service benefits that accrue to permane nt employees Y
SEC. 3. 1'he Civil Service Commission, as the central person· nel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiv~ness, and courtesy in the civil service. It shall strengthen the merit and rewards ~ystem, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel progra ms. Powers and functions of the Commission.
In the performance of its powers and functions, the Commission as the
~ntr~.~er~~m.P.dJ~g.e.n~ __QLthe.. goyernrne&t, shall be guided by the objec~ 1 R.A. No. 6850 (feb. H. 199()) grants civil service t>ligiuil ity under ce rtain conditions to government em.ptoyee:s appointed under p1 ovisioncl or t.emp,)rnry status who h ave rendered a total of Reven (7) years of cfficit>nt sMvice.
·-··
TEXTBOOK ON THE PHILIPPI NE CONSTI'J'UTION
2R8
Sec. 3
tives as laid down in the Constitution to establish a career service and to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the Civil Service as well as the economic, social, and other policies of the government. 1 Under Presidential Decree No. 807 (Oct. 6, 1975), otherwise known as the Civil Service Decree of the Philippines, the Q~v.i.l_S~rvice Commission has, a mong others, the fo llowing g.n.w.e.u_&P..4f).!Il~tiQ.!.H'l:. · . - · -···-······· ·- · (!,Admi nister and enforce the constitutional and :statutory provisions on the merit system; (2) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of the Decree; (3) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effec· tive personnel administraiion in the government;
(4J Supervise and coordinat-e the co~duct of civil service examinations; (5) Approve appoin tments, whether original or promotional, to posi tions in the civil :service;
(6) Inspect and audit periodically the personnel work programs of the different departments, bureaus, offices, agencies and other instrumentalities of the government; (1) H ear and decide administrative disciplinary cases instituted di rectly with it or brought to it on appeal; and
(/:}) P erform such other functions as properly belonging to a central personnel agency.z The Decree declares t hat the Civil Service Commission sha ll be the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants.:i lmportanc~
cf a permanent civil service.
(1) The work of the government would never be done ifthere were only the Je gislators, Cabinet members and other he ads of offices to do it. These people cannot be expected to collect taxes, audit accounts, inspect factories, take censuses, arrest criminals , to say nothing of keeping bookR, delivering
'See Presidential Decree No. 110. (Jan. 26, 1973) Pres idential De(:ree No. 807, Section 9; see Letter of I nstruction No. 319. (issued Sept. 23, 1975.) "Presidential Dec ree No. 807, Se.~ tion 1. Presidential Decree No. 1218 (Oct. 14, 1977) esta blishes a Civil Service Academy to implement centralized training programs for the Civil Scn·vi ce. I.ettc1· of Instruction ~o. 785 (Dec. 22, 1978), on the other h and, (Teates "a National Planning and Coordinating Secretariat for the purpose of designing 11nd implornenting reorientation a nd motivational train ing programs and special course for civil service persou· nel in e ach ?rfinistry in pursuance of the n eed to internalize government reforrns." 2Sce
Sec.
a
ART. 1X. - COI'\STITUTIO NAL COM.MISSION::3
289
B . 'flH: Civil Service C.ornmiAsion
mails, and carrying messa ges . Such manifold tasks lmany of them purely clerical, but many othe rs not a t. all so) fall, rather, to t he body of officia ls and employees known as the permanent. civil service. (2) It is this great body of men and women that translates law into action from one end of the country to the other a nd b1·ings the goYernment into its daily contacts with the rank and file of the citizenry. It is likewise this reservoir of experience and knowledge that furnishes those who, fo r the time being, have been entrusted with the reins of government with much of the information required in shaping and enacting policies on a mul titude of subjects. Indeed, there r.an be no denying that without the a ll-pervading and unremitting work of the civil servants, "government would be only a jumble of rules and regulations suspended in mid-air, without force or effect upon the people. "~ Purpose of providing a civil service system.
ilie.J.:.Oml2lex and diver.siti~_taak...of admini.s.tfring__the affairs Q.fgyygnu_n.~.L-,
The executive busi ness of running the country and of advising the rulers of the country is a matter fm- specialists. It cannot be learned in a few weeks by the casual supporters of any new government. The civi l service has been established "as an unchanging carefully constructed instrument which is r eady for use by whatever political party may happen to form the government of the day.'''' Basicrequis,~es ofa. .c.iyil ~er.yi~~~Y~~~-~·
For a civil service system' to be operated succei'isfully, certain basic requisites must be ful fi lied.
(J' M~r_it §.Y8t:i11lU.W.d.3JCf.;.t.JJ:~t:uil t.e.tll.l..!:e. - I t is esse ntial that appointments m ust be made strictly on the basis of merit and that the persons appointed enjoy security of tenure; otherwise, the r ecruiting of competent and h onest civil servants cannot be expected. <~> f.Q},_iti,J;QLIJ&J4mlli:;.. - The other requisite is that th e civil service mu st be politically nl:!utl·al. (see Sec. 2f41.J If the civil servant is to dis-
'F.A. Ogg., op. cit .. p . 118. ·'1970 lJPLC Comtitution R+~v i,;ion Projoct, p. 654. 1'Pct.er du Sawtoy , The Civil Service !.1957 ), p. 58. ' The ci,•il ser,·icc in the Phili ppines wa~ first cstabli:;hcd in 1900 by Act No. fi of t h e P hilippine Commission t:ntitled -An Act for thc Esta blishm(:nt and Maintenance of an Efficient and Hone:-;! Ci vil Sen·ir.:e in the .Philippine Islands ... It provided the frarn<; wnrk for a merit-based civil se n ·i{·e .iyst~m manda ting the appoi mment and promotion to government pc)sitions according t o ID{'l"it and lhrough comp{'tith·e exa m inations as far as pmcticablc.
TEXTBOOK 0~ TH E PHILIPPI NE CONSTITUTION
290
Sees. 4-0
cha rge his duties faithfully, impar tially a nd efficiently. he should not be beholden to whatever political party is in the saddle. 8
SEC. 4. All public officers and employees shall take an oath or affirmation to uphold and defend this t.:!onsti.tution. Oath to defend and support the Constitution.
The requireme~t as to the taking of an oath to support a nd defend the Constitution is a standard provision in con~:;titutions.' (see Art. VII, Sec. 5. ) Section 4 includes empl oyees among those required to take the oath. Under the provision, the oath of office must be taken before assuming the position or office or before beginning to discharge the duties thereof. It may be t a ken before a ny person authorized by law to adminis~er oath. Section 5( 1) of Article XVI imposes the same requirement on members of the armed forces.
SEC. 5. The Congress s hall provide for the standardization of compensation c f government officials and employees, including those in government-owned or -controlled corporations with original charters, taking into account the nature of the respon· sibilities pertaining to, and the qualifications required for their positions. Standardization of compensation.
(1) Salaries to be fixed by law. - To solve the problem of salary dis parities in the civ il service system which have been a sour~e of dissatisfaction and dissension for many governmen t employees, t he Constitution directs Congress to provide for the standardization of the compensation of government offici als and employees, including those in government-owned or -controlled cor porations. This means t hat thei r salaries shall be fixed by law ar.d in th e case of employees in government corporations, they shall no longer b e the subject of col lective bargaining agreement with the management of such corpora tion. In view of the a bove provision, legislations granting would be unconstitutional.
s p~;!cial
salaries
(2) Matters to be taken into consideration. -- Congress shaH t a ke into account the nature of the responsibilities pertaining to, and the qualifications required for, the positions concerned (Sec. 5.) in fixing the rates of compensation allowable. An equitable and r ealistic salary scale based on 8
See 1970 UPLC ConRtitutional Revision Project, p . 654.
/bid., p 6613.
1
Sec3. 6 ·7
ART. IX.- · CONSTTTlJTIO!':AL C:OM.YIISSIONS H. The Civil S~rvice Com mil"~ ion
291
the principle of equal pay for ~qua! work for all government employees is another essential facto1· for promoting "morale, efficiency, integrity, re:';ponsiveness, progressivene::.s, and courtesy in the Civil Service .'' Sect ion 18 of Article XVl li (Transitory P rovisions) speaks of inaea.se of the salary scal ~s of ofii eials and t:!mployees of the National Gove1·nme nt other than the officials m entioned in Section 17 of Articl e XVIII whose annual salaries have been fixe d by the Constitution.
SEC. 6. No candidate who has lost in any election shall, within one year after s ucb election, be appointed to any office in the Government or any government-owned or ·contr olled corpo· rations or in a ny of their subsidiaries. Ineligibility for appointment of defeated candidate in an election. A can didate \vho has lost in an election js likewise disqualified for appointment or reappointment to any office in the government, or in any government-owned or -controlled corporation. including any of its subsidia r ies within one ( 1J year following such election.
The purpose is to sto p the practice whereby one with political connection aspires for an ch·ctive position with the hope that e ven if h e should lose he could still be appointed to a n office or reinstated to his former position in the govern ment. This practice of rewarding defeated candidates is defini tely a tra nsgression of the will of the e lectorate in that the candidates they did not wish Lo hold public office~ are rewarded with an office after their defeat. The provision i::; directed agai nst all defeated candidates hut more particularly, a gainst the so-called "poli tical lameducks."l
SEC. 7. No elective official shall be e ligible fo1· appointment or designation in any c apacity to any public office or position during his tenure. Unless otherwise a llowed by law or by the primar y functions of his position, no appointive official shall hold any other office or e mployme nt in th~ Governme nt or any subdivision, agency or ins b·umenta lity thereof, jncluding government-owned or -cont rolled corporations or t heir s ubsidiaries.
''I'he term "lru:ccduck': i;; " !c rm taken fro m th~· ,.,,ca bul<~ry of AmeriC<1n poli t ic,; <111d means an cledivoliticul intl u!:ncc. ~fter f;li ling in his bid liH· r·c-election.
292
TJ:':X1'HOOK ON THB P HILIPPINJ:': CONSTITUTION
Sec. 7
Ineligibility for appointment of elective officials.
Section 7 seeks to minjmiz.e t he so-call ed "J!noils systew," the practice by which public offices are distributed among the m embers of the victorious party, and their relatives and supporter s. Together with Section 6, it enhances the chance of others for holding public offi ce. (see Art. II, Sec. 20.) During .his__t.enur.e. in off1ce (not term of office), any elective official is disqualified for a ppointment or designation (not from being a candidate or being elected) to any public office or position in the government, whether n ational or local , including governm ent-owned or -controlled corpora tions. (see Sec. 2[1].) A law allowing such appointment is void! He may be appointed pr ovided h e forfeits h is seat. (see Art. VI, Sec. 13.) Prohibition against holding more than one position by appointive officials.
An a ppointi ve offi cial may hold any other offi ce or employment in t he government, including govern ment-owned or -controlled corporations or their subsidiaries only ·when all owed by law or when required by the primary functions of his position. Th e rule aims to remedy the problem of appointive offici als holding multipl e positions which prevent t hem from devoting full time to their principal function s and result in double or multiple com pensation . (Sec. 8 .) In the first case {when allowed by law), the pos itions m ay be t otally unrelated to each other. In the second case {when functions a re r el ated), the prohibitjon does not a pply even in the absence of an e nabling la w. The prohibition is more strict in the case of t he President, Vice-President, the members of t he Cabine t and their deputies and assistants. They m ay hold any other office or. employment only when specifically authorized by the Constitution itself. (see Ar t. VII, Sees. 3[par. 2), 13(par. 1]; Art. VIII, Sec. 81.1]; Art. XII , Sec. 9f.par. lJ.) These officials exercise more powers; h ence, the n eed for more checks to avoid the possibility of abuse and conflict of interest in the condu ct of t heir office. Section 7 applies to all officials other than t hose mentioned in Article VII, Sec. 13 (par. 1 thereof. ).2 In any case, the appointive official is not entitled to receive additional, double or indirect compensation unless specifically authorized by la w. (Sec. 8.)
1The phrase "unless otherwit:~e provided by law" in the 1973 Cons ti tu tion p rovision (Art. XII, B-Sec. 4[ 11 ther~of. i was delet ed. 1 Executivt: Order No. 284 (J uly 25, 1987) authori:tes the holding of other government offices or po~itions by me mbers of the Cabinet, und ersecretaries,
Sec. 8
ART. IX. - CONSTJ'TU'l'lONAL COM~USSTONS B. The Civil Service Commist;ion
293
SEC. 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, un: less specifical,.h_Jmthorized by ~' nor accept without the consent of the Cona:re!!§, any pt·esent, emolument, office, or title ~f'an_y_kind from any foreign government.
£.ens.iOllS_O.r _na.tyj!.f.ru:Lshall not be considered as additional, double, or indirect compe n sation. Prohibition against additional, double, or indirect compensation.
This provision 1 is designed to counter the evils of dvuble compensation. (1) Specifically, double compensation produces unemployment because it eY..cludes other persons from the service, and results in inequalities in compensation, in the case for instance, where a subordi nate because of his other salary, receives a higher salary than a superior. ~ (2) It may likewise produce confusion and even irregularity, concealing from public notice the r eal compensation of a govcrnml:!nt officer or·em· ployee. In order that the people may know the real compensation of an officer or employee, it is necessary that the salary be from one definite source .3 For this purpose, the a bove prohibition against additional, double, or indirect compensation has been incorporated in the Constitution.
Jr.ee wa..~er. _QLQlr.~tric lig.h! §~rv..l~~, ~.t.<:!, •..m:.a.P-t..e
Exceptions to the prohibition .
The constitutional prohibition does not apply where:
'
(.l) The payment of additional , double or indirect compensation to a particular officer or employee is speci{i~Q.ll.r. .authQ[j_~d _Qy_~ (Sec. 8. ) in individual instances where t he payment of such compensation appears not only just but necessary. 5 The prohibition is aimed against the giving of extra compensation by executive or administrative order; (2) The additional compensation is received not from the goyernmeot or its entities; and (3) There are ~-difil j.lli.l!?ffi.c;e.§.. each of which has its own duties and compensation , in which case both may be held by one person at the same
1Under the 1935 Constitution, the prohibition applies only to appointive officials or employees. ~ 1970 UPLC Constitution Revision Project, p. 665. ' V.G. Since, op. cit., p. 421. "[tis "daily allowance" given "for each day an officer or empluyee wat!i away from his home base." (Lexal Laborntorie;; vs. NAtional Chemical Industrie;; Workers' Union-I'AFLU, L-24632, Oct. 26, 1968.) ·'Sadueste vs. Mun. of Suriga.o, 72 Phil. 485.
TEXTBOOK 0~ THF. PHILIPPINE CONS'l' I.TUT!O!\
294
s~c .
1
time . He is, in the eyes of the law, t wo office rs .6 The.. prohibition. .refers to _qQ_\J_Q.le compen.~~J..i.9.n .ruHLUQt...t.l.u io.uble_ap.p.ointments and..t.he performanc~ _of.f~:n ~-~~-Q.fl~ _gf..m_o.r~_thmu:m ~ __q_ffi ce.: 7 Jlui..the Q(fi£er_m~y ..d.I:.~w.....th~~l an: aJ..t~che.d. tQ_the ..secQnd.IWsitiun Qol_y__i\~C is s pecifi~ a uthorized by
,la_w_, For purposes of the prohibi tion , P.~.!J~~-Q!l1?._9_Lgra.tl}._i~i-~s ~ re n ot co._J;\_~_j~ ([b id., par. 2. J H ence, a retiree who is re-e mp loyed in th e gove rnment may continue to r eceive h is pensions in addition t o his compensation.
~:r~ ~-.JtqgitioJl.
PJ:Q.h.tl>!~!~n .!11g_~ins_t a!t.~~ta'l~e of _SJ!Y.J!.r~t,
~,.1r.9.m..M¥..fO.ntign state._
The pr ohibition a gain st the acceptan ce of any present, emolument or official title of a ny kind from an y foreign sta te or g overnment~ is founde d in a just jealousy of alien influence in domestic affairs .9 The purpose then is to discourage and preven t fo reign influence in the rffa irs <>f our govornment . 10 ~ .is... pxohibit.e.dis...thc_ru;;~eil~-ot.a. Jne~~llt: ..Qffic;@J I.L9t1'gE.5!...b~ th.~..&O.Y~lJ11n.~nl9.LC!..fu.r~J_gn -~.t~.1e.lH i.!l.th.u.s..P.eimissjble..fa.r...an..offi cia! of the elliliP.PiQ~.. R~_pj.l_Ql.ic..li.o. l}s,;_c_w . i<\..l2rlv.at~ ..QI_p.erao.naUift..f.mm..a k j D i or head .Qi.a fonii gn...g:o.:.t:.ern m ent. 1 1
The prohib ilion is directed only ~gain st. pub_lic officers_ a nd employees. A pri vate citizen could, therefor·e, a ccept a gift or title fro m a foreign gover n m ent without r unning a foul of t h i:: prohibition. 12
C. THE COMMISSION ON ELECTIONS SECTION 1. (1) There shall be a Commission on Elections composed of a Chairman a nd six Commissioners who sha ll be natural-born citizens ofthe Philippines and, at the tir.oe of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority therecf, including the Chairman, shall be m e mbe rs of the Philippine Bar who have bee n engaged in the practice oflaw for at least ten years.
~ 1 Jni ted
Sta tes vs. Sa u nd~rs. 20 IJ.S. 126. Ozaeta , 9R Phil. 705. "This portion of ihe provision was formerly fou nd in Arti cle IV (Bi ll of Ri ghts), Soction 9( l j of t h e 1935 Con~titution, and iram;ferrcd t o Article XV p cit. , p. 702 . 12 1970 UPLC Cons ti t ution Revision l'roj(!Ct.,Ji. H9.__. ~Quim~on v t<.
ART. IX. - CONSTITUTJONAL COMMISSIONS C. The Commission ou Elections
Sec. 1
295
(2) The Chairman and the Commissioners shall be appointed by the Presidentwith the consent ofthe Commission on Appoint· ments for a term of seven years without reappointment. Of those fil'st appointed, three Members shall hold office for seven years, two Members f.>r five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Composition of the Commission on Elections. It is comp0sed of a Chairman and six (6) Commissioners. The 1973 Constitution increased the membe~ship from three (3) in the 1935 Charter to nine (9) on the theory that it would make it more difficult for the Commission to become the "captive" of any political party or group or any person who might be interested in the Commission deciding or taking action one way or the other. It was held by many that the bigger membership of the Commission, the less likely it was to be "bought" or influen,ced, 1
'rhe new Constitution opted for a ~~Y~P..-.ill~.D- collegiate body. In the final andysi8, what is more important than the size of the Commission on Elections is the possession of the qualities of integrity, moral character, and independence ofr.1ind by its members in the face of the feeling of public distrust towards this agency because of its alleged partiality and partisanship in past elections and the massive frauds and poll-related \'iolence that attended them. Qualifications of members.
They are: (1) They must be natural-born citizens of the Philippines;
(2) They must be at least thirty-five (35) years of age at the time of their appointment; (3) They must be at least holders of a
coll(~ge
degree; and
(4) They must not have been candidates for any elective position in the immediately preceding elections. The Constitution requires that a majority of the members, including the Chairman, must be .members of the Philippine Bar who have been engaged in the practice of law f(,r at least ten (10) year1-;. (Sec. lll].) Apparently, the reason for this requirement is the fact that the Comndssion exercises quasi-judicial powers.
1
1970 UPLC Constitution Re\'bion Project, p. 576.
Tf~XTDOOK
296
0!\ THE PHILIPPINE
CO~STITUTION
Sec. 2
Appointment and terms of office.
The Chairman and the Commissioners are appointed by the President with the consent of the Commission on Appointments for a term of seven (7) ye ars without reappointment. Of the Commissioners first appointed, three (3) shall hold office for seven ( 7 ) year s, two (2) for five ( 5) years, and the last members for three (3) years, without reappointment. The Constitution likewise provides, as in the case of the members ofthe Civil Service Commission a nd the Commission on Audit, for a staggered term of two years interval. A member appointed to fill a vacancy shall serve only for the unexpired term to prese1·ve the staggered terms of office. It has been obBerved that this st aggering of term also makes th e Commission a continuing and self-perpetuating body a nd consequently, its members would have the benefit of the experience of the older members in the performance of its functions. The contin uity of its tenure as a body makes for greater stability for its policies and decisions and serves as a guarantee against arbitrary action which is likely to occur in a body handling partisan question s.~
Appointments or designations in temporary or acting capacity are also not allowed. (Sec. 1[2].) Purpose of the Commission.
As previously stated, in democracies, the people f(~presen t the sovereign power of the S tate. (see Art. V, Sec. 1.) T his sovereign authority is given expression t hrough the exercise of the right of suffrage by the qualified voters. The pu.rity of elections is on~ of the fundamental requisites of popular government.:1 It is obvious that the sanctity of the ballot and the free and honest expression of the popular will can best be protected by an independent office whose sole work is to enforce laws on elections. The Commission on Elections is organized for that purpose. The intention is to place it outside the influence of political parties and the control of the legislative, ..!xecutive, and j udicial organs of the government. It is an independent administrative tribunal, co-equal with the other departments in respect to the powers vested in it:1
SEC. 2. The Commission on Elections shall exercise the following powers and functions: Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and r ecall. (1)
2See
V.G. Sinco, op. c:it., p. 576. Abcede vs. l mperial. l Oa Phil. 136. •\'.G. Sinco, op. cit., p. :iH2.
1
Sec. 2
ART. IX. - CONSTITUTIONAL COMMISSIONS C. The Commission on Elections
297
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orde1•ly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Flm:mcial CQ..I}~ributiol).&..from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute ~ases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penal· ize all forms of election frauds, offenses, malpractices, and nuisance candidacies.
Sec. 2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
298
(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite , initiative, referendum, or recall. Powt.r.~.J!~.9JYn~!lof!s. .Qf th~ ..99..1!'~tssio_f!..
The Commission on Elections pe_r(orm.s .executive as well as i~~i.£.i~l functions. Section 2 enumer ates th e powers and functions of the Comrnis· 'Sion, to wit: (1) To .enforce l.aw.s....r.£.l.a.ti.IJ.e.-1!2 ..tfl£...£..o.n.dM:.~L ..Q[J~{e.ction ~. etc. - The Commis sion on Elections has the power to annul or cancel illegal registry lists of voter s and t o order the preparation of a new one; 1 t o cancel the canvass of election r et urn s of a Boar d of Canvasser s a nd order a new one where certain ret urns were illegally excl uded ;~ a nd to suspend t he proclamation of winning candidates pending an inquiry intn irregularities brought to its attention. 3 T he power vested in the C ommi~:;sion includes the power to enfor ce a nd administer laws relative to the conduct of plebi scit es, initiatives, referenda a nd r ecalls which are not, strictly s peaking, "elections'' (Sec. 2f l]. ); (2) To 4.~cid.~ .s:.l&.cJ.iJUl contests. - There is an election contest when a defeated candidate for elective public office questions the r ight to said offi ce of one who h as been proclaimed elected ther eto, the question being on th e elect iond, r eturns, or qualifications of the protestee. (Sec. 2(21.) Its purpose is to ascert ain the candida te lawfully elected to office. The t erm also includes any contest involving the right to an elective office, m ade before the proclam ation of the winner , whether or not t he contestant is claiming the offi ce in dis pute. 1!1 ~.~.e ~a. ~ e L h.g~~~~r..Lof_~l~~t.~Q ~~. o f k:1~a ng~. officials , it is limited to proceedings aft,e r the· proclamation of the winu..~~
El~c;li9J.Lc_ont~s ts involving z:.~_g!gE-~1. EEQVin£i_111, and city.. offJJ:i~l s are placed under the exclusive j urisdiction of the Commis sion on Elections . r·iot~ -that-el"e~ti~n~ontest.s for iliwlid_gi\i -aiic[~~ID:ang~y otfiilli!i are-Und'e"r. the j urisdiction oLregianalJ ,rial ®1\!16. ~unicipa 1 t ri al caur,ts, r espectively, subject to appeal to the Commission whose aeJision s or rulings a re final, executory and not appeala ble, subject to certiorari review by the Supreme Cou r t (see Art . VIII , Sec. 5[2]. );
' PrudentP. vs. Genuino, L-5222, N ov. 6, 1951, cited \n l<'elician<' v.,;. Lugay, 93 Phil. 744. De Leon vs. Imperial, 94 Phil. 68G; Abendante vs. Rela t o, 94 Phil. 8. 3 Albano vs. Alvarez, L-19200, Jan . 31 , 1962. •Taule vs. Santos, 200 SC RA 512 . 2
Sec. 2
ART. IX.- CONSTITUTIONAL COMMISSIONS
299
C. The Commission on Elections
{3) To_d.~dde.a.U £J.U£s.iiQTJ.$ _qff~ting_f:kcti.on..§. - The Commission has no jurisdiction over questions involving thti_right to vote wr..ich includes qualifications and disqualifications of voters}: the right of a person to be registered as voter, _the right to cast his vote, ~he validity of his ballot and other allied questions. Sl!~h..9.~-~-~tim1~alLb~ s!_~~iged by the~urts;'; (4) '[Q..s/&pu..t.iz.e. la.w_m/Qrs:e.mer:ll ag_eacie:;;. -Note, however, that the deputizing should be with the cancurre.ru:e. .af the..PresideJ.lt, since such agencies are under his jurisdiction. This limitation seeks to make the holding of "free, orderly, honest, peaceful, and credible elections" fh~ jo~t responsibility of the President and the Commission; · (5) .I.Q..!.'!!.g{§.fe...'.'Jl.C!.lW~.al.Q..q..rti.e.B......ftc. and accredit its citizens' arms. This provision is one of the reforms intended to make our political system more responsive to the needs and demands of the times. Political parties (in{ra.) which: (~) have no platform or program of government, or (b) seek to achieve their goals through violence or unlawful means, or (c}refuse to uphold and adhere to the Constitution, or (d) are supported by any foreign government.-; sh.alLhe.....refu.s.e.d_registratioll. Religious denominations and sects are not allowed to be registered as political parties in view of the vrinciple of separation between the church and the State. (Art. II, Sec. 6.) A.~<;~ptance of financial contribution§ from foreign governments and their agencies- related t"o elections'1s a ground for th~ cancellation of the registration of a political party or organization. Such contributions are declared as constituting in:terferenc.e in our internal affa!p;. Citizens' arms accredited by the COMELEC are supposed to be completely neutral and non-partisan in assisting the COMELEC in the conduct of elections, etc.;
(6) ToJi_l'!__E(}_titio.!l:.§.....fnvg_t?t.igg.te...fJJl.d..pJ:J:lS£CJJ.te. -The powers given to the COMELEC under Section 2(6) are new. It can exercise these powers on its own initiative even in the absence of any complaint; (7) .Xa..rec.am~. - As the body charged with the duty of enforcing and administering laws relative to the conduct of elections, etc., it has also the duty to recommend measures as would effect more improve· ments on the election laws of the country such as those that would curb overspending, ensure the enforcement of the fair·and-equal exposure rule for political parties and their candidates, including limitation of places where propaganda materials shall be posted, and prevent a strong party or candidate from taking U'n.due advantage of the weakness of the others. Under the Constitution, it has the power to prevent and penalize all forms of election frauds, offenses and malpractices, nuisance candidacies (candidate has no bona fide intention to run for office}, or other similar acts; ~Nacionalista
Party v,;_ Commi!;Sion on Elections. 84 Phil. 149. gFO!()igJ1_ill~t...i_t~ti!Jn_§_a.!l9...Qr_ga_E_i_~ati_:>_~-~-~e not covered. Jhe purpose of support must be political as to influence local politics. ·Support" includes any assistance other than the giving of "financial contributions''; it may only involve financial contributions.
SGO
TEXTBOOK ON THR PHJLJPPINF.
CO~STITUTION
Sec. 2
(8) 1'~m!!l~11rfi_ reftJJ!...l!..!!L.DL.fi~nary action. The President may or may not follow the recommendation of the C~mmission. Howt!ver, since the deputization was with the concurrence of the President, it is unlikely that he will disregard the recommendation of the Commission. As to the officers and employees appojnted by the Commission, it can remove them for cause;
(9) J'.f!_!.Ub!r~,it .r:.l!J!.~rt. --· The report required should contain a description on how a previous election (regular or special), plebiscite, initiative, referendum, or recall was conducted and what laws or regulations, if any, were violated. The Commission may also make recommendations with respect to flaws or defects it has discovered in the enforcement of the election laws. Without the provision, the Commission, because of its independence, may refuse to give any information at all to other branches of the governm~mt; 7 and (10) J._'Qpe_~ff!..r..m..QrJ7-er:_[ynction..s_.- Under present law, the Commission has also, among others, the follm.ving powers and functions: (a)· To exercise supervision and control over national and local officials required by law to perform duties relative to the conduct of elections;
(b)' To promulgate rules and regulations implementing the provisions of the Election Code; (c( To enforce and executl;l its decisions, orders and instructions; and
(d) To carry out a continuing campaign to educate and inform the public on election matters, and the necessity for clean, free, orderly, and honest elections.~ (see A-Sec. 8.) F:inality of dQcisions..:.
Under Section 2(21, where the election contests involve el~.~tj~~Lm.mlic..i ~_l ..~n..~ :t>ar~~g~y_.Qf!lsi~~. the decisions, final orders or rulings· of the ~"' ,. Commission on Elections shall be fi.!!~J..t-!'!~.£~.!Q.!Y and not appealab~. 9 '·: ," . Those involving elective regional, provincial, and city officials :may. b.e
<·'
~~EP~~!~~ .t.?..~l~~ _?~~Il..r..em.e. q~mr~.:
A decision usually becomes final after a certain period of time (e.g., 30 days) unless an appeal is made to a higher body as may be provided by law or the Constitution. Under Section 2(2), the decision, etc., of the Commission instantly becomes final after rendition.
7
1970 UPLC Constitution Revision Project, p. 581. See the Omnibus Election Code (B.P. Big. 881.), Section 52; ahw, Administ1·ative Code of 1987, E"-ec. Order No. 292, Book V, Subtitle C. Section 2. ~This does not p~cu£w.rar.Wurisdictio:n of the Supreme Court when thl'l"e is grave abuse of disct·etion. (see Rules of Court, l{ule 65, Sec. 1.) 8
Sec. 3
ART. IX. -· CONS'I''ITUTIONAL COM.MISSJO~S C. Tht Cummi!lsion on F.lcctions
ao1
A final decision is conclusive upon the parties, i.e., it. terminates the matter at issue covered by such decision. thus precluding any furth er litigation between the same parties or their successors-in-interest C()ncerning the same. Such decision leaves nothing for the Commission to do except to execute or enforce it, and, therefore, cannot be appealed to the Supreme Court. Rationale of registration of political parties.
If the State is to extend equal protection to all political parties, it is essential that the State s hould know and be acqu ainted with what they stand for, how they are organized, how they operate. etc. 10 Registration is the means by which the go\·ernmc nt is enabled to supervise and regulate the activities of political part ies. 11 It is also intended to inform the people of the parties' existence and of their respective programs of government to enable them to consider wi::ely to which party they should pledge their support. 1:t The role of the Commission on Elections insofar a~ r egi::;tra tion is concerned is purely ministerial/·~ i.e., its duty to accept the registration is definite and mandatory, which it must perform ~· ithout any powe r to exercise its own judgment or discretion. Howe,·er, ~> ~~u~_dmominq. ~!Qn,~nd sect §hall b~ regif!~!;'J:Q.c;l.g_§..!U)Qli.t.k.sl..uartr~ tho;;;e which seek to ~,E_thejr...gQaLth.ru.u.gh ..Y.iolence oti:~unlawful m ean~:: or refuse to nphotd. .~9.9J.9.!t_~re _t_e>..the._CQnilitJ.t.tiQn._or which are :<:npported by any foreign ~Y.fltnment... (Sec. 2f.5J.) Because ofthe important role of political parties in our d emocratic society, it is essential that the State should regulate or super vise t hem.
SEC. 3. The Commission on Elections may s it en bane or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre· proclamation controversies. All such election cases shall be heard and decided in division, provided :that motiona.fo.c.recon!i.kl.~.r.~tim! ~_f..de.ci.siona. shall be .decided by the. ,C ommission. ell
Jum&.. Hearing of election cases. T he Commission on Elections may sit en bnnt: or in two di\·isions. All election cases (see Sec. 2[2].) includi ng pre-proclamation controver sies
16
S ponsorship speech. Del P. A. Ortiz, S.J., 1971 Con;;titutiona l Co nvention. Peralta vs. CO~lELEC . L·4 7';'71. .Y1arch 11. 19';'5. ' 2Sponsorship speech. Del. S.S. Aldequer. 1971 Constitution••) C<)nve.1tion. •sSponsor~>hip speech, Del. R.T. Fajardo. 1971 Constitutional Convention.
11
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
302
Sees. 4-5
shall be heard and decided in division..-However, motions for reconsideration of decisions shall be decided en bane. The Commission is empowered to promulgate its rules of prucedure in order to expedite the disposition of election contests. Congress may, by legislation, fix a period for the rendit ion of decisions for election cases. 1 SEC. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all fran· chises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or -controlled corporation or its subsidiary. Such s upervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public inform ation campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. Regulation of public ujilities and media.
The above authority given to the Commission is to be exercised for the purpose of ensuring "free, orderly, honest, peacefu l, and credible e l ecti ons~· and only during the election period. {see Sec. 9. ) Note that governmentowned or -controlled corporations are among those that may be supm·vised or regulated by the Com mission. The provision seeks to place all candidates on more or less equal footin g in making known their qualifications and platform s a nd their stand on various public issues a nd equalize their opportunities of winning at the polls. Section 4 applies to plebiscites, particularly to one relative to constitutional amendmcnts.t (see Art. XVII .) 'SEC. 5. No pardon, amnesty, parole, or suspension of sentellce for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.
1Under the 1973 Constitution, "all election cases shall be decided within ninety (90} days from the date of their submission for decision!' (Art. XU, C·Sec. 3 thereof.) Not infrequently in the past, dela ys in the rendi tion of decisions had allowed the wrong men to occupy elective positions for practically the entire t erms of the office so tha t the people's wi ll was thereby nullified. 1
U nited Democratic Oppos ition IUN£D0l vs. COMELEC, 104 SCRA 17, April 3, 1981.
ART. IX.- CONSTITUTIONAL COMMISSIONS C. The Commission on Elections
Sec. 6
303
Pardon, etc. of violators of election taws .
.;~The purpose of this provision is to avoid any possibility of the President granting pardon, amnesty (see Art. VII, Sec. 19.), parole, or suspension of sentence to violators of law or rules and regulations concerning elections, who may belong to his party or for political reasons. Meaning of parole. Paro~ is a method by which a prisoner who has served a portion of his sentence is conditionally released but remains in legal custody, the condition being that in case of r.lisbehavior, he shall be imprisoned. A parole does not pardon the prisoner.
Meaning of suspension of sentence.
A sus.vensifJll...d'_ sentea.c;&.. ~~~ the postponement of the execution of a sentence for an indefinite time. It is different from ff:P!:~~ (see Art. VII, Sec. 19.) in that the latter postpones the execution of a sentence to a fixed or definite date. SEC. 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Meaning of political party.
A.R.Qtiticq(_par.t.Y may be defined as voluntary organization of citizens advocating certain principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, designates and supports certain of its leade1·s as candidates for public office. 1 The chief aim of political party is to gain control of the government. The term has also been defined as "an association of voters believing in certain principles of government form~d to urge the adoption and execution of such principles in governmental affairs through officers of like belief."2 It includes organizations which are ordinarily non-political such as those of farmers, labor, women, urban poor, and other sectors presenting or supporting candidates in electionsr Free and open party system. (1) Growth of political parties encouraged. -The Constitution encourages the development of more than two political parties. It provides that ua free and open party system should be allowed to evolve according to the free choice of the people x x x.'' (Sec. 6.) This constitutional policy of
See Brooks, Political Partie;; and Electoral Reforms (1923), p. 14.
1 2
Peralta vs. COMELEC, L-47771, March 11, 1978.
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TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 6
promoting a t least th ree (3) major political parties will, in effect, allow the format ion of as many political parti es as can win popular support in any district all over the cou ntry. (see Ar t . II, Sec. 26.} The pa rty-list m ethod (Sec. 7 .) of electing r epresentatives to represent sectoral interests in Congress is also expected to pave the way for the full operation of a multi- party system in our country .3 (see Art. VI , Sec. 5[1, 2].) This system usua lly exi.sts in the pa rliamentary form of government (e.g., Belgium, Switzerla nd ) where there is a sharing of governmental power by a coalition of parties because no single political party is str ong enough to exercise control. Coa lition of parties inheres in the multi-party syste m . British politics is dominated by two parties - the Conservative and t he Labor. (2) Experience under the t wo-party system. - The 1935 Constitu t ion created a n inflexible t wo-party system- the majority party or the party in power and the dominant minority or opposition party, with the latter charge d with the t ask of cons tructive "fi~~~J!~~~ on:' of the former .4 The result was a syst em wh ich worked to place political power under the virtua l monopoly of two pa rties, wh ich were r eally two factions of the same party, giving rise to wha t has been called a ''.l,ulip~r.f!.Qn.~lr.ul.~' or '!palitics...o£ lle.r.aonalitie.B....an.Q.p.Qt.. cl.id.E1!i.§" in either party which found it unnecessary to present a distinct political ideology or platform of gove rnment.~ By law, the t.wo par ties monopolized elections and took t urns of governance to the exclusion of a ll t h e rest. thus per pet uating dynasties on both sides. 6 "The very purpo.s~ of the party-lisl is to promote multi-party system. (see Sec. 2, R.A. No. 7941.) The 1987 Constitu tion. however, alth ough it. eli minated the two-party provision of th e 1973 Con:;titution !Art. Xll, C-Secs. 8, 9[2J ther eof.), does not expressly mandate a multi-par ty system. It merely removes the constraints on a freely evolved party system. Neither does it prohibit a t.wo-party system. In "a free and open party system ," the people may prefer a two-pa ny o1· three-pArty system hlter by supporting particular parties and their candida tes. To those who favor the restoration of the t wo-party syste m, tlw multiple party system is actually a fc1r m of deception becaus e once the election is over, the variou::; parties which lost or the minor it ies in Congr ess join t he a dministrat ion party in a coalit ion or a lliance t o stay in power. This ph enomenon h as further w~.akened t h e int egrit y of ou r politica l party system and prevented t he growth of political parties into ideologically-based public institutioM . There is . therefore, no nP.cd to ame nd the Constitution in order to provide for t he adoption of a two-party s ys tem. Such system, lis practised in the Un ited States, is not mandated in the L'S Cons titution. It has evolved ~ the course of time a s a res ul t of a practica l need and pop u lar preference. •In a t wo-part.y syst em , t h ere are sma ller parties vying for political power bui th ere are only t wo big in fluen tial pa r t ies, one being in control of t he political organs of the governme nt, particularly at least- the executive branch, a nd the other h tiving the second largest share of political power. 5 The principal re ason for party affi lia tion, then and now, is the personality of t h e preside n tial standard bearer or party leader a nd his charisma. From t he pra ctical point of vi ew, i t cou ld likewis e be his win n abilit y and the promise of political p atrona ge. 6 F r om t he inaugu r ation of our Republic in 1946 up t o t h e declara t ion of martia l law in 1972, the body politic was alt e rnately u nder the domina nt hold of the t wo existing major politic~o~l parties, the Nacionalista and the Liberal. Their membership in th e voter~:~' regis t ration hoards, etc. (see Sec. 8.1gave them a tremendous built-in advantage over minor poli tical parties and independent cand idates who did not enjoy t h e same right.
Sec. 6
ART. IX. - CONST£Tt;TIO:-:AL COM:\HSS£0NS C. The Commission on Election~
The 1973 Constitution adopted a multi-party system but it was amended in 1981, restoring the constitutional policy under the 1935 Charter of promoting the establishment of a strong two-party system. Under Section 6, all political parties are given equal opportunities to compete for the control of the government. (3) ~;r.j~g.nd demeriJ~. -The two-party system has become a tradition under the presidential system. If it has worked successfully in ~orne countries, notably in the United States, there seems to be no reason why it cannot be made successful in the Philippine~. Our country had become trained and experienced in the two-party system, making it a formidable component of our political culture for such a long time.
()!.) On the other hand, the development of more parties makes the political climate more democratic. This means that political contests will be open to all groups regardless of ideologies, including the Communist Party heretofore listed as an illegal organization for its advocacy of the violent overthrow of the government. If allowed to compete in an open constitutional arena, it perhaps would foreswear violence to capture power. (see Sec. 2l5J.) The greater the number of candidates, the wider the latitude of choice of the electorate and the less hotly contested the election than in a two-party system where oftentimes only two persons vie for the same seat and campaigns become highly personal, thereby beclouding the real issues involved in the elections.
Cf3·) A multi-party system, howeYer, can lead to ~talemates and secret arrangements when no single party can obtain a clear majority in the elections. Worse, the legislature may be so seriously fragmented that no room for common agreement may be found among the different pa1·ties. The ] 973 Constitution originally provided for a multi-party
From the declaration of martial law .until th~ ouster of former President Ferdinand Marcos in February, 1986, the country had a prattically one· party system. The ruling part:• Kilusang Bagong Lipunan (KBL), ~:onlrolled almost all elective positions in the go,·ernmer.t except in 1984 when a number of opposition candidate.;< were elected to t.hc Bat;,;.an;: Pamban~a.
Tn the May 1:1, 1992 synchronized national and local elections, 10 plllitical p,;,~r;e;. including two (2) coalitions of fou1· (4) parties fl\'P, LP-PDP, LABAN. KBI.. l.DP. ~PC. PRP. Lakas-NUCD) present.ed seven (7) presidential teams. over WO senat.orial eanclidat.:,o f(,r 24 seats and numerous bets for congressional and local posit.ion!l- all in all, 87. ~-:-o cana;date;;. There were 11. candidates (one withdrew on the eve of the election) for Pr.. ,-:d"nt in the :vtay 11, 1998 national elections. In the M~:~y 10, 2004 national elections, the mOl'!:! dominant aili
:306
TEXTBOOK ON THE PHILIPPI NE CONSTl'rUTlON
Sec. 7
system on the theory that with such a system, elections would be decided on issues and not on personalities. However, the 1980 local elections s pawned several splintered parties . Candidates of se veral parties espousing parochial views may draw t he people's attention away from mor e impor t ant national issues. (4) Need for a strong opposition party. -In a r eal democracy, th ere is a need for a strong opposition pa rty to fiscalize effectively the acts of those who hold the r eins of power a s well as to serve as a channel through which the people may air their legitimate grievances. Thus, the party system operates as a means to avoid r esort to violence in order to effect changes and reforms in government.
SEC. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Party-list system. (1) Concept. -The part x-.list system is a mechanism of proportional r£!presentation in the election of representatives in. the House of Repre· sentatives from marginalized or underrepresent ated national, regional a nd sectoral parties or organizations or coalitions thereof registered with the Commission on Elections. It is part of the electo ral process that enables !'>mall polit ical pa r ties and m arginalized and un derrepresented sectors t o obtain possible r epresentation in th e Hou se of Representatives which traditionally is domi nat ed wit h big political machinery.
(2) Votes cast for political p arties. - Under the party-list system, people will not vote the name of the nominee of the party-list, hut the party itself. Political parties which obtain a sufticie nt percentage of votes cast will be allowed to name th eir r epresentatives to th e House of Representatives. The number of representatives depends on th e total votes obtained by such pa rt ies. Thus, if a part y r eceived 10% of t he votes cast, it will get 10% of the seats allowed for par ty-list repre::;entatives. The scheme will give more chances to different parties to be represented in Congress in line with the constit utional policy to promote a multi- party system. (3) Sectora.l or functional r ep resentation in stitutionalized. - Votes cast in favor of a political party, organization or coalition (i.e. , block voting) are not valid except as provided by t he Constit ut ion under th e party-lis t system (Sec. 7. ) for the election of t he 20% membership in t he House of Representative~. The party-list system institution alizes for the first time sectoral or functional representa tion in the lawmaking body in addition to territorial r epresentation by congressional districts. (see Art. VI, Sec. 5[1, 2].) The rul e, th er efore, is "no vote cast- no vote count" except on ly votes cast under th e party-list system. (4) Voter has two votes. - With t he pa rty-list system, a voter h as two \'otes; one for the ' district representative and a nother for a pa r ty or or-
Sec. 8
ART. IX. - CONSTITe1'10~AL COl\C\·1TSSICJNS C. The Commi:;J
Cl07
ganization participating in the party-list he wants represented in the House of Representatives. In the former. he votes for his candidate by name, while in the latter, he writes th<' name of the political party. The n ames of the nominees shall not be included in the certified list of registered participating parties. The nomi nee/s of the parties which qualified by capturing t.he minimum number of votes will be pror.laimed e lected. 1 (5) Counting o( votes. - The voting shall be at large and not by sector, hence, all votes obtained by a party regard lb:< Qf constituency shall be tallied on a nationwide basis. The percentage c,f ,·otes garnered by a party shall be computed in relati on to the total \ Ote::: ca~t for the par t.y-list. nationwide.
(6) Allm:ation of party-list seat.<;. -The partiE-s :;ha ll be ranked from highest. to lowest based on the number and percent agt: of vntes garnered during the election5. Only a maximum of three' 3 • ::c;:,ts may be aHowed per party. Seat!'i are allocated at the rate of one c 1 · :Oeat pt2r 2<:'r of total votes obtained. Unallocated seats shall be distributed among the parties which have not yet obtained the maximum three 1:31 seat:: pro->ided they have obtainl:!d at least 2
Membership of political parties, etc. in registration boards, etc.
:-' Under Section 8, it is no longer allowed for political parties, or organizations, including coalitions registered under the party-list system, to be r epresented in the registration boards, boards of election inspectors (which arc in charge of the conduct of elections and the pre paration of election returns), boards of canvassers (which proclaim the winning candidates on the basis of such returns), or other similar bodies. Such m~m bership is not deemed necessary to protect their political interest. Political part ies registered under the party-list'system have no individu al candidates. The representation of numerous parties in said bodies would lead to un·~uly proceedings. In view of the constitutional prohibition, such right ' lJnder R.A. ~o. 794: ; Sec. 2. th1m~of ), a party und1!r the party-list system must have r1:1<:eived "at least two per centum (2<;; J of the total vote;; CH •.,~ for the system" to qualify for a :
TEXTBOOK mr THE PHILIPPINE CONSTIT UTfO N
308
Sees. 9-10
cannot be gra nted by law. They a re, however, entit led to appoint poll watchers in accordance with law to protect t heir political interests. All political parties have thus equal protection. The law shall defi ne t he prerogatives of the watchers. SEC. 9. Unless o therwise fixed by the Commission in s pe cial cases. the e le ction p e riod sb all comme~c-~ uinety dRYs before the day of election and shall end t.hirty..days thereafter. Election period.
This section prescribes the election period . l;i shall commence 90 days befor e the day of election (national or local) a nd shall end 30 days thereaft er. It does n ot, h.o.1~r.. fix. an nn a lter.able .p.eriod..o.f90...dt:J.Y.~ for. . ru:u~.l~ s;ami?aign. 1 · The Commission or the Congress, in s pecial cases, may change the · duration of t he election period. (Sec. 9.) The limitation is designed t o minimize partis an political activities and expensive election contest.
'
,CJ'_rn.P-~Ig~~~-
The election period is not the sa me a s ca mpaign period. The former inclu des the 30 days a fte r the e lection while the latter can only be for a maximum of 9 0 da ys part of which is intended for t.he Commission to prepar e for t h e elect ion , t he pr inting and distribut ion of formR, appointm ent of mem be rs i n the registra t ion boards, etc. and other preparatory acts.
tfl'he campa ign period ma y thu s be less t han th e 9 0-day pre-election period.2 SEC. J.O. Bona fide candidates for a ny public office s h all be tree from an y form of harassment and dis crimination. Protection against harassment and discrimination.
The Cons ti tution recognizes the right of bona fide candida tes for any public office to be protected fr om a ny form of harassment or d iscrimination. The provision is in li ne with the g uarantee in the Bill of Righ ts that n o person sh a ll "be denied the equal protection of t he laws ." (Art. III, Sec . 1.) It is deemed n eceRsary in order to protect th e inter e st of candidates who d o
1 0cceila vs. COMELEC, 95 SCRA 755, J an. 28 , 1980. >under the Omnibus E lection C:ode, the per!od of campaign is as follows: Presiden tia l a n d Vice-Presidential election - 90 days; mt.!mbers of t h e BataRang Pambansa (now Con gress) and Local ell'ction - 45 days; and Barangay election - 15 d ays. The campa ign periods do not include the day before th.: day of the election. (Sec. 3, B.P. Big. 881.}
Sec. 1
ART. IX . ·- CONSTITUTIONAL COMM IS~fONS D. The Commissio n on ,\ud it
309
not belong to any existing political party. If the State guarantees equal protection to groupR of individuals such as political parties, it is but logical and a matter of elementary justice that the same protection be made available to individuals separately, without discrimina tion in any form.' Congress may, by legislation, provide sanctionH for this constitutional provision. It is the duty, particularly, of the executive branch and the Commission on Elections, to see to it that the above right is implemented.
SEC. 11. Funds certified by the Commission as n ecessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, sh a ll be provided in the regular or special a ppropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission. Automatic release of appropriations. The rule laid down in the above provision enhances the independence of t he Commission on Election s. It is obligator y on the pa r t of Congress to provide in the regular or special appropriations the fun ds cer tified by the Commission as necessary to defray the expenses for holding an election, plebiscite, recall, initiative, or referendum. Once approved. they shall he released automatically upon certification ofihe Chainna n of the Commission.
D. THE COMMISSION ON AUDIT SECTION 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, certified public accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been c andidates for any elective position in the elections immediately prece ding their appointment. At no time shall all Members of the Commission belong to the same profession. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without r eappointment. Ofthose first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commis· sioner for three years. without reappointment. Appointment to 1
Report No. 1, Committee on Political Parties. 1971 Con:;t.itutio nal Convention.
310
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. I
any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Membe r be appointed or designated in a temporary or acting capacity. Composition of the Commission on Audit.
It is composed of a Chairman a nd two Commissioners. (Sec. 1[ 11.) The 1935 Constitution provided for the General Auditing Office under the direction and control of the Auditor Genera l. Its conversion into a three~ man collegiate body in the 1973 Constit ution is designed to make it more r esistant to pressures from the legislative and executive branches and other offices of the government than an office headed by a singl e individual. The increase in membership 1s also deemed necessary to enable the Commission to cope with its ever expanding audit respons ibility which embraces every agency of the gove rnment a nd encompasses every governmental activity. Qualifications of members.
They a re the following: ( 1) They must be natural-born citizens of the Philippin es; (2) They must be at least thirty-five (35) years of age at the ti.ne of their appointment; (3) They must be certifi ed public accou ntan ts with not less tha n ten (10) years of auditing experience or members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years; a nd (4) They must not have been candidates for any electi ve position in the elections preceding their appointment. The r equirement that the members should either be a CPA or a lawyer is in order to enable them to carry out their functions and duties efficiently and intelligently without relying merely upon t heir subordina te employees. The very nature of their functions calls for competence both in the field of law and accountancy. At no time, therefore, sha11 all members of the Commission belong to the same profession . Appointment and terms of office.
The Chairman and the Commissioners a r e appointed by the Pr.esident with the consent of the Commission on Appointments for a term of s even (7) years without reappointment. The Commissioners first a ppointe d for a term of less than seven (7) years are likewise ineligible for reappointment. The Constitution also provides for the rotation of the appointments at regular and fixed intervals of two (2) years. A member appointed to any vacancy s hall serve only for the unexpire d portion of the term of the predecessor.
Sec. 2
ART. IX.·- CONSTITUTIONAL COMMISS£0NS D. The Commission on Audit
311
The. appointment or designation of any member in a tempo1·ary or acting capacity is similarly prohibited. 1 (Sec. 1[2].) Purpose of the Commission.
The .Co.mmission on Audit has been establi ..hed ai aR iRd9p91HlQnt--body govern.menU:e.Y.e.Due.s and expenditures are duly account.Qd lor an.d th.e..publiU.JJD.it'5 .are...not.disposed of except in conformity wjth the.. ilJH'P9Se.fq_r .which s\lcbJ\m.~.have..heen..ap.J:U:Qp.riate.d. It is obvious that Congress itself is not in a position to oversee and supervise the actual expenditure of each and every appropriation. (see Art. VI, Sec. 29( 1}.) That is where the Commission on Audit comes in. Envisioned as the fearless and efficient guardian of the public treasury, it is this office through which the people may be able to know whether or not the agencies of the government have used their money properly and honestly, in accordance with law and due regard to economy and efficiency. The overriding objective is to make the accountability of publ~c officers entrusted with receipt, custody or disposal of public funds a reality. The importance, therefore, of the Commission on Audit cannot be overestimated. ~_Sf}_e_ tQi!:.!h.~.:t
SEC. 2. ( 1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or -controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (h) autonomous state colleges and universities; (e) other government-owned or -controlled corporations and their subsidiaries; and (sl} such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. ;See Note 3. under R-SP-rtion 1.
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TEXTBOOK ON THE
PHILLPPIN.I<~
CONSTT'J'UTIO!\
Sec. 2
(2) The Commission shall have exclusive authority, sul1ject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and -promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive , extravagant, or ·· unconscionable expenditures, or uses of government funds and properties. Powers and functions of the Commission.
They are the followi ng: ( 1) I .a exam.in.e.. audi:t.... Md.~t.t.k..Q.~9..QJJ../11§. ·-· The Commission on Audit has the power, authority and duty to examine, audit, and settle all accounts pertaining to: (,). The revenue and receipts ofihe government or any of its subdivisions, agencies or instrumentalities, including on a post-audit basis the four (4) classes of entities mentioned; and (j~l) All expenditu res or us es offunds and property owned or held in trus{ by, or pertaining to tbe government, etc. 1 Where the ' internal control system of the audited agencies are inadequate, the Commission is empowered to adopt measures to correct the deficiencies. (Sec. 2[1] .) There is an auditing unit in every government office, agency, subdivision, or instrumentality all over the country;
(2) Ta.. a.c.t .as.££n.t.rru..£tr:..c..cu!!?:.~i11:g.9mc.~..Qf the government. -The Commission on Audit keeps the general accounts of the gov~"i-~ment and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (lbid.j Thus, th e Commission is made the official custodian of all government records of accounts. By this arrangement, the Commission is able to maintain a system of accounts that records all the transactions involving the col.lection of public funds , their payments into the treasury, and their expenditures and disbursements;2
'Under Pre&idential .D~!l~ree No. 1445 i.Governrnent Audi ting Code of the Philippines), its auciting responsibility includes non-gove rnmental entities subsidized by the government (e.g., firms with outstanding loans from govl'rnment linanci!1g inst it u t ion.;;!, those requi r ed to pay levies or government ~;hare, t hose which have received coun t.erpa r t funds from the governm ent, or those partly funded by donations through the gov'!rnment {e.g ., Commission on Population l POPCOMlJ, th e $;
Sec. 2
ART. TX.- CONSTITUTIONAL COMMISSIO:-\S
313
D. The Commission on Audit (3) l:o.cJ.e[il}e the scope of.its ~ud_U_ Q._!J:_d examiT].g_tion .. ~tc. -The Commission has exclusive authority to define the !":cope of its audit and examination and establish the techniques and methods required thereof. (Sec. 2[2].) This means that Congress is without power to enact laws on the matter. The aim of the Constitution is to elevate public sector auditing standards and to make techniques and procedures more effective and reliable so that they will be at least at par with external auditing in the private sector. This will require the application of the latest trends and developments in the auditing profession;
( 4) Xo.pmmulga..t_e arcoun~il]g_qi.J...cJ. _g_l!.fl..it_i!.l_g_r.u l es anq__rggy.l:illi!l.lHi. Such rules and regulations shall include those for the prevention as well as disallowance of irregular, unnecessary, excessive. extravagant or unconscionable expenditures or uses of government funds and p1·operty. (Ibid.) Under the 1935 Charter, in cases of expenditure;$ of funds or property which, in the opinion of the Auditor General. were irregular, etc., his duty was confined to merely bringing "to the attention of the proper administrative officers" such expenditures. So long a~ the transaction was legal, albeit irregular, etc., unwise or unsound, the Auditor General could not legally disallow it.
Now, a violation of the rules and regulations empowers the Commission on Audit to disapprove expenditures of public funds, making it a real guardian ofthe public treasury. Note that the rule-making authority of the Commission regarding the matter of preventing and disallowing irregular, etc., expenditures or uses of public funds is also made exclusive. This is deemed desirable to remove legislative and executive jnterference in this atea which may frust.rat~ the very purpose of the Constitution in entrusting the task of preventing such expenditures to the COA;3
(5 J '[Q_submiJ..g_n_an~Italf?ng,_ncig.J.rw...ort _g n.d..~C1ll11111md.m.eaaure.t;. It is this function of the Commission on Audit which will enable Congress to know how faithfully its appropriations laws have been carried out, and guide it in the enactment of the appropriations law for the following year. The report to the President will inform him of the manner by which the departments under him have used the funds allotted to their various administrative activities and thus enable them to tell whether or not their administration has been economical and efficient4 (see Art. VIII, Sec. 16. ); and (6J ];'..Q__p.~rfo.r.rr.J... Qther d_ytie8 and [U1};91iQ!l2t..- Under present law, the Commission on Audit has .also the function or authority, among others, to adjust and enforce the settlement of accounts subsisting between agencies of the governwent; to assist in the collection and enforcement of all debts and claims, and the restitution of all funds or the replacement or payment
3
1986 UP Law Constitution Proj~iCt. Constitutional Commis$ions, p. 38. Sinco, op. cit., p. 40i.
~v.G.
314
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S ec. 2
at a r easonable price of pr oper ty, found to be due t he government qr any of its subdivisions, agencies, or instrumentalities; to compromise or. release any claims or settle lia bility to any government agency not exceeding PlO,OOO.OO; to examine and a udit the books, records and accounts of public utilities in connection with the fixing of rates of every nature, etc. 5 (see ASec. 8.) l'he Commission on Audit is expressly directed by the Constitution to books.. of .accounts of Congress and publis h annually the itemized expenditures fox ~?.ch me mber .. (Art: VI , Sec. 20 .) ~di.t. the
Concept of examination, auditing, and settlement of accounts.
(1) Congress as the "fund .raising authority".. 9f the government raises money through taxation, bond issues, and other mean s. All the money thus raised are "covered" or t ur ned into the governme nt treasury that takes ch a r ge of their physical custody. The Commission on Audit examines the r ecords of the treasury sh owing these receipts, checks up the funds paid into t h at office , and a udits t h e books containing th eir entry. 6 (2) T o audit is to adjust; to allow or reject; t o ascert ain; to make a formal or official examination or verification of a n accou nt or books of accounts for the purpose of ascertaining their correctnes!'l. They are considered a udited or approved if supported by such writ t en evidence with regard to t he transaction recorded, as may, in the opinion of the Commission on Audit, be considered sufficient to establish the correctness of the individual entries and the truth of the accounts. The Commission is not t h e internal audit or of the government. It is r eally the sole external audit.or of all government depa rt ments and agen cies including government-owned or -contr olled corpor ations. · ·· (3) To settle m eans to establish , t o fix, t o free from uncertainty. It involves the making of a certification of the balances due in favor of or again st the govE>rnment. Thus, the Commision on Audit is said to settle an account when after review in audit the same is foun d in order and, hence, pronounced closed. This is a function which is n ot performed by private auditors. By settling accounts due to or from the government, the COA auditor r enders a decision on t he legality of claims not unlike t h a t exercised by a court . His conclusions are not m ere opinion s as in the case where he conducts an audit.
•s ee Sections :34, 35. :Hi, a n d 38, Presidential Decree N o. 1445 (June 11, 1978J; alRo Pres idential Der.ree No. 24::! (J uly 9 . 1973) which provides for administrative adjudication of claims hctween or among government offices. ~. G . Sinco, op. cit., p . 40H.
Sees. 3-4
315
ART. IX. - CONSTITUTIONAL COMMISSIONS D. The Commission on Audit
(4) An account has been defined as detailed statement of the mutual demands in the nature of debit and credit between parties, arising out of contract or some fiduciary relation. 7 As used in the Constitution, the term is limited to "something which may be adjusted and liquidated by an arithmetical process." Thus, the Commission has no jurisdiction to take cognizance of claims for unliquidated (undetermined) damages. 8
SEC. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction ofthe Commission on Audit. Exemption of any government entity or its subsidiary.
All entities of the gover:nm~~t .!i~.
SEC. 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition ancl operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or -controlled corporations, and nongovernmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency. It shall submit such other reports as may be required by law. Submission of report to the President and Congress.
The Commission on Audit is required to submit to the President and Congress, within the time prescribed by law, an annual report of the financial condition and operation of the Government, its subdivisions,
7 Bouvier's Law Dictionary, p. 167. acompania General de Tabacos vs. French and Unson. 39 PhiL vs. Auditor General, 94 Phil. 868.
:~4:
Phil. Operations, Inc.
1 The late President l!'erdinand Marcos. under hi.> lawmaking power, exempted many government-owned or -contl·olled entities from COA jurisdiction giving rise to the suspicion that it was done to facilitate or hide illegal expenditure:> or diversions of their funds and other assets. Millions of pesos of government funds from the National Treasury were found to have been siphoned by the former regime to various corporate subsidiaries which were placed beyond COA audit.
316
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 4
agencies, etc., including non-government entities, subject to its audit. 1 (see Sec. 2LlJ. ) It is also required to recommend measures to improve the efficiency and effectiveness of the Government and its s ubdivisions, agencies, and instrumentalities, etc. and to submit s uch other reports as may be required by law. - oOo-
1.lt.A. No. 7226 (.March 12, 1992) reqnires the Commission on Audit to submit to Co ngress Annual Reports of amounts obligated, warrants issued, and expenditures made in each municipality, province nnd city by National Government agencies and instrumentalities, incl uding government.-owncd corporation~; .
Article X LOCAL GOVERNMENT GENERAL PROVISIONS SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as here inafter provided. Meaning of local government.
The term. loca l g ouernrner:.t r efer s t o a political subdivis ion of a n ation or s tate which is constituted by la w and has substantial control of local affairs, with officia ls elected or otherwise locally selected.l ( 1) In the Philippines, it refer s tv provinces. cities. municipalities, a nd barangays. 2 ( 2) Congress may, by law, cr eate special rnNropolitan pol i ti~al subdivisions subject to a plebiscit.e as set forth in Section 10 . (3) The Cons titution directs the creation of a utonomous regions for Muslim Mindanao and for the Cordilleras by an organic act to be en acted by Congress for each autonomous r egion subject to a plebiscite as provided in Section 18. Importance of local governments.
A separate article on local governments in the Constitution is a recognition of the value of local governme nts as viable organs for the perform-
S ee Journal of Local Admi nistration Overseas (July, 19ti2), p. 135. i!>residential Decr ee No. 557, (Sept. 2, 1974) declar es all t.hen exi;;ting barrio> an d barrioo t her eafter to be created as barangays. Bar angays, referring to barrios. should no t bE! confused with barangays, refe r ring to citizens assem blies created unde r J>re>'.iden tial Decree Nos. 86 and 86-A. barangay, as the ba?oic p olitical unit, userves as the primary planni n g and implementing unit of governmen t poli· cies, plans, programs, projects, and activitie~ in t he community. an d as a forum wh erein the collective views of the people m ay be cr ystallized, expr essed. ttn d ~:onsidered , and wher e dispu tes may be a micably settled." !Sec. 3R4 t h ereof. , 1
3 17
TEXTBOOK ON THE PHILIPPINE CONSTITUTlON
318
Sec. l
ance of local functions. As local affairs can best be regulated by the people in the locality rather tha n by the central a uthority, the grant of local autonomy to local units is considered extreme ly necessary for a more efficient local government system.3 Territorial and political subdivisions of the Philippines.
Section 1 defines the territorial and political subdivisions or ty1its of local government in the Philippines. Provinces, cities, municipalities, and barangays are political bodies corporate endowed wi th power s to be exercised by and through t heir respective local governments conformably with law. Provinces are composed of several municipalities a nd (in some cases) cities. Cities at·e urban centers of population. Barangays a re units of cities (except a few where there are no barangays) or municipalities in which they are situated. (see Sec. 4.) As they are now provided in the Constitution, there must always be political subdivisions known as provinces, cities, municipalities, and barangays. The creation of special metropolitan political s ubdivisions and autonomous regions for Muslim Mindanao and for the Cordilleras by...law must comply with the provisions of Sections 11 and 18, respectively. Dual status of local governments.
(1) As pofi ~!g.zL[Jgdies_.CJ.Q.fpgrate. - By statutory provisions, local governments are considered political bodies corporate fo r the administration of the affairs of the community within their territorial boundaries. As incorporated entities, they a re classi fied as municipal or public corporations and as such possess dual character: (a).~"!_. th~jr_pub lic .E!'.Bf!Y.~_rn._f!.'l:..e ntg.l~p.e!:.t... -They are agents of the State, and for that purp~e .~xercis e by delegation a part of the soyrrr~ty of the State, such as in the impo~ition and collection of taxes, preservation of peace and order , and the establishment of schools; and
(b) l'Lth? ~t:..P.T'.f iJ.q.,_l,g_ pr _c.o.r.J}.tlmlJLJlEPect.. - They are mere legal entities (similar to a business corporation) performing fun ctions not strictly governmental. They act as a corporate body for their own purposes and not as subdivisions of the State. It is in this character that they operate, for instance, public utilities (e.g., electric, waterworks, etc.) and public mar kets. Underlying (2) ... ._....... ,.._,., . --"'test. --··-..--- The underlying t est of whether an act of a local government I S a n act in the exercise of a "governmental function" or is a "corporate act" is whether the act perform ed is for the common good or for
3
1970 UPLC Constitution Revision Project, p. 700.
Sec. 2
ART. X. - LOCAL GOV ERNMENT General Provisions
319
the special benefit or profit of the corporate entity. 4 For th_e_ (i_r~t..i1.C..t..e.nj~.immunity frQm 5 (sec Art. XVl, Sec. 3.) suit. . -··.
SEC. 2. The territorial and political subdivisions shall enjoy local autonomy. Meaning of local autonomy.
Local auton.
local govE:rnment units so as to best serve the interest and promote the general well-being of their inhabitants. 1 By express constitutional mandate, enjoyment oflocal autonomy by the territorial and political subdivisions , i.e., all government units including the two (2) autonomous regions, is now a basic state policy. (see Art. II, Sec. 25. ) Meaning of decentralization.
& .c:.atrajjzati
The Philippines remains a unitary State. (see Introduction-B.) However, t he State is duty-bound to guarantee and promote the autonomy of local governments ensure their fullest development as self-reliant com~uni ties and qw~e. them more etfectiye partners in the pursujt of uatj oni;iJ_ development a'h d progress. ,,
•o
The following reasons have been advanced in granting local aut onomy: (1 ) J.mp_ortg,.nq,~ ..of..locq,l sq_l.y_(iQ.f!$.. to £q{;ql. pr:.Q.b.lems. - Local res idents are the persons who can best understand their own problems. They see their local conditi ons everyday and realize their importance as well as the urgency of improving them. On the other hand, the national government is often too involved i.n its own problems to devote its time to local needs;
'A~;
a body politic and corporute, every lo c~:~l government unit ~hall exercise its powers as of the govt~rn mcnt and as a corporate: entity represe nting the inhabit· ants of it:; territory. (SI!c 15, R ..'\. Xo. i160.'• 'City of Manila v,;. Intermedia.te Appellat~ Court. 179 SC'RA 428 (1989).
a
political:> ubd~visi nn
'KVoice Primer" l l972 P3mphleu. /bid.
