The 1987 Philippine Constitution

The 1987 Constitution of the Philippines

1

THE 1987 CONSTITUTION OF THE PHILIPPINES

Compiled by

MARI CRIS ANDEM-AZUL College of Education

TIP-QC


2

INTRODUCTION TO POLITICAL SCIENCE The Study of Political Science What is Political Science?

The systematic study of the state and government. The

word political is derived from the Greek word polis, meaning a city or what today would be the equivalent of sovereign state; the word science comes from the Latin word scire, to know.

The science of politics, therefore, has, as its formal object, a basic knowledge and understanding of the state and of the principles and ideals which underlie its organization and activities. It is primarily concerned with the association of human beings into a body politic, or a political community (one organized under government and law.

As such, it deals with those relations among men and groups which are subject to control by the state, with the relations of men and groups to the state itself, and with the relations of the state to other states.


3

Scope of Political Science Political Science is a very comprehensive field. Its curriculum is almost certain to include courses in political theory, public law and public administration as well as in various more specialized subjects.

Political Theory

The entire body of doctrines relating to the origin, form, behavior and purposes of the state are dealt with in the study of political theory.

Public Law The (a) organization of governments, (b) the limitations upon government authority, (c) the powers and duties of governmental offices and officers, and (d) the obligations of one state to another are handled in the study of public law. In the contradistinction to the rules of private law, which govern the relations among individuals, public law is so specialized that separate courses are offered in each of its subdivisions ---- constitutional law (a, b), administrative law (c), and international law.


4

Public Administration In the study of public administration, attention is focus upon the methods and techniques used in the actual management of state affairs by executive, legislative, and judicial branches of government. As the complexity of government activities grows, the traditional distinctions among the powers of these branches become even less clear-cut. Today, legislative bodies have been forced to delegate greater discretion to executive officers responsible for the conduct of government policies and powers. Thus, we find many administrative agencies exercising quasi-legislative and quasi-judicial powers, i.e. powers which are legislative and judicial in nature. Administrative Law, already referred to, also falls within the scope of any broad study of public administration.

Interrelationship with other branches of learning

No precise and definitive boundaries can be place around a subject as comprehensive as political science. It shares


5

many points of common interest with other social disciplines.

History The bond between the political scientist and the historian is obvious in the observation that history is past politics and politics present history. The political scientist frequently adopts a historical approach and employs knowledge of the past he seeks to interpret present and probable developments in political phenomena.

Economics Until late in the 19th century, political science and economics (the study of production, distribution, and conservation and consumption of wealth) were coupled under the name of political economy. Today, these fields are jointly concerned with the fact that economic conditions affect the organization, development and activities of states, which in turn modify or even prescribed economic conditions. The political scientist regularly adopts as economic approach when seeking to interpret such


6

matters as public financial policies and government regulation of business.

Geography Geopolitics (a science concerned with the study of the influences of physical factors such as population pressures, sources of raw materials, geography, etc., upon domestic and foreign politics) indicates one approach which a political scientists frequently must adopt to help explain the phenomena as the early growth of democracy in Great Britain and the United States and its retarded growth in certain Continental Europe, and the rise of authoritarian governments in developing countries.

Sociology and Anthropology The political scientist, the sociologist (who specializes in the study of society as a whole), and the anthropologist (who studies mankind is relation to physical, social and cultural development) are deeply concerned with he origins and nature of social control and government authority, with the abiding influences of race and culture upon society, and with the patterns of collective human behavior.


7

Psychology The political scientist as well as the psychologist promotes studies of the mental and emotional processes motivating the political behavior of individuals and groups. One of the many topics which the political scientist handles from a psychological approach is that of public opinion, pressure groups, and propaganda.

Philosophy The concepts and doctrines of Plato, Aristotle and Locke (and other universal thinkers about the state) are important to the specialist in academic philosophy and also to the political scientist. These concepts are the underlying forces in the framing of constitutions and laws.

Statistics and Logic The political theorist must possess a broad scientific background and a knowledge of the current political problems and he must employ scientific methods in gathering and evaluating data and in drawing conclusions.


8

Jurisprudence It is concerned with the analysis of existing legal systems and also with the ethical, historical, sociological and psychological foundations of law. A comprehension of the nature of law (whether natural or divine law) and of the statutes enacted by legislatures is indispensable to the political theorist. Law and state are inseparable. All states claim laws, effective within their jurisdictions, and enforce them through a system of penalties or sanctions. To maintain full understanding of the facts of political life, the political scientist has to combine the legal with the extra-legal viewpoints.

Functions and importance of political science The function of political science is to discover the principles

that should be adhered to in public affairs and to study the operations of government in order to demonstrate what is good, to criticize what is bad or inefficient, and to suggest improvements.


9

Its findings and conclusions may be of immense practical use to constitution makers, legislators, executives, and judges who need models or norms that can be applied to immediate situations. Again, they may be of immense practical use to individuals who seek to understand the state in which they live.

The study of political science deals with the problems of

social welfare, governmental economic programs, international cooperation, and a wide range of other matters that are urgent concern of public officials and to private citizens.

Goal in the study of political science courses

Why should the university or college student study political science? What good will it do to him or her, in later life? Will it help in getting a job --- in getting ahead? Are political science courses practical (i.e. vocational)?


10

Education for citizenship It should be made clear that the primary objective of political science curriculum is education for citizenship. The preparation of students for careers in politics, law, teaching, the civil service and the foreign service is secondary to the task of equipping them to discharge the obligations of democratic citizenship.

