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Public Trial

2016-10-29T17:00:00.000-07:00

Every trial of a case, whether criminal or civil, must be public to assure the people desirous to observe that justice is afforded to all the parties before the court in keeping with their right to a fair and impartial trial.

In criminal prosecutions, the accused is not only entitled to a speedy trial, but at the same time, speedy disposition of his case, not only before the trial court, but also before a court of appellate jurisdiction.

A trial is said to be public when the proceeding is open to the general public, but precluding the idea, however, that everyone of the public be accommodated. This constitutional requirement of a public trial is duly observed if a reasonable number of the public is permitted to attend under ordinary circumstances. Therefore, secret trials are not authorized, except only when the accused makes a request and in the opinion of the court, the public should be excluded in the interest of decency and morality. (Garcia vs. Domingo, 25 July 1973; 52SCRA 143)

In the a fore cited case of People vs. Domingo, the Supreme Court declared that the trial must be made public, then laid down the criterion of what constitutes a public trial, as follows:

"It possesses that character when everyone who is interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is no ban on such attendance, His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. There is a well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency and public morals".

The Supreme Court held: it suffices to satisfy the requirement of a trial being public if the accused could "have his friends, relatives and counsel present, no matter with what offense he may be charged".

Impartial Trial

2016-10-28T21:40:00.000-07:00

An impartial trial as an essential element of due process contemplates one that is impersonal and unbiased where the judge acts with such cold neutrality, consistent with that high degree of judicial statesmanship required of an impartial magistrate. Within the bounds of judicial ethics, a judge is required to render a just decision that is completely free and devoid of any "suspicion as to its fairness" and unquestioned in its integrity, and at the same time, free from any interest, pecuniary or otherwise, in the outcome of the case before him.

The judge, like Caesar's wife must always be above suspicion.

Right to Speedy Trial

2016-10-20T05:47:00.000-07:00

      Speedy trial does not mean that upon arraignment of the accused charged for the commission of an offense, the court would then compel the prosecution to proceed with the trial if the fiscal is not ready to present the evidence for the State and the accused is not entitled to demand immediate trial under such circumstances. Neither will the court order the accused to proceed with the trial whenever he is not ready to present his evidence and the prosecution is not likewise entitled to ask the court to order the accused to present his evidence.

Speedy trial means one that could proceed with the least possible delay with the court fully satisfied that it had given the parties every opportunity to present their respective evidence, consistent with the time-honored doctrine that justice always requires prompt dispatch of judicial business, free from capricious, vexatious and oppressive delays within the bounds of procedural due process.

      In other words, speedy trial simply means a "trial conducted according to the law of criminal procedure and rules and regulations, free from vexatious, capricious and oppressive delays."

      It must, however, be understood that no general principle of law fixes the time within which a trial must be held to satisfy the requirement of a speedy trial. The right to a speedy trial actually is a relative term; for under proper circumstances, delays in the trial of a case cannot always be avoided and this matter is eventually addressed to the sound discretion of the court, depending upon the circumstances of such case.

      Finally, where the constitutional right of the accused to a speedy trial is violated, as for instance the trial of his case is delayed for more than one year due to postponement requested by the fiscal, and approved by the court, the accused is entitled to have the case dismissed.

      Thus, in People vs. Obsania ( L-2447, 29 June 1986) the Supreme Court, through Associate Justice Fred Ruiz Castro, citing the case of People vs Cloribel, declared that the dismissal such as ordered by the court in the case at bar, is not truly, a "dismissal", but an acquittal. For it was entered upon the insistence of the accused on his constitutional right to a speedy trial, and by reason of the prosecution's failure to appear on the date of the trial. This dismissal amounted to an acquittal because the failure of the State to prosecute presupposed that the government did not have a case against the accused who, in the first place, is presumed innocent.

Right to Counsel

2016-10-18T05:27:00.001-07:00

The right of an accused to the service of counsel is a constitutional right.

Chief Justice Moran in People vs. Holgado (895 Phil. 752) stressed the importance of this right, thus:

"In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may b e convicted not because he 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. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de officio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own.

Right to be Informed of Accusation

The right of the accused to be informed of the nature and cause of the accusation is necessary to enable him to prepare for his defense. He should be given the necessary data as to why he is being proceeded against; and that he should not be left in the unenviable state of peculating why he is made the object of prosecution.

Consequently, it becomes necessary that the complaint or information be sufficiently clear; that is to say, the allegations be stated not in general terms, but rather with definiteness and particularity to prevent an possibility of his not being fully cognizant of the implications of the crime he is being made to answer. The purpose here is to enable him to prepare for trial.

Right to be Heard

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Part of the basic requirement of due process is the right of the accused to be heard by himself. This requires that the accused be given:

1) a fair and impartial trial;
2) before a competent court; and
3) given the opportunity to adopt every and all legal means for his defense; and
4) judgment rendered based on the evidence adduced during the trial.

This right of the accused to be heard by himself and counsel contemplates the complimenting rights granted him under the constitution, among them:

   1) That he has the right to be present and defend in person and by counsel at every stage of the trial from the arraignment to the promulgation of the sentence, except in cases of light offenses, when it is sufficient that his counsel may appear for him and in his own behalf;

2) He must be present during his arraignment and enter his plea; except in light offenses, the presence of his counsel is sufficient;

3) Where the accused appears during his arraignment without counsel, the court will give him one, if he so desires; or if he wants to secure his own counsel, the court will grant him time to do so.

Arraignment

Arraignment is that stage in a criminal prosecution which consist of the reading to the accused in open court of the complaint or information charging him for an offense an delivering to him a copy thereof, including a list of witnesses, and asking him whether he pleads guilty or not as charged.

The Rules on Criminal Procedure as amended, provides for the arraignment of the accused before the court where the court where the complaint or information has been filed or assigned for trial. The arraignment must be made in open court by the judge or clerk by furnishing the accused of the complaint or information with the list of witnesses, reading the same in the language or dialect known to him and asking him whether he pleads guilty or not guilty.

Under the Rules, the accused is required to be present at the arraignment and must personally enter his plea. Both the arraignment and the plea must be made of record, but a failure to enter of reord shall not affect the validity of the proceedings.

Where the accused refuses to plead, or makes a conditional plea of guilty, a plea of not guilty shall be entered for him. This is necessary for the simple reason that if the accused refuses to enter his plea, no issue is raised in the criminal case and the court would then be powerless to proceed with the trial since there is no issue to try.

Complaint/Information Defined

      Complaint is a sworn statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of law violated.

      Information is an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court.

Right to Due Process

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Section 14.(1) 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 or counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial trial, to meet the witnesses face to face, and to have compulsory process to secure evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

This constitutional prohibition against holding a person to answer for a criminal offense without due process of law is one of the most important safeguards of man's inalienable rights to life, liberty and property.

In all criminal prosecution, due process requires that there be a law creating or defining clearly the acts constituting the offense, a court of competent jurisdiction, accusation in due form, motive and opportunity to answer the charge, trial according to the settled course of judicial proceedings, and a right to be discharged unless found guilty. In other words, procedural due process embodies the following essential requisites:

1) a competent court or tribunal;
2) having jurisdiction over the person or subject matter;
3) defendant or party is given the opportunity to be heard; and
4) judgment is rendered after trial based on the evidence adduced, which proves the guilt of the accused beyond reasonable doubt.

Presumption of Innocence

A person charge for the commission of a crime is presumed to be innocent until the contrary is proved, that is to say, until his guilt is proven by evidence beyond reasonable doubt. The purpose of the rule is not to protect the guilty but to prevent the conviction of innocent persons.

Proof Beyond Reasonable Doubt

Proof beyond reasonable doubt is that degree of proof whi9ch produces in the mind of an unprejudiced person, that moral certainty or moral conviction that the accused did commit the offense charged. It does not mean such degree of proof as excluding the possibility of error or mistake; it is sufficient if it produces absolute or moral certainty required by law. Moral certainty springs from such proof as will satisfy the judgment and conscience of the trial judge, as a reasonable man, that the defendant is guilty of the crime charged.

Reasonable doubt is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict the person charged for the commission of an offense, but moral certainty is required as to every proposition of proof requisite to constitute an offense.

During the preliminary investigation of an accused charged for the commission of an offense, the State is required only to show prima facie evidence against the accused that he did not commit the crime charge. However, when the information is actually filed before the court in order to afford the accused a fair and impartial trial, the prosecution may not now rely on mere prima facie case against the accused; it must prove the guilt of the accused beyond reasonable doubt. However, the accused may not merely rely on the weakness of the evidence of the prosecution, but must rely on the strength of his own defense for his acquittal.

Right to Bail not Affected by Suspension of Writ

2016-10-15T20:51:00.000-07:00

Right to Bail not Affected by Suspension of Writ

   The Supreme Court has laid down the rule that the accused is entitled to demand all the constitutional safeguards and privileges essential to due process.

   The right of an accused charged for a crime to bail is not affected by the suspension of the privilege of writ of habeas corpus. The Supreme Court, in a case, observe that nowhere in the law or the constitution is it provided expressly or impliedly that the suspension of the privilege of the writ, which is an executive act, carries with it the suspension of the right of the accuse to bail, a provision not too difficult to incorporate in the constitution or in the statute if such be the legislative intent. Were the rule otherwise, then it must necessarily follow that the constitutional presumption of innocence in favor of an accused is meaningless, therefore, a dead letter law. An accused would find himself under detention and continues to be so merely because the executive has suspended the privilege of the writ of habeas corpus under circumstances legally justifiable, consequently, such suspension of the writ would, in effect, result to a judgement of conviction. For he could not secure his release because the law would not permit inquiry into the legality of his detention under the executive act, but definitely not because he was presumed to be guilty. Such rule not only wrecks havoc and violence to this constitutional right to be presumed innocent until his guilt is proven beyond reasonable doubt, but also to his right to bail where the evidence against him relative to his guilt is not strong.

Excessive Bail Prohibited

   The prohibition against excessive bail is necessary to render effective the constitutional right of an accused to bail. For a person under detention would continue to be deprived of his liberty if the bail required under the law is excessively beyond his financial means to afford.