2
TEXTBOOK ON THE PHlLIPPINE CONSTITUTION
320
Sac. 3
(2) !Jeedfor orderb.m~JJ.C!ifg_'f!l.gTJ:LO.t:lfJ.r;q./ . qffair:l$,..- A hea lthy "division of labor" and close cooperation betwe en the national and the local governments result in an orderly management of both national a nd local affairs. The national government can devote rnore time to the truly national problems since the loca l governments are adequa tely empowered to cope with their own needs and problems ; (3)~esira bility of self-reliall!:£4 Self-reliance is the ability to cope with one's problems by the use of its own r esources a nd skills. Decentraliz ation strength ens this capability of local governments by giving them greater opportunity to govern themselves. This self-reliance can encourage civic enthusiasm and initiative for community development with a minimum of assistance from the national government;
(4.l ..jl~ed_for fullest.. de.velo_p.me_ut. af.l.oca.l,gou,ernrnents,. - With greater powers and functions, loca l governments will no longer be restricted in achieving their goals. They are in fact provided with almost limitless opportunities to a chieve their fulle st development. They will obtain for t he local residents adequate community facilities and services on education, h ealth, and recreation; and (5 J L"!-na,t_e..d-~$ire_ fqr. s~tf':gouei,n!!JJll.l:L.- The desire for self-government has its r oots in the past and has always been a nationa l goal. Filipinos l1sed to live in s mall, self-t·eliant communities called barangays before the S panish era. Even the Malolos Constitution stressed the need for local units functioning "upon the basis of the most ample decentralization and administrative autonomy."J
The pure ly unitary system was imposed upon us by our colonizers as politically necessary to have effective control and administration of the country. While rejecting full federalization, the Constitution has, however, provided t he maximum local self-rule possibl e, consistent with the policy to g r a nt genuine and meaningful autonomy to local governments, including tlle a utonomous regions. (see Art. II, Sec. 25. ) ....
Note : There is a strong clamor from se veral sectors to amend t he Constitution to adopt a fed eral system of government. (see Int roducti on-B.) SEC. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system ofdecentralization with effective mechanis ms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. 3
lbid.
Sec. :l
ART. X. -
LOCAL GO\- ER="MENT Provisions
321
G+.~ncral
Enactment of local government code.
This section requires Congress t o enact a Local Government Code containing provisions wh ich: (1) Provide for a more r esponsible a nd accountable local government structure instituted through a system of decentralization (supra_j with effective mechanisms of r ecall, i nitiative a nd ref~rendum;
(2) Allocate among the differ ent local unit s t heir powers, responsibilities, and resources; (3) Provide fo r the qualification s, election. appointment a nd r em oval, term , salaries, powers, a nd fu nctions, and duties of local offici als; and
( 4 ) Provide for a ll other m atters r elating t o the organization and operation of t he local units. R.A_ No. 7160, a pproved on October 10, 1991. is pr..:-sently t he Local Government Code. It took effect on o!l,gnuary 1. 1992.. It applies to a ll local governm en ts , a n d to the extent therein provided . to ot1icials. offices or agencies of the national government. ' Mechanisms of recall, initiative, and referendum.
(1) B.e_call.o[~J; is the legal process by which the registered voters of a local government unit remove, for loss of confidence. elective local officials . It is the method of removing persons fr om office by t he subm is sion of the question as to whether or not they shall be rernC'ved , to the qualified voters at a n election held for the p u rpose or at a gener al election. 2
The principle u nderlying recall is the ciTecti ,·e and s peedy remedy on the part of the people to r emove an official who is not performing his functions to the satisfaction of the people. This reserved power serves as a constant warning to elected officials against misdemeanor. 3 Knowing that they could be called u pon to face the people and to submit an accounting of their performance in office, local officials will be expected to d o t heir j obs with t.h e highest degree of efficiency and in tegrity. (see Art. XI , Sec. 1.) There are, of course, other modes of terminating the employm ent of a loca l official. (2 1tfui.t.ig.JJ.Y.~ is the legal process wher eby the registered votP.rs of a local government unit may d irectly p ropose, enact, or amend a ny law or ordinance 4 at polls call ed for t he purpose independently of the regularly constituted local legislative body.
'Section 4 thereof. Sections 69-75. Local Gon~rn mt>nt Code-. ~The Manila Times Guide to Con;titutiona l Am ~ndm !!nts 11973 Constitution), pp. 35-37. •Sec Sec. 120, Local Gove-rnment Cede. ~sec
322
TEXTBOOK ON THE PHILIPPINE CONSTITl.lT10N
Sec. 4
(3) JJ~ftr~E:c!.l!:.'!.~ is the legal pro~.;ess whereby the regi:stered voters of the local governme nt unit concerned may a pprove, amend, or rej ect an or dinance enacted by a local legi slative body when the question is submitted to them for decision." All three (3) processes are conducted thr0ugh procedure similar to election. T ht first two (2) commence with a petition signed by a cer tain percentage of duly registered voters of the local government unit concerned. They are then subjected to a poll for approval or dis::tpproval of the voters!'
SEC. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to compon ent b a rangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. Supervisory power of President over local governments.
While the President h as control of all the executive departments, bureaus and offices (Art. VII, Sec. 17. ), h e has only the power of general supervision over all local governments. The President exercises only delegated legislative power over local governments .
.Ca.a.tr..ol. has a broader meaning. It implies the power to manage, direct or govern and includes the power to supe rvise. Supervi sion means the power to oversee the performance of work by a person or gro up of persons and coordinate their activities in the implementation of one's own or another's instructions or policies. The President has no power to interfere in the operation of local governments or to set aside decisions of t.heir heads and substitute his own judgment for the latter except as otherwise provided by law. Note tha t the power given over local governments is not even "supervision'' but the lesser power of "general s upervision." Supervisory power with respect to component units.
Component cities and municipa lities a re subordinate to a province while barangays are subordinate to the city or mu,nici pality of which they fo rm a part. Section 4 dir ects the provinces (through their provincial governments) to see to it that the acts of their component units, the cities a nd municipalities, be within the scope of their prescribed p!•wers and func tions.
5 See Sec. 126, Ib id. •see Sees. 70, 122, Ibid .
Sec. f>
ART. X. - LOCAL GOVERNMENT General Provision;;
323
Likewise, cities and municipalities (through their city and municipal governments ) shoulder the same responsibility with respect to their component units, the barangays. This power of s upenision of the superior local units is limited to insuring that. the acts of the inferior units are within the scope of their assigned powers and functions as prescribed by law and the Constitution.
SEC. 5. Each local government unit shall have the power to create its own sources of r e ve nues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the b asic policy of local autonomy. Such taxes, fee s, a nd charges s h a ll accrue exclusively to the local governments. Taxing power of local governments constitutionally granted. (1) f'Jxists _in
Undoubtedly, this provision enhances the autonomy a nd independence of local governments. It is quite t rue that the degr ee of freedom possessed by a local government to determine and implement itl:> own policies depends to a great extent upon its financ ial dependence on the national government. (2) ;N.ot a.b.wi.JJ.t.e. -· The t axing power of local governments is not absolute becaust~ aside froin constitutional restrictions (e.g., taxes m ust be for a public purpose, uniform, reasonable, etc. ), Congress may still provide guidelines and ]imitat ions on its exer cise (Sec. 5.) such as prescribing t he maximum rate of taxes. But such limitations must not dimin ish the au· tonomy of local government units for it is a basic policy of the Constitution to ensure their autonomy. 1 (Art. II, Sec. 25.)
:The Local Gove m menl Code delineates a n d limits the t axing powers of the different local govenun en t un\t(;. It also governs t he appraisal and assessment of real pr operty for purposes of taxatio n by pro•incc;;, cities, and mt1 n icipal ities as well as the levy, collection and !idministration of the re al property tax. (Sees. 128·283 thereof.}
324
TBXTllOOK ON THE PH ILl PPINE COl'STITUTlUN
Sec.c;. 6-7
Other fund sources of local governments are provided in Sections 6 and 7.
SEC. 6. Local government units shall have a just share, as d e tennined by law, in the national taxes which shall be automatically released to them. Automatic release of share of national taxes.
The law shall determine what will be the just or equitable share oflocal government units in the national taxes. Once determined and collected, the same shall be automatically released to them. The old system of gra nts allowed local governments to retain a portion of certain national taxes such as income t ax which were collected in the local units. This system proved inequitou.<; to rur a l local units where very little income and sales taxes were coJlected. The grant scheme was later revised by consolidating a ll internal revenue taxes (i.e., taxes other t han customs duties) anrt allotting a certain percentage (i.e., 20%) to local governments. However, the local governments did not rece ive the full amount allocated by law because the national government through various presidential decn~es limited the a mount of grants such that they only received an a verage of a bout 12% from 1975 to 1980. Section 6 mandates the automatic release of grants to local goveraments. 1
SEC. 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areast in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. Share In proceeds of utilization and development of national wealth.
It is on ly logical and fa ir to gi ve local governments a share in the proceeds of the utilization and development of the national wealth (e.g., forest, minerals) withi n their respective a reas," including sharing them with their inhabitants by way of direct benefits (e.g., reduction in the rates of certain local taxes, fees, or charges by r eason of the consequent increase oflocal income). The Constitution has in mind local units blessed with rich natural resources but with little income to meet t heir needs and yet they were not allowed to participate in the proceeds de rived from the utilization a nd development of said r esources because they were declared belonging e ntirely to the national government. '19H6 L'PL Constitution Revision Projtlct, Local Government, pp. 51-52.
See. 8
AR1'. X . - LOCAL GOVERNMENT General Pro\'isions
3
Now, local governments shall be entitled to receive their equitable share from the local proceeds as provided in St>ction 7 and they cannot be deprived of this sharE:! although Congress can provide by law the manner by which they shall be f>ntitled to receive it.
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall sen·e for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an inte rruption in the continuity of his service for the fuH term for which he was elected. Term of office of elective local officials. (1) Term limits. - The term of office of barangay officials shall be determined by law. 1 In the case of other elective local officials. their term of office shall be three (3) years, and they cannot serve for m <.lr~ than three C3) consecutive terms. Voluntary renunciation of office for any length of time shall not jnterrupt the continuity of the service for tht! fuJi term for which an elective offici al was elected for the purpose of th e prohibttion again;;t serving for more than nine (9) years continuously . •::ee Art. Yl. Sees. 4. i: Art. V11, Sec. 4.)
The three-term limitation refers to term of offict? for the same position for which the local officials were elected. lt does t~ot include !Succession to an office. For example, a Vice-Mayor who became Mayor by operation of law can serve as elected Mayor for three (3) consecutive terms, the first term by succession not being included for purposes of the limitation. ( 2) Reasons. - The prohibition will help eliminate the so-called "political wardlordism" in provinces, cities and municipalities which in the past had been a soun.:e of abuse and, therefore, lawlessness, and give young and enlightened leaders, who have no formidable political machi nery or vested interests to sp~ak of, a chance t.o be elected. Furthermore, tenure in many cases has much to do wi.th efficiency of an elective official. Experience has shown that as the tenure becomes longer, the official becomes more and .more inefficient because he becomes more isolated from the electorate; and the knowledge that he will be reelected anyway because he controls the votes, makes him negleet his duties or indifferent to the needs of his constituents. (3) In the case of barangay officials. -The limitation is not imposed by the Constitution for the reason that the dang1~r that the evil sought to be
1The term was changed from three \3 .1 years to fi\'e 15> ye!lr~; by R.A. No. 8524 (lo'eh. 14. 1998) which amended Seetion 43 ofR.A. No. 7160, otherwise knl)wn 11!1 the Local Government Code of 1991.
TEXTBOOK 0!1< THE PHll..IPPINE CONSTITUTION
326
Sees. 9-10
avoided will arise is slight. Their powers are very limited and usually their jurisdiction covers a small area. In the public mind, being a barangay official is sometimes a sacrifice because he receives no or little compensation and the position hardly offers opportunities for personal aggrandizement.
SEC. 9. Legislative bodies of local governme nts shall have sectoral representa tion as m ay be prescribed by law. Sectoral representation in local legislative bodies.
Section 9 seeks to enhance greater participation and representation by the people in policy-making on the local government level. The provision is consistent with the provisions of Sections 15 and 16 of Article XIII (Social Justice and Human Rights) on the role and rights of people's organizations "to pursue and protect x x x their legitimate and collective interests and aspirations through peaceful and lawful means" and "to participate at all levels of social, political and economic decision-making."
SEC. 10. No province, city, municipality, or bar a ngay may be created, divided, merged, abolished, or its b oundary substantially altered, except in accordance with the criteria established in the local government code and subject to a pproval by a majority of the votes cast .~ a plebiscite in the political units directly affected. Creation, division, merger, etc . .. of any local unit.
(1) Conditions. -By legi slation or any other act of government having the force of law, any local government unit may be created, divided, merged, abolished, or its boundary s ubstantially altered provided: (a) The change is in accordance with the criteria (e.g., number of population, geographical area, income, etc.) established in the Local Government Code; and
in
(b) It is approved by a majority of the votes cast in the plebiscite the "political units directly affected." Where a locel unit (e. g., barangay) is to be segregated from a parent unit (e .g., municipality), the voters of both the parent unit a nd the unit to be segregated should be included in the plebiscite. 1 (2) Aim of the provision. - The aim is to avoid the indiscriminate practice in the past of breaking up provinces into several provinces, merg1
Padilla, Jr. vs. Commission on .l::lections, 214 SCRA 735.
Stlc. 11
327
Al-rf. X. - LOCAL GO\'t;H.:-;~tENT General Pro,·i;J·;n:;
ing two or mort; municipalities into one. creati ng new cities, etc., without any definite criteria. In many cases, the creation or abolition was dictated less by the economic and social conditions of the loc;ality and more by political reasons. Since the creation, etc .. art basic to local government, it is also imperative that these acts be done not on1y by Congress but also be approved by the inhabitants of the locality concerned.
By giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of gerrymandering" and minimize legislative action designed for the benefit of a few politician:;. Hence, it promotes the autonomy of local government units.
SEC.ll. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be c r eated shall be limited to basic services requiring coordination. Creation of special metropolitan political subdivisions. (1) Basic autonomy of component cit it's and !•:unicipa!iti,• . .: r.etaincd. In view of the criticisms against the inclusion of mt-tropo lit a n gc•wrnm~nts as a new form of local government, the Constit t:.t~ ·:.'r. . a~ an alternati\·e. provides for the creation of special metropolitan J:·•.J!itical subdivisions, subject to approval in a plebiscite as set forth in Section 10. The component cities and municipahties shall retain their ba.r;ic autonomy and shaH be entitled to elect their own local executives and !o:-gislative assemblies , ~ jurisdiction of the metropolitan authority that wi ll thereby be created being limited to basic services requiring coordination ;
(2) Function limitc~d to coordina ting basic sert,ices. - The metropolitan authority is not strictly a local government unit but merely an administrative agency to coordinate basic se rvic~
·· It is the ac t of altering the voting districts !;o that they
unfairly
ar~·an ged
for the mitiated by Elridge Gerry, Governor of Massac huseti:;. lB•1uvier's Low Dictionary. .\ In accordance with this pra<:ticc. if a pro.-inc<:. for instance, were to be given ftvc ,·5 • district.;, they would be so distributed as to creat(' as many !:lafe dio;trirt~ fnr the ruling pa rty as possible and to crowd the electorate suspected of minority lea nmg~ in ihe few~.~:uble districts without regard to the requirement~ of gcograph~· and .;:o nv~'ni~nce. '·Taft ada and Ft-rnando, op. fit., p. g21. I !lH\
b enefit of a particular pnrtr or candidate. This practice wa!': supposf:'d to have
be~n
TEXTBOOK ON THB PHlLIPPINE CONST11TTION
.328
Sees. 12-13
tive because most of them have a mutually r einforcing effect. For example, improving primary health service and water !'iupply simultaneously will have greater impact than improving them separately.
SEC. 12. Cities that are highly urbanized , as determined by law, a nd component cities whose charte r s prohibit their voters from voting for provinl'.ial elective officials, shall b e independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be d eprived of their right to vote for elective provincial officials. Component cities and highly urbanized cities.
A city may be either component or h ighly urbanized. 1 Component cities form part of the province. Voters of component cities which are under a province cannot be deprived of thei1· right to vote for elective provincial officials . (Sec. 12.) (1)
(2) Highly urbanized cities, as determined by law, as well as component cities whose charters prohibit the ir voters from voting for provincial elective officials, are independent of the province (/bid.) in which they are geographically located. They are not subject to the supervisor y powers of the province. This is as it should be because of the complex and varied problems in a highly urbanized city due to a bigger population and greater economic activity which require greater autonomy. Corollary to independence is the loss of the right to participate in the election of elective provincial officials since th ese officials do not cease to exercise a ny governmental jurisdiction and authority over said city.
SEC. 13. Local government units m ay group themselves, consolidate or coordinate the ir efforts, services, and resources for purposes commonly beneficial to them in accordance with law. Grouping of local government units.
Section 13 str esses the need for collective action by local government units for solving common problems economically and effectively. It authorizes them to: (1 ) group themselves, which in a l~ose sense suggests a confederation or association of local executives without any diminution of local powers, or (2) consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.
1
Section 451, Local Gove rnment Code.
See. 14
ART. X. - LOCAL GOVERX:\fF.N'f General Provi.;;ion;;
329
This provil:ljon stren!:,rthens and promott-s the autonomy and independ· ence of action of local units in undertaking common activities (concerning health, flood control, pollution abatement. crime prevention, traffic, and other services which transcend local boundarieEl) by using economies of scale for the general welfare of their inhabitants even without assistance from the national government. The Constitution leaves it to the local units to decide for themselves the services or functions they can better perform in concert.
SEC. 14. The President shall pro~;de for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other govern· ment offices, and representatives from non·governmental or· ganizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. Regional development councils or other similar bodies. To further strengthen the local govern~tO-~~=-. :~.t- President is enjoined by Section 14 to provide for regional developm~r:: council:- or similar bodies composed of local government officials and h(:,, d,:. _.:- C.t>partments and other government offices and representatives from th~· r:•:·:1·go\·ernmental org-ani· zations within the regions. The purpose mu5: ::--:- to effect administrative decentralization as a means to strengthen tnt- au:.jnomy of the units in the region and to accelerate their economic anci 5·~·C1al growth and development. In the past; regional or field ag~ncie;;; oft fit- government, created ostensibly to facilitate inter·governmental trar. ~ac~ions, served more as instru· ments of national control, rather than of ~t-:Y:ce to local governments and communities. Genuine local autonomy r~q·.t!res that the local units con· cerned should be allowed to participate ir-, the formulation and implementation of programs and projects admini~tered by regional offices of the national government which are distinct on each level (barangay, municipality, city or province) of local gove-rnment. For !:!xample, on the municipal level, the mayor should have a say with respect to proposed services in the area such as rural health centers, waterworks and irrigation systems, police and fire protection, schools, and social welfare. Under certain national guidelines, local executives may be empowered to appoint field functionaries on each le,·el and to approve programs of a department as they apply to their respective areas. With greater powe.rs, the local units can hopefully cope with local problems without being overly dependent on the services of the national government.
330
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 15
AUTONOMOUS REGIONS* SEC. 15. There shall he created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural h eritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Creation of autonomous regions.
Section 15 a uthorizes the creation of only two (2) autonomous regions, one for Muslim Minda nao and a nothflr, for the Cordilleras as distinct territori1ll and political subdivisions of the Republic ofthe Philippines. (see Sec. 1.) It is intended to meet the demand for autonomy that has been aired for several years now by Muslims in Southern Philippines a nd only fairly recently by some leaders of the Cordilleras in Northern Luzon. 1 It is also expected to speed up the economic development of the regions. Section 15 providt~$ the constitutional basis for the existence of autonomous regions. Som e quarters have questioned the validity of the creation of the two (2) autonomous regions (Regions IX and XII.) in &mthern Philippines for alleged lack of constitut ional basis. The matter is now laid at rest. 2 Composition and condition for creation of autonomous regions. (1 ) As provided in Section 15, they shall con sist of provinces, cities and municipalities and geographical areas which share common and distinctive historical and cultural heritage, economic and social stru<.:tures, and othe r relevant <.:haracteri st ic~;;.
*New provisions.
'Muslim Mindanao does not rctcr to the entir" region ()f Mindanao but to areas in the region which are predominantly populated by Mu!ilims. Only Maguindanao, La nao del Sur, Tawi·Ta wi, an d Sulu voted "yes" to become an autonomous region . The Cordillera Region is composed of Benguet, Mountain Province. Baguio City, Jfugao, Kalinga , Apayao and Abra. Kalinga and Apayao used to be one provinc-~ known as Raling!!·Apayao. RA. No. 48o8. providing for t h e creation of the Cordillera Autonomous Region !CAR). was r~jected !Jy the Cordillera voters in the plE•biscite hold on March 7, 1998. In the Augus t 14. 2001 plebiscite calleci for by R.A. No. 9140 (June 22, 2001) which amcndl!d R.A. No. 6731 (us amended by R.A. Ko. 9054.), the Organic Act which crcatod the au tonomous region, only Rasilan and Mara wi CiLy voted to j(,in t.he Autono· mous Region in Muslim Mindanao tARMMl. Sec~tions to 14 of Art1cle X are the gt:ner al provisi(l[tS applicable to aU local government units regar ess of regions while Sections 15 to 21 pertain only to the two (2) special autonomous regions. I as only the provincf:' ofifugao t.h1:1t voted for the autonomou;;; region; hence, it bee~:~ me a region f one ( 1) province. However, since 11 region impliell more t.han one city or province, it is not constituLionally allow able to constitute 1:1n autonom ous region of only one ( 1l province. 2 1986 UPL<.: Com;titutio n Revision Project., Local Government, pp. 53·fi4.
Sees. 16-18
ART. X. -LOCAL GOVERNMENT Au t onomous Region::;
331
(2) Furthermore, the creation of an autonomous region shall be accomplished "within the framework of the Constitution'' and subject to the "national sovereignty as well as territorial integrity of the Republic of the Philippines." This condition is in effect a declaration prohibiting secession by any autonomous region from the Philippines or dismemberment of any territory in derogation of Philippine sovereignty.
SEC. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. General supervisory power of the President over autonomous regions.
Section 16 merely reiterates the existing power of general supervision of the President over local governments. (see Sec. 4. ) This power extends to autonomous regions and is to be exercised by the President "to ensure that laws are faithfully executed," consistent with the constitutional policy to ensure the autonomy of local governments. (Art. II , Sec. 25. )
SEC. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Residual powers vested in the National Government.
f?.e§idu(ll pQ~,Uers or powers not given by the Constitution or by law to the autonomous regions are vested in the national government. The reason for this is that local governments including autonomous regions are mere creatures of the State operating under the principle of granted powers. In other words, powers (e.g., national defense, foreign relations, currency, etc.) not granted to them, either expressly or by implication, are deemed withheld and cannot be exercised by them. The retention of residual powers in the national gov~mnwn t is neces· sary if the "national sovereignty as well as territorial intej?:rity of the Republic of Philippines" (Sec. 15.} is to be always mainta ined .
SEC. 18. The Cortgress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi· sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive depart· ment and legislative assembly. both of which shall be elective and representative of the constituent political units. The or· ganic acts shall likewise provide for special courts with per·
TEXTBOOK ON THE :PBILTPPJN.t<; CONSTTTUTIO.fli
332
Sec. 18
sonal, family, and property la w jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall b e effective when approved by a majority of the votes cast by the constituent unit& in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Enactment and ratification of an organic act for each autonomous region. (1) Procedure. - Sect ion 18 states the procedure for th e establishment of autonomous regions. Congress is mandated to enact an organic act to be proposed for each autonomous region or the basic law by virtue of which it shall exist as such, defining its organization and powers. (Sec. 20.) (a ) In line with the constitutional policy giving recognition to the right of the people and their organizations to participate at all levels of social , political and economic decision-making (Art. XIII, Sec. 16.), Section 18 requires that the organic act mu£>.t be formula ted with the assil:ltance and participation of a regional consultative commission com posed of representatives appointed by the President fro m a list of nominees from multi -sectora l bodies. (bl It also requires that both the execu tive department a"'ld legislative assembly of each region shall be elective and representative of the constituent political units. (Sec. 18, par. 1.) (c) The intent ion is to insur e t he r epresentative ch a racter of the regional government whose executive and legislative officials are elected by popular vote. The proposed organic act shall be submitted to the constituent units for approval in a plebiscite called for the purpose. The creation of the autonomous region shall be effective wh en approved by the majority of t he votes cast in the plebiscite but only th e units votin g favorably shall be included in the autonomous region. (ibid., par. 2.} (2) N eed fi>r an organic law. -·There is a need for a charter or organic law specifically applicable to each particular region, which shall define the basic structure of government for the autonomou s region . Such law will allow some f1exibility in the goYernment structure for each autonomous region, taking into account the peculiar conditions therein and the people's ethnic, linguistic, r eligious, and other differe nces. It will require some study and research on the part of Congress in determining the implementing details. Moreover, t he ratification of the organic act, will determine th e actual commencement of the legal existence of every autonomous r egion being created. 1
/bid., p. 57 .
1
Soc.;. 19-20
AHT. X. - LOCAL GOVERNMENT
333
Autonom ouc; Rl·gi «m<;
SEC. 19. The first Congress elected under this Constitution · shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Time frame for the passage of organic acts.
The Constitution directs the first Congress t o be elected under the new Con stitution after i t~ ratification to pass the organic acts for the autonomous regions in Muslim ~'lindanao and the Cordiller as (see Sec. 18, par. 1.) within 18 months from the time of organization of the Senate and the House of Representativ('s. Thereafter, the organic acts shall be submitted to a plebiscite called for the purpose for approval by the constituent units. (see Ibid. , par. 2. I
SEC. 20. Within its te rritorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shaD provide for legislative powers over: (1)
Administrative organization;
(2) Creation of sources of re\'enues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning de velopment; (6) Economic, social, a nd tourism developme nt; (7) Educational polic ies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorize d by law for the promotion of the general welfare of the people of the region. Legislative powers of autonomous regions.
The organic act of a n autonomous region sha ll pro,·ide for legislative powers to be exercised, within its territorial jurisdiction. over the matter s enumera ted in Section 20. The grant of powers is subject to the provisions of the Constitution and la ws enacted by Congress. Legislative powers ~r '.!D~~t.~:t:£)...Q.ther tl:t~!! .. t_Q.qs~ em.l.u:ne;rated.. .fr.om_ ~ o.s.-ilJ .tQJ.BJ. c.anno.t ~ ~.?!:e.t.<.;i-'l~~L~x-~~.Q_t__~'hen authQ.ti~.d._bLLlli as provided in No (9~. An autonomous re~tion has a lmost complete adminis trative and legislative autonomy within its jurisdiction owr the ma tters enumerated. For
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
334
Sec. 21
example, under No . (4), the people can follow their own personal laws and cu stoms which includo divorce. By making their own educational policie& (No. 7), they ca n decide on t heir own educational system virtually independent from the overall policies laid down by the Department of Education, Culture and Sports.
SEC. 21. The preserva tion of p~~g~....!P.~-~_rde~. within the region s shall b e t he responsibility of the lp~.al polic.e...ag~s which shall be or g anized, maintained, s upervised, a nd utilized in a ccordance w ith applicable la ws. TheA~~!)~~ -~_nd secl,!!jty of the r egions sh all b e the r espon s ibility of the ~llilnaLG.o.vern.-. . ID-~~~!..-
Preservation of peace and order within the regions.
This responsibility is entrusted to the local police agencies to which it pr operly pertains. To insure its proper dischar ge, such police agencies shall be organized, maintained, supervised and utilized in accordance with applicable laws.
The defense and security ofthe regions shall be the responsibility of the national government. For obvious reasons, only the national government should have j ur isd iction over such matters. -oOo-
~rticle XI
ACCOUNTABILITY OF PUBLIC OFFICERS (§ECTION 1. Public office is a public trust. Public officers ~nd employees must at all times b e accountable to the people, serve them with utmost responsibility, integrity, loyalty, and effi• ciency, act with patriotism and justice, and lead modest lives. Meaning of publi c office and public officer.
public f)fficP. 1-" the right. authority , and du ty created and_sonf~rred by law 1 hy which, for a gi\·en period either fixed by law or enduring at the pleasure of the appointing power, an individua l is invested with some portion of the sovereign functions of the governme nt to be exercised by him
t'A
for the benefit of the public. The individual so in\'ested is a public officer. 2 Nature of public office.
~ ~_pu})lic.Qffl~~. i.s_g_,eu.bliUc.H,U.
~~U~11.0L ..'.!. prop(?r.ty. The holder of the office may not claim \·ested right in it which may not be disturbed by legis lation. Any offict' l except when created by the Constitution ) may be abolished by law unles.r.; the abolition undermines the security of tenure of me mbers of the judiciary. (see Art. VIII, Sec. 2, par. 2.) (3) l!. is_ 'Y?.t....r:!: ..C...~!~trac[. Consequently, one has no right to 5U€' the government for the recovery of damages which he may suffer from hi;; removal from office.3
'The right to hold public office i.- not a natural right. lt. e-;o.;.t;;. "~!~~; :: ~x1 ~t$ at all, only bEicause and by virtue of .;;orne law expl'e:J>:~ Iy or impli~clly cn·,Hln!J ,)!' •.. n!.-rnng it. 1Aparri vs. Court of Appeals, 127 SC RA 231, .Tau . :n, 1984; sc(· :Vferhem. P~.:.!'>l:c <)!TicE-" and Office rs; See 64.J
vs. Vill~tluz , 57 SCRA 163, J\:{ay 30. 197-1. Sinco, op. cit., p. 416.
20livcros
~v. c.
335
TI~XTBOOK
336
ON THE PHILIPPINR CONSTITUTION
Sec. 1
Meaning of officer and employee.
trf Employee. - when generally used in reference to persons in the public service, it includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities. This definition includes officers defined in No. 2. (2)
Officer:
(a) As di~;tinguished from clerk or employee. - it refers to those officials whose duties not being of a clerical or manual nature, involve the exercise of discretion in the performance of the functions of government. (bl When used with reference to a person with authority to do a particular act or perform a particular function. - it includes any government employee, agent, or body having authodty to do the act or exercise the function in question in the exercise of governmental powers.4 Public office, a public trust.
The above provision lays stress on the well-known dictum th~t__n~pl.i£ (/bid,i
off!_c_~j~_~.e._':_lblic tru~.
(1) fiigttJJjcg,r~.c_e .of (1. constitutio~a{ de,_clcy~a_t}_
(*) He is, in truth and not merely figuratively, the trustee or servant ofthe people, and as such. he is enjoined to serve his office with the highest dE>gree of"responsibility, integrity, loyalty, and efficiency,'' and at "alJ time1; be accountable to the people." Legality should not be the sole test of official conduct. The act of a p\1blic official should not
4
Arlmini;;tn1tive Code of 1987 (Ext>c Order No. 292.), Introductory Provi$ions, Section
2(14, lfil.
•Report No. J, Committet> on Dutic;; and Obligations of Citizens and Ethics of Public Otliciah;, 1971 Constitutional Convention. •sl;!govia vs. Noel, 47 Phil. 54;l; Brown v8. Russell, 43 N.E. 160fi; Morfe vs. Mutuc, L-
203R7,Jan. 31,1961.
Sec. 1
ART. XI. -
ACCOU~TABILITY
01" PUBLIC 0.1-'FICERS
337
only be legal but moral as we ll. He should be a role m odel of honesty, competence a nd h igh s t andard of morality worthy for em u lation. To a public officia l who regards pu blic office as a public trust, pover ty with honor is preferable to riches with dishonor. (}¥)'As a public servant, he must '"act with patriotis m" having in mind only t he best interest of the peopl e he ser ves. His love for and d evotion to coun t ry must be beyond quest ion. (.e? In the performance of his duties and function s, a nd even in private life, he must "act with j ustice" by gi,·ing every one his due. H e must not practice the so-call ed "palakasan ·· system , whereby favor ed parties are given undue advantage or p reference on t he basis of personal, political and other extraneous considerations. (p~ In requiring public officers a nd employees to -lea d modest lives," the Constitution seeks to make them models of frugali ty a nd to put a stop once and for a ll to the scandalous spectacle in the past when government officials, especially those occu pying :;ensit ive positions, practically flaunted their opulence by indu lging in thoughtless wa stefulness a nd extravagance well beyond their known means of income in the m idst of the poverty and w ant of many of their countrymen.
(3 ) Conflict of inJ:.~.!}fS t .t~ . ~~-·~'!_oiderf:.: - Nor i~ t hi5 a ll. Pub lic interest demands not only that he keeps fai.th wi th the tr ust reposed upon him , but also t hat, like Ceasar's wife , he should be above suspicion. Accordingly. he should not place himself in a posit ion where his loyalty to the people m ay clash with his loyalty to hi.s own interest or those of his f amily or his .1tSSOCi a tes.
(4 ) l!n>hibjj(o .~s (!! d.~§_gf.?.i1Ui.fi.!J_ OTL~f.~9:.~fJ. . o{ficiaLs. - It is precisely to guard the fi duciary natu r e of public office that the Constitu tion places certain p rohibitions i n the case of the President, Vice-President, members of the Cabinet and their deputies or assistants u \.rt. VII , Sec. 13.), the members of Congress (Ar t. VI , Sees. 13, 14.), the member s of t he Const itutional Commissions
Section 1 enunciates the principle of public accou n tability. It set s down in unequivocal terms the· mandate that all government officials and employ-ees , wh ether they be the hi ghest in the land or the lowliest public servants, s ha ll at all times be answerable for their miscon duct to the people from wh om the governme n t derives its powers.:
'Del. A.L. Syjuco, ,Jr.. "Sandiganbayan and Tanodbayan," in C.R. Montejo, on the 1973 Consti tution. p. 227.
TEXTBOOK ON THE PHILIPPJNE CONSTITUTION
Sec. 1
(I) This mandate more directly refers to those who occupy elective positions in the government and who are subject to the judgment of the electorate expressed at periodic elections. (2) It applies indirectly to those holding appointive positions in the judiciary. and those who are subject to the supervision and control of the President 01· his deputies, or the legislature who are in turn accountable to the electorate. (3) Aside from direct removal by the electorate and impeachment by Congress, public officials are held accountable to the people through administrative proceedings initiated by administrative superiors and through criminal prosecutions and civil actions in courts. The new Constitution in Article XI supplies some of the ways in which the trust character of a public office may be maintained and upheld. The princip)e of accountability to the people is also emphasized in the Article on Local Government. (Art. X, Sec. 3.) Importance of maintaining public trust in public officers.
It is essential to the general welfare and necessa.ry to the preservation of the governmtmt, that public affairs he prope1•ly administered. For this reason, every effort must be made to insure that the men and women elected and appointed to discharge its functions are those imbued with a high sense of puhhc service morality, who consider their positions aR sacred trusts and not as means for the attainment of power and wealth.
Where the public officers thus chosen are irresponsible, dishonest, of doubtful loyalty, inefficient or unreasonable, the government itself loses the faith and confidence of the people. Consequently, the government becomes ineffective. In such a situation, it is and will be more difficult for the government to collect taxes, to obtain public cooperation and support, to secure compliance with its laws and rules, and generally, to respond to the many, varied, and unending needs and demands of the people. Indeed, no popular government can survive without the confidence ofthe people. It is the lone guarantee and justification for· its existence. In the precise words of a great jurist: "Popular government is a magnificent three-story building: the basic foundation is the people;
.
the. first story is the Constitution which is the expression of their sovereignty; the second is the officialdom or a group of caretakers of the edifice; and in the third and highest story is found the altar wherein is zealously kept and guarded the mystic fire which symbolizes the faith of the people.
Sec. 2
ART. XI.- ACCOUNTABILiTY OF Pt:BLIC OFF'ICF.RS
339
Collapse of the foundation means destruction of the entire building; collapse of the first story is necessarily the collapse of the second and third stories and the consequent reversion to the architectonic wisdom of the people; collapse of the second story - officialdom -because of the misdeeds or disloyalty, is the demolition of the faith of the people; and without faith no popular government can ever hope to live and survive. " 8
SEC. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason1 bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Meaning and nature of impeachment. (1) Impeachmeqt has been defined as a method of national inquest into the conduct of public men. 1
(2) It is essentially in the nature of a criminal prosecution before a quasi-political court, instituted by a written accusation called -articles of impeachment,"2 upon a charge of the commission of a crime or some official misconduct or neglect. 3 The trial that follows may or may not result in a con \·ict~on. Purpose of impeachment.
4~s purpose is to protect the
feasan~
people from official
delinqu~ncies
or ~1-
It 1s, therefore, pr1manly mteuded for the protect!on o
th~
State, not for the punishment of the offender. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic. 4 Officials removable by impeachment.
As provided in the Constitution, they are: ~1) The President and the Vice-President; (2) The members of the Supreme Court; 8
Jose P. Laurel, Politico-Social Problems, pp. 23-24.
1
The Federalist, No. 65. Black's t.aw Dictionary, p. 922. 3 Balhmtine's Law Dictionary, 2nd ed., p. 61(). •v.G. Sinco, op. cit., p. 374. 2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
340
Sec. 2
r3 l The members of the Constitutional Commissions; and
<4>
The OmbudRman.
Removal of other officials. All other public officers and employees may be removed from office as provided by law but not by impeachment. (Sec. 2.) There are certain constitutional officers who are not subject to impeachment because the Constitution has already specified how they may be removed. The grounds and means for removing the members of Congress are provided in Section 16(3) of Article VI, of judges of lower courts, in Section 11 of Article VIII, 5 and of officers and employees in the Civil Service, in B-Section 2(3), Article IX. It is well-settled that members of the Cabinet are removable at the pleasure of the President.
Grounds for impeachment. They are asJoHow!'\.:
;') • Ill +i:V\ ' '0\'\c"\
9uJpg._ble violM~Q_TI:.. 9Lf.IJ:r £o_~Jjtution..:.. - It t•efers to a willful and intentional breach of the Constitution. Hence, not every violation of the Constitution constitut!!S an impeachable offense. Violation of the Constitution committed unintentionally or involuntarily either in good faith or through an honest mistake of judgment is not a ground for impeachment;6 (1)
(2) J'.!.:f.a.S.(!n. - It is a crime committed by any person who, owin~ al.tegiance to the Philippines, not being a foreigner, levies war against the Philippines or adheres to her enemies, giving them aid and comfort within the Philippines or elsewhere;' (;~) .lkibea.:
- I t may be:
(a) Direct bribery. -H_The offense committed by any eublic officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any promise or gift received by such officer. It may likewise be committed by any public officer who shall accept such gift in consideration of the ;By statutory provisions, the Judges (now Justices) of tho Court of Tax Appeals (R.A. No. 1125, Sec. 1. i were likewise removable by impeachment. The~e provisions, however, should be deemed to have been repeall"d because they conflict with Section 2 above and Article VIII, Section 11 (supra..) which gives to the Supreme Court the power to discipline judges of lower courts. Now, the mt>mbers of the CTA are r·emovable in the same manner as the members of the f:ourt of Apptals. Under Presidential Decree No. 1606 (Dec. 10, 1978), the Presiding .Jur;ti~:a nal Code, Art. ~ l~·d - J,.w\;'1)"1\1
Jv ""l ~""'
;rr· : ~\~ \[\~\a\'~
St>c. 3
ART. XI.- ACCOl:NTAI:liLITY OF P UBLIC OF'FICER:;;
341
non-performance of an officia l duty or the execution of an act which does not constitute a crime:• or (b) !!!..d irect /;J.J:.ibeil· - The offense commit.ted by a ny public officer who shall accept gift s offe red to him by reason of his office; 9 (4) Q:._qf!._flnd c_orruption ~ - The phrase cover~ a ll graft and corrupt practices. (in fra. ) It was not included as ground for irnp f:!achment under the 19:35 Constitution. Its inclusion may be attributPd to tht~ awa reness of t hf: 1971 Constitutional Con,·ention of the widespread graft an d corruption in th e government at the time:
(5) Qtherl!Jg_!!_ crim e~. -The phrase referg to thnse crimes which, like treason a nd bribery. are of so serious and enormou::: a natm·e as to affect the very life or orderly workings of the governmcnt. H> For. i.!PJ?.Ca~b.meni 2!!.Il!Qt>.f1~~ .. ".no !.!~.! ma,· be regarded a.s__a_high crime'' Unle.as.. thru:!:.\.. ~~law for.Pid.d ~ ng a.nd P.l:!bJ_i~h(n_g it ;.':. and f6l .fJ.etra::·g_(.q[py!Jfjc:_tiu!}.t. - · This is a new ground for impeachmen t.
It will cover any violati on of the oath of office involving loss nf popular support even if the "iolation may not amount to a criminal offense . Its inclusion is more of a reaction to past experience t han an exercise in logic. It was t he consensm in the Constitutional Commission that culpable violation s of the Constitution. the main ground for impeachment, would h ardly prosper in Congre;; ~ e\'en against an unpopul at President. Official misdeeds, even of great magnitude (e.g., election frauds, acquisition of illgotten wealth), are sometimE's deemed outside of the coverage of culpable violations of the Constitution. The new ground serves to s tress the desirabl eness of having a President who truly regards publi c office as a public trust. (see Sec. 1. )
SEC. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorse ment by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee. after hearing. a nd by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, togeth e r with the
~sec
Ibid., Art 210.
~Ibid.,
Art. 2l1.
tuRcp(•rt of Special Committee. :;upra. 11
rv1. Cua derno, The Framing (If the (1935J Constitution of the Philippines, p. 99.
342
TEXTBOOK ON THE PHILIPPlm; CONSTITU'I'IO:-;
corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt the reof. (3) A vote of at least one-third of all the Members of the House sha ll be necessary either to affirm a favora ble resolution with the Articles of Impeachment of the Committee, or ove rride its contra1·y resolution. The vote of each Membe r shall be re· corded. (4) In case the vel'ified complaint or resolution of impeach· mentis fil ed by at least one-third of all the Membe rs of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. ( 6 ) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Membet"s of the Senate.
(7) Judgment in cases of impeac hment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall n evertheless be liable and subject to prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeach· ment to effectively carry out the purpose of thi ~ section.
Power to initiate and try impeachment vested in Congress. (1) The House of R epresentatives shall haYe the !>ole power to initiate all cases of impeachment. (Sec. 3[1J. ) Under the 1973 Constitution which instituted a unicameral legislative body, the process of impeachment was vested only in the Batasang Pamba nsa. Tt was thus both the initiator and trier of impeachment cases.
(2) The Senate shall have the sole povter to try all ca!les of impeachment. (Sec. 3r6].) Under the 1935 Charter, t he power to initiate impeachment proceedings was a lso exclus ively vested in the House of Re presenta tives, while tho power to try and decide all cases of impeachments, in the Sen ate. Hence, if the House s hould refuse to initiate or file charges, the Senate would have no occasion to sit as a court of impeachment. This is also true under the present Constitutio n.
ART. XI.-
Sec. 3
ACCOU~TABILITY
OF PUBLIC OFfiCERS
343
Procedure in impeachment cases.
The procedure' is as follows: (1) Fil_i[!.g....oL.v_e.r.ifi.e,d. .C.O!JtP..(Q-.ilJ.t. - To start an impeachment, there should be a verified complaint (i.e., under oathJ filed against the impeachable officer. 'l
(a) If filed by any member of the House or by any citizen, the requirements provided in subsections 2 and 3 must be observed. (b) If the verified complaint or resolution is fil ed by at lea..st 1/3 of
all the members of the House, the same shall constitute the -Articles of Impeachment, and trial by the Senate shall begin immediately. (Sec. 3[4].)
In any case, the Constitution prohib-its the institution of impeachment proceedings or complaint agains t the same official more than once within a period of one year iSec. 3(51. '• even for a different ground. The obvious purpose is to protect the official concemed against harassment for political reason ~.
( 2 ) Z:dal b" the Senat_g , -When the Senate sits in impeachment cases, its members are required to be under oath or affirmation . (Sec. 3[6].) This is because when the Senate tries an impeachment case, it sits as a court of justice rather than as a lawwaking body. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote. ([bid.!
(S) Requirements for condctiqg.. - To convict an officer, the concurrence ofa tfe-i1sf2l:faUoTHie 'riie'fiibers ofthe Senate (i.e., 16) is necessary. (Sec. 7.) Moreover, his guilt must be established beyond reasonable doubt as in a criminal proceeding. If the necessary vote is not obtained, the judgment shall be an acquittal. The special majority vote is a safeguard against fal s e conviction.2 Penalty in impeachment cases.
The penalty to be imposed on an officer found guilty of an impeachment charge i:; limited "to..l~emo.w.fro.DLOffi.c.e ..and. ~.tQ.hold..~ .uffi.c.e... u.n.der_th~. E~1.1.blic. . !?f.the ..J?hilippinu. "fi_o pen.al.tY. jQ the fum.. of .i...~.il?..~ iJ!!.Q9_~~~ If a criminal offense has been committe d, the party convicte d is still liable and subj ect to prosecution, trial, a nd punishment, in a~cordance with "law," i.e., before the courts. 1Th t! L97:{ C.on,:;titution did n ot pr ovide for any spedfic proc~:durt> for impeachment. The Batasang Pamban,;a had "Rules of Proceduro in Impeachmt>nt Proceedmgs." The House of Reprcscntariv(•S iElc\·.,nth Con~ress ) has adopted t•n DE'ccmlwr 15. 199o its "Rules ofProce· durc in Impeachment Pruceedi n~s." ~U nder the 19:~5 C'on;;titution, at least 2 3 \'Cte of all th~ me mbers of the House of Representatives wa~; required befor e an impeachment proceeding may be initiated and at lca!'t 314 of all memhers oft he Senate w a~ necessary before a conviction therein could be had. Thcl:lc vote pre.;criptions m<~de the im peachment of the President a virtual impossibility.
Sec. 4
TEXTBOOK ON THE PHILIPPINE CONSTITCTION
Officials who are removable only by impeachment cannot be charged criminally (or administratively) during their incumbency before any court with an offense or misbehavior conviction for which carries the penalty of r emoval from office. The remedy is to file a complai nt for impeachment,
disbarment ii ne is...a..... lawyer) or.. _,.misbehavior . .. .. proceedings . . - ··· - -··· .............. - ....... _.. for the offense ... nroven to have been committed by him in the impeachment proceeding. J:... . ..... --· . - --· ·- - -·····-·· ... ..... . .... - - - -- - - ·-·- - -·-· .-. .. ~ ·------··-----The power of the President to grant reprieves, commutations, and pardons does not extend to cases of impeachment. (Art. VII, Sec.•l9. ) -
~
,_ ,
Effect of resignation.
:rhe object of impeachment may not only be the removal o(tb&_acp.I_S._(td _from office bu!_~!~?...l:J:is_.di~~~~ifi.cl1tio_!l_t()_ b.?!~-~~..?£f!.c~ U.nde1· .th~...R~.P.u1b .lie .of the_Eh_ilippine~. Jle.n.c.e ...an HofficiaLwho._ haa_.r.esig_n~.d .before ~.h~ f.ommE}.lli!.~.ment of or pending th~ imp~~chmen.t ..P.r.o.cee..d.iJ?.gs may_.s.till.Jte .imp eac~d.
Rules on impeachment.
Section 3(8) empowers Congress to promulgate its rules on impeachment to effectively carry out the purpose of the a bove provisions on impeachment. Congress may adopt any method it deems desirable provided it is reasonable and gives the accused full opportunity to be heard and to present his defenses.a In other words, Congress is bound to abide by the constitutional requirement of due process of law. (see Art. III, Sec. 1.) Of course, such rules are subject to the provisions of Sections 2 and 3.
SEC. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The anti-graft court known as the Sandiganbayan.
Under the 1973 Constitution, the Batasang Pambansa was directed to create a special court to be known as Sandiganbayan. 1 This court "shall h ave jurisdiction over civil and criminal cases inv.olving graft and corrupt practices and such other offen ses committed by public officers and employees x x x in relation to their offices as may be determined by law."2 ~v.G.
Sinco, op. cit., p. 379.
'A coined term in Filipino which literally means "Support of the Nation." Articlc XIII, Sec. 5, 1973 Constit ution.
2
Sees. f>-9
ART. XL- ACCOUNTABILITY OF l-'l'l:\l.lC OFFICERS
345
The 1973 Constitution did not vest in the Sandiganbayan exclusive over these cases; neither did it limit its jurisdiction to said catws. ln the exercise of its legislative power. the Congress could, therefore, eon fer .~oncurrent jurisdiction over cases invol\'ing graft and corrupt practices to other courts and give to Sandiganbayan; jurisdiction over other cases. Under Section 4, the SQ.ndiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may he provided by law."
JUrisdi(~t.ion
SEC. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. SEC. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be.appointed by the Ombudsman according to the Civil Service Law. SEC. 7. The existingTanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. SEC. 8. The Ombudsman and his Deputies shall be naturalborn citizens of the Philippines, and at the time of their appoint· ment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar. and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must ha,·e for ten years or more been a judge or engaged in the practice of law in the Philippines. During their tenure, they shall be subject to the same dis· qualifications and prohibitions as provided for in Section 2 of Article IX-A of this Constitution. SEC. 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filed within three months after they occur.
~This special court, as created hy Presidential Decree !\o. 1606 fDec. 10. 1978, whid1 revised Pre!". Decree No. 148fU, as amended by R.A. No. 8249. is composed of a Presiding .T ustice o nrl fourteen ll4) Associate ,Justices. It. is of the same le-vel as the Court of Appeals. lt shall <=:it in five (fil divisions of three (3) justices eaeh. The th'e >5 >divisions may sit en bane, i.e., at the same time.
TEXTBOOK ON THF. PHILIPPINE CONSTITUTION
346
Sees. 5-11
SEC. 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office. SEC. 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. Office of the Ombudsman to be known as Tanodbayan.
Creation. 1 - The Constitution directly creates the Office of the Ombudsman to be known as Tanodbayan, z categorizing it like the three (3) Constitutional Commissions (Art. JX.) as "independent." (Sec. 5.) The Tanodbayan provided for under the 1973 Constitution is now known as the Office of the Special Prosecutor3 which shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman under Section 13. (2) Composition. - It is composed of the Ombudsman to be known as Tanodbayan, one (1) over-all Deputy, and at least one (1) Deputy each for Luzon, Visayas, and Mindanao. The President is authorized to appoint a separate Deputy for the military establishment. (Ibid.) In view of the rigid discipline in the military establishment, ordinary soldiers and subordinate officers may not be expected to file complaints as freely as in civilian offices against their superiors. (1)
(3) Appointment. - The first Ombudsman and his Deputies shall be appointed by the President from a list of six (6) nominees prepared by the Judicial and Bar Council (which also nominates the members of the Judici· ary), and from a list of three (3) nominees for every vacancy thereafter, without need of confirmation by the Commission on Appointments. The aim is to insulate ihem from the baneful influence of partisan politics.
All vacancies are required to be filled within three they occur. (Sec. 9.)
(3)
months after
(4) Qualifications. -They are the following: (a) They must be natural-born citizens of the Philippines; (b) They must be at least 40 years at the ti:me of their appointment; (c) They must be persons with recognized probity and independ-
ence; 'Executive Order Nr.. 24a declares thE' effectivity of the creation of the Offlce of the Ombudsman on .July 24, 1987, the date of its promulgation. ~A coined term in Filipino which literally means "Guardian of the Nation." ~Executive Order No. 244 declares the effectivity of the creation of the Office of the Speciall'rosecutor on July 24, 1987, the date of itil promulgation.
Sees . 5 -11
ART. XI. -ACCOUNTABILITY OF Pl'RLIC OFFICERS
347
(d) They must be members of the Philippine Bar; and (e) They must not have been candidates for any elective office in the preceding election. In addition, the Ombudsman must have been for ten ( 10) years or more a judge or engaged in the practice oflaw in the Philippines. (Sec. 8, par. 1.) (5) Disabilities. - During their tenure they are subject to the same disqualifications and prohibit ions similar to those provided for members of the Constitutional Commissions under Article IX, A-Section 2. (Ibid., par. 2. ) (6) Term of office. - Their term of office is seYen (7) years without reappointment. They are disqualified from running for any office in the election immediately succeeding their cessation from office. (Sec. 11.) This is to discourage them from playing politics during their tenure in office. (7) Rank and salary. - They are given the rank of Chairman and members of a Constitutional Commission, respectively. and the same salary which shall not be decreased during their term of offic e. (Sec. 10.) Until Congress provides otherwise, the annual salary of the Ombudsman is P204,000 and his Deputies, P180,000. (see Art. XYIII. Sec. 17.) (8) Appointment of officials and employee8. -All officials of the Office of the Ombudsman other than the Deputies shall be appointed by the Tanodbayan according to the Civil Service Law. Section 6 is similar to the provision with respect to the appointment of officials and employees of the Supreme Court (Art. VIII, Sec. 5[6].) and of the Constitutional Commis· sions. (Art. IX, A-Sec. 4.) Rationale for creation of the two bodies.
The rationale for the creation of the Sandiganbay an and the Office of the Tanodbayan is provided in Section 1. (supra.) The principal sponsor of the Tanodbayan proviso explained its inclusion in the 1973 Constitution, thus: "Its raison d'etre is the recognition that with the burgeoning of bureaucracy, the administrative machinery of government has become terribly complicated and too impersonal that, therefore, the 'little man' needs protection from being possibly trampled by the vast juggernaut of the government machine ... Existing mechanisms - the courts, the n ational assembly, executive and administrative agencies - are not sufficient to cope with th e grievances of the aggrieved individual. There is a need for a supplementary institution ... to which the individual can readily repair for assistance and for immedia t e redress of grievances."4
•oel. R.odolfo D. Robles, The Fil ipino Ombudsman, Phil. Panorama , Feb. 4, 1973, p. 4.
34fl
T EXTBOOK ON TifF. PHT l.I PPTNE CONSTlTlJTTON
Sees. 12-13
The above explanation can be easily understood by the majority of the Filipinos whose ~fficient public servants, deteriorating peace an d order conditions which jeopardized thej r pursuit of legitimate livelihood, and a host of other inconveniences. Indeed, one may venture t o say, that had there bee n an Ombudsman before Proclamation No. 1081 which declared ma rtia l Jaw on September 2 1, 1972, most of the legitimate griovances of t he ci tizens would have been dispelled , the people's faith in the government wou ldn't h ave hecn E~roded , and t he chaos and disorder that prevailed during the period wouldn't have r eached such alarming proportions.;, The Ombudsman is definitely a positive contribution towards the realization of a dedicated, c ffiei ent and responsible public service and the revival of the people's faith in government .•Judging from the experience in other countries, an authority on the ombudsman says, "Even if an ombudsman plan were to work only one-half th e E:'ffectiveness of its original scheme, itl' adopti on would he well worthwhile ."6
SEC. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agt"ncy or instrumentality thereof, including government-owm~d or -controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. SEC. 13. The Office of the Ombudsman shall have the following powers, functi on s, a nd duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned or -controlled corporation with original charter, to perform and expedite a ny act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
"Ibid., p. a. glbid., p. 5, citing Donald (; . Rowat.
Sec;;. 12- 13
ART. XI.- AC:COUNTAR ILTTY OF I'l" HLLC ()lo'J-'I C:ERS
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, a-nd recommend his removal, suspension, demotion , fine, <'en ~ure, or p1·osecutioll, and ensure compliance there with. (4) Direct the officer concerned, in any a ppropriate case, and subject to such limitatio ns as may b e provided by law, to furnish it with copies of documents relating to contracts o r transactions entered into by his office in...-olving the disbursement or u se of public funds or properties, and report any irregularity to the Commission on Audit for a ppropriate action. (5) Request any governme nt agency fo r assis tance and information necessary in the discharge of its r esponsibilities, and to examine, if necessary, p ertinent records a nd documents . (6) Publicize matters covered by its investigation when circumstances so warrant and with due prude nce. ( 7) Determine the causes of inefficien cy, r e d tape, mismanagement, fraud, and corruption in the Government and m a ke 1·ccommenda tions for the ir e limination &.nd the observance of high standards of ethics and e fficiency.
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may be provide d by la w . Powers, functions, and duties of the Ombudsman.
The specific powers, funcb ons a nd duties of the Oflice of the Ombudsman are enumerated in Section 13. 1 As protector of the people, the Om· bud s man and his Deputies are mandated to a <.:t promptly on comp laint ::, filed in any form or manner against public officia ls a nd ~mploye es and. in appropriate cases, notify the complainants of the adi on taken and th ~ results thereof. (Sec. 12.) (1) Accessibility. -In relation to the publi c, t he Ombudsm ~~:: :::.:-;.;..,:-:; himself available at such hou.r...and......plac.e_l'ea sonahly corwr:-nit-n: : c. :hEpeople, to receive such complaints, grievances, and reque8t;.: fn !" a :' S:~ t a :1ce a s may be su bmitted to h im . Th~ pr oceedings befol'e th e 0~!:-·Jd::man. s ubject only to the provisions of any later law, a n~ ;.: pt-t-dy . informal. summary and at no cost to the com plainant. Stomp~ nnd tel egrams are included. (see Sec. 12.)
(2) Inve.<~tigato ry pou.1er. -On his own initi at i,·e or upon complaint of any person , the Ombudsman m ay act or conduct im· e~ tigat}on~ on the basis 1R.A. No. 6770 (Nov . 17, 1989• prt)vide,; for tht· functt nnal 11 nrl ,-tructura! org;ln ization of t h e Office of the Ombudsman.
350
Tli:XTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 14
., of phcne calls, letters or oral complaints which, in his discretion, deserves serious consideration. Such service guarantees the Ombudsman's accessibility even to those in jail or in hospitals. This does not mean, however, that immediately upon the receipt of a phone call from an anonymous source complaining against the action of, say, « policeman, the Ombudsman will readily file the charges against the policeman, or following t he r eceipt of a letter complaining against the discourtesy of a clerk in the civil service, the Ombudsman will immediately reprimand the clerk, or recommend his dismissal. This is not how the Ombudsman works . If for example, an individual complains that the papers relative to his request for retirement are not being processed with reasonable speed, the Ombudsman begins by forwa rding a copy of the complaint to the head office, asking for an explanation. If the explana tion is not satisfactory, the Ombudsman has authority to look into the files of the agency concerned, to call witnesses, and to require that t he agency itself investigate the matter and submit a repor t to the Ombudsm an. If the slowness in the processing of the papers is found to be due to an established procedure in the office, then the Ombudsman r ecommends to the agency a way of rectifying the defect and suggests a morP. expeditious way of dealing with matters of the kind . a,:~_!!!_!!J_also -~~f~~~Jt~Q_i_p.v~§.t!&.~· (see Sec. 13[1].) (3) R emedial weapons. - lr.. other cases, if an administrative act is complained of, and the Ombudsman finds that there is no legal or other imperfection in the act, he seeks to persuade the agency concerned to make a different decision in order t.o save the complainant from needless hards hip. Usua lly, b efore an opinion or recommendation is rendered, the Ombudsman will meet with the administrator, and present his findings a nd his proposed recommendations. If the administrator does not accept the recommendations of the Ombudsman, the latter seeks recourse in the media, and by an appeal to the higher echelons of the government.2 (see Sec. 13[6].) ( 4) Absence of revisory authority. -l.l..r.tlJke the -~~:>u rhs, th~ 9n.!.l>\lds ~.~P. ~o.t.nr:deL.a..Dy _go.v.er_n..menLQffice
to rever§..EU.t~ ,9ecisl.Qn. He is simply a "watchdo,g." (supra. ) If the Ombudsman were given the power to reverse or a mend administrative action, it would be more tha n a super-administrative agency or a special court , and as such, it would conflict and render u seless other government agencies equipped with administrative proce· dures for discipline. 3 (see Sec. 13[3).) SEC. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be auto· matically and regularly released. 'Del. R.D. Robles, "The Ombudsman," in C.R. Montejo, ,,u.pra, p. 232; see Pre::~ide ntial Decree No. 1630 (as amended), Sees. 10, 15, 16. ~ Del. E .R. Sarte in Unita~ . Vol. 46, No. 3, S ept. 1973, published by U.S.T ., p. 435, quoting David C. Cu mmins.
Sees. 15-16
ART. XI. - ACCOUNTABILITY OF Pl"BLIC OFFICERS
35 1
Fiscal autonomy.
Like the judiciary (Art. VIII. Sec. 3.; and ~h e Constitutional Commissions (Art. IX, A-Sec. 5. ), including the Commi5-5ion on Huma n Rights (Art. XIII , Sec. 17[ 4]. ), the Office of the Ombudsma n enjoys fiscal autonomy, t o further enhance its independence. It does not haYe to request the Office of the President or any government agency for the r elease of its approved annual appropriations.
SEC. 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, s hall not be barred by prescription, laches, or estoppel. Right of the State to recover ill-gotten wealth.
Generally s peaking, prescription, laches and ._,,n oppel bar or prevent the enforcement of a right which a person, and ~v cn the State, may have against another person . Section 15 makes it clea!" that the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or tra nsferees shall not be barred by any of these causes. (1) .By pre~cr.iJltLQ!!_. a party having a caust: ·:.::· act ion (i.e., ground for which an action may be brought) is precluded fro :::u e nforcing his right or r esorting to court for redress for his failure to do ~ o wit:hin a certain period of time fixed by law. ( 2).b{ZC:~~s__ is
the failure or neglect of a pany for an unreasonable and unexplained length of time to assert a right O!' ctaim giving rise to the presumption tha t he ha s abandoned it a nd m a ki~g- it inequitable to permit the right or claim to be enfo1·ced. (3) Th roug~taPP ~l an admission or represe nta tion is rendered conclusive against the person making it a nd ca nnot bo: denied or disproved by him as against the per·son relying tbereon. 1 ~ J.ir No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or in directly, by any governme nt...ov.-ned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supre me Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.
1
Article 1431, Civil Code.
35~
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec,:. 17 - 1~
Prohibition against grant of loan, guaranty or other form of financial accommodation.
The prohibition contained in Section 16 further gives s tress to the principle that public office is a public trust. (Sec. 1.) The purpose is tn prevent the officials mentioned from making use of their infl uence to secure such loan , etc., to benefit t hem. Note tha~ the prohibition extends to any firm or entity in which any of the officiall'l me ntioned bas a contr olling interest (at least 51% ). It does not apply where the luan, etc. i.s not for any business purpose (e.g., hou!{ing loan ), or is given to a firm in which he has no controlling interest, nor in any case , after his tenure of office. In any of said situations, no conflict of interest is involved.
SEC. 17. A public officer or e mployee shall, upon ass umption of office and as often thereafter as may be required b y law, submit a declaration under oath of h is assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabine t , the Congress, the Supreme Court, the Const itutional Commissions a nd other constitutional offices, and offic ers of the a rmed forces \\oith general or flag rank, t he declaration shall be d isclosed to the public in the manner provided b y law. Declaration of assets, liabilities and net worth . .Th.~ JPJl~ing
of.{l__d.es:~.a r_ati_
W...?!~h is ~.~l_fi._d ~-~?.ryfo_r..~.."~~L"!?.~bli~o ffr~:_:_or ~!_Uplo:r.~pon a!l~~mptio_!l__~
efft~-~.an.~ ~
law.
l!L~h.e. c~~e._Qf_t!t_e.__:p!_~jde~t
etc.., ..the .. declaration . is required by the Constitution to be disclosed_ in ~.bh~._Congress
is empowered to provide by law how often the declaration shall be made and the manner by which the de·claration by the officials m entifmed s hall be disclosed to the public. Th~ purpose of the declara tion is to determine the net worth of a public official or employee at a gi ven date or ~tarting point (i..e., assum pt ion of office), such that an incre&se in net worth at a subsequent period if unreported and unexplained, taking into account his known sources of income and reasonab le a llowance for living and other expen!Ses for the peri od , gives rise to the presumption th at the increase represents ill-gotten \Vealt.h and/or untaxed income.
SEC. 18. Public officers and employees owe the State and this Con stitution allegiance at all times, and a ny public officet· or · e mployee who seeks to change his citizenship or acquire the s tatus of an immigrant of another country during his tenure shall b e dealt with by law.
Sec. 18
ART. XI. - ACCOUNTABILITY OF PUBLIC OFFICERS
35:~
Duty of allegiance to the State and the Constitution. :PEbli~_2ff!~~I:S. .an
E!-L_ ~n
at all timeS\ A public officer or employee who ~ eeks to change bis citi zenship or acquire the status of an immigrant of ano ther
country during allegiance.
hi ~
tenure or incumbency violates this duty of loyalty and
Th e law may impose sanctions on the guilty officer or employee.
- oOo-
- cCc -
Article XII
~ATIONAL ECONOMY AND PATRIMONY SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services pro· duced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions ofthe country shall be given optimum opportunity to develop. Private enterprises, including corporations, coopera· tives, and s imilar collective organizations, shall be encouraged to broaden the base of their ownership. Concept of national economy and patrimony.
£The national economy refers to the entire structure of economic life in a country . It encompasses all the activities relating to or concerned with the production, distribution, and consumption of goods and services, and what are called "factors of production," i.e., labor (human resources), 1 land
1 Knowledge has become a most important economic resource in the new wvd d economy of the 21st century- often even more important than capital, raw materials and technology. A strong workforce that is s ki!led, highly trainable a nd adap table, in addition to being proficient in English, is now one big factor for international competitiveness.
354
St:!c. 1
ART. XII.- NATIONAL
ECON0~1Y
:\NO PATRHvfO:--JY
355
{and other natural resources !, and capital which are utilized to carry out these activit ies. The different enterprises engaged in these activities as we11 as the government agenci~s charged with the 1mplementati(JJ) of laws governing them also form part of the national economy. Laws on the economy of a country are de~igned to achieve th~ goal of economic grow th and development and the improvement of the mRteria l welfare of the people. (2) The mU.i.fmJJl.p_aJril11
Three-fold goals of the national economy.
As stated in Section 1 (par. 1.), they are as
foll ow~:
ffi .Eq't-lity.J. i.e., a more equitable distribution of opportunities, income and wE)alth. There are many causes of economic inequalities (e.g., differences in abi lity, education, tax poli cies, etc. ) as there are as many stratc· gies to lessen them (e.g ., minimum wage lmvs, tax and price policies, ct.c. J. One important aid in promoting equity is the control of monopoly and the· prevention of unfair competi bon (s ee Sec. 19.};
Rt(
Gtow.J.!J.J. i.e., a sustained in;::rease 1n the amount of goods and services produced hy the nation fnr the benefit of the people. Economic growth is conventionally measured by the increase of the gros::; domestic product (GDPJ which is the estimated total value of a11 goods and services produced by the economy in a given year and gross national product iGNPJ which is equal to GDP plus receipts or income from abroad (e.g., mainly overseas workers' earning rernitt.ances}. 2 Economic growth is propelled, among others, by improv~mcnts in techniques of production and increase in capital inve:->tments: a nd 2By practic.e. w~ nvrma lly m~a:un: the cr!U nt ry's nation al ~n.1wth and decline in terms of the yt:!arly comparislln ofG:'\P s aud unt n,.,,·,:'ly by the rate of incre· m ent;; to our economy a y(:ar. \\'e t t'nd to np·.:.rt our l:'conomH: ach il:'\'l:!ftH:'nt" with lirtb rnganl to t.ht> re la tivl:! accomplishm+>nb of othE-r .:cunrnnic" in our rc giun. The fi,_ct i.; that many of tht:!m are growing faster th
356
TBXTBOOK UN 1'Hi': PHI LIPPJNI-: CONSTITUTION
Sec. 1
,}X(£L<'d1Js;J.(tj,Jy., i. e.. a n expanding producti vity al:> the key to rai sing the quality of life for all, especially the underprivileged. P roductivity is the ability, capacity or degree of effectivenesR for ma king greater (and/or better quality) outp ut out of every unit of input employed (e.g., per worker, per hectare of land ). Labor, for example, is m ade more efficient by specialization, on-the-job training, or education. Use of labor-saving devices , applicat ion of scientiflc methods or knowledge in the production processes, managerial innovat ions, e fficie nt u se and a llocation of resources, etc. , ~romole the rise of output. Better education and health also affect productivity positively and significantly.;1 Strategies to accomplish goals.