   The question as to whether the bail is excessive is a matter of judicial discretion. The law requires the judge to fix the bail for the accused, and in the consideration of this matter, the judge may take into account the following factors:

1. Financial ability of the accused to file bail;
      2. Nature and circumstances of the offense;
3. Penalty of the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. The weight of evidence against the accused;
7. Probability of the accused appearing for trial;
8. Forfeiture of other bonds;
9. The fact that the accused was a fugitive from justice when arrested; and
   10. The pendency of other cases in which the accused is under bond.

Cases where Bail is not Required

2016-10-15T20:18:00.000-07:00

Cases where Bail is not Required

   Bail is not required when the law and the Rules on Criminal Procedure do not so provide. Thus, when a person is in custody, for the period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof, or the proceedings on appeal. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty days of preventive imprisonment.

Accused Entitled to Bail

   Whenever the accused is in custody, that is when he has been legally arrested and delivered to the proper judicial authority for trial, he is entitled to bail as a matter of right, except if he is charged with a capital offense or an offense which under the law at the time of its commission and at the time for the application for bail, is punishable by reclusion perpetua to death and the evidence against him is strong.

   This particular rule has drastically modified the old concept of the right of the defendant to bail as a matter of right, without consideration at what stage in which this right may be availed of, whether after conviction before the city or municipal court or before conviction when the case is pending before the Regional Trial Court.

   However, even under the new rule when the defendant is charged with a capital offense, he may yet be entitled to bail as a matter of right provided that the evidence against him is not strong. Moreover, when the evidence against him is strong, the accused may still be entitled to bail, not as a matter of right, but by leave of court. Thus, when the defendant is charged for treason ( an offense punishable with a capital punishment) and his further confinement in prison would affect or impair his health, then he may still be entitled to bail with leave of court.

When Evidence is Strong

   The determination of whether or not the evidence of guilt of an accused is strong is a matter addressed to the sound discretion of the court. By the very nature of things, this discretion may be exercised only after the evidence is submitted to the court at the hearing.

   The hearing here contemplated when there is an application for bail is summary in character which means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail. The court does not sit to try the merits or to enter any inquiry as to the weight that ought to be allowed to the evidence for or against the accused nor will it speculate on the outcome of the trial or on what further evidence may therein be offered or admitted. The court confines itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable maximum the amount of corroboration particularly on details that are essential to the purpose of the hearing.

Right to Bail

2016-10-15T04:58:00.000-07:00

Right to Bail

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Concept of Bail

Bail is the security given for the release of the person in custody of law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions hereinafter specified. Bail maybe given in the form of corporate surety, bond, cash deposit, or recognizance.

Recognizance is an obligation of record, entered into before some court or magistrate duly authorized by law to take, with the condition to do some particular act, the most usual condition in criminal cases, being the appearance of the accused for trial.

Object of Requiring Bail

The object of requiring bail is to relieve the accused from imprisonment until conviction, and yet secure his appearance in court for trial. as to the defendant, the purpose of the bail is to have himself released from the custody of the law, and, as to the government, to secure that the defendant who is released will appear before the court in which his appearance is required.

Punishment for Capital Offenses

A capital offense as provided under the Rules on Criminal Procedure, as amended, is an offense, which, under existing laws at the time of its commission and at the time of the application to be admitted to bail may be punished by reclusion perpetua or by death.

The right to bail, including the right to recognizance is guaranteed by the Constitution even if the privilege of the writ of habeas corpus is suspended subject to two exceptions:

1) The right to bail shall not be available where the accused is charged for a crime for which the law imposes the penalty of reclusion perpetua and death -

2) The evidence of guilt is strong.

Rights of Persons Under Investigation

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Rights of Persons Under Investigation

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or 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 and their families.

Any person under investigation for the commission of an offense shall have the following rights:

1. Right to Remain Silent

   While the accused is under custodial investigation he has the right to remain silent and his silence shall not be taken against him as evidence, otherwise his right of silence would be an illusion.

2. Right to counsel

No custodial investigation shall be conducted unless in the presence of counsel engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself or of anyone in his behalf. The right to counsel maybe waived but the waiver shall not be valid unless made with the assistance of counsel and in writing. Any statement obtained in violation of this procedure, whether exculpatory or inculpatory, in whole or in part shall be inadmissible in evidence.

3. Right against torture

This particular right has prevented the authorities of extracting evidence against the accused by the use of "third degree" methods, indicative of police brutality. Thus, confession secured by force in violation of sub-section 3, section 12 of Article III of the Constitution "shall be inadmissible in evidence against him", since such evidence vitiates "the free will".

4. Right against secret detention

Secret detention, since the medieval ages, is resorted to by police authorities in their inability to obtain evidence against an accused charged for a crime necessary for his prosecution before the courts. This right is a further protection against a person arrested for the commission of a crime from all kinds of torture, force, violence, threat, intimidation or such similar means that vitiate free will.

The rights of a person protected under section 12 (1) by expressed constitutional mandate cannot be waived unless made in writing and in the presence of counsel.

In order to give life and meaning to the protection of the rights protected against violation under section 12 of Article III of the constitution , it is likewise provided that the law shall provide for penal and civil sanctions for these violations; including compensation to and rehabilitation of victims of torture or similar practices, and their families. Of course, all the offenses punishable under the Revised Penal Code have their corresponding civil liability, with the exception of abandonment, violation of religious worship and contempt of court, where no civil liability is provided.

All these constitutional safeguards against violation of the rights of a person charged for a crime may be ummed up under the Miranda doctrine laid down by the United States Supreme Court in Miranda vs. Arizona (384 US 436)

   The accused, under this doctrine, must be warned prior to any questioning that he has the right to remain silent, that anything that he says can be used against him in the court of law, that he has the right to the presence of any attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at the trial no evidence obtained as a result of such interrogation can be used against him.

   These constitutional safeguards have adopted the Miranda doctrine which favorably favors the accused under investigation which are more rigid as a guaranty against their violation. To make these constitutional constraints more effective, it us provided that statements of the accused obtained illegally are inadmissible in evidence against him during trial, whether secured under "third degree" by the use of glaring lights during investigation, or secured by multiple process of reading and translating the questions and translating again the answer making one's confession unsafe as a basis of conviction, or those extracted by force during the detention of the accused incommunicado.

PhiIippine Constitution- ARTICLE II DECLARATION OF PRINCIPLES AND STATE POLICIES

2016-10-14T16:31:00.001-07:00

A. PRINCIPLES

This article in the 1935 Constitution uses the phraseology "Declaration of Principles" only. The new Constitution has added the phrase "and State policies".

This portion of the Constitution might be called the basic political creed of the nation. It lays down the policies that the government is bound to observe. With the exception of Section @ which refers to the duty of citizens to serve the State, these provisions prescribe the fundamental obligations of the government, particularly the legislative and the executive departments as its policy-determining organs.It is incumbent on the people to demand fulfillment of these government duties through the exercise of the right of suffrage. But indirectly some of these principles may aid the court in determining the validity of statutes or executive acts in justiceable cases.

Where the Government through the Executive Department fails in its duty to enforce these provisions, the remedy provided therefore is not judicial but political. The people here is called upon to avail of the remedy through the ballot, not through the court.

This is not to say that the provisions did not have their usefulness in litigation. The same also obligated the judiciary to be guided by the same provisions in the exercise of the power of judicial review.

Section I. The Philippines is a democratic and Republican State. Sovereignty resides in the people and all government authority emanates from them.

This article is a reproduction of Article II, Section I of the 1935 Constitution, maintained under Section I, Article II of the 1973 Constitution.

The requirements of a democratic and republican state are as follows:

a) Cardinal rights embodied in the Bill of Rights;
b) The principle that ours is a government of laws and not of men;
c) The principle that the State cannot be sued without its consent;
d) The principle that the legislature cannot pass irrepealable laws;
e) Election through popular will;
f) The principle that an office is a public trust;
and
g) The rule against undue delegation of legislative power.

SOVEREIGNTY

-is the supreme power of the state to command obedience from all the inhabitants, whether citizen or alien. This power resides in the people.. Therefore, they have the right to constitute their own government, define and provide the powers it may exercise within legal limits. This right may be exercised directly or indirectly.

Direct exercise of sovereignty

It is the people that exercises actual sovereignty through what is called the popular will - the election of the people's representatives in a clean and honest electoral process.

The aforecited is in accord with the constitution mandates of a government that is representative or republican in nature and a Philippine state that is representative democracy or a republican state.

Indirect exercise of sovereignty

The constitutional mandate that sovereignty resides in the people does not mean the Filipino people govern themselves directly exercising acts of government - like the making of laws,enforcing the same or deciding cases involving life, liberty or property. The making of laws, is left to the lawmaking body composed of the people's representatives chosen through the electoral process; enforcing the laws is left to the executive department; and deciding cases is left to the courts.

The people exercise this acts of government through the officers and employees constituting the government set up by them as mandated by the Constitution.

People's Rights to Change their Public Officers

This declared constitutional principle is best exemplified in the systems of recall, referendum and initiative. All these have made possible greater participation of the people in the affairs of government. This is further evidenced by the constitutional provisions on sectoral representation, multi-party systems and the right of the people to amend the constitution which they, themselves, ordained and promulgated.

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Section 2 is a substantial reproduction of the contents of Section 3, Article II of the 1935 Constitution. This particular proviso is divided into three parts:

a) Renunciation of war as an instrument of national policy;
b) Adoption of the generally accepted principles of international law as part of the law of the land;and
c) Adherence to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Renunciation of war as a national policy

In renouncing war as an instrument of national policy expressly declared in the Constitution, the Philippines affirms the 1934 and the 1971 Constitutional Convention's belief that an effective means of outlaw war is to prohibit the same in the Constitution.

This particular proviso contemplates, as it was contemplated under the 1935 Constitution, defensive war, not aggressive war. This was inspired by the Kellog-Briand Pact of 27 August 1928 which renounces wars of aggression.

The power to wage a defensive war is an inherent part of sovereignty. The explains the reason why the Constitution makes defense of the state the prime duty of government under section 4 of Article II of the charter. At the same time, section 22 of the same article, empowers the Congress, by a vote of two-thirds of both Houses, in joint session assembles, to declare the existence of a state of war.

Adoption of international law

The second part of the provision is the constitutional declaration that the Philippines conforms to the generally accepted principles of international law in its relation with others states. This simply means that whenever a state is admitted into the family of nations, it becomes incumbent upon it to observe these accepted principles within its jurisdiction and, at the same time, enforce them before its courts involving the same, in the absence of any statutory law, provisions of any treaty, or any provision of the Constitution to the contrary. These principles of international law that form part of the laws of the Philippines which are generally accepted by civilized states include those rules on diplomatic and foreign State immunity, those provisions of the United Nations Charter to which member nations conform, including the implementing international agreements. Treaties therefore, entered into by the Philippines with other states must confirm to generally accepted principles of international law which the Constitution declares as a part of the laws of the land.

International relations

The third part of the provision as a declared constitutional principle - a policy of "peace, equality, justice, freedom, cooperation and amity" is a necessary consequences to the Philippine adherence to the law of nations requiring that states

a) should be at peace with each other;

b) should settle their international disputes or difference not by war but by peaceful means;

c) that war may be resorted to only when disputes can no longer be settled by diplomatic channels; to retorsion, reprisal, and other means short of war, and in extreme cases by war, but in this case, still the conduct of war must be governed by rules - the laws of war.

Regardless of their respective national ideologies, member countries of the international community are equal, free, irrespective of their size, population and wealth, consequently, each one is equally entitled to the rights and subject to the obligations of membership in the United Nations. It follows that policies of the Philippines in its relation with other states as enshrined in the Constitution must be consistent with the rules and principles of international law which seeks peace and amity among nations.

Consequently, it is thus provided in the Constitution that the Philippines pursues and independent foreign policy that will maintain national sovereignty, territorial integrity, national interest and the right of self-determination. The national policies then must be directed towards the observance of international cooperation, considering that at this stage of world history, there exists an ever growing interdependence among independent states.

Supremacy of the Civilian Authority

Section 3 Civilian authority is at all times supreme over the military.

Supremacy of civilian authority over the military is inherent in democratic and republican states. Superiority of civilian authority over the military is regarded as an essential constituent of the fabric of political life.

The President of the Philippines is always a civilian. At the same time, he is the Commander-in-Chief of all the Armed Forces; the army, the navy and the air force, including the Cap;ital command. Appointment to the higher echelons in the armed forces is vested in the President, a fact that precludes the emergence of the military take over in the affairs of the civil government. For the role of the military is spelled out clearly in the Constitution.

Role of the Armed Forces

The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

Prime Duty of Government

Section 4. The prime duty of government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

It is the right of a state to exact compulsory military service of its citizen and such exaction does not violate the principle of involuntary servitude. This proviso was incorporated in view of the recognized inadequacy of a voluntary system both in terms of military effectiveness and in terms of equality between the rich and the poor.

Maintenance of Peace

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

For the Filipino people to secure unto themselves and their posterity the blessings of independence and democracy as envisioned in the Preamble of the 1987 Constitution, it is necessary for the Government -

1) to maintain peace and order;
2) protect life, liberty and property; and
3) promote the general welfare

The maintenance of peace and order rests on the military establishment, to be complemented by the judiciary for the protection of life, liberty and property within the context of due process. The promotion of the general welfare requires the cooperative efforts of those in government in the attainment of the greatest good for the greatest number.

Separation of Church and State

Section 6. The separation of the church and state shall be inviolable.

The union of the church and the state is prejudicial to both. The provisions of the 1987 Constitution that compliments the principle of separation of the church and state are found under-

1) Section 5, Article III which provides, among other things, that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof;

2) Section 29 (2) of Article VI which prohibits the appropriation of public money or property to be applied, paid, or employed directly or indirectly for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, or any priest, preacher, minister, or dignitary as such, except when such priest, preacher, minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium;

3) Section 28 (3) of Article VI which exempts charitable institutions, churches, and parsonages or convents appurtenant there, mosques, non-profit cemeteries, and all lands, buildings and improvements actually, directly, and exclusively used for religious, charitable or educational purposes from taxation;

4) Section 28 (3) of Article IX-C which prohibits the registration of religious denomination and sects.

Religious freedom, according to Justice Laurel, as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of its influence in human affairs.

Notwithstanding the principle of separation of church and state, still both can work together in harmony to serve the welfare of the people. According to the late Jaime Cardinal Sin: the Church and the State are two entities that play an important role in our life. Let us keep them separate, by all means,but let us not interpret separation as segregation. Let us believe that they can work hand in hand, separate but parallel like two tracks on the railroad leading to the same destination.

The 1987 Constitution of the Republic of the Philippines-ARTICLE I- NATIONAL TERRITORY

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EXTENT
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its territorial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. ( Article I, 1987 Constitution)

Historical definition of the national territory

The Philippines is a catenation of more than 7,100 islands and islets lying southeast of Asia a little above the equator almost directly north of the East Indies. A hundred miles north lies Taiwan; on the northwest is the China Sea and on the east is the Pacific Ocean. Downs south lies the Celebes Sea and the waters of Borneo.

The Philippine mainland stretches from north to south about a thousand miles with a total land area of about 114,830 square miles, one-half of which is covered by forest. It has a coastline of 10,850 statute miles which is more than two times larger than that of the United States

Philippine Territory Under the 1935 Constitution

The 1935 constitution does not actually define what constitutes the national territory of the Philippines.

Under international law, the national territory of a given state is co-extensive with the territory over which it can legitimately exercise its sovereignty or jurisdiction.

Section, 1 Article I of the 1935 Constitution makes reference to treaties with respect to the determination of what constitutes the national territory of the Philippines. These treaties are:

(1) The Treaty of Paris of 10 December 1898
(2) The Treaty of Washington of 7 December 1900;
(3) The Treaty between Great Britain and the United States of 2 January
1930; including
(4) "all territory over which the present government of the Philippines
Islands exercise jurisdiction."
Section 1 of Article I of the 1935 Constitution defines the national territory of the Philippines as comprising -

"all the territories ceded to the united States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article II of said treat together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present government of the Philippines Islands exercises jurisdiction."

The above-quoted provision does not give the delineation with respect to the extent of the territories embraced in what the 1935 Constitution speaks as comprising the national territory or all the territory over which the present government of the Philippine Islands exercise jurisdiction.

The National Territory Under the 1973 Constitution

The delegates to the 1971 Constitutional Convention found it necessary that in the new constitution they are drafting, they must define exactly what constitutes the national territory of the Philippines.

They deliberately avoided reference to the Treaty of Paris, the Treaty of Washington and the Treaty between the United States and Great Britain to obliterate any vestige of colonialism.

The national territory if the Philippines was divided into three categories:

(1) The Philippine Archipelago;
(2) The other territories belonging to the Philippines; and
(3) The Philippine waters, air space and submarine areas.

The national territory of the Philippines under the 1973 Constitution reads as follows:

Section 1. The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or title, including the terrestrial sea, the air space, the subsoil, the seabed, the insular shelves, and the other submarine areas, over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimension, form part of the internal waters of the Philippines."

The National Territory Under 1987 Constitution

Like the 1973 Constitution, the national territory of the Philippines is divided into three groups:

(1) The Philippine archipelago;
(2) All other territories over which the Philippines has sovereignty or
jurisdiction; and
(3) The internal waters of the Philippines.

a) The Philippine Archipelago

The Philippine archipelago was defined in the treaty of Paris between the United States and Spain on 10 December 1898 and in the treaty of Washington on 7 November 1900.

The Committee on National Territory in the 1971 Constitutional Convention, as contained in its Report No. 01, delineated the expanse of the Philippine archipelago as follows:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a large or giant rectangle will emerge, measuring about 600 miles in width, and over 1,200 miles in length. Inside this giant rectangle are the 7,00 islands comprising the Philippine Islands. From the east coast of Luzon to the eastern boundary of this huge rectangle is the Pacific Ocean, there is a distance of over 100 miles. From the west coast of Luzon in the western boundary if this giant rectangle is the China Sea, there is a distance over 150 miles.

Upon the signing of the Treaty of Paris, Spain ceded to the United States the "Philippine archipelago" which she had been occupying for over three hundred years.

The delineation with respect to the limits of the Philippine archipelago under the 1935 Constitution based on the Treaty of Paris, was later modified by the Treaty of Washington between the United States and Great Britain of 7 November 1900 and the Convention of 2 January 1930 in order to include the islands of Sibutu, that of Cagayan de Sulu and the Mangasee islands.

The Batanes islands were not included in the Philippine acrhipelago as set forth under the Treaty of Paris. Geographically and historically, however, the Batenes always formed part of the Philippine archipelago.

Chairman Quintero of the Committee on National Territory of the 1971 Constitutional Convention, opined that Batanes has always been part of Philippines by "historic right", adding that the jurisdiction of the Philippines over islands is based on "legal title" perfected in 1962.

By legal title means all accepted legal modes of acquiring territory. And, the Philippines, under the 1973 Constitution may lawfully acquire territory not covered by Article 1.

b) All other territories over which the Philippines has sovereignty or jurisdiction

The phrase "all other territories belonging to the Philippines by historic right or legal title" in the 1973 Constitution has been deleted, and it not reads "all other territories over which the Philippines has sovereignty or jurisdiction." The reference to the old treaties were deliberately eliminated. It is sufficient to use the term "Philippine archipelago" with all the islands and waters embraced therein, to support our fluvial and other boundaries contemplated under the Convention of the Law of the Sea.

c) The Internal Waters of the Philippines

The internal waters of the Philippines under the 1987 Constitution is provided under the last sentence of the provision on national territory as follows:

"The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."

This particular proviso relating to the internal waters of the Philippine embodies the so-called archipelagic principle as adopted by the Law of the Sea, to make the Philippines, with its many islands and many seas considered as one political unit for reasons of history, law, geography, economics and security.

Under the archipelagic theory as constitutionalized in Article I of the new charter, the waters around, between and connecting the islands of the archipelago irresoective of their breadth and dimensions, form part of the internal waters of the Philippines.

Thus, the 7,100 islands comprising out terrestrial domain should be considered one integrated whole instead of as separate components to be each provided with its won territorial sea, as this would uses of other states to the prejudice of our country.