Jn the pursuit of the goals of the national economy, the Const:tution mandates the State in Section 19 of Article II and in Section 1 above, aside fro m oth er provisions: ( 1) to develop ~ self-reliant and independent national economy effectively controlled by :Filipinos , (2} to promote industrialization a nd full empl oyme nt; (3(to protect J.' ilipino enterprises against unfair foreign competition and trade practices; (4 '1 to give all economic sectors (e.g., agriculture, industry, banking, export, etc.) and region!) of the country optimum opportunity to develop; and (51" to encourage private enterprises, including corporations, cooperatives and similar collective organizations to broaden tlw bast': of the ir ownership . Guidelines in the development of the national economy.
..
The Constitution in Section 19 of Article II sets three guidelines in the development of our national economy, namely: (1) Self-c.elig..nt scanomy.- In providing for economic self-reliance, the intent is ·not to pursue a policy of econo mic seclusion from the international economic community, for the Philippines cannot possibly be completely self-sufficient as to avoid the need for imports or assistance from other countries. Self-r eliance simply means that the Philippines must have the ability to cope with itR economic problems or to im plement its development programs by the use of its own resources with a minim um of dependence from foreign governments, investors or financing institutions for loans,
"R)iising productivity beginfl with investments in hu man capital, which means more fu nding for public e du cation and health. Schooling hnild~ and hones an indiv idual's s k ills, allowing hi m to contribute more to the Philippine economy. Likewise, a healthy wor k er is a more productive one, because he can generate better quality output, a nd more consiste ntly because he iRn't sick and absent as often .
Sec. 1
ART. XII.- NATIONAl. ECON0:>1Y AND PATHTMO!'JY
3ii7
investments or aid. It does not mean economic self-sufficiency. No nation produces everything its people need; (2) lncleeenc:(f,IA' economv. - 1'he national economy must bt:- free from undul:! foreign control or intervention. Thi~ i~ especially true in such vital or strategic industries as the development of natural resources and public utilities where foreign interference could cau~ e incalculable harm to the nation ; and (3 } .§so'J:.O..'!JX..!ft!s.t.~vs.Z'Y..J/2!l!~g..H~fL£v [iJJ£~ liOS) - "The principal responsibility for developmen t belongs to Filipino citizens. They must be t he principal determinants as well as the chier benefic iaries of economic progress." 4 While foreign capital is allowed t0 come in, the Constitution limits the same to major industries but i nsurin ~ th a t control rests on the h ands of Filipinos. It is the duty of the governmE-~t t o gi ,.c full support and assistance to Filipino businessmen and enterpn ~ t-;; in gaining more and more control over the economic destiny of the nat i('.n and to S£~e to it that the rewards of economic growth a re enjoyed chtetly bv th.:- Filipino people.
At the same time . the fact that in a free e~terpri ;:e :. y~tem, economic growth depends primarily on the private ~ect o r po;: e;: a challenge to Filipino capitalists to ass ume the main re;:po n~ibilit y for a chie\"ing the goal of economic self-reliance and inde pendence to gi\·e those of our countrymen who live in poverty and misery a chance to attain a higher level of livelihood. The provisions of Article Xll are to be intC'rp reted with the above guidelines in mind!' Promotion of industrialization and full employment.
(].) Importance and urgency in the Philippines. - For a developing country like the Philippine s, with a large population growth and an excess labor supply, ther e is an inherent a dvantage in a dopting a development strategy that promotes industrialization and full employment. An impm·tant aspect of indu strialization is that it generates a high level of e mployment. Factories a nd industrial sites create job opportunities and thus create sources of livelihood for the people. The high incidence of poverty in the country is rooted in the social scourge "that is unemployment . Our nation will never recover economically, and social peace and politit·al stability will never come to our land as long as the problem nfmass poverty '"The Challenge to f ilipino But>incssmen," address of Pres. D. M f!vllp ago l befor e the 7th National Convention of Filipino 13u;; in c~smen. Baguio, Feh. 21 , 196:t "There are nationalist provision;; in Article XII :i.e., S!:!Cs. 2. 3 7. 10. 11. i which critics claim have proven to be a bane rather than a boon for the~ country for ~hey have restricted or discouraged the flow of direct foreign investments. While th<:s!'! prvvi .;; i~ms (see Art. XVI, Sec. 11.) may be very well·meaning and a ppea r to favor the intcrc~t::; of Filipino.;;, over the long haul, t he country and the common good of all .Filipinos suffer. They believe in the ncP.d to am end the Constitution to elimina te these protectionist provisions .
3ti8
TEXTBOOK ON THE PHJLIPPINE CONSTITUTION
Sec. 1
per~ i Hs. The first step towards the sol ution of the problem is, therefore, the creation of massive work opportunities that will absorb the millions of unemployed a nd underemployed labor in our country today, and this can only be done through full and rapid industrialization. (~} The governm ent should natur ally pursue an iudustrialization policy that promotes a high rate of employment. For instance, in view of the magnitude of th e unemployment situation a nd the dearth of domestic capital resource, the government s hould encourage labor-intensive industries first as against those which are capital-intensive.
(b) Also, industrialization need not be associated wi th large business. Small and medium-scale industries require little investm ent but employ more people per unit of capital-us e. (c ) The same is true of "industties that make full and efficient use of human and n atura l resources." (par. 2.) E conomic efficiency minimizes costs of production and prices of goods, thereby making them more "competitive in both domestic and foreign markets." They generate a h igh d egree of e mployment and earn foreign exchange tor the country while contributing to industrialization. These industties should be given greater incentives . (,.d ) Competitiveness implies the ability to compete with imports in the local market a s well as the ability to export and compete in the world market. It me ans producing goods th at satisfy consumers both in their price and quality and are comparable with imported g~ods entering the domestic market. Inefficient Philippine industries cannot survive und er a liberalized global trade era.
Capital and labor are sai d t o be com plementary. With more capital invested in business, more labor will be hired . Hence, any development policy must be de!:!igned to improve the climate for investment in all sectors of the economy. (2) Based on sound a_gricultural development and agrarian reform. Stati stics show that ove:t 70% of the country's population of about 65 million are totally dependent on agri culture. It is not only the main source of livelihood. It is also a source of supply of food, industrial raw materials, labor a nd ca pital for other sectors of the economy, 6 and ex port earnings. I t provides a market for products of industry. Agricultural development is important to a low-income country like the Philippines with a large agricultural basf!. It should be gi ven more attention before undertaking large projects in industry (e.g., shipbuilding) or even large-scale public works projects (e.g., superhighways). Agrarian reform takes on a central posi tion as component of policies for raising agricultural productivity. (see Art. XII, Sec. 4. )
In fact, the P hilippines cannot industriRhze without agricultural dt!velopment and agrarian reform. Industrialization needs surplus agricultural "The agricult-ural
~ector
is a significant fa ctor in GNP and GOP.
(~;upra.;
J5H
ART. XIL- NATIONAL EC0~0~1Y AND PATlm.!ONY
Sec. 1
crops as raw materials from developed agriculture and agrari.an ref()rm, mass purehasing power resulting from increased income of tltt:> rural population, labor snpply reh.>ased from the agri<.:altural sector a:-; it ancreases its productivity, and capital from savings of farmer!; and lando\•;ners and from lands (:l)vcrcd by agrarian reform. Agriculture as a source of export earnings even assists industry in providing its foreign exchange need~. The country can no longet· afford to neglect agriculture in a premature effort to industrialize. All the "tiger economies" of Ea;;t Asia have anchored their industrialization on agricultural modernizatil•n. · . ~3J Balance between agri~.:ultural developmdit (I nd industrialization. In mandating the promotion of industrialization and full employment based on or consistent with sound agricultural de\'elopm(•nt and ns!rarian reform, the Con!:ltitution means that the State mu~t pur5ue an agro-industrial strategy of support for hoth agriculture and industry with the former providing the vital support to the latter. In other words, the primary emphasis shaH be on agriculture and as agricultural growth is being achieved, the emphasis shall increasingly shift to ind~::strial development.
(41 Adoption of' a flexible economic polic_;·. -In any en~nt. ''all sectors of the economy and all regions of the country shall be giYt-n optimum opportu· nity to dPvelop" (Sec. 1, last par.}, meaning that the State can adopt a flexible policy to decide on the appropriate balance between agriculture and industry at any stage of the development process that will best achieve the goal~ of the national economy. Agricultural deYelopment must be pur· sued not at the expense of industrialization but on a complementary basis to insure the growth of both. Protection of Filipino enterprises against unfair foreign competition and trade practices.
The pt"otcction guaranteed is not against foreign competition but uufai!:
for:eign_compclitivu and unfair. foreign.~rade practices,. The
goYt:rnn~\."::1:
may grant protection through high tariffs or even import control.:; to :-·(;Cln~ and growing Filipino indu:.->tries to shield them from undue foreign <'orr.pt-:ition in thei.r infant stages. ( l1 P<~nrwnent protedion not contemplq.ted. -- But protect 1(•:: intended as a permanent support for "non-infant" enterpris.-~.
i~
not
Absolute protection creates an t.>conomy of ind'ticit-~t :ndu.6tries producing poor qualjty products exorbitantly prict'd. th<: high-eo~t of which is borne by the people particularly the poor. !Oimply hPcau::le they (.f'-1.
7A ~~lund rural devclopm.:-nt program is the antidote to th(· anrE-stricted rural-to-urban populaLion mo\".:!mt•nt. Such program wvuld E-n<'ourag<: rural prJpu;ations to remain in their provinces or town::; for it is <>xp.ected that employm~P.: c.~pe;rtunities and better living C(>nditions would be gcncratt:d bv ~hP. program. Tcchnu'a: ;kilis and agricultural training should be a vital component of the pwgram to a:;sur.:: it!' long-term success.
360
TEXTBOOK ON THE PHILIPPINE CONSTITUTlON
Sec. 2
a r e not subject to sufficient competition. It perpetuates the "colonial mentality" of Filipinos to prefer foreign goods a nd not local products. 6 (.b) Fur thermore , it deprives the government of revenues by reason ofreCluced imports or ban on imports. 9 Where quantitative controls are imposed, the tariff revenues tha t otherwise should have been coll ected, go instead to the specific protected manufacturers. This is especially without j ustification if the "infant" industry has developed to become successful. Having attained greater efficie n cy, the price of its products should fall and, hence, benefit consumers. (S) It is a lso prejudicial t o some in dustries t hat need impor ted r aw materials for processing of products for domestic sale or expor t. (d) Finally, the Constitution reject s t he principle of absolute protectionis m also becaus e it would invite retaliatory measures by other countries. ( 2 ) W..hen .Pr.C!~~~.Jjof!-..iJ!:.~tj[~e_4_. - On the other hand, tari!fs and quotas a nd other barriers to trade (e.g., quarantine regulations for agricultural products and standard regulations for industrial products) may be a fea t ure of the trade policy of other nations, or multi-national corporations ...rloing business in the Philippines may resort to unfair trade practice::; (e.!{., ..dumping of excess products, · excess ive charging for royalties . denial of access to t echnology, etc.) which are injurious t o local industries. In such case, the government mus t t ake meas ures to pr otect local industries.
The Philippine government has the exclusive right t() defin e ·.vhat shall constitute unfair foreign competition or trade practices j ustifying protection of Filipino enterpris es.
SEC. 2. All lands of the public domain, w at ers, minera ls, coal, p etrole um, and other mineral oils, all forces of potential energy, fisheries, forests or timber , wildlife, flora and fauna, a n d other n a tural resources are owned by the State. With the..exceptiQD..9f ~Jrri~!!Jll!t:~l.J.~t:l~~' ..!!ll. Q~h.~t . !1.!\!'!!l.:l.iJ. _,rEIS~!l,t~t;~s sl!.~U ... l10t b e .alienate d. The exploration , development, and u t iliza t ion ofnat u· .=airesources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or a ssociations a t leas t sixty per ce ntum of whos~ capital is owned
&'J.' he failed economic policies of rhe past continue to aff~:~ct th•': l:oun try. The culprit is excessive protectionism which has stifled competition and the grow~h of c nte rpri se t:\ a t the gra!H>root;; l evel a nd allo wed a favored few large-scale, capital intensive, and urb11n·hased industries to enj oy m onopoly privilegel:i and benefits from th~ir dominance of key J;ecton; of t he Philippine economy. 9 High t ariffs on impor ts an d import controls in the pa;;t had made smuggli ng profitable for ~he clever with poli t ical connections.
ART. XII. - NATIONAL ECO~O~tY AND PATRIMONY
361
by such citizens. Such agreements may be for a period not exceeding ~Ye}!~$, renewable for not more than-twenty~ _fiy~ y~~!:..~ and under such t erms and conditions as may be provided by law. I n cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of w ater power, b eneficial use may be the measure and limit of t he grant. The State shall protect the nation's marine wealth in its archipelagic wate rs, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale u tilization of natura l resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. 'J.1l:~ ~esi~~pt
may enter into agreem ents " jtb foreigninvolving eit:b.~r. techn.ic~_Q:r_ ~ancial assistance for ~~.ttc_~.e explorati9J;11 cleveJgpment, ~~L~tiliza·
.C?W:ll.e~.. ~Q..-.;:po.rations
ti~m. Q{Pl.in_e_rab~ petroleum.
and .o ther mineraloi Is according to
.the. ge~e-;~1 te~s
and conditions provid~ d by law.,.hased on real ~.ntriputions to tb.e economic growth an~ genera) .~~l(.J!..re oft.he ~o~,n,t!Y. In such agreements, the State shall promote the devel· opment and use of local scientific and t echnical resources. #rhe .P.J:.~~j.~ball_~Q~#'y.J};t~L(:Q.~~~.ss. ()f. (;l_Y~IT. .!!..Q.I!ka<;:t entered into in accordance with this prQvisiOildYithin...t.h.irty
·ciai~.r.iO.~ l!~·~~~ec~tioo.
...
·- · -·-·-·-- -- ·-·· ·
State ownership of natural resources.
The Constitution declares that all lands of the public domain and all other natural r esources of the Philippines "are owned by the State." (par. 1.) In furtherance of the constitutional policy on natural r esources, S~ction 2 }:trohi.bits._the. tr.a.ns.fe..r o.r_c.OD.Ye~ce .to..alie.n.a of_priYa.te.Jands save in ltere~i.~-~ r..Y._.~.!l.S~~s.ig_fl.. (Sec. 7, infra .) U J Our Constitution adopts the &g_a.li.wui.o.c..tl:i.a£. with respect to the natural r esources of the country_ This doctr ine holds that all minerals, coal, etc. fo und eithe;r jrt.pp_P.l~ . lands or in private lands belong to the State_ The adoption of the Regalia.n doctrine was considered a necessary premise for the recognition of the power ofthe State to control the explor ation , development, and utilization of our natural resources. (2) Under the doctrine, all lands of the public domain belong to the State and lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. Unless public land is shown to have been reclassified as ali enable or disposable, and subsequently
36:2
TEXTBOOK ON THE PHILIPPINE CONSTlTV'riON
Sec. 2
alienated by the State, it remains part of the public domain. Occu pation or possession thereof by a person in the concept of owner, no matter how long cannot ripen in ownership. l Objectives of policy on natural resources.
The adoption of the Regalian theory of ownership oYer the national resources of the country was deemed necessary: (-I) to insure their conservation for Filipino po$terity; ~2) to serve as an instrument of national defense, helping prevent the extension into the country of foreign control through peaceful economic penetration; and
(3) to prevent making the Philippines a source of international conflicts with the consequent danger to its intern al security and independence.
With respect to the second and third objectives, an example is atfo rded by the case of Texas. This state was originally a province of Mexico. In order to insure its rapid settlement and development, the Mexican government offered free land to settlers in Texas. Americans responded more rapidly than the Mexicans and soon they organized a revolt against Mexican rule and then secured annexation to the United States. A new increase of alien landholding in Mexico has brought about a desire to prevent a repetition of the Texas affair. Accordingly, the Mexican Constitution of 1917 contains serious limitations on the right of aliens to hold lands and mines in Mexico. 2 The tendem~y of present legislation the world over is t.o place natural resources under public ownership and controP
~nation of agricultural lands ·
of the public domain.
The State is not authorized to alienate, not even to Filipino citizens, ~he natural r esources of the country. Only agricultural lands of the public
domain may be alienated (Sees. 2, 3.), and only to I•'ilipino citizens. Alienation is allowed because other provisions insure their conservation and development by Filipino citizens (see Sees. 3, 5, 7, 8, 10.) so that such lands may be utilized and developed for the benefit of Filipinos.
'C.A. No. 141 (Public Land A~_:t), a!! ame nded by R.A. No. 9176 (Nov. 11, 2002), provides for the filling of applications for administra tive legalization (Free Patent} and judicial confirmation of im perfect and inc(•mp!ete titles to alienable and disposabl e lands of the public domain, e~tending the period for filing until ..»ecember 31 , 2020. 2 Report of Committ ee on Nationalization and Preservat ion of Lands and Other Natural Resources, 1935 Constitu tional Con vent.ion. ~v.G. Sinco, op. cit., p. 447.
Sec. 2
ART. XII. - NATIONAL ECONOMY AND PATRIMONY
. .Exploration, development and utilization of natural resources. (1) Former scheme. - Before, the exploration, etc. of any of the natural resources may be granted by the government by license, concl:!ssion or lease to citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned by such citizens. Th e role of the goYernment was merely to give the permission.
Under the licensing, concession, and/or lease scheme, the government benefited from such activities only through fees , charges and taxes. Such benefits were very minimal compared with the enormous profits reaped by the licensees, concessionaires or lessees who had com plete cont rol over the particular resource over which they had been giYen exclusive right to exploit. Moreover, some of them disregarded the con:;ern1ti on of the natural resources. (2) More active role by the State. - Section 2 now requires that the Sta te should take a more active role in the exploration. developm ent and u tilization of natural resources. It provides that such act i ,·i tie~ sh:'\11 be under the full control and supervision of the State. This is ccmsistent with the declaration that all the natural resources of the country are owned by the State. It is also in recognition of the importance of ou r natural r esources to our n ational security and economic development. (3) Options available to the State. - The State (a) may un dertake such activities directly, or (b) it m ay enter into co-production. joint Yenture, or production-sharing agreements with Filipino citizen~ or corporations or associations at least 60% of whos e capital is owned by such citizens (par. 1.), or (c) it may enter into agreements with foreign-owned corporations for large-scale exploration, e tc.• (par. 4..) :I'he old system whl:!reby the natural resources a re explored, ~tc . 1 by license or concession without any participation of the State is no longer allowed. With the new role, the State will be able to obtain a g reatc~ r sh ara in the profits. It can also actively husband our natural resources and engage in developmental programs that will be beneficial to tht1 nation.'' Period of agreement for exploration, etc., of natural resources. ( 1) The agreement for the exploration, development, or utilization of any of the natural resources may be for a period not e xceeding twenty-five ( ~5 ) years, renewable for not more than twenty-five (25 ) yea rs. (par. 1. )
'These three {3) major schemes are implemented by Executive Order No. 279 (July 25, 1987). 6
1986 UPLC Constitution Project, The National Economy and Patri mony, pp. 10-1 1.
TF:XTSOOI< ON Tim PHILTI-'1-'INE CONS'l'ITUTIO:'-<
Sec. 2
1'his period is believed Long enough for capital , local and foreign, to r ealize profit on investments in natural resources. (2) With respect to water rights for irrigation, water supply, fisheries or industria l uses (other than the development of water power in which case the 25 -year limit is applicable), the mea::>ure and limit of the grant is their beneficial use. (/ bid.) The peri od of twenty-five (25) year s is considered not a satisfactory criterion for these resources as it might be too short in some cases and too long in others. Agreement for exploration, etc., of natural resources limited to Filipinos.
The agreement for the exploration. development, or utiliza tion of any of the natural resources of the Philippines is limited to citi:?.ens ofthe Phili ppines, or Lo corporations or assuciation:s at least 60% of the cupital of which is owned by such ci tizen~. (par . 1. ) The 60 % equity requirement is intended, among other pu,·poses, for the congervation of indigenous natural resources for Filipino posterity. The participat1on of fureigne rs in the governing bodies of public utilities is limited to th
The State has the obligation: ( 1) To protect the nation's marine wealth in its arc hi pelagic waters, territorial sea, and excl usive economic zone \see Art. 1.); and
{ 2) To reserve its use and enjoyment exclu.c:;iuely to Filipino citizens. {par. 2. )
Marine wealth includes everything found in the sea, life and non-life. For economic reasons alone, the Philippines is fortu nate to have been an archipelago. Scientists believe that, mile for mile, the sea which covers 70* of the earth's surface will be able to produce more food t han the land. Yet, at present, it is estimated that the oceans supply o_nly about 2(k of man's food. And much of the treasures in the ocean depths are stil1 untouched such as minerals, oil, gas, coal, silver, gold, aluminum, and other resource deposits. At the rate man is destroying his environment and with the world population growing at an alarming rate, he may sooner than expected turn to the vast oceans and seabeds for survival - economic or otherwise. With new technology and scientific skill , the sea can be the inexhaustible source to meet the world's need for food , water, and e neq,ry. The r eservation of our marine wealth for the use and enjoyment of
s~c .!,!
ART. XII. · NAT IONAL E CO :\O~lY A>iD PATH!t.IO~Y
365
Filipinos is directed at the unfair competit io n pos ed by fully t!quipped foreign vessels that poach on Philippine w a t e r :;..•· Small-scale utilization of natural resources by Filipinos to be allowed.
Aside from the t.hree <3 ) major schemes fo r the exploration, de"e lop· ment, and utilization of our n a tural resource:;. Congress may, by lay;, allow ( 1) their sma11-scale uti lizat ion by Fil ipino citi7.ens. a~ well as (2Ycooper ative fish farming with pri~rity to subsistence fi:;h(>rmen and fishworker s in rivers, lakes, bays, and lagoons. (par. 3; see Arr . XIII. Sec. 7.) The provision is in recognition of the plight o f forest dwellers, gold panners, marginal fi shermen and others simil a rly sit uated who exploit our natural resources for their daily sustenance a nd ,;urYi\·al.' Technical or financial assistance agreements with foreign-owned corporations.
This refers to the third major s cheme for t he explor ation . development, and utilization of our natural resources. The Con,::titut ion imposes the foll owing conditions on such a greeme nts ente red i nt l) hy the President : (.1.') The a greement must involve only either technica l or financial a ssista nce; ( ~) Tt must be for large-scale exploration, etc-. of minerals , petroleum and ot h er mineral oils;
(;3-) Its provision s must be according to tht' g.,.ne ra l terms and condi-
tions provided by law, based on re al contrib ution:'= to the economic growth and general welfare of t he coun try; (4) The President 8hall subsequently notify Congress of the contract with.in 30 days from its execution; and (!;) In su ch agreement, the State shall promote the development and use oflocal scientific a nd technical r esources. nast pa r .)
Under the form er servi ce contract provision of t he 1973 Constitution, exclusive management and control could be given to foreign service contractor, thereby legitimizing that which was prohibited by the 1935 Constitution - the expl oit atiofl of the country's natural resources by foreign nat ionals. The new rul e recognizes the need for foreign capit al and technology to develop our natural resources without sacrifi cing our sovereignty and control over such rf'sources since the foreign ~ nt.ity is j11st a pure
6 R.A. No. 8550 t Fe h. 25. l~J9 !, '· o)t!'Jcrwise known ns : "Th£: Ph ilippine FiE; h.eries Code of 1998 .'' providos for the deve-lopmen t . man <~ ge :'IH· nt . and conser \'iJt ion of th e fisheric~; a nd acqu11tic r esources, a nd integrat es all la w" p~:runent thtri'H.>. 1 1986 UPLC Constitu t ion Pmject. not!' 4 . p. 11
1
TEXTBOOK ON THE PHILIPPINE CO NSTITUTION
Sec. 3
contractor nnd not a beneficial owner thereof.8 Note that service contracts are permitted on ly with respect to those enumerated in No. (2).
,_
SEC. 3. l,ands of the public domain are classified into agricultural, forest or timber, mineral lands, and national p arks. Agricultural lands of the public domain may be further classi· fled by law according to the u ses to which they m ay be devoted. Alienable lands of the public domain shall be limited to agricul· t.ural lands. Private corporations or associations may not hold such aliena ble lands of the public domain except by lease, for a period n ot exceeding twenty-five years, renewable for not more than twenty-five years, and n ot to exceed ~~~_!~_ll.~~8.:~.~ ~!_~~~~!"~§ in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hecta res thereof by purchase, homestead, or grant. Taking into account the r equirements of conservation, ecol· ogy, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of land s of the public domain which may be acquired, developed, held, or leased and the conditions therefor.
~sslfication of lands of the public domain. Thi~ provision classifies lands of the public domain into four (4) categories according to their specific uses, as follows:
m
Agricultural. - Land devoted principally to the raising of crops such as rice , ~mgar, tobacco, coconut, etc., or for farming; (2'} Forest or timber. - Land producing wood, or able to produce wood, or if agricultu ral crops on the same land will not bring the financi al return that timber wiJI , or if t he same land is needed for protection purposes;
(/J"(Mineral. - Land in which minerals exist in sufficient quantity or quality to justify the necessary expenditures to be incurred in extracting and utilizing such minerals; and
V¥(/vational parks. - Land maintained by the national government as a place of beauty or of public recreation, like the Rizal Park, or forested land reserved from settlement and maintained iri its natural state for publ ic use (as by campers or hunters) or as wildlife refuge. Congress may further classify by law agricultural lands of the public domain according to the uses to which they may be devoted. For instance , they may be classi fied as residential, resettlement, grazing, etc.
~Ibid., pp.
11 -13.
Sec. 3
ART. XII.- NATIONAL EC0:\0:0.1Y A!'J"D PATRIMONY
367
Basis and rationale of classification.
(1) The classification of lands of the public domain is based on the nature of the land. Under the 1973 Constitution, they are classified into agricultural, industrial or commercial, residE-nria1 , resettlement, mineral, timber or forest, and grazing lands, and such other classes as may be provided by law.' (2) The rationale for the change is to limit the lands of the public domain which may be alienated to public agricu ltural lands. This would prevent the widespread and indiscriminate d isposition of public lands, e specially timber and mineral lands which occurred in the past by the simple expedient of classifying such lands into industrial, commercial, residential or resettlement laads. The new classification provides a safeguard against land speculation. 2
Determination of size of landholdings and conditions therefor.
The Constitution authorizes Congress to detE-rmine by law the size of alienable lands of the public domain which any qualified individual , corporation , or association m ay develop, hold or acquir e. or lease, and t he conditions therefor. In the exercise of this power, Congress must take mto consideration the conservation, ecological,a and developmental requirements of the natural resources and subject to the requirements of agrarian r eform. (Sec. 3.) This is so because there are irreplaceable natural re~ources. There are also those that have to be replenished, like timber. If ther(! is no requirement for reforestation, for..example, our couniry may become a desert. According to studies made(~2% of the land area of the Phil ippines should be forest in order t
The extent of landholdings by individuals and private corporations satisfying the nationality requirement imposed by Section 3 (supra.) is subject to restrictions imposed by the Constitution, as follows:
' Art. XIV, Sect.ion 10 thereof. UPLC Constitution Projod, Note 4, p. 21. JP1·e~cnt. la ws on environmental protection are Presidential DecrtJes No. 1121 iApril 18, 1977"1 which createl' t he Natioo ni'E n vironment Council; No. 1151 which embodie;, t he Philippine environmental policy; Xo. 1152 !Jnn e 6, 1977) ~nt.i tled "Philippint> En vi ronmental Code" which prescribes environment qualily s tllndards; and No. 1586 iJune I I., l 978• which establishes an environmental imp;H.:t ~tatem•~nt sy~tem bast>d on the environmental st:lteml'nt required (under Pres. Decret• Ko. 115li of all go"ernment and private entities for e,·ery proposed project and undertaking which signiftcantly <1ffect~ the quality nf em·ironmt>nt. L'nder Article II, Section 16, the State is mandated to ")-totE•d and l:ld,·an"e th" right of the pii>vple to a balanced and healthful ecology in accord with the rhythm and harmony of n1:1ture." •Del. .J.A. Madridejos, Sr.. "The Patrimony of the Nation,'' in C.R. Montejo, The 1973 Constitution, p. 250. ~ 1986
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
368
Sec.3
(l J....fu.div.idual,_- The maximum area of public agricultural lands that may be acquired by purchase, homestead or grant is. 12 hectares (reduced from 24 hectares) and by. iease, 5oo -·hectares. ·Aside from purchase and homestead, grant by t he Sfate_h.as been added by the 1984 constitutional amendments to the 1973 Constitution as a new mode for the acquisition of lands of t he public domain by individual citizens. Aliens may lease private ~I?:~~----~-U.~. not l a~~s__?.!..~l)~ p~~h~ _ 4_()I.Ilfli!b and · ··· ··· · .... ···· · -- ······· ··· (2) C.Q.T:PQra_tioT?.§__a_rJd. JL?..SQ9.~~tj_g_n_~- - The maximum area that may be leased is 1,000 hectares. The lease period shall not exceed 25 years renewable for not more t h an 25 years. 6 Priy.ate corporations..o:r _a.l;lsociat.iQn~-~yen liV.i.th.~.l90%. Filipino. capital, can qo longer acquir~ }ap_ c,is__ g_f_.t_b_~ ___py_b_lic d_qwain by purci?~~e- The prohibition limits. land owner ship t o private individuals who may acquire not more than ~2 h ectares. Qualified corporations and associations may acquire p,riy~te lands but not alienable lands of the public domain except by lease.
One of the controversial constitutional amendments to the 1973 Constitution ratified by the people in the 1984 plebiscite is that which gives to thE' government the authority to grant alienable and disposable public lands to qualified individual citizens. By grant, of cour se, means that the recipient will not pay for the land, although he ma y be made to shoulder the cost of titling and sur veying. A~ conceived, the grant or distribution of public lands will be integrated in the agrarian reform program which the State is mandated to undertake (Art. XIII, Sec. 4.) and which is now being administered by the Department of Agrarian Reform . Propone nts of th is amendment claimed t hat it is necessary and desirable for the following reasons: ().) It is a timely step in making vast parcels of idle public lands avaH'able to the less fortunate citizens a nd in boosting agricultural production in the country; ~Jbid. l.Lo.dilr.f.r~~id,ential Decree No. 471, the maximum period allowable. for the dura· J:ion.oU!.1.aSeS. Q(.W:lY.
u pon mutua l air~..2i..D.9.ili.Jn.~.U114.l~J!e~tt: ~Ayog
vs. Cusi, Jr., 118 SCRA 492, Nov. 19, 1982.
ART. XIl. - NATIONAL
EC0~0~1Y
A::-iD
PATRI ~f();-.;y
369
(2) Before the amendment, individual citizens could acquire in ownership , allenable lands of the public domain either by purchase or by homestead in areas not to exceed 24 hectares. ~l ost of the landless small farmers, who comprise the majority of the rural population, cannot afford or find it burdensome financially to acquire public lands through purchase. On the other hand, the other mode of land acquisition is often too tedi ous and complicated. The cumbersome requiremenr ,; and procedures pro\·ided in the Public Land Act IC.A. No. 141, as am E-nded. I tend to discourage qualjfied applicants. Thus, only individuals with considerable resources have been ahle to acquire public lands, defeating ~he con stitutional inte nt to benefit small settlers in ~he distribution of public lands to uninformed hut deserving citizens within a relatively short period of time; (P'} The land grant is designed to benefit only qualified farmers, landJess agricultural workers, and other landless cit; z~n ::.. ~1oreover, the Department of E nvironment and Natural Resources ha::. a lready reduced the maximum limit of 24 hectares to six <6) hecta res ~to easure that every landless Filipino will have the opportunity to acquire land. " Under t he resettlement program being implemented by the De-pa nment of Agrarian Reform, the maximu m limit is also six (6) hectare s: <4·) A simple method of land acquisition ha,- become imperative to legitimize the tenure of some three million la ndle-5-s agricultural workers and landless families now occupying or "squatting.. on public agricultural production and economic development; and ( ~) The a mendment gives more meaning and ~ubstance to existing provisions of the Constitution on social justice and renders public land distribution mor e honored in practice than in theory . Besides, impleme nting legislations will provide safeguards to prevent abuses and to ensure that public lands of suitable areas will go to the reall y deserving. Those against the amendment have expressed fears of its being "abused" contending that it involves too vast a power to give to anyone, involving as it does the patrimony of the nation which the government is duty-bound to preserve and protect. It is bad policy to grant - which means without payment -lands of the public domain to any citizen which term covers not onl y natural -born but also naturalized citizens, simply becaust! he is landless, without occupying or cultivating or working for it. Furthermore, the amendment was claimed to be unnecessary because the 1973 Constitution already provided sufficient bases for appropriate legislation under the "social justice'' doctrine to .achieve the same objectives. 7
7 "Thc present provi ~ i o ns of thP. 11973) Constitution tbc fl)re t.he 19H4 Amendment ! a re adequate to s up port any program of the government for t he grant of publ ic lands to qualified a nd deserving citizens or the implementation of urban land reform. Homesteads and free patents are 'grants.' x x x Questions -:\os. 3 and~ lamendmec nt;; to Sees. 11 and 12, now Sec. 4 ;~nd Art. XHl, Sec. 9 , re~;pectively ] if ratified with an affirmative vote, will serve, at most a symbolic purpose." (Aimano vs. Alha. 12/ SCRA 69. J a n . 25. 1984.)
TiO
TEXTBOOK ON THE PHlLlPPINE CONSTITUTION
Sec. 4
SEC. 4. The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, mark· ing clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas. Congress to determine specific limits of forest lands and national parks.
As a safeguard against the possible disposition or appropriation of any portion of forest lands and national parks contrary to th0 Constitution, Congress is required: ;0 l To determine as soon as possible by law the specific limits of forest lands and national parks, 1 marking clearly their boundaries on the ground; and
(2) To provide, for such period as it may determine, measures to prohibi-t logging in endangered forests and wntershed arNIS. 2 Forest lands and national parks whose boundaries have bf.'en ma1·ked as provided by law are to be consen-ed. It is prohibited to increase or decrease their areas except as may be authorized by law. The prohibition again~t logging takes into account the need to proiect our dwindling foregt !'esources from further depletion and to prevent flood.;:;, soil erosion,:; siltation, polluted rivers and drought which result from indiscriminate logging, 4 not to mention the loss of other things that make up our fore!'!t, such as the rare 'Many of th.c country's natiunal pa•·ks and nature rc1r'..; :~rd Int. Dictionary. p. ~5~4 .I 'Soil cro;;ion c><:cur:;; more s!:'riously nn dcnu.deci hill;;id~:; nr mountainsides. 'l'htc> erosion Philippim~,;. Wh<•t nat•:re take!! a very long time to torm -·-· 2.5 em. of topsoil per century- enuld be wa;;h.,d away in 20 minut.f.!s o~ l~ss by just one heavy rainfall in area~ wh(•rc land;; are not userl carl~fully. ln the Philippines, water plays a major role in r.ausin~ sna>:sivc soil .. ro- country. barely :3 million hectare~< still have topsoil. In all. about 23 million ht>ctare!; of cultivated and marginal land~ undergo varying degrees of erosion every yeaz·. 1"H.P. Losing Top!loil at Alarming Rate" hy H.D. Tacio. Manila Ru1lt~tin. p. 17, Sept.. 1.3, 1986.j •The pre!
s~c .
5
ART. XU.- ~ATI ONAL E C0.\"0:\!Y AND PA'T'RL\!0:\Y
birds and animals and f1ora which may be uDi que to th e Philippines. As the fores t s hrinks. so docs t he wildli fe population. ;
SEC. 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the app1icability of customary laws gove rning property rights or relations in d e termining the ownership and extent of ancestral domain. Protection of rights of indigenous cultural communities to their ancestral lands.
Section 5 expressly recognizes the legal existence a nd Jdt>n tit~ of indigenous cultura l communities (see Art. II, Sec. 22. J and ~heir rights with respect to their ancestral lands. {1) Communal ownership o{lands. - In protecting ,:.aid right~ t o in· sure the economic, gocial and cultural well-being of the indigenous cultural communities, the Constituti on responds to th e sad plight of the~e communities. The gravest problem t hey face deals with ownership - their being evicted from the lands they have occupied, lived in. and tilled s ince time immemorial. This social injusti ce stems from the ha=--ic d ifference bctwt!en the modern con cept oflandholding and that of t he cult ural minorities. The latter have a lways r egarded a ncestral lands as communal property bel onging to the tribe or cla n as a whole, and may not. therefo re, be titled exclusively by one per son or fami ly.
Moreover, given t he pove rty and illiteracy in thE:>se communities, they are handicapped by t heir inabi lity to articulate their needs especially their alternative jobs and sources of livelihood. Worldwide, the fo rcf;t~ are said to be disappeari ng at the rate of about the size of a football field eve ry se~~ond . Foresls, like coral rl!efs. r ivers, oceans , and lands, are compll!te eco-sys te ms. ~umher ll!ss flora and fauna live in forests and depend on them for thcil' existence. E a~: h of thc:RC' iH.:osystems is interdependent with one a nother. Altogether, they di o>play the vC~ri e ty and richoe~>s of life vi tal to hum11nity's el(istencc and future. Fores ts provide human ity many things - recreation, leis ure, and gro unds for relaxation . They serve lo enr ich humf the world's richt~;,;t gro up ph>n t an d anim lll s pccil'11. They har bor about 8 .000 :lse in the world. Forty-four percent of the world's bird species. a nd 64 P'-'rcent of the w<'rld·s ma mmals exi:;t only in our cou ntry. Such a treasure tro\'e must b<' con::E'r,·ed an d prci'e n ed. Sustainable deu~tlopment means "insuring that development meets thf.' n e~ds oi the pre;;ent wi t hout compromising the ability or fut.ure generations to meet th~ir own need:> ...
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
372
Sec. fi
t
claim to ownership. 1 Consequently, the indigenous people under what is called regalian doctrine (see Sec. 2.) and the torren.s system ofregistration of la nd titles introduced by American rule, lost their legal rights to the lands they occupied and cultivated and had to compete with other individuals applying for land titles. (2) Applicability of indigenous customary laws. - The Constitution has opened the possible State recognition by means of legislation of the applicability of indigenous cust omary laws governing property rights or relations, as part of the laws of the land, in determining the ownership and ext ent of ancestral domain. (par. 2. i Ancestral domain embraces all lands located within and generally belong to what is called a "cultural region," including lands which are not yet strictly occupied . It is to be distinguished from ancestral lands which refer to the occupied portions of the ancestral domain. Thus, deep forests that are not yet in effective use are part of the forme r but not yet a part of the latter. Th e constitutional mandate will, in particular, greatly benefit cultural communities in Mus lim Mindanao and the Cordilleras as well as the Mangyans in Mindor o and various Negrito groups. It will go a long way towards t he solution of th e insurgency problem in the areas where unresolved land conflicts forced many of such cultural minorities to take up arms against the government.
SEC. 6. The use of property bears a social function, and all .economic..~~~nt~hall contribute to the common good. Individua ls and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, e stablish, and operate economic enterprises subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. Use of property bears a social function.
This principle is discussed under Social Justice a nd Human Rights. (Art. XIII, Sec. 1, par. 2 .) In pursuit of the ends of social justice, "the State s hall regulate the acquisition, ownership , use and disposition of property a nd its increments." In addition, it may be mentioned that the right t o own property is derived from the right. to use it. Man has the right to use things in general for his survival or development. In other words, m a n h as the right to own things because he has the right to use things. This is the reason why the right to property cannot be unlimited. Its use necessarily becomes relative 1
1986 liPLC Con8titu tion Revis ion Project, note 4 . pp. 15 -16.
SE:'r.
o
ART. XII. -
NATIONAL ECOl'\0.:\fY :\:\D PATRIMON Y
37:3
to the rights of others. It bears a social funnion and must contribute to the common good . (par. 1.) Right to own, establish , and operate economic enterprises.
(1) Many economic systems.- Different economit: systems have evolved in history. Today, the mo~t common forms are ~?_Qi_l~.H~..m. ,.so~ and communiam but the cen tral aim of each is tht- same: ~ -lll.Qre__.~ujtahl e Q.ilit.ribution of goods or wealth, or_dlitr:ibut{{!e justi('t:. The main difference is in the mechanism to accomplish this aim.
t'2 l F1·ce en terprise s.vstem. - Under this ~ys: (.>m. often called "f.tee Qrivate CJl!.Q.mU:ie.,'' private individuals or association;: c,f persong can own and operate business enterprises risking their own n:,:.•.mrces and thereby taking t.he profits or the losses in consequence. This system assumes that a man's self-intere::t will induce him to employ h is capital such that it will give him the greatest val ue, i.e., produce at Iea:>t cost tho~e things for which there i:< biggest dt-!mand. In the process, without actually intending to, he promote~ the public interest. Consumers buy a ccording to the ir preference!-! depend ing on the price and quality of goods and services. As a consequence, co~t,; , prices, and profits are established at minimum levels. Efficient husine:;;,; enterprises receive larger return~ tha n inefficient ones. Thus, efficient utilization of r esources i~ encourttged, and production (volume and types of products ) is adjusted to demand. Competition is tht~ r egulator of econom ic activi tit~s. The motto is laissez faire or "let-things-alone" which means that private business should have the widest free dom in the direction of economic a~:tivitie:> with the min imum of government interference or regul~tion. It r ests on the beli ef that social good is best promoted by "less government ." 'fhus, it has often been said, that the private sector, not the governm ent. i;: the engiM of economic growth . (see Art. II, Sec. 20.) ~3 J Intervention by the State. - Frequently, the struggle for econo!i1 ic advantage by individuals and groups may deviate from pure compem:.:m . Sellers may prefer a high price to a low oneA3usiness enterprises may fom1 combinations in order to control price or re~ort to unfair trade practice:;. ,-Competi t ion may be absent or imperfect in some industries becau::.t: of the presence of monopolistic elements . .Products may not be sold on the basis of the quality or quantity advertised. Artificial surplus or scarcity may be created for private gai ns. A group may he exploited by another. ~·aste and ine fficien cy in t he use of resources may result. Und(>r these conditions, public weifare suffers. rNs is the ~.~_'!_S.Q.~..~h.Y..@~e.rnment_regulation of.t.b& ~con omy is necessary.
(j) Regulated capitalism. - The free enterpri~e system does not mean untl ammelled freedom of choice and action of private enterprise. Under. J;b~L~Y.Rt~.m.... ..th..e...int_e:rf.s.ts uf tb£LCUD.'3u.tners come_fust. Ours then is regu-
TEXTBOOK ON THE PHILIPPI NE CONSTITUTIO N
S er.. 7
lated capitalism. In the words of the Constitution, it is ''the duty of the Sta te to promote distributive justice 1 and to intervene when the common good so demands." Government intervention t a kes many forms, such a s through price control, inter e st rate ceilings, r ent control, exchange and import controls, control of money and credit, u!'le of tax and spending powers , grant of subs idy, e tc. SEC. 7. Save in cases of hereditary succes sions, no private lands shall be transfe rred or conveyed exce pt to individuals, corporations, or ass ociations qualified to acquire or hold lands of the public domain. Acquisition of private lands.
Private lands are lands of private ownership. They include those owned by private individuals, corporations, or associa tions and those owned by the State and municipal corporations Oocal gove rnments) which are not intended for public use (e .g ., roads, public parks ), or for s om e public service (e .g ., la nds occupied by public schools or public buildings), or for th e development of the n a tiona l wealt h . (s ee Sec. 3 . .1 Only those who ar e "qualified to acquire or hold alienable lands of th e public domain" m ay acquit·e private lands. Under th e Constitution, private la nds may be transfe rr ed or conveyed to the following: (1) · Filipino citizens; ( 2) Corporations and a ssociations at least 60% of the capital of which is owned by Filipino citizens (see Sec. 2, par. 1.);
(3 ) Aliens but only in cases of l;l e redit ~.£Y .§U£~S~£l] (Sec. 7. ); and
(jl) Natur a l-born Filipino citizens who h ave lost their Phili ppin e citizenship su bject to limit ations provided by law. (Sec. 8.)
Prohibition against alien landholding.
Th e above provision is intended to assure that th e limitation in the dis position of lands of the public domain in Sections 2 a nd 3 is not defeated or rendered nugatory whe n s uch lands are conve rt ed into private lands. T he phrase "herediw_y_s uccession" in Sect ion 7 which enables aliens to a cquire private lands sh~uid ..be.int:erpreted to mean ~p~~gate s!!_ccessioq. 1 Jt applies part icu larly t o t h e St ate. It is the part icu lar obligation of public officials and is violat.ed by favor itism and partia lity. As its name indicates, it requires a fair a nd proper distribution of public benefit a nd burdens a mong t he m embers of the community. The ter m is ttl be distinguished from commutatir.;e j u:.;tice which exists between man and man or between groups of men negotiating on eq ual t crmR. Thus, in a contract , when one fulfills his part, jus tice demands the other's fultillmont of his part. One who h as deprived another of somethi ng wt·ongfully is obliged in jus tice to restore it to him. Commutative justice remains violated until proper performance, compensation, or r est itution hM been made to restore ba la nce of equality. (Right Reason by Austin Fagothey, S.J., :3rd e d., 19 63 , pp. 202-203.)
Sec. 8
ART. XII. - - NATlONAL ECO!'l'O.\IY A!'illl'ATRL\10l'
3i5
(bx_uue.J~JioP._9.f law) and1 i'J..Q1 .testamen• an:.....~.l.u;cessi!lll~through a testament or will); otherwise, the prohibition will be for naught and meaning-
less. j\ny alien would he able to circumvent the prohibition by paying money to a Filipino la ndowner in exchange for a devise of a piece of la nd. 1 Consequence of violation of prohibition.
Restoration ol the status q uo. - _A_ ~ale of land ~Q. violation. of the PfQhjl.!_itiQp __ ~~~~~!:_the _!;ransfer of lands t o aliens is void. This being the case, the parties should be restored to the position they occupied before the s ale took place. In other word£.. the seller can recover the land from t he buyer (alie n) who ha!i a right tv be reimbursed with the amount of the purchase price. ...--But if the land had been ;;old by the alien to a F ilipino citizen qualified to own a nd posses:> it. the sale to the latter cannot he questioned anymore as t he land is alr e a d~- owned by a qualified person .2 (2 ) Where violation disguised. -The public polic:-; ro Cl)n serve lands for the Filipinos would be def(!ated a nd it.::; continue d \'iolation ~ anctioned , if the courts would not order the restoration of t he property. And the parties will not be permitted to r l:lsort to another transa ction for the purpose of disguising the t ran sfer in violation of t1'te Cons titution. Accordingly , it has been h eld that a contra ct whereby an alien is give n not only a lease but also an option to huy a parcel of land by virtue of which the Filipino owner cannot sell or otherwise di spose of her property, this to las t for 50 years, is a virtual t ransfer of owner Rhip and circumvents the constitutional ban against alien landholding. 3 ( 1)
COl.l.Stitution.~l
SEC. 8. Notwithstanding the provisions of Section 7 of thi s Article, a natural-born citizen ofthe Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. Right of natural-born citizens who have lost their citizenship to acquire private lands.
Section ~--p-~ r_l_!lits _n.a~~!"~J.:.l?.~!!l . .f~l~Pirws 1 _ Wh!Lhave lost their citizen~h._ip ~o__l>_~_i! __tr:~.Q~f~_re~ _ of pr_ i v~t~_l_a~g-~___( ty~t ~aQd~ _qf t he public dom1iinl. Congress ma y, by law, provide limitations, e.g. , maximum art'a ofth£> land <.
v,:_ Vda. de R~pt. 12. 1867. 1Ram irl!-r.
2 H E'rrcra
1Scc Ci li7en skip Ret e>n ti on s an d Re<•cquisitiun Section 5.
.~ct
\'i'
Fu ng Pak Yuen, 120
cR..-\. :-\o. 9225. l under Artic-le TV,
3i6
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
s~c.
9
and the use shall be solely for residential pui·pose. 2 It may authorize the acquisition oflands by former citizens for other purposes. The reasons for Section 8 are better explained by the "whereas clauses" of Resolution No. 1 of the forme1· Batasang Pambansa proposing a 1981 amendment (as Sec. 15.) to the 1973 Constitution, to wit:
"Whereas, many natural-born citizens ofthe Philippines have migrated to foreign countries, particularly to Hawaii and other states of the United States of America, where they eventually acquired the citizenship of the countries to which they migrated and as a consequence, lost their Philippine citizenship; Whereas, in spite of their new citizenship these former Filipino citizens continue to maintain their filial links with their relatives in the Philippines and feel a dose affinity to the Philippines and an identity with our people; Whereas, thousands of these former Filipino natural-born citizens expressed a desire to return to the Philippines and reside here permanently so as to be able to spend the remaining years of their lives in the land of their birth and contribute in whatever way they can towards the development of our country and the well-being of our people; Whereas, it is in the national interest to give encouragement to this beautiful sentiment of our blood-brothers and to make it po~sible for them to bring to fruition their expressed desire; Whereas, it would be necessary to amend the Constitution so as to enable these natural-born citizens of the Philippines to own the !.and on which they would reside." SEC. 9. The Congress may establish an independent eco· nomic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.
2 Section 15, Article XlV of the 1973 Constitution limits the acquisition to solely rP.siden· tial purposes. l'nder B.P. Big. 185 (approved :.\1arch 16. 1982), th~ maximum area is 1,000 square meter!; in the case of urban land, or one t l't hectar~ in the case of rural land, including any land already owned by the tr1nsfe1·ee. Effective March 26, 1996, former natural-born citizens can now legally own up to'!i,OOO square met.ers of urban land cr Chree 13J hN:tHres of rural land. CR. A. No. 7042. as amended by R.A. No. 8179. J
AttT. XII. -
Sec. H
~A1'1 0NA L EC0~ 0:...1Y
.-\XD
PA'fH I~10XY
377
Independent economic and planning agency headed by the President to be established.
(1) Need {or a central econ omic plan ning body. - Economic pla nning is an essential part of development policy. It rna.\· cover the whole economy, or only cer tain sectors of it. or parti cular regions of a country. llsually , t he plan is for a spe~.:ifi.c period of time te.g., 5-year d evelopment plan _.. or it may also lay down a long-term fra mework rP..g .. up to year 2010 or longeri. In any case, a development plan s tates the social and economic goats to be achieved and the strategies or means to achit>,·e them within the period covered. It provides guides to the government in undertaking programs and projects to prom ot e economic development . It is, however, n ot an inflexible guide to governmental a ction. It is often re,·ised or adjusted due to changes in economic conditions or unforeseen domestic and external developments affecting the economy. The need for a Cl!nt,·al econ omic planning body tha t will prepare and implement "continuing integrated a nd coordinated programs and policies for nat.ional development'· 1 par. 1.) has long heen felt in view of conflicting economic policies pursued by m a ny governmental agencies in past year s particularly b efore the operati on of the 1973 Constitution . /
<-2! Featurefi and fimctiun.5. - The following a r e the features and functionR of the economic and planning agency which Congress is manda ted to establish:
faJ It is independent. i.e .. it is not subject to the control of Congress in the impl em entation of economic programs and policies approved by t he latter; (b l It is a central body for economic planning and policy. Thus, the drawing of plans, their implementation and control emanate from a central source; (c) It is h eaded by the President 1/bid.j, making it the highest economic poli<:y p lan ning organ. The appointment by the Con stitu t i o ~ of the President as t he head of t he body emphasizes the importan ce <::f the planning process in the government and assures that the e n:;ri? governmenta l machinery will b e mobilized to achieve our de'•e lopmental goals. It j s a fact of political life that key decision-making i : . .:-conomic planni ng a nd implementation is the prim ary respon::-ihiE ty of the political leadership which is h eaded by the Preside nt . Lack of a deq uate gover nment support or "lack of political wiJl" will result in fa ilure in t he implementation of.t.he be.st prepared plans;
(d) It shall prepare programs and policies for nanc. nal development i n con.sultation with the appropriate public ag~ nc:it?~ . various private sectors, and local government units. t Ibid .' Such programs, the refore, will reflect a wide national consens us. In the di ::-c harge of its duties and functions it may call upon any pri\'ate ~ector . p ublic agency, or local government unit for such ,·iew.s or a dYice a:: may be pertinent to any matter under its considerati()n ;
378
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 10
(e) It shall prepare such programs and policies for approval of Congress. Its function is only to recommend. (Ibid.) Hence, Congress may still adopt other programs and policies; and (f) It shall prepare, recommend, and implement "continuing, integrated and coordinated programs and policies":
1} continuing because development planning and implementation is not a st
2) integrated because it has to present a unified set of policiP.S and activities which are consistent with each other covering as it does different sectors a nd regions of the country; and 3) coordinated because cooperation and interaction among all those involved in planning and implem entation are essential to th e success of any development plan.
The Constitution speaks of "programs and policies for nation al development." They include regional developm ent. plans to be formulated after consultation with local government units of the regions. (3) National Economic and Development Authority rNEDAj. - Unless Congress provides otherwise, this body shall fun ction as the independent planning agency ofthe government.l (par. 2.) It is composed of the PreHident as Chairman, and the Director-General of the NEDA Secretariat as Vice-Chairman, the Executive Secretary, and th e Secretaries of Finance, Tradl:l and Industry, Environment and Natural Resources, Public Works and Highways, Budget and Management, Labor a nd Employment, and Interior and Local Government. The President may, however, revise the membership of the NEDA board whenever the same is deemed necessary. 2
SEC. 10. The Congress shallt upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher perce ntage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly-owned b y Filipinos.
'This body was created by Pref.idential Decree No. 1450. ~Administrative Code of l9A7, Title ll. Subtitle C, Sect.ion 5.
Sec. 10
A}{'J'. XII. ···NATIONAL
F. CO :\ O ~IY .~SD
PATRIM OSY
379
In the grant of rights, privileges, and concessions co\'ering the national economy and patrimony. the State shall give preference to qualified Filipinos . The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. Filipinization of certain areas of investments.
Con gress shall reserve t o citizens of the P!-1:::;:: pir:es or to corporation:or associations at least 60% of whose capital i:3 . -,, :-:f:' d by such citizens or such higher percentage as Congress may pre~c:: '::''=' up to 100%), certain traditional areas of investments, upon certain cr·:.C:Jt:•)ns: (1) There is a recommendation by the ecom :-:.:: :1 nd planning agency (i. e. , National Economic and De velopment Autb.·:-:. : :.- until Congress provides ot-herwise); and
{2) The national interest so dictates. (par. 1 The existence of this provision leaves no doub: :.~:·)the con stitut ionality oflegislatiom; implementing it as against thE- c: <-o::-:: that they violate the guarantee of equal protection of the laws which p:•·c
Due to differences in the nature of investment. Congress is given the power to prescribe a higher percentage for certair: a r.:-a:3 of investment so as to provide it a degree of flexibility . 1 Congrcs:< i:" : t-•:juired by the Constitution to enact measures that will encourage the fMr.1ation and operation of wholly-owned Filipino enterprises. (par. 1.! Furt h C' rmore, pursuant to the "Filipino firsl" policy adopted by the Con::;titut ion (see Sec. 12.), the State must give preference to qualified Filipino:3 'although foreigners arc more qualified) in the grant of rights, privilege~ and co ncessions covering the national economy and p a trimony ( par. 2. J, wh ich in cludes not only the nat u ral resources of our country (see Sec. 2. par:5. 1, 2. ) but also our cultural heritage. (see Art. XIV, Sees. 15-16.) While the Constitution r ecognizes the need t o attract foreign capital to develop major industries, it s~eks to insure that Filipinos will continue to be the first in their own land.
1
1986 UPLC Constitution Project. no te 4, p. 4:3.
TEXTBOOK
l)~
THE PHTLTPPTt\E CO'NSTITL:TION
Sec. 10
Existing laws limiting certain activities to Filipino citizens or corporations.
Under present laws, activitiE'!S in the fol1owing, among others, are limited to Filipino citi:r.ens or corporations wholly-owned by Filipino citi~ens:
n) Operation of r~ual banks;~
~Engaging in the retail trade bu;;ine.ss;a
( .() Opcn
1.5') Engaging in tax-free cottage industries;6
qp Contracts for tht·• supply of materials, equipment, goods and commoditi es for the government;" and (7)!)peration of atomic energy fa<:i litics.n Presently, the Board ()f Im·estments is empowered by law to reserve certain areas ofinvestmcntf' to Filipino cilizens. ~ Regulation of foreign Investments.
( ll Sources of investment. - Generally, they art!: domestic savings, government expendit ure!', grants, foreign investments, and foreign loans. In:ve.stment.i.s _~.J:CpeQQ.!_ture~ In economic!", it is also called ·:capital forn~a ti~~- " ( ~.) Kinds of' investrrent. ·- Jt is eit her direct or indi rect in the form of loans _ Din~ct investmerit may be ma de by a foreigner by: (a ) buying stocks or bonds in a local company, (bl entering int o a joint venture (corporate partnership) with a local company or host country, or (c) establishing a business concern or fl fully-owned subsidiary. The parent company may be a multinational corpo,-ation which is an ent erpri::.c dealing with a broad range of products or services with operations cove,·ing more than one country. The count,-y where the investment. is made is called the ·~t_ CQqnt;_r,y'' while the country where the investment comes from is referred to as the "l.!.!>J!l:e country." ·" ---·····~ --
~3)
Benefits and negative aspec:ts of forei gn direct investments.- To the host country, it can be seen as a source of capital , "high" technology, ~R.A . No. 735:!. "R.A. N(L 1180. Tllis law was repealed by R.A No. &762. An Act Libera lizing th e Retai l TrHde BuS;iness. En tt~rprio e.s with ie:;~ than {J.S . 52.5 million paid-up capital are still reserved (!XCiusively fur 1-'i li pino citizens. ' R.A. No. 1407. ''R.A. No. 3018. 6 R.A. No. 3470. 'R.A. No. 518a. •R.A. Nu. 5207 _ ~so.:~; Executive Or der ~o. 226. !he Omnibus Investm en ts Code of 1987.
Sec~
11
381
managerial expertiBe, and t~mployment.. On rh~· <1ther hand. fon·1gn 1nvcf"· ton; compete with domestic enterprises, oft(·:;tHnes repatriatf~ exorhitant profits, may nut provide sufficiently larg~~ L·mph).vment, and ha\·t~ lwcn accused of resorting to undesirable busines~ p:actiecs disadvantageous to the host country. (4) Need for foreign im·estments in the Plu!cppi:·;e.'l.- Given the present state of the economy and the inadequacy of domt-:-~i{· savings, and with the government faced with so many competing dt-mar.d::. on its meager fina.n· cial resources, foreign capital is needed to fill tia: gap in the country's investment requirements. and to be able to acquir~ the technology and managerial expertise needed to survive in the glo!:;~l:zed economy we are now in. Since fin~ncial aids are not easy to come by. played a substantial role in the economic growth and den•lqJ~.t?!'H of many countrie~. A closed-door policy will not be to the national i!!!E-!"E:-~t. On the other hand, an open-door policy allowing the untrammelled t1o..,~· of foreign investments can bring more hurm than benefits to the c·.mntr~·.
The sensible policy is to choose the middle way whl?reby the benefits and negative aspects of the investment are weig-hed in the light of the national goals and prioritiesli ,.,·ith safeguards instituted to jnsure ~~ffec tive Filipino control of the economy. Tradt!·off.~ can~ot be avoided. For example, it would be better if ownership and control of operation:; of public utilities are exclusively in the hands of Filipinos but with our very iimited local capital, an equity percentage of 60/40 in fanJr of Filipinos may b~ deemed the ideal arrangement that strikes a balanc~ wherein Filipino control is still insured and at the same time for~ign equity level is just sufficient to attract much nt.•edcd capital. (6) Objective of' regulations.- In any case, the State shall regulate and exercise authority over foreign investments within its national jurisdiction so as to derive the maximum national benefit from them. (last par.) 'fhe bottom line must always be what is good for the country and the Filipino people.
SEC. 11. No franchise, certificate, 01· any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations 111
Estimated at more than S26 bil!ion in 19.S6 after th(' ·EDS.-\ RHolution." The Board of lnve~tments i:; the a gene:; charged with thP ta>'k of screening application for foreign investments. Cnder the mdu~triai prl.:•n!i(·:-' plan. im·c;;tmcnt areas that arc preferred and encouraged are listed with :;pe-ciiic mcent:,·c~ to undertake the projects that are in the list. (see Pres. Decree l"o. 1';69.; '1
T EXTAOOK ON THE PH ILIPPI NE C:ONST ITU1'lON
iHl2
Sec. 11
or associations organized under the laws of the Philippines at least Rix ty per centum of whose c apit al is owned by such citizens, nor shall such franchise, certificate, or authorization be exclu~ sive in charac ter or for a longe r period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subje ct to amendment, alte ration, or repeal by the Congres s when the common good so requires. The State s hall encourage e quity participa tion in public utilities, by the ge neral public..}.'he participation offoreign investors in the governing body of any public utility e nterprise shall b~ limited to their proportionate share in its capital, and all the. executive and managing officers of such corporation or association must be citizens of the Philippines . Meaning of franchise.
The term fra nchise includes any ;;pecial privilege or right conferred by t he State on persons or corporations. It may mean either the: (~1) Corporate or primary {rand1ise. which is the r igh t granted to a group of individuals to exist and act a.;; a corporation. It is the one contemplated in Section 16; or
(~) Se.:ondary or special franch i~>e. which is the right gr anted to an individual, or t o a corporation afte r its incorporation, to exercise certain power::,\ and privile ge~, including tho;;e conferred for purposes of public benefit (such as the power of em ine n t domain) enj oyed by p ublic utilities (e.g., telephone companie::.;, ieeplants. electric <.:ompanies, etc. J. This is the franchjse referred to in S ection 11. 1
Meaning of public utility. ApyNf...t;__ut.il.jJ.z.. has hf:!e n described a s a business organization which r egula rly s upplies the public with some commodi ty or ser vice, as electricity, gas, water, tn:msporta.Lion, or telep hone ur telf:!graph service. Its distinguishing characteristic is t he devotion of p rivate property to s uch use that t he public generally or t hat part of th e p ub lic which has been served a nd has accepted the service, has the right to d emand that the use or ser vice so long as it is continued, be conductt~d with reasonable efficiency and under p roper charges. 2 ~.!!hl.i~._\l_ti_li_ti.~?. a i:_e__ a,l,r;g. k no~.!l-~.§..~ic_8£!:~~-c~_ ...£1!.!!!-J?.a~t:i.~.!. 3 P-ublic ~ark.et. are public s ervices or utilities under the constitutional provision."
See P eople vs. Quasha, 9a l'hil. :~33. c .•J.S. 5. 3 See C.A No. 146; R.A. No. 776. •Co Chiong vs. Cuadem o, 83 Ph il. 242; Co Chiong vs. Mayor of :Viani Ia, 83 Phil. 257. 1
~51
Sec. 11
A.RT. Xll. - NATIONAL l!:C0:\0:\IY AND
PATRJ:\10:\1~
383
limitations upon grant of franchise, etc.
The limitations upon th~~ grant of any franchi se, certificate or any other form of authorization for the operation of a p:1blic utility are: (l') The grantee must be a citizen of the P!":! li ppines or a corporation or association (a) organized under the laws of the Philippines (b) at least 60o/t:· of the capital of which is owned by citizens of th e Philippi nes. This means that 40% of said capital may be ownt:!d by aliens: (!) Such franchise, certificate, or authori2ati0n shall not be exclusive in character;
(3) Such franchise, etc. shall not be for a years; and
i o ~ger
period of fifty (50)
(4) Such franchise (although it is in the nat ure •:.f a contract between the government a nd the grantee) or right gran:e-ci shall be subject to
a mendment, alteration, or repeal by Congress when the common good so requires. (Sec. 11.) 'The provisiun is a recognition of the very strateg-;c position of public utilities both in our country'~ economy and security. Purpose of limiting period of franchise.
The limitation of the period of the franchise is intended to prevent the grant of perpetual franchises because they will tie tht- hands of the legislature, and t o give the legislature a n opportunity for a periodic audit of the pelformance of the franchise gra ntees. It does not mean, howev(!r, that after the expi ration of the original period, the leg[siature may not grant a new franchise to the existing operator if he h ad proven himself to be capable of s~ n·ing the public. The framers of the Constitution were a wa re of the dire con :sequences of limiting a public utility business to not more than the life of it s original franchise. 5 Equity participation in public utilities.
The State (Government) is cmjoined to encourage equity participation in public utilities by the general public. (Sec. 11.) Broadening the capital ba1;e of dominant and vital corporations removes them from being manipulated against the general interest. lt i s also 11\ line with the con1;titu.tional policy to disperse economic benefits t o as wide a sector of the population as possible. (see Sec. 1, pars. 1 and 3.) The public must be given a wider choice in becoming part owners of corporations that have establi~hed a track record in profitability and dividend payments and also in investing in new entc~rpri ses that have a bright
r.Kentucky Utili t ies C"o. vs. Bllard of C:ommi;;:;ioners. i l SW 2nd. 1024; Ceder Rapids Water Co. vs. Ala. Power Co .. 239 Ala. 54 i .
TEXTROOK
0~
THE PHILIPPINE CONSTITUTIOI'<
Se<:. 12
potential for future growth to spur the development of the capital m arket in the country a.nd promote faster economic g ro-..vth . Foreign participation in any public utility. (1) In vestment. - Foreigners may invesl in public utility enterpris es but to the extent of not more than 40 r; of the capital of the same. (Sec. 11. ) Loans by G\he_n.sJQ._~ ..PY.Pli« .ut.il.i.t.Y .~QWOr9,bQD.JlL~1'..§.9£jati.on ~h.ould not~ con.sidere..d . as J\lJ. "~~3~-~!_P.. ent" under Section 11.
The entry of foreign capital is allowed beeausc the establi shment and operation of public utilities may require th e investme nt of a big amount of capital which Fili pino citizens may not affor d . (2) Gouernin{S body and management.- Foreigners can even be elected to the governing body of any publi c utility enterprises but their numb~ r shall.b@. .limited...to theil: pr.oportion!lJe .?.h_~!~) n the capital thereof. (]bid.) F or example, if the aliens own :=!O(;k of t h e capital of a corporation with a boa rd of ten (10) directors, they ca n elect not. m ore than three (3) a lien directors. Furthermore, ~ll_t_i!~ ..~?!.9..£.~iY.~. ~.n,c\_II.l. a.l'l.aging_ . q_ff.\!;ers_~h-~t~Q f JllJ J§t be Filipin9 cU;_ize_!l~..: (I bid.j The evident purpose of the limita tion and the citizenship requirement is to preve nt aliens fro m C~SSu.ming. control of public utili ties which m ay be inimical to nat ional int erest and at the same tim e permit the i nflow of foreign capital for the operation of public utilities.
SEC. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures tha t help make the m competitive. Adoption of " Filipino First" policy.
This is a ll:>o provided in t.he above section . (1)
Duty of' the State.- The State ;;h a ll:
(a) promote the preferential use 1 by both the government and t he private s ector) of Filipino Labor. domes tic materials, and locally p ro duced goods ; and (b.l a dopt measures to make t hem competitive . (2 ) Aim of policy. - Th e consl..itutional policy is to j:,ri ve preference or dominance to Filipinos in their own country especially in the grant of rights, pdvileges a nd concessions involving our national economy and patrimony, and make them competitive a s against foreigners in both domestic and foreign markets but not to insulate them from foreign competition. (see Sec. 1, p ar. 2, last sentence; Sec. 10, par. 2 .) )t docs not contemplate absolute protectionism which is antithetical to our increasing a s pirations towards econ omic self-reliance. (see Sec. 1, pa r. 2. 1 I t is also the
Sec. 13
ART XU.-- NATIONAL BCONCl:llY .-\:-\D PATRJl\10!\Y
385
constitutional policy to open thf! economy to foreign trade and investment albeit with reasonable ~afeguards. (Sec. 10. last par.) At the very core of the Filipino First Policy is the promotiu::1 of the welfare of millions ofFilipino workers and consumers who will benefit from widened employment opportunities and higher quality but less expe:1;::ive goods and services that re~ult from competition in an open economy. (3) Duty ofhuying public.- Many Philippine-made products are at par with the world's best. It i::; the duty of every self-re~pec.:ting Filipino citizen to buy the products of hi::; own countrymen. By doing so. he helps consern· foreign exchange, boosts Philippine industry, helps domestic producers tv become globally competitive, promotes employment. and stimulates the local economy in general. It is time we abandon the defeatist attitude that we cannot compete with foreigners even in our own home markets.