The baseline from which the territorial sea is to be determined consists of straight lines joining appropriate points of the outermost island of the archipelago. Connecting lines are, therefore, drawn to enclose the entire archipelago.

Without prejudice to the rights of the republic of the Philippines over its territorial sea and continental shelf, Presidential Decree No. 1599 promulgated on June 11, 1978, established the exclusive economic zone of the Philippine extending to a distance of two hundred nautical miles beyond and from the baseline from which the territorial sea is measured. Under this decree, the Philippines shall exercise in the exclusive economic zone the following:

a. Sovereign rights for the purpose of exploration and exploitation, conversation and management of the natural resources, whether living or non-living, both renewable and non-renewable, of the seabed, including the subsoil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the resources of the zone such as the production of energy from the water, currents and winds;

b. Exclusive rights and jurisdiction with respect to the establishment and utilization of artificial islands, offshore terminals, installation and structures, the preservation of the marine environment, including the prevention and control of pollution, and scientific research;

c. Such other rights as are recognized international law or state practice. (Sec. 2, P.D. 1599)

d) The Air Space

The air space refers to that part of the air extending into space over the land and water territory of the Philippines based on Articles 1 and 2 of the Convention on International Aviation adopted in Chicago in 1944.

e) The Subsoil

The subsoil has reference to the soil found under the surface soil based on Section 1, Article 2 of the Convention on the Territorial Sea and Continuous Zone adopted in Geneva in 1958.

f) The Seabed

The seabed refers to the land below the sea that holds it extending from the low-water mark into the sea based on the same article of the Convention on the Territorial Sea and Continuous Zone.

g) The Insular Shelves

The insular shelves known in international law as the continental shelves are the submarine platform that form part of the seabed which is united to the mainland of adjacent or coastal island sloping gently from the low waterline into open sea.

Objectives Defining the National Territory

Three basic fundamental political concepts are apparent in defining the national territory with unmistakable clarity. These are:

First, to fix the territorial jurisdiction of the Philippines for purposes of possible future conflicts it may have with other states;

Second, to make the people know something of their territorial home; and

Third, to enable the Philippines to protect its territorial integrity to prevent any attempt at any time for any portion of the country to secede particularly the Muslim population.

The 1987 Constitution of the Republic of the Philippines-PREAMBLE

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"We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution."

The preamble constitutes the introductory part of the Constitution. It is not, however, a part of the body of the fundamental law; consequently, it does not create powers, private rights and privileges and obligations in addition to those defined and designated in the body of the charter itself.

The preamble may be resorted to whenever there is doubt as to the meaning intended in any of the provisions of the Constitution. It clearly identifies:

a) The sovereign power that ordains the Constitution, at the same time
b) Lays down the primary objectives for which the charter itself was ordained.

Certain words in the preamble of the 1973 Constitution have been changed.

The phrase "Divine Providence" now reads "Almighty God";
The phrases "and aspiration" and "our patrimony" are now used;
The words "common good" replace "general welfare";
Instead of "liberty", the preamble now uses "freedom";
The word "truth" is added;
The word "love" is also included.

The preamble envisions two basic fundamental objectives. These are:

1) It ordains the building of a just and humane society; and
2) The establishment of a government that shall embody

a) 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 and
democracy under
i) the rule of law and
ii)a regime of truth, justice, freedom, love, equality, and peace.

The term patrimony should be understood to mean the country's human resources, natural resources, cultural heritage and the people's intelligence in arts, sciences and letters.

The Development of the Philippine Constitution II

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HISTORICAL DEVELOPMENT OF THE PHILIPPINE CONSTITUTION

The Philippine written constitution came about late in the eighteenth century when Filipinos began to realize the need for putting forth the foundation upon which to anchor their government, not only for their generation but for the generations to come.

Sometime in 1896, the first known constitutional project was drawn by Emilio Jacinto in his Cartilla and the Sanggunian Hukuman, the Charter and Code of Laws of the Katipunan.

Jacinto's effort was followed later, when, on November 1, 1897, Artacho and Ferrer prepared the provisional constitution for the Philippine Republic, which was approved in Biak-na-Bato. On April 12, 1898, the provisional constitution was succeeded by another constitution for the Island of Luzon, prepared by General Macabulus and others.

The most significant landmark in the development of constitution-making in the Philippines was the adoption of the Malolos Constitution by the Malolos Congress on Novemb er 29, 1899 under the Malolos Revolutionary Government with General Emilio Aguinaldo as its president.

The Malolos Constitution was patterned after the American and other modern constitution. However, this constitution was inspired somehow by the following constitutional projects:

a) The Code of Laws and Morals of the Katipunan of 1896 (Cartilla and the Sanggunian Hukuman) drawn up by Emilio Jacinto;

b) The Provisional Constitution of Biak-na-Bato;

c) The Constitutional Program of the Philippine Republic drawn by Apolinario Mabini;

d) The Provisional Constitution of Mariano Ponce, including the --

e) Cartilla and the Sanggunian-Hukuman, likewise drawnup by Emilio Jacinto

This is not to say that even centuries before, there were no effort to put, not in constitution form, but in a code all the rules, customs, and traditions under datus or sultans govern the inhabitants of their respective barangays. Thus, history records the Maragtas Code, promulgated by Datu Maragtas sometime about the year 1434, including the Code of Kalantiaw in 1433, long before Christopher Columbus discovered America. These Codes, however, are being refuted by present-day-pre-historians.

THE 1935 CONSTITUTION OF THE PHILIPPINES

The Philippine Legislature enacted a bill on May 4, 1934 calling for the election of delegates to a constitutional convention to draft the Constitution of the Philippines in compliance with the directive contained in the Tydings-McDuffie Law, otherwise known as the Philippine Independence Law.

The elected delegates to the constitutional convention convened and immediately began to work in earnest and later enacted with a vote of 177 to 1, the draft of the Constitution of the Philippines on 8 February 1934. Subsequently on 19 February 1934, the delegates signed the new charter.

On 14 May 1934, the constitution was submitted to the Filipino people who, with a resounding vote of 1,214,646 strong, against those numbering 44,963, gave their unmistakable approval to the new fundamental law of the land.

As required under the Philippine Independence Law, the constitution provided for a republican form of government which was later submitted to President Roosevelt for approval by a committee composed of Commonwealth President Manuel L. Quezon, Convention President Claro M. Recto, and delegate Manuel Roxas. The Constitution was approved and on 23 March 1935, President Roosevelt certified as to its conformity with the mandate of the Philippine Independence Law.

The Constitution contained provisions patterned after relevant and applicable principles of the United States constitution and those of the Malolos Constitution. It became the Constitution of the Commonwealth Government automatically on 27 February 1945 which ushered the Republic of the Philippines as an independent state.

The 1935 Constitution underwent three important amendments involving the ordinance required to be appended to it pursuant to the Philippine Independence Law; the change from the unicameral to the bicameral legislative body; and the Parity Amendment.

The proposed change from the unicameral to a bicameral legislative body contemplated a modification with respect to re-election of the President and Vice-President, and the creation of the Commission on Elections.

The Parity Amendment involved an amazing and unpredictable legal concept granting unto American citizens equal rights with the Filipinos in the exploitation of the natural resources, a provision that no American legislator would ever grant such similar parity to Filipino citizens.

The 1973 Constitution

Just as enacted laws must yield to the dynamic changes of time, so must written constitutions give in to similar dynamic changes in the ever-growing complexities in social, economic and political developments in the national life of a people.

Those provisions of the existing constitution which have thus become subversive to the interest and welfare of the sovereign people had to be overhauled to make them responsive to the felt necessities of the time.

Accordingly, Congress in joint session passed Joint Resolution No. 2 in 1967, calling for a constitutional convention for the purpose of proposing amendments to the 1935 Constitution. Resolution No. 2 was later amended under Joint Resolution No. 4.

Later, Congress passed an implementing law, Republic Act No. 3914 on 17 June 1967 which was subsequently repealed on 24 August 1970 by Republic Act No. 6132, otherwise known as the Constitutional Act of 1971. This law called for the election of 320 delegates to the Constitutional Convention schedule for 10 November 1970.

One of the important reasons for calling the constitutional convention was to enable the sovereign Filipino people to make their own constitution for posterity, one that they could cherish and very well proud of.

The Philippine Constitution of 1935 was made by a colonial people denied of their right to decide for themselves what was best for them, submitted for approval to the President of the United States, a colonial power.

At this stage in point of time, there was need to discard the outmoded provisions of the 1935 Constitution that were no longer in tune to the social, economic, and political demands of the time, including the onerous and lopsided conditions imposed upon an almost helpless people and country devastated by was not of their own making.

The 320 delegates to the Constitutional Convention were chosen during the election held on 10 November 1970 to the Congressional resolution calling the Constitutional Convention and the enabling Constitution Convention Act of 1971. The number of the basis of proportional population representation.

On June 1, 1971, the convention began its task of rewriting the 1935 Constitution, was greatly influenced by the Malolos Constitution. After 15 months of laborious work, the convention approved the proposed Constitution with 173 delegates voting in favor and 15 against. Twenty-seven delegates were absent at the signing of the new charter on 30 November 1972. One delegate, Jose N. Nolledo, refused to sign the new charter.

The Constitutional Convention was headed by its President Carlos P. Garcia, former president of the Philippines. Unfortunately President Garcia, three days after he assumed his office died and he was succeeded by President Pro-Tempore Sotero H Laurel who exercised the power and functions of the presidency until th Convention elected it's new president, Delegate Diosdado Macapagal. who was also President of the Philippines. He served as such convention president until the final adjournment of the Convention.

In addition to the Convention President, the following officers were also chosen: a President protempore; four Vice-Presidents, twelve Floor leaders; a Chairman of the steering Committee and a Chairman of the Sponsorship Committee. there were 53 committees in the Convention; eight committees on Admiration.

On 1 December 1972, the new Constitution was submitted to the President of the Philippines, who submitted it to citizens assemblies all over the country as mandated by the Presidential Decree No. 86, dated 31 December 197.

The President of the Philippines, on 17 January 1973, proclaimed the ratification of the new constitution of the Philippines, effective on even date, thereby superseding the 1935 Constitution.

The Provisional Constitution

Upon the installation of the Revolutionary Government under President Corazon C. Aquino, "through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines" that wrote finish to the government under President Ferdinand E. Marcos, Proclamation No. 3 was issued on 24 March 1986 providing not only for the adoption of a provisional constitution, but also for an orderly transition ton a government under a new constitution.

Both the 1935 Constitution and the 1973 Constitution were promulgated by authority of their respective Preamble. The Provisional Constitution of 1986, adopted under by virtue of Proclamation No. 3 does not contain a Preamble. The authority came from what is called the "people's power", following the Edsa Revolution of 22 February 1986.

Basis for Adoption and Ratification of the 1987 Constitution

Following the EDSA Revolution which resulted in the installation of the revolutionary government through the so-called people's power, the new president, Corazon C. Aquino, issued Proclamation Constitution otherwise known as the Freedom Constitution.

Section 1, Article V of the Freedom Constitution ordered the adoption of a new constitution from date of the Proclamation. This New Constitution will be drafted by a Commission, composed of men and women from the various sectors of society to be appointed by the President who are not less than 30 nor more than 50, all natural born citizens of the Philippines of recognized probity, known for their independence, nationalism and patriotism.

Section 5 of Proclamation No. 9, provided:

"No person shall be appointed Member of the Commission unless he be a natural born citizen of the Philippines, a qualified voter, of recognized probity, independence, nationalism and patriotism."

The Commission was required to complete its work within a short period as may be consistent with the need both to hasten the return to normal constitutional government and to draft a document truly reflective of the ideals and aspirations of the Filipino people.
(Proclamation No. 3, Section 2, Article V)

Proclamation No. 3 likewise ordered the Commission -

(a) To conduct public hearings to insure that the people will have adequate participation in the formulation of the New Constitution. (Id, section 3)

(b) That the plenary session of the Commission be made public and fully recorded, (Id, section 3)

(c) That the New Constitution be presented to the people by the Commission to the President who shall fix the date for the holding of a plebiscite; the said Constitution to be affective upon ratification by a majority of the votes cast in a plebiscite which shall be held within a period of sixty days following its submission to the President. (Id, Section 5)

On 23 April 1986, President Aquino, pursuant to Proclamation No. 3, promulgated Proclamation No. 9 constituting the "Law Governing the Constitutional Commission of 1986" directing the organization of 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."

The Commission was actually composed of forty-eight (48) members; forty-two (42) were men and six (6) were women, predominantly of lawyers; one appointee withdraw.

The Commission convened on 2 June 1986 at the Batasan Pambansa Building in Quezon City ad started working on the drafts.

The final draft of the new Constitution, after truly laborious efforts, exhaustive debates and discussion, was approved by the Constitution on Sunday night, the 12th of October 1986 with a vote of 44-2. One affixed his signature at his sickbed by his thumbmark. Two signed indicating their dissent.

The 109-page draft of the new Constitution, consisting of a preamble, 18 articles and 321 sections, was finally signed by the members in their session of 15 October 1986. The original copies in English and Filipino were submitted to the President of the Republic of the Philippines on the same day.

The Commissioners conducted information campaign and seminars practically in all provinces and cities throughout the country to acquaint the people on the various ramifications to enlighten the people when they will be called upon to vote in the forthcoming plebiscite scheduled for 2 February 1987.

The New Constitution was ratified by the people on February 2, 1987, in a plebiscite called for the purpose, thereby superseding the 1973 Constitution.

Members of the Constitutional Commission

The 1986 Constitutional Commission was composed of a president, former Associate Justice of Supreme Court, Cecilia Munoz- Palma; Vice-President; former senator Ambrosio Padilla; Floor Leader, Napoleon Rama and Assistant Floor Leader, Ahmed Domacao Alonto, and the following members: Yusuf Abubakar. Felicitas Aquino, Adolfo S. Ascuna, Jose P.S. Bengson, Jr., Joaqiun Bernas, Crispino M. De Castro, Jose Colayco, Robert R. Concepcion, Hilario G Davide, Jr., Vicente B. Foz, Serafin V.V. Guingona, Alberto M.K. Jamir, Jose B. Laurel Jr., Eulogio R. Lerum, Regalado E. Maambong, Christian S. Monsod, Teodulo C. Natividad, Jose N. Nolledo, Florenz D. Regalado, Rustico F. De Los Reyes, Jr., Francisco A. Rodrigo, Richard J. Romulo, Decoroso R, Rosales, Rene V. Sarmiento, Jose E Suarez, Lorenzo M. Sumulong, Efrain B. Trenas, and Lugum L. Uka, Bishop Teodoro C. Becani, Cirilo A. Rigos, Sister Christine O. Tan, Gregorio J. Tiongson, Wilfredo Villacorta, Bernardo M. Villegas, Minda Luz M. Quesada, Teresa F. Nieva, Edmundo G. Garcia, Blas F. Ople, Jaime S. Tadeo, Ponciano L. Bennagen, Chito Gascon, Jose Calderon.

Criticisms Against an Appointive Constitutional Commission

About the strongest argument advanced against the appointive constitutional commission to draft the new Constitution of the Republic of the Philippines may be divided into two issues:

First, the lack of independence of those appointed members if the Constitutional Commission for the simple reason that they can easily be made to toe the line consistent with the expectation of the appointing power; and

Second, the constitution that the Commission will be able to come up with will not reflect the true sentiments of majority of the Filipino people who had no hand in the selection of the respective commissioners.

Under the first issue is, of course no concrete assurance that presidential pressure may not be made to bear upon the commission members which can not be easily avoided, one way or the other. There is always that suspicion of presidential manipulation emanating from loyalty that the commissioners may feel they owe to the authority that appointed them.

On the second issue, it cannot be denied that the appointed members of the Constitutional Commission may not be representative of the people themselves who had no participation in their selection. There is the charge that most of the commissioners are financially well-off, nay millionaires who may not have interest in the welfare of the people themselves, particularly most of whom gnaw under the pangs of poverty.

No matter how valid the arguments against the appointive constitutional commission, yet such arguments can easily be offset by the advantages that can be given thereto:

Decidedly, an appointive constitutional commission is less expensive than the election of members throughout the country. This is more practical at this stage in our history considering that there exists economic and financial difficulties, aggravated by the uncertain peace and order situation obtaining in the countryside.

There is another reason in favor of the appointive commission. There is no assurance that the new Constitution to be drafted by the elected members will be better than that drafted by members of proven probity, independence, and patriotism.

Only time can tell whether the criticism against the appointive Constitutional Commission of 1986 are valid or not. Consequently, there is no call for a judgment that an elective Constitutional Commission could have done better, although it is admitted that it is more representative of the people's will.

Historical Background of "People's Power"

The events that preceded the installation of the revolutionary government by the so-called People's Power may be summarized as follows:

A snap election was held under the 1973 Constitution where Corazon C. Aquino and then President Ferdinand Marcos vie for he presidency.

On 15 February 1986, the Batasang Pambansa, in the exercise of the powers vested in it under the 1973 Constitution, proclaimed Ferdinand E. Marcos president of the Philippines in the midst of widespread protest.

On the afternoon of 22 February 1986, Minister of National Defense, Juan Ponce Enrile abd Vice-Chief of Staff of the Armed Forces, General Fidel Ramos, started a revolt against President Ferdinand Marcos and threw their support behind Corazon C. Aquino.

The Enrile-Ramos Forces were at the time entrenched in Camp Crame and Camp Aguinaldo, completely surrounded and outnumbered by the Marcos forces. But surprisingly, the civilians, all unarmed, came in hordes by the millions and surrounded both military camps to protect and rescue the Enrile-Ramos forces. The waves of humanity that rallied to assist in the revolution, made the other military elements to switch their support to Corazon C. Aquino.

Then the Air Forces switched its might over to the Enrile-Ramos forces on 24 February 1986, a fact that spelled the doom of Marcos and those of his cohorts in the Batasang Pambansa who proclaimed him president.

On the morning of the following day, 25 February 1986, Corazon C. Aquino, without the sanction of the Batasang Pambansa, was proclaimed the first woman president of the Philippines in defiance of the provisions of the 1973 Constitution.

During simple rites at the Club Filipino, Corazon C. Aquino was sworn in as President of the Philippines by then Senior Associate Justice of the Supreme Court Claudio Teehankee. Previous to this occasion, on the 15 February 1986, Ferdinand E. Marcos, was also proclaimed President of the Philippines and was sworn in as such at Malacanang by then Chief Justice Ramon Aquino. The Following evening, the Marcos family, accompanied by a large number of his supporters, went into exile to Hawaii. Marcos, however, claimed he was kidnapped by an American contingent, brought to Clark Air Force Base, instead of Paoay where he wanted to go, then was flown to Hawaii.

Considering that she was catapulted to the presidency not through the existing legal process under 1973 Constitution requiring lodging a protest either before the Batasan Pambansa or before an electoral Tribunal, President Aquino opted for a revolutionary government.

The question that may be asked: Is the government revolutionary?

The provisional constitution provided a Bill of Rights which bound the President and all the other officials of the government to respect and that the actions of the President were made subject to judicial review. At the same time, the provisional constitution vested unto the President extraordinary powers which, according to her own solicitor general, considered more dictatorial than those of the deposed dictator under the 1973 Constitution. However, the solicitor general hastened to add that President Aquino will never use them to betray the trust the people themselves reposed on her.

Under the provisional constitution, enshrined in its provisions is the superiority of civilian authority over the military. The military - those who initiated the revolution, stood four-square in support of its civilian commander-in-chief, for the first time in history- a woman.

Sources:

Aruego-Torres. The Philippine Constitution Explained
Malcolm. Philippine Constitutional Law
Gardner. Introduction to Political Science
Sinco. Philippine Political Law

Government

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CONCEPT

Government, as an element of the state, is the supreme authority that can enforce the laws of the land. It is the machinery that operates governmental activities in all their respective spheres. It is the organization vested with the right to exercise sovereign powers through which the will of the state is "formulated, expressed and realized." It is compared to a rudder which steers the ship of state.