SEC. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. Promotion of trade policy that serves the general welfare. ( 1) Trade policy as an implement to achieve specific goals. - A trq..d~ Jl!2.LiCY. is a policy affecting exports and imports and domestic commerce
formulated to achieve specific goals. 1 Thus: (aJ High tarifl's or duties, import quotas or e,·en total import ban of certain commodities may he imposed to protect local industries producing simllar articles; (b) Tariffs are made relatively low so as not to discourage imports and thus rai.se more revenues; (c) Import controls are relaxed when they tend to encourage pro· duction of goods that are high-priced and of low quality;
(d) A trade policy may be designed to promote export industries to cam more foreign exchange or the domestic-oriented industries to replace imports; and (e) The government may impose dg_:p1pip...g.ct:ut~ on imported articles in the Philippines at less than their fair market value or countervailing duty on such articles granted subsidy in the country of origin as a protection against unfair foreign competition, or grant subsidy (e.g.. tax exemptions) to a local industry which is not granted to a similar industry. ~old
1Globalization of trade and inq•,;tm
domestic industries and enterpri;e." to :;urvi,·e is to be globally competitive. The world-wide economic struggle among countries ha..; :\pawned a fast-paced search tor new technologies !8ee Sec. H.) to boost their competitin edge.
3~ 6
TI!;XTBOOK
0~
THE PH fLIPPJNt: CONSTITUTION
~ec.
13
(2) Paramount objective of trad.e poli~y. --- The ConlStitution makes it clea'r that the trade pulicy which it r~4uires ihe State t o p1·omote must he one that serves the gen eral welfare. Fo r example, a policy that favor s import substitution I i.e., local manufacture of products over theil' importation), must not be pursued eve n al t he expense of the growth of export industriel3 or in disregard of the right of consumers to quality but reasona bly priced goods. The economy must be open to import~ a nd competition to fo rce local industries t o greater effi ciency, better quali ty, and lower costs. · At the same time, a viable and profitable export trade should be developed to stre ngthen the country's batim.ce of _l)a.xm~-n~~J~.of.>)__ p,o~iti()!.!;_~ It would be good for th e Philippines to seize every opportunity for expanding existing avenues for bilateral trade with other countri ~~ and exploring new ones, instead of relying on foreign aid. Trade conduces to self-reliance a nd independence, while aid encourages contin ued dependence on credit, not to me ntion foreign interfe rence. ~3 ) Benefits frorn international trade. - International trade benefits a country by allowing it to buy from othe r countries, goods ii; lacks, or ca nnot produce better, or can produce only at a higher cost, and sell surplus goods, or those it can produce better and cheaper. The resulting exchange enlarges the availability of goods to the mutual advantage of the countries engaged in it. ( 4:) Exchange rates of' different currencies. -·-- Howeve r , si nce countries use different curr encie::~, mternational trade neees ::; ari l~ inYolvt•s exchanging one into the other at the prevailing r alt> of ~H ha11ge . It is important that exchange rates are fa irly stabl e: ut herwi;,;e, trade and in v~stments are discouraged by the possibility of losses inl·urred t hrough changes in the rates. For example, if th e excha nge r a te of th e pPso to the doll a r is P30.00 and it should suddenly move up to P40.00, exporters would receive more pesos for their exports while import£-rs woul d have to pay more fo r their imports. The exchange rate is determined largely by domestic monetary policies. (o·l Special problems a rising fro m internation al trade. - S pecial problem~ usually arise from international economic relations. Countries enter into a greements or arra ngements (e.g.. common market. arrangements, counter trade) 3 to deal with such problems for t he purpose of enhancing international t r adl-l. In it8 trade with other co untriE~s , the Philippin ~s must
c•rhe BoP account represents the country'f: :oral ti nanci tll trnnsactiou.s woth th~ r est. of the world. Its compvnen t~; include direc t and por tfolio \S lock) investment;;, "s W
Sec. 14
ART. XrJ.- XATIONAL ECOKO~IY
A~D
PATRI.:-.10!\Y
387
"promote a trade policy that serves the general welfare [of the Filipinos) and utilizes all forms and arrangements of exchange on the basi:; of equality and reciprocity," without being restricted to any one form or arrangement.
SEC. 14. The sustained development of a .re~E}!:Voir qf..naof Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. ti«:_>A~l.!~!~n.t~_ consisting
J'he pra_cti_ce of all professions in the Philippines sha.U .b~ . limited t~ ~ilipjno citizens, s~y~ Jn. ~-~~ribed by law. Promotion of national talent pool of Filipinos. HuiD...an~o_\lf.G~~ -:-::.peQple-:- are the most critica~ s0urcE-~ of economic growth. They are the active factors of development (nat utilize through their labor the passive factors (land and capital' to produce goods and services needed by a growing economy. They determine the pace and quality of economic, social and poll.tical development. A country is only as good as its human resources. The above is the reason for the mandate that -the State shall promote the sustained development of JLI1llti9D..~ l.resert..:_oir of _t~.!~nts consisting of Filipino scientists, professionals, managers, high le·.-el technical manpower and skilled workers or craftsmen in all fields." (Sec. 14, par. 1.) Talents and skills are acquired and improved not only by education but also by experience, on-the-job training, and further individual learning. With highly skilled, professional and trainable human resource equipped to face competition in a complex and ever changing technological world, the country can hasten the attainment of the go&l of economic self-reliance and independence. (Sec. 1.) The challenge to us today is to turn our country into a nation of wealth creators and producers.
Encouragement of appropriate technology.
Another important sr.mrce of economic growth is technological innovation - the application of new knowledge to the productive process. A growing economy has to accommodate itself to successive changes in tech-
Philippine products or liervict->:< to be E!)(ported outside the country in exchange for the Philippine government's importation or procurement. ;b, Cnder b~a.d.. the foreign supplier of capital equipment, machinery or technology is partially or fully paid with the resultant products manufactured or produc~d from such capital equipment, machinery or technology.
TEXTBOOK ON T HE PHILrPPlN£ CONSTITUTION
::\O!C.
14
:-;~•Jj?"Y that raise productivity. (sec Sec. 1, par. 1. ) There t S aiways a c.:.nstant cha1lenge t.o produce goods 1 or services) f-It lower cost, h igher quality goud~. or new p roducts. With the wave of new technology r f::volutionizing the way busines s is conducted all t)Ver the world, tht! Philippi nes cannot aflord t o be left behind in terms of technological i nnovations and application to develop world class products and services f(H' the emerging new world J<>commerce.
In all advanced societies, technological progress is an i nherent feature of developme nt. A developing country like the Philippines has to adjust to technological changes if it. hopes to achieve rapid economic growth. The State has the responsibility to promote technology but it must be that kind of technology appropriate or suitable to our coun Lry. (Sec. 14, par. 1.) Jt'or instance, superior production techniques should not be adopted if they are expensive and do not contribute much to employment . (see S ec. 1, par. 1. ) The advantages and disadvantages of ~very proposed t echnological innovation should be carefully studied and weighed in t erms of the bt.>nefit to the nati onal welfare . (see Art. XIV, Sees. 10. 11, and 12.) Regulation of technology transfer.
.f1) Benef/.t s from technolol{)' tran!'(er. - It is s afe to say that undt> nle veloped econom ies a re so because they continue to d epcmd on traditieonnl technology particular ly in agriculture. The growth gap bet ween deve lnpeJ and undeveloped countries is generally a s wide as th(' technolog ic to huil d their own techntllogy in all fi elds from the lowest s tage . T hey can adopt. a vailable foreign technology and modify it if necessary. Our Asian neighbors that have a ttained th e status of newly industri alized nations, have borrowed, purchased, or obtained through other means certain fore ign tech nologies on which they have improved. They h a ve bee n able to benefit mCire from the transfer of technology from advanced countries through thP.ir less r estri ctive or more attractive investment policies a nd r egulations. (2) Safeguard;; against import of' inappropriate foreign tcchnol<,l{y. The tranRfer or appropria tion of technology, however, is not necessarily the solution. The cruci al question a lways is: is it sui t a ble to the requ irements of our economy or the needs of our soci<~ty? There n1ust be s afeguards against the i mport of obsolete foreign techrwlu;;ic.s particularly where they involve the payment of high charges s uch as roya lties and li cense fees. It may happen that t he tra nsfer benefits more the foreign compa ny tha n the host country or stunts efforts to develop Filipino technologic nl and s cientific capabillty because of the presence of restr ictive condit ions. Or the foreign technology may not blend with the lifestyle s, valu.~s, attitudes, and consum E'r patterns of our society. F or example, a techn ology may encoura ge consumpti on and importation ofluxury goods. All these stress the need
SN:.
15
AHT. XII.-- N ATIONAL
J
A:"D l'A'fi{l \ !C.>:-;\'
3RH
to regulate technology transfer to insure th<, ! it s hall be f(-.r th t· national benefit. (Sec. 1, par L} In the flnal analysi,:l, t1eYelopmcnt, essE>n: i '. ' !~· -i s not a matter of tt:chnology, for ultimately it ig the creativity and 1::c!u.,try of <-l pe(1plc propPrly channelled and utilized that \vill enable th£>m t ·~ ;_:-,·<:t'Jmc a prosperous nation. Practice of all professions limited to Filipinos .
A p rofession has been defined a s "a calling wi-; ;ch requires the passing of an a ppropriate government board or bar exa!T:: ::.:.:iun . sueh a s the practice of law, medicine, public accounta ncy, cngint-~~:--:~ . t' l c. "'
U.·l'Na ture of right to practice. - The practK.: -::·:: pro f~ssion -i nvolves public interest and is open only to pe rsons who he:·.-<' ..: ::dt:rgone the necessary aC'ademic preparation and pa~ se d the appropL..:: e: ; ·· ·:~rn nwnt examination and who po:ssesses such oth er special qual;:': -:..:: :...... , prescribed by law . It is not considered a business where pro fit i:-. trE- ;:· ~:;lc lp:-d !HOtive but an activity l~xercised in a s pirit of public seni ce al:~ : ·.:;:-:-; it may incidentally be a m eans of livelihood. 'l'he right to pronict- .: p~0fe~.;: i•>n ii\ not a nat.ural or constitutional right but is in the naturE' ~1i :i -prh· i!ege to be g1wn or w ithheld by the State s ubject only to constitut ;c•:.Z<: !imita tion ~. (2)_ Exercise. of pril•ilege by alien.<;. --The
Co n:"tl~ ~t: JOn
limits the practice of all p rofessions in t he Philippines to Fil.i<.'l!i•J ritil.en.:;. HoweYer, Congress may pro llide otherwise in certain ca::-t-~ St:>e. U, par. 2. ), e.g., pursuant to a treaty, or on grounds of rccipro~; it~-- er ·.nth n~sp cc r on ly to cert ain professions s~ch a·s .me-ci}cinc, o-r in fa\'or of a particular fon~igner for special reasons. Congres8 may impose cond itwn" for the exercise of the privilege to protect public interest. 2
SEC, 1-5. The Congress shall create an agency to promote the viability aud growth of cooperatives as ins trume nts for social justice and economic development. Agency to promote viability and growth of cooperatives to be created.
A COQ.Jl.fi.a.'t:i&.L is a type of busines:.:; unit through which i1trlividual members cooperate in p;oviding specific types of services of mutual benefit to the membership.
Tax Code. • Pre:;. Dl>cr~t: ::\o. 231. St~c . :3: t>- i !. • No. 98-5-ti ;.Jan . :lO. 1998 , of the Ph i hppi n~ Rt::~lation Commission CPRCj, as amendl!d by Resolution ::\o. 98 -549 ~ !arc h 10. 199&,, prbcnbes the guidelines for the r~;gistra tion of foreign professionals all owed by laws to practice th(~ regulatf
~Resolution
TEX'rBOOK ON THE PHI LIPPJ NE CONSTITUTION
390
Sec. 16
Cooperati ves operate under certain basic principles. 1 They may be classified as consumers, producers, marketing, cre dit, or service cooperatives. The cooperative movem ent began in Rochdale, England in 1844. Neither the 1935 nor the 197:1 Constitution so much as mentioned With the mandate to create an agency 2 to promote t heir viability and growth, the new Constitution now gives proper r ecognition to the important role cooperatives can play "as instr uments for social justice and economic development." The promotion of the cooperative spirit a mong the people can h elp effect desired changes and reforms in the economic, social and political structure of our s ociety . ' ~cooperatives."
(1) Cooperatives can serve as a vehicle for attaining a more equitable distribution of wealth by increasing the income and purchas ing power of the low-income sector of the population and for providing nee ded services not only for their members, but also for the community in gen eral. (2) They encourage self-management and pa rticipa tion in decisionmaking at the grasstoots , as well as a broader based ownership of private enterprises. (Sec. 1, last par. ) (3) As a direct expression of the bayanihan spirit of the Filipinos , and wi.th s trong government support, the cooperative movement can contribute substantially to the national development a nd progress of the country.
SEC. 16. The Congress shall not, exce pt by gent!ral law, provide for the formation, organization, or regulation of private corporations. Government-owned or -controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. Formation , organization, and regulation of corporations.
Under th is provision , Congress is prohibited from passing a s pecia l law or cha rter for the formation, organization or regulation of specific private corporations. Thes e matters are to be provided for by a general law, that is, a law equally applica ble to all private corporations. Such is t he nat ure of our Corporation Code, 1 the law governing private corporations in the Philippines. The purpose then is to prevent di scriminatory practices wherein
1Such a s one-man. one-liote regardless of tht! number of shares owned , limited income on capital, and patronage refund in proportion to patronage of members. ~The Cooperatives D<:!velopment Authority und er the Office of the Presiden t , created under R..A No. 6939 {Ma rch 10, 1990) is the n ew agency charged with the authority and responsibility for implementing the program of cooperatives development under R.A. No. 6938 (~t.y1arch 10. 19901, the law which ordains a Coo perative Code of t he Philippines .
:natas Pamhan:;t\ Big. 68.
Soc. 17
ART. XI[.-- NATIONAL
F;CO!'\O~lY
XND PATRI::\10:'\Y
special privileges are granted to a few without giving obtain those privileges or the ~ame condition:>.:!
other~
:391
the right to
The exc~ption n.~late~ tc pri vat~! corporations that are owned or controlled by the gov•~rnment or any subdivision or in~trumentality thE-r(·uf. The reasun for this exception hes in the fact that :ouch corporation!}~re organized not primarily for profit but for blazing the trail for private capital and initiative towards new and unexplored areas of in\·estments.'':l Creation of government·owned or -controlled corporations.
These corporations may be created or established by a special charter or law but only ~in the interest of the~common good and subject to the test of economic viability.·· The limitations are in re.-ponse to the big increase in the number of governm(mt corporations~ which has spawned a ho~t of problems, mostly associated with lack of clear definition of government involvement in business, overlap or duplication of aelivitie:-;, and inad~quate monitoring and contr(JI. Many of these ftorporation;;; lwcame "white elephants" and were included in the list of tho::;e slated for privatization. "Economic viability:· means that the government corporation will have the capability te make profits and will not have to d~pend on budgetary appropriations or special assistance from the government.
•
'fhe limitation that thE? creation must be in the interest of the common good is u recognition that the private sector should be the "engine" of national economic progress while the government should engage in business only wh~n it i!-1 absol-.;tely necessary. Our Constitution adheres to free enterpris~ in the l:lOCial and economic system subject to ihe limitations in Sections 3, 17, and 18. The government, therefore, should only engage in industrie~ that are capital intensive, high-risk, or pioneering in which private enttlrpri!'!e i~ reluctant to invest or which it is not capable to undertake, and those that are vital to national interest. In the end, the policy of the government should be to turn over these industries to the private sector once they become stable or when national defense or welfare )s no longer involved.
SEC. 17. In times of national emergency, when the public interest so requires, .the State may, dut·ing the emergency and under re&.sonable terms prescribed by it, temporarily take over or direct the operation of any privately owned pubHc utility or business affect(~d with public interest. "City and County of San frath:i,co \::' Spring \·allt::y Wat~>r Wnrks. 48 Cal. 493. 3Del. V.C. Yancha. •franchises :1nrl Public Ctilitu~.;;.·· in C.R :\1ontejo, supra., p. 245; City and County of San Franl"l H~u \-~- SpTJTlJ' I;" :ley Watt!r Works, 41; Cal. 493. •From 70 in H:l70. goH•rnmtnt (;orpcrat i~:>n:; have groY. n in n\tmber to 250 m 1985.
392
TEXTBOOK
0~
'l'HE PHILIPPi:'\F. CONST11'UT101':
Sees. l l:l- 19
Temporary take-over or direction of private business by the government.
Under t his provision, the Stat~ 1 Government) in times of national emergency (e.g .. rebellion) when the public interest so requires (e.g. , to prevent the paralyz ation of economic activities), may either temporarily take over the operation of any privately-owned public utility or bus iness affected with public interest, or m erely direct the operation of said public utility or bu::;iness.
ln the first case , the government. virtually becomes owner of the utility or business. In either case, the tem porary take-over or direction by the government. must n ot last beyond t he period of the public emergency and it must be under reasonable terms prescribed by it. There is no compensation involved since there is no transfer of ownership. The President m ay declare a sta te of nati onal emergency and exercise t he powers granted by Section 17 without net:d of an emerg<:!ncy powers law enacted by Congress as provided under Section 23(2) of Article Vl.
SEC. 18. The State may, in the interest of national welfare or defens e, establish and operate \'ital indus tries and, upon payment of just compensation, transfer to public ownership utilities and other private enterpris es to be ope rated by t h e Government. Government ownership of business .
Under this pr ovi sion, the State may do two t 2 i things : (.1) Establish and operate vital industrie::: 't'-# .. means of transportation and communication); and
(2) T ransfer to public ownersh ip. utiii til:!:; a nd oth er private enterpris es , upon payment of just com pensation. to be operated hy the government. The government is allowed to take action in this respect not only whE\n national de fense requires it but in all cases where th e national welfare makes it imperative as when th ere is eco nom ic monopoly or su bjugation by alien~ prejudicial to public intere ~>t i n the ownership and operation of certain vital industries. The courts may not interfer~ (:Xcept. in t he determination of just compensation. Section 18 involves an outri ght transfer of ow nership of public utilitil:!s and other p rivate enterprises from the p rivate owner to th t: gover n m ent.
SEC. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in re· straint of trade or unfair competition shall be allowed.
Thtlre is monopoly where a single sellH ·· r ~~ group of seller:;: acting in concert actually control~ or possesses i..he p.: ·' -:-:· to control market prices. 1 The bigness of a cotr..pany is not by 1tselfind~.:,:,:i·d~ of a monopoly." The real test is "big market power"- at.·.·.:::. to influence or to determine the price which will be charged in the :::-_,;.::-;;N pla(:e, independent of normal economic pres8ures of supply and d€-r:-..;:-. ~Regulation or prohibition of private monopolies.
Even without the above provision, the :3: _:. :-: :-:.:'.'- Rt.ill regulate or prohibit private monopolies when the public ::-_:-::-·c·-~ ~o requires in the exercise of its police power. 4 With this provisic.:-_ ~- ... ~--. ~·r. a law prohibiting private monopolies cannot be attacked as uu. :-. < ·.:·_;:ion a] for being an unreasonable interference with the right to lib.,:-::.. :- ;::.::-. ;.:t>rty. :\Ionopolies that operate in restraint of trade (infra.! du ~-., .::_:. ·,;, :::-: fre~ and open competition and, therefore, are inimical to tht: :::-.:.,.:-.,.=-: _:·:::._.consuming pubhc. The usc of the word "regulate" in the Con,;t:: .:::::--. ::;ci:ca:e::. that some monopolies, properly regulated, are in the pu~.:: ~ ::::.:-rest. Competition when left. wholly free, might he destructive ()f p·.;~: ·..:- ; ntE-rest.: Meaning of restraint of trade.
The phrase restraint of trade is U!$ed !.11 in r.:-:'t-:E'nce to combinations, acts, or practices which interfere with the norma: ;>rc•duction and supply of commoditjcs by the suppression of competition :"::erein or by other means and (2) ahw with referenc~ to contractual re5::-i..:t:<)n upon the right of a per·son to engage in trade, business, or professio.!1. While the law cannot compel competition. it can in the interest of public policy, remove unreasonable restraint!' on competition. 1; Meaning of competition.
(ompetition implies a struggle for advantage between two or more each poss£~ssing, jn substantially similar, if not identical, degree, cer-tain characteristic~ essential to the busine~s sought. It mean~ an independent en de a \'O!' of two or more persons to obtain the butiiness patronage f(m~es
=soe Anwrican Tob~cc:o Co. vs. t:nited Statc8, a~8 C.S. 38; United States vs. Paramount Pi(:I.Ul't'S, ;~:H
U.S. I:H. State;; \"i'. Swift. '286 L'.S. 106. ~Ferretti. National Economi<"~. p 22. ~see Revised Penal Codt.>. Artld€' 186: sec commentt< undf.'r Anide IV, Section 2. ::see OIHr.k, IV Modern Corporanc.r: Law. p. 191. ~36 Am. ,Jur. 480, 41:\7 ~{}niterl
TE XTBOOK ON T HE
394
PHI LIP P{~£
CONSTITUTION
Sec. 20
a third by offf!ri11g· more a dvantageous t erms as inducemen t t,1 s ecure
tr3 de. 7 Meaning of unfair competition.
In its broad sense, as it is used in the Constituti on , unfair competition i s the unju st a ppropriation of, or i njury ro. the goodwill or business reputation of anot her. It includes unfair com petitivn in its na rrow sense which is the s imu lation by one per.son of the name. :;y m bol:;. or devices employed by a busine:ss riv a l so as to induce t he purch ase of his goods under a false
impression as to their origin or ownenhip: Our Civil Code prov ide !!> that "unfair competition in agricultural, commercia i or industria l en te rpris es or in labor, th rough the use of force, intimidati on, det:ei.t, machination or a ny other unjust, oppressive or high· h anded method sha ll give rise to a right of action by the person who thereby suffers the damage."!\ The ll•rm is used in thP. Civj\ Co dE:: in its broad sense. Combinations in restraint of trade and unfair competrtion prohibi1ed.
The Constitution altogethe r prohibit;; co mbination s in restra int of trade and unfair competition. lS ec. 19.1 n ~ moc rary becom HS a veri table mockery if a ny person or gr oup of per sons by a ny unjust or high-handt~d method may deprive others of a fair cha:oc(:! to engagt in bus in~s.s or earn a living. 10 The provisi
SEC. 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integ· rity, and patriotism, the majority of whom shall come from the private sector. They s hall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority ~ Gokongw ei, Jr. vs. S.E.C., 89 SCRA 336, April 11, 1979 . k52 Am. Jur. 867. ~Article 28 thereof. ' 0 Rcport of the Code Commi:;s io n, p. 31. 11 A. T olentino, op. cit., p. 114. •·?coat. vs. Merrick Th t•eat. Co .. 149 U.S. ll62.
ART. Xil.- NATIONAL ECONO::.fY .-\~D PATRDIIONY
Sec. 20
395
shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over th~ operations of finance companies and other institutions perfonning similar functions. Until the Congress otherwise provides. the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority. Central monetary authority to be established. This provision directs Congress to establish an independent central monetary authority with the powers and function~ mentioned therein. The Central Bank of the Philippines created by R.A. ~ o 265 has been constituted as the central monetary authority pursuant t0 the 1973 Constitution.1 Congress has established a new monetary autho~~y. (1) Responsibilities and objectives. -The importa::ce 0f a central monetary authority may be seen by looking at the re~por:5-ibilities and objectives of the Bangko Sentral ng Pilipinas (Central Ba:::k of the Philippines) as p1·ovided by the new Central Bank Act:
,(a) To provide policy directions in the areas : :· :-::·:·ney. banking, and credit; (p) To supervise and regulate the operatic:-.:" of banks, finance companies, and non-bank financial institution:;: (c).
To maintain price conducive to a balanced and sustainable
gro"~
(2) Qualifications of members of governing board. -The members of the governing board of the central monetary authority must be naturalborn Filipinos because of the nature of their functions. The requirement that the members must be persons of known probity, integrity and patriotism and that the majority of the members shall come from the private sector is designed to promote the independence of the central monetary authority. It seeks to prevent the recurrence of the board being composed in the past of alter egos of the President. 1
Article XV. Section 14 thereof; See Presidential Decree .No. 1801 (dated Jan. 16, 1981). Repuhlic Act No. 7653, Sec. 3. The Central Bank is tasked with the control of money supply and the supervi1;ion and regulation of the operations of the country's banking system. It is the solely authorized issuer of om· currency. Because it is designed primarily to service banking institutions, the Central Bank is often referred to as the bankers' hank. Function· ally, it differs from ordinary banking institutions. For instance, it docs not accept deposits from the public; neither does it lend to individuals. The Central Bank also functions as fiscal agent of the government. 2
TEXTBOOK ON THE PHlU PPI NE CONSTITUTIO N
Sect~ .
21-22
SEC. 21. Foreign loans may only b e incurred in accordance with law and the r egulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Rules with respect to foreign loans.
Section 21 seeks to prevent, once and for all, the injudicious contracting of foreign loans in the past on the sole init.iative of the Preside nt eve n agains t t he advice of the Monetary Board of the Central Bank. Now, foreign loans, whether public or private, m ay only be incurred in accordance with law and the regulation of the monetary authority. Furthermor e, the contract or guarantee must be with the prior concurrence of t he Monetary Boa rd. But congressional approval is not required. As it is the people who will ultimately shoulder the payment of the country's indebtedness, the Constitution also requires that information on foreign loans obtained (public loans) or guaranteed (private loans) by the government shall be available to the public.
SEC. 22. Acts which circumvent or negate any of the provisions of this article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be prov ided by law. Acts which circumvent or negate Article XII.
Sect ion 22 declares that: (1) Acts which circumvent or negate any of the provisions of Article XII a re inimical to t he nat ional interest; a nd (2) They shall be subject to civil and criminal sanctions as may be provided by law.
This provision basically prohibits. foreign use of Filipino dummies and seeks to prevent the e njoyment of a right, franchise, privilege or property r eserved for Filipinos by those who a re not qualified. It is in response to r evelations of abundant violations of constitutional provisions r eserving to Filipinos and Filipino-controlled corporations certain areas of in vestment. Civil s anctions may include forfei ture offoreign equity as well as loss of franchise or privilege to do business in the Philippines. The criminal penalties s hould be severe e nough as to dis courage employment of dummies by aliens. -oOo -
·3
Article XIII SOCIAL JUSTICE* AND HUMAN RIGHTS , SECTION 1. The Congress shall gh·e highest priority to the e nactment of measures that protect and t>nhance the right of all the people to human dignity, reduce social. economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the ac-quisition, ownership, use, and disposition of property and its increments. SEC. 2. The promotion of social ju.sti~ shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Concept of social justice.
Social justice is not a mere catchy slogan t':, express concern for the plight of the poor and the downtrodden. As a mandate imposed by the Constitution, it requires the adoption by the State •Government} of measures that guarantee the right of all the people to equality of opportunity in all fields of human endeavor and to equitable sharing of the fruits of social and economic development with special emphasis to such measures that ameliorate the standard of living of the underpri\-ileged groups. /' / The end of social justice measures or programs should be to assure that "those who are less favored in life be more favored in law." Duty of State to promote social justice.
(1) Aims of policy to promotP. social justice. -The Constitution mandates the State to promote social justice in all phases of national develop'The pro,·isivn;; relat ing to S(K:ial j u stice were contained merely as part of Article II Declaration of Principles and State Policies in the 1973 Constitu!.ion . The new Charter spells out in bold relief the measures that will be necessary to implement thl:' goals of social justice. Article Xlli has widenE-d C'e>Miclt~rahl~· thE' r<'neE'pl of sm:i
397
TEXTBOOK ON THE PHILIPPINE
398
CONS1TrVTIO~
s~cs.
1-2
ment (Art. II, Sec. 10.) - social, economic, political, and cultural - to ensure the dignity, welfare and security of all the people, or as others put it, freedom from want. 1 More specifically, the aims of the policy to promote social justice are: (a) to protect and enhance the right of all the people to human dignity; (b) to reduce social, economic and political inequalities; and {c) to remove cultural inequities. {see Art. XIV, Sec. 18.) (2) Measures to achieve aims. - These aims are to be achieved by the enactment of measures to which Congress shall give the highest priority, that seek to "equitably fdiffuse] wealth and political power (see Sees. 15-16.) for the common good." The diffusion of wealth will, in turn, be accomplished by regulating the acquisition, ownership, use and disposition of property and its increments (Sec. 1.), i.e., fruits or gains. Inequalities or distinctions among individuals will always exist but they must at least be reduced; but inequities (i.e., injustices) must be removed or eliminated, not merely reduced, as they are evil and should not be permitted to exist in any form. (3) Commitment to create economic opportunities. - The promotion of social justice must include a commitment on the part of the State to create economic opportunities for all the citizens based on the freedom of initiative and self-reliance. (Sec. 2.) This implies that while it is the duty of the State to create economic opportunities, it is al~:>o the obligation of the individual to exert efforts to equip himself with knowledge and skills necessary for productive employment or livelihood without having to depend on the State or other members of the commun ity for his needs. "He must not learn to accept fish; he must learn to fish in order to feed himself for a lifetime."2 Beneficiary of social justice policy.
While the end of social justice is to ensure the dignity, welfare, and secul'ity of all the people, it is a well-recognized fact, however, that for the well-being and economic security of the higher income groups, social justice
'See V.G. Sinco, op. cit. , p. 124. plays a crucia l and even an ind is~ns able role not only in 11 man's life bui a lso in t h e whole society. Withou t wo r k. m an fa ils to mak~ use of his endowm~nts, to realize IUs God-given potentials, and to Httain his goals; he stagnates. In the most basic level, without it, man can fail t o p1·ovidt! for himself and for his family; h e he<;Omes a burden to society. Right now, with so m1my problems confronting our nation, there is a great need Caside, of course, from competent, honest, and dedicated public officials) for skilled and productive citizens who understand and appreciate the value of work and live by it, to finally bring a bout lasting pr•.>greils and prosperity to our land, at least on par with our economically d~veloped neigh hors in the Southeast Asian Region. The creation of more jobs and the employ ment of mor~ people who need them can contribute more to a lleviate poverty than any program to help the poor. 2 Work
Sees. 1-2
ART. XIII.-- HOCIAL JCf\TICE
A~D
399
HC'MAN RIGHTS
is not necessary. They are so situated that through their own efforts and without governmental help, their well-bei:--,~ and economic ~eeurity are assured. The beneficiary of a social justice v· !icy should right l~· be. therefore, the common tao, the "little man" so-u.. ::.:-d - the slum dwellers, the landless. the till~1·s of the soil, the laborer:;. : :~c- economically underprivileged - who, if they were to rely on the:~ · .'. :· exertions alone \\ ithout governmental succor and support, would :-.. : ::!\ely be able to attain a decent standard of living befitting human b.:;.,n~~
In the words of President Ramon ~ta;;:.:-.:,:.-~.:.:.-. they deserve "a little more food in their stomachs. a little more:'!:-:-.:·.·:- -..::r their heads, and a little more clothing on their backs:' The:'!.;:.:-='~-:..:.: .,-ndeavor to help the poor who find it difficult to make the pro,·t-:-~::-.. ~<~- ends meet and who suffer privat~ons in the universal struggle !or,_,:_<,-::-.:.:. ·In ord•~r to achieve the goals of ~wcial justice, it \Viii be con~:!t:.;.:· :-:. ._ : -:--:;Ji:;,;ib!c in many cases for the State to tilt the scale in faYr:·r ::· ::-.,. :-·~-~-::,-. t!le weak. and the handicapped a1; again::t the more pr:,·:>:-~:;:: :-:-.--· --:-· ::·. ou!· society." Social justice and property rights.
I
to prope~~.-• .- .... ::-;:.·.-::.· :· --····· ·~:·:.:.. ~;.!\\"€''.'€!'. does not propose to destroy ·:·r u::-,.:t'~.::-_-: ;~:;:..;-:.:• ":"-.<:.~.:-• :,i,octribution of wealth. or W auth.:·;:Z€- :!-,.:-:.a~~::~ : :·;;. ::-_..:.: > .::-. t::X(t-0.~ of one's personal needs and the gi'ing it to anotht-r. The :.;;;:..: : :.:-:-:·;Jt-:-~y legally acquired is also one of the rights enshrined in tht- C.::::-.:-:::..:::.·::1. including the right to be protected against deprivation without d'..<.:- ;: :- :d~ of law. (Art. III, Sec. 1.) (~) Poverty not an excuse for violating right of'property owner.- Socal justice should not be understood to mean that property or rights belonging tn one should be given to another who .is not entitled thereto simply becau:;e the latter is poor. Thus, a squatter cannot claim that under this principle, the government should protect him in ihe possession of the premises occupied by him hecau8c he is poor and that he ha~ no place to stay. Charity and social justice cannot be Uf-I(Hl to trample upon the rights of otherf; or to commit an injustice agninst the more fortunate classes to !lJ Right
~~ee Tanada and Fernando, ThP. Con:;tit.ution of t.he Phil., p. l.i4 i 1952); Bakc~r v.;;. Pc:rez. iCA} No. 25476-R, Dec. 27, 1961. R.A. No. 8·125 1.Dec. lL 1997j institut.ionalile~ th~ Social Reform and Poverty Alleviation Progr~m. cre~tes for the purpose the Nat.ional Anti-Povl!rty Commis:;ion C!I1dcr the Office ofthe President, and defines it5 power1; and functions. ~:xec. Onler ~o. :!G:l (Aug. 24, 2004• increases the composition of the Commisl'ion, including the Vice-Prc!.::ident a;; ex-officio Alternate Chairman and the Lead Convenor of the Commis8ion as th~ Secretary General. Proclamation !.\'o. 717 /Oct. 18, 20041 declare:; the pcriocl from October 17 tr. 23 of cvl!ry yl!ar as the -National Week for Ovt'rcoming Poverty.'' 'Ayog vs. Cusi, Sr.. 118 SCRA 492, Nov. 19, 1982. ';ln the government',;, poverty allc\·iat;on prograrn. what ~hould be avoided is a dole-out systerrt$With cxcl!ption ob\·iously of the really sick and phy~icall)· handicapped. A~ far a~ possible, the poor and disad\'antagcd should he helped to help th•:m.~elves. In short, to be self-reliant instead of just waiting for the "manna frum heaven."
400
TEXTROOK ON TJI F. PHlT.lPPI:-JE COt\S1'ITUTION
Sees. l · 2
impro\·e the lot of the le.ss fortun ate ones. Property owners are also enti tled to prot ection under the Constitution. Social justice neither social/economic nor legal/political equality.
( l·l Social and economic di stinction s will always e:xist. - ~Q.£i..~Jjy::;~_i~.c !§_!1o_t~~..£~.!'l:LQ~ ec~~1_9_!!_l_k_~~~li~..1. b~c.?.~.~~- ~.f!~l!~!i.!-:t ~i.l.!..C!.1~.1;1.Y~. ex. ~~ .as
,lD.o.g .au.oC:i.aL~tiQn.a.d.epend ...on. pe.r.s.on.~.l. Pr .subj~c_tive.. Pr.Qdiviti~~-· l"or instance, social distinctions may and do often obtain between the r1ch and the poor. ~ow , a person has absolute right to choose the group with which he desires to associate or r.ommingle. Under the Constitution, equality of privil eges, wh ich are purely social or pri vate, is outside t he pale of its protection . Absolute social and economic equality among individuals is not possible. The aim is not to r emove but to "r educe social and economic inequality" and this is accomplished by raising t he quality oflife of th e less fortun ate members of !'lociety to a level worthy of human di gnity. {J ) Equal, not .'lame, treatment under the law contemplated. - It is neit'ller absolute legal nor political equality, because the latter term is relative and is necessarily premised on differentiations based on personal and n atural conditions, such as a ge, sex, mentality, physical capacity, citizenship, etc. Thus, one below 18 years of age has no legal right, equa lly with other s who are qualified, to vote. Equality under the law implies that person;, are entitled to the same rights if they are similarly situated or circumstanced. (See Art . HI, Sec. 1.) Social justice through regulation of property and diffusion of wealth.
As one of the means for attaining the ends of social justice, the Constitution empowers the S tate in Section 1 to equitably diffuse wealth and political power for the common good. It sb a ll regulate the acquisition, ownership, use , and disposition of private pro perty and its increments (e.g., profits, increase in value} in c~ rder to assure that the greater number of people can benefit thereby economically and s ocially. The equitable diffusion of wea lth also r educes politica l inequality . In the Philippine millieu, the poor h a ve practicall y no chance of being electe d to public office.
U} Property ownership impressed with social function. -t.hat.Jh~ . Q.W..n.~rh~l~~'l.b$ ulute
ThL~~
right over his property -is.no longerrecogni 7.eQ.. Prop~!.~...o~~~_r.~h~.P.. !iJ~9.-<:!lr!.i.e.!' . wit.h -~t_ ~-~-~~-~~tf~n.ctio!l. wh,ic_h obliges the ~.n.~ili...l.:l-~~-hi§ .P.X.QP.~r.ty .119t.()n ly to 'b~ J?.efJ t.h im?~l.f hut a qe a st. indirectly soci~ty-~~ w_e!). This is an application of the f!tewg,.!.4 ..t:()_n_cepJf?f_pr_ope_r_ty. We are mer e stewards of the endowments entr~"£0 "us."We cann6fnang on to them forever; we h old t hem in trust. Irrespective ofthe number and quality of our talents and resources, a ll of us have the fiduciary duty to take care of them, devel op them, and put them to good use not for our personal
.
Sec'". 1-2
AKT Xllf. --SOCIAL .JUSTICE .-\XD m;MAN HifiHTS
401
purposes or gains alone but for the common :;ood of the broader community and the country. Thus. the State has the right to limit property holdings (Sees. 4, 9; see Art. XII. Sees. 1, ~n, to abolish share tenancy and replace it with a system ofleaseholding tsee Sec. 4.f. to require that pri\'ate property be used or enjoyed in certain definite ways. or ~c· see to it that profits in any business activity are shared equitably. (Jbid .. 3ec. 11, 3rd sentence. i t'2) Aim of'pmri.~inn. - A basic ill in th~? P~.::~ppi1ws today is the e\·erwidening gap between the rich and the poor. W.:-9-:~h is concentrated in the hands of the pri\·ileged fe·w while a great ma_:(~:~y of the people suffer in deprivation and misery. The overriding aim of::::-:- J•n5titutional mandate is to bridge that gap by a~suring that more ::;,;. : ~: :<.- will be able to own property sufficient to satisfy the basic needs of ·:i.£:-(·~·::: living and to main· tain human dignity and self-respect. But there :~ :-:: :-:-.andate to condemn the rich or violate their rights in order to impro\.;- ~::-.-:· ~:·t of the poor. Social justice through promotion of equality of opportunity.
One of the observation!' generally belieYed ,_. : .:~ ;-~:-pl€' is that our society is <~ligarchic in Rtructure which, in turr:. ~~~·..::~~ :~. ,~ go\'l:!rnment that is plutocratic in practice. This st.ructura: .:~:·.:-c: (.f ;:>'.!r :,;ociety i8 traceable to the age-old problem of poverty and its ~.,:.;:,_·,nive consequence:;. like unemployment, underemployment, low level 0! ::-.·20::•me. and low level of production. ln order to solve these problems. it :~ necessary to provide equality of opportunity. Tt is noted that inequa.i:~:· of opportunity and income is partly due to unequal distribution of ?'':.perty and to uneVfm distribution of skills as a result of uneven educatir,:-.. ' Education is necessary in promoting equality (·f ·jpportunity and enabling an individual to acquire inteltectual and W•Jr~ skills for productive activities. Education is thus an effective measurE" i;, correcting the social, economic, politicaL and cultural inequities that cau!'e mass discontent. The provisions of the Constitution on the regula:i(.>n of property (Sec. 1, par. 2.), on the distribution of ag1·icultural lands w landless farmers and farm workers (Sees. 4, 6. par- 1.), and on free ~ducation (Art. XIV, Sec. 212].) are mandates which the State through Congress is obligated to implement to secure equality of opportunity and thus achieve a more egalitarian social system. 7 Constitutional
provision~ on
social justice.
In order that the declaration of the principles of social justice may not be just an empty nwdley of words, the Constitution in Article XIII has provided the means iowards its realization. 'Sec Social Reform.;; for the Common .l\1an in the :"ew Charter, by Del. F.mmanucl T. Santos, Phil. Panorama. Dec. 31. 1973. p. 9. "Ibid.
402
TEXTBOOK ON THF.:
PH!Lll'PI~E
!":ONSTITUTlON
Sec. 3
Other provisions promote social justice by mandating: , 1) the prohibition against the imposition of literacy , property, and other substa11tive require ments for the exercise of suffrage (Art. V, Sec. 1. );
(~ the im pos ition of t he requirement t hat taxation s hall be unifo:-m . ' . equitable, and progr~ss ive I.Art. VI , Sec. 2811].) so t hat its burden will fall on those better able to pay; (~ ) sectoral representation in the Hous e of Representatives (Art. VI, Sec. 5[2].) and in legi~lative bodies of local governmen ts I. Art. X, Sec. 9. );
(4') the maintenance of an independent judiciary (Art. VIII, Sees. 21par. 2.], 7l31, H-12 ; Art. XI, Sec. 2.), for social justice cannot be fully achieved if equa ljustice is not administered to all; (5 } the encouragement of broader-~ased ownership of private enterprises, and equity participation in public u tilities and imposing upon the State the duty to promote distributive justit:e and to i ntervene when the common good so demands in connection with the owner ~ hip, establishment and operation of pr\vat.e en terprises !Art. XII, Sees. 1, last par. , 6 , 11.);
<(}) small scale utili ~a tion of natural r esources by Filipino citizens (Ibid., Sec. 3, par. 3.); (7 ) the limitation of the- area of lands of t he public domain that may be acquired by lease, purchase, hom estead. or grant Ub1:d., See. 4. J.: (8.) the protection of the right.s of indige nous cultural communities to their ancestral lands ([bid., Sec. 5.);
(9) the creation of an agency to promote cooperatives as instrume!lts for so'cial justice (Ibid. , Sec. 15.);
( 10) the regulation or prohibition of private monopolies Ubid., Sec. 19.) to protect the consum ers especially the poor from exorbitant prices; and ( ll ) the maintenance of free education; the gram of scholarships, etc. to deserving students espocially the underprivileged; the encourag~ ment of non-formal learning; the gi ving of vocational training to adult citize ns, the disabled and ou t-of-school youth; a nd the givi ng of the highest hudgetary priority to education. (Art. XIV, Sees. 2, 5l4 1. )
The Constitution requires the President, Vice-Pre::-;ident, or Acting President to subscribe to an oath to the effect tha t he will "..d.o j!!~t~~~. ~g_ e.Y.f;!_Y ..m~.Jl.'' (Art. VII, Sec. 5. )
LABOR SEC. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized~ and promote full employment and equality of e mployment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful con-
Sec. 3
ART. XIll. -- SOCIAL JUSTIC F. ..l,l\: D HFMAN RIGHTS Labor
eerted activities, including the right to strike in accordance with law. They shall b e e ntitled to security of tenure, humane conditionsofwork, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibil· ity between workers and e mployers and the preferential use of voluntary modes in settling disputes. including conciliation, and shall enforce their mutual compliance the r ewith to foster industrial peace. The State shall regulate the relations betwe-en ·workers aud recognizing the right oflabor to i ts just sh a re in the fruits of production and the right of ent.erp~ to reasonable r e turns on investments~ and to expansion and gTQ9!""th.
employers~
Protection to labor.
:.:.:-tion to Th e aboYe declarat ion i~ broad enough: -: ~: -::.- -: -' ·· ~: : :-.: ~ labor, local and overseas.: organ ized and "J :-.::-;:.:.:-.::.:.:. MTRight to one's labor deenl~a· pr'.•pc- -~_.•. - The- !"lgh: : .: ~ ~:: : ~ ·:.. :. 1 constit utional as well as a statuto1·y right . E\·ery man has a :!a: .ira: :--:,;::-,~ to the fruits of his own industry. A man who has been employed to undt::rtake certain labor and has put into it his time and effort is entitled to be protected. The right of a person to his labor is deemed to be property within the mea!ling of constitutional guarantees. (see Art. lll , Sec. l.J That is his means oflivelihood. He cannot be deprived of his labor or work without due process of law. 2 ~Labor, a primary social economic force. --·The: con s titutional policy of s ocial justice has been m ade more rea] when it impoKes upon the State the duty t o give protection to labor. It. recognizes t he basic fact that human 1 lt is common knowledge that rnany Filipino worker.!' ahroad ha\"f~ been cheated and/or subjected to abuse or maltreatment hy gove-rnment personnel. labor recruiters. and foreign employer~. Even disrega1·ding the fact that their earnings account fnr !I s izea ble portion of our total foreign exchange, it is the duty of the govern ment. to eKtend adequate protection to them. B.P. Blg. 79 (June 16, 1980) creates the Commission on Filipinos Overseas to prornott~ the wellbeing and uphold the interests of Filipi nos overseas. R.A. No. 8042 lJun e 7, 19~Jn .l. entitled "Migrant Workers and Overseas Filipinos Act of 1996" insti tutes the policies of overseas employment and e~la bl i :;hes a higher sta nda rd of protection and promotion of t he welfare of migrant workers, their famil ies a nd overseas Filipi nos in distress. Exec. Order No. 346 \June 14, 1996). amending EKec. Order No. 728 (providing for the organizational structurl! ;md guidelines of the Commission's Secretariat.i and Exec. Order No. 938 I authorizing the c~tabli shmcnt of it;; overseas officesi, redefines the organizational structure and functi rm al t-hrusts, and provides for the operational guidelines of the Commission. The Commission i.'i trans f'r:>rr~d from the Department of Foreign Affairs to the Office of the President (Exec. Ordcr No. ;{43. Aug. 5, 2004.1 2The more important laws affording protection to labor are the Social Security Act UtA. No. 1161, as amended.), the Revised Philippin e ~edicarc Care A.ct iP.D. No. 1519, as amend~d.J, and the L11bor Code of the Philippines . •Pre.;. Decree No. 442. "" amended .) The Labor Code consolidated and updated existing la hor a nd social laws under on~ book.
TF.XTflOOK 0~ THE PHII. U-'PlNE CONSTITUTION
s~c .
3
lahor is not merely an artide of commerce or a factor of production to he ;;imilarly treated as l&nd, tools, or machinery.:! It is a primary social economic force by reason of which the State is under obligation to give more concern to the protecUon of the rights of workers a nd the promotion of their welfare (Art. II, Sec. 18.) vis-a-vis the non-human factors ofproduction . Promoti~n
of fuU employment and equal work opportunities.
The right to fu11 e mployment 4 and eq1l r:tlity of employment through equal work opportun iti es is not merely stctt~tt. ory but is el(!Vated into a constitutional righ t. (Sec. :3, par. 1. ) (1 } Creation of employment opportunities i.mperatir;e.. -- Lack of employment iH one ca use of social tensio n. On the individoall twel, unemployment leads to di.stortion of p(~rson ali ty and a li fe without color and textur~. It is a ,.,·aste of manpowe r. Social se rvices in the field of employment an~, t herefore, imperative. Thrly may partly take t he form of vocational guidance, per sonnel management, placement services, and labor organization.~ Full employment will enable the citizens to lift their level of lifC' and thus contribute their share in the task of nation-building." ( 2 ) State has duty to eliminate dlst.:riminatury practices. ·-- The State is mandated to adopt me<:lsures to the end that all persons who are capable of working may be provided with employment (not necessarily by the government ) and that job opportunities may be open to all - man or woman, citizen or alien, Christian or non-Christian. The Constitution takes into account discriminatory practices in both public and private employment relative to wages a nd employment still often based on such factor s as nat.iqnality, ~ex , kinship, or other non-relevant factors.
~aj Useful labor
See Doan N.A. Gon;(<\](~s. op. cit .. p . 423. 'Full cmploymo::nt, not atrainahle al l~tast under th~ present state of the national economy. Th~< most clfe<:t.iv~ mean~ of helping the poor i11, without doubt, gi"ing th~m the opportunity to work for a living, !or ~urvival and digni ty as a produc tive human· bt~ing and mcrnh«.>r of society. sn el. E. 'f. ~anto.s , op. cit., .~upra. 6 R.A. No. 8759 !Feb. 14, 2000), otherwise known as th~ "Public Employment Service Offic~ Act.'' institution aliz~s a national facilitation service network through the ~stablish ment of a Public. Employment Service Office in every provi nce, key ci!.y and other strntc~ic are;u; througho ut the country. 3
7
31 Am .•Jur. 822.
~c:-c.
3
ART. XIII. - .. SOCIAL JUSTICE A!\P HC.MAN RIGHT:::i.
405
La !:lor
(4} Duty oj' et,ery citizen to en~age inga i.>>'.ll work. - While the right to work of evHr y citizen is r ecognized, it is also hi ,; duty "to engage in ga inful work to n::;surt> himself and his family a lii.:- \\'Orthy of h uman dignity." Work is both a right and a duty on the part o~ .:-·:t- ry citizen. Rights of workers.
In th e relations between workers and empi•:·:··.:-r", the following rights shall beJ.Ssm·ed bv the State: J.;}:'('R ight to self-orgamzatwn. -· Everyono2 ·.-· :-. : ·.np·ks has t he nght to form trade or labor unions or join the tradt- ·;:-.: · :-. of his choice for th e protection of his econ omic and social interests = ·.::.:..:-~ : yn_ly JQ. !)UCh restr).f: tiqp_R \\!.l:l.i..~h may be pres~ripe.~ by la~ in the int e-:--~ : . : :~3t ional security or public order or fur the protection of the right:' ~=-- :. :·:-:·c·dom::; of others. (t includes the right of trade unions to form fede ra: : : :-. ;. : ~ ,.-,n fcde rations and the right of the latter to form or join intt:>r r.::: : . =---~- ::-adc unions and organizations. The right to self-organization of all worker.~ . ·... ;._~:!'lt;or m tht- puhlie or private sector, is not a statutory creation;;It is a:-.~: ~:-al and constitutional right (see a lso Art . III, Sec. 8. ); ~Right to collective bargaining - "Coll.
Free collective bargaining is not possible whe!'E- one of the parties is in a position to impose its will upon the other. It :5. therefore, of primary importance that wor kers should be fully protectE-d in the exercise of the right to self-organization; (3) Right to collective negotiation. - A new concept in the Constitution for resolving disputes between employer and employees, is "collective negotiation. " Inten ded primarily for unorganized labo r and government workers, it calls for consensus rath er than confrontation in order to reach a peaceful solution to issues affecting both part ie ~ . For example, through a labor-management committee (or council or a body under any other name instead of a labor union), a consensus may be a rrived at for resolving a labor dis pute or potential ones, or as to the formf-and m ethods of labor relations between the tw{) ( 2 ) sid es.
This new approach is consistent with the provision recognizing the right of workers "to participate in policy and decision-making processes affecting their rights and benefits" and the principle of shared responsibility between workers and employers (infra.);
TEXTBOOK ON THE
401)
PHil.IPPl~E
CONSTITUTION
Scr. 3
·..() R ight to p eaceful and concerted actwttte.
The right to engage in concerted activities ceases to be protected when it is conducted for unlawful ends or with unlawful means such as through the use of force and violence. Note that the State shall guarantee the right "in accordance with law," i.e., s ubject to such terms and conditions as may be provided by law; {5) Right to security of' tenure. - Employment should be terminated against the worker's will only for just causes and under conditions provided for by law. The State must afford protection to workers dismissed without just cause. At. the same Lime, of course, the State must also afford a measure of protection to employers. For instance, an employer should not be compelled to continue with the employment of a worker guilty of malfeasance or misfeasance and whose continuance in the service of the former is patently inimical to his interest; ( ~) Right to just and humane con ditions of work. - This right ins ures, in particular , safe and healthful working conditions, equal oppo.-tunity to promotion and r est, leisure, and reasonable limitations of working hours. A worker has a right to be protected against unfair labor practices;
( 7) Right to a liuing wage. - A worker has a right to receive a fair and just compensation for his work. He is entitled to equal remuneration for work of equal value. (see Art. IX, B-Sec. 5.) A man works to make a living to support himself and his family. His wage must be s ufficient to enable him and his family to live in reasonable and frugal comfort, provide education for t heir children, and make some savings to meet unexpected contingencies; and (8). Right to participate in policy and decision-making processes. Workers are entitled to certain rights and benefits pr ovided by law. On th e other hand, the employer, as owner, has the prerogative to exercise control and to make decisions with respect to all matters affecting the business. A policy or decision of management may affect the rights or benefits to which 9
LVN Pictures, Inc. vs. P h il. Musicians Guild, l SCRA 132, Jan. 28, 1961. Republic Savings Bank vs. Court ofindustrial Relations, 21 SCRA 226, Sept. 27, 1967; Phil. Blooming Mills Employeef\ Org. vs. Phil. Blooming Mi])l;, Inc., 51 SCRA 189, June 5, 1973. 9
Sec . S
ART. XIII.- SOCIAL ,JUSTICE AND HC'MAN RIGHTS Labor
407
worker!s are entitled under the law, such as those pertaining to minimum wages, maximum hours of work, working conditions, social security, selforganization, collective bargaining, lay-offs. company discipline, transfer or r e-assignments, etc. For the protection of their interest, workers are granted the right to participate with management in the formulation of such policies or decisions . (Sec. 3, par. 2.) The above rights are not only given constitutional recognition and protection; the S tate is constitutionally mandated to enact the necessary implementing laws. The Constitution makes no di~t i nction between worker s in profit-oriented enterprises and those- in ::.on-profit establishments such as religious, charitable, medical, and educa!: onal institutions. Principle of shared responsibility.
Labor conflicts through stri kes and lockouts !"H".l;t in tremendous losses in terms of interruption of production. di;;r-oJ.p: ?·...:.~ lie peace and order, sometimes cause the loss of life and destn.:c~ :-:::. eof p :-o perty, and affect adversely the economy of the nation a5 a wh c-: ~ . (1 ) Duty of managem en t and l!lbor. - Bot!-1 ~anageme.r.~ and labor share a social responsibility in the promotion of ix:dustrial P.e ace whic:Jj redounds in the end to the benefit of all. They must learn to disengage themselves from the thinking that,.industrial relatione are something inherently~dversarial oriconfrontational. They must observe legal requirements and prohibitions and obey the orders of the courts and other agencies. When disputes or differences have arisen, they must endeavor to settle them through peaceful means, making prefere ntial use of voluntary modes in settling disputes, including conciliation. Without government intervention but with clear and fair rules of the game laid down by the government, labor and management will have more freedom to deal with each other. It is their duty to comply with the agreement resolving a labor dispute in the interest of industrial peace. {2) Duty of the State. - The State is mandated to promote this principle of ~~£)._re:?ponsibility he tween workers and employers and the prefer· ential use of voluntary modes, instead of strikes, etc. and compulsory arbitration, in settling disputes, a nd to make sure that the workers and employers comply with their voluntary agreements in good faith to foster industrial peace, (Sec. 3 , par. 3.) It should encourage consensus and consultation between labor a nd management so that strikes and lockouts are u sed only as a last resort. Methods for resolving labor disputes.
The two (2) principal methods are: (1) Collective 9argaining. - Through negotiations, a n agreement is ar rived -;t bet,ve-e'n'tii.e representatives of the workers and employer; and
408
Sec.
TEXTBOOI< ON THE PHILI I'I'INE CONRTJTUT ION
•2JAr.bitr~ti~?rl:_:
a
-There are two forms, n amely:
(a) Voluntary. - By this method, the parties submit the controversy to a third person for final determination; a nd (b) Compulsory. - By this method, th e parties are compelled to submit th eir controversy to a court or othe r government a gency provided by law a nd pursuant to the procedures laid down by law. These two me thods are supplemented by the techniques of conciliation and mediation by a disinterested third party, usually an agency of the government concerned with labor disputes. By the first, the third party, aft er hearing each side, assists the p a rtie~ in r eaching an agreement. By the second, the third party, after failure of negotiation and studying the respective positions of both side ~>, makes proposals or suggestions designed to settle the dispute. Reciprocal rights of labor and enterprises. ~·i ) R ights of workers and employers undu a wa.ge system. - Under the wage system, the worker or employee receives from the employer or owner a remuneration or compensation usually in the form of money for his labor or services purs uant to a contract. He has no share in the profits or losses of the enterprise. The owner gets the profits and bears the losses . The profits are his compensation for taking the ris ks a nd losses. The worker offers his services for wages because of his la<.:k of capital: the owner hires workers because he cannot run the business by himsel.f.
While a worker who is paid a just wage has ordinarily no right to demand more, he has, however, a right to share in the growth and prosperity of the compa ny of which h e a lso forms a part. His contribution to the wealth of the company should be reflected in a higher wage scal e and other benefits. On the other hand , a business is established chiefly for pr ofit. The owner has a right t o a reasonable return on his capital and adequate compensation for his efforts and for taking risks. Under special circumstances, a company may r etain all its surplus profits when j ustified by definite expansion projects or programs or when there is a need for special reserve against possible reverses. A profit-sharing scheme whereby workers share a certain percentage in the profits of a compa ny s hou ld be encou raged, a nd, if need be, mandated by law. It gives th e work ers the fee ling of being part owners ofthe company they work for and they are the reby motivated to perform better. ~) Reconciliation of their conflicting rights. - In regulating the relations between workers and employers, the Constitution enjoins the State to recondle their ~O!,lf.licting rights - recognizingth~·;ight of }a.bo·;·to. its JUSt share in the fruits oTprc)ducfi()n a nd t he right of enterprises to r easonable.
, r~t~~~s ~~~i!:i.ve~tments, and to ·ex.pa.i)sfon ar1d.. g'i·owili:.-(Sec~-g-;· his't ..par.) _ .. .... ...- - ·-a.--•·-- .. / ~
~ - ------·· · · --
-~ ~ .....
--:--.The_S.ti!t~.iU!LQ.ralLf..~bli_[
-··
Sec. 4
ART. Xm. -SOCIAL ,JUSTICE .\:\D HCMAN RIGHTS Agrarian and Natural Rt-!:'0'.1!'< <'-;Reform
409
AGRARIAN AND NATURAL . RESOURCES REFORMSEC. 4. The State shall, by law~ undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who arc landless, to own dire-ctly or collectively the lands they till or, in the case of other fannworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake thcjust distribution of all agri· cultural lands, subject to such priorities and rea...-.onable reten· tion limits as the Congress may prescribe. taking into account ecological, development, or equity considerations. and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small Jandowners. The State shall further provide incentives for Yoluntary landsharing. Undertaking an agrarian reform program. (1) Basis or aim of the program.- Section 4 1:= .-~ ;::··~:::·:oo- ::-.;·..;:. ..::ic>n to the State (Government) to formulate and implemE-n: -~ .: : :r.pr::-?-. .:::-.~:·. :· .:...~·a rian reform program. 1 The contents and mechani:<.rr.~ ·~·~· ,-;.;ch pr0~-rae1 :;!:3:1 be determined by Congress but the program must be -f.:·unded •)n tht- right of farmers and regular farmworkers, who are landles~. to <•wn. direcdy or collectively, the lands they till or, in the case of other farmworkers 1e.g.. seasonal farm workers, security guards, drivers 1, to rc-cei ye a...just sl)are of the fruits thereof..'' To this end, "the State shall encc.urage and undertake the just distribution of all agricultural lands" and -provide incentives to landowners for voluntary land-sharing." The agrarian reform provision is the farmer's counterpart of the constitutional provision which guarantees full protection to industrial labor. (Sec. :n (2) Lands covered by the program. - The phrase ~just distribution of all agricultural lands" refers to all arable public .and.p.riv.atelands.. Thus,
the agrarian reform program may cover not only lands planted to rice and corn but all tenanted private agricultural lands. regardless of crop tinclud· ing sugar and coconut lands), without any distinction, tilled by farmers and farmworkers who are landless; all haciendas and plantations. regardless of crop and tenure arrangement; idle, abandoned, and foreclosed lands suited for agriculture; and public lands and/or government and military reservations and ranche:-> ::;uited for agriculture. lR.A. No. 6657 !June 10. 19~S. oth.,rwi:;E> know~~; :h· C·:·:-::;:;r.,.hensi,·e Agrarian Reform Law of 1988, now governs all matters in•;o]\'tnj< thE' imp~cr:~e:::.'.:: :•:-, )f agrarif ·bne t-a-:h y~ar as "Agrarian RP.form Monffi."
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
410
Sec. 4
f3 1 Distribution of land.<; and retention limits. - The distribution or redistribution of land is to he effected either through expropriation and resale or through voluntary land .sharing. 2 Congress, hoWf!Ver, is empowered to prescribe priorities and reasonable retention limits (i.e., maximum areas of land that may be retained by affected landown~rs), taking into account ecological, developmen t or equity considerations, and subject to the payment of just compensation. In determining retention limits, Congress shall respect the rights of small landowners because it is not the intention of the program to make them landless by giving their lands to those without lands. Congress is enjoined to provide, by law, incentives to landowners for voluntary land-sharing. (4) Transfer of landowner·ship. -Expressly or by implication, agricultura~ share tenancy has been recognized as the root cause of the land problems and agrarian unrest in the Philippines. But it was not until the passage of the Code of Agrarian Reforms 3 that share tenancy was abolished in favor of lease tenancy. The conversion to leasehold was merely an interim remedial measure preparatory to the final objective- the establishment of owner-cultivated farms as the basis of Philippine agriculture. This goal became much nearer to reality with the promulgation of Presidential Decree No. 2 (Sept. 26, 1972) declaring the entire country as a land reform area and Presidential Decree No. 27 Wet. 21, 1972) entitled "Decreeing the Emancipation of Tenants from the Bondage of the Soil, Transferring to Them the Ownership of the Land They Till and Providing the Instruments and Mechanism Therefor." The latter orders that tenant farmers of private agricultural lands devoted primari ly to rice and/or corn under a system of share-crop or lease-tenancy, whether classified as landed estate or not, shall be deemed owners of a portion constituting a family- size farm of five (5) hectares, if not irrigated and three (3) h ectares, if irrigated. (5) Support services. - The trans fer of land owner ship, however, is only one aspect of the program. It includes a package of support services consisting of credit, legal a1d, infrastructure; electrification, cooperative development, farm extension, m~chanization, and a host of other services designed to pave the way for the complete emancipation of the farmer from the bondage of the soil. (see Sec. 5.)
(6) Landownership and internal stability. - It has been correctly observed that when the system of landholding in predominantly agricultural countries (like the Philippines ) provides the cultivator a reasonable reward for his efforts and an opportunity to become fa rm owner, it stands for social, ecClnomic, and political stability in the countryside and very often, by the same token, in the country as a whole. 1
2It ill
based on agreemen t be tween landowners and farmers. No. 6:389 (Sept. 10, 1971 l which amended R.A. No. 3844. 'Ledejinsky, Land Reform (Pam phlet). ~ R.A.
Sees. 5-6
ART. XIII. -SOCIAL .TL'STICE A...'m HCMAN RIGHTS Agrarian and Natural Resources Reform
411
The assumption is that landownership stimulates investments and greater productivity, for men always work harder when they work on that which is their own. "The farmer who owns hi~ !and, who retains an equitable share of production, who is able to comb:r:e in voluntary association with his neighbors to improve their common :ot. knows the meaning of human dignity."5 He is in position and will be !::·:>re willing to pay taxes to the government. He is happy and will be less ~·..:~ceptible to the blandishments of alien ideologies. He has a stake in :!:-= community. "For no one would exchange his country for a foreign land if:-:!~ own accorded him the means of living a tolerable and happy life."~
SEC. 5. The State shall recognize the right of farmers~ farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate tech· nology and research, and adequate financiaL production. mar· keting, and other support services. Planning, organization, and management of the program.
This provision imposes the following obligaL·::-.s on the State: (1) To recognize the right of farmers, farmwu·ker$ and landowners, cooperatives and other independent farmer's orgar.izations to participate in the planning, organization, and managemem o:· :he program; 1 and (2) To provide support to agriculture throug!: appropriate technology and research and adequate financial, productic.n. marketing and other support services. The aim is to insure the success of the agrarian reform program in increasing agricultural efficiency and producti\ity and improving the social and economic conditions of the beneficiaries thereof- the farmers and farmworkers. Note that the right of landowners is likewise recognized because even as the program is also designed for them, they have a role to play in its successful implementation. (see Sec. S.,
SEC. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession
~Lubin, Land Reform Challenges the World (Pamphlet). "Rerum Novarum, p. 35. 1
R.A. No. 7607 (June 4, 1992) is the Magna Carta of Small Farmers.
TEXTBOOK ON THE .PHILIPPINE CONSTITUTION
Se.-. 7
suitable to agric ulture, subject to prior rights, homestead rights of small settlers , and the rights of indigenous cultural communities to their ancestral lands. The State m ay resettle landless farme rs and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. Disposition of other natural resources and of public agricultural estates.
With the exception of agricultural land s of the public domain , the natural resources of the count1·y cannot be alienated. But they may be covere d by agrarian reform. (see Art. XII, SP.cs. 2 [pars. 1, 31, 3. ) ln the disposition or utilization of lands of the public domain under lease or concession suitable to agricul ture and other natural resources, the State shall apply the principles of agrarian reform or , with respect to nondisposable natural r esources, of stewardship, whenever applicable in accordance with law. However , the State shall respect prior rights, homestead rights of small settlers, and t.he rights of indigenous cultural communities to thei r ancestral lands. (see Art. XII, Sec. 5. ) The agrarian r eform program is founded on the right of farmers and farmworkers to own t he lands they till. (Sec. 4.) Under the principle of stewardship, one is called upon to exercise responsible care over property belonging to the State entrusted to his possession or manage ment or over which he has free use nnd occupation but not legal title. Resettlement of landless farmers and farmworkers.
Resettlement is a component of the agrarian reform program. It involves the distribution of public agricultural lands to deser ving fami1ies and those displaced by the land transfer opt~ration 1 and the increase of population in the rural areas. The State may resettle landless farm ers and farm workers in its own agricultural estates. In such case, the estates shall be distributed to them in the manner provided by law .
SEC. 7. The State shall protect the rights of subsistence fish ermen, especially of local communities, to the preferential use of the communal marine and ftShing resources, both inland and offshore. It s hall provide support to such fisherme n through 'It involves the transfer to tenant farm~:rs of land titles to rice and corn lands purs uant to Presid~ntial Decree No. 27. The lands covered will not he sufficient to absorb all landless tillers.