The Supreme Court clearly defines government in the case of US vs. Dorr (2Phil 332)as the institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable man to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Government is the aggregate of authorities which rule a society."

ADMINISTRATION

Inherently related to government, it is the aggregate body of persons in whose hands the rules of government are entrusted for a time being. It is used to designate the body of officials who actually carry out the affairs and functions of government.

NECESSITY

No state can exist without an organized form of government. It is the machinery or agency that carries out the affairs and functions of government intended to secure unto the people their life, liberty and pursuit of happiness.

The ends for which government exists include whatever the collective action of men associated for the common good can do for the moral and material welfare of the community and the individual citizens who compose it, helping them to obtain the maximum that life can afford of enjoyment and to suffer the minimum life may bring of sorrow.

FUNCTION

"The two functions of government are:

1. Constituent functions are those which constitute the very bonds of society and are by nature compulsory; that is to say, public officials cannot refuse to execute or enforce them.
2. Ministrant or ministerial functions are those that are undertaken only by way of advancing the general interest of society and, by nature, merely optional. These are not exercised to govern, but to promote the happiness and well-being of the people.
Among the constituent function of government may be added the following:
a. The keeping of order and providing for the protection of persons and property from violence and robbery;
b. The fixing of the legal relations between man and woman;
c. The regulation of the holding, transmission, and interchange of property;
d. The determination of the liabilities for debt or for crime;
e. The determination of contract rights between individuals;
f. The definition and punishment for crimes;
g. The administration of justice in civil cases;
h. The determination of political duties, privileges, and relations of citizens; and
i. Dealing of the state of foreign powers; the preservation of the state from external danger of encroachment and the advancement of its international interests.

STATE DISTINGUISHED FROM GOVERNMENT

1. The state is a legal personality while government is an element of the state, the agency or machinery by which the affairs of the state are carried out;
2. A state cannot exist without government, whereas a government may exist without the state;
3. The government may change as the people dictates; but the people cannot change the status of a state as a legal person;
4. The acts of government when performed within the limits of the delegation of powers to it may be considered acts of the state; but acts of the state may not be said to be the acts of the government.

GOVERNMENT DISTINGUISHED FROM PEOPLE

1. Government is the machinery or agency through which the will of the state is formulated, expressed and carried out, whereas people are the inhabitants of the state collectively organized for whose benefit the government exists.
2. The government is the representative of the people who, as the sovereign power, may decide what kind of government they may wish to have.
3.The government cannot exist without the people but the people may exist without a government.

CLASSIFICATION

The classification of government depends upon who exercises sovereign powers, the extent of powers thus exercised, and with respect to the relationship among the three branches of government: legislative, executive and judicial.

1. As to person or persons exercising sovereign powers:

a. Monarchy where the supreme power of government is entrusted in the hands of a single person without regard to the source of his election or the nature or duration of his tenure. Monarch may either be: absolute where the monarch rules by divine right; or limited where the monarch rules under a constitution.

b. Aristocracy where the political power is exercised by a few privilege aristocrats or oligarchs.

c. Democracy where the political power is exercised by a majority of the people. It may be: Pure Democracy where the will of the people is formulated or exercised directly and immediately through the people in a mass meeting or primary assembly, or through the medium of delegates or representatives chosen to act for them. or Representative Democracy where the will of the people, through their relatively small and select body of persons, act as their representative.

d. Republic where the government derives all its powers either directly of indirectly from the people themselves, and it is administered for a limited period, or during good behavior by the persons holding their offices at pleasure. The government derives its power from the great body of people, not just from a favored class or an inconsiderable portion of it.

2. With respect to limit of power exercised

a. Unitary government where the power of control over national or local affairs is exercised by the national or central government.

b. Federal government where the governmental powers are distributed between a central government and a local government, each being supreme within its own sphere.

3. As to relation between the executive and legislative

a. Parliamentary government where the state confers upon the legislature the complete control of the administration of law.

b. Presidential where the state makes the executive independent of the legislature, both in tenure and in prerogatives, and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out s executive independence and prerogative.

4. Other forms of government

a. Military government where the government is established and administered by a belligerent in a territory of an enemy occupied by him.

b. Civil government where the affairs of the state is entrusted for their administration and direction upon the representatives chosen by the citizens.

c. Bureaucratic government where a group administrators specially trained for public service, enter the government service only after a regular course and an examination, and who serve usually during good behavior, and retire on pension.

d. Hereditary government where the state confers the powers of government upon a person, or upon an organization or organizations composed of persons standing by a certain family relation to his or their immediate predecessors.

e. De jure government
It is the legal government in all its aspects which has the support of its people and founded upon existing constitutional laws of the state. It may also refer to one established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.

f. De facto government
Here, the government takes possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. It may also designate a government established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force. And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.

TEST TO DETERMINE WHETHER A GOVERNMENT IS DE JURE OR DE FACTO

The question as to whether a particular government is de jure or de facto rests upon the validity and the ultimate success or failure of the government in question. Under what is called the selective test, a de jure government is one which legally possess the power of sovereignty which, at the time, may be lost. A de facto government is one which is really in possession of such power of sovereignty, although the possession may be wrongful or precarious.

The validity of the acts of either government depends upon its character as de jure or de facto insofar as effect is sought to be given in such acts within the territory of the state in which the government in question belongs. This distinction between the two governments, while important in constitutional and political law, is hardly of any significance in international law, since the status of government depends upon the recognition afforded to it by the government of other states.

GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES UNDER THE 1987 CONSTITUTION

Under Section 2 of the Administrative Code, the government of the Republic of the Philippines refers only to that governmental entity through which the functions of government are exercised as an attribute of sovereignty, and in this are those arms through which political authority is made effective whether they be provincial, municipal or other forms of local government like municipal corporations.

Today, under the 1987 Constitution, the Government of the Republic of the Philippines refers to the corporate governmental entity established under the new charter as adopted by the Constitutional Commission, later ratified by the Filipino people themselves on February 2, 1987 whereby the functions of government are exercised throughout the Philippines as defined and limited under its various provisions.

Sources:

Malcolm. The Government of the Philippine Island
Malcolm and Laurel. Philippine Constitutional Law
Sinco. Philippine Political Law
Bryce. Modern Democracies
Garner. Introduction to political Science

General Concepts On Constitution

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A good constitution must always serve the best interest and welfare of the people and country.This is the reason why the fundamental law must have its roots deep into the past, nurtured in the natural growth of the national life, all embracing and written in the language that faithfully expresses the sentiments and aspirations of the people.

For a constitution nurtured by the people through the years in the course of their political, social, and economic development is generally more stable, more sturdy. Consequently, all the institutions that it provides for the people constituting the natural outgrowth of their national life guarantees their stability. People enjoying the blessings of stability must not venture into experiments.

The past shall be the anchor of the development of constitutional institutions established by the sovereign people themselves. The same should be tested in the crucible of time and safeguarded by them.

The constitution must limit itself to fundamentals. By fundamentals, it means the basic foundation of the government to be organized under the constitution. It should not provide for their details, the implementation of which could be done later after the constitution is adopted and ratified by the sovereign people.

A written constitution is not intended for a specific period of time, its existence must at all times depend upon the will of the sovereign people. The government today may be democratic, but tomorrow it is dictatorial, depending upon circumstances of time and political climate.

The herein mentioned foundations of government may refer to presidential, parliamentary or semi-parliamentary or dictatorial; it maybe unitary or federal; popular or bureaucratic; bicameral or unicameral; centralized or decentralized. It may then provide for the fundamentals with respect to the allocation and distribution of powers upon the proper officials who must exercise them within their respective constitutional limitations.

It may, for instance, create the three main branches of government like the executive, legislative or judicial, but should not provide for the creation of the different bureaus and offices, define their powers and functions, prescribe qualifications, disqualifications of public officers and their salaries. All these matters should be left for determination by the respective agencies of the government thereafter established under the constitution.

The constitutional provisions for the definition of processes of government and administration should be limited to basic fundamentals. The reason for this is obvious. The development of modern technology may render these processes obsolete in time. The details of administration should also be left to the governmental agency set up for their determination.

Only ideals which are expected to be enduring for life must be briefly enshrined in its provisions.

Regardless of the language in which the constitution is written, the words and phrases therein used must be exact and precise. It is necessary to avoid the use of words or phrases that have the same meaning as another, or that these be synonymous.

Ideas embodied in the constitution should be completely satisfactory to all concerned. This is important. Where there is nationwide dissatisfaction of a constitutional provision, this would spell disaster to its very existence. Nationwide disregard of the constitution would render it useless in its force and effect. Where the constitution is not completely satisfactory, a reasonable compromise must be reached that would make possible judicious balancing of competing interests.

Ideas must be constructive, not radical in constitution-making. Superficial knowledge is always dangerous. It promotes radical ideas not fit in the domain of constitution-making.

A constitution must be brief. Only its important outline should be emphasized, its important objects designated, its minor components deduced from the nature of the objects themselves. The meaning of its provisions must be clear with definiteness and particularity. Vagueness always results in opposing interpretations of essential features of the constitution which can only give rise to unpredictable consequences.

It has been said that ambiguous expression in a constitution has been the cause of civil war and disruption of the State. Consequently, it is necessary that a constitution should be broad and comprehensive in its scope because it must outline the organization of the government for the whole state.

A constitution must have three sets of provisions. The first set deals with the framework of the established government, provides for its organizational structure, then apportions the limit of the powers of the governmental organs of the state.

In the 1987 constitution, these matters are embraced in Article VI on the Legislative Department; Article VII on the Executive Department and Article VIII on the Judicial Department.

Included are the following: Article IX on the Constitutional Commissions (Civil Service, Elections, Audit); and Article X on Local Government.

The second set deals with the people's civil and political rights rendered secure against the acts of the government itself. These include Article III on the Bill of Rights; Article IV on Citizenship; Article V on Suffrage and the provisions on economic and social rights, as well as right on education.

The right on education is distributed in Article II on Declaration of Principles and State Policies; Article XII on National Economy and Patrimony; Article XIII on Social Justice and Human Rights;
Article XIV on Education, Science and Technology; Article XV on The Family and Article XVI on General Provisions of the Constitution.

The third set deals with General Provisions, Article XVI, and those relating to Amendments or Revisions of the Constitution.

According to Gardner, a constitution consist of three constitutions, to wit:

a) Constitution of government;
b) Constitution of liberty; and
c) Constitution of sovereignty

According to Sinco, the essential substantive parts of the constitution are the following:

a) A Bill of Rights;
b) Provisions defining, distributing and limiting the powers of government; and
c) Method of Amendments.

Differences relative to parts of constitution is due to obvious reason that the people of different countries differs from each other by their respective historical origins, political institutions and ideological perceptions, including most important of all, the making of their respective written constitution.

The Development of the Philippine Constitution I

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CONCEPTUAL DEVELOPMENT

The term constitutions is generally synonymous with the phrase "organic law" which is used under the American system with reference to the enabling act, including other acts of fundamental nature in a territory.

The following are just some of the definition for constitution advance by the different authors on the subject:

According to Cooley, constitution is the fundamental law of the state, containing the principles upon which it is founded, regulating the division of the sovereign powers and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised.

Malcolm and Laurel on the other hand consider a constitution as the written instrument in which the fundamental powers of the government are established, limited and defined, and by which these powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.

Constitution is also defined by Borgeaud as the fundamental law according to which the government of the state is organized and agreeably to which the relations of individuals or moral persons to the community are determined. It may be a written instrument,a precise text or series of texts enacted at a given time by a sovereign power; or it may be the more or less definite results of a series of legislation, judicial decisions, precedents, and customs of diverse origin and of unequal value and importance.

In sum, a constitution is the fundamental law that lays down the foundation framework of government and, at the same time, provides for the machinery or agency necessary for the operation of the internal and external affairs of the state.

CONSTITUTION DISTINGUISHED FROM STATUTE

a. A written constitution is legislation emanating from the people themselves, whereas a statute comes from the representative elected by the people.

b. A constitution states general principles and defines the general framework of government and the law while a statute provides the details of the subject treated by it.

c. A constitution seeks to meet not only existing conditions, but at the same time, future circumstances, whereas, a statute confronts present conditions.

d. A constitution is the fundamental law to which all statutes must conform. Thus, where a conflict arises between them, the statute must yield to the constitution.

What purpose does a constitution serve?

A constitution provides the organizational framework of the various agencies necessary to undertake the operation of governmental activities and provides them with the necessary powers which they are to exercise within the bounds of constitutional limitations and, at the same time, define the rights which the individual citizen may exercise and enjoy.

TYPES OF CONSTITUTION

First, as to their origin:

a. Those, like the English Constitution which represents the product of growth through a long period of time;

b. Those, like the Prussian instrument of 1850 or the Japanese Constitution of 1899 or the Italian Constitution of Sardinia, all of which were granted by a ruling prince or monarch; or

c. Those like the Constitution of the United States or the 1973 Philippine Constitution which were adopted by deliberate act of the sovereign people.

Second, as to the type of government which they provide for:

a. Democratic;
b. Aristocratic;
c. Oligarchic;
d. Autocratic.

Third, as to their form:

a. Written, or
b. Unwritten.

Fourth, as to the difficulty of the amending process:

a. Flexible;
b. Rigid.

WRITTEN VS. UNWRITTEN CONSTITUTION

A. WRITTEN CONSTITUTION

Advantages of written Constitution

1. Clearness and definiteness

The provisions embodies in the constitution are prepared with care and deliberation, avoiding thereby uncertainty as to their meaning.

2. Affords protection and guarantees the stability of rights
The constitution provides protection and guarantees the stability of rights, thereby putting them beyond the danger o unpredictable and arbitrary encroachments. They cannot be easily distorted by the lawmaking body or the courts by making it conform to the demands of temporary political convenience.

3. Serves as warning lights to invasion of rights

One of the more important advantages of a written constitution is its facility of serving as a light to make known to the people the danger to their rights and liberties, violations that have become seriously eminent.

4. Serves as a rallying point during political upheaval

In the face of a political crisis resulting from the violation of the written constitution by those who wield arbitrary powers,the fundamental law becomes a rallying point among the watchful for them to band together to destroy the shackles of oppression.

Disadvantages of a Written Constitution

1. Difficulty in the amendatory process

A written constitution invariably makes it difficult to amend its provisions, thereby preventing the introduction o necessary changes in keeping with continuing and dynamic developments in the body politic. This impedes progress that must necessarily follow the tide that makes more significant expatriation in the national life.

2. Legislative initiative deterred

A written constitution lays down the declaration of principles and state policies that are difficult to change, even when some of them have become obsolete and impracticable. This discourages lawmakers from introducing measures to replace these provisions, fully cognizant of the difficulty in the amendatory process therein provided.

B. UNWRITTEN CONSTITUTION

Advantage:

1. Adaptability or flexibility

By reason of its susceptibility to modifications without difficulty, the unwritten constitution makes it much easier to make adjustments to make it conform with the demands of changing conditions in the State. This makes it easier to provide the means for meeting people's clamor for change thereby avoiding the dangers of a possible revolution. Consequently, this will discourage nationwide disobedience and disregard of the constitution.

Disadvantage

1. Unstability

There is no permanence of unwritten constitution, therefore, it becomes unstable. Since it can be altered without much difficulty, it becomes an easy subject of temporary political upheaval. In effect, an unwritten constitution possesses no more than the authority of ordinary customary law. Be in form and in substance, an unwritten law is a mere product of political evolution, not adopted for a specific time.

Sources:

Cooley. Constitutional Limitation
Borgeaud. The Origin of Written Constitution
Aruego-Torres. The New Philippine Constitution Explained

The Fundamental Law

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The new Constitution of the Republic of the Philippines was ratified on February 2, 1987. It has been translated in the regional languages of the various region in the country.This affords the people opportunity to know their constitution upon which ideals of freedom and democracy under the rule of law and a regime of justice are enshrined.

It is important that each and every Filipino will have a working knowledge of their own fundamental law of the land.

BASIC CONCEPTS AND PRINCIPLES

Definition of the basic concepts and principles are required so as to gain a working knowledge of the country's fundamental charter.

Among the terms requiring such is the state.

It is a well-accepted and universally recognized definition that a state is a community of persons more or less numerous, permanently occupying a portion of territory, independent of external control and possessing a government to which the great body of inhabitants render obedience.

Broadly, the term state designates "society" as such. Narrowly, it denotes a particular organ of society like government or a "nation" or the territory that they inhabit.

State is distinguished from a nation as follows:

a. A state is a legal concept while nation is a racial or ethnical concept.
b. A state is composed of several nations or a nation may consist of several nations.
Example: The Arab nation is composed of several independent and sovereign states which are Jordan, Arabia, Iran, Lebanon and Syria.

THEORIES ON THE ORIGIN OF STATES

Several theories indicate how the state came into being. These are:

1. Force Theory
Under this theory, the state came into existence as a result of the superior strength of a single individual or a group of men who imposed on others, thus holding them together by sheer physical power. According to this theory the state is viewed as a necessary result of man's desire for self-preservation.

2. Kinship Theory
Under this theory, the state is simply the result of the growth of the family and rested upon a community of blood relationship. This is a theory which is strengthened by recent ethnological and anthropological research.

3. Divine Theory
Under this theory, the state is regarded as a direct creation of God.

4. Social Contract Theory
This theory contemplates three distinct concepts:
First, man is naturally brutal, selfish and mean, and the state of nature as one of unmitigated rapacity, aggression and war. In such environment, man lived under "solitary, poor, nasty, brutish and short" circumstances.
Second, for man to better protect the liberties and rights which he enjoyed in his pre-political status, entered into civil society by means of a contract with his fellow human beings in which he and the others voluntarily surrendered certain of their rights and powers into the hands of a common authority.
Third, depicts man as naturally pure and good, and his condition in primitive society is one of ideal happiness. Nevertheless, because of increasing population and the growth of private property, man found it necessary to abandon his pre-political state and to substitute civil society for natural freedom.

KINDS OF STATES DEFINE

1. Tribal State is one where the people and the ruler are bound by blood kinship.

2. City-State envisions the population of a city closely associated with all the people for the common welfare.

3. Dynastic State is considered a political state comprising of land and people under the control of a dynasty through the fortunes of war and marriage.

4. Feudal State depicts a one-man rule essentially over a definite area maintaining title over all lands and collecting rents from the people.

5. Mono-National State is composed of a group of people bound together by common language, tradition,. culture, and aspirations with full cognizance of their existence as a nation, independent of external control, permanently occupying a definite territory with an organized government.

6. Multi-National State is a political aggrupation which comprises of many nationalities, each with its own government.

7. Welfare State is one in which the state is responsible for the general economic and social welfare of the greatest mass of people. In this concept, the governmental activities is held to be an essential means of making possible the attainment of the greatest good for the greatest number.

Sources:
Bruce. The American National Government, 1951
Garner. Introduction to Political Science
Kelsen. General Theory of Law and State
Schmandt and Steinbicher. Fundamentals of Government
Salmond. Jurisprudence

Free Access to the Courts

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Free Access to the Courts

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

   The time-honored doctrine that the dispensation of justice for all, regardless of creed or color, rich or poor is embodied in this constitutional mandate. Accordingly, any person no matter how poor he may be cannot be legally-

a) denied of access to judicial or quasi-judicial bodies
b) as well as adequate legal assistance

   But there are government requirements which by reason of poverty, a person may be denied access to the courts for the protection of his life, liberty, or property. The requirements of paying docket fees in filing of pleadings or service thereof; securing copies of the necessary government documents, or transcripts of records may be excessive that the party concerned may not be able to exercise his right of access to the courts or adequate legal assistance. For instance, low salaried employees, domestic servants and laborers who, in order to collect their salaries which their employers refuse or delay payment therefore, may have to resort to courts for their enforcement and yet, may not have the means to pay such filing fees, sheriff's fees or attorney's fees.

   Of course with respect to filing fees, he may be allowed to prosecute his claim as a forma pauperis or as a pauper litigant and as such, maybe exempt from paying docket fees, but not attorney's fees with respect to civil cases, necessary government documents or transcripts of record. In criminal cases, while he may be provided counsel de officio in case he cannot afford the services of counsel, he is not, however, exempt from securing necessary documents required in connection with his case.