Sce.8
Al\'f. XIII.---· SOCJAL .JUSTICE A...">;D HDfAN RIGHT~ Agraria n and Nat.ur;)[ Rc~ourc _.,; Heform
413
appropriate technology and research, adequate financial, produc tion, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against fore ign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine ttnd fishing resources. Rights of subsistence fishermen and fishworkers. The State is mandated by Section 7 as
fo] )(.,·.~-· ~
(1 ) To protect the rights of subsistence fl s!-:.:-rmen especially of local communities to the preferential use of the comm:;.nal ma rine and fish ing resources, both inland and otlshore ; (2) To provide support to such fi shermen t hrou?:h appropriate te chnology, r esearch, adequ ate financial, production a nd marketing assistance, and other support services; and ( 3 ) To protect, develop and conserve such re~ource :; which protection shall extend to their offshore fishing grounds agai n=-t foreign intrusion. Fishworkers shall be entitled to a just shart- from their labor in the enjoyment of marine and fishing r esources.•
SEC. 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as paym ent for their lands shall be honored as equity in enterprises of their choice . Investment incentives to landowners. (1) The agrarian reform program aims not only at making farmers and fannworkers owners of the lands they till but also a t bolstering the industrialization of our country by, among others, ~ncouraging landlord capital tied up in agriculture t.Q be invested in industrial devel opment and public sector enterprises. In t.his way, the landlord is given a chance not only to make more money for himself but also to create employment opportunities, one of the a ims of social justice enumer a ted in the Constitution. (Sec. 3 . .\
' F arming and fi~hing are primary occup ations of m illions of Filipinos. R.A. No. 8435 (Dec. 22, J997 i, th e -Agricultur e and Fi~heries Ml>d erniza t ion Act of 1997," pr escribes "urgent r elated m eat; ure ~ to mo dE'rniu t h,• agr icul tural and fishe rie!t sectors of the country in order to enhance their prolita bilit:• and prepare ;.aid sectors for th e challenges of globalization through an adequate. fo cused and r ational deli\·ery of necessary s upport services."
TEXTBOOK ON THE
414
PHILIPPI~E
CONSTITUTIO N
Sec. 9
2.J As agrarian reform is accomplished, agricultural production is an~ ic ip ated
to increase, and as a consequence , raised income and purchasing _?Vv.-er of the rural poor would be brought about. This rise in income would in turn stimulate industrialization particularly indus tries producing farm requisites s uch as ferti lizers , farm implements and machinery, those producing cons umer goods for rural areas , and agricult ural processing industries. To the extent that the development of industries takes place, it provides employme nt to the rapidly increasing labor forces not only in the rural but also in urban areas through the establishment of plants and factories, t hereby contribut ing to the general economic progress of the country. To achieve these supplementary object ives of agrarian reform , the Constitution requires the State to provide investment incentives to la ndowners. In line with the program to privatize numerous government-owned or -controlled corporations, financial instruments us ed as payments for lands covered by agrarian r eform shall be honored as equity of landowners in such corporations of their choice. (Sec. 8. )
URBAN LAND REFORM AND HOUSING SEC. 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing progra:rn of urban land reform and housing which will make available at affordable cost decent hous ing and basic services to underprivileged and homeless citizens in urban centers and resettlements areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Unde~aking
a continuing urban land reform and housing program.
Aside fro m its obligation to unde rtake an agrarian reform program, the Constitution makes it mandatory for the State to undertake for the common good a continuing urban land reform a nd housing program to make available a t affordable cost decent housing a nd basic services to underprivileged a nd homeless citizens in urban centers and resettlement areas. 1
'There was an urb a n land r eform law iP.D. No. 1517. June 11, 1978 .) promulgated d ur i ng the period of ma.r tialla w wh ose primary purpose is the im provement of the 1.:onditions of t he poor t hrough systematic land use and equitable distribution of big urban lands. It empowers the Presiden t to proclaim urban and urba nizable la nds as urban land re form zones. Pursua nt ther e to, he issued Procla ;nation No. 1893 (Sept. 11, 1979), amended by Proclamation No. 1967 (May 14, 1980) which specifies 244 sites in Metr opolitan Manila for priority development and urban la nd reform zones. The present la w is R.A. No. 7279 (March
Sec. 9
A~D HL'MAN RIGHTS t:rban Land Reform and H·Jusmg
ART. XIII.- SOCIAL .JUSTICE
415
(1) Urban land reform program. - The -whereas clauses" of Resolution No. 113 of the Batasang Pambansa. undt:!" the 1973 Constitution proposing the constitutional provision2 on urban :..1nd reform and social housing program, states. among othora, the reason:: a nd need for such program as follows:
"Whereas, significant numbers of residt-:-.t.:: in urban areas in various parts of the country are without resid.:=: ::a! land of their own and do not have the means to provide themseh t-: ·,..·!t h decent shelter; "Whereas, this deplorable situation is ca ·.:~E-d in great measure by the traditional concept of land ownership i-:: P~:; ippine society which bas r esulted in great misery among the urbz :-. -;:··-:-.:-.thereby hampering economic development and threatening the :.<-..·:.:.: 3nd political stability of the nation; «Whereas, there is a need to emphasize ar::. ;.::--:-:-.?1 hen the constitutional base for urban land reform consistt-::: -..-:: !-. the constitutional provisions on social justice, bridging the gz~ ·:-.:-: .. ttr: the rich and the poor, a nd other provis ions of the Constitunc-:-. -. The primary aim of urban land r eform is to pn:··.-. =~ ~.:.c=-- ·..::':::>a:1. poor family a small lot it can call its own on which to make a J-.•j=t:. T.~ gvvcmment may, for instance, acquire private lands occupied b:.- ·~--ban poor co:~~munities and carry out a land swap scheme exchangjn :0 ::::.:: ~o:Aernment lands in the rural areas to assure fair compensation tD 1?-~ -::iowners on a -least cash" basis. In any case, where private lands are acq:..:.:n?-d by the government in pursuance of the program, the rights of small p:-c pcrty owners must be respected. (Sec. 9.) (.2) H ousing program. - Every family shou: d ha,·e a comfortable and decent house ,.,..hich it can call its own. Spiritually. good housing raises the morale of the family , improves the personalit y of the family because of better environment, and generally gives an atm c·~phere of pleasant wellbeing.4 As applied to metropolitan centers, especi ally ~letropolitan Manila, social justice is a command to devise, among other social measures, ways and means for the elimination of slums, shamble:> , shacks and houses that are dilapidated, overcrowded, and without ventilation and light and sanitation fa cilities, and for the construction in the ir place of decent dwelling for the poor and destitute .5 This would mean that the government has to embark on a massive con_struction of low-cost h ouses which may be rente d
24, 1992J, tha ~urban DevtllOpmcnt and Hou!>ing Act uf 1992," which provides for a comprehensive and continuing urban development a nd housing progr am and establishes the mechanism for it.s implementation. 2Article XIV, Section 12 , )a!;t par., 19i3 Constit\llion. ';1973 Constitution. •see Del. E.T. Santos, op. cit., supra. 5 Guido v:>. Rural Progr~;ss Administration, 84 Phil. 1:!47.
416
TEXTBOOK ON 'I'HE PHlLIPPINJ:: CONSTiTUTION
Sec. 10
at low rentals, or sold to poor and middle-income earners at easy long term and low-intere~t r a tes; 6 or the development of viable hum an settlements ·.Jo·here deserving dt.ize ns m ay enjoy basic services and reasonable facilities for residence, soun.:es oflivelihood and other amenities needed for comfortable living. (3) Participation of' the. private sector. - The Constitution requires the State to undertake the continuing urban land reform a nd housing program in cooperation with the private sector. (Sec. 9.) It, in effect, requires the government to provide assistance to private developers engaged in low-cost housing projects and prohibits it from engaging in activities OJ' ventures which would undu ly compete with private develope rs. Maximum private sector participation is needed since the government cannot, on its ow n, solve the cti.tical shortage in housing particularly in urban areas.' SEC. 10. Urban or rural poor dwelle rs shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner . No resettle ment of urban or rural dwellers shall be undertakell without adequate consultation with them and the communities where they are to be r e located. Ejectment and resettlement of urban or rural poor dwellers.
The Constitution prohibits the ev iction of urban or rura l poor dwellers or the demolition of their dwellings, or their resettlement by the government, except as provided in Section 10. 1 In the past, many squatters were forcibl y evicted from the lands they occupied and hurriedly resettled in resettlement areas wi thout sufficient study and planning. Most of them returned to occupy other lands. 'l'o insure the success of a housi ng or resettlem ent program for the underprivileged and marginal wage earners in both u rban and rural areas, it must be carried out after study and consultation with different sec·tors, including
•se~ Pre;;. DecreeR No. 757 , l224, a nd 1259. ;The esti1t11:1ted allt)UI:Il backlog ofhcJu ~;ing in th e co untry i.s nt lual:it. ~'iOO,OOO, and t.hi., i.<; now here more gbring t ha n in Metro Manila with its vast aod still growing urban s lums. l'he Comprehensive Urban Developm ent and Shelter AcL• R.A. ~o . 78:lfi, Dec. Hi, 1994) >lppropriate;; funds for a lllllfl.~ive naLicmwido housing program . R.A. No. 7742 (June 17, 19!H! strengthens the HouJ=~ing Providen t Fun.d.
:H..A. No. 8368 (Oct. 27 , \997 1 repea led P.n . No. 772 which penali~.es squa tting. 1'he repeal docs not me
Sees.
11 - 1~
AR'J'. Xll[. -- SOC IAL JUSTICE Healt h
A~D
JIL'MAN RI GHTS
417
private developers and representatives of th ~· dwellers thems<:lves and the commu nit ies where t hey ar e to be relocated.
HEALTH SEC. 11. The State shall adopt an integrated and comprehen· sive approach to health deve lopment which shall endeavor to make essential goods, health and other social services available to all the people a t affordable c ost. There shall be priority for the n e eds of the underprivileged sick. elderly, disabled, wome n, and childre n. The State shall endeavor to provide free medical care to paupers. SEC. 12. The State shall e stablish and maintain an e ffective food a nd drug r e gulatory sys tem and undertake appropriate health manpowe r development and researeh. responsive to the country's health n e eds and problems. SEC. 13. The State shall establish a special agency for disabled persons for their rehabilitation, self-deH~Iopment and selfreliance, and the ir integration into the ma.in.strea.m of society. Protection and promotion of the right to health. (lJ Importance o{ health.- H ealth is a prer~ ·.:; -...::~-:te to ha ppiness and well-being. It affects socio-economic factors nota!:<:.- ::-.come. levels of living, and in partit:ular, n u t r ition . H ealth a nd educati v:-. ..::-.e closely int erdepend· ent. A child's abilit.y to take full advant age of tho:- ~.:-!'10oling provided him depends on his he a lth, a nd the a d ul t's ability t·: ·.:. ;.e the knowledge and skills h e has acquired de pends on his mental and. p:-.ysical titness. 1
Heal th is intimately enmeshed with national dt?Ydopment. By insuring the hea lth of ou r people, our human r esou rces wi ~i ~ ma de pr oductive and availa ble in t he service of our country. 2 1.2) Duty of' the State. - I t is the mandatory du :y of the State to protect and prom ote the right to health of every F ili pmo by m a king quality and adequat e health care available and at:ces,; iblt? to everybody, especially the poor an d the disadvan taged . In the fulfillment of thi s duty, the Stat e shall : (a'( Adopt an integrated and compre he n ~ ive approach to hea l th development that w ill make essential goods. health services and othe r
Sce Del. E.T. Sa ntoi<. <>p. cit .. supm . "Health'' (an a right ! ~:~ppe-a red cmly a11 a part of social ~ervices in t h e 1973 Constitution, while the 1935 Charter was silent about it. Now, for the- fi rst time, it is e nshrined in the Conslit.ution as aJundam(mtal bum an rigW, which has often b11en denied to t.he majority of our people particularly t.h•, poor. 1
2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
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Sees. 11-13
30Cial services available to all the people at aflordable cost, g1vmg priority for the needs of the underprivileged sick, elderly, disabled, women and children;:1
(bl Endeavor to provide free medical care to paupers (Sec. 11.) or
the po~; 4 (() Establish and maintain an effective food and drug regulatory system;
(aJ
Undertake appropriate health manpower development and research responsive to the country's health needs and problems~ (Sec. 12.); and
It also implies that raising the level of health of the people requires improvement in their social, economic, and cultural conditions demanding the support and cooperation of all sectors of society; otherwise, no health
3They must all be "underprivileged." 'R.A. No. 7875 (feb. 14, 1995), the "National H ealth Insurance Act of 1995," insti tutes a National Health lllBuran ce Progra m for all Filipinos a nd establishes the Philippine Health Insurance Corporation. 'R.A. No. 8423 (Dec. 9, 1997) creates the Philippine Institute of Traditional and Al tern ative Health Care (PITAHC) to accelera te the de velopment of traditional and alternative health care in the Phili p!Jines, while R.A. No. 8503 (Feb. 13, 1998) p·rovides for t.he promc.tion of Health Research and Development establishing for th e purpose the Nationa l Institutes of Health (NIH), and defining its objectives, power s and functitms. Exec. Order No. 470 (J<'eb. 24, 1998) creates the Philippine Council for Mental Health with the fu nction. a mong others, to formulate policies and guidelines on mental health issues and co ncerns and develop a comprehensive and integrated national plan on men t al h ealth. "R.A. No. 7277 (March 24, 1992) grants special privileges t o the disablod and incentives to other employers. (see Note 10.) 7 R.A. No. 7305 (March 26, 1992) is the ":!\ofagna Ca rta of Public Health Workers." It aims t o promote and improve the social and economic well-heing of health workers, tlltli.r lh'ing and working conditions and term ~; of employment, develop their skills and capacities, and encourage them to join and remain in government service. 8 While we have one (1) doct or for every more th an a 1,000 population, most of the doctors are in the major cities CSp€cially in Metro Mani l~o , not in the co u ntryside where they are most n eeded. Similarly, our best tertiAry hospitals with the finest medical facilities and welltrained m edical staff are in Metro Manila . Thus, the problem in Philippine health care is basically one of imbalance in favor of urban ce nters and maldistribution to the disad vantage of the countryside.
Sees. 11- 13
ART. XIII. - SOCIAL JUS11 CE A:-:D HCMAN RIGHTS Health
419
development effor t will succeed . It is a myth tha t health problem!=; can be solved by health solutions alone. To eradicate. for example, TB and ma lnut rition , the problem of poverty must be addre~5ed . A systematic a pproach t o healt h developm.:- m , protection and r esearch , and e ducation of our people in health habit s a r.d a dequate health car e will lessen our dependence on public hospitals. cli:.ics. puericulture centers, a nd their full complement of medical work€-:,:.. The State should give emphasis on primary health programs with grt- ~ :e- r a ttention t o the preventive than the cur a tive a spects of health. T!:,;. ..:ountry's hea lth syste m has become high ly curative and doctor-oriented a: ~ :-.~ expense of the more i mpo rt~comp on e nts of car e a nd prevention . An effe ctive food and drug regulatory s_\ ~: -: -. . - The th ird constitutional mandate seeks to rationalize the law on f.:..:...C .:.:.:. ·~:ugs to pr otect the public from h armful and useless but co~tly food a:: : i :-...;~s. It shall be the d uty of the Sta te t o adopt measures and pc. : i ::: ,;.~ :::.;: would eliminate harmful and u seless medicines. increase d·nne:;: :: ;:-:-::;.::: c.n of essential dr ugs, encourage loca lly applie-d d ru;; rt-sE-s.r.:::-.. .:: :-. : ::-. ~: : :·..:: ,;- e1'Pctive d rug qu a~it y cont rol supply and df'b·e-r:· ~ y ~:~ :-r.s as ·,a;t-L a s ~ progra m for dissemination of drug information to educate t i:H.- ~op ie on the r ational use of drugs. Many d rugs overlap each other, with little or no t he ra peutic value, while some drugs are more essential than others.
Cf!
In the Philippines , thousands of drugs a r e manufactured a nd sold, many scarcely different from each other. The first step in a national-dr ug policy would be t o establish a limited list of essent ial drugs and to con trol prices of exorbitantly priced drug~ which impos e a heavy burden on the people. The coun try has to be independent from foreign drug companies and be self-suificient in the production and distribution of drugs considering the wealth of medicinal plants in the country. Any drug policy must include the local manufacture of h erbal medicines to meet particula rly the needs of the rural poor who cannot afford the expensive im ported medicines. The country's dependence on imported d rugs is one of the major factors for the high cost of drugs since the final price is largely de pendent on the foreign exchange rate.
(5/.4
special agency for disabled persons. - The body to be crea ted by the State for disabled persons shall coordinate and su pervise all existing governmental and non-governmental agencies concerned with the rehabilita tion a nd education of these persons. It s principal duty shall be to help disabled or physically and mentally h andicapped in dividuals become productive and useful members of our society 9 by promoting th e realization of their rights to 9 In west~rn co un tries, the handicapped are given ~pecia l a ttention and privileges in transportation , housin g, employment, education and socia l places. Thus, bu ildings are re· quired by law to provide fa ri lit it-s especially for them like p ark in g spaces , mean.'\ of ingress and egress, et c. Buses have r e.se!'w d seats for the crippled. l n t he Philippines , t h e exist ing law on accessibility is B.P . Big. 334 • f e(J. 25, 1983 •. "An Act to enh a n ce the mobil ity of dis abled pe rsons hy requiring certain bu ildi ngs. estRblishmen ts, ins t itu ti ons , a nd public u til ities to ins t a ll faci lities and other dc \·ices :·
TEXTBOOK ON TH E PHILIPPINE CONSTITUTION
~ec.
14
f'..:.!H:non as normally a s possible in everyday living and to enjoy the opportunia vailable to other citizens with dignity and self-respect without having to ~ mendicants a nd lifelong dependents of society. For nothing can be more demeaning and more hurtful to the dignity of a human being than ha ving to beg for his subsistence and becoming totally dependent or, others.
i::.:-,;
The measure of care that a socie ty takes of its handicapped citizeng is an index ofthe humann('SS of that society. 10 (see Preamble. )
WOMEN SEC. 14. The State shall protect working wome n by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Protection of working women.
Men cannot be considered , as a general proposition, superior to wom e n. (see Art. II, Sec. 14.) Howeve r, by reason of the Jr:.wl~ . P.h_ys ical s tructure an.d m~j;_~f_Jla.l f~nctions ofwomeQ, the Constitution gives spcci~Ycoricern.. working wom~n· mandates the State to protect them. To t.hi~ end, the State is required to provide ( l) safe and hea lth ful working con d·itions t a king into accou n t thei r maternal function s, and (2 ) .such facilitil~s a nd opportunities that will enhance their welfare and well-being to reali1.e their full pote n tial in the service of t he nation. 1
ancfexprcssly
to
"'R .A . No. 7277 rMan:h 24 , 1992), is t he "Magna Carta for Di!>abled Persons ." It provide!.• for the rchabili t.at ion, l!eif-development and self-reliance of di~abled ptlJ:"Su t of Social Welfare and Developmen t tDSWD > to esta hli>;h. ma n age tt nd operate a Skills T raining CHntt>r for Disabled a nd St reet Children at E lsie Gacht!s Village. E xec. Order No. :!H5 !Dec. 9, 1996) c n~ates B. Task Force to addr~l;S the concern:1 uf pC' r!'un;; wi th disabilities. 1Pres. Decree No. 63:} (,Jan. 7, 1975) creates the Nation nl Commission on the Rol ~:~ of Women, to ensur e th e full integratinn of women for et•o nom ic, ::;ocial a nd cultural dev elop· mcnt at the n a t ional. regional and int er na t ionul lev£•ls and t cr ensure fuJ:"ther t he equali t.y between men and wom en. Exec. Or der No. 201:1 (Ot·t. 10, 1!:194 ), as amt~ nded by Exec. Or der No. 268 (Aug. 4, 1995), furth er defines the composition, powerR and functions ofthe Com miss ion. R.A. No. 7192 Web. 12, 1992). the "Women in Deve lo pment and Nation Building Act.," promot es t h e integr a tion of women as full and equal partne r s of me n in development a nd nation building. H. A. No. 6949 lApril 10, 1990i declares March 8 of ev~ ry year as a working s pecial holiday kno wn a a "Naii9nal..W.om.QP:~J)!!l:· " R. A. No. 7882 fFcb. 20, 1995) manda tes the gi ving of a:111istance to wome n engag ing in mi cro and cottage business t>ntcrpriscR. Proclamation No. 227 (March 17, 1998) mandates t he observance of ''Women 's Role in History Month'' every M1\rch. Likewise Proclam ation No. 224 decl ares the firs t week of March as " Women's Week" a nd Ma rc h 8 a :; "Women's Right and Intern tl tio nal Peace Day."
Sees. 15-1 6
ART . XlTl . - SOC tAL .JUSTICE AND HU MAN RIGHTS Role and Rignts of Peop le·~ Or ~an i ~ations
42 1
A law may validly grant certain privileges •e.g., leaves, shortl:'r hours of workj t o working wome n not extended to working men wit hout ,·iolatin g the constitutional guarantee of equa l protection of the laws. !see Art. I.IJ , Sec. 1. ) There is no :liscri mination because the difference in treatment is relevant to the purpose of such la w and is ba sed on the material or substantia l differences between the sexes.
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS SEC. 15. The Stat~ shall r espect the role of independent people's organizations to ena ble the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful m ean s. People's orga.niz.ations are bona fide associations of citizens with demonstrated capacity to promote the pub.Jic interest and with identifiableleadership, q1embership, and'structu.re. SEC. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making s hall not be abridged. The State shall, by law. facilitate the establishment of adequate consultation mechanisms. Role and rights of people's organizations .
.Jn a democratic and republican S tate, sovereignty resides in the people and all government authority emanates from them . (Art. II, Sec. 1.) The recent, historic events (February 22-25, 1988) in our cHuntry which saw t.he ins tallation of a new government "through the direct exercise of the power of the Filipino people" have given concrete expression to this democratic axiom. A new political vehicle for exercising popular sovereignty emerged"people power." Cause-oriented groups or peopl e'~ organizations which proliferated during a former regime pressing for reform ~ paved the way for the birth of"people power." They continue to compete in articulating the interests a nd aspirations of the people particularly the variouAsectors they r epresent. This is beneficial to both the people and the government. For it is quite true that a government that li~ten s to the voice of the people:: and considers their views and sentiments in the decision-making proc es~ is an effective and stable government because it becomes responsive to their needs and well-being. Thus, people's organiza tions help to make the government one truly based on the consent of the governed.
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THE PHII.IPPINE CONSTITUTION
Sec. 17
Obligations imposed on the State.
In recognition of t he importa nt role of people's organizations in reflecting the popular wi11 a nd as "c~talysts of chan ge," the Constitution mandates the State to listen to the citizens and their organizations, more ~pecifically:
( 1) To respect the role of independent people's organizations to enable the people to pursue a nd protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means (Sec. 15, par. 1.); (2) Not to abridge the right of the people and their organizations to effective and reasonable participation at all levels of social, political and econnmic decis-i on-making (see Art. II, Sec. 23; Art. III , Sees. 4, 8; Art. VI, Sees. 5[1, 21, 32; Art. X, Sees. 3, 9; Art. XVII, Sec. 2.); and ( 3) By law , to facilitate the establishment of adequate consultation mechanisms between the people and the government. (Sec. 16.)
The Constitution defines what are people's organizations . Aliens cannot be members of such organizations because the rights given a re political in nature.
-mfMAN RIGHTS SEC. 17. (1) There is h ereby created an inde pendent o ffice called the Commission on Human Rig hts. (2) The Commission shall be composed of a Chai rman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of t he Members of the Commission sha ll be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human R ights shall continue t o exercise its present functions and powers. (4) The appr oved annual appropriations of the Co mmission s hall be automatically and regularly released . The Commission on Human Rights. (1)
Composition. - It is composed of a Chairman and four (4) members.
(2) Qualifications, appointment, term, and disabilities. - The members must be natural-born citizens of the Philippines, a majority of whom shall be members of the bar . The Constitution does not provide for their appointment. They shall, however, be appointed by the President without need of confirmation of the Commission on Appointments. 1 (see Art. VII, 1
Bauti~=;la
vs. S alongn, 172 SCRA 160, April 13 . 1989.
Soc 17
ART. XUI. ··- SOCIAL JUSTICE A...'D
HC MA~
RIGHTS
423
Human R:'!ht .:
Sec. 16.) Congres~ shall, by law, determine the term of office. disabilities and other qualifications of the members of t~ e- Commission. l (3) Independence. -- To enhance its indt- p€'ndence, the approved ann ual appropriations of the Commission sha~ : ~ automatically a nd regularly released. The Commission is independe r::. : .:,f the three (3) branches of the government. By directly creating the Cv=.::nission, the Constitution seeks to safeguard the body from undue pres:: ur€ from other branches of the government regardless of which political par:y is in power.
Although it may not be in the category of th £; three (3) other Constitutional Commissions, it is, however, given impona::t powers and functions. Note that it is also categorized as independ.e.nt. by the Constitution. (see Art. IX, A-Sec. 1; Al't. XI, Sec. 5.) ~ The then existing Presidential Committee on H u man Rights 3 continued to exercist>. its functions and powers until the <.:' rg:anization of the Commission on Human Rights. 4 Reasons for creation of the Commission.
During the period of martial law from 1972 to 19S 1. violations of human rights were rampant. Opponents and critics of the r egime and even innocent civilians were arrested and detained by the m ilitary w ithout charges filed against them. It is estimated that more than 70.000 persons were detained during the said period. Among the acts or cases attributed to the martial law regime are arbitrary arrest, torture, solitary detention, hamletting (i.e., people were forced to vacate their homes and herded in a place against their will), food blockades, extrajudicial killings (popularly termed "salvaging"), massa cres, and forced disappearance of individuals. Military abuses were allegedly tolerated if not abetted by the government. Many believed that viola tions of human rights only succeeded in giving the military a bad image and in fanning the inc1·ea se of subversive activities in:::tead of containing or suppressing them. Even after the lifting of martial law, persons could be arrested a nd detained in definitely without charges filed again st them through Arrest, Search a nd Seize Orders (ASSOs) and later . th rough Preventive Detention Action (PDA) of the President under decrees is:: ued by him under Amendment No.6 to the 1973 Con stitution.
the .t.clministrativf: eode of 1987. thf'~ are a ppoi ~ t.:-d ':,:• ~:-.e Prtsident for a term 17 \ .v ears wi thout r~ap pointment. Appoi ntl!le:--: :r, .<:o~· ·;:~ c.>. <.:-y shall be only for the unell.pircd t<' rm of t!H· p!'t>d-::ce;;sor. Th ey ;;hnl\ rt>ce:v~ :hE- ;.::.::-.e :.a:a ry as the chairmen an d mem ber:; of tlw Co ns ti tu! iona l Comnll :>~ u·.n:; and :;u~.,~.: : '. •.· ::-... ;;.a:r.e di :~abilities. They must be at leas t 35 year:; of age at the tim .. v f t!l.:: ~ a~p.:. : :-.::::~:-:t and must not h ave been can didates for any elecuve pQ>itiv n m thE- e : e-ct:L;r.~ :::-.:"-t'd:ately preceding their appointment. (Titl~;~ II, Subtitl<:> A. St!<::,;. l. -!. 5 .. ~ create d by Executi,·e Orde r ~o . 5: ~ee Execut:ve Orders ~o. 163 and No. 163-A. •Exoc.·ut ive Order :\o . 163 declare~ the effe< tJ\'it:· of t he cr eation of t he Commission on Human Rights on May 5, 198';. tho:- date CJf it;: promulgarwn. 1 Under
of~•:,·en
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Sec. 18
C ntil now, it is claimed, there a re still s tru ct u ral imba lances in our :;ociety that can pa ve the way for human rights abuses; hence, the need fo r an independent Human Rights Commission.:. Article III
our Janel.. SEC. 18. The Commission on Human Rights s hall have the following powers and functions: (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violat.ions thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within t he Philippines, as weJl as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or n e ed protection; (4) Exercise vis itoria l powers over jails, prisons, or detention facilities; (5) Establish a continuing progra m of research, education, and information to enhance r espect for the primacy of human rights;* "Violations of huma u rights an! comruon when both people an d their duly constituted authorities arc ill-informed abo ut th em and tD kc for grantt>d the rwed to protec t an d preserve t he m. Many 8Cci ors of our t:or it"!ly suffer from various forms of violat ions of their human r igh ts. Children ;•nd the youth, women , rn\gra nt an d rural workers. persons with disa bili t\t-s . and culr:urMI mi11orities are freq uen t victims owing to tlwi r lack of o;> ducat ion and !Ieee;; ~ to institutions thllt protect such righ ts. *Executiv(, Order No. 27 r,July 4, 19861 "direct-" the l>eparlment of F-ducation, Culture and Sports t o indude the study and unden>to ndin g of huma n rights in t.he curricula of all levels of educat ion and t-rain ing in all sehools and l o init iate und main tain regular progra ms and specia l projects to provide venues for informnt.ion and discus:,;ion of h urnan rights." Tho aim is. "to gi v<' grt?atcr respect for human right!l and to deter violations t.hercof.'' Me mora nd um Order 259 t Feb. 7. 1995J rc: quires hum an rights ed uca tionnn d trai ning of law cnforc.em•mt to police, m ilitary an d prison pen;onnel. lt direct!: the Departmentt=; of Interior and Local Government and of National Defense to include a;; an in tegral p
Sees. 18-19
425
ART. Xlll. -SOCIAL .JUSTICE A~D HUMAN RIGHTS Human Righ';
(6) Recommend to the Congress effective measures to pro· mote .human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Govern.ment~s compliance with international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to. determine the truth in any inves· tigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, of· fice, or agency in the performance of its functions;
(10) Appoint its officers and employee~ in accordance with law; and (ll) Perform such other duties and funetions as may be provided by law.
SEC. 19. The Congress may provide for other eases of violations ofhuman rights that should fall within the authority ofthe Commission, taking into account its recommendations. Powers and functions of the Commission.
These are enumerated in Section 18. Note that th.: Commission on its own initiative, ·even in the absence of any complain:. can investigate aU fi)Tms of human rights violations. Its investigator:-· p·:,wer, however, is limited only to violations involving civil and politicai right!-;. (Sec. 18llJ.) Most'of these rights are provided rri-The-Billo-( Rtght:>. particularly the rights of the accused. Such cases ofhuman rights violations are to be filed, after investigation, with the proper court. Other cases such as those arising from private contracts, employeremployee relationships, or individual crimes not connected with the performance of duty by a public officer fall more properly under the jurisdiction of other agencies of the government. ."
The.Commission can --investigate commi!.t.~d by the , l .. . . . . .. .. .. ..violations .. . ....... . • government o~ private partie~. Thus, armed rebels could also be guilty of committing violations of human rights when atrociti~~ are perpetrated against defenseless individuals-. Not only persons within the Philippines l;l.ut..all Filipinos residing abroad are entitled to the protection of the Commission. . ---.. .... ,_
Proclamation ~o. 1139 !Dec. 10, 1997) declare,; 1998 as "Human Rights Year in the Philippine!!" and the years 1998-2007 as "Human Rights l~duciltion Decade" in accordance with lhe resolutions of the l-nited :'\ations Assembly. Proclamation No. 177 declares Decem· ber 3-10 every year as "National Human Rights Week.. R.A. No. 9201 (April!, 2003) declares De(~ember 4-!0 as "National Human Right:; Consciousnes!; Wt>ek in the Country."
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Sees. 18-19
The visitorial power of the Commission r efers to its power to e.xaJtl.~ ine the administration and conditions of jails, prisons, or detention facilitie;;: tArt. III, Sec. 19121.), with a vie.w of determining pogsible violations of h uman rights.
f Ibid.·
In addit ion to its s pecific powers and function s, the Commission may perform such other duties and functions as may be providedJ:?Y law. (Sec. 18[11].) Thus, the law may also give it prosecutorial powers which it does not possess unde r the Constitution. Furthermore, Congress, on the recommendation of the (';ommission, may place other cases_ of hum an rights violation within the authority of the Commission. (Sec. 19.)' ......... ·· - oOo -
Article XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS
~DUCATION SECTION 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Concept o1 education .
. E.4.t.t.catiQ.n ma y refer to the process of tra ining the physical, mental, and/or moral faculties of an individual. The over all purpose of education is to provide an individual with knowledge, skills, competence, or usually, desirable qualities of behavior and character to render him fit tor the dutie~ oflife.' The term is a lso used to me'an t he knowledge, skill::;, or values gained through this process. Ways for acquiring education.
Education may be a cquired through a fo r mal course of in :-:t!".::::: · -. offered by institutions established for the purp ose, or inform ally · Sf-·: 2 ~ 5J.), i.e., t hrough means outside t he formal school system . ~ut'h H~ ·. :-.-:;..·: · job training, exposure to work, experience, self-learning. Hnd : ; ?. :~.:!"lg under out-of-school study programs . I t is s aid that life i;.; a continuing education, or st ated in an( ther way, education is a lifelo_tlg pr()c~ss . In dividuals should continue t•.-. ~ro w intellect~a.lly, spiritua lly, and socially, if they wish to succeed in life a nd learn all the aspects of s urvival'.
1{df:la lly, the aim of all ;;tude nts aflP.r graduation .;hould b~ to (•m ploy peoplP a nd not mer ely to seek emplc>yment. F. vt>r ." ind i \'itht<~ l should be s elf-rl:'liant . life-llkilled and product ive, act ively contributi n g h is ~hare in bui lding ~a jus t an ti humane sor.iet.y." (Preamble.}
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Sec. 1
Goals in giving priority to education, etc.
Section 17 of Article II mandates the State (Government) to give priority to edur,ation, science and technology, arts, culture and sports with the
following goals:
OJ 1'o foste r patriotism and nationalism. - Patriotism is love for or devotion to one's country. It is a feeling or e motion. Nationalism is an attitude or belief characterized by a sense of national consciousness of common culture, race, and inten~::; ts of a people who consider themselves one and disti nct from others. Both emphasize loyalty to one's country and promotion.'" of its interest above all other peoples or nations. Within t h e country, t hey oblige the individual to rise above narrow parochial mentality, thinking not in terms of personal, family, regional, or ethnic interests but of the common good; (2) To accelerate social progress. - The fulfillme nt by the State of the constitutional mandate will hasten the attainment of social progress or national growth and development. Essentially , social progress implies improvement in the quality of the people's life in a ll its aspects - economic, social, cultural, and political- that make up our standard of living; and (3) To promote total human liberation and development. - The goal is not orily to promote thc.COlllJJlon.good, but t he individual welfar~ as_welL While "liberation" and "development,';· as used a bove, are not synonymous, one presupposes the other. The individual should be helped that he may develop harmoniously his physical, moral, and intellectual faculties and thereby liberate himself from the shackles of poverty, ignorance, illiteracy, fear , disability, and other social an d economic circumstances that prevent or hinder the fu ll development of the human personality. The theory is that an individual who is happy, contented, and properly motivated, and duly trained in the necessary and useful skills will be able to participate actively in t he life of society and , in th~ process, contribute to t he promotion of social progress.
Right of all citizens to quality education.
There is hardly anyone who will disagree with the proposition that ev&ry man has a right to educat!<.m.. The right is so basic that it is well-nigh impossible Tor adtizen.. is ignorant and without talent or skill to have the capacity to liberate himself from poverty and want, to fully enjoy the rights guaranteed him by the Con~titution , and, for that matter, to fully enjoy life itself in this fast changing world; nor can he be expected to be conscious of his duties as a citizen and, consequently, more responsive to the rights of his fellowmen. Instead of contributing to its progress, such a cit izen makes himself a burden to society and adds to its ~roblems. Unable to understand such values as truth and justice, liberty and human dignity, democracy and love of country, and to deve lop and strengthen his own convictions, he becomes a n easy prey to the manipulation of corrupt politicians, sweet-talking demagogues, and dubious leaders and to the blandishments of alien ideologies.
So important i:; the right to education that it has now been Pnshrined in the new Constitution . This right was not embodied in the 1935 Constitution while pro vision~ on the iluhject in th(+ 19-:-:3 Constitution were mer ely in the n ature of ~oci a l se rvices which the St-'ducation at a ll levels, whtther public or pri\·att-. 1: should n ot a llow the quality of education to suffer in favor of"quanti! <=.:: ·:e: expansion."4
2F i!ipino students can excel in any field t hey choose if given enough c•;:-;-: ;,:.;.:-_:::B tO develop their potentia!R th rough quality education. They can be at par wltr. ~ ~. ..::: ~ . .:.:.:.-r· parts in' a.ny count.ry if thoy ge t to study in a n environment. conduci,·c to:· :,. :; ~ :·. . ~..: . -..·here t here are enough facili ties ond too ls neccss11ry for th em to s harpen their a;.;::~ ::-.:: ;,K.:ils and become world-class knowledge workers. ~RA. No. 7S23 (March 30, 1992) h elps poor but deserving ;;tuder:t:' ;· ·.:~; ~..: :~etr education by encouraging t h eir employment duriT'g summc o• and!IJr Chri;: r:: .;~ ·. .oc:.>:;.:,ns. t hrough incentiveJ> gnmted to employers allowing them to pay only 601':i ofth~:~ ; :::.;.r:e3 or wages and the 40'k t h rough education vou chers to be paid by the Govt; rnme-r.; .~ c··:· :-.~ ;,.:: ll to Section 5. 'The new milleni um h~t~; ushered in many rhallen...:t>:: ~; nd p ~ : :.. ~~:::r-.3 for a deve loping country like the Philippines. With t he emergent:e of i nfcmnat!i· ~. :.,., ~,::-. :;ogy and globalization of the world'.s economies. it has become crucial for ot;r c.:.:~: : ~:: :: ;;!'oduce quality pr oduct s and ~ervices that can cornp(> te succe~sfully with :';t: " ··, ~ ::::· ; ::,.;;,t. \..,.e cannot be globally competit ive unless we upgrade our .;ducational i m:;t ~:; . :.:: n !d facilities, i.e., the qualit y of education, to hone the skill.; a nd compHencP of ou~ ent.;rprPneurs and work force. The global economy i1:1 being transfonned by an information rHol uu on . Eronomic activit ies are becoming less resource-in tensive and more ~~-.l.f!~j n_te~ The job s that are being created a r c in the informatioil and serv ice sector s. These jobs requ ire 11 certain level of education .
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¥ Problem of poor school fa cilit ies and. services. - Th e Constitut ion r.;-cogn;zes that the quality of education may he deficient in some cases as a result of poor st:hool facilities a nd ser\'ices. Much has been said about the so-called "diploma mills" - crowded classrooms, lack of textbooks/; incompetent teachers, unavailability of teaching mate rials, sub!:itandard librar ies, laborator ies, equipment, a nd ot her fa ci lities , dilapidated school buildings , irrelevant. curricula, etc. The St a t e is duty-bound t o a dopt measures to address these problems. 6 Adequate financing of education is the lifeline to quality education.
SEC. 2. The State shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education rele vant to the n eeds of the people and socie ty;
(2) Establish and mainta in a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age; (3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged;
(4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-ofschool study programs partic ularly thos e that respond to community needs; and (5} Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.
Complete, adequate and integrated system of education to be es1ablished, maintained, and supported.
Sect ion 2 provides some of the ways by which t he State can m ake quality education accessible to all. It furth er implements the constit utional "R.A. No. 8047 (,Ju ne 7, 1995) provide~> for lhe dcveloprilent of the book publishing industry th rough the implementation of a national book poliey and a n ational book deve lop ment plan, creating for the purpose a Na tiona l Book Develop ment Board. ijEducl\ t ors have iden tified possible solu t ions: a strength ened curricul um , mor e challenging textbooks , better qualified teacher s, cu rricular enrichment progra ms, and a r eturn to the basics of reading, writing, and arithmetic. In particular. ~tudies of t he Departmtmt of Education (Dcp. gd.) showing disappointingly low t each e r competen\'l:l suggest. the n eed to beef up t.e~:~cher training school.s lind in-ser vice pNgram!\. The gove rnment need a lso to implemen t special educa tion program ij for childre n with s pecial needs, i.e., children who are mentally r etard ed, or who have auti!lm, or with learning disabilit ie1;, or who are highly gifted, a mong others .
policy of social justice to secure equality of opportunities to every citizen. (see Art. XIII, Sees. 1, 2.) The State is directed by the Constitution to "establish, maintain and support a complete, adequate, and integrated system of education.'' tSec. 2L1J.) The system should include the earliest instruction for young children, elementary and secondary education, and higher training in arts, sciences, and the professions. It presupposes th~ establishment of nursery and kindergarten schools,' elementary and high schools, and graduate institutions of learning which must be adequate and integrated. The Constitution makes it obligatory for the government t.:. do this. The preservation of democraiic institutions depends upon an educated citizenry who are aware of their basic rights and obligations. But more than this, it demands an intelligent group of people who are highly equipped mentally and morally to furnish the needed leadenhip in the various fields required by a dynamic and self-sustaining economy. people capable of independent thinking and of critical judgment. 2 1t cannot be over-emphasized that well-educated and properly trained population are the strongest backbone of a progressive and prosperous nation.
System of education to be relevant to the needs of the people and society. The Constitution is explicit in its directive that the ~ystem of education to be established, maintained and supported should be "relevant to the needs of the people and society." (Ibid.) Thus, it stresses the main objective of public education. Among the immediate problems facing the country today are underdevelopment, unemployment, and mass poverty particu· larly in the rural areas. Below are some of the inno,·ations, measure~ or programs introduced, planned, or proposed to democratize and improve the public educational system and make it responsive to the needs of the people and our society. 3 ···""
(lYEducation service contracting scheme. - t:nder this ~ystem implemented starting school year 1986-1987' students not accommodated in public elementary and secondary schools because of lack of classrooms, teachers and instructional materials, will be enrolled in qualified private 1 Pre-.schoolleaming plays a vital role in developing a child'!> innate skills and potentials. Tt "erves to facilitate the learning process when children begin school by enhancing at an early age their competence for 'classroom work and social interaction. 2 See V.G. Sinco, op. cit., p. 486. 3 Education around t.he world has undergone a ht of transformation through the years brought about by political, social. economic and cultural forces whirh influence the life of the people. New educational tools;teehniques have been in,·ented that ha,·e practically discarded the old traditional and well·entrenched thcoric.< and methods cf teachings. Activity i-:~struc tion and more encouragewent to freedom 1r. thinking and excho.ngeo of ideas have now become the name of the game in mode-rn day education. ·see Philippine Panorama, p. 3, June 14, 1998.) With the emergence of the information age. it is now a common assumption that the fastest way t11 bring progress to any nation is to create- a knowledge-driven economy.
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school s in their res pective communi tic" with the government la ter paying for the students' t uition an d oth er rees which is mu ch chea per than for t he government t o constr uct additional school buildings, hire new te ach ~rs , and purchase more teaching matE!rials ror the excess students in the public schools. The pr ogram also strengthe ns t he viability of private schools through the infusion of governmen t funds. Thus, it benefits bot h th e government and t h e private schools concerned. Th e funding scheme now includes preschool a nd kindergarten c1asses in rural areas a nd urban poor communities. It may later be extended to the collegiate level. (2) Five-year literacy p rowam . - This progra m implemented starting school year 1987-1988 is designed to upgrade t he litera cy skills of grade school children in depressed areas of the country. The program is directed at schools located in far-flung areas. isolated villages of cu ltural minorities, resettlements, relocation centers, and ur ba n slums which make up over 10% of the total number of schoo ls in th e country. The pr ogram came a bout after a study s howed t h at t he numbef of illiterates in t he Phi lippines, is expected to increase unless a ppropriate measures are taken by the government. The low literacy rates·' in their r espective regions are attributed to pupil drop -outs due to poverty, incompetent teach ~rs , lack of instructional materi a ls, dis tance of school from home, ov er s ized classes, and peace a nd or der problem. Under the program, schools in the various areas a re provided with necessary needs like textbooks, remedial instr uctional m aterials in r eading, and in-Rervice training for teachers in remedial reading . The progr am is expected to increase the national literacy rate of 8 1.75% t.o 85%. (3) Reduction of entrance age. - The entr a nce age for elementary schoolchildren was reduced from seven (7) to six (6) year s old, starting school year 1988-1989. The lower a ge requirement for gra de school chil dren aims to facilit at e t heir educational growth a nd development. A study conducted among grade one and kindergarten pupils sh owed th a t th ere was no significant difference in th e mental, social and emotional growth
4 SeE! n ote 2 2. With millio n;; of ont -of-;;choo l yo uth (OSY) a nd ad ults a!'; targe t hM t>ficiaries, t he Depart men t. of Educat.ion, Lhrough the Bureau of Non- Formal E d ucation (Bl:\F E), hat~ developed program~; for their benefit, among which are: (lj NFE Mohile Ute,·ocy Program. ·- Th1~ m mmunity will have a ch ance to share their idle learning resources 11nd m ake these ca~;ily acei.!Ssible to the 'targeted OSY or adults. (2) Family !Jiteracy Program . - Thi;; program will ensure the maximum participation of a ll h y tapping t he s mallest unit of society in stemming illite racy . Literate member s of the fami ly will be utilized to h elp the illitera te and sem i-illit erate me mbers of the fami ly itself. This may extend to fam ilies h elping t h e liter acy and basic ed u cation needs of tho n eigh bor ing family or families: (3 ) Home Ba8e Literac.v Program. - Th is program aims t o extend the gains obtained through the N FE Mobile P rogram by enjoining the NFE Mohile Program learners to practice and share what they havE! learned by teaching othe r illiterate mem bers of the community in their homes or through inter-vis ita tion to conduct homestudy group. (Undersec. Bar to lome S. Carnl~, Bducators Speak, Manila Bulletin, F eb. 11, 2001 , p . 114 .}
and development between ;,:enm and six-year-old children. It is claimed that delaying a .six-year-old child from entering grade one until he or she is seven is a waste of time and impedes intellectual development. Due to the current knowledge explosion bruught about by technological and scientific advances. t0day's growing childr~n. particula1•ly those aged one to 10, have been found much more mentally .ci:t-rt and active than their counterparts 10 to 20 years ago. It is cxpecteci that future children will turn out more advanced - mentally, socially. 3.~d emotionally - than their counterparts today. (4) Values educati.)n (ramework. - In line -.,·:::-: the new thrust in education, a revie\\- of the \'alue eomponent of tht- -i: :·•·.:-rent educational programs is being undertaken to draw up a values t-ciu.:ation framework which .shall serw as a guide for evolving a value dt-·.-.;- lnpment system program of the Department of Education (DepEd;_; T!lt- integration of value.s education aims to produce citizens imbued v.ith app:.:•priate social value.s a:-:; a ~trong moral foundation. Among the values 1!1c:'.1ded in the frammvork are truth. harmony with nature, love, spirituality. p!'•)tection of rights. social responsibility. patriotism, nationalism, and econom1c .:-tliciency.
i 5 l Parents education program. - This program designf'd !(• make parents play a more important role in boosting the educational w~::fare of their own children was initially implemented nationwide starting sch.:ool year 1987-1988 in depressed, disadvantaged, and underscrved £DDt"· C•)mmunities. Specifically, the program will: (al enable parents acquire appropriate abilities and skills in preparing their children for schooling and guiding them in their school work; (b) help parents gain a greater measure of competence and security in dealing psychologically, emotionally and pedagogically with their enrolled children; and (c) dewlop and appreciate desirable family values such as loving, caring, and sharing, among others.
The program is based on the concept that pupils' academic achievement level can be raised if parents undertake necessary supportive activities to augment the teachers' functions toward the children. Parental supportive activities may come in the form of parents encouraging more diligent study by their children, nurturing their children·:'> curiosity, creativity and selfconfidence, and helping their children understand that optional learning can be achieved only through intellectual and moral integrity coupled with hard work and commitment, and participating in school classroom work. The program will be bolstered by the development of instructional materials for slow, average and fast learning pupils for remediation, l'einforcement and enrichment h{ learning. It also calls for the revitalization of homeroom parent-teachers associations (PT,A) where teachers and mentors jointly discuss academic-, social, emotional and pedagogical problems of pupils and initiate necessary remedial measures.
5 Thc new official name. by ,·irtu,; of R ..--\. Xo. !:H:=i5 Aug. 10. 20011; formerly Department of Education, Culture and Sports •DECS .
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'61 Educational development projects. - The Educational Development Decree6 orders the undertaking of educational development projects, such as the establishment and/or upgrading of technical institute.s, skills training centers, and other non-fonnal training programs for out··of-school youths and the unemployed, to solve the problems of unemployment and underempli>yment. (7) National Secondary Assessment Test I National El~mentar.y Admission Test/National Diagnostic Examination.- Under Presidential Decree No. 146, all high school graduates were required to pass a national college entrance examination (NCEE), as a prerequisite for admission to any post· secondary academic or professional degree program requiring four ( 4) years study in any private or public institution of higher learning. The NCEE was designed to identify an individual's potential to perform college work and to improve the quality of secondar; and higher education. 7 With the NCEE, only students found mentally equipped were aHowed to enroll in four-year degree courses. 8 As a counterpart of the NCEE, the NationalTechnical Vocational Entrance Examination (NTVEE) aimed to guide high school graduates on what particular field of vocational and technkal course to pursue. The NCEE was replaced (starting school year 1993-1994) by a new program called the National Secondary Assessment Test (NSAT) covering at least five (5) areas -English, Mathematics, Civic~, Science and Technology, and Aptitude. The NSAT seeks to determine and analyze the variations in the level of achievement and aptitude of graduating (4th year) students in private and public schools. Unlike the NCEE, the NSAT does not have any cut-off score. The result of the student's NSAT is integrated into his grade print average IGPA) to determine his final rating. A student is free to enroll regardless of his NSAT reRult or final rating. The NSAT as well as the National Elementary Admission Test (NEAT> fer Grade 6 pupils, serve as achievement tests to determine if the students and their schools are performing well so that the DECS will know what kind of assistance can be given. 9 Any government or private tertiary school may still conduct its own college admission test to select its own enrollees. 6
Presidential Decree No. 6-A. Sec. 2, as amended by Pt•N;. Decree No. 162. 'According to the then DECS (now OepEdl, the NCEE has improved tht> quality of students entering tertiary education. In short, it has reduced tht~ drop-outs in l~ollege. 8 R.A. No. 7731 (June 2, 1994) repealed Pres. Decree No. 146 which required the NCEE, on the ground that it punisht>s the studeuts for the fuilure of the school to m>tk11 them learn and of the DECS to strictly supervise and monitor the schuol. It is clajmed to he disad"antageous to rural students who do not get the same cxpo!lure as urban and Metro Manila high school students (who score higher than those from other regions) to mass media and current affairs and is con~equently oppressive. The National Elementary A-;scs;;mtmt Test (NEATJ and NSAT were introduced after the NCEE had heen assailed, in media particularly as an unjust system of student evaluation. With these two innovations, there is a change in the nature of the tests from testing aptitudes for learning to testing what one has learned in school. ~Both NEAT and NSAT are designed to measure not only the academic achievement of elementary and high !School students but also the instructional competencies of their t~achers, and the supervisory skills of the principals. They cover four (4) subjel~t areas: .J<'ilipino, English, Social Studies, and Science and Mathematics. Beginning March, 2001, they were made a
Sec. 2
ART. XIV. - Em::C.UIOX, SCII<~NCE AXD TECHNOLOGY. ARTS. Cl"LTGRE AND SPORTS Education
435
The DepEd has announced its plan to replace beginning ~chool year 2002-2003 the NEAT and the ~SAT with the ~ational Diagnostic Examination to improve basic education in the country. Initially, the aptitude tests would be administered in randomly-selected public and priva:(~ elementary and secondary schools in the DepEd·~ regions composed of ;=(•me 150 city and provincial schools division to be given instead to Grade III pupils and second year high school students. According to the DepEd. : !-.t.two examinations merely ~ecure statistical data un the academic perfor:::ance of gt·aduating school child1en in the basic education program. Sir.c.: these children are already (Ompleting their elementary or secondary ec·..;.cation course, "there i~ r.o more time left for their teachers to provide ti-.t." low achieving students wit~ necessary academic assistance." (8) Study· nou·-pay later plan. - Presidential Decree No. 932 (Educational Assistance Act of 1976.; further "democratizes acce~s to educatjon by providing opportunities to deserving citizens to pursue r1igher education and training in the fields of study vita] to the development of the national economy" by establishing an educational assistance program more commonly known as the study now-pay later plan (SNPLP J and specifying various schemes for its implementation. The plan helps poor but intelligent high school graduates pursue college education through loans granted by government-lending institutions. They will pay back their loans when gainfully employed after graduation. (9) Accelerated Learning Program for Elementary Schools. - Under this program
(10) Secondary Education Development Program. - This program (SEDP) developed a new high school curriculum to upgrade 5econdary education, considered as the weakest link in the school system. The SEDP aims to strengthen the students' preparation for work or coll.;oge education. This program was implemented nationwide beginning school year 19891990. The New Secondary Education Curriculum r:\SEC is a major component of the program. The new curriculum which i;; cognitive-affectivemanipulative-based, consists of eight (8) subject areas- English, Filipino, Social Studies, Physical Education/Health/Music· PEH.:\Ii, Technology and Home Economics, Values Education, Science. and :\1athernatics - pro-
prert>quisit.e for graduation in public and pr!vat~ elt:>mt>:-.t;-.ry and secondary schools regardless of whether t.h~ graduating students pass or not the ach:~n·m.:-nt. examinations. Each of them will be issued a certificate of rating. Both te-,u are categori.z<:d as separate subjects included in the computation of the final grades of the graduating student.•. The NEAT score is given a weight of 1!9 and the NSAT, 115 of the general average. The tests are administered nationwide by the ~ational Educational Testing and Research Center 'XETRCJ.
TRXTBOOK ON THE PHILIPPINE CONSTITUTION
s.~c .
2
grammed in a 40-m illUte daily schedule instead of the current one hour:!-trice-weekly schedule.1u In line with the DECS' (now DepEd) bilingual education policy, Mathematics, E nglish, Science and Technology, and Home Economics are taught in Engliflh while Fili pino is the madiu m of instruction for Social Studies , Filipino, Values Education, and PER~ . The new curriculum provides more application of studc:nts' theoretical knowledge gained from the different disciplines, more maximum use of local resources, more work experiences, more advanced learning contents in terms of concepts, skills and values. ( 11) Family plann ing. -This subject has been integrated in the curricula as a preraquisite to graduation for collegiate students, with those taking medical and paramedical courses being required to take the subject in the
'''The re is a Secondary Education Develop m£lopml.'nt Bank IADHI, the Japan Bank for Tnt.ernational Cooperative (J BJC), and the Philippine Government. A secondary education program called "Cooperative Work Curriculum" was introdu..:ed during martial Jaw. (see Keynote address of Sec. J .C. Manuel beforE! thP. Coord\nating Council of Private EducCilion Association !COCfJPEAl conference in Baguio, March 3 1, 1975.) It calls for high school students in urb;m areaR to undergo on-the-job traini ng in factories, !!hops and otliceA, nnd in rural areas to undertake farm works. This program is in line with the ohjedive to eq uip high school studen~s with more practical skill;; needed in industry or agriculture to enable them to ge t employment even before the ir graduation. Tho f>epl'lrtmcnt has implemented a uw ork-oriented" elementary and high school curriculum . I Dept. Order No. 6. s. 1973.) The main featu re of the revised secondary curricul um ifl that more practical art!\ and voca t icmal r.:ou rses are offen•d to the studonls from first year to the fourth year. This emphasi,; on work activities in the educational procc~!<:> is particularly relevant in the Philippin e context in view of our people's colonial conditioning agains t manual labor which ha:; been, it is no exaggeration to say, a major deterrent to nation· building. Dy making wrricctlar offerings relevant to local needs, the educational system ca n contribute tCJ Hconomic development. Fo r instance, in agricultural communities, the curric ulum s hould give stress to .agrinliture, in fishing communities, to fishery curriculum, and in indu::;trial and commercial communi tie~. appropriate cour~es 3hould he otTt~red to prepare the youth for active' participation in the commercial and industrial enterprises. The students were grilded based on their performance a nd paid the rate~ of trainees. The new curriculum replaced the 19'13 Revis~d Secondary Education Cu rriculum which had been found by educaticm experts a s wanting in equity, efficiency, quality, and relevance. The return of Gradt• Vll in the elementary grades and the lengthening of the .~eco11dary course to fwe (5 } years was proposed {by Dr. Vitaliano Bernard ino, form er Undersecretary of Education, and Dr. Antonio Isidro, first Mindanao State Cniversity President) to rai:so the quality of olementary and high school graduates. Incic!entally;a law \R.A. No. 569.) passed by the old Congress specifics that the seventh grade may be restored only if resources fife available. Financial constraints and the additional educational costs to parents will be the obstacl'' to the restoration of the seventh grade and the adoption of a five-year secondary curriculum . The DECS has recommended another year for high :>chool. I nstead of merely prolonging tho time of schooling. it will be more practical to ulle the additional cost to improve the quality of teachers and upgrade educational facilities, e~pe· cially in t.he first six (6) grades, with emphasi~; on the teaching of useful language skills, bas ic mathema t.ics, science, and civics by better trair.ed and better paid teachers. With we llequipped schools, we can then consider adopting more thlln a lO·year pre-college curriculum as in other countries like the United States, Germany and Japan whP.re quality education is obt ai ned in 12 years of pre-college education.
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ART. XIV. - EDUCATION, SCIENCE AXD TECHNOLOGY, ARTS, CTLTURE AND SPURTS Education
437
regular manner.U The inclusion of famil y planning as a new J:> ubject i:-> aimed at making our citizens appreciate the importance of controlling population growth. (12) Program for decentralized educational d._,,·elnpment. - This program (PRODED) ofDECS with it~ massive teacher retra :ning courHes is designed to upgrade the quality of elementary education and :!"!"lprove the availability of educational services among deprived regions ofthf country. A body, known as Proded Project Management Committee (PPMC , pnmarily assists the various DECS regions in id ~ r:.tif~ing educational pro::<~,m~. at the same time defining and instituting appropriate action prog-r a;;:: ~ . ,;nd later assisting in generating the required r-.?:;.vurces for such program,: As part of the impl en::~ntation of the program. the: DECS hM formulated a new elementary schr,t}i c;:. "'1':-~!..i!um (NESCl which is intrc·<:L.:-.:-d grade by grade. A return-to-basic-5chem.:. : ~ ;;tarted with the 1983 school~·<:,:;:- . Generally, the NESC is an outcome-
"See Bureau of Private Scl}ools Memo. No. 76, s. 1972: Letter of Instructions No. 47, dated Dec. R, 1972. 2 ' A fundamental challenge to Philippine education is the str~ngtheni ng of elementary education, ~s p ec ially communication skills, which can support hi gher skill ~ demanded by the new informati on age. If the skill;; devdoped on t he elementary le\'el arc wea k , th e rest of th e educational system will have to stand on a precariou s base indt'ed. The government sh ould give priority to the need t o upgTade the quality of elementary education, with particular emphasis on equal opportunities for the needy and di sad\·a nt~gcd sectors. Elementary education, after all, is the bas is for secondary and higher education and as basis of furth er training of those who ultimate ly drop out of ;;chool. High :>chool graduates s hould be prepared l.o cope with college curri cul um and those who complet e their degree programs should be certain of passi ng their boar d or bar examinations.
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a lternative learning system which primarily seeks to prevent student dropout and ultimately strengthen the holding power of high schools. Project beneficiaries are high school students who are fully or partially employed, who have to leave school for some time due to a job opportunity, who live in areas inaccessible to regular public.: transportation, who have travel problems due to physical disability, who are overaged and uncomf(Jrtable with younger classmates, who are manied or have children and have to stay at home most of the time, who are needed in the farm or at home during planting and harvest seasons, or who have personal or fam ily problems that cause them to leave school. Many students who fall in any or several of the foregoing conditions are potential schoolleavers and they have to be helped so they will stay put in school. A student covered by Project EASE enters into a contract with his school principal stipulating that he will continue studying at home. The contract specifies how long the horne study will be, what lessons to study, what outputs are expected, and where to get assistance to accomplish his learning tasks. An EASE student stays in the program for as Long as necessary. He is free to return to his regular clas ses anytime he can . (15) Non-formal Education Accreditation and Equivalency. - The main component of this program (NFE A and E) is a novel non-forma l education curriculum which covers three (:·n levels of training. The first is basic literacy and the second is the equivalent of an elementary education. The third and most sophisticated level will give the students the competence comparable to graduates of secondary educa.t ion.
The most important feature of the program is "flexibility." "The traditional barriers of time, accessibility and resources are overcome without sacrificing the quality of the educational process." A pool 0f experts crafted the NFE A and E System based on specific Philippine neerls and internationally-accepted methodologies in conducting non-formal education. The NFE programs have been expanded to include Filipinos 15 years old and above who are out-of-school youth (OSY) and adults , functional illiterates, unemployed OSY and adults, elementary and secondary school drop-outs, industry-based workers, and members of cultural communities. With the NFE A and E Sy1:1t.em , the non-formal education program of the national government is expected to make a dramatic gain in educating illiterates in the country. The DECS started pilot-testing the program in January, 1999 in Metro Manila. (16) Other reforms, programs, and measures. - The Department of Education, Culture and Sports has also institutionalized the following reforms all aimed to improve the quality of education: lengthening school calendar from 200 to 220 school days,13 re-introducing science a s a subject in Grades 1, 2, and >aR.A. No. 7797 (Aug. 25, 1994).
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ART. XIV.·-·
EDU CATIO ~.
S CIENCE AXD TECHNOLOGY, AHTS. CT LTURB AND SPOHTS Educ11tion
439
3, increa sing the contact hour" for English, Science, and Mathematics in the elementary grades, allowing a dditional contact hours for English, ~Iathemat ics, a nd Natural Science in .'3rd a nd 4th years in high school, introducing the National Elementary Assessment Test or NEAT. impleme nting the rationalization of the State Tertiary Sy5tem, and liberalizing tuition fee policies for private schools. Under the new 2002 Ba:;ic Education Curriculum (BEC), the following subjects were scrapped fr om the elementary and hig h school curriculum and integrated into one learning a rea called "Makabayan .'' Among these subjects are Social Studies, Technology. Home Economics and Pract ical Arts, Music. Arts, Physical Education and Health, Geography, History, Civics, Culture and Values Education. ~Ba.:0ic tool subjects" like English. ~1 ath, Science and Filipino are given an hour each in every seven-hour school day. The human development courses under ~~! a kabayan" are given three hours daily. "Under the new curriculum. there are fi ve (5) learning areas: Engli:>h, Filipino, Math, Science a nd I\lakabayan . The books will still be the same:·:• (see Sees. 2[5], 5l4J.) ••The Schon/ Hea lth and .\';.. ;rwon Program looks after t he heahh needs of !'chool children and t eachers. The Sprc•ai F.ducatian Program handles the edu cational nC!eds of physically an d mentally handicapp~d and gifl.ed children. To address the chronic inadequacy of supply of textbooks in the coun tr,,··~ public school ~;ystem, lt.A. No. 8047 c.June 7, 19% l grante d incentives to the book publis hing industry, di.~mantling the government monopoly I{> textbook publishing. 'fhe DepEd has implemented nationwide r:t.artir.g school year 2004-2005 its AC'credit;; · tion Program for Public Elementa ry Schools (APPI!:8} as a voluntary Haluation ~y;;t +~. designed to empower all public e lementary !>chools to strive for excellence through eni:.:~.: ~ned self-evaluation based on certain agree ri standards of excell en ce of thei r :;cren.:t!';: .'.~. :. weakn esses and consequently, improve t heir delivery of basic educa tion in the C•:::-.rr.·;::~::E-; wh ere they are locat ed. La;;t May 24, 2004, half of t he 1.4 million schM I grade;.:.;; ·.-·:-. ·~ :-.ad taken th e High School RE>adines!l Test CH SRT1 fa iled to meet the c11t.·off ;c., ~ .; ·:: 3•:·>: . The DepEd proposes to have a "bridge progra m" where a ll t h o!:'e who fa il~:l ·..;.·.:·~:~ ~ able to over come t h eir deficiencieE- t>specially in English, Science;;, 11nd Ma t h :·:··..:.:;-7;;. addmg an· other year to the 10 years of preparation for college. Because nf th.- r <-;;:;;:anc.:: of a minority, the DepEd finally decided to make it !S implementation opt.ion<•l in '.2·)•j 4 and to fully implement t he program in 2005 when over yone had undt~r!'tood its ad,·a nrages. This "bridging" plan, however, generated much cootrov~::rsy. Subsequently, on June 29,2004, th!i DepEd conduned a :"ational Diagnostic Test lNDTl fo r a ll public elementat·y .school GrudP. 4 pupils and a ~a tiona! AchiP.vement Test (NAT) for all public h igh school third year s tudent:; througho ut (}l~ country. The NDT is designed to provide information in t.he learni ng compett'nciE·s ir, l.:ngli;;h, Science, and Mathematics in Grade 3 a mong the newly enrolled Grade 4 children, while the NAT seeks to assess the competencic;; in the 1;ame three (3) tool s ubjects in second yeAr ~tmong tbe recen tly enrolled third yea r stud•mtJ>. Bot.h testi! a"tso int end t o monitor t h e in stitutional performa nce of public elementary and s•~co ndary schools , which in some ways, will also n ;flect th e instructional capabilities of teacher!; and supervisory skills of school principals. The DepEcl principals h:B adopted, starting Rchool year 2004·2005 . the "performancebased grading .;;y~tlO>m" PEGS' in pllblic E"lemt>ntary and high schools in line with the continuous endeavor to upgrade the qna lity of the sturl~:>.nt;; ' 3cadem1r achievementR in five i5} eubjocts or learning areas of th l! rt>:d ba: PBGS preH·rihe that the lc.we..;: g-radE' or minimum performance standa rd is 75'ii: and tht> lowes t f
TEXTBOOK ON TH r: l'H l l.II'I'INE CONSTITUTION
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System of a free public education to be established and maintained .
Under the 197.1 Constitution , th~ State was required to "maintain a ;.ystem of fn~e public elementary education and, in areas where finances permit, establish and maintain a ~y~ tem of free public education at least up to the seco ndary level." 1r, The phrase -where fina nce:-; permit" is deleted in the new proYision. Actually, the phra:;e is superfluous for the goal can be realized only as far as the financial condition of the government permits. Nevertheless, the explicit mandat£> for a free edutation up to high school is provided to emphasize the importance of giving the citizens free education. 16 To the criticism that the guarantee might he merely r aising false hopes due t o the financial problems then faced by the country, it was made clear that the provision does not contemplate automatic granting 0f free education right after ratification of the Constitution . There is no definite timetable for i ts implementa tion. It will be implemented only after the national budget sha ll have shifte d highest priority to education (see Sec. 5[41.) and the fin ances of the government permit it. 'fh e p rovis ion on free high sch ool education is more a n expression of an objective or priority rather than an immediate mandate. It stre:;;s(~s the duty of the government to provide such free education at the earlitst possible time, not at its earliest convenience Y (see Art. XVITI. Sec. 20. I The government s upports highN education through a system of state universities and colleg-es, the biggest of which is the University of the Philippines. Compulsory elementary education for all children of school age.
The explicit provision for compul.:;:m·y elementary education (Sec. 2["2).) seeks to address th e social problems. such as illiteracy and child l abor, XV. Seclion su·,·i thereof. '"Stat istics on school d r op-ou t!' ,liscl ose th at o u t of every 100 p u pils a d mi lted in Gra de 1, only 65 finif!h Grade 6. Of t.h~:h thHt level. th{-1 other 1:3 dropping out for variou.!l •·r.asons. Studie.; show that. it. takes at. ](:'1\~t a :;c•cond year hi~h school education for a student to know ho w to study by hi m!>el f. A studen t wh o go<":; only u p t.o thl' fourth grade of the elementnry level has virtually no chan(:e of retaining what he· ha~ learned in school. much less applying it for everyday us c. "The implic11t ioro i;; disturbing - morl' than half a m ill ion gr ade school p u pils wiU not be abl(! to ret ain a mi tt ppt~· rlw s k ills of r('ad ing, writi ng. and calculating in their lifetimes. Thi~ wasta~fl of nece;;;:::ary s kills anti thE· impa1•·nwnt c.1f ~·uturH. manpower is most appalling especially at a time when W(' h:1ve tfl maximize <'Very \·ita l resom·cc avaihtble." !Sen. E. Angara. Manila Bullt!tin. April 19 , l!16S. • Out of 100 children sta rting in Grad r. I, o nly 69 ae-e able to become el e m~nt.ar.v graduni~s, or 3!'f clrnp· (ll.lt ti)l· vari
schools. St~hool organization ff'P-;;, puhli(:tnions, texthouk:~, workho
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Al\T. XIV. - · ED UCATION, SCIE:\CE AXD TECHNOLOGY, ARTS. CUL TU RE AXD SPORTS Ed ucat ion
441
prostitut ion and crime, spawned by the Jack of a similar provision in the 1985 a nd 1!l/3 Constitutions.. It is noted that tens of thousands of children of school age labor in ;:;weat ~ hops or peddle on :'treets with no basic reading and writing ,:;kill:;. lrre.~ponsib] a parents force their chi ldren of school age to work without haYing gone through elementary schooling. Many such chiJdrcm have been ea~y pre ~· of ha d element5 engaged in prostitution and othe r criminal acti\·itie:>. Compulsory elementary education is expected to furth e r reduce the country·5 illi teracy rate and at t he sam e time minimize these socia l ilJs that arise fr om ignorance. Congress may, by law. impose penalties 011 p a~.:-nts who refuse to send their children to school without justifiable or legal 2TOnnds . Natural right and duty of parents to rear their children.
The compulsory requirement yields to the natura: ri ght of parents to rear their children. (Sec. 2l2J.> Since the parent~ are rt-:; ponsible for their children's existence, they are a ls o responsible for their children's need to Jive a dec-ent and useful huma n life. They do not fu lfill their duty simply b;· feeding, clothing, and shelt ering t he child; they m us t also :;;:e to it that the child, when grown, can take hi s pla ce as a useful member of 5ociety. since society is natural to man. Ther efore, they must t each him the means n eeded for life in common with others. Our interest h er e is only on education during the formative per iod of a child's life and education for the common duties of a human life. By the natural law , parents have the duty to educate their children. fr:c this be longs to the primary end of marriage . But one ca nnot haYe a c:::y without the right to fulfill t hat duty. Therefore, by t he natur al law . pa re ~:s have the right to educate the ir childre n. (see Art . II. Sec. 1:?. Pa:-t-~ts . by virt ue of their being such. are in fact the first and mo::t i ~p·.· rtant educators of their children. in hu man as well as in ~pi ri tu al ~a~ : e rs . In values forma tion, the role of the fam ily or the !lomE' :s t- ·:en :;:ronger than the educational system. Right of the State to a sufficiently educated citizenry.
The State also has the right to a sufficiently educate d citizenry. But it has no right to interfere in what. strictly belongs tQ the family. It has, however, the righ t a nd the duty t o compeT pai.·erits -to ·fulfill their duty in educating their children . This is called a secondar)' or supplementary right a nd duty because it is valid only when the parents themselveR fai] in their duty. The State can compel pa r ents to feed their children if they neglect to do so, but it has no right to in te rfere when their pare nts discharge their obligation satisfactorily. The same is true in the matter of education. The State's right is not so much to do the work of education as to see that it is
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done. In this function, it is not only protecting the child,18 but also the higher social good. (see Art. XV, The Family. ) System of scholarship grants, etc., to be established and maintained.
The benefits of education must also be extended to those who have less in life. Thus, the State is required by the Constitution to establish and maintain a system of scholarship grants, student loan programs (supra.), subsidies and other incentives which shall be available to deserving students in both public and private schools especially the underprivileged. (Sec. 2[3].) "Deserving students" may belong to well-to-do families but the underprivil eged must he given preferenee if they are also deserving. Note that students in both public and private schools can avail c>f the scholarship grants and other forms of incentives. Non-formal, informal and indigenous learning systems, etc., to be encouraged. (1) Formal educational system. - Schools are the ordinary means of education. The Philippine educational system is basically structured as follows: a child enters the form al schooling syfl tE.~m at the age of six (6)1» where he goes t hrough a six-year elementary or primar y instruction followed by a four-year secondary education, after which he can enter college and study for four (4) or more years depending on the profession or course of study pursued.
Formal education , oftentimes referred to as "schooling," does not refer only to general education (elementary, secondary and college level) but also to vocational/technical education, special education for the handicapped or gifted children, and adult education programs. (2) Non-formal, etc. learning systems. - · For some age groups or s pecific groups of individuals and by reason of the peculiar conditions in some areas of the country or surrounding their life particularly in depressed communities, a departure from the formal or traditional methods of instruction might be warranted. The Constitution, recognizing this need, enjoins the State to encourage non-formal, infonnal and indigenous learning systems as well as self-learning, independent, and out-of-school study programs particularly those that r espond to community needs. (Sec. 2[ 4].) Th e introduction of these new concepts in education will make learning accessible to all people, including out-of-s~hool youth, the disaoled and adults. While formal schooling is that which takes place within the four walls of the classroom , with teachers and textbooks normally approved by the Depart ment of Education, Culture and Sports, non-formal education refers
~~se
Right and Reason, by Austin Fogothey, S.J., 3 rd ed., pp. 358·360. seven ( 7\.
'~Formerly
S()C. 2
ART. XTV.-
8llCC:\ T10~ ,
SCIENCJ::
.\~D
TECH.:"OLOGY.
443
AHT:::. <.T L TURF~ A~() SPORTS Education
to that which takes place in \\'(Jrkplaces, factories , shops and similar venues meant to upgrade skills nf workers or prm·ide new skills to youth and adult!'!. Informal education. nn the other hand. refers to learning derived fro m the home, the church . rna::::; media and other community institutions. lnriigenou.s learning sysft!": • incl ude ways and methods within the indigenous cultural commun itif-:' s-ee Art. II, Sec . 22.' which are used in preserving and building certain traditions within said communities, taking ir.to account their needs wh ile ali
The program relaxe:: ~tringcnt education policies through the system of accreditation 11f the knowledge gained by a school drop-out outside the formal school syste m who may be given a diploma or similar recognition of proficienc!· in a given field after passing a validation examination. Thus, it ser\'e:; as a means for expanding access to educational opportunities to citizen:> who are unable to avail of the services and programs of form al e'
lb, Since it:-; launching in 1976, t he Distance Study System w::-s •or Distance Learning System {DLSJ of the Philippines has been deliveri:-aE' education through the w:1 e of mass media to people who are separate-d from the main::tream of d evelopment by geographical condition~. ke;:-: professionally :'tag:nant by the pressure of their jobs and family re~p.:::-,. sibility, or handicapped by the high cost of living and by pny~:cal disabilities. This educationa l innovation was conceived to me-e! !he expanding educationBI needs nf our expanding population. particalary out-of-school youth J.nd adults who have no access to formal :;chools, thereby speeding up r'-lral dc,·clopment. It has wider reac!-. i!l a short period of time_ and i~ econc•mically cost effect iYe . In essence, cour~e:: art: p ro,·ided in the form of ::-el f-l earning modules, manuals, and other printed texts supp\em er.:e-d by radio and television programs. Cour,:e ~ are- al~o de~ign£-d to in.:iude group discussions and face-to-face tUtcJrial con~ u1tation~. Th~ se direct learning elements take place in local distancf! :'t'..tdy CE-nters manned by local instructional managers. In contrast to the- traditional system, this off-
10 Thc ConCom and !:'Jon-Formal Education b\' Com florangel Rosario-Braid, Phil. Daily Inq uirer, Sopt.. 29, 1986.
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CO~STITGTJON
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campus education which is a well-establish ed and generally accepted concept especially in the U.S., Europe and some parts of Asia is essentially a home study facility where employed students, for instance, may study without leaving their places of work; or parents may study with out leaving their homes, and without their children being deprived of the care and attention they deserve from them. It allows a student to enroll, for example, in college level courses without regular classroom a ctivities but earn credits or units just as in a ny traditional university or college. 2 1 (c) Among the teaching-learning strategies included in the pa.rent education program of the Depanment (supra.) are small group discussions, role playing, film showing. lectur e-discussions, r elating of success stories, and panel diseussions. The program is monitored by DECS regional offices which are also encouraged to initiate and implement relevant projects and activities to ensure success of the program. (d) Under the literacy progra m (see supra.), measures to be implemented to a rrest the rise of illiteracy in the country include the establishment of more multi-grade classes in remote rural communities, putting up of outreach programs for youngsters, production of low-cost indigenous instructional devices, improving the competence of teachers, and assignment of attendance teacher. 2:t ~ 1 Ther~ are t.hree.< (3) kincls of di~;tnnc P. leaming, namely: (1) Open Learning arnl Distance Edur.ntin?I (QL { DE). - They are alternati ve systems of education. They emphasizl~ the openin g <•f opportunities by overcoming barriers t hat result from geogr~tphical i !~ola tion, personal or work commitments, or conventional course Rt.ructureR which have ()ften preventl'd people from realizing their education goals. (2) Open Learning (QL). - It is a philosophy ofleArning that is learner centered and flexible, enabling learners to learn at tho time, place ond pace which sati ~;fy their circumstance!:l and requirements; and (3) Di.~ tun.ce Education rDE). - It is a mode of educational delivery whereby teacher and learne r are separated in time a nd space and instruction is delivered through specially designed mnlerials and methods and sup ported by organizational and ad ministrative structures and arrangement&. "l'~Literacy ,·ate is the proportion of the population 10 years old and over who can read and write simple mestlages in the dialect or any other language to t.he total target population. The country's literacy as of .July, 1989, wa~ about 89.8%, a 7.1% increase over the literacy level in 1980 and 6.4% more than in 1970. The rate further increased to 93.54'.~ in 1990. The 1990 Cent-us of Population and Housing showed that most of the peopl e in Metro Manila ag~d 10 and over, read and write. Hence, the literacy rate in Metro Manila is highest in the Philippines, 99.09'.~. H igh literacy •·ales are partly attributed to the number of schools in an area and largely to the free secondary educa tion policy of the government. Literacy in the other regionE !lhuwed various rates according to social and economic development. The functionally literate or persons who are not only able to r ead and write but also possess nu meracy and other skills needed in doing simple functions and interacting with others in society comprise 73.6% or about three quarters of the 1989 population. This implies that of the 89.8% literate people in tho country as of 1989, only 16.6% are not functionally literate. (Mani la Bulletin, Oct. 22, 1990, p. 12. ) As of2000, the Philippines has, numerically, 2.8 million basic ilbterate;; and 11.7 million functional illiterates. Percentages wise , it has a li tera<.'Y rate of 9S.9%. for simple li tera.cy :md 83.8% for functional literacy. (Undersec. Bart olome S. Cara le, "Educators Speaks," Manila Bulletin, Feb. 11, 2001, p. 11.) Note. that one may be basically literate !e.g., able to read and write) but functionally illiterate (i.e, unable to understand tha meaning behind words and sentences). R.A. No. 7165
Training in civics, vocational efficiency and other skills to be provided. The State is directed by the Constitution tv provide training in civic:->, vocational efficiency, and other skills to adult citizens, the disabled. and out-of-school youth. 2:i (Sec. 2[5].) Unemployed adults and idle youth who do not have skills, create problems in the social :;y:;tem and constitute an impediment to national progress and development. The Constitution makes it obligatory upon the State to provide the training referred to in the provision to equip them \•.;th knowledge, skills. and attitudes necessary for good citizenship and productive employment. AE an adjunct to such training, attention should also be focused on guidance and placement service s to ensure that the right people are trained for the right jobs and after training, to assist them to be employed in the jobs they were trained for . It would seem that the training should likewise be free. The government, thru legislations, shall provide for the same with necessary appropriations .
SEC. 3. (1) All educational institutions shall include the study ofthe Constitution as part of the curricula. (Nov. 25, 1991) creates the Literacy Coo rdinating Council a nd defint!s its powers and functions. A n ew national definition offunctionullitcracy has been developed by the Lileracy Covr · di nating Council which necessitated a r evision of the de finition an d the competency paran,. eters of the old UNESCO literacy levels. Functional literacy is now defined as a rang~ of sk!!:; and competencies- cognitive, affective a nd behavioral - which enabks individu11J:.: tu live and work as human persons; (2J develop th~ir potentials: •31 make critical und i nf,.r ~- ·:: decisions; and (4) function effectively in .~ocie ty within the cvntcxt ofthflir envir•mm~:-:-:· ;.-: that of the wider community in order tu improve the quality of their life and that 1,f ~ .·~ :~ : ·. The Bureau of Non-Formal Bducation tep to basic, simple literacy towards functional literacy: " 1 ::::. --' · · : ·-. leod - semi-liter ate level for the reinforcement of basic rending, writing ,;:-.: -·--" · : ·: skills to a self-sustaining (neolitei·atcl level; and (3) Senmdary level·- adt·q~.:: :,· . .- : ....:. ::-. : -:· ally literate or self-learning level for continuing education . The B:VFE is r.en:;. ::-. ~: ? -:~.;.- : :· Alternative Learning Sy.-tem (BALS). (i:::xec. Ordet· No. 356, Sept . 1:3. 2004 A higher level ofl ite racy has now become necessary if we co nsider tl-, ~ ., .<-: ~ •·· :-:::.1 ::0 :1 that flowR in to our hom es and offi ces as a result of the technological .;.: ·. :.~. ;c; :nat we previously thought were unimaginable. The question to pcmder i~ h·. ·-. :c..o <-:iucational system would prepare today's children a nd Y•luth to achiev~ the litt>ra ry :c·.-.-:; : h at would be demanded in the future. The Philippinl;l<> is the most literate in the South East A~ia r,.~::;. :-.:ow with 95.9% literacy ratings, it is also on of a high level of economic dcvd opm~nt 23 R.A. No. 7796 •.Aug. :.!5, 1994 1cr£'atc>~ the Technica! F:
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Sec:.
a
(2) They shall inculcate p a triotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of nationa l heroes in the historical d evelopment of the country, teach the rig hts and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critica l and creative t hinking, broade n scientific and technological knowledge, and promote vocational effic iency. (3) At the option expressed in writing by the parents or guardia ns, r eligion shall be allowed to be taught to their children or wards in public elementary and high schools w i thin the regular class hours by instructors designated or approved by the religious a uthoritie s of the religion to whic h the children or wards belong, without additionai cost to the Governme nt. Study of Constitution to be part of school curricula.
Section 3(1-)"requires that the study of the Constitution be made a part of the curricula in all schools. This injunction will unqu estionably give a great many Filipinos practical knowledge about their basic law. 1 Be fore, knowledge of the Constitutio n among children and high school and college students was neglibrible. The reason is t ha t the study of the Constitution was not compulsory under the 1935 Charter. The Constitution reflects the ho pe3 and dn~ams of the Filipino people for a bet t er and stable future. It iE"- not a document that concerns the government only because i t touches us all , affecting as it does the very life and welfare of every citizen. By st udying its provis ions, our people will become acquainted with the noble ideals and principles emb o ~ied therein. They wlU understand the meaning and value of a fundamental law to the lives, freedoms and aspirations of free men in a democratic soci ety such as ours. They will become more a\•iare of their rights us well as of their duties to one another, to the government, and to the nation as a whole. There is not m uch need to belabor the point that by learning their basic law; the people, pa rticula rly the yo ut h , will develop g rl:!ate r respect for human rights, appreciate more their government and their role in nationbuilding, a nd thus, become responsible and productive citizens. Educational aims of schools.
The Constitution commands that all educational institutions shall aim to: ·\ 1) inculcate patriot ism and nationali sm (see supra.>; 'A sophisticated know ledge of the Constitution can only ho ;H:quircd in a law school. It i;; here where l'Very word in the organic law ia ~tudied aud a naly:r.ed for hidden meaning$.
Sec. 3
AR1'. XIV. -
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447
(2) foster love of humanity, respect for human rights (see Preamble; Art. II, Sec. 11; Art. Ill. ) and appreciation of the role of national heroes in the historical development of our country;" (3) teach the rights and duties of citizen::;hip 'seo Arts. Ill , IV.>; (4) strengthen ethical and spiritual valu~s.: : (5) develop moral character and personal dis-cipline; (6) encourage critical and creative thinking: ... ('i) broaden scientific and technological knowledge (infra.); and .( 8) promote vocational efficiency. 4 (Sec. 3[ 2i. Importance of v_alues education. "An educational system that does not lay emphasis on the nation's great past , on the lives and achievements of its her oes a nd martyrs or on the forces that made its history unique, will necessarily turn out citizens who have little self-confidence, who are disposed to be colonial-minded, and who have very weak enthusiasm for labor of national r econstruction. Such a citizenry accepts everything foreign without any critical e\·aluation.
An education that has very a little (ethical and] spiritual content will not produce citizens who will sacrifice physical comforts and convenience vrhe heroes of a country constitute its icons. its role models worthy of ~steo m and emulation. should remember and honor with gratitude our heroes and heroin es who gave all for their country without regard for self. Our heroes are not only those who h ave sacrificed their lives in nHtrtyrdom ur in defense of the motherll\nd. They also include the les:; spectacular ligures whn i1: their own ways have selflessly worked for the welfare and progress of the country through put.::: sen·ice and privat<: endeavors. Today, our country needs heroes more than ever, especial!~· 1;, ~ ~ erfl who Y.ill ~ubordinate self-interest.l~l t he common good and make us proud in the ey ... , ·. :· :~. .; world. 3 Jn the face of c~:>rruption, violen ce an d other crimes pander ed to by television . :,. ~ . . : :; and other mean~ of media. th•~re is ll t!P.d to put emphasis for the incu lcat ion and dE'•·.. ~-=-~ ·: of traditional Fili pu:o ,·ah;e.;. ;;uch a;;. ve neration for elders, kataptllan (loyalty anc "· . ~-~ ;~ : ka11ipagari iindustnou~~ '· pa$kikipugkapL<' our r ountry th~: -.~': ·;.·:·:~.:=.'c mirac le" in Asia, we must firH pu: : ·.: ~ :: . ·.: '" ::: ·: ~-=-;;~ \\' ;· ~ '~~~ !(I ,.c up th ~·;;e - ;. ~:;. : .. " :::-3.: t s (e.g., lnck of discipline, crab me ::~.a;lt:: . · ~.~.::::: :·:z··-.·· !':':e~~ a!ny. '/;;~ ·;_,;.<:::~.· =·~::::-..:de : . ;~: ~;-•:; . ~-.::. :~.<:l'fl d prr:::-.::.;. :~ ;.~ ;;::;,ntve . h a re stum hi'mg bl o~ k s to c.·.:: ,--:.·.::-.: ~·; w h JC traits that strengthen our moral fi~r :H ;. ;..::·: ; > :.:-..: ·.- ~ ~-~~ ~ : :·r r. .:n ; :· ~. -: _.. :. ~-~ •Another fundamental challer.ge : .. :~.~ ;.:.::.:;.:·.::-.~: .;:. .;!>: !':': :-; -. "' -- ·-~: ~.:~.~ a proper ba.l ance between white-collar e!np!<>yee:< ~:: -~ ;:t.:::.. : -. ~·,o:....-,; ~c :.:- HH·~ ~ ~:.x-k: of the country, thereby reducing the acut~ im"aTar:c-e ~~ -· ~:-. :::-:- :-. ·..:=-.~ ~ :· :: .. -;-?=graduates· and th e num'ber the labor marke r can absorb. P..E- ~: : ~-; ~ : :·: ~ -:: : ~ -'· ·.· · ~ :.::-.: : . ~ :he go\·ernment , schools, 1111d industry in t.hreshin~ out c•J:::.=:: ~ ; : : ·: :::-:-_, : :· .,..: ~ : ~ : .. :. a.:;d employment is necessary to bridge the gap b~:tw c ~r. :::ar.;:·: ..-'i': ;;;:; : :. =~. : : +:::l :: :: There should be a stronger vocational and technical curri cui·; ::-. :·:: ".:~': ,;:- ·.· . ;: ·.::~:-::s and greater emphasis on work-oriented and applied cour::-. ·..-:::-::: :-.~; ;::~~ ·.·:.::f."C m the country since the 1970s, and to meet the demands of ir.ci"-;:~· ~.:~ S.l:::E-C !'::a:-:power and expertise in our cuuntry and abroad. We must cha nnel e;ur pro;; pee!: ~e ccl!ege students towards courses which are more useful to the attainment c,f our r:.at!onai development goals. W~
TEXTBOOK ON THF: PHI LIPPI NE CONSTITUTION
Sec. 3
:··;,~ :=.utgs of ~ ;::;..tual will
the spirit, but, on the ot her hand, an education that is too not e quip a man forth~ practi~.:al duties of a modern citizen. 3t:il worse is an education that merely prepares men and women for crafts and vocations, for it will only turn out a nation of robots; worst yet is the kind of education which neither gi\·e.s spiritual training n or vocational preparation, for it is virtual dissipation of both money and time. An ill-conceived and ill-administe red educational system can only produce ill-educated citizens; which is to say, citizens who lack character and sense of civic responsibility, citizem who are opportunistic and devoid of a sound sense of values, citizens who are m erely pleasure-loving land have no personal discipline, a nd citizens who are incapable of critical a nd creative thinking], and of working hard. making sacrifices, [and finding lasting solutions t o the numerous and grave problems confronting th e coun try]." 5 The country's problems are not so much rela ted to economics but to how well its citize ns r espond to the challenges of the fu ture a ccordi ng to their will, intellect, and core values. Values education will ultimately bring a bout much needed change in the work ethic and social values of Fil ipinos - indispensable e lements in the co untry's purs uit of its development goals. In short, t he task of edu~.:ational institutions should not just be "information" and skills training but forma tion of worthwhile values, attit udes, and habits necessary in the building of a united and ~trong society towards international com petitiven{~ss . Role of other sectors in the education of the youth.
An analysis of"the constitutional provision discloses a very broad conception of the role of schools in the education of the youth. This is not to s ay, however, that the Constitution en trusts to the schools atone the accomplishment of the educational objectives mentioned in the provis}on, making the m supplant the family, the chu rch, the factory, and other social institutions. To be sure, the moral upbringi ng and discipline of the youth is s till the primary responsibility of the parents. Gnless they do their duties on t hese 11.1atters, t he school is bound to accomplish very little , considering that the child stays in it for only a small fraction of his life. Even if schools put enough time a nd attention inculcating in the youth love of country and lessons of citizenship, the results would be of little practical va lue if t he p1·ivate a nd pu blic morality of govern me nt ofJl cials a nd outstanding persons in the community is of a low order. 1; Likewise, the development of scientific, technological, and vocational efficiency is hardly attainable through school training alone. The school cannot do much without the cooperation a n d support of the government itself as well as of private business and industry. ~MThe Vital Functions of Government," by J.P. Laurel, taken from his book "Bread and Freedom" (1953) pu blished in Manila Bulletin, Ma rch 15, 1988. •see V.G. Sinco, op. cit., p. 480.
Sec. 4
AR'I' . X TV. -- E DUCATION. SCIE:-.;CE .-\.'\D TE CII.'\OLOGY. :\RTS, CUt/r()R E .-\.'\!) ~ l'uRTS
449
To:cltH:at tt.-:':
Optional religious instruction :n public elementary ·· and high schools to be allowed.
The Constitu t ion expressly or dains tlu~: ~ ~~ig i o u shall b(;' allO\H:d to be tau ght in public elementary and high :"cl:: : ~ within the r egular d a ss h ours subject to th e following conditions : (1) The parents or guardia ns ex pre s ~:~ tht-: ~ chitdren or wards be taught relig ion in schoo;~
~~::i re
in writing that t h t
(2) The instructors must be designated <=~ ..1;:; !"•l\·ed by the r eligious a uthorities of the religion to which the childrtO- ~ . ~ ·' :.rds belong; and (3) No cost is in<.:urred by the govern ment fo r ~.;.~- :t> a c hin g~ (Sec. 3[3 ).' ot her than t hat in t:idental t o the us e ofthe !;t'hn·< ~ ·..: : >.~ing. As a conse quence of this p rovision. the proh ib~: : . :..~;ainst the use of public money or pt·operty for the be n0f"it of any s E:-c-: .< :- :.~ :-. ::-. ,:titution, priest, or teacher of r eligion tArt. VI. S ec . 29l2 ].) must bt: i·:·.,- :-:·.-:-: qualifi<~d by the permjssion above granted. "Optional r eligious instruction in publi r ~ch ools ' ' .,;= i-= : ~-:-E.'d as a constit u tjonal m a n date not so much fM th e benefic and su pp-. r: · ,· <1ny particular sect or system of religion ns for the develop mt:nt an ~c;:-~ ·.; :~(~;:1 !-";: (,-f t h P spiritual standards and moral v a lueH of public s r h ~)o l childr.;.:-. ·.,::!--. t:-:..- L· :1d in v~ew of producing straight-thi n king, moral!\· u pright. and , ; :.:-:·-.-,, !··.:·. .: 9 ttz ens of the na tion.""
······•···
SEC. 4. (1) The State recognizes the complementary roles of public and private institutions in th e educational system a nd s hall exercise reasonable s upervision and r eJ,rulation of a ll educational institutions. (2) Educational institutions, other than those established b y religious groups and mis sion hoards, shall be owned solely by citizens of t h e Philippines or corporations or associations at least sixty p er cen tum of the capital of which is owned by su ch citizens. Th e C ongress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall b e vested in citizens of the Philippines .
7 In the Civil Cod~ ( Art :!!>9[11 th er~ r,f.). it is providl•d th at the government, in promoting t h e full growth of (hi:! facul tic>: of c"·ery \"hild, IJIigiou:; lnst rudiou ," iu C.R. Mont.t!jo, The 19i3 Con;;titut ion, p. 289, dti ng fcJr rn er Sec. of J ustice J ol:>e 1'. H ~;ngzon.
TEXTBOOK ON THE PH1LIPP£t-."E CONSTITUTION
4 50
Sec. 4
..No educational institution shall be established exclusively _for aliens and no group of aliens shall compdse more .than .QI!ethird of the enrollment in any school. The provisions of this subs~tio~sball not apply to schools established for foreign diplomatic personnel and their d ependents and, unless otherwise provided by law, for other foreign temporary residents. (3)· All revenues and assets of non-stock, non-profit educational institutions used actually, diredly, and exclusively for educational purposes shall be exempt from taxes a nd duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. Proprietary e ducational institutions, including those cooperatively owned, may likewise be entitle d to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. (4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and e xclusively for educational purposes shall be exempt from
tax. Complementary roles of public and private educational institutions recognized.
In the Ph ilippine~. the great bulk of secondary and collegiate enrollment is provided by a system of privately-owned colleges and uni versities. These institutions also operate kindergarten and elementary schools throughout the country. The private schools in the country may be classified into thrae categories: the Catholic schools, the Protestant a nd other r eligious schools , and the secular schools. 1 The private school system is contributing e normously to the education of the masses of our people. It is h elping th e government raise the social, economic, cultural, a nd moral standards of the citizens with almost no cost to the State. Jt is precisely in r ealization of thi s fact that the State recognizes the complementary roles of public and private educational institutions. (Sec. 4[1]. ) With cost of providing for public education becoming more and more prohibitive, the State, to lessen its financial load,· should strengthen the private schools by providing them with increased basic assistance so that they will assume an even larger share of the r esponsibility of educating the youth of the land. It should create the necessary environment for their 1Private education presently accounts for about 691. of total enrollme nt in the elementory level, 40'1f, in high school, and 85% in tortiary education. About 83% nf our population a re Roman Catholic, 9o/c Protestant, and 8% Mus li m;;.
Sec. 4
ART. XIV. - EDUCATION, SCIENCE A. '\"D . TECH~OLOC:Y, ARTS, CULTURE AND SPORTS Educat ion
451
growth and development and aid them to achieve reasonable prvtitability so that they can operate mort! effectively. 2 State power over educational institutions.
~ate schools. - To ensure compliance with the educationai policies enunciated in the Constitution and existing laws, the Constitu::·m provides that the State -shall exercise reasonabl E:! supervision and reg-..: :~ tion of all educational institutions." 3 Under thi=' provision, State pow.:-: ov.er private schools is limited to one of''supervibWn .. and "re_g¥1#ion " on::.- . ·not of "control" 4 which would be i,nconsistent with the guarantee of academic freedom !Sec. 5[21.) and the· natural and primary right and duty of parents to educate their children. (see Art. II, Sec. 12.1 -_____......... The State may impose minimum requirement s and ·conditions upon which schools may operate, prescribe the proper curriculum (to insure that the content of teaching is in line with national goals J. fix library and laboratory requirements, set standards for qualificat ion of teachers, prohibit the teaching of injurious and subversive doctrines. and adopt punitive measures against those that fail to meet its requirements in order to ensure the accomplishment of constitutionally defined goals. But it is without authority to control the policies of a private_ schqo~ _or to d'ireet i:.ne maxi'n er in which it should be administered. Government regulations in the field of private education must at all times pass the due process test. It is not enough under this test that the end be legitimate; the means adopted must also be 1·easonable. (Art. III, S :.e l.)e c Public schools. - In its practical application, the provision has r renee particularly to private schools inasmuch as _public schools are obviously under State control. an authority far m ore extensive than mere supervision and regulation .6 {see Art. VII, Sec. 17 .) :lin view of the public charact er of ~:>ducation (see Art. HI, Sees. 1:-l, J 7; Art. XIV, Sees. l, 4Ll], 5[5]. ), State aid to private educati<1n will not violate the constitutional limitation that public money may only be used ft)r public purpos•~. rsee Art. VJ, Sec. 29[ 1, 21.) Such aid is not to be considered as intended to benefit directly private schools or any religion. R.A. :--.1o. 6728 (June HI, l989J provides for government assistance to students and teachers in private education . ~R. A. No. 9155 (Aug. 10, 200 l J, the Governance of Basic Ed uca tion Act. renamed the former Department of Education, Culture and Sports
452
TEXTBOOK ON THF. PHILIPPI).'B CONS1'I'rUTiON
Sec. 4
Legislative control over public schools is necessarily proprietary in character ., .~tis exclusive and is sufficiently comprehensive to include 'the power to preRcribe a curriculum, to s~lect textbooks, to impose disciplinary regulations for the students, and to exercise such other prerogatives as are usually possessed by owners or e mployers. Thus, a statute may require students of the State University (U. P . · to sever all connections with certain fraternities before they may be allowed to enroll therein. It may legally prescribe the style of dress which teachers and pupils may wear in school. They may not validly complain of depriYation of liberty or property without due process oflaw since they arc n<>t compelled to attend the public schools , which are under the control of the go,·ernment. 6 Ownership, control and administration of educational institutions by Filipino citizens. { 1) The Constitution requires that educational institutions, other than those established by religious grou p,; and mission boards, s haH be owned solely by citizens of the Philippines or corporations or a ssociations 60'71:, of the capital of which is owned by such citizens. (Sec. 4l2J. j This means ·that alien individuals m ay not own a ny educational institution although they may own to the extent of not more than 40% of the capital stock of corporations or a!'>soc1at.ions owning educational institution s. Note th at while Congress may not. lower Filipino equity below 60%, it may increase this up to 100%.
The exemption in-favor ofre ligious educational institutions is evjdl:'ntly in recognition of their contribution to education in our country. Many missionary f'lchools have been established in isolated areas of t.he country whero the government has never been in a position to build schools. Many sectarian schools ha ve progressed simply because members of religious orders receive no salaries as officers or teachers of other schools. The cost efficiency and tremendous savings are plowed back in terms of improved faciliti es and services to students. ~!any r:eligious schools have become examples of service and efficiency, deriving their existence from donations from foundations and charities abroad. This makes them different from proprieta ry .schools the profits of which are paid out in dividends, salaries, allowances, and bonuses. <2) In every caRe, the control and administration of educational institutions, including those established by re:ligious groups and mission boards, shall be vested in the citizens of the Philippines. (Ibid.) In other words, members hip in the governing bodies or boards of such educational institution s shall be limited to citizens of the Philippines. Appointments and designation s to, and employment in positions involving the exercise of administrative discretion in their management (i.e., President, Vice-Presi· uv .li. Sincn, op. cit., p. 487.
Sec. 4
ART. XIV. - - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE ANIJ SPORTS Education
dent, Registrar, Controller, Dean, Director. P rincipal t~.nd otherg) shall likewise be limited to citizens of the Philippines. 7 (3) One of the fundamental aims of our ed ucational system is to inculcate patriotism and national.i.~lR (Sec. 3[21.) Ir, lim iting the ownership and administration of educational institutions to cltlzE.'n!S of the Philippines, the Constitution recognizes the fact t hat schools owned and controlled by foreigners are in a position to orient Filipino youth in the perspective, alien to the ideals of patriotism and nationalism. "Likelier than not, a foreignl:!r would identify himself with his country's interests even if these are antagonistic to the Filipinos' own ... ; Educational institutions established exclusively for aliens prohibited. (1) Th e Constitution al so prohibits the establishmen t of educational institutions exclusively fo-:- aliens, a nd limits the number of alit-n,; to I~(ot more than one-th ir d •1 3 oftbe enrollment in any school. However. :-- ch.)·.:d:; m ay be established exc!us1·•ely for foreign diplomatic personn.::l and thc-:r dependents and. unle,;,; otbeT"IIrise provided by law, for other foreign t(:mpvrary residents. 9 f/bid. _. Such schools are not also covered by t.he require· ment limiting the ownership and administration of educational in;;titutions to l''ilipino citizens. su.pra.J The exception made in favor of diplomatic personnel and their dependents is in recognition of international practice. It may not be repealed by Congresr:;. But it is empowered to withdraw the p1·ivilege granted other temporary residents.
(2) Schools exclusively maintained by foreigners for their own nationals and practising discrimination against Filipinos should never be allowed to operate in the Philippines. The presence of this kind of educational institution breeds divisiveness. bigotry, prejudice, and exclusiveness. l<~or reason of our sovereignty and dignity, the Constitution does not sanction the establishment of such schools. ! I) Exemption from taxes and duties.
The Constitution grants tax privilegeg to private educational institutions to enable them to provide quality education accessible t o all. (Sec. 1. )
~see Presidential Decree No. 176. "The Manila 1'imcs Guide to the 1973 Constitutional Amendmen t,;, p. 51. 'Under Presidential Decree No. 176 (supra.), all educationa l in:sti t ut ions c!:ltablis h ed exclusively for aliens , excepl those mentioned above, "may continue t.o upnatc unti l t he end of the school year 1972-197:3 after which the ir government permits Qr rt!cogni tion shall be deemed re voked. Those offering any curriculum e xclusively for aliens :,;h"ll cease from doing so not later than the ;;ch ool year 1972- 1973, and failu re to do so s ha ll be 'lufficient camw for the cancella tion of their government permits and/or r ecognition. full com plia nce with the requirement limiting the enrollment of a h en s tudents sh a ll be e ff~-:c ted not latt'r than the beginning of t he school year 1976-1977.'' 10 1970 UPLC Con$t itution Re vision Project, p. 805.
TEXTBOOK ON THE
4 54
PHI LLP PIN~;
CO NSTITUTION
Sec. 4
!. -Non-stock, non -prolit educational inHtitutions.- All th eir revenues ar.d assets (i .e., movable property) used actually, directly, and exclusively : ·'JT educational purposes are exempt from income and property t axes and ::-'.l.Stoms duties .
Lands, buildings, and improvements of proprietary educational institutions actually, directly, and exclush-ely used for educationa l purposes are exempt from property tax. (see Art. VI. Sec. 28[3).) (2) Proprietary educational institutions including those cooperativelyowned. - They may likew ise be entitled to such exempti ons subj ect to the limitations provided by law, including restrictions on dividends and provisions for re-investment. ([bid .) The Constitution does not discourage the profit motive in the operation of priv ate schools. While it is t rue that there are civic-spirited individuals who would establish schools not for profit but purely for charitable a nd humanita rian purposes, an u ndue stress on sacrifice a nd charitable motive is u nrealisti c a nd impractical. W ere it not for the profit motive, hundreds of private school s would not have been established and t he government would not have been able and would not be able to cope with the de mand for educati0!1 . Indeed, the fin a ncial problems facing the educational system would be beyond sol uti on if owners of private schools s uffering a streak oflosscs should turn to other profitable ventures. There are good private schools which may find it extremely diffLcult, for reasons beyond their control (e.g., increasing costs of operations, strikes of faculty members demanding salary increases, student demonstrations) to meet the high academi c standards set by them. The governmen t is dutybound to encourage and support them. It is in recognition of the vital role of private educational i nstitutions in nation -building that the Constitution allows the grant to them of tax exemptions as in the case cf non-stock , nonprofit schools. However, the exemptions shall be subject to the limitations provided by law, includi ng r estrictions on d ividends and provisions for reinvestment. The purp ose of the limita tions is to insure that the tax benefits are u tilized to improve the school facilities a nd the quality of education given in t he schooL
(3) Grants, endowments, etc. - All gran ts, endowments, donations or contt ibutions u sed actually, directly, and exclusive ly for e ducational purposes are also exempt fro m tax . Congress may prescribe conditions fo r the enj oyment of the exemption (Sec. 4[4 ].) to provide safeguards against abuse of the privilege. ; ::-.~
!'·- ·:,.rning law is the C<>rporation Codo of the Philippines. (D.P. Blg. 68. Sees. 94-
SEC. 5. (1) The State shall take into account regional and sectoral needs and conditions and shall encourage local planning in th~ development of educational policies and programs. (2) ~cademic
freedom shall be enjoyed in all institutions of
higher learning. (3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements. (4) The State shall enhance the right of teachers to profes· sional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State. (5) The State shall assign the highest budgetary priority to education and ensw·e that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.
Regional and sectoral needs and conditions to be taken into account. In the formulation or development of educational policies and programs, the State is required: ( 1) ··to take into account. regional and sectoral needs and conditions; and
(2t to encourage local planning. (Sec. 5Lll.)
The Con~titution gives due recognition to the fact that different regions or sectors have different, and in many cases, peculiar problems, needs and requirements. The ~ituational realities of a school in Manila, for example, are quite different fror!'t those of a school in lfugao. A uniformity of policy applicable to all regions and sectors will he unwise and impracticaJ.l In the rural areas, where the greater portion of the population lives, the government will find it necessary, because of financial constraints, to maximize the use of community resources such as civic organizations, parents-teachers associations, and philanthropies so that improvements can be made on school facilities and services. The tapping of local resources and planning, and the use of non-traditional instruction methods are measures that may have to be adopted to improve education in remote areas. The second requirement is in line with the constitutional policy to promote the right of ~he people to participate at all levels of df~cision making on matters affecting their legitimate and collective interests. (see Art. 11, Sees. 15, 16.)
1
See 1986 UPL Constitution. Educaiion, p. 2:3.
456
TEXTBOOK ON T HE PHILlPPINE CONSTITUTION
Stoc. G
Institutions of higher learning to enjoy academic freedom .
L"nder the Constitution, all insjtutions of higher h!arning, both public .:..::.d privat e universities and college~. above high .school levd, shaJJ enjoy .acadetnic fre edom. (Sec. 5[2}.) The provision is mandatory. It binds the different organs of the government, the legis lative, the executive, and the judicial. It seeks to enh an ce the autOllOmy of higher institutions oflcarning. Under the 1935 Constitution, <'mly "universiti es established by the State sha ll enjoy acade mic freedo m."- With the increase of institutions of higher lea rning in the Phi lippines, the extension of the provis ion to priv a tl~ colleges and universities is well-ad vi~ed. The rc~Json for affording academic freedom to professors in the state universit ies applies to professors in private institutions as well. The fear th at since some of these institutions . notably the sectarian schoolB, are e.'!-tablished in the interest of propagating their respective fa iths, the gua rantee of academic freedom might pre· vent the removal of faculty mem ben; with opp osing vie\VB , has some justification. It should not outweigh, though. the gr l-!ater interest in academic· freedom, especially in the field of ph~·.si cal sciences where objectivity has greater chances of being attained .~ M~aning ;.• '
of academic freedom.
.. Academic freedom applies both to the mcm bers ofth<' aeademie ronnnu-
nity as ...well as to the institution
it:;~ if.
(;J(YAs a right of an indiuidualtea,.ht. -The term has bee n dd'ined as the fre edom of the teacher or r e:;earl' h worker in higher ins titutions of learning to invest igate and discu:-~ the problems of his sci ~~n ce and to express his conclusions whE!ther through publicut.ion or in t ho instruction of students, without interference from politica l or eedesiastical. authority, or from the administra tive officials of the institution in which he is employed, unless his methods are found hy qualifif)d bodies of his own profession to be clearly i n compt~tent or cont r ary to professiona l ethics:'
~~sa right of an indiuidual student..- Academic fre~dom is enjoyed as w:fl by the student. The Bill of Rights guarante•~B his right to ~yri1e and sp~~ freely about h is school, its policies Hnd pl'ograms , to form or. join student associations, an d to engage in activities promoti\' (' of student welfare. (see Art. III, Sees. 4, 8. 1 l~h_2__righ t .9J .~h.~ - .tiJ.\ldt.'nt i~ su bject to reason~pl_e rules_;:md..r.~g~lation!-l of the educatiQna.J..i nstitutio~~- ~~hTch--ai'so ~njoy~a.ca£1~ 11]j~Jn~_e.9.!·~m, .. ·--~ . ... --·· ··- .. . · . . ·· ·· · -- .. .... .. · ·
~The provision was inscrLt!d in the funda nH.•nt allaw bt-cau.~c ~univera i ti(:s t!l:it.ablisht!d by the State a r e suppor ted fro m public funrl~ and an .:-xpres~ provi.'
Sec. 5
~}As a right of an educational institution. - It has reference to the freedom of !L college or university to determine for itself: ,..(a) "Who may teach:· that is, to pre~<:ribe the qualifications of r faculty members and select them at its discretion; ; (b) "What may be taught," that is, to decide what subjects to be taught ~or to fix the curriculum; .(c) "How it shall be taught," that is, to adopt methods, procedures and pr~ctices of teaching: and Jd)."Who may be admitted to study," that i:=:. to prescribe the conditions or criteria for the admission of students.' Thus, a school, a seminary for the priesthood. has a right to deny admi~,-ion to one who is a lay person and a woman. as it enjoys the freedom to determine for itself on academic grounds who may be admitted to stud~·.'
The guarantee of academic freedo:J:tliS necessarily subject to the regul.atory ·Sec. 4[1].) .. powers of the State. . . Importance of guarantee of academic freedom.
The progress of the community depends on the advancement of knowledge. It is rightly felt that unless intellectual inquiry is allowed the mt latitude and freedom, the frontiers of knowledge are not likely to be pushed forward. Worse than that, there might even be retrogression because science is not stationary. 'l'he faculty member or research worker in th'~ higher institutions of learning, if given the freedom to investigate and expound his conclusions reached, is in the same position as the technical expert, whose views on matters falling within the scope of his discipline may benefit the community at large. If, and in addition to his competency, he is likewise impartial. recognizing and minimizing his own bias or prejudice and serving truth as he sees it, he is like a judge whose strength proceeds from his firmne:"5. integrity and competence.' Guarantee not academic license.
Academic freedom. does not mean academic licen!?e. .. .. --·····. ·' Inasmuch as it is but a special form of freedom of expression, academic freedom must necessarily be subject to the. well-defined limitations on freedom of :=:peech, of ~Sweezy
vs. State of New Hampshire, 354 U.S. 234. vs. Loyola School of Theology, L-40779, i\ ov. 28. 1!l-;' :) 7 Taii.ada and Fernando, op. cit., p. 1235. Higher educat!or: •, <-;.sential to nation-building. It plays a key role in the formation of professional!\ .:c•m!)etent. service-oriented. and productive citizens who can respond capably to global developments and challenges. Through its function of teaching and research, it is a prime mo\·•:r uf the nation's socio-economic growth and progress. 6Garcia
TEXTBOOK ON 1'HR PHILli-'PI:\E CONSTITUTION
458
Sec. 5
expre:"-~ion, or of the pre~>s, freedom of associatiCJn, and the right of as~em b!y . Art. III , Sees. 4, R. )
.A&ruiemic freedom is the fre(!dom to t~ach what is good and not to teach .;-ril..Jt cannot, for instance, authorize a -t~adier to te'ach ihaf murder ·t r :reason or any of the crimes penalized by our criminal laws is good.H In times of national emergency, limitation s may be imposed on the exercise of the right to academit: freedom. Right of every citizen to select a profession or course of study.
/l'he Constitution now explicitly recognizes the right of every citizen to select a profession or course of study. This right is subject, however, to fair, reasonable and equitable admission and academic requirements of tht! school. (Sec. 5[3).) Such requirements may be prescribed or regulated by law. One serious problem in our country is the phenomenon of young college graduates not being a ble to find employment. On the other hand , there it; a dearth of highly skilled personnel being wanted in many industrial establishments.~ This manpower imbalanlf' has led to the recommendation that vocational education should be strengthened and college e nrollment be restricted . In any case involving thE' right menti one d, this problem, including the capacity of the individual for higher ed ucation, will have to be taken into account. Right of teachers to professional advancement.
The school teachers, by the very nature of their function, exert tremendous influence for good or bad of their students, Viewed as second parents, they are second to none in noble sen·ice to our country in the rearing of good citizens and the future leaders of our nation. To a great extent, the quality of education d epends on the a bility of the teacher and the standard of teaching. The teacher is the key to the learning process. A school may have the best faciliti es a nd excellent learning tools but if its teachers are inefficient and incompetent, the whole educational program would col-
8
Matter of Key Vt<. Bottrd of H igher Edu cation. 173 .Mil\c. 1943. contents of education or curricula flhould be aligned with labor market realities. Ou; universities and technical schools .should train our young generation in those skills or competence for which a d emand exists. The Mudtmts must he able to rol o.t e and apply what he learns in the classroom to his specific fi old of employment. Education which ignores the local job market only promotes joblessness an d a brain drain \i.e., professionals go abroad in order to earn a decent living). Education, however. should not merely serve as training or preparation for future employment for an individual. While preparation for employment is not by itself undesirable, it should not be the only purpose of education; rather education should be founded on a holistic view of development, i..e., the focus s hould be on gen uine development centered on economic and social progress and the formation of a "just and humane society." ~he
lapse. Indeed, it depends chiefly on the teachE-rs whether the constitutional aims of education will be advanced or not.
___ .../
: It is obviously for the above reason that th~ Constitution ha s enshrined thf:J professional advancement of t e achers as a !Yla t ter of right and imposed upon the State the duty to enhance it. (Sec ..s: -t J.) Some measures have already been taken towards this end even be:":;~ the effectivity of the new Constitution. (1) To help str engthen t he educational sy:;t.:-:::. . a career progression system known as Master Teacher Plan has been ::-...:::.;:ed in the public school system. This plan allows parallel a dvancement be:::: :::~rank and salary in the teaching class a s in the administrative grou p. T ::,-:- : :.~ a is for the teacher to remain in the classroom with the rank upgraded u-;: :,:. a. master t eacher level and a pay equivalent to that of a school superintend .::-.~ . Thus, good teachers will be e ncouraged to r emain in teaching work a::d :JOt he attracted to transfer to administrative work only because thE- pay ::>highe r.
(2) A teacher m ay work at obtaining a m a~t€-r of .?. !"t5 degree witho ut leaving his or her station and at government :;ub5;chz-:d co::>t under the home study for teachers (HST) program, "a form of nontraditional adult education to upgrade th e basic professional skills of teach.:-r:;:· The DECS links up with the University of Life (UL) "to deliver high le\·el courses to teachers anywhere in the country." HST is a holistic graduate program culminating in an MA diploma, while PRODED involves initially only Grade 1 t eachers who will handle PRODED classes. HST is expected to uplift teache1·s particula rly the deprived and those in distant places, and further democratize opportunities for educatio n. {3) L etter of Instruction No. 552 directs the DECS (now DepEd .) and Civil Service Commission to conduct a continuing det·elopment program for both classroom mentors and field school officials under lhe aegis of the Civil Service Academy to upgrade the teaching competencies of t he former and the supervisory and administrative abilities of the latter. Presently, the educational orientation program (EOP) is being implemen ted. The program focuses on the building of mentors' competence in developing the intellectua l capacities and civic-social consciousn ess of their pupils. The training for school administrators, called the educational system management program (ESMP), aims at improving competence in institutiona l supervision a nd in educational program management. (4) The DECS (now ~epEd) implemented, starting school year 1988, an integrated scholarship program for public elementary and secondary school teachers and field officials. The program is for a 14-month mast.eral shortterm courses designed to upgrade the teaching competence of mentors and the super visory and administrative abilities of school executives including head teachers , principals, supervisor s, and division superintendents. Each of the DECS stations' regional offices will nominate its teacher-scholar to the DECS' scholarship committee which will select the most deserving of the nominees .
460
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 5
5 • The teachers are no longt!r considered just part and parcel of the soca::Ed "rank-and-file" of the bureaucracy - they make a profession. For :his reason, a law 10 has transferred the qualifying tests from the Civil ~rvice Commission to the Professional Regulations Commission and now requires passing the licensure test lor teachers as a prerequisite to entering the teaching profession. (6) Another law 11 sets up Centers fur Excellence in Teache r Education, creating a Teacher Education Council for the purpose. These centers are tasked to strengthen teacher education by providing teachers with scholarships, postgraduate training, and other opportunities for their professional advancement. (7) The National English Proficiency Program (NEPP) of the Department of Education aims to identify the strengths and weaknesses of public school teacher in English comprehension and usage. Further, it serves as an indicator to identify top performing teachers who will serve as English mentor~ in their respective schools divisionsY (8) The Equivalent Record Form rERF), an automatic position upgrading program for public elementary and secondary school teachers initiate
The Constitution expressly declares that they shall enjoy the protection of the State. While such right is already covered by the provision under Social Justice m andating the State to afford full protection to labor (Art. XIII, Sec. 3.), a separate guarantee is necessary to stress that the s pecial concern of the Constitution is not confined to the welfare of the teachers alone. The non-teaching workers -~..:P· , registrars, librarians) in our schools also render invaluable service in ma'King it possible for education to be 10 R.A. No. 7836 ionalization Act of 1994. R.A. No. 8545 (June 10, 1989), as amended by R.A. No. 6728 (Feb. 24, 1998), provides government assistance to stude nts and teachers in private education. 11 R.A. No. 7784 (Aug. 4, 1994). 12 The program has five (5) phases, namely: Self-Assessment Test; Mentor-Training Program; National Trainers in Mentoring; Orientation for Administrators to Support the Mentor Program; a nd Monitori ng and Follow-up. The self-asses~Sment test among high school teachers began in August. 2003 .
available and accessible to a ll. It is obvious that schools cannot function without them. State to assign the highest budgetary priority to education.
The Constitution has restOred education as a primary concern of the State in the provision which rE"qwres the State to ~~ssign the highest_bl!dg~tary priority to educati.OI\1 ~ and .:nsure that teaching will attract and retain its ~~.!!~~ share of the best &\·ailable talents through adequate remuneration and other means of job $-at ~:·action· and fulfill men~ .- ·Sf:' c. 5[5].) The provision direc:::; attacks the fundament al problem behind the deterioration of the ed'..lc a:!•:>nal system. It reverses the policy of a previous regime during and eYer: af:i'r the lifting of martial law which gave to the military the lion's shart- -: f :he budgetary pie. The constitutional mandate can be implemented b:· ;E--:·~.e nting government priorities.:' getting a portion of the funds allo::.:c :.:· offices of lesser priority, pre\·enting graft and corruption and wastage 0: :"·..l.l1d s on unproductive activities, and instituting cost-s aving de\·ices. The biE7 sa,·ings may then be set aside for education . Duty of State to improve k)t of teachers.
...-The performance and morale of teachers will be low if their salaries are low. The guarantee of -adE"quate remuneration and other means of job satisfaction and fulfillment"· vr.ill rorrect the years of neglect of the nation's teachers who constitute one of the biggest occupational groups in the country. It will restore teaching to its former dignity and status &s the career of choice of the most talented and most public spirited of our yo unger generation. It will also stop the dec!ioe in the teaching profession and the l:Jrain 9-x'ain which have resulted m the loss of young and talented teachers who have been forced to leave teaching because of the low remuneration, the long working hours, and the hardships associated with teaching chores, not to mention non-teaching work •e.g .. election duty and other civic duties) imposed on them that affect their efficiency and growth. Many teachers swallow their professional pride and social standing by accepting menial jobs a broad. The improvt!ment of their lot will likewi se put to an end the sight of teachers who in the past engaged in concerted mass actions like walkouts, strikes and pickets, demanding improvement of their lot. 13 There is s~mply not enough money for all educational needs all at once. Other pressing needs have to be addressed- peacP. and order, energy, agrarian reform, housing, infrastructure, and of late, foreign debt service. Congress has to decide on priorities when allocating funds among the levels of cducati(m (elementary, secondary and higher), among the different regions, between academic and vocational/technical training, between teacher and material inputs. Be that as it may, to be ahle to attract the best and the brightest to be teachers in our public schools, the government must be willing to pay a salary attractive enough to lure young graduates to the teaching profes sion. 1 "R.A. No. 7830 (Feb. 20. 1995J requires a fair allocation of ca pital outlay for DECS, now DepEd.
TEXTBOOK O N THE PHILIPPJ::-;E CONSTITUTION
4fi2
Sec. 6
Finally, with competent and dedicated t eachers, it will assure quality .:-C.ucation to our youth, and to our nation, a better and enlightened future generation.
v
-LANGUAGE
SEC. 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriche.d on the
b asis of existing Philippine and other languages. Subject to provisions oflaw and as the Congress may d eem appropriate, the Government shall take steps to initiate a nd sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system.
--
Concept of language.
/t:a nguage r efers to the words, their pronunciation, and the methods of ,/ ,.._,_ ··----· - · .. / com6m iiig11Hn:rt, used and understood by a considerable community and / established by long us age. Dialect is a variant of a language, especially 0:1.e restricted to a limited arei:T Importance of language.
The purpose of a language is to communicate - to carry ideas, thoughts and feelings from one person to another so tha t they are understood. Language, therefore, is called a ~o.ci~l institution, meaning that men have invented and developed language to satisfy the need to communicate with one another. Language .is the nation's so1,1,l. It not only functions as a medium of communication.· a·V!tal feature of a nation's culture, it records its history, and preserves and perpetuates t he way of life and achievements of its people. Through its rich vocabulary, we can see the many foreign influences that have seeped into our people's life through the years.
As
Civilized peoples of the world today h ave languages that are highly developed. They are capable of expressing t houghts and ideas in every field of knowledge known to men. 2 National language is Filipino. (1) Under the 1935 Charter, Congress was directed "to take steps towards the development and adoption of a common national language based
1
Webster's Third New Int. Dictionary, p. 1270. B ritannica .Junior Encyclopedia (1969), p. 62.
29
/
Sec. 6
ART. XIV. - EDFC:ATIOK, SCIF.~C:F. AND TE CHNOLOGY, ARTS.
463
on one of the existing native languages."> The mono-based language school of thought won over those ad,·ocating a multi-ba~ed national language. (2} In the 1973 Constitution, the Ban!'ang Pambansa was directed to ''take steps towards the development and f.~·cmal adoption of a common national language to be known as Filipino .. , While the common national language contemplated in the 1935 Consti~:.:.::. :~ ,.,..as based on one of the existing languages. the Filipino to be d~\ .:-> ;,.::d pursuant to the 1973 Constitution could be a fu:;ion of the differt-:-:~ :-: ~.ti ve languages and dialects spoken in the Philippine s. The multi-ba:'t-(] :.:.:-:guage school of thought prevailed. In other words. it need not he b.:.:<~:: ~·n one of the existing languages but on all of our native languages a:-. .: ~ :.~ :~cts, although it could be based on one of the existing languages a.:< ·.:~..::.:-r the 1935 Charter pursuant to which thf' Tagalog-based Pilipino •w;·.:-.: .:.pi tal "P") was evolved by the Institute of ~atlon al Language as the exi :::: :.: ~ ~xi:;tin g Philippine and vther languages, not of just one existing language. F ilipino principally ba:;ed on Tagalog will eventually include selected words taken from various t-xisting native languages as well as most familiar or commonly used words from foreign languages. 5
Pilipino not immediately abrogated.
Apparently, the Constitution envisions a language which favors no single ethnic linguistic group an d which, hopefully. would be more acceptable to the great maj ority of our people. HoweYE~r. Tagalog is likely to r emain as the principal basis of our national language as it is understood a nd spoken in practically all regions of the country. It is the predominant
~Artidc XIV, Section :; thereof. After the t·atification of rhe 19:~5 Constitution, the National Assembly created th e Institute of National Langua g~ which recom mended to President M;mucl Luis Quezon th~;~ choice of Tagalog a::: the, bas is of our common national Language . President Quezon prod11imed on Novemb.:r :l•J. 19::17 Tagalog as the national Language oftht~ Philippines. The lnt'ltitute sP.It'cted Tagalog in view of its being widely spoken and the most und~>rtot-words, t h e recognizable loans at this time are, in round numbers: 5.000 from Spanish; 3.200 from Malay-Indonesia; 1,500 from Chinese; 1,500 from English; 300 from Sanskrit; 250 from Arabic; and a few hundred altogether from Mexican, Persian, Japane.-e. and otht>r languages. Latin, Gr{<{,k, and other Indo-European languages have appreciable influences upon Philippine language~ made through Spanish and English. A lexical count of Tagalog. if made to include reduplicates, compoundings, affixed forms, and comhinationfl, would take a minimum record ofthrcoe i3J million word~;. (The Roots ofTagalog Language by Manalo M. Magracia, Philippine Panorama, Sunday, Feb. 8. 2004, p. 22.)
TEXTBOOK ON THE PHILIPPINE CON STITUTION
464
Sec. 6
lang-~..;.age used in electoral campaigns and in mass media particularly on r.acw. television and local films.
There is no provi sion in the 1973 Constitution that the then existing national language "Pilipino" is rejected. ~owhere is it provided in Sections 6 to 9 of the new Cons titution that it is immediately abrogated or set aside . It rem ains the national language until a law by Congress declares other wise. Need for a national language.
Under t.he Constitution, the s tress is on the development and the enrichm ent of a nati onal language on the basis of the exis ting Philippine and oth er languages. The Constitution sees the historic w~akne ss of our national life in the absence of a national language. It recognizes the necessity for welding the various reginnal groups into a na tional whole on the basis of a common national la ng uage. The effort to a chieve this appears clearly in history but after about seven (7 ) decades since the adoption of the 1935 Constitution, the struggle is still on for national unity in terms of language. 6 The relatively slow progress towards this end should call for great~ r efforts t owards the adoption and propagation of a common national language a s the linguistic symbol of the Filipino race and as linguistic means for national solidari ty . It is evident that the understanding and usage of the national language by all Filipinos will serve not only as a vehicJe for achieving our goal of national id e ntir~· and unity, but also allow for the more effective transmission of knowledge and information to a larger segment of the population and promote the Filipino people's collective participation in nation -building. 7 Use of Filipino as a medium of official communication and language of instruction.
Subject to the provisions of law and as Congress may deem appropriate, the Government is enj oined to take steps to initiate and sustain the use of Filipino a s a medium of official communication and as language of instruction of the educational system.H (Sec. 6, par . 2.)
6
197() See UPLC Con stitutional Revision Project, p. 798. Baf;ed on a 19R9 ;;urvey of the Aten eo University's center for social policy, 92% of Filipino~;;, regardleso:; ohegion, understood the national language, while only 41% understood English. It was projected t ha t hy the end of the century, 98% of the popula tion would be. a ble to communicate in Filipino. SFindings of language experts reveal t h at "learning is enhanced when the subjed is taught in the home languap.-e" and the "superiority of learning when taught in the nationa l language." The Congressional Commission on Education (EDCOM) has recommended a revision of the policy of bilingual education by promoting the use of the dominant regional tmd Fili pi no medium of i ns tructio n such that by the year 2000 all subjects except English and other la nguages will be taught in Filipino. 7
S ec. 7
ART. XI \'. ·-
J1; L)ll C.\T i i t~ .
SCIF.NCE .~~D TECHNOLOGY, ARTS. ( TLTUHE M \D SI'ORTS
465
Lnngua,:!t'
The "Filipino" which wa~ t •; be the com mon national language under the 1973 Constitution is a Tagak:;: -based languagt.> which 1s no different from the "Pilipino" evolved by the Jn,.:: ;: ;.ne of Nat ional Language. In thE: absence of a law to the contrary , the "Fi lip: r.:,·· which sh all continue to be used as a medium of official communication unci a.:; a language of i n ~truction is the s ame Tagalogbased Filipino referred to ir: ::-.e 1973 Constitution. SEC. 7. For purposes of communication a nd instruction, the official languages of the Philippines are Filipino a nd, until otherwise provided b~· law, E nglish. The r e gional languages are the aux iliary official l a nguages in the regions a nd shall serve as a uxiliary media of instruction there in. Spanish and Arahic shall be promoted on a voluntary and optiona) basis . Official languages of the Philippines.
For purposes of comn:·.;.n H:a tion nnd instruction, the official languages are F ilipino and Engl i::h . F: ;ipmo shall always remain an offi cial language . (Sec. 7, par. l.l C ongre :;~ ~n a ~· . by law, provide tha t only Filipin o shall be t he official language, or r ep::tce English flbid.) with anothe r as an official language , or m ake a noth er ia nguage (e.g ., S pa ni s h) as additional official language. The use of S pa nish a:: c.:-: offici al language is no longer justified in view of the less~ni ng influence of the langu a ge in the Philippine s . It is not ueed by most l''ilipinos, Bngl ish and Pilipino bein g preferred by them. Need for communication skills in English.
E nglish is ihe a ccept('d u ni\·ersal la ngua ge of commerce, science and diplomacy. It is the language of cyherspace or information technology. It is our window to the wo rld ·~ treasure house of knowledge and the basic m eans for ou r survival in an el ectronically dominated world of the 21st century . .\1ost of our official documents, pa rticularly laws and court decisiom:;, arc in thP. English langua ge . Comm unication skills in both written and spoken Engli~h can go a long way in helping youngsters become successful in the highly com petiti ve fie lds of business and industry, or in increasing their ch ances of employment here and abroad. Today, it is a necessity for anyone seeking a place in our wired· global economy. 1 It will be im pract ical to impose Filipino as the sol~ medium of instruction in schools . The national l angu<~ ge ;:.huuld he allowed to develop by itself. Fo i~;ting n c~rta in language on u mu lti·eth nic ~=;odery lik E:' thE:' Phi li ppiMs will merely create ne w problems. ' Exc~:. Order No :2 lfJ ,~f;•r<·h 7, 200a: t:>.~tahl ishei' t.hc p••licy t di u m of iu:; truct.ion in all pu blic and private institutions of learning in t.he secondary and tP.rtiar~· leq:J,;, Engli,;h .~ha ll he taught as a ::;econrl language, starting
TEXTBOOK ON THE PHILIPPINE
CONSTITUTIO~
Sec. 7
Propagation of English is not incompatible with a genuinely nationalis=..: education. The tools and methods for teaching English in all levels of schools should be upgraded to produce highly literate and skilled workers without necessarily obstructing thE' growth and development of a common national language. The PhiHppines long enjoyed advantage i.n the international labor market among a11 peoples of Asia because of its use and understanding of English. While other Asian countries have been pushing the use of English, the Philippines has let it fall into relative neglect. 2 The fact is that Filipino while emotionally meaningful in our country, has little international value. The policy should be to improve the comprehension and expression skills of our children in hoth languages. It is dictated not only by the need for unity and convenience, but also to keep us abreast of other countries in the fields of information and communication which use English to communicate the world o\·er.J Auxiliary official languages.
Filipino and, until otherwise provided by law, English, are the official languages of the Philippines. In the different regions of the country, the regional languages are the auxiliary offlc:ial languages and shall serve as auxiliary media of instruction therein. (Sec. 7, par. 2.) This means that they can also be used as official languages to supplement Filipino and English. The Constitution takt>s into account the fact that not all people in a region speak or understand Filipino or English. The use of regional languages will facilitate communication. Spanish and Arabic are languages of world importance spoken by many Filipinos. However, since they are not official languages, the government is not bound to promote their use. They shall be promoted on a voluntary and optional basis. (Sec. 7, last par.)
with the First Grade and u~ed as the medium of instruction for Engli:;;h, .Mathematics, and Science from at IC!a~:>t the Third Grade level. The objedive is to develop the aptitude, competence and prof1ciency of all students in the usc of th.-~ F:nglish language to make them better prepared for t.he job opportunities in the new. tPchnology driven i"edorr; of t.he economy. The Filipino language shall continue to he th~! medium of instruction in the learning areas of Filipino anrl Ar-ali.ng Panlipunan. 2 At the end of the I 980'~;, th~ l'hilippinc::o continued to he on top of its A~ian n()ighbors in speaking and writing English. While the rest in the rngion were enhancing their k:nglish language skills, the Philippine took the opposite direction from a nation with decades of legacy in English proficiency by down playing English teaching and usage. 3 1'hen: is no way we will lo!>e Filipino and other language;; by refocusing on English learning in our elementary and high schools. Our multi-cultural environment makes our youth ver·satile in speaking several languages well. There are numerous opportunities to practise Filipino in our everyday lives. In fad, an averoge f'ilipino, even in r!lgions where Tagalog is not the mother tongue, is constantly bombarded with it in the news media, especially the radio. television and the movies. He has ample opportunities to hear Filipino spoken and to practice Filipino with numerous immigrantt' from Luzon.
Difference between official language and national language.
Official language is the prescribed meci;:.:.:-:: of communication in the government, the courts, and the schools. It :::-..3.:.- not be the national language. On the other band, national laagua€<. " : ht': standard medium of communication among the people. It may r..:: :.. .:· an official language. Under the Constitution, however, Filipino i~ c~-: :.c.r.: d as an official language. SEC. 8. This Constitution s hall be promulgat~d in Filipino and English and shall be translated into major regional languages, Arabic and Spanish. Constitution officially promulgated in Filipino and English.
Section 8 directs that the new Constitution be officially;::.:--: :":·.·..: : ~ated in Filipino and English. The retention of English as a language fvr ::-:.-= )f!!cia l text is justified because of the richness of American and Engli;;n jun~pru· dcncc interpreting many provisions of the Constitution. particularly the provisions of the Bill of Rights 1 which, by settled rules of interpretation, is applkable in our jurisdiction. Translation and interpretation.
Section 8 also mandates that the new Constitution be translated into major regional lar.guages, 2 Arabic, and Spanish. To be snre . the Constitution, being the fnndamentallaw of the land, should he cl oser to the understanding of the people and it is, therefore, imperativE-! that it be translated in their language as above required. In case of conflict in its interpretation, the 1973 Constitution provides that the English text shall prevail.3 This is so because the p1·oceedings in the 1971 Constitutional Convention were conducted in English. There is no similar provision in the new Constitution. It is believed that the same rule applies for the same reason and the fact that the Constitution was originally adopted by the Constitutional Commission in English . However, in case of ambiguity, omission or mistake in the English text, t he Filipino text m ay be consulted to explain t he former.
:1970 UPLC Constitt.tion Revi~; ivn Project, p. 30H. "There are about llllinguistic. ('ultural and racial groups in the Philippines who speak a total of about 100 languagc!l with eight majo r ones and 400 dialects all in alL" ("Filipino, not Pilipino" by Assemblyman G.C. Lopez, Jr., Bulletin Today, Aug. 17, 1985.) 3ArLicle XV, Section 3! 1) thero of. 2
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sees. 9- 11
SEC. 9. The Congress shall establish a n ati onal language commission composed of representatives of various regions and dis ciplines which s h all undertake, coordinate, and promote r esearches for the d evelo pment, propagation, a nd preservation of Filipino and other languages. National language commission to be established.
Section 9 orders Congress to establish a national language commissi
the de v<>lopmen t, propagation and preservation of Filipino a nd other languages.'·~ The commis!:li.on s hall bt- composed of representatives of various r egions and disciplines.
The n ew office con templated by the Cons titution has a higher status than the then existing Institute of ~ational Language. Th e broad-based membership of the commission will ensure the development of a truly representative nat ional language . The probability is that Filipino will be a n amalgamation of the r egional languages a r ound Tagalog as its linguistic base, enriched by words from other local dialects, and wor ds borrowed from for{'ign languages particularly English and Spanish.