Adequate Legal Assistance

   Aside from the fact that the court may appoint a de officio counsel should the accused in a criminal case appear without counsel, the State, in its implied duty to provide free legal assistance to citizens, the Citizen Legal Assistance Office under the Department of Justice was created.

   Six other specialized government agencies were create to extend legal assistance to indigents which include:

   a) The Bureau of Agrarian Legal Assistance under the Department of Agrarian Reform which extends legal assistance to farmers before the courts.
   b) The Free Legal Assistance Office under the Department of Labor and Employment, which extends legal assistance to workers and employees before the National Labor Relations Commission and the administrative offices of the Department.
   c) Presidential Assistance on Cultural Minorities under the office of the President which give legal assistance to cultural minorities.
   d) The Department of National Defense;
   e) The National Police Commission
   f) The Integrated National Police to give legal assistance to any policemen facing charges before the fiscals and the courts in connection with the performance of their duty, through lawyers authorized by the respective agencies.

Obligation of Contracts

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Obligation of Contracts

      Section 10. No law impairing the obligation of contracts shall be passed.

   Obligation of contract simply refers to the respective undertaking mutually agreed by the parties thereto for compliance under its terms and conditions within permissible limits provided either under the Constitution or legislative enactment - which are not contrary to law, morals, good customs, public order and public policy.

   The contracts within the protection of this constitutional provision against impairment embraces those entered into between the state, province, city, municipality or barangay, or between any of them and individual persons or entities. However, the contract which the constitution protects against impairment is a valid one. For it is well-settled doctrine that the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, and such stipulations will be the law between the contracting parties provided they are not contrary to law, morals, good customs, public order, or public policy.

   The term law includes laws enacted by the lawmaking body, ordinances of municipal corporations and executive orders of the President as well as administrative orders issued by department secretaries having the force and effect of law.

   However, the constitutional non-impairment clause cannot operate to restrict the application of the police power of the state - the power to protect the public health, the public morals and the public safety.

What Constitutes Impairment

   A law that changes the terms and conditions of a contract expressly contemplated by the parties, or its legal construction or its validity, or its discharge or the remedy for its enforcement constitutes impairment of the contract. The nature and the extent of such change is inconsequential for the reason that it is not a question of degree or the manner or cause of the change that is material;rather, it is a matter in the encroachment with respect to its obligation or dispensing with any part of its force. There is impairment of the contract if either party is absolved by the law from its performance. Impairment has also been predicated on laws, which, without destroying contracts, derogate from substantial contractual rights.

   Accordingly, any law would constitute an impairment of contract whenever its terms and conditions -

      a) are changed by such law, or
      b) by a party to a contract without the consent of the other whereby the position of the rights of the party is depreciated; or
      c) That the law deprives a party of his right of defending or enforcing the provisions of the contracts; or
      d) That it imposes or dispenses the conditions not express in the contract; or
      e) That it takes away from a party a right vested in under the contract; or
      f) That it diminishes the condition provided in the contract or it reduces the value of the contract.

Right of Eminent Domain

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Right of Eminent Domain

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

   By eminent domain is meant the superior dominion of the sovereign power over all properties within the state which authorizes it to appropriate all or any part thereof to a necessary public use upon payment of just compensation. It is a portion of sovereignty and it may be exercised by the State or its subdivisions like provinces, cities and municipalities.

   The foundation of the exercise of the power of eminent domain are:

      a) That the property to be expropriated is a private property;
      b) There is necessity be of a public character; and
      c) Payment of just compensation

What Constitutes Taking

   The taking of private property by the State in the exercise of its power of eminent domain contemplates not only the actual physical seizure or appropriation of the property but also to its destruction or impairment, or to limitation of its usual and necessary employment or use by its owner, not as consequence of police power.

   Thus, there is taking of property under the power of eminent domain:

      1) when the owner is actually deprived or dispossessed of his property;
      2) when there is practical destruction or material impairment of the value of his property;
      3) when he is deprived of the ordinary use of his property;
      4) when he is deprived of the jurisdiction, supervision and control of his property.

Public Use

   The phrase for "public use" within the meaning of the constitutional provision contemplates public benefit, public utility or public advantage for the general public.

Just Compensation

   Just compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained by the owner of the property, to which must be added consequential benefits, if any. The market value of the property, which should be determined at the time of the taking, is the price which it will command where it is offered for sale by one who desires, but is not obliged to sell and is bought by one who is under no necessity of having it.

Authority to Expropriate

   The power of eminent domain belongs to the government. bu the determination as to when this power is to be exercised, the purpose, and the property to be taken is a prerogative of the lawmaking body. It may exercise it directly by enacting the corresponding law or by any government act having the force and effect of law. It may exercise this power indirectly by delegating the same to any government official or agency, or provincial, city, municipal or barangay government or any private corporation engaged in enterprises imbued with public interest.

Kinds of Property to be Taken

   The constitutional provision contemplates the taking of all private property in the exercise of the governmental power of eminent domain of whatever nature and the purpose or object to which it is to be used. It may be real or personal property, tangible or intangible; franchises and contracts, copyrights and patents, but not including money raised by taxation.

Police Power

   Complimenting the power of the State to expropriate private property for public use upon payment of just compensation is the power of the State to take property under its police power and the power of taxation.

   Under its police power, the State may enact laws, regulations affecting persons and property as may be necessary for the welfare and convenience of the people in the field of public health, public morals, and public safety.

Power of Taxation

   On the other hand, under the taxation power of the State, the government may impose burden upon persons, property and property rights for the support of the operation of governmental
activities appropriate for the performance of its functions. The government cannot exist without the necessary funds to pay for expenses in the operation of its governmental activities. Consequently, the State has the right to compel all its citizens and their property to contribute their share by way of paying taxes.

Right to Form Unions

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Right to Form Unions

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged.

This provision recognizes the right of the people to form unions, associations or societies for legal purposes. In the implementation of this right, the people, whether employees in either the public or private sector may adopt whatever rules they think are necessary to attain their objectives. For instance, they may adopt rules regarding membership and fees and the corresponding rights and obligations thereto.

As observe by Sinco, an author of law books-

"to encourage the formation of voluntary associations so that through cooperative activities of individuals, the welfare of the nation may be advanced and the government may thereby receive assistance in its ever-increasing public activities."

The limitation of this constitutional right to form associations or societies is provided under the phrase " for purposes not contrary to law" pursuant to the exercise of the police power of the state. Purposes are considered contrary to law whenever the same violate public policy, public morals, public order or endanger the security of the state, all of which are subject to governmental interference.

   This legally permissible government interference with the people's right to form unions, associations or societies is justified whenever it is apparent that their objectives are contrary to public policy, public morals, public safety and endangers national security consistent with the right of the state to self-preservation.

Right of Information

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Right of Information

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to public records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as a basis for policy development, shall be afforded the citizens, subject to such limitations as may be provided by law.

The recognition of the people's right to information on matters of public concern is verbatim reproduction of Section 6 of Article IV of the 1973 Constitution.

   Within living memory, this particular individual right to information has not been enjoyed by the people themselves as a whole for the simple reason that access to public records of whatever nature had been deliberately made difficult to overcome since the same is invariably saddled with so much unnecessary red tapes.

   The exercise of this right, however, is subject to permissible restrictions that maybe prescribed by law. For any sanction for the recognition or enforcement of this rule shall hereafter be considered impressed with proper constitutional safeguard.The limitation of this right that the law may prescribed must be consistent with the intendment of this particular constitutional mandate. For instance, a law may be enforced prescribing the time and the place where this right may be exercised which must not, however, impair said right of access and information.

   The rationale given for maintaining the mandate provided under Section 6, Article IV of the 1973 Constitution now Section 7, includes the following:

      a) This particular provision is consistent with the time-honored doctrine of popular sovereignty. Republican and democratic states have constitutionally vested upon the sovereign people the right of access to all public records covering matters of public concern.

      b) It will prevent the commission of graft and corruption in the government, since all government functionaries from top to bottom are presumed to be well aware of the fact that their acts tainted with irregularities of whatever nature shall be the basis of their respective prosecution before the court.

      c) It will encourage the people to participate in the affairs of the government; in proper cases, they can be effective fiscalizer against any abuse of powers by public officials.

In fie, the people have the right to know what the government is doing for them, considering its acts are public acts; that is, these acts are impressed with public concern. Public functionaries should not hide their acts from the public eye. So that where he attempts to hide his official acts, it is said that the "beam of light must be focused on him", consistent with the adage that "he who does evil hates the lights".

Liberty of Abode and Travel

2016-10-13T17:32:00.002-07:00

Liberty of Abode and Travel

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

   This constitutional liberty of abode and travel mean no more than the right of a person to choose his own domicile, that is, the place were he likes to reside and, at the same time, to transfer the same wherever he wants to. This right under the provision, is safeguarded against any interference even by the State or otherwise. However, this right is not absolute since the constitutional constraint is subject to the following exceptions:

   1. When there is lawful order of the court; and
   2. In the interest of national security, public safety, or public health as may be provided by law, both of which are permitted in the exercise of the police power of the State.

   Within the purview of the exercise of the police power, the state, through the lawmaking body, may enact legislative acts necessary for the promotion of peace and order, safety, health, morals, life and property; in other words, the general welfare of the community.

   Thus a law enacted requiring all sick persons of contagious diseases be confined at a hospital which is within the bounds of the exercise of police power constitutes a legitimate governmental interference of the individual's right of abode and travel. So is a law prescribing curfew hours in certain areas during times of emergency so with a law that may legalize prostitution in restricted areas; so also is a law requiring the commitment of insane persons in mental institution.

   The limitation contemplated under the second sentence of Section 6 does not require any court order; it is sufficient that the interference of the individual's right of abode and travel is within the legitimate bounds of the exercise of police power.

Salute to the Flag

2016-10-11T00:25:00.000-07:00

Salute to the Flag

The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).

The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."

We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a "small portion of the school population" will shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Furthermore, let it be noted that coerced unity and loyalty even to the country — assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means.

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and promote the right of all citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art. XIV).