SCIENCE AND TECHNOLOGY SEC. 10. Science a nd technology are ess ential for national d evelopment and progress. The State shall give priority to r esearch and develop m ent, invention, innovation, and their u t ilization; and t o science and technology education, training, and services. It sh all support indigenou s, appropriate, and selfr eliant scientific and technological capa bilities, and their applicat ion to the country's productive systems and national life . .SEC. 11. The Congress may provide for ince ntives, including t ax deductions, to e n courage private participation in programs of basic and applied scientific research. Scholarships~ grants·
' R A. No. 7 104 (Aug. 14, 1991) cr eates the Commission on the Filipino Langu age and p rP.FOct·ihes ils powers, duties, and functions. It provides that t h e Commission shall be cnrn pN;cd of 1 I rommi!!:'lioners r cpr esent.ing th e various major Phil ippine languages which incl udA T~.galog. Cehuano, Ilncano, HHigaynon, Bicol, Capampangan, Ilonggo, Pangasinense, Maguindanao, even the languages of Muslim Mindanao, the Northern and the Southern Cultural Comm un ities, and s uch other Philip pine l anguages as may be determined by the Comm ission. 20ur many indigenous languages em body the rich mosaic of other cultures. There a r e about 87 ethno-Jinguistic groupR that inhabit our country. Conser ving these languages throug h Ktudies of their varied and rich vocabularies will contribute to a better unders tanding of our hrethen wh o are mP.mhers of oth er cultural groups and bringing t hem into the mainslre11m of Filipino society.
S.;n;. 10· 13
ART. XIV. -- EDL'CAT ION, SCIF.:!\CE A:'\D T ECIINO !.OG Y. ARTS, CULTURE Al\ D ~l'OH TR ::\cit-nee ond Tech J;,•l•;;;y
469
in-aid, or other forms of incentives shall he provide d to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens. SEC. 12. The State shall reg'Ulate the t ran sf~r and promote the adaptation of technology from aU sources for the national benefit. It shaH encourage the widest partkipa tion of private groups, local governme nts, and c.ommunity-hased organizations in the generation and utilization of s.cienc<' and techno)' ogy.
-
SEC. 13. The State shall protect and se<""ure- th e exclusive rights of scientists, inve ntors, artists, and othe r gifted citizens to their intellectual prope rty and creations, p a rt ic ularly when b e neficial to the people, for such period as may bt- provided by
law. Concept of science and technology. 1 U The term i-! r.ience comes from the Lat.i n word scir.>. m.:.-.1ning "t.o know" a nd it mea~s o"'rdei·ly knowledge obtained and t ested throu~h ca.rcful and sys tematiZE!d search and st udy of facts , especially facts fou nd b.v observing the ways of nature . Science is concerned with the physical \\·orld and its phcnomE>na. Its aim is to formulate general laws that rule the way.' of our physical world and confirm such laws through correct thinking and. if po::.;sihlo, expm·iment.
The term ''pure
scienc~"
is <\lso used to distin guish it from technology. ( 2 ) .Technology, i::; applie d science. It 115 the application of scientific knowledge to practical purposes in a particular field . It may a1Ro refer to the met.hod employed to achif.'ve such purpose (e.g. , hydroelectric power as a method for generating en ergy 1. or. in a general sense, t o the totality of the methods employed in the application of scientific knowle dge or discoveries to meet our practical, immediate needs. Science and technology essential for national development and progress.
Recognizing the central place of science and technology in every modern society, as essenti a l for national development and progress, particu1arly in impr oving the quality of life of the people, the Constitution directs the State to : (}) give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training and services;' 'Presidential Decree No. 997 \Se pt. 16, 197()} confers civil servi ce ..\igibilities on scientific ~ nd technological specia\i,;ts on the basis of their qualiflcati(JnS a nd t.h~ requir~mentR of ihe puhlic service. while Presidentia l Decree No. 1003-A !Dec. Hi. 1976, as amen ded by P.D.
'T'F.XTROOK ON THF. Plii!.IPPINB CONSTITUTION
Sees. 10-1 :~
2) support indigenous, appropri .He and self-reliant scientific and techr-,vlogical capabilities l'lnd their application to the country's productive systems and national life (Se(:. 10. ·: 1
(.3l provide scholarships, grant~·:n-aid or other forms of incentives to deserving science students, scient;;;.c~. researchers, inventors, technologists and specially-gifted citizens :3.:-c. 11.); I
(4) regulate the transfer and promote the adaptation of technology from all sources for the national bt>n.:-fit;
(5} encourage the widest partic!pation of private groups, local governments, and community-hasf!d organtzations in ihe generation and utilization of science and technology (Sec. 1:2.1: and (6) prote<.:t and secure the excb.c:ive rights of scientists, inventors, artists and other gifted citizens tc their intellectual property and creations, particularly when beneficial :,_.the people, for such period as may be provided by law. (Sec. 1~.)
1557.) crr.att1;; thP. ~Hc-reP No. '-' :.~ -June 11, 1978j provides for incentives and administrative reform;; to pr·onwte efflt-ien..-:· .-:~,d product-ivity of ~cientific and ter.hnologieal research. ExccutivP. Orci"'r Xo. HH9 iMarrh ::·:._ :9831. on the other hand, establishes a system of national centers nf (!xcf•llr:n<:o! in the IJ11:;:: '~iPn('es to further strengthen and broaden the national capahilit_v to train sc~iPutifie leader,: .;:;d conduct research in the basic sciences. R.A. No. 7687 (March 2, 19!H :, c.ttherwi,;e knu\\ r. ;, , : !-:e Science and Technology Scholarsbip Act of 1994. as amended h_v R.A. No. 82413 (Jan. 2-:. ~ 997), institute~; a scholarship program in the field of science and technnlogy t.n Iinam·..- :\-..e education of poor, talented and deserving st.udents desiring tn pur~aw ~~ degree or tr,,;~,;ng ire areas of science and technology as are recognized or pcrmiU.ed by law. The schoi<~~- ;hall come from the top fi'.ib of the high school graduat-ing cla•~e,; in Hll regic)T)S. H.A. :-.;o. 6~5~ .July 31, 19!-lO) establishes provincial centers for science and technolog-y in all provinces'~- the Philippines. R.A. No. 8439 CDec. 22, 19971 provide!:> a "Magna Carta for Scientists. Er.,;int·ers, Researchers 1111d Other Service and Te(:hnology Personnel in the Government" tc· ac-hieve and maintain the necessary reservoir of talent and manpowc~r thai. will sustain it,;. dri\-~ for tor.al science and technology mastery. R.A. No. 8496 rFeb. 12. 199H} establishes th.:· Philippine Science High School System. R.A. No. 9107 (April 14, 2001 l ct·elites a Philippmt: Science Heritage Center under the NAST, which shall be the main repository of the: cco;;,:-.try's cont1•obutions, achievements and accomplishments in the field of sciem:e and technc.l.:.g:.-. R.A. No. 8792 (,June 14, 2000J, othenq;;e known as t-he "~lectronic Commerce Act," provides for the recognition and use of cle.:tronir comnwrcial and non-commercial transactiont<.In the present Information Age. ours i.; becominj:! a horclP-rle.;s world particularly in the aren11 of commercial trnn!lact.ions where gcogra~hical hanier~ ha,·e become inconsequential. Businesses arc now hP-ing done through the int(:rnct. hoost.ing the unprecedented growth of electronic transaction~ or simply "e-commcrce." The information and communications technologies (]CT) have introduced a new channel through which sales transactions may be commenced and cnnsummatt
Sec~; .
I 0-13
ART. XIV.-- EDUC.AT10N, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND ~ PORTS Sci ~n<:~ and Tech n•1log.'·
471
The Government, through Congress, may provide for incentives, including tax deductions, to encourage pt·ivate participation in progre1ms of basic a nd applied scientific r esearch. (Sec. 11. · Promotion of science and technology.
Statistics show that th e budgetary allocatior. of funds for science and technology in the Philippines is very much smallt-r than in industrialized countries. The reason is that the Philippines, like- a ny other developing country. has limited resources to adequately supp(.!"t a ll its development programs, pressed as it is by competing prioritie~ . E th e Philippines is to become a newly industrialized country {NIC), it mu:::t ra:ch up with the rest of the so-called "economic dragons" or "economic tigers" 0f Southeast Asia by building a solid infrastructure of science and tech:1·: : .) gy. especially of information and communication technology (!CT) for to i:::. crea~e productivity and production and to improve the quality of product:: ar.cl services for local and international markets of industry, technology rr.:.:;; ~ be added to land, labor, and capital in the economic equation.~ (1) The government has t he r esponsibility to in ve~t more pu blic money in science and technology educat ion , research and de\'elopment to break the vicious cycle of economic underdevelopment leading to underde\·eloped science and technology and vice uersa. It must keep abreast of the late:-t technological trends and developments in the market today. (2) It must give due attention to the adaptation aspect in technology transfer to make it suitable to local needs and conditions. We will not industrialize simply by opening our country to foreign investments when the critical thing is for Filipinos to a<.:quire the technology. (8) At the same time it must adopt safeguard s agai nst making the Philippines a dumping market for unwanted or obsolete western technologies which not only res ult in waste of scant resources but also debilitate our people's innate creativity a nd inventiveness and stunt efforts at building a domestic technological base. (see Art. XII, Sec. 14, par. 1 .) (4) It is also imperative that there be a conscious effort to encourage tiCientific pursuits especially by gifted citizens and to attract and retain Filipino scientists abroad. The government must raise the incentives and r ewards for our scientifically and technologically-trained people.
2 In the 19th century dominated by agr icul tu re, the crucial factor for th e economy was the weat.h er ; in the indu~;tri al a~. it became t he value of capita l goods produced. In t he present k nowledge-base-d economies lK-economy ), it i!i the amount of kn owledge in ICT t h at is the critical resourct>. ThP. 2h in ::;ocial a nd 1\conomic structure!'- . Once, power meant who owned, commanded nr controlled rea<.>ttrces. Today, the richest man in the world is Bill Gate~ wh o com mands no national resource11, hut s imply a "knowledge proce1ls." Knowledge il'! today\; passport. t.o poW<'r anrl we<~lth .
47::!
TEXTBOOK ON Tl-H: PH fLIP PIN!': CONSTITUTION
Sees.
10-1~1
.5! Better still, in view rm program to promote the development of a self-reliant .F ilipino technology that will make full use of local material inputs as well as indigenous capability to break the strangle hold~ of foreign technology in the, country. (fH As we find ourselves in an information age whore economic growth is driven by the generation, applicatio n, and exploitation of knowledge, it is important for Filipinos to be equipped with the knowledge and skills needed to remain product ive and more competit ive in the global market. The government must give its full support t o F ilipino scientists, researchers, and entreprenuers not only in producing better products and services for the Filipino commmers but abo in promoting a nd marketing them abroad. The knowledge-based economy must foster a climate conduciv<~ to research and development (R & D · and help stimul ate the emergence of knowledge-based industries.
Science and technology education and training.
The broadening of scientific and technological k nowledge is one c·f the primordial aims which educational institutions arc r oquired by the Constitution to pursue. (Sec. 3[2.1. ) Sad to say, one principal reason our nation has lagged behind in this field is because our educational system has heen so concentrated on so-called white coll~n· profes~ions and the humanities:~ that it has neglected the development of scientific knowl edge which would have accelerated our transformation to the status of what is ca lled a "newl y industrialized country." Th ere is a dearth of Filipino experts in the field of engineering and other basic sciences. and this proh!P.m can be trBced to ill prepared science teachers in bot.h high school and tertiary levels and t he low standard of many engi neering institution$. It is the duty of the government to upgrade science and tt>chnology e ducation and training as pa rt of manpower development program to produce top-caliber scientis ts needed for the aggressive application and utilization of modern technologies. The education must Rtart at the elementary level, where young children are to be trained in analyzing problems and not merely rote learning of science courses. 4 '"I'he emphasis on science a nd technologY ir. ou r ~choob. nowt>,·er , must not be at the expense of hum anities and values cou rses that ·elevat e th e huma n spirit" and "r E>fine human natu re ." The aim should be to cstahli!'h a balan('e between a li ber al education and th e demands of acquiring flCientilic and technoloi{iclll skills. 'R.A. No. made a one·time gr>'~ n t. of P375 million for the ~:
Se<:. 14
ART. XI V.- !::DUCATIOi'i, SCIENCE A!\D TEC H::\'OI.OGY, ARTS, CULTURE A~D SP ORTS Arts and Cuhur e
473
In the fne~! of a rapidly €'x pa nding popul ation, there i~ no doubt that science and technology hold the key to the solution of the age-old problems of disea se, p0verty, and unemployment among a great number 0f our p eo pl<~ .md the achievement of our goal of economic self-reliance anci :n dcpen dence tArt. II , S ec. 19.) part icularly in the two areas of food prod <1-:-: ion and energy source exploration a nd development. Right to inventions, etc., to be secured.
The Constitu tion recog niz e~ and prot ect s the exclusive rights of scier: t ists and inventors to their di:;co\'eries and i nventions. a ut hor s and artisu and other gifted citizens to their writings, a rts and other intellectua: property a nd crea tion :: in order that they may enjoy whatever pecuniary benefits and reputation th ~y may gain from works of their creation particularly when bent>ficial to t he people. 5 It direct s that this right to exclusiveness be ~'H~c ured but only for such period as may be provided by law. 6 (Sec. 13.) The rca::
"4\RTS AND CULTURE
J' , '
/'
The
SEC. 14. State shall foster the preservation, enrichme nt, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual e xpress ion.
the reviged program invnlvt-s not only Infor mation technolog}' hnt likewise commu nication tct:hno logy. T his will provide Filipino high ;;cbool st uden ts access not only to the use of compu ter!\ for their wor k in science but also fvr worldwide communicat ion through the provision of electronic mail (e-mail) and Internet (access to data bases everywhere, incl uding software and other learning materials) through these computers. 1 'Sec R. A. No. :3850 (April l3, 1964, as amended by Pres. Decree No. 1423.), otherwise known as the "Philippine Tn,·entors Incentive Act," creates th'! Philippine lnventors Commission. R. A. No. 829:1 (June £5. 1997! is the Intellectual Property Code. It is the special law governing copyright !Hld pawnt as W!!\1 as trade marks and tradenam es. 6 Under the 19:!5 Constitution, the constitutional right to exclusiveness was extended only to a uthors and inventors. Th~ J 973 Con stitution included artists. The scientist and artist h ave as much right to protection as the a uthor and inventor. ~v.G. Sinco, op. cit., p. 482. 8 Proclamation No. 199 (Oct. 19 , 19991 declares the last week of ~ovember of every year the "Week for t h e Gifted an d the Ta lented" in recognition of the gifted and talented children's potenti al to help in na tion building.
TEXTROOK ON TiiE PHILIPPINE CONSTITUTION
474
Sec. 14
rts and culture.
has bee n defined as the hranch of learning which involves the 0~~-... 4+'fi.I..I,Lj;l.ti.on.of .skill_ a nd tat; te to pre,duct ion acwrding t o a est he tic pri ncipies; t.he .cons.cio~ ..usc. of s.kil.l ,ta;;.t~ and cr.e.ati~ imagination in the practical definit ion 0 1· production vf beauty. The term may a ls o r efer to t h e product r~sulting from such use or a pplication. l Arts are created for 1heir own ~ake, to give pleasure-- to the artist, the pleasure (Jf creation , and to th os+~ with a sense of beauty, the pleasure of a pz ation. ·@,Czdtu.~ in it.'l gener al sense . r~::fers to a ll those things which go to t he _ refi.@ ng.and .if.£.'!.~.1.2Pi~!t?.(~~~.:~ d iH·t~..:e_~~-~l~~~-~d physical endowmen~. 2 It encompasses all the w.~.Y.S __9t:.lh'ing... of a group of people such as customs, traditions, be1i£!fS, v~·lues, a rtistic expressions (arts), and language, evolving over a period of time usually setting them apart as distinct and identifiable from the other groups. Wh en u~ed with reference to a person, it suggests refi nement in man ners, taste or thought, or acquaint ance with or taste in the a r ts. Importance of culture.
Cl-1 The culture of a people is the thing that makes them distinct and different from all other people.~ (2 ) The truth is tha t, although it may not be readily a pparent, C'Jlture not only makes life in society a pl f'a~ur able experience. (3) It also, through a n appeal to a common heritage or a stressing of national identity, ge nerat.l~f-l a strong(·r sense of unity among the people, a condition sine qua non for the stability, growth and progress of a nation. {4) There is a n evident correlation between the achievements of a country in thf.l fiel d of le arning and the ar ts and its achievements in the political, economic, and social spheres. Wh en thl:! culture of a society is highly developed or advanced, invariably t hat society is highly progressive and prosperous. 'fhe explanation pr obably is that a ppreciation of a rts inspires people a nd broadens their outlook on life which is given deeper ' meaning, making them more productive and better equipped to deal with the problems of human existence and nationa l deve lopment. ({)) Today, with so much tension and conflict in the world , we need the arts and a r t ists to give form and expression to man's highest and most enduring values. ·
Third New Int. Dir.tionilry, p. 122. Council, II, p. 958. 31fhPre are as m1:> t h E'rE' a re nations on earth. But cu ltu res ma y be similar or the ~arne. The Philippint>s is a di versi fi ~d country compo!:od of about 87 cthno groups speaking diO"e rent languages. with differ Pnt cuisine and eatin~ hahi~s. manners of dressing, and other practice!;. ! Wllh:>tc r 's
~vat.i can
Sec. 14
ART . XI V. - E DUCATION, SCIENCE A..'\D TE CHNOLOGY. ARTS, CULTURE A..'\ D SPORTS Arts and Culture
475
(6) Art exerts a very strong civilizing infl uence in society. It educates, m ak es ma n more sensitive, more perceptive. more understanding and more consciou s of his function in th e scheme of !hings. The more civilized a society is, the more harmony a nd unity prevail, a nd the more it will continue to prosper. (7) And it is quite true, that t he cultural and a rtistic achievements of a people ar e often the bas is through which they gain respect and recognition of other nations. Promotion of culture.
Nation-building is n ot only confined to the acq'..lisition or production of material things. Equally importa nt in the oYerall objective of society is the promotion of desirabJe cult ural values, the inculcation a mong its citizens of a n ap pr eciation for the finer things in life, such a s mu sic, literature, and t he arts. 4 Development in a ll aspects -political, economic, social, educationa l. and cultural- must be the goal of the nation. The Cons t itut ion :;ee:; the need for preserving a nd de,·eloping a more conscious national idemit~· through knowledge an d appreciation of our native culture . For t he a ua:?C:1:€-:1t of thi;,: end. it directs t he Stat e to: / ,.tf) foster the preservaticn. t-;.. ;: .:-~. :-:-.~~;: and dynamic evolutior; .-.f a F ilipino national culture based on !he ;:;:-:::-.~:;:- :t- ·~:· ·.;:"li ty in di \· e!"~i::: ;:: a clima te of free, artistic and intellectual exr:--e-5-:3:: ::-.' =: :-: : ~ (2) ·support arts and le tters (literary works , wh;c!:: tronage;
5:-..a.:: .:-::.::::
::~ ~a
(3) conserve, promote, and popularize the nation's historical and cu ltur al heritage and r esources as well as artist ic creations (Sec. 15. J; (4) protect th e country's artistic disposition (Sec. 16.);
an~ histori c
wealth and r egulate its
(5) r ecognize, respect and pr otect the rights of indigenous cultural comm unities to preserve a nd develop their cultures, traditions, and insti~ tutions (Sec. 17 .); {6) insure equal access to cultural opportunities thr ough the educational system, public or private cultural entities, scholarships, grants and
•Proclamation No. J 148 decla r es J uly 1-7 of every year as Nat ional Cu lt u r e Conscious· ness Wu k . Begun in 1991 t hrough Proclamation No. 683, the National Arts Month (NAM) celebr ates Philippine creative imagination every year in February. NAM activities a re spearheaded by the National Commi~sion for Culture and the Arts (NCCA) which is the country's p remier government institution for arts and culture. 3The Department of Educa tion, Culture and Sports (DECS) become officially known as the Department of Education
TEXTHOU I< ON T HE Fli l liP PlNE CO!\STlTI:l'lON
.- :~.... r ~-c-c.
incentives , a n d communit.v cultural 18[1 ]. 1; and
171 encourage a nil support cultu r(·. ( Si:'c. 181.2 J ,
ce ntm·~.
n'~.-:;rches
Sec. 14
and other public venues
and st udies on the arts and
Preservation, enrichment, and dynamic evolution of a Filipino national culture. (.1 '1 Filipino nationrrl wlt.w·c. - Uur national cultu re, or th e Filipino n::tlional eult.ure, encompa:-ses all :.-,,... w<-1ys by which t he Filipinos have expre:'!'Pd and con t inue t.o C.'Xprt•i';; t!.<·;r idPas and sentiments, their value~ and a.spmlLion::; in r Pf;p onse to th• .nditions of Philippine society at any given period of time. As :>uc.h, our L:..; :t ure includes the following: L'
l
a' the literary art.s fpoetr:.. :iction, t~SHay a nd d1·amal;
cb, the performing arts t tht.-.-.rt:r. music a nd dance); t <:: the vis ual arts (paint i ng . sculpture, architecture, and graphic arts J; and l d l film nnd t.hc broas of wood and s tone, and houses), and performing a rt.s (dllnl!l~tl a nd mu~ic) re fl ected the lives of the peoph!, an d served to embody the identity and unity or th e tribe. (b) Hi:;pnniz(~d. - Under Spain, t he arts depicted Eur opean subject matter. Culture wa!:l harnessed for colonial en d s. The churches served as the unofficial cultural centers of the subj ugated ((indios." Literary works like the prr.~.;_yon, awit., and korido and dramatic forms like the senakulos, panu.!uyanr; and salubong~-:- all of which created a mentali ty that underscored t he "superiority" of the S pan ish race, religion, and culture and blind obed ience to Spanish law and religious autho1'ities, were encouraged. (cl Filipinized. · -· In n~~1cti on to Spanish op pre~sion, Filipinos launched a movem ent towards Filipinizatit1n a t the turn of the century. Rejected by ~ 1 9156 Ul'L Constit ution f'rojl;!ct . G~ne ra l Provis ion;;, p . 21. :social transformation in dc.lVdoping :md t hird world countries was n ot a conti nuous devr:lopmt!nt of an indigr-nou;; culture, but a n acculturation procl'SS from more developed nr.tion.~ . Th e Philippine n ati o n ~,] a11them. for example, was written by a Filipino in Spanish during American times and linvel:; of cult ure: the indigenous and t.ho na t.iunstl. Tagalog i~> pnrt. of our indig-cnou" cultu.rf>: S panish and English, parts of our nnt iuna l <:ul tun.
and education, illustrados like Ri~.n i and Uel Pilar wrotP. e~;l;Ry:'.. poems and novels which expo:"f'd :Spanish ablU'('~'· TlH~ (:tuph
culture served to awaken national t:()Jl::;riousne~s and nn.itc the regiuP:; in the revolt against Spain. On Uw other iwnd. to strengthen rt>\olnti1maty consciousness, writers like Bonifacio, Jacinto and Mabini, and anonymou;; folk singers created poems and e~says. kufldiman..:; and manhas that gave the Katipuneros a sense ofbeing Filipino:; and strengtlwm~d t.ht>ir commitment to achieve eventual victory.
(d) Americanized. -
In the American peri,>d, the ln8ular Govern-
ment censored ~seditious" plays and encouraged the proliferation of harmless "customs" and "domestic" sit.uations in literature and visual arts and of We~tern-inspired arts and media. With the coming of the electronic media before and after World War Il. Filipinos developed American consumer tastes and necessarily ad-opt~d the American point of \'iew in political and economic issu1~l::. Magazines. hooks, movie theaters. radio:- and teleYision sets be<~med out of Amerir:~n P"P culture, and its matE-rialistic. individualistic. capitali~tt<.: ~nd ::('.xi~t Yalues to Filipino audit-nce:.'-. (3) Principle of unity in dil·en;itv.·• ·- The Filipino national culture must be based on the principle of unit:v !n divE:~rsity in the sense that it shall take into account the peculiar cha r:~ctcri::tic.:; {If the variom~ cultures found in our country. It need not result in the d1~:~th of any culture. TheRe cultures must be oriented towards and work for thP ~odal, Pennomic and political welfare of the Filipino people as a whole. The new Filipino national culture must reflect their value::;, sentiments and aspiration:' und promote national identity and unity.;' It must he evnJved out of uur own experiences as a people and the lesson!'! of hiRtory.
(4) Climate of free (lf'ti:;tir· and inlellectuale"Cpr•!.<.:.:l_v harrH.'SSt>d to further 1}w ~·~~d,-: of an <~uthori tarian regime. Under tht• gui:•e nf eombHttin~ :1ll f,,rm...: of ~rnt?ntal pollution" (l'.g., stories of corruptinll. \'iPkJtl't'. 1.•1(· • in t.he maHs media, the government suc<.:eeded in weak'::'ning and d(· 'trnying criticism~' against it in the arts, media and education throu~h tlu: dire<.:t censor::;hip of media, the establishment and propagation of art. media and education that support the existing establishment, and the hara::;sment of militant journa1ist!5. artists and educators. Vigual arts and m:-1:-;t• merlia wen• use-d 1.11 glamorize "The Philippine~ i.~ a ..:nuntry where there r1re mon: than JO(} lingui;;;tic. eultural and racial groups. (see NoH• 2 to Sc·c. >-i.' Each of thc;-;c gt'<•upH lw:> it,; nwn tnuiilit.HJ.•, experience;;, and identities. Cultural di\'•'r~!t~ is not and ,;hould not bt- :i hrg
TEXTBOOK ON THE
PHILJPPI~E
CONSTITUTION
Sees. 15-16
t::oe first couple of the land and to give a ~beautiful" picture ofthe country to ::1de the "ugly" realities from the people's minds. 10 The Filipino national culture must evolve under "a climate of free artistic and intellectual expression:· to insure the creation of a culture that will help the Filipino be aware of his rich heritage and lead to a justifiable pride in his being a Filipino - a true> and distinctive Filipino culture that makes us uniquely Filipino.
SEC. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. SEC. 16. All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. Cultural treasures of the nation. Arts and letters shall enjoy the> patronage of the State (Sec. 15.) to foster the artistic and literary talents of the people. The State complies with this constitutional mandate by undertaking projects to develop native talents and by aiding or giving recognition or awards 1 to persons who have shown ability in the field. The State shall conserve, promote and popularize the nation's historical and cultural heritage and resources as well as artistic creations to preserve them for future generations of Filipinos, for all the country's artistic and historical wealth constitutes the cultural treasure of the Filipinos as a people and as a nation. (Sec. 16.)
A national cultural treasure is defined by law as "a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation." The term includes all cultural properties such as old buildings, monuments, shrines, documents, manuscripts, and objects which may be classified as antiques, relics, or artifacts, landmarks, anthropological and historical sites, o1· in part. Cultural properties that are not sufficiently outstanding to merit the classification of "national cultural treasures" are called "important cultural properties. " 2
~0See
Ibid., pp. 22-23.
1 Presidential Decree No. 208 (June 7, 1973) g1·ants certain privileges and honors to national artists and creates a spflc;ial fund for the purpose. 2 Presidenbal Decree No. 374 (Jan. 10, 1974), Section 3\a, b, c). R.A. No. 8492 (Feb. 12, 1998) establishes a National Mu!\eum System and provides fm· its permanent home. The primary mission of the Nations\ Museum is to acquire, document, preserve, exhibit, and foster scholarly study and appreciation of works of art specimens and cultural and historical artifacts. The National Library (R.A. No. 3873, June 18, 1964) is the repository of the printed and recorded
Innumerable sites all oYer the country have been excavated for cultural relics representing pricele:>$ cultural tn'asures that properly belong to the Filipino people as their heri t.age. 'rlw~e tt·easures have pacsed on to private hands and some have been sold or txporled ahroad. The State is mandated to protect the cultural treasures of the nation and regulate their dispo;.;ition. (ibid.) It has the obligation to presen (• them as properties of the nation, safeguard their intrinsic value, and prevent their destruction or improper disposition. As part of cultural conservation, it should take steps to recover, at least in facsimile form, irreplaceable records containing "tremendous treasures of information about the Philippine past" stashed in the archives of Spain and other countries which are invaluable·in the study and reconstruction of Philippine history.
The cultural treasures of the nation form part of our national patri· mony. (see Art. XII, Sees. 1, 2[par. 2), lO[par. 2].)
SEC. 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall con· sider these rights in the fonnulation of national plans and policies. Rights of indigenous cultural communities. In the development of a Filipino national culture. the Statt> must respect all the cultural forms which have bf>en e\·nl..-~d by the people through the centurie~. It must be ';democratic'· in the ,;en~e that it represents the cultures. of all tlw people. Thu~. under Section 17, the rights of , indigenous cultural communi tie::: to pre:->t~n ~· and den~·lop their cultures, traditions and institutioll5 must be recf:•gnizr·d. r6pected and protectf!d by the State. Furthermore, the~e right:; mu;ot bt: considered in the formulation of national plans and policie::; including tho5t on culture. (see Art. II. Sec. 22.)
SEC. 18. (l) The State shall ensure equal access to cultural through the educational system, public or pri \'ate cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venuP.s. opportunitie~
(2) The State shall encourage and support n~sf'arches and studies on the ads and culture.
cultural heritage of the cuum;·,·. and •)tn.:r !!~td!.:·c•.:.~::.!. :t:,;.~ar:-· and information sources. It provides facilities and resource.;. nattonal bJoho!
TEXTBOOK ON THE PH ILI PPIZ\E CONSTITUTION
41'!0
Sec . 19
Equal access to cultural opportunities.
tv
One of the aims of the constitutional policy to prom~Jtc social justice is cultural inequities." (Art. XIII, Sec. 1, par. 1.)
~remove
In line with this policy, Section 18 orders the State to ensure equal access to cultural opportunities to which all a re en!.itled through the various means or ways mentioned - educationa l, fina ncial and oth e r incentives, and venues .. :rhe State i;; also r equired to support researches and studies on arts and cultu!"e and the po pularization of our historical and cultur al h eritage and r esources as well as artistic cr eations. (Sec. 15. ) 'rhe fulfillment by th e State of th i ~ duty will r a ise t he level of culture of t he people, develop their artistic cr eativity, enhance their appreciation of dis tinctive Philippine arts , awaken their consciousness t o our cultural h eritage, and encourage them t o assist in their prcgcrvation and development.
~The State~
phys ical e ducation and e ncOurage sports programs, league competition s, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and a lert citizenry. (2) All educational institutions shall unde rtake t•egular sports activities throughout the country in cooperation with a thletic clubs and other se ctors. / ".-
~-
Concept of. ~potts. m sports is a general term applied to both indoor and outdour ga ys 01 contests r equiring individual phys jcal prowess or mental sk 11 or bot h, usually competitive in nature, and providing a pleasant source of diversion, amusement , or pastime. 1 Promotion of sports. ( 1) Correlation between a country'..-; progress and its .·wpremac;y in sport.<;. - In all advanced countries, the promotion of sports is give n high priority for the development of a robust citizen ry. Inde ed, there exists a clos ~ correlation between a country's progress and its supremacy in sport~ . Participation in spor ts not only gives healthful r elaxation of th e body but also teaches one to keep an alert and clear mind during games. lt cultivates
'The saying that «height is might" is only true in sports like hni'kdhall. In most othe r aports, winning calls, more than height, for strength, ~peed, skill ond s tamina. The detllrm i· nation to win is often t.imcs crucial to victory.
1n the player the v1rtues of sportsmanship, 'liscipline, honesty, fair play, patience, templ:'rance and winning by the rules. lt thus becomes a preparation for good citizenship, and if ueed be, for ~elf1essness and heroism in our country's cause. (2) Oblil{ation of' the Suite. --- Recognizing the importance of sports in our national life, the Con::;~itution under the above provision imposes upon the Stnte the obligal ion tu:
(a) promote phy:::iccd education; and (h~ encourage ,;;pons programs, league competitions and amateur sports including tra!r~in~ for international competitions, to foster st:lfdiscipline. teamwcrk z~nd excellence for the Jevelopment of a healthy and alert citizer.ry.-
(3) lnf(>gra! pnr~ · -· ·:C'.::')!i·building.- The constitutional commitment to encourage ,.:p(•rt~ ~-: ~~dude training for international competitions acknowledge:;; the fa·~::!;.,,::~~ Philippines, once- a winner of many championship~ in international ::'!J•)!'t;;. has become a mediocre competitor. 3 To further foi'ter athletic cor.,.:c:·•u:::ness among the pt•oplc, all educational institutions are required to c;nciHlake regular sports activities throughout tlw country in cooperation witl, athletic clubs and other sectors. One of the purposes here is to di:"con'r the natural-born superior athletes who may be trained fin· international .:•:·mpetitions, particularly the Olympics. Promoting sports and physical fitnesG should he an integral part of the educational program and tht' effort~ toward nation-building. -oOo-
'
1 RA. No. 6847 l.fao. 21. 1990) create!> and t>stablishcs the Philippine Spur't" C'ommissioJJ ( PSC1, and defines its powers, functi-on!; and responsibilities The PSC is-the lead agency that fnrmulat~;; pulicics priorities and directions of all national amateur sports prowotion and tk\'('lopruent of Filipino athletes through their partir.:ipalion in local and foreign compf,titition;;. ~::xer.:utive Ord~r No. 63 (March 1, 1993) Cn)atf!:s the National, Regional, ProvinciaL Cit_v, \lunieipal, and Barangay Physical Fitness and Sports Development Councils. r PfSfJC '· RA. No. 8757 hes the Philippine Sports Hall of Fame tu ensh~i!le th" Filivino athletes, coachc;;; and trainers who have distinguished themselves in their particular lidd of sports. ''[n the 1950s and 19(;1):;, the Philippines wa~ a dominant !.
~cleXV
~FAMILY
{/
SECTION 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Concept of family.
--
In a broad shamily is a woup of persons united together by ties of marriage a bloo ~n a very restricted sense, it is applied to the group formed by the spouses and their children .1 Importance of the family to the State. (1) A. QQ$.if ...$.0.2.iC!:Z. ~~stitution. -- Although the individual is obviously the primary cell in the 'l)(idy..polltic. as he is in a ll other human organizations, it is the family which provides the basic social unit
Leo XIII defined the status of a family as that of a society "limited, indeed, in numbers, but no less a true society, anterior to every kind of State or nation, invested with right!> and duties of its own, totally independent of the civil community." 2 As a basic unit of society, the family ought to be the origin of change or reform in society. (2) The .camm.J.~,ni.ty's.f~rst .socializmg agenc::_. ·-- The family js, in fact, the community's first socializing agency and the sp_~.!:..C.&.9..f its strength and . s~.~.~Hity. It is in the family that the child learns obedience, cooperation, and respect for the 1·ights of others; and it. is here al~o that the parents and Arturo M. Tolentino, Civil Code of t he Philippin~.>s, 1983. Vol. 1, p. 57:'\. ln Filipino culture and tradition, the family usually includes tho elderly folk - the lolos aud lolas. This is most evident in rural areas where two or three generations ofte11 share the same extended family home. 2 Rerum Noua1·um. 1
482
AR1'. .X\·.- THE FA:\11LY
SAC. 1
other family elders have co n:: t a nt occa~ions to rise aboVl! r esponding t o the needti of their children. 3
selfi ~ ! l !l ess
in
The spirit ·or service, 1')\"E-. mutual support a nd understa nding and other noble virtues and valut:3 being inculcated, nurtured and honored in practice in the home or the family, make it the most effective training ground for good citizens hi p. (3) An iTlsti.tution of umqu~. s.oci.al value. - The unique value of an institution of this kind to political society is so immediately evident that one of the first dutie::; of the State should be to protect and strengther, family life. 4 As a social in ~ titution , fa milies, in fact, shape the future of humanity for through t he family pa::;s es a ll fut ure genera tions . (}a_ the families rest the very :-:un >. .;,.l of every nation as a just, humane and progressive society.
The Filipino family, the foundation of the nation. Sru ~t: .
- :3.:-ction 1 gives con:-:;titutioual recognition to the ·Filipino fam ily' as t !-t ~ roundation of the nation . Accordingly, the State is mandated to "trt-n~:t !: ~n its ::.olidarity and active ly promote its total development. In anot hE-r p:-oYis ion. it is declared a State pol icy to recognize the sanctity of fami iy ~ i t~ a nd to protect. and strengthen lhe fa mily as a basic autonomous socia: i n:::titution. (see Art. II, Sec. 12.) (l).Duty
(2) Total de velopme .·cr Dl the fam ily. -- As used in Section 1, it means full physical, mental, and moral development of the fami ly. While this task primarily devolves on the fa mi ly itself, pa rticularly the parents . t.he State has the obligation to actiYely promote it, not only for the falllily's sake but also for the State's sake. There i.s much truth in the observation that the numerous social and econom ic problems that confront us today, including that of graft and corruption. can trace their root::; in the weakening of the family a s a basic social i n s ti t u~ i on.
(3 J Best way to achieve g ood of society. - 1n the final analysis, the good the family. Indeed, the fam ily's situation invari ably dett!rmi nes the !>tate of a nation . If this vital ce ll of society is fragmented or weakene d, the nation gets divided and weakened, too. If the fami lies are united a nd s trong, ISO is the nation. So if ·,,·e want a united a nd ::;trong Philippin es, we must strengthen and build u p the Filipino home by keeping it united and strong as it has traditionally been ..;
of society is best achieved through the good of its nucleus -
~sec
Schma ndt a n d S:.o>inbick!!r , op. cit ., pp. 183· 184. 'Ibid. ''Presidentia l Proclamatirm No. GZ iScpt. 8, 1992 i dcclare.s the lasi weHI< of Beptemher of e very year as l<'nmil:v and Part- nt,; Week, whilt~ Pre!;idcntial l'roclamalinn N u. 5 ~ !Dec. 11 , 1998) declares th e first :\lond
TEXTI300K ()\' THE I'H ILIPJ>INE CONS TITUTION
~ec .
2
Sphere of law on family .
In prot eet.i ng the fa mil.v, the State ='ha lt r espect it a!:' an a u{; nomou l: inst.itut.ion in view of the dan E
( 1J In the i nlecrw.lu.<:ped , t h
fa ~: i !y
is commonly known to be
sac re~d
and inaccessible even to law. Thu!:'. th<: law ca n not and sh ould not rcgulatL" such ma.t ters . as the sexual relations of the spouses or ·r.hc ·right of <.> ach
spouse to open corre~pondence of the other, or the· c}treer or profes~ion tha t parents should choose for their children. or. the practices or cus toms in t he domestic life of the fa mily ..The S t ate recognizes the sa nctity of family hfe. (Art. II, Sec. 12. ) · (2) It is only in the (lxternal aspect when third persons a nd the public interest are concerned that the law fixes rules regulating family relations. Thus, the law steps in t o protect th~ghts of the children and wife from abuses of t he father a nd husband, t Q determine the relat ions of membe r s of the fam ily in matters where society has an interest. such as support, parental a uthority, and the like, and to regulate the right and liability with regpect to th(~ acts of t he wife an d children.'
SEC. 2. Marriage, as an in\;olable social institution, is th(' foundation of the family and ~hall be protected by the State. Concept of marriage. Th ~:
ter m _nwr_r._ia.f1.e ha" tv,:o di:;tinct meanings. l t may refer t o the
cen~m ony
or act by which a nH: ; and woman become hw;;ba nd and wife or to the state o fb(~ing married. Tl .. :.·, ma rriage. is both a contract ;-md a Htatus, the latter· being a res ult of th~ for me r .
Marriage, an. inviolable social institution. Ma.rr~age is a status or relation of one ma n and woman, legally uni ted .(for life , w:it.h. rig:hts a nd ohligations whit~h a r e governed by law and not subject to private ag1·eement betwee n the parties. l,!! this Hspcct , ma rriage ' is an inviolab!t> sociHl instit ution in the maintenance of which the pu bli c i!' \ deeply int(~rested, fo r it is the fou ndation of th e fumily and ~wdety, without which there could be nf)ither civil i?.ation nor progress. 1 Good m arriageH a nd good families hring a bout a strong nation. H m11.:e, the const itutional policy
'Artnro ~1. Tohmtin•J. op. <. it., IIU/Jrrl .. pp . 517·'>1H. R..A. No. 8~~69 (Oct. :l8.. 1997\ <:.~t~•b· li!>hes lhllfnly Courl.s vn\nting lhem \)XCiu;;in• original jurisdiction o\·er child and fam ily cases. ' Ram irt!z vs. Gm1•r . 42 Phil. H55; P t:rido vs. Per ido, 63 l::lCRA !17, Ma n ·h l:l, 1975.
AH T. XV. -- THE FA.:'-11LY
that, the Filipmo family a nd maniage by the Stat<:> .
~hall
be
~trengthened
and
~ r~J tected.
Jm:identa!ly, there i ~ nPLhing in Secti of marriage as an inviolable soci al institu tion nor conducive to the strengthening of fa mily life. SEC. 3. The State shall defend: ( 1) The right of spouses to found a family in accorda nee with their religious con,;ctions and the demands of responsible parenthood; . ~2)
The right of children to assistance, including proper
care and nutrition, a nd special protection from all forms of neglectt abuse, cruelty, exploitation, and other conditions prejudicial to their d e ,·elopment;
(Sf ~The
right of the family to a family living wRge and
income; and . (4) The right of famili es or family associations to participate in the planning and implementation of policieA and programs that affect them.
okv~~
D~ ~~~·~ to defend family rights. _..... The Stall~ has the duty to defend the re~p~ctivc right s of ~pouses, of childn1n , of th(~ family , and of families or family a~sociations s tatecl in S(!ctlon ~1. The purpose is to strengthen the family as t he foundation of t.ht• nation and to_ protect t.he marriage institution a s th t! foundation of t h':' familv. · __,/-· .;
, ..,-"
~l'f
Right.;;.{ spousa. - Subsecti on (1) prohibi ts State's interf'erenvf7' : :·. t he indt-:peudence of married couples to determin H the s ize of th~·1r '·.•. :·. fa mily <'!(:cording to their own religious ronvicbons and the demand,. .. responsible parenthood. ~e~.P..q,I,l,Sil:>le. paren~~.~l m eans that parent:: "1-. ·..:.':: h nv(: a strong sense of re::;ponsibility in planning for children . Th·. . ~ ·- ·..::: not have mo.re children th r-m they could df!CenLly support ;;r_ -:: ·::. :. ::~ P arent1> have t:hc rc spon~ibility not only to provide for t h e rna :·:· -.~ : :-.~--~.:!= and education of th ei r ' children , but also for th eir mont! a nd spir itual guidan ce sg_.that they can grow as morally upri ght and God-fearing citizens equippes;Yfor t he challenges of life in society. _p{Rif{ht of' children. -- Subsection 1 2 ) take,;; cognizance of statistics dl!piertng ch1ldren in dir€ need of protection. There are parents who, out of d+!speration. because of poverty, have made their offsprings victims of child la bor and even prostitution. The Constitution seeks to pnt a stop to all fot·ms of neglect, abuse, cruelty, exploitation, and other conditions prejudi-
TgXTBOOK ON THE PHIUPPl:\E CONSTITUTION
c!al to their dev»lopmcnt. 1 Children t~erefore,....reqL;ire special or greate~· ../.,/'
-
!Hf-
Sec.
a
more vulnerable than adults and, and attention. 2
cdre
§61" Right af f.am.iJ:r.-- Subsection :3 • considers families whose income hatdly. p~ovidcs for their barest dail~· nE-eds. A family is entitled at least to have a home that is decent and sanicr;!y and to sufficient wholesome food, adeq•.1ate clothing and medical care. It ~hould have the financial capacity to educate children at least up to higr. ;:chool and to save for emergencies. One of the most direct way~ of prom,:,:~ng the family's welfare is to ensure that all the chi),d-ren are providt~d Wl~n the opportunity of getting lifelong education . . ·"' (4)/l{ight offamilies or_[Qmil:y_a,··."~.·ciati;!>_ns.- Subsection (4) is founded on its~e~id-ent r8:i"i=~·;~;-: 1 It 1s~-o-nsi~H·nt with-the constitutional policy that guarantees the right of the P<'Ople ar:d p~ople's organizations to participate "at all levels of social, political and .:-c•.•nomic decision-making" in matters affecting the various sectors they rE>p!~.:'ent. (see Art. XIII, Sec. 16.)
'This provision is implemented by R.A. ~: -;-.; 10 I June 17, 1992) olht>rwise known a,; the "Special Protection A~ainst Child Abu~e, Ex;: .. ~.,tion and Di;;trimination Act.'' R.A. No. 7f)58 (Nov. 9, 19931. amend in~ R.A. No. 7610, pro~:':.~; :he employment of children below 15 years of age in public and private undertaking~. o~. :~.:-other hand. R.A. No. 8980 IDee. 5, :0!0001 in':'titutionalizes a N:~tiona! Systt>m for Ear;:. •:':ildhood Care and Development 1ECC:DJ to promote the rights of children to survivaL :-:··:dopment and sp~cial protection with full recognition of ti1e nature of childhood and :t' ; : -ec:al need..;, and to support parent:: in their roles as primary can:givcn and as their chtk·-·:·' ilrSt teacher·R. The law is implemented by ExecutiH• Order No. 2H6. ! Feb. ~3. 200-!J IL\ :'~ :. 7610 is further anwndt·d by R.A. No. 9231 We<:. 19. 20031. Tht- fir!:'t .,ix (6~ years oflifc are conl'idt::r-::: :r.'i" most critical stage of human g•·owLh and devtdopment. l:>~;>tau::;c this is the formative p<·~: ·.j when children d(~vP.lop fast~~r. During these ye ::~hie to expre:;,; their own views." Re~earch shows, according to UNICEF. :1•..1trilion lind t-nvironmental stimulants dramatically affect a child's brain in tlw fir.:;t ;Hi months of life -- when a child devt>lops the ability t.o t.hink, speak, learn, and rca.:;on. :\f(,r<· im·cst.ment in early childhood development would produce a hcalthit>r. mon, produt:t.in, poJ.!ulat.ion while ~::wing monf.'y for remedial education and health care. :li{.A. No. 8369 (Oct. 28, 19H7! c.:;tahli,;he~ Child and Family Courts to exclusively handle Cl'iminal and civil cascf'. involving children and vr family relations. From its original thrust of promoting family planning. the Family Welf
Sec.4
ART. XV.- THE FA:\IJLY
487
SEC. 4. The family has the duty to care for its elderly members, but the State may also do so through just programs of social security. Duty to care for elderly members. (1) By the family. - :\!embers of the 5 a me family have the duty to rendei· mutual aid, both moral and materiaL to each other. This is parncularly imposed by th~;> Con5titution with rbpE-ct to the care of its elderly members who conf\titute a sizeable portion vl our country's population.:
v6ne of the more praiseworthy and endurir.~ Filipino values is devotion to family ties. 2 Married children continue to take care of their old parent5 (even grandparents. in-laws or other clo~e relati\·es 1 who are made to li\·e with them. Thus, it is considered an act of ingratitude for children to send their parents in the autumn of their live5 to the homes for the aged. whether government or private, as they do in w.,,-tern countries if they can afford to support them. Indeed, the averag.,. filipino family looks at this practice as contrary to this cherished fami::, :radition. Such a tradition holds as firmly as ever today especially in the ~-..;:-?.: _, ~eas where majority of the population li\'e. The average Filipino p.e!'C"'!Yt~ ~·~·::-.e:-: for the aged as places "where people are left to await death ... Tbs :5 tZ:e reason why in the Philippines, compared to Western count1·i~:,;. tht're are u:1ly a few institutionalized dwellings fl.lr the aged and such institutions arl' found in the urban areas. However, present-day realities may make it financially impossible for some families to provide for the needs of their elderly members under the same roofthat it is to the best interest of all concerned to entrust their care to a private or public jnstitution for the aged instead of being left with their families without the minimum of care.:~ !Pr·oclamation No. 410 oieclare~ the first week of Oc10hcr as "Elderly Filipino Week'' to promot.(l public awarene:"s that our lolos and loin.' - our f•lderly folk -- are valuable members of the family and socit:t~·. ''Ahno>nior members. Their presence in the family is a traditional featun~ of the Filipino Family Sy;iding iu one house or family compound. 'fhif< Filipino tradition of.cross· gener.~tional fam.ilY. has hef•n considt:rcd <11:' cmr:> of our ~.oci(;!Jy's gr~il.test strengths. The cxttmdHd family provides an itnportnnt built-in >lligeut choic('s fm· himSf!lf ur h+ak futurt·, we do not Jr..<(' hope ,l!ld still manage to smile and rt•f.ain uu•· ~•,n,;e of humor. The <:!Xplanati•.,n for tin:. admnable Filipino outlook in life can be folUnd in our dose family tit's and det•p rcligiou~ nut~.:rt!. ~Majorit.v of re;:id(•t•h ot h•Jme:; fur the 11/!l:'d in \)Ur (·oumr~ art' th(: .,-cry poor and have no known 1·elation:; or tho:;t> abanciom•d by th<:>ir rPla::' ·:·;.. Tht• ir:c~t·a;:ing tempo of urbanization in the country, part of the indun!ializ
TEXTBOOK ON THE PHII.l PPI~E COt\STI'I'UTIO::;-
St-c. 4
~/By the State.--· Ex isting laws grant b e nefit~ for sickn ess, di ~a bility , ac.: dent, etc. , to in di vidua ls cov ered under the social s ecurity system.~ The 3tate may provide just schemes of~oc ial security le.g., housing, fipecialized health care, pensions , insurance, and uther services) exclusively for its citizens in their twiligh t years who are- without any means of support. The :Jhysical a nd mental well-being of old people depends to a large extent on how they spend their time; hence. rE-Creational fa cilities, a mong others, have to be provi ded for them.
Love, respect and care for the eldt:-rs. pa rticularly the grandparents, are enshrined in traditional Philipp in t: ,;ccicty. Their wise counsel honed by their years of experiences are an indispensable gui de for t he yoLmgsters of the family. Ma ny of our Plderly folk crmtinue to b~ productive and active members of their communities, and fam ily providers and ca regi ver~ to t he young. Grandparents a re the onf!f. who wat<.;h over their grandchildren when both parents work and m ust l t-:lYt home; espe<;ially so when one or both parents work abroad, they ser\·e as effectiv e mec~ iators of famil y conflicts. Contrary to the stereotype view that elderly persons are helpless and depe ndent a nd are a burde n tn both tamily and the socie ty, many of our Filipino e lderl y a re retired professio md,: and experts in areas t.hat are vila l to our country's socio-economic pursu it:' . They continue not only as productive members of families hut also a,: prim e movl~l·s in m ~my producti ve community endeavors. They a re like wise our living links wh o bind the present with our nation's past. In recognition of the ir role a s inYa luable a nd vene rable m(!Inhers of the extended Filipino family system and our society, t he State is mandat ed by the Constitution to promote their wel fare and maximize their partic ipa~ion in nation-building through ''jus t progr a ms of social SQcurity.""
-oOo -
·'R.A. !'io. 7-1 32 (April 23. 1992'•. :1 " timc udc>d. gron;;; ht-ta:fi ti;. and special privilege>~ to "SPnior citizen'<" defined in th" law to nu~lll cit it~S an d rnu.n icip 2020, th~ nu mber of i:! ldcrly Filipinos i!:' expectE"d to grow to 11.0 million . !'.i cd ieal. nutritiona l. ti nd ~; account for this rise in th~~ numher l)f elderly fol k in ou r (:nuntry . The life cxpect3ncy of th~ an• r age Filipino imprnn:d from 67.4 years in 1998 to,:nl.l yP.ar..; in 2004 .
nO
Article XVI GENERAL PROVISIONS* SECTION 1. The flag of the Philippines shaH be red, white. and blue, with a sun and three stars, as consec.-ated and honored by the peotlle and recognized by law. The
Phili~pUleila~.
~J:r"'fhis section describes the flag of the Philippinf.'i5. The law rer~~rred to'is thP Philippine Flag Law.; Our f1ag is histvrie and ha~ a !:ltoried past. The color and even the shapes in the national emblem stvi~·"!;. Proclamation No. :37-1 (March 6, 19(;5) d•~signa~r.s :'-L!\· ..> ~~.- :\ati•111al Flag Da~· to commemorate the day on ::O.tay 28, 189/:\ when the victo.-i"u~ 1\.,,·:!J<.:•r<:n•« lwi~ted the Filipin<.• flag, ncwiy sewed and arrived from Hongkong-, in Ah c;_, ~·. • ·=,,·ite wlwre t.hey d•:f•.>nilding~. governtntlnt institutions, and ofli1:ial n•.;;idem;~:s from \L:- ~-! t<.· ,June 14 1!\''etl •.vhen the government. of the Commonwealth was inaugurated in l~l:l5: i.21 Jt W::l!-1 thl' flag urH]I~t· which our f;oldiers fought during World War II; (3) It wa!' tb(: tlag raised when th~.> pl'e!'ent }{epuhlic of lhl! Philippines was prodaimed on July 4, 1~14(); (4) It i:< the tln,l! tb;Jt lh. or du•·ing flag rai~ing cen•mnnit>.~, ot· to which every school boy or girl has recited the oath of allegiance; :md !())It is the t1;ig with whid• we have covered the fun~rai ca;;ke~,; o~ QUI' Pn.>::;id•~nt.,; and other honored countrymen when they were brought to their final fE)S~ing plan•. 4H9
490
TEXTBOOK ON THE PHILIPPINE CONSTITUTION
Sec. 1
~ed
color signifies FHipi uo va lor and heroism; blue, the Filipino resistance to foreign invaders and the Filipino aspirations for freedom; and white, the Filipino capacit) for self-determination or to govern themselves like any other people. The blue color3 is also said as a symbol oftru~,justice, and brot herhood and the white, of purity and peace. //
(~~three (3) five-pointed stars represent the solidarity of of the three (3) major geographical divisi ons of the Philippine Archipelago: Luzon, Visayas, and Mindanao and the five (5) points in each star, the many islands surrounding these geographical divisions. The sun symbolizes Liberty and its eight (8) rays represent the provinces (Morong [Rizal], Bulacan, Pampanga, NueYa Ecija , Tarlac , Laguna, Batangas, and Cavite) that first took up arms against. Spain and wer e declared by the Spanish Governor General in a state of war (en estado de guerra). The sun is also said to represent the gigantic strides that were made by the Filipinos in overcoming the oppression of the Spanish colonial regime. _, {-dJ'"T he white equilateral triangle which is the flag's main feat ure, rri~ny believe, was based on the Kat ipuna n War standard and stands for its ideals of liberty, equality, and fraternity or brotherhood of men. 4
--
(3) The Philippine Flag is furth er distinguished from all the flags of other nations by the manner with which it is hoiRt.ed. In times of peace when the flag is flown from a flagpole, the blue field is on top; if, the red field is up, it signifies that the nation is at war . If in a hanging position , the
"The quali(ving clau~Se 'as consecrated and honored by th~l people' used in 1Ba5 a nd again in 1973, can refer only to the flag known by the people and the delegates to the 1935 and 1971 ConAtitutional Conventions; and i!> the Philippine flag with a dark blue field, which was the only flag known to the Filipino people since Flag Day on March 20, 1920 when it became lawful to display the Philippine flag after it had heen banned from 1907. Whatever be the original colors or des ign of th e t1ag carried by our t·evolut.ion<~ry heroes an d displayed at Kawit on Ju ne 12 , 1898, will rema in a historical fact which cannot be alten!d. On tht~ other hand, the flag, with its color;; and arrangements ·consecrated and honored by the people,' is mandated by the ConAlitution as the flag of the Philippinef. today, and h ,gally cannot be replaced by the flag of the historical past, except by amending the Constitution." (Bulletin Today, July 29, 1985 ..1 A special historical body was cr eated during thf! Ramos Administration t o study a redesign of the Philippine flag to reflect more accurately our Muslim h t:ritage and the contributions of our MuAlim brothers to our stru~glc fOf freedom and independence. 3 The color blue in the national flag wa.; originally adapted fl'om the American National emblem. The s hade of this blue w~;~s changed to "sky blue" {color cele!lte) by the Filipino rev olutionary leaders because of the failure of the American's to live up to their promises and the Philippine-American War. (Manila Bulletin Editorial, May 28, 2003, p. 10.) •The first emblem raised by the Filipinoll when the Philippine Revolu tion broke out in August 31, 1896 until the truce of the Bia.k -na·Bato, was a red cloth at the center of which was the letter "K" written in tha ancient l'' ilipino script. Anot hl!r flag had a skull and crossbones at the centt~r of a black cloth. The color red was a popular among the Filipino patriots because it conveyed their readiness to fight for their country's freedom, while the color black symbolizl!d their willingness to die in pursui t of their libertarian dreams.
Sec. I
\ .. '
ART. XVl.- GENERAL PROVlS IO:'\:'
491
blue field shall be to the right (left of the observer) in timt· ,,; :. .,- ,, •-:-. and the red field to the right (left of the observer l in time of war.' (4) The present flag was sewn by hand for five (5) days :::: ~ ~,:\~::-rison Hill in Hongkong by Marcela M. Ag(lncillo lwife of the first F:::;::-:. ::iplomat Felipe Agoncillo), assisted by her daughter Loren;~.:t .\,:.··nc:~~: .\·ho was then only 7 years old), and Delfina Herboza-Natividad, a n!ece ::· · · ~e Rizal, from May 12 to 17, 1898 on orders of Gen. Emilio Aguu1alci.: -:-·- ~ original flag which was designed by Get'i. Aguinaldo from the pas: :-.:• : __ tionary flags while in exile ir, Hongkong, was made of silk and a co~>=-' : :· colors - an upper field of blue and a lower fi eld of red, with a .... :-. :.;triangle at the left containing the sun with eight (8) rays at the cente:-- .:.:-: three (3) pointed yellow stars at the angles of the triangle. It was emboic-=:---=-: by hand in gold following a design provided by the Philippine Commit:-:--= .:: Hongkong. (5) Our National Flag received its baptism of fire in the battlt- : :· Alapan, Cavite on May 28, 1898. It was officially hoisted in Kawit, Ca·.-::.:at 4:30 in the afternoon from the balcony of Gen. Aguinaldo's house on .J:::-.:12, 1898 to the martial cadence of "Marcha Nacional Filipina" or t!-. ~ Philippine National Anthem, when t he independence of the PhilippinE-~ was proclaimed by General Aguinaldo. The proclamation of its independence to the world gave the Philippines the distinction of being the first democratic Republic in Asia, with its own modern Constitution. 6 (6) The Philippine Flag is not only the revered symbol of our Republic and our national solidarity; it is also the symbol of our struggles for political emancipation as well as our identity as a freedom-living people . In it is written the blood and sacrifices of men and women who died for us that we and succeeding generations may enjoy the blessings of freedom and democracy. In it i::; embodied the character, aspiration s and ideals of our people. Every citizen, therefore, must honor and consecrate the flag a nd rally to it and all that it represents. 7 Making known to our people the profound significance of our national flag will help sustain their pride in themselves as Filipinos and in their country as well. Exemption from flag ceremony on religious grounds.
Under the law, all government offices and educational institutions are required to observe flag raiSing ceremony every Monday morning and the flag- lowering ceremony every Friday afternoon, which s ha ll be simple and dignifled and shall rnclude the playing or singing of t.he Philippine National Anthem. ~R.A.
No. B491 (.l<'eb. 12. 19!-lfl), Sec. 40. The withdrawal of American s overeignty may be viewed not nil n gra nt of independence but n recovery of the independence gained from Spain but taken away hy American colonial occup11tion. ;C.A. No. 634 (June 10, 1941.) penalizes by fin e or imprisonme nt disrespect to the Philippine flag and the National Anthl!m. 6
492
TEXTBOOK
0~
THE PHILJ? PI'\E CONfll'ITUTlON
St!c. 2
Failure or refusal to ob::>erve the tla!! cer~mony as required by law. shall be penalized by puhlic .. c.ens..~rt:. as a n a dministrative punishment \\'hich ~hall be published at least once in a JH:wspaper of gener a l circulation. The Department of Education W1.~ pEd 1. upvn the recommendation of the National H istorical Institute tNHIJ and a fter proper notice and hearing, in case of a failure to observe for a second time, the flag ceremony, shall cause the c_a ncellation of the recognition or permit of the private education. or refusal,= In two (2) cases decided by the Supreme Court in 1959 and 1960,9 it held that compulsory salute to the flag was neithe r viola tive of the fre edom of religion (Art. III , Sec. 5.) nor the freedom of speech. has a righ t (and duty ) to prevent. x x x The refusal of the m embers of Jehovah's Wit_nesses, a small religious group, to participate in a fla g ceremony contrary to its religious beliefs does not crea te such a danger. x x x Their expulsion from the elementary schools where they are enrolled will violate not only their religious fre <>dom but also their right. as Philippine citizens to receive free education for it is the duty of the State to 'pr otect and promot e the r ight of all citizens to qulilit.y education x x x and to make such education accessible tn all .' " (Art. XIV, S ec. 1.)
SEC. 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and tradi~ tions of the people. Such law shall take effect only upon its ratification by the people in a nationa l referendum. Adoption of a new name for the country, a national anthem, or a national seal.
Section 2 seems to imply that the present name , national anthem , and national seaJI are not "truly reflective and 1-lymbolic of the ideals, history, and traditions of the people ." kSec. 48, R. A. No. 849 1 !Feb. U. l!)!J" '· Th ~· fr.lT!nC:• ln w ~ W(: r~ R.A. No. 12135 (J un!' ll . 1955) and Exec. Order No. 321 (June 12. 1950 ' prl:'scrihing the Code of th E.' National Flag and the National Anthem of the Republic of th~ Philippines. ~Gerona vs. s~crc tary of Ed uc:a ti on, 106 Phil. 2 119591; Ba lbuf:na vs. Secret a ry of Education, 110 Phil. 150 (1960i. 10 Ebra linag vs. The Oivi$ion Superintendf!nt of Schools of Cebu, 21 9 SCRA 256 (1993i . , 'The earliest predecessor of the national ~;eal was the coat of arms hcs towod on the city of Manila by Ki ng Philip II of Spain thr.ough a royal grant isllued ti·om his; court at Aranj uet, Spa in, on March 20, 1596; lhe second W!~ S t hat of the first PhilippinE! Republic, also kn own a:; Aguinaldo's seal which wa.~ used in his ma nifes toes s ince Oct. 31, 1896; the third was tha t
Sec. :?
'
AHT. XVI. ·•· GENF:RA!. PROVI S IONS
493
A law providing for thP. change shall take effect only upon itR ratifica· bon by the people in a nE!O known th r oughout the world. 4 Section 2 is more of a "contingency" pro\'ision becau;:e it · could be necessary in t he future. adopiPd hy the Philippine Cr.m!:-n;s;on in 1905; th•.· i(·u r;h wai' that of the Com monwealth govc r nna> nt. appro\·ed on 1:\o,· 6. 1935: th e fifth wa~ that Qf the prc!lcnt Re public which was app ro\·ed by lhe Congr~ss of th~ P!nlip pines and Prt-:;ident ~lan uel L. Roxas on ,July a, 1946; and th e ,;ixth pha;;e in the .;e:tl ~,·;JI'Jtion wa;; effected by P residential DecrcP. No. 1413 !.June 7, 1978), declaring t he theme · [..· c:oif Bunsa, ]sang D aca" •One Country, One Spirit) as the national mot.to of the Republi.: oi t he Philippines, and incorpo rating i t in the national seal. 1'he motto wa;; incurporated by Edgar Lee, an emblem designer. { Bull~tin Today, Oct. 13, 1978.) The decree wa s, howe\'er. :>•.Jperserled by the Ad mini.!'trative Code of 1987 (Bxec. Order No. 292.), Book I , Section 14'1·. Under R.A. No. 8491, the Great Seal s h a ll be circul
ut t h e scroll and th~ ins titution t he 1·eon. Surrounding the whole shall be a doub le m nr,gint~ l ci rcle wi thin whi ch ;;h alll\J'pear the words "Republika ng Pilipinas." It s hall bear th!· ~ ;H ion!ll Motto: "Jfuk n-Diyos, ;\[aka ·tao, Mckakalikasan and Makaba.nsa." (see Sees . .tO--t:{ th ereof. I •t;ntil otherwise pro" ided by law. t he musical arrange ment and com position of Julian Feli pe is adopted as the nat ional anthem. (Exec. Ord~r 1:' o. 292, Book I. Sec. 13. j Julian Felipe was fl mu sician and ret:olufionarit"• from Cavite. He composed the music on June 11, JR98 upon the r equ est of General .Emilio Aguinaldo who wanted a march "that is ~;ometh ing more stirrin g and majestic, which can inspire our men to fight the enemy - something which embodiOFO the noble ideal~ of our r ace." Aguinaldo and other rc\'Olutionary gerarals liked it and adopte d it as "M arch a Na r:iona/ Filipi•w." The San Francisco de Malabon brass band played it wh1- a uthored by Joi!e Palma. a soldier-poet . In the 1920s. t he anth e m u nde rwent several traaslation,:;. The most popular was an l!:nglish translation of the Spanish verses made by ed ucator Camilo Osias and :\-LA. Lan e, an America n . Incide nt ally. Osias also wrote a ve rsion in Tagalog. Later , t he Tagalog vers ion was adopted b,· th.e Common wealth Government. With the Filipinos' Rearch for an expression of nati onal ident.ity, the Institu te of :'\.:. · tiona! Language (Suriin ng Wfka ng P a mban Ra ) was tasked to d ra ft a new t ra nslation of the: an th Hm. The version of TNL was officially adopted more t han 50 year~ a fter the anthem's crea t ion, on May 26, HJf>6 as pet\claimed by President Ramon Mag;;aysny. Proclamation !\o. 1:?;39 l ,)unt! ·L 199t3' declares ,Tune 5. 1998 and e,·er~· yt'ar thereafter as the MPhilippine ~a~ional Anth Cru'' n Pr:r.rt- Phllip II who turned out to be a very un popular monarch. lncid .. nt a il~. th~ tt"!m -Fiiipmo" origi na lly referred to Spaniardt> and Spanis h mestizps born in th<· PhJi1ppi necs. Tht: nrni,·e;; of the country, that is, those who w~r~ bon1"'ai:\(f'ri!u~ea in th e country, were ta~ge d a,; t ndiO§: It was only at a later time when the indios and ch inese mestizo.~ u:;..-d th e name -Filipi no."
TRXTTIOOK ON THE PHILIPPINE CONSTITGTION
Sec. 3
Playing or singing of the National Anthem.
Under Republic Act No. 1265 and Department Order No. 8, series of 1955 of the Department of Education. the national anthem may either be s ung by the pupils or played by the school band alone. The choice resides in the competent authorities of the school concerned. Where the anthem is played by the sehool band, the childre n may not be compelled to sing it instead. Where the anthem is not played, it mu::;t be sung by the school children. The law grants no exemption to any school for a lien children. The national anthem shall be sung or played upon the opening or start
of all state celebrations or gathering;,; and on such other occasions as may be prescribed by appropriate rules and regulations. 5 As to the Patriotic Pledge, a lien chiltiren may not be required to recite the same. The wordings of the pledge were meant to be taken by Filipino citizens alone.r.
SEC. 3. The State may not be sued without its consent. Principle of non-suability of the State.
( l;f A manifestation of republican government. - This principle is derived from the will of the people them;:;elves in freely creating a representative government through which they have agreed to exercise the powers and discharge the duties of their sovereignty. In so agreeing, the citizens h ave solemnly undertaken to s urrender some of their private rights and interests when they conflict with the higher rights and larger interests of the people as a whole, represented by the government thus established by them a lL One of t hose "higher rights'' based upon those "larger interests" is that of governme11t immunity from suit .
• In a very real sense, a suit..~gaiJ!~t th~. $t,?t~. by ~t!'? . ~!~i~.e.!lS is~ in.effe.ct.... gQye~-.·
a sult agaim;t the rest of the people r epresented by their common .:meAt --~D. (l.f.\QD}al.Q\lS. li.Jl.d li!-b.s.u:r.d .situation indeed.. 1
(¥5 Wrongful acts not condoned. - The doctrine refers solely to the freedom of the State b~fo re its own courts from legal responsibility for its
';Administ.ri•ti"E:' Code of 1987, Bo<.>k I, Section 13. Section :n of KA. No. 849 1 provi dt!s that the rendition of the National An t hem, whether played or s ung. ;;hall b~ in accord ance with the musical 3rrangemcnt and composition of Julia n F el ipe. Sect.i•ms 34 and :!5 of the law provide that tht! National Anthem s hall be entitled "Lupcll!f:: ffinirang» (see p. viii .) and shall be sung in the national language within nr without the countrv. ~op . of Sec. of Justice, No. Hll , s. 1965. The Pledge of Allegiance to the Philippine Flag (St!tl p. x.) •shall be recited while standing with the ~ight h~nd w_ith palm open raised sh oulder high. Individuals whose faith and religious beliefs prohibit them from making such pledge muat nonetheless show full respect when the pledge is being rendered by standing at attention." rSec. 25, R.A. No. 84!-!1 .) 1
Metran v;;. Paredes, 79 Phil. 819.
Sec. 3
ART. XVI. - · GENJ<::HAL PROVISIONS
495
own actions. lt does not Ioean that. acts which are in their nature wrongful are not so because they are performed in the name and for the State. In other Wt)fds, it is not a recog nition or approval of the a ncient maxim that "th (l King can do no wrong."?. (3) Scope. --The principle extends to suits agaim1t foreign state!<.· see Art. II , Sec. 2.) It also applies to local governmt-nts . In the exercise of ::~eir political authority as agm1cies of the national government (see Art. X. 5.:-c. 1, supra .), they rnay not he held civilly liable for acts they may ha \·e committed without the con nent of the State. Bases of the principles. ( 1 ) Upon reasons of public policy. - It is obYious that public sen-:ce would be hjndered and the public safety would be endangered, if the Stattcould be subjected to suit at the instance of e,·ery citizen. and consequently controlled in the use and dis pos ition of the means required for the proper administration of the government; 3 and
(2)_Upon the ver:y ~.ssence qf _so.uer_ei.g_nr::_. - Immunity from sui~ is inher ent in all sovereign sta tes. The reason i5 based on the logical and practical ground that th ere ca~ be no lega l right as against t he authorit~· t.h~t r:n~k~s_the_la.Yi _on .w.hich..the righUiepends~
When suits against the State permissible.
, The State (Government) may be sued only with its consent. (Sec. 3.) Conse nt may be given: ( 1)
.Expressly. --Through a duly enacted statute: 5
(al _By means of a g~nerallaw (e.g ., C.A. ~ o. 327, as amended by Pres. Decree No. 1445. ) defining the ca5es wher e and prescribing the conditions under which it may be used. Here , t he State gives its consent in advance; or (b) By means of a...$J2.ecial law authorizing a particular person to bring a s.pecified suit against the government with respect to a partjcular claim. 6
2 V.G.
Sinco, op. cit., p. 32. ~Sien vs. United States, 7 Wnll. 152.
•Kawananakoa vs. P olyblank. 205 U.S. 349. ~Republic vs. Purhim'l. L·:lfiOIH , Au~. 3 1, 1977. 6 Pre5idenlial Decree No. 1~ 07 C ,Jan. 16, 1981 , providc>s th!< pr:.-c..dure whereby the Re public of the Philippine;; may w ai ve s overP.ign immunity fr<>m ~"'-~:: ar: c other legal proceedings with re;;pect to it:;(;'lf on its proparty i:1 (·•.mn~ction with f)r.- :r: c-bhgations contracted by it pursuant to law. l.."ndt'r th e Admln:.; tr.:.ti\"t< C·Jd.:- ·:i :'-':-":". :":-:e S tate shal1 be legally respongihle only through the ac-t: pHicrmt-d :::"l .;!c~~·~:!"::~.:- ... :d: the Constitution and the laws by its duly authorized r.-p re:-e nt at l\·e;; h ~:-.;;L -:-1.:: ~ !:-:-.und by the mistakes or erron of its office rs or agents in the exercise of the:r func!:c.m Book I. S e c. ll thereof.)
TEXTBOOK ON
TH~
PHILIPPINE CONSTITUTION
s~c.
4
:.: ...l.m.!!.lit!_df.v.:. ---As in any of the following cases: I)YWhen the government sues to recover money from an individual who haR a elairn against it, the latter may set up such counterclaim;i (h) When the government engages in commercial business or enten; into a contract, it. can be sued upon the theory that it has descended to the ]('vel of a private individual from which it can be implied that it has given its consent to be ::>ued under its contract and thereby divested itself of its sovereign character and its immunity from suits. 8 This rule applies to local government~. \Art. X. Sec. 1..) w~.i.V~_!
of imm.unity not admission of liability.
By eonsenting to be sued. the State simply waives its immunity f1·om SIJ<;.b. act.~oo.cedes iTs 1iability...t.o..th.e..~tifi.lt merely gives a remedy to enforce a pre-exi~ting liability and submits to the jurisdiction of the court, subject to its right to interpose any lawful defense. 9 suit~ U...c!oe~ 11ot_~y
SEC. 4. The Armed Forces ot the Philippines shall be cornposed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necess~·y for the security of the State. Armed Forces of the Philippines to include a citizen armed force.
This section directs that the ArmEd Forces of the Philippine.s shall be com po1~a!d of a citizen armed force '·both male and female 1 who shall undergo military training and service. a:< may be provided by 1aw. 1 This citizen armed foree shall need a corp:< of trained officers and men in active duty status as may be necessary to train. !'ervice, and keep it in reasonable preparedness at all times (see Art. II. Sec. 4.1, meaning even during times of peaC(!. ·1'he Constitution envisions both a conventional standing army and a eitizen armed force. There is now an Armed Forces of the Philippines already e$tabhshed by law. Pursuant to this section, it shall keep a regular force necessary for coping with immediate defense and s~curity tasks. The Armed Forces of the Philippines is the protector of tht- people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. (Art.. II, Sec. 3.)
'Froilan vs. Pan Oriontal Shipping Co .. 95 PhiL 905. Airport Corp. vs. Teodoro, 91 Phil. 203. "Mcrrit v;; Gov't. of the Philippine Islands. 34 Phil. 311; Harry LyonB vs. G.S.A., supra. ~National
'KA. ~o. 7077 (,June 27, 1991), the "Citizen Armed F'orces of the Philippines Re~ervist Act,'' provides for l.he development, administration, organization, training, maintenance and utilization of th1~ citizfln armed fon:es of the Philippines.
Sec. 5
Aln'. XV I. - GENEHAL PHCJVTSIONS
497
The citizen army concept.
The citizen army concept calls for a c0re of regul ar army men training young citizens to form thP largt-n· ba::;e of <1rmv manpower \Vhich could be
mob ilized in case of emt~rgcn.:-y. Its adoptivn meets the peculiar needs of the Philippines which, like rhe other small de,·eloping countries, does not have t he financial capaci ty to su.pport i:l ;,;r~e regular a rmy. Under th e concept, all citizens of the country are members of the citizen force.~ Thus., under the Charter, the gon:> rnment may cal: :..:pon the people to defend the State and in the fulfi ll ment thereof, all cit ilc-:-.~ ma y be requir ed to render perRonal, military or ~i,· il :>cn·ice. (Art. II.~<-·. ..; . The citizen army concept. patterned afte-r :i:"' ~\\'it7.erland's model. i" probably best cxpre;;s.ed by the Swiss in th~:r ci.,scription of their military establil;hme nt. ·'E\·ery male citizen fit to military ::en·ice !:i hall participate in the military protection of his native coumry . . . The whole Swiss Army. troops a nd commanders at a ll levels, perfurm their duties as an incidental occupation. The whole army is 'at home· in times of peace, except the detachments that happen to be performin~ ~upplementary training. All service in our army is. in peacetime. training :'en·ice . We have no standing army. ":1
SEC. 5.
(3) 'Professionalism in the armed forces and adequate remu· n eration and benefits of its members shall be a prime concern of the State. The armed forces shall ~ insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (4) - No member of the armed forces in the active service shall, at any time, he appointed or designated in any capacity to a civilian position in the Government including governmentowned or ·controlle d corporations or any of their subsidiaries.
(5) Laws on retirement of military officers shall not allow extension of their service.
~Originally embodied in C.A. No. 1 (::-.iational D~fen>:'e Act), approved December 21, 1935, amended by R.A. No. 4091 and Presidential DeC'ree No. 182, issued May 6, 1975. ~see "An Army of Concerned Citizens,·· by Anatolio Litonjua, Focus Philippines, ~fay 25, 1974, p. 6.
l:ll>
TJ.jXTBOOK ON THE PH J LJ PPT~E CONSTITUTION
Sec. 5
ta( The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable. (7) The tour of duty of the Chief of Staff ofthe armed forces shall not exceed thre.e.y~. However, in times of war or other national emergency declar~d by the Congress, the President may extend such tour of duty. Rules applicable to the armed forces.
Under No . ( ll, membors of the a rmed fo rces are expre::>sly required to take a n oath or affirm ation to suppo rt a nd defend the Constitution although they a r e "public officers and E-mployees" wh o a re a lready requ ired to do so under the Article on the CiYii Service. (see Art. IX, B-Sec. 4.) No. (2) is in line with the declaration that the Armed Forces of the Philippines is the pr otP.ctor ofth e pN•ple and the State. (Art. II, Sec. 3. ) Its loyalty is t o t h e people, the rountr~· and t he Constit ution. In str essing the role of the AFP as the protector of t ne people, the Constitution r ecaJls a time past when it was used to oppre~" the people in support of a dictatorial r egime. No. (3) is designed to insu late t h.:- a rm ed forces from partisan politics particularly in matters of promotion;:: and assignmen ts . The Constitution takes cognizance of the low remune :ation and little benefits r eceived by lower -r a nk members which affect tht-1 r effi ciency. integrity, and morale. The prohibition a gainst engagin? in parti~ an political activity is directed to members in the a ctive sef"'·i('e. Those in the reserve force are not covered. "Civilian position" in No. ( 4 } cover;; any position , whether permanent or temporary, including those in private entities t aken over under whatever arrangement by the gove rnment. The- prohibition is not a reflection on the ma n agement skills of the men in uni i·:, rm . Behi nd t he prohibition a re the larger principle of civilian supremacy uver the military which fr owns upon the employment of the military in t he ti\·ilian government and the timehonored tradition in all truly democ ratic nations that "the soldier's job is to fight a war a nd not to r un a government ." Nos. (5), (6), and (7) are all in te nded to put a stop to practices in th e past which favored officers and men with political influence or connections. It is not clear whether t he Chief of S taff can continue his tour of duty (No. 6 .) even beyond his scheduled r etirement .; (No . 5.) Note t hat No. ( 7 ) merely 'According t o Brig. Gen. Crispino de C::ts tro. a mem ber ofthe Con~:~titutional Commission of 1986, the delibcnnions re veal the intent 10 a l]flw the Chief ofSta ll'to finish his tour of duty evt
Sec.()
AKT. XVI.- <.~~NERAL PROVIRIO:-;s
499
provides a maximum perjod of three (3 l y(·ar:;. It does not set a fixed tenure of three (3) years. The President may rephH:~ him during that period. SEC. 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to administered and controlled by a national police commis· sion. The authority of local executives over the police units in their jurisdiction shall be provided by law.
be
One national and civilian police force. (1) Police force before the 197.3 Consti•<~:ion. -Under the former ;;y;;iem, before its integration, police enforct-mt-nt functions ~ere distributed among some 1,500 local police forces which had their own areas of jurisdiction under the control of local executives. This arrangement spawned such problems as conflicts in area coverage, rivalry. inefficiency, and wardlordism. with loc:alities in some instances sen·ing a;.; sanctuaries for vices and abuses. There was also lack of coordination as each police department exerdsed some kind of autonomy, making its own decision and running irs own operatiolls.
(2) Police force under the 1973 Constitution. ·-The 1973 Constitution ordained the establishment of "an integrated national police force whose organization, administration and operation shall be provided by law." 1 However, two parallel national police organizations were in fact established operating ;:;ide by side-· the Integrated ~ational Police force (lNPl and the Philippin) Constabulary (PC I,~ as a direct result of Presid~ntial Dt~cree No. 765 (Aug. 8, 197:1! which created the IKP under the Office of the President with the PC, a major service of the Armed forces of the Philippines (AFP), as the nucleus, and the city and municipal police forces, and jail and fire departments as ciYilian components.
Besides vitiating the time-honored principle of"unity of command ... t!-:'=' existence of two parallel police organizations promoted conflict and c.:;:::·...:sion in the system. Under the command of a military force. the I:"F~ civilian character was seriously eroded while the multiplicity of it5- ; : ·.-,;-:-:-:President Marcos and Gen. Fabian Ver, vesting every conceivahle puwt':· : ·. ~ ~-- ~.~ .~ :·: ,;.\.t-r team, a ~ct up that later gavc·risc to the frustration~ of the offi.:('l' cc;:·r; :- .:--.--~- .2.::-.c the mutiny of the Reform the Armed Forces Movement. ;RAl\f, and th·: ':· .. -..: · ::::.,::-~ Cnion iYOt~;. two groups of dlsr.nchantcd oflicers in the AFP •Bla ... ()~,:._. :::::,;-Panorama Sunday, S~pt. 15. 2002, p. R.l 'Artie!~
X\'. St:?c:inn I :2
:h~r.,.of.
th€· C<,mmorwp;-;'th p~r!• .~ .•,~,·:·. :~.~ l'l.' ·x·,- :-- -.: . .,.:,;.~of the Philippine Ground ForcE< •. PGF '·now ,h.,. .-\rrr:.--:! f: ~~;-, .:· .:·.•. P:: .:: ;:"·- . .~.::;: . :n.: PC as a ~national or insular polic~·· was mad(! p:1:-:. :·: ': .. p~-; F !··:,;.: ::" ;,.:.:-:-.·. ::-. .' ~·· ~ ·.·.: ·.-< ,·,;.pt:n-isory. and din~cti•mal ~ontrol wa~ handled b_,. rhc, D.. pa~:m.::;:: · :· 1::,,_.:·. ::- _.!._:·: .. • :hE> war, it remained as the "National Police" under ~h~ Deparrm..,nr ;:.:· :-;.;,.::-. ::-... : )).-:·,.::-,.-.-. a.; a major service of the AFP. 2 During
TEXTBOOK ON TJTF. PHli.IPPJNR
CON~TITt ;TIO:'>i
hampered thl! attainment of an effective , cflit·imlt and respom;ive ;.. :-iice service.:'
(3) Police j(I!H: under the 1987 Constitution. -.tfhe prt~sent Conl't.itution ::;eekfl to correct these structural d.:ficiencies and oth ~ 1· p1·oblems besetting the system. Under Section 6, the State i~ mf'lndated to e:'t.ablish and m aintai n: (aJ one police force ; (bl which shall be nationa l in ;,cope; (c) civ ili an in charactPr; l cl i to be admin1~ tered and cont-rolle d by a nutional pulice c,1m mi ssion ; and ie ) with authority of local CXC!cutivl•S ove>r police u ni ts and their jurisdiction to be pro,·ided by law;..The intent of thf' Constit u tion is to separate t h e PNP from and t,1 gradually plHt:o>e out the P hilippin~~ Constabulary. A po1ice force is a ciYilian function , a public service and should not, therefore, be performed by the military e~tablishmEmt. The Constitution considers it inadvisable to provide loca l ex~cutives fu!l control of the polict'. /The national character of the ci\·iiia n police force is intended to in~ure the continuing professionalization of puhlic safety services and the establishment of standards concerning fo rce, siz e, organi1.ational structure, personn el qua lifications a nd discipline, equipage and facilities , rank~ and salaries, ope rational proced ures, and traming, taking note of urban and rural differ ences. Better still, coordinated efforB, with th~ use of common communicatior.s .system and logistical resource.:- and expertise, h an~ worked to a major advantage in the ~olut.ion of crime cases with dispatch and in r('"'ponding not p nly to local safHty requirements but to national emergencie~ al-' well. Section 6 is implemented by R.A. ~o. 697 5,4 which e::-ta bli~hed the Philippine National Police (PNPi, a merger of the Integrated National Police (INP) anrl the Phi llppine Cons tabulary (P C/ ." The PNP is und~r the Department of Interi or and Local GoYernment (DILGJ .
SEC. 7. The State ~hall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns. their surviving spouses and or phans. Flinds shall b e provided therefor and due consideration shall be give n them in the disposition of agricultural lands of the public d omain and, in appropriate cases, in the utilization of natural r esources.
~Tho Poli ce under thH ~ N ew Con!ltit u l iou," by Com m. Teodulo C. Nathidad, Manila Bullct,in. O..:t. 1986. ' Anwndt>d by R.A. No. H551 (.fo'eb. 25, 19981. "Wh"n the PNP wa.:; or g
Sees. 8-9
ART. XVI. - GENERAL PROVISWNS
501
Assistance to veterans, their widows and orphans.
Section 7 gives recognition to the services of veterans who n::ked or gave their lives for the country. It covers survivors who participateci :n the revolution of 1898 and the Philippine-American War, veterans of W :1rld Wars I and II, the Korean and Vietnam Wars, and military campa:gns against insurgency in the country. In case of their death, benefits shall ue enjoyed by their dependents. Section 7 refers only to their suniving spouses and orphans. They shall be given due {not preferential) consideration in the dispo.si· tion of public agricultural lands and, in appropriate cases, in the utilization of natural resources. Note that the agrarian reform provisions on Social Justice (Art. X!IL) already reserve priority rights to landless farmers and farmworkers in the distribution or grant of public agricultural lands. (see Sees. 4, 6 thereof.)
SEC. 8. The State shall, from time to time, review to upgrade the pensions and other benefits due to retirees of both the government and the private sectors. Review of pensions and other benefits due to retirees.
The State is directed to review from time to time the pension and other benefits due to retirees with a view to upgrade them by law. Such periodic review or re~examination is necessary because inflationary factors may render them unrealistic. Section 8 covers retirees of both the government and the private sectors, i.e., under the GSIS and the SSS. In case of the latter, the intervention of the State is necessary to establish reasonable or standard benefit plans for private employees.
SEC. 9. The State shall protect consumers from trade mal· practices and from substandard or hazardous products. Protection of consumers.
Consl1mers. h~Y-~ .a rigbt.to. q.ualit)!:.products at.iair prices and to protection from fraudulent trade practiees. 1 Accordingly, the Constitution mandates the State to protect consumers from trade malpractices (e.g., tampered taxi meters, short-selling, defective scales) and substandard or hazardous products. Clearly, there is a need for the people to be aware of their consumers' 'R.A. No. 7394 (April 13, 1992) is the "Consumers Act of the Philippines." The Detaart· ment of Trade and Industry is the lead government agency with the main responsibility to protect consumers' rights.
502
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Sec. 10
r ights. By knowing and asserting their rights, whether in their personal capacity, or in a lliance w ith other consumers who have organized themselves to make s ure they can seek redress from business and a ny other entities tha t violates those r ights, they help build a fair a nd j ust society. The consumers' rights have been identified2 as follows: (1) J?ighL.ta. basic needs or the right to basic goods and services at affordable prices an d of good quality which guar a ntee survival : adequate food, clothing, shelter , h ealth care, education and sanitation; (2l.. Righi..i(UJJ~r the right to be protected against t he marketing of goods or the provision of services that are hazardous to health and life;
(3) .Right.to__i.n,fuun.D.Lion.. or the right to be protected against dish onest or misleading a dver t ising or labelling a nd the righ t to be given the facts and information needed t o m ake an in formed choice; (4) .[?ight to ~ho ose~or t he righ t to choose products a nd services at competit ive prices with an assurance of satisfactory quality; (5) Ihght t o represeZJ.ta.t.i.o.a or the right t o express consumers' in terests in the making and execution of government policies and law which affect their well-being by getting t he best Yalue for their hard-earned peso;
(6-...BJ.ghLt.Q.rf;.d-r:es.s..or th e right t o be compens ated for misr epresent ation, inferior or substandard goods, or unsatisfactory services; (7) Bight tQ ~.O.'fJ.:S_lpru?r ed_TJ.cq,tiofA or the right to acquire the knowledge and skills n ecesRary to become an intelligent and well-informed consumer ; and ·(8) Right to healthy environment or the right to live and work in an environment which is neither threate ning nor d angerous and wh ich permits a life of dignity a n d well-being.
SEC. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. Filipino capability in communication and information.
( 1) Policy environment for mass media. - T he Sta te is required by t he constitution to provide the policy environment for: · (~j The full development of Filipino capability in this field; and 2 By the International Organization of Consumer Unions OOCU), an independent, nonpolitical, non-profit foundation which links more than 120 consumer groups in 50 countries throughout the world. (Phil. Dai ly Inquirer, Oct. 3, 1986, p. 15.)
Sec. 11
ART. XVI. -GENERAL PROVISIONS
503
(b) The emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country. Section 10 provides the cornerstone for the formulation of a national policy on mass media, touching on such aspects as the right of the individual to communicate, the r ole of t he private sector in mass media, the involvement of the government in mass media; the use of media in education, etc. (2) Filipino communication industr)'. - The first objective is supported by other provisions which say that the State shall promote "the sustained development of a reservoir of national talents consisting of Filipinos x x x in all field s'" t.Art. XII, Sec. 14.) and "suppurt indigenous, appropriate and self-reliant scientific and technological capabilities and their application to the country's productive systems and national life." (Art. XIV, Sec. 10.) The thrust is towards evol-ving a truly Filipino communication industry that would utilize domestic resources and indiger.::ms talents and skills. (see Art. XII, Sec. 12.) (3) Balanced flow of information. - The second objective considers the need for comm.unication structures that promot.e the national interest as w.ell as balanced flow ~f..~~fo~a!ionj~ Y.:i,~:w.nLthe..wlfail-nes8 .and iiarl:nfUl ~ q~ences of misleading, ina~c~rate . or one-sided_new.s ...9r:.~~fonna~io(l. particu~ larly where it involves the security of the country or the image Q{ the .P.hilippiD.es abroad. Within the country it.sEM, it has been pointed out that urban centers are "~nformation rich" while rural areas are "information-depriv~d," a condition that promotes uneven development. One way to ensure balance is to encourage the growth of community media and other non-traditional media in the rural areas. Consistent with the objective, mass media enjoy full freedom of speech and of the press. (see Art. III, Sec. 4. J (4) Vital role of communication and information. -The communication and information industry is an integral part of the economy. The Con stitution, in fact, recognizes its vital role in nation-building. 1 (see Art. II, Sec. 24: ), Its development will strengthen:lin~ages among regions of our country, facilitate inter-island commerce, and promote interaction among the people. !~.(! an also link the country with other nations thereby foste ring international understanding an.d world trade. SEC. 11. (1) The o~~X.~hip and .ma1!!l~~~nt of;mass m~~! shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. · · ·
Anformation and communication technology has progyE>ssed so rapidly that it h?tS affected individual daily lives worldwide - how we run our lives and how we r elate to one anot.her. It has allowed information collected from almost aoy whe re to be accessed, updated and made available in a fraction of time to any point on earth in many media, aural or visual.
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504
Sec. 11
The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair compe tition therein shall be allowed. (2) The advertising industry is impressed with public inter· est, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. s~venty p~r ~en.b.!-_'!'
The participation of foreign imrestors in the governing body of entities in such industry s hall be limited to their pr.->portion· ate share in the capital thereof, and a ll the executive and managing o ffice:rs of s uch entities must be citizens of the Philippines. Ownership and management of mass media by Filipino citizens.
The_pmvi.sion expres~ly limits. the _QYo'..Pen~hip and ID!\.nage_rrumt of.~!i~s me.dia to citizens of the Philippine.s_OL to corporations., cooperatives .or . A~sociatio~~ wholly (i.e., 100%) ow n~~ <1;~~ ma!laged by ~ uchcitizens. (Sec. 11[11. ) (1) Mean ing of mass med ia. - The term embrace~means of corrnn.Y.Dj~ cati!?.Q..that_ re.~c!t. !il1d Jn.A~.~Q_c;!'!_i~ll..e.-ql.lmbers._of __pe.a.ple .including print meclj,~;~. (esP-_~~i~UY new~~p~rs.__periodjcals_.and._p.op.ular. magazines)• .radio, .teleYisi.QJh.J!nd_rn.Q.Y.~r- It involves the gathering, tran smission a nd distribution of news, information, messages . s ignals and all forms of written, · oral a nd visual communications 1 t o t he genera l public or a portion thereof.2 ."\·
(2) llitaL..mle....nf_mas.s._.m.edi_a. - The r eason behind the provision is obvious . .Mass Ql~.dia a.re clot!"led with _Qublic interest . They play a vital role in th e national life, directly influe~cin_g_ ·t h~ \vay t h.e people think and act . The Constitut ion seeks to ensure that these institutions are fr ee from
~uh;;cribers
1/f:lc,commun icAtion com panies t hat a r e u ti lized by specific to can y s pecific messages t o specific addressees or recip ients are auJ:>E.s u.t i!_itic_;; i:;t:!e :\n. XII, Sec. 11.), not masiJ media. This is because t h P.y merely !ien •e as carrie: s for tran::mitting messages. They do not create the messages nor do they tnms rr.it the mo>ssage.> ui th e ge neral public, as mass med ia do. The publication of messages or s t ories carried b y the m is decided by t he senders and th eir ne,vs pa pers or broad ca~t networks. "Telecom mun icat ion·· mea ns comm unication at a dist ance as by ca ble , radio, telegraph, telephone or television. Th e Secretary of J u stice has opined, however,-that cable t elevision is a form of mass media. Fnlike the internet business wherein an intern et access provider merel y se rves as carrier for trans mitting messages, a socalled community antenna te levis ion (CATV) operator h a
Sec. 11
505
ART. XVI. -GENERAL PROVISIONS
foreign influence. Press freedom would indeed be meaningless to Filipinos if those who exercise it are aliens, owing loyalty to a foreign government. 3 Regulation or prohibition of monopolies in commercial mass media.
\\
The Constitution does not totally preclude the possibility~f a monopoly in commercial mass media, whether public or private. If and when it do"'s take place, Congress shall, but only whet? public interest so requires. regulate (i.e., it is still allowed} or prohibit it, subject to the guarantee of freedom of the press. (Art. III, Sec. 4.) In any case(no combinations io r~straint of trade or unfair competition in commerc1:al mass media art~ allowed. (Ibid.; see Art. XII. Sec. 19.) They are bad per se. The provision on monopolies takes cognizance of the tight control over media by powerful families and corporations with diverse business and political interests in the pre-martial law years. In some cases, the same families owned two or more newspaper publications. This monopoly was broken up by the martial law regime only to be tUT·ned over to relatives and close associates of the incumbent President. A proposal made in the Constitutional Commission was to allow a family or company to own only one type of media enterprise. For example, it may establish not more than one television, one radio station, or one newspaper in the same regional market, say, Metro Manila. One possible exception is for a newspaper owner to establish another newspaper in another language or dialect in the same market. When commercial mass media- serve only the political or business interests of their owners and hinder "the balanced flow of information" (Sec. 10.), the State must step in to protect public interest. Regulation of the advertising industry. (l) Meaning of adt·ertising. - The term refers to any form of nonpersonal presen'tation and promotion of goods for sale or services offered by an identified sponsor by means of printed or broadcast paid public anouncements. It is a form of mass selling. The term may also refer to the business or profession of desi~ing layout and artwork and preparing advertisements for publication or broadcast.
(2) Purpose of' advertising. -The purpose is, of course, to call attention of consumers to the existence and strong points of the product \goods or ~ervice) advertised to induce or increase demand, or sustain their interest JMedia has come to he known as the Fourth Estate and has dl:!mnnstrated its potent powers in society. For media to be an effective and powerful instrument for the enlightenment of the public, its practitioners must recognize their duties and responsibilities tor all they publish and disseminate to the institution and the society that they are tasked to serve. Media practitioners can make themselves instruments of truth and in promoting positive values that can propel the nation to grow and progres~.
506
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Sec. 12
or desire in the product. Sometime!'. instead of promoting a product (product advertising), t h e aim is to foste r goodwill towards the company or organization (institutional advertisi ng : with t h e ultimate objective to promote sales. Both business and non-business organizations employ advertising. Media is the vehicle through which the communication is made. (3) Vital role of advertising. - The advertising industry is impressed with public interest . (Sec. 11[21.) It does not merely provide consumers with information. It persuades people to purchase the particular product that is a dvertised, and indirectly aids in reducing cost, lowering prices, and increasing competition. With the plethora of goods and services offered in the market today, advertising pl ay;; a vital role in the economy. Some advertising may ..he-dece~t.ive, fal~ . nlisl~ading or dishone.U. ~t is, therefore , necessary that this indu stry be regulated by law for the protection of consumers and the promotion of the general welfare. (!bid., see Sec. 9.) Ownership and management of advertising industry.
Only Filipino citizens or corporations or a ssociations at least 70% of the capital of which is owned by such citizens are allowed to engage in the advertis ing industry. (Sec. 11[2].) !\ote that the Constitution provides for a lesser foreign equity in advertising companies in view of the effects of advert ising on the mentality of t he consumer;; . In public utilities, the equity ratio of ownership is 60-40 in favor of Filipino:::. , see Art. Xll, Sec. 11.) As in public utilities (Ibid.), the participation of foreign investors in the governing body of entities in such industry is limited to their proportionate share in the capital t hereof, and all the executive and managing officers of such entities must be Filipino citizens. !.Sec. 11, last par. )
SEC. 12•. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities~ the majority of the members of which shall come from such communities. Creation of consultative body for Indigenous cultural communities.
The State is ma ndated to cr eate a consultative body to advise the President on policies affectmg indigenous cultural communities. The majority of the members of the body must come from such communities. 1
1 R..A. No. 8 371 t Oct. 29, 1997}, also known as the Ancestral Domain Law, creates a National Commission on Indig~nous People tasked with the formulation and i mplementation of policie~:>, plana and progt·ams for the development of cultural communities and indigenous people. the revi~,w of applications for ancestral land titling, the issua nce of certificates of those titled, and the adjudication of disagreements on land ownership.
Sec. 12
ART. XVI. - GENERAL PROVIS10:\""S
507
In the formulation and implementation of policies, the State must consider the customs, tradit ions, beliefs, rights and interest s of indigenous cultural communities within the framework of national unity and development. (sec Art. II, Sec. 22: Art. VI, Sec. 5; Art. X, Sees. 15-21; Art. XII. Sec. 8; Art. XIII, Sec. 6; Art. XI\· . Sec. 17.) - oOo -
••<
,.,../"/'
"/.................... Articte XVII ···
AMENDMENTS OR REVISIONS SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (l) The Congress, upon a vote of three-fourths of all its Members; or (2) A
constitutional convention.
Amendment and revision distinguished.
---
Both denote a change in the Constitution. But w,hiYe{i;;;~ndment is a change effected in some_..P.arl"SOf the Constitution withoul considedh{(tne whole document><.r.edsi~n 1 is a re-writing or substantial changing in the Constitution viewed in its entirety.2 Importance of the amending procedure. (1) Mechanism for responding to cha!l.ging condition.B . -No Constitution, however gifted its framers , i1> likely U> prove adequate for an indefinite period. There are problems that no human foresight can anticipate. As conditions are never static, so must the fundamental law be fre ed from the constraint of rigidity. While it is r educed to writing, it should not be devoid of the element of flexibility. Thus, a well-written charter must not only safeguard individual rights and organize the government but indicate how it may be amended 3 in order to make it r esponsive to changing economic, social, and political conditions. (2). A safe_ty ualue against ~~~Qr.t to rev.olution.. - Not much reflection is needed to show that without an amending process, the only alternative to
' In the 1935 Charter, there was no provision for a revision of the Constitution. It provided oniy for amendment which, howe ver, was interpreted to include revision. (see Occeiia vs. Comelec, 104 SCRA 1, April 2, 1981.) TheTe was n o provi!'ion fixing the date for h olding the plebiscite. 2 ~ . A Gonza les, op. cit., p. 71. ·see Justice (la ter Chief Justice) E.M. Fernan do, "The Bill of Rights" (1972 ed.l, pp. 3839.
508
Sec. 2
ART. XVII. -
A~fENDME NTS
OR
RE \"ISIO~ ~
509
bring about the necessary changes would be through r evolution. In this way, the article on amendments provides a safety valve. 4 Methods by whlch amendments or revision may be proposed.
Sections 1 and 2 prescribe three (3) methods for proposing any ment to, or revision of the Constitution, namely:
am~ ;.d
( 1) By Congress, as a constituent assembly, upon a vote of thrt-.::· fourths of all its members · Sec. l[a].), votintf separately;. 5 . / ~) By a consti:utioca! com·ention p'cilled for t he purpose (Sec. 1[2]. : or (.3) By the people directly, through initiative upon petition of the re-· quired number of regi$tere-d Yoters. (Sec. 2, par. L l
It is to be noted that the vote requirement is more stringent if the amendments are proposed by Congress itself. This is to insure more deliberations and deeper study and con sideration of the merits of the proposed changes to the fundamenta l law.
SEC. 2. Amendments to this Constitution may likewise b e directly proposed by the people through initiative upon a peti· tion of at least twelve per centu" of the total number of regis· t ered voters, of which every legislative district must be r epresented by at least !_~e per e:entum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Amendments proposed by the people through initiative.
Sections 2 and 4 (par . 2. ' enshrined for the first time the "pe~l e power" to effect changes in the fundamental law. Under the concept of initiative {see Art. VI , Sec. 32.), the people may directly propose amendments to the Cons titution should Congress be remiss in its duty under the two (2) traditional modes available to it. (1) Requirements.- They are as follows:
'See Justice- (later Chief Justice • E.M. Fernando, "The Constitution of the Philippines," (1974 ed .), p. 23. 6 Unlike the 1935 Constitu t ion !Art. XV, See. 1 thereof. ), Section 1 does nnt mention Congress having to convene in "joint session assembled" for the purpose of proposing constitutional amendments. Still Congress a cts as a constituent body when it proposes amend· ments to the Constitution although it mee ts a nd votes separately.
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Sec. 3
(a ) There must be a petition of at least.l2% of the total number of registered voters; (b) Every legislative district must be r epresented by at least, 3% of the registered voters thereof; and (c) The amendment through initiative is not made within five (5) years following the ratification of this Constitution nor oftener tli"an once every five (5) years thereafter . (2) Minimum percentage of electorate. - O nce the r equired number of voters' signatures is complied with, Congress is bound to submit the proposed amendments to the people in a plebiscite. (Sec. 4, par. 2.) The implementing law will have t o pro\i de a system of verification of· the signatures. Note that the minimum percentage of the electorate must be satisfied both on the national and district levels. ,..Thus, if a legislative district is represented by only 29i: of the registered voters thereof, t he power of initiative cannot be exercised although the petition is signed by more than 12% of the total number of registered voters. These requirements are designed to ensure that a sizeable portion of the population really desire to propose the amendment and at the same time avoid frequent changes in the fundament al law which are not conducive to political stability. (3) Deferment. - The deferment is provided to give Congress sufficient time to create and refine the mechanism for implementing the third mode of proposing constitutional a mendments. Congress is required to provide by law for the implementation of the exercise of the right. (Sec. 2. ) (4 ) Initiative limited to amendm ents. - Note that the Constitution .limits the people's initiative to me re "'amendments" or simple changes, a nd r eserves "revision s" or major changes fe.g., from presidential to parliamen tary, from bicamera l to unicameral) for a constituent assembly or a constitutional convention.
SEC. 3. The Congress m ay, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Methods by which a constitutional convention may be called.
A constitutional convention may be called for the purpose of proposing an amendment to, or revision of, the Constitution in two ways, namely: (1) Congress by two-thirds vote of all its members may call a constitutional convention; or (2) Congress by a majority vote of all its members (in case neither the 3/4 nor. 2/3 vote can be mustered) may toss the ques tion to ca ll a constitutional convention to the electorate in an election. {Sec. 3.) The question
Sec. 4
ART. XVII. - AMENDMENTS 0}{ REVISIONS
511
shall be decided by the majority of the votes cast in the corresponding plebiscite. (see Sec. 4, par. l.l There was no provision in the 1935 Constitution regarding this alternative of submitting to the electorate the question of calling such a convention. Meaning of constitutional convention.
AcQnstitutional conventionjs a body assembled for the express purpose of framing a ConstitutioTI;Or revising th.~. exi.sti~C'Jnstitution, or fornmlating amendments to itl for the approval of the electorate. Being t he direct representative of the people vested with the authority to draft the fundamental law of the State, its members have to be elected by the qualified voters. 2 Constitution drafted by an appointive Constitutional Commission.
The present Constitution was drafted by a Commission created under Article V of the Provisional Constitution promulgated under Procll'l.mation No. 3 issued by the President on March 25, 1986. Its members were appointed by the President pursuant to Proclamation No.9 issued on April23, 1986, "the law governing the Constitutional Commission of 1986." (see Introduction-E.) The Provisional Constitution abolished the Batasang Pambansa, the then legislative body, and vested in the President, as head of the revolutionary government, full legislative powers. The power of the President to create the Constitutional Commission and appoin t its mem· bers was r ecognized since it was never questioned in court. During the period of martial law, the President himself proposed the approved amendments to the 1973 Constitution which were submitted to the people for ratification. The Constitutional Commission of 1986, by the nature of its functions, was no different from a constitutional convention with elected members, and it, therefore, possessed the same statu s and powers. (see IntroductionE .)
SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor.later than -.fnety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a m~ority of the votes cast in a plebiscite which shall
V.G. Sinco, op. cit., p. 43. p. 50.
1
2Ibid.,
51 2
TEXTBOOK ON THE PHIU PPI NE CONSTITUTION
Sec. 4
be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. Ratification by the people.
Rqtif'ication means the direct approval by the people of the amendment to, or re vision of, the Constitution . It is the final a ct t o make a ny change in the Constitution valid as part thereof. This power of ratification upholds the principle that "sovereign ty r esides in the people." (Ar t. II, Sec. 1.) In order that the amendment or r e\"ision proposed by Congress or by a constitutional convention or by the people thr ough initiative may be valid as part of the Constitution, the same must be ratified by a majority of the votes cast in a plebiscit e (see Art. V, Sec. 1. ) called for t he purpose. The plebiscit~ must be held not ea rlier than 60 days nor later than 90 days after the a pproval of such amendment or r evision or certifi cation of the Commission on Elections of the sufficiency of the petition, as the ca se may be . (Sec. 4.) The minimum period of 60 days is deemed adequa te to provide the voters sufficient infor mat ion a nd time for intelligent consideration or study of the proposed change or revision . The constituent body may fix t he date within t he period prescribe d when the people may act. The time limit of 90 days prevents undue delay in the holding of the plebiscite. I - cOo -
1 The suffici ency of the period dur i ng whi ch a mendments ar e s ubmjtted to the people before they vot e either to a ffirm or r eject depends on the complexity and intricacy of t he que~tions presented. (Al mario vs. Alba, 127 SCRA 69, Jan. 25, 1984.)
514
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Sees. 2·4
SEC. 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number ofvctes shall serve for six years and the remaining twelve for three years. Term of office of Senators, Representatives, and local officials first elected.
This is provided in the above section. The elections for members of Congress were held s.i.multaneously on the 2nd Monday of May, 1987. (Sec. 1.) H ence, they will have a term of office of five (5) years ending on June 30, 1992. The effect of the second paragraph is that beginning 1995 and every three (3) years thereafter, there will be an election for twelve (12) Senators with a term of six (6) years. The Senate, like the Constitutional Commissions (Art. IX.), is a continuing body.
SEC. 3. All existing laws, decrees, executive orders, procla· mations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. All existing laws, etc., remain valid until amended, repealed or (evoked. Section 3 (together with Sections 10, 11, and 15.) seeks to prevent any disruption in the orderly functioning of government. It does not apply to laws, etc., inconsistent with the new Constitution which are automatically deemed repealed upon its ratification. Neither does it apply to secret and unpublished decrees, if any, issued by the former President under his martial law powers and Amendment No. 6 t o the 1973 Constitution. Being unknown, they cannot be considered part of the laws of the land. It is a standard provision of proposed n ew constitutions to provide for the continuing efficacy of existing legislationa not inconsistent with the proposed fundamental law to ensure the continuity and stability of government operations during the period of t ransition and. to insure t hat vested rights and existing ohligations derived thereunder are protected and observed.
SEC. 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate.
Sec. 5
ART. XVIII . - T RANSITORY PROVlSl ONS
515
Renewal or extension of existing treaties or international agreements.
Section 4 r ecognizes the validity of existing treaties or international agreements enter ed into by the Philippine government. H owever, th ose which have not been ratified can only be renewed or extended with the concurrence of a t least 2/3 of a ll the members of the Senate.
SEC. 5. The six·year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of electioDB, here~y extended to noon of June 30, 1992. /, The first regular elections for the Presiie'nt and Vice-President under this Constitution shall be held the second Mon day of May, 1992.
on
Six-year term for incumbent President and Vice-President extended.
Section 5 assumes that th1:1 incumbent President and Vice-Preside nt were duly elected in the February 7, 1986 election held under the 1973 Constitution which provided a six-year term of office. For purposes of synchronization of elections, the term is ext.,ended to noon of June 30, 1992. The term of office of t he President a nd Vice-President who will be elected in the first election for said positions under the new Constitution sh a ll begin at s aid time and date followin g their election which sha ll be held on t he 2nd Monday of May, 1992. Section 5 is one of the controversial provi sion$ which generated heated debates both inside and outside the Constitutional Commission and were raised as issues against the ratification of the new Constitution. There is, however , no dispute on the legal power of the Comm iss ion, being an independent body, to fix the term of office of t he incumbent President and Vice President. · Those who a rgued for a n ew presidential election claimed that: (1) Proclamation No. 3 is specific that the incumbent P resident and Vice-President took over the reins of government through a revolution "in defiance of the p rovisions of the 1973 Constitution ." To effect a tra nsition to constitutional government, the holding of elections at all level s wa s necessary; (2J To hold on to power wi thout any electoral mandate would be violating the principle that in a republican and d emocratic state , sovereignty resides in the people and all government authority emanates from them, which is provided both in the dra ft Constitution a nd the 1973 Constitution;
(3) To fix their t erm of office would in effect constitutionalize a r evolution without the benefit of an election:
fil 6
TEXTBOOK-ON THE PHILIPPINE CONSTITUTION
Sec. 5
· 4J They were t!lected under the 1973 Constitution but they were not proclaimed under said Constitution and the laws then in force. By aboli shing the Batasang P ambansa and establishing a revolutionary government, they were barred from invoking the results of the February 7, 1986 "sna p" presidential election and thereby abandoned t heir right to a fix ed term. With the establishment of the constitutional government under the new Constitution, their term of office would automatically come to an end; (5) To grant a fixed term to the incumbent President and Vice-President would be immor al, the Constitutional Commission being an appointive body, and would make it vulnerable to attack on its independence; and (6) Holding of elections for President and Vice-President was a major key to political stability and the high costs of election should not be given as an excuse. It would settle once and for all any doubt as to whether or not they really won in the election. Among the arguments given in support of Section 5 a re as fo llows: (1) The revolutionary government established after the February 7, 1986 election cannot be equated with other revolutionary governments established through armed r ebellion without absolutely any legal claim to power. It was orought about by an election regularly called under an existing Constitution and by a peaceful revolution. The incumbent President and Vice-President assumed offi ce on the basis of their having won in t h at election, deriving their power to go\·ern from t h e people themselves; (2) The revolutionary government adopted practically all the provisions of the 1973 Constitution. In providing "for an orderly transition to a government under a new Constitution ... Proclamation No. 3 contemplates a transition from one constitution to another. There is no mention at all in Proclamation No. 3 of a Presidential a nd Vice-Presidential election; (3) The revolution that installed the incumbent President and VicePresident is a unique one-· without parallel in the history of mankind. It was witnessed not only by the Filipino people but by the whole world . It took place because of the electoral cheating described as "unparalleled in its fraudulence" which was likewise witnessed not only by t he Filipino people but by the whole world. It took place because the Filipino people were convinced that the incumbent President a nd Vice-President duly won the election. It was a "people's revolution" in the t ruest sense; (4) The majority of the Filipino people believed that the former President lost in the "snap" election as shown by the continuous public accept~ ance and support given to the provisional government without any resistance whatsoever from the people and by its recognition and acceptance by the community of n ations. Section 4 does not grant a term to the incumbent President a nd Vice-President; it merely affirms a hi storical fact; (5i Although the members of the Constitutional Commission that drafted the new Constitution were appointed by the incumbent President, the fact i.s that they were appointed pursuant to t he provisions of Proclamation No.9, upon nomination of "political parties, civic, religious, ethnic, or other sectoral
Sees. 6-8
ART. XVTTI. - TRANSITORY PROVISIONS
517
groups or by individual citizens." It is publicly known that the incumbent President never interfered in any way with the work of that b'Jdy; and (6) If the people really desired a new presidential and vice-presidential election, they would vote against the new Constitution. The claim that without such an election the government would continue to be unstable was based on conjecture.
SEC. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened. Transitory legislative power of President.
I
:'
I
Section 6 is merely a confirmation of the 14gislative powers recognized as already existing in favor of the incumbeni. .,President by virtue of the issuance of Proclamation No. 3 promulgating th~Provisional Constitution. As head of the revolutionary government, and ·there being no legislative body, Section 1 of Article II of the Provisional Constitution conferred sole legislative authority on the President. It provides: "Until a legislature is elected and convened under a new Constitution, the President. shall con· tinue to exercise legislative power." Both provisions make it clear tha t the legislative power of the incumbent President shall terminate upon the convening of the First Congress.
SEC. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (2), Section 5 of Article VI of this Constitution. Appointment of nominees to sectoral seats.
Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation. The manner of choosing the sectoral representatives during the transition period was not left to Congress because of the desire of the Constitutional Commission to have sectoral representation implemented right away.
SEC. 8. Until otherwise provided by the Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area. Metropolitan Authority may be constituted.
Under Section 11, Article X, Congress may, by law, create special metropolitan political subdivisions subject to a plebiscite with the compo-
5 18
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Sees. 9-11
nent cities and municipalities retaining their basic autonomy. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Until such law is enacted, the President may constitute the Metropolitan Authority in Metropolitan Manila. It shall be composed of the original four (4) city mayors and thirteen (13) municipal mayors in the area. Six (6) municipalit ies (Pasig, Mandaluyong, Makati, Marikina, Muntinlupa, and Las Piiias) have since become cities. Novaliches in Quezon City is now a city. The Metropolitan Manila Development Authority (MMDA) created by R.A. No. 7924 , which took effect on March 22, 1995, replaced the former Metro Manila Authority (MMA).
SEC. 9. A sub-province shall continue to exist and operate until it is converted into a regular province or until its component municipalities are reverted to the mother province. Sub-provinces to continue to exist and operate.
Sub-provinces are essentially extensions of the r egular provinces. They automatically assume the regular status of provinces once they meet the requirements prescribed by law. (see Art. X, Sec. 1.) They may be abolished by Congress by reverting it~ component municipalities to the mother provinces as provided by law.
SEC. 10. All courts existing at the time of the ratification of this Constitution shall continue to exercise their jurisdiction, until otherwise provided by law. The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress. Existing courts to continue.
Pursuant to this provision (1) The Supreme Court and lower courts existing at the time of the ratification of the new Constitution shall continue to exercise their jurisdiction unless otherwise provided by law; and (2) The provision of th e existing Rules of Coutt, judiciary acts and procedural laws not inconsistent with the new Constitution shall continue in force unless subsequently a mended or repealed by the Supreme Court (in the case of the Rules of Court) or Congress.
SEC. 11. The incumbent Members of the Judiciary shall continue in office until they reach the age of seventy years or become incapacitated to discharge the duties of their office or are removed for cause.
Sees. 12-13
ART. XVIII. ·-TRANSITORY PROVISIONS
519
Incumbent members of the judiciary · to continue in office. This section allows members of the judiciary at the time of the ratification of the new Constitution to continue in office until they reach the age of 70 years or become incapacitated to discharge their duties. They may, however, be removed for cause. Pending the ratification of the new Constitution, the power to remove judges of lower courts was possessed by the Supreme Court (see Art. VIII, Sec. 11.) and members of the Supreme Court were removable only by the President for any of the causes which are grounds for impeachment. (see Art. XI, Sec. 2.)
·sEC. 12. The Supreme Court shall, within one year..a.fte~_tbe ratification of this Constitution. adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. Adoption of a systematic plan to expedite resolution of pending cases in courts. Section 12 takes cognizance of the huge backlog of cases pending in regular courts as well as in special courts and quasi-judicial bodies particularly in the regular courts. Such a systematic plan has assumed a crucial urgency as the number of cases filed in courts continues to increase through the years. (see Art. III, Sec. 16; Art. VIII, Sec. 15(1].) The Supreme Court is given a period of one (1) year from the ratification of the new Constitution to adopt for itself and the lower courts the plan. It is not clear whether the time frame of one (1) year applies also with respect to a similar plan to be adopted for all special courts and quasijudicial bodies.
SEC. 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable. Legal effect of lapse of maximum period for rendering judicial decision. Under Section 11(1), Article X of the 1973 Constitution (now Sec. 15{1), Art. VIII.), "the maximum period within which a case or matter shall be decided or resolved from the date of its submission shall be 18 months [now
24 months] for the Supreme Court, and unless reduced by the Supreme
520
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Sees. 14-15
Court, 12 months for all inferior UowerJ collegiate courts and th r ee (3) months for all other inferior [lower] courts." Section 13 r equires the Supreme Court to determine the legal effect of the lapse, before the ra tification of the new Constitution , of the applicable periods without the corresponding decision or resolution having been r endered. The new Constitution makes the periods mandatory with res pect to cases or matters filed after its effect i,·ity. (see Art. VIII, Sec. 15Ll] ; see however , Sec. 14, infra. )
SEC.I4. The provisions of paragraphs (3) and (4). Section 15 of Article VIIl of this Constitution shall apply to cases or matters . filed before the ratification of this Constitution, when the applicable period lapses after such ratification. Where applicable period for rendition of judicial decision lapses after ratification of Constitution.
Section 15(1), Article VIII prescribes the mandatory maximum periods within which cases or m atters must be decided by the various courts. It refers to cases or ma t ters filed after the effe ctivity of the new Constitution . Section 14 ma kes it clear that paragraphs (3) and (4) of Section 15, Article VIII likewise apply to cases or matters filed before the ratification of the new Constitution when the a pplicabl e period lapses after such ratification.
SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or b ecome incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years, including s ervice before the ratification of this Constitution. Incumbent members of the Constitutional Commissions to continue in office.
In t he case of the members of the judiciary, t hey shall continue in office until they reach t he age of 70 years unless they become incapacitated or be removed for cause. (Sec. 11.) Under Section 15, t he incumbent members of t he Gonstitutional Commissions sh all continue in office for one (1) year after t he ratification of the new Constitution unless t hey are sooner removed for cause or become incapacitated. A m ember appointed to a new term is not allowed to serve longer than seven (7) years, including service before t he r atifica tion of t he new Constitution.
Sees. 16-17
ART. XVIII. -TRANSITORY PROVISIONS
521
SEC. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retire· ment and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivi· sions, instrumentalities, or agencies, including governmentowned or -controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation. tendered in line with the existing policy, had been accepted. Right of separated civil service employees and career officers.
Section 16 applies to employees who were separated from the service not for cause but as a result of the reorganization mentioned and career ')fficers whose resignations tendered in line with the existing policy have been accepted. They are given the option to avail of the separation pay and the retirement and other benefits accruing to them under the law or to be considered for employment in the government.
SEC. 17. Until the Congress provides otherwise, the Presi· dent shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President ofthe Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commis· sions, one hundred eighty thousand pesos each. Annual salaries of constitutional officers.
The annual salaries provided for constitutional officers above may be increased or decreased by Congress subject to the following restrictions: (1) President and Vice-President. - their salaries shall not be decreased during their tenure and any increase shall take effect only after the expiration of the term of the incumbent during which such increase was approved (Art. VII, Sec. 6.); (2) Members of Congress. -increase in compensation shall take effect only after the expiration of the full term of all the members approving such increase (Art. VI, Sec. 10.);
522
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Sees. 18-20
' 3) Members of the Judiciary. - their salaries shall not be decreased but they may be increased during their continuance in cffice (Art. VIII, Sec. 10 . .1; and (4) Members of the Constitutional Commissions. -their s alaries shall not be decreased but they may be incr eased during their tenure. (Art. IX, ASec. 3.)
SEC. 18. At the earliest possible time, the Government shaH increase the salary scales of the other officials and employees of the National Government. Increase of salary scales of other officials and employees.
Section 18 "balances" the increase in the salaries of constitutional officers. (Sec. 17.) It is a directive to the government to upgrade the salaries of the officials and employees of the national government at the earliest possible time, that is, it should study right away the sala ry scales so that the salary increases could be implemented, if possible, at once. (see Art. IX, B-Sec. 5. )
SEC. 19. All properties, records, equipment, buildings, facilities and other assets of any office or body abolished or reorgan· ized under Proclamation No. 3 dated March 25, 1986 cr this Constitution shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. Disposition of properties, records, etc.
Under this section, all properties, records, equipment, buildings, facilities and other assets of any office or body abolished or reorganized shall be transferred to the office or body to which its powers, fun ctions and responsibilities substantially pertain. Note that the provision does not mention the personnel of the aboli shed or r eorganized office or body.
SEC. 20. The first Congress shall give priority to the determination of the period for the full implementation of free public secondary education. Full implementation ot free public secondary education.
Under Section 2, Article XIV on Education, the State is manda ted to establish and maintain a system of free public education in the elementary and high school levels. Free public elementa ry education has long been implemented. Congress is directed by Section 20 to give priority to the
Sees. 21-23
ART. XVIII. -TRANSITORY PROVISIONS
523
determination of the period for the full implementation of free public secondary education. In other words, the Constitution intends that full implementation be made as soon as possible when the finances of the government permit it.
SEC. 21. The Congress shall provide efficacious procedures and adequate remedies for the reversion to the State of all lands of the public domain and real rights connected therewith which were acquired in ,;olation of the Constitution or the public land laws, or through conupt practices. No transfer or disposition of such lands or real rights shall be allowed until after the lapse of one year from the ratification of this Constitution. Reversion to State of illegally acquired public lands and real rights connected therewith. Section 21, in effect. declares as null and void all acquisitions of lands of the public domain and real rights connected therewith in violation of the 1973 Constitution and the public land laws or through corrupt practices. (see Sec. 26.) Congress is mandated to provide by law efficacious procedures and adequate remedies for the reversion to the State of all said properties. Their transfer or disposition within one (1) year from the ratification of the new Constitution is prohibited. The period of one ( 1) year is deemed a sufficient time within which Congress can enact the law mentioned.
SEC. 22. At the earliest possible time. the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program. Expropriation of idle or abandoned lands.
The State is mandated to undertake an agrarian reform program founded on the right of farmers and regular farm workers who are landless, to own directly or collectively, the lands they till. To this end, it shall encourage and undertake the just distribution of all agricultural lands. (Art. XIII, Sec. 4.) Section 22 refers to private agricultural lands which are idle or aban· doned as may be defined by law. The government shall expropriate them at the earliest possible time for distribution to the beneficiaries of the agrarian 1·eform program.
SEC. 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.
TEXTBOOK ON THE PHILIPPINE CONSTITU'l'lON
Sees. 24-25
Compliance by advertising companies with minimum Filipino ownership requirement.
Under Section 11(2), Article XVI, only Filipino citizens or corporations or associations at least 70% of the capital of which is owned by such citizens shall be allowed to engage in advertising industry. Advertising entities affected by the requirement are given a maximum period of five (5) years from the ratification of the Constitution to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement.
SEC. 24. Private armies and other armed groups not recognized by duly constituted authorities shall be dismantled. All ·p aramilitary forces including Civilian Horne Defense Forces not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, con· verted into the regular force. Private armies and other armed groups to be dismantled.
The constitu tional mandate has become necessary in view of numerous cases of human rights abuses and other illegal acts attributed to such armed groups as well as paramilitary forces including Civilian Home Defense Forces (CHDF). Most CHDF were barangay captains and members. They were organized by the military during the previous regime to help fight insurgency. In many instances in the past, these armed units were utilized for partisan purposes. However, paramilitary forces including CHDF, where appropriate (i.e., they meet the stan dards and requirements, after they have been properly screened and trained to make it consistent with the citizen armed force) s hall be converted into the r egular forces in the Armed Forces of the Philippines, for they can help the latter in dealing with the insurgency problem and protecting the people particularly in far-flung areas of the country. The Con~titution recognizes the natural right of the people to defend themselves against dangers to their lives and property. The "vigilante" concept, however, must be "consistent with the citizen armed force established in this Constitution." (see Art. XVI, Sec. 4.) This means that the mann(~r of citizens defense must be provided by law.
SEC. 25. After the expiration in 1991 of the Agreement be· tween the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Sec.26
ART. XVI!I. -TRANSITORY PROVISIONS
525
Requirements for allowing foreign military bases in the Philippines.
The Constitution gi\·es cognizance to the validity and term of effectivity of the 1947 R.P.-U.S. Military Bases Agreement (MBA) which expired in September 16, 1991. The. Constitution, by Section 25, recognizes and honors this agreement. After 1991, foreign military bases, troops or facilities shall be allowed only under the following requirements or conditions: ( 1) The terms thereof are contained in a treaty duly concurred in by the Senate; 1 (2) When Congress so requires, the treaty must be ratified by a majority of the votes cast by the people in a national referendum held for that purpose; and (3) The agreement is recognized also as a treaty by the other contracting party. The MBA was an executive agreement entered into between the President of the Philippines and the President of the United States. But while it is a treaty as far as the Philippines is concerned because it was ratified by the Philippine Senate. it was a mere executive agreement as far a;;: the United States is concerned because it was never ratified b:'· the Cnited States Senate. An executive agreement does not require legislative concurrence. It is binding only upon the heads of States entering into them. (see Art. VIII, Sec. 4[2].) Thus, all disbursements under the MBA for the Philippines have to be approved by the U.S. Congress. A treaty, on the other hand, requires the concurrence of the legislative body to b~ valid and effective. It is an international agreement binding upon the States as parties thereto. (see Art. VII, Sec. 21.) Section 25 is clear that the MBA as an executive agreement must terminate in 19~1 beyond the sole power of the President on her own exclusive authority except in the form of a treaty with the United States which requires concurrence by our Senate.
SEC. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the· Congress may extend said period. A sequestration or freeze order ~hall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered :The Philippine Senate, in Senate Resolution No. 141, dated S4;!ptember 16, 1991. rejected the proposed Treaty of Friendship, Cooperation and Security allowing U.S. military bases in the Philippines.
526
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Sec. 26
with the proper court. For orders issued before the ratification of this Cons titution, the corresponding judicial action or pro· ceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or pro· ceeding shall be commenced "";thin six months from the issu· ance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. Sequestered or frozen properties.
By sequestration, property is pro-..isionally taken into custody pending determination of its ownership. In relation to wealth proved to be ill-gotten, the property will be confiscated in favor of the government. The purpose of a freeze order is to prevent the unauthorized or unlawful dispo·s ition of contested property. (see Art. XI, Sec. 15.) A sequestration or freez e order is to be distinguis hed from a search wa rrant. The latter may be issued only by a judge and only upon showing of a probable cause. (see Art. III, Sec. 2.) Under Executive Order No. 1 (May 12, 1986) which created t he Presidential Commission on Good Government (PCGG), the said agency is empowered to sequester or freeze all ill-gotten assets and properties in the Philippines of the deposed President and his immediate family, r elatives, business associates, dummies and agents. This authority shall remain to be operative for not more than 18 months after the ratification of the new Constitution. The period may be extended by Congress if demanded by the national interest as certified by the President. In any event, after ratification , any such order shall be issued only upon showing of a prima facie case, and the order and the list of the sequestered or frozen properties shall be forthwith registered with the proper court. If no corresponding judicial action or proceeding is filed within six (6) months from ratification or issuance, as the case may be, the sequestration or freeze order is deem ed automatically lifted. The PCGG has been charged with violations of human and property rights and other unconstit utional acts in a number of cases reaching up to the Supreme Court in pursuing its t ask to r ecover alleged ill -gotten wealth by the former President, his relatives, and cronies. From the viewpoint of the PCGG, extraordinary process is required to recover suspected ill-gotten wealth as it does not involve a simple case of malversation of public funds or graft; incriminating documents obtained by t he government "speak of grand larceny, of the plunder of an entire nation - an offense , unfortunately, which does not appear in our statute books. Exis ting laws s uch as the Anti-Graft Law did not anticipate a crime of such magnitude and cannot cope with a series of acts that involve so many persons, here and abroad, and which touch ed so many States and territorial units. Were the PCGG to give previous notice and conduct a hearing before it could issue a
Sec. 27
ART. XVIII. - TRANSITORY PROVISIONS
527
writ of sequestration, the ill-gotten wealth sought would probably disappear before the scheduled date of h earing." 1 An aggr ieved pa r ty is not without any legal reme dy since he can invoke judicial processes to have his property released.
SEC. 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for t he purpose and sha ll supersed e all previous Constitutions. T h e foregoing proposed Constitution of the Republic of the Philippines was a pproved by the Constitutional Commission of 1986 on the twelfth day of October Ninet een hundred a nd eightysix, and accordingly signed on the fifteenth day of October Nine teen hundred and eighty-six at the Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures are h ereunder affixed. Effectivity of the new Constitution.
The 19fl7 Constitution took effect immediately upon its ratification by a ,..majority of t he votes cast in a plebiscite called for the purpose held on ··· February 2, 1987. Its ratification was a nnounced on Feb:t~a ry 11, 1987 by Proclamation No: 58. 1 The rat ification has the effect of completely repealing all previous Constitutions - the 1935, 1973 and the Provisional Constitutions. It also marked the establishment of a new Republ ic which was folt'owed by t he full restoration of democratic ins titutions with the election of members of Congress on May 2, 1987, provincial, city and municipa l officials on J anuary 18, 1988, and barangay officials on March 28, 1989. Legally, the new Constitution superseded only the Provisional Constitut ion becaus e it was the only Constitution then in force and effect. However, t here were people who still claimed t hat the 1935 Constitution or the 1973 Constitution was still in forct. -· oOo --
1According to Chairma n Jov ito R. Salonga in a speech before the Ateneo College of Law on the •Practical Legal Aspect~; of Recovering Ill -Gotten Wealth," Aug. 25 , 1986. 1 0fficially, the new Constitution wok effect on February 11, 1987. Section 27, however, is very clear that the "Constitution shall t~tke- effect immediately upon its ratification" which took place on February 2, 1987, the day of the plebiscite . wh en the votes were cast. Proclamation No. 149 (Jan. 24, 2002) declares Fe bruary 2 of every year as Constit ution Day, making its cele bration as a non-working h oliday.
ORDINANCE* This last part of the Constitution apportions the seats of the House of Representatives of the Congress of the Philippines to the different legislative districts in provinces and cities and the Metropolitan Manila area in accordance with t he number of their respective inhabitants, as follows :, METROPOLITAN MANILA AREA: Manila, six (6); Quezon City, four (4); Caloocan City, two (2); Pasay City, one (1); Malabon and Navotas. one (1); San Juan and Mandaluyong, one (1); Marikina, one (1); Makati, one (1); Pasig, one (1); Paranaque, one ( 1); Las Pinas aad Muntinlupa, one (1); Pateros and Taguig, one (1 ); Valenzuela, one ( l) L REGION I ! Abra, one {1); Benguet with the City of Baguio, two (2); Ilocos Norte with Laoag City, two (2); llocos Sur, two (21: La Union, two (2 ); Mountain Province, one ( 1); Pangasinan with the Cities of Dagupan and San Carlos, six (6) REGION II: Batanes, one (1); Cagayan, three •3); Ifugao, one (1); lsabela, four (4); Kalinga-Apayao, 2 one ( 1); Nueva Vizcaya, one (1 ); Quirino, one ( 1)
REGION III: Bataan, two (2 ); Bulacan, four 14 ); Nueva Ecija, with the Cities of Cabanatuan, Palayan and San J ose, four (4); Pampanga with Angeles City, four (4); Tarlac, three (3); Zambales with Olongapo City, two (2) REGION IV: Aurora, one ( 1); Batangas, with the Cities of Batangas and Lipa, four (4); Cavite with the Cities of Tagaytay, Cavite and Trece Martires, three *The areas comprised within each legislative distr ict are omit ted. 1 Makati, Pasig, Muntinlupa, Mandaluyong, Marikina, Las P ii'las, Paranaque, Taguig, and Valenzuela are now citie11. Makati and P araiiaque now have two (2) legislative districts. The number of representatives will have to he increased. R.A. No. 8535 creates the City of Novaliches in Quezon City but its creation was rejected by the people in a plebiscite. :!They are now two (2) separate provinces. 528
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(3); Laguna with San Pablo City, four (4); Marinduque, one (1); Occidental Mindoro, one ( 1); Oriental Mindoro, two (2); Palawan with Puerto Prince sa City, two (2); Quezon with Lucena City, four (4); Rizal, two (2); Romblon, one (1)
REGIONV: Albay with Legazpi City, three (3); Camarines Norte, one (1); Camarines Sur including the Cities of Naga and lriga, four (4); Catanduanes, one (1); Masbate, three (3); Sorsogon, two (2) REGION VI: Aklan, one (1); Antique, one (1}; Capiz including Roxas City, two (2); Iloilo, five (5); Iloilo City, one (1); Negros Occidental, with the Cities of San Carlos, Cadiz, Bago, La Carlota, and Silay, six (6); Bacolod City, one (1) REGION VII: Bohol, with Tagbilaran City, three (3); Cebu, with the Cities of Danao, Lapu-Lapu, Mandaue, and Toledo, six (61; Cebu City, two (2); ~egros Oriental, with the Cities of Bais, Canlaon, and Dumaguete, three {3J; Siquijor, one (1) REGION VIII: Leyte, with the Cities ofTacloban and Ormoc, five (5); Southern Leyte, one (1); Eastern Samar, one (1); Northern Samar, two (2); Samar with Calbayog City, tw<' (2) REGION IX: Basilan, one ( 1); Sulu, two (2); Tawi-Tawi, one (1); Zamboanga Del Norte with the Cities of Dapitan and Dipolog, three (3); Zamboanga Del Sur, with Pagadian City, three (3); Zamboanga City, one (1) REGION X: Agusan del Norte, with the City ofButuan, two (2); Agusan del Sur, one (1); Bukidnon, three (3); Camiguin, one (1); Misamis Occidental with the Cities of Oroquieta, Ozamiz and Tangub, two (2); Misamis Oriental with Gingoog City, two (2); c·agayan de Oro City, one (1); Surigao Del Norte with the City of Surigao, two (2) REGION XI: Davao del Norte, three (3); Davao Oriental, two (2); Davao Del Sur, two (2); Davao City, three (3); South Cotabato with General Santos City, three (3); Surigao Del Sur, two (2)
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REGION XII: Lanao Del Norte with Iligan City, two (2); Lanao Del Sur with Marawi City, two (2); Maguindanao with Cotabato City, two (21; North Cotabato, two (2); Sultan Kudarat, one (1) The Ordinance also provides: "Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the reappointment herein made. Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph '3 1, Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province wa~ created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. Sec. 4. This Ordinance shall be appended to the Constitution proposed by the 1986 Constitutional Commission, and shall be submitted to a plebiscite simultaneously with such Constitution, and shall take effect upon its ratification by a majority of the votes cast in such plebiscite. Adopted, October 16, 1986." -oOo-