Essential parts of liberal education Political science courses should be viewed as essential parts of liberal education, bearing no materialistic price tag and promising no job security. Such shop-worn adjectives as practical and cultural have no relevance here.

Knowledge and understanding of government Political science seeks to gather and impart this knowledge and understanding. The good citizen who behaves himself and votes regularly is no longer enough. He must also be a citizen who knows the answers. He must know how his government really operates, what interests and forces are behind particular policies, what


11

the results of such policies are likely to be, what his rights and obligations are, who his elected representatives are, and what they stand for.


12

CONCEPTS OF STATE AND GOVERNMENT Introduction State

A state is a community of persons more or less numerous, permanently occupying a definite portion of territory, having a government of their own to which a great body of inhabitants render obedience, and enjoying freedom from external control.

Elements of the State

People This refers to the mass of population living within the state. Without people there can be no functionaries to govern and no subjects to be governed. There is no requirement as to the number of people that should compose a state. But it should be neither too small nor too large: small enough to be well-governed and large enough to be self-sufficing.


13

Territory It includes not only the land over which the jurisdiction of the state extends but also the rivers and lakes therein, a certain area of the sea which abuts upon its coasts and the air space above it. Thus, the domain of the state may be described as terrestrial, fluvial, maritime and aerial.

Government It refers to the agency through which the will of the state is formulated, expressed and carried out. The word is sometimes used to refer to the person or aggregate of those persons in whose hands are placed for the time being the function of political control. This body of men is usually spoken of as administration. The ordinary citizens of a country are a part of the state but are not part of the government.

Sovereignty The term may be defined as the supreme power of the state to command and enforce obedience to its will from people within its jurisdiction and corollarily, to have freedom from foreign control.


14

Two manifestations: a) internal or the power of the state to rule within its

territory; b) external or the freedom of the state to carry out its

activities without subjection to or control by other states.

External sovereignty is often referred to as independence.

Origin of States

Divine Right Theory - It holds that the state is of divine creation and the ruler is ordained by God to govern the people.

Necessity or Force Theory - It maintains that the states must have been created through force, by some great warriors who imposed their will upon the weak.

Paternalistic Theory - It attributes the origin of states to the enlargement of the family which remained under the authority of the father or mother. By natural stages, the


15

family grew into a clan, then developed into a tribe which broadened into a nation, and the nation became a state.

Social Contract Theory - It asserts that the early states must have been formed by deliberate and voluntary compact among the people to form a society and organize government for their common good. This theory justifies the right of the people to revolt against a bad ruler.

State distinguished from Nation

The state is a political concept, while nation is an ethnic concept. A nation is a group of people bound together by certain characteristics such as common social origin, language customs and traditions, and who believe that they are one and distinct from others. A nation may or may not be independent of external control. State may consist of one or more nations and conversely, a nation may be made up of several states. The United States is a melting pot of several nationalities. On the other hand, the Arab nation is divided into several sovereign states.


16

State distinguished from Government

In common speech they are usually regarded as identical. As ordinarily, the acts of the government (within the limits of the delegation of powers) are the acts of the state, the former is meant when the latter is mentioned, and vice-versa. The government is only the agency through which the state expresses its will.

A state cannot exist without a government, but it is possible to have a government without a state. Thus, we had various governments at different periods of our history, from pre-Spanish time to the present. A government may change, its form may change, but the state, as long as its essential elements are present, remain the same. Forms of Government 1. As to the principal forms:

Monarchy or one in which the supreme and final authority is in the hands of a single person without


17

regard to the source of his election or the nature or duration of his tenure. Kinds of Monarchies Absolute monarchy or one in which the ruler rules

by divine right; Limited monarchy or one in which the ruler rules in

accordance with a constitution.

Aristocracy or one in which political power is exercised by a few privileged class which is known as an aristocracy or oligarchy.

Democracy or one in which political power is exercised by a majority of the people. Democratic governments are further classified into:

Classifications of Democracy Direct or pure democracy or one in which the will of

the state is formulated or expressed directly and immediately through the people in a mass meeting or


18

primary assembly rather than through the medium of delegates or representatives chosen to act for them.

Indirect, representative or republican democracy or one in which the will of the state is formulated and expressed through the agency of a relatively small and select body of persons chosen by the people to act as their representatives.

2. As to the extent of powers exercised by the central or national government. Unitary government or one in which the control of

national and local affairs is exercised the central or national government.

Federal government or one in which the powers of the government are divided between two sets of organs, one for national affairs and the other for local affairs, each organ being supreme within its own sphere.

3. As to the relationship between the executive and the legislative branches of the government.


19

Parliamentary government One in which the state confers upon the legislature the power to terminate the tenure of office of the real executive. Under this system, the Cabinet or ministry is immediately and legally responsible to the legislature and mediately or politically responsible to the electorate, while the titular or nominal executive --- the Chief of State --- occupies a position of irresponsibility.

Presidential government

One in which the state makes the executive constitutionally independent of the legislature as regards his tenure and to a large extent as regards his policies and acts and furnishes him with sufficient powers to prevent the legislature from trenching upon the sphere marked out by the constitution as executive independence and prerogative.

Functions of Government The functions of government are classified as constituent or ministrant.


20

Constituent Functions Those relating to the maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of justice and the determination of political duties of citizens, and those relating to national and foreign functions. This power is exercised by the State as attributes of sovereignty.

Ministrant Functions It includes the promotion of welfare, progress and prosperity of the people and not merely to promote the welfare, progress and prosperity of the people --- these latter functions being ministrant, the exercise of which is optional on the part of the government.

De Jure and De Facto Governments Government is classified according to its legitimacy as either de jure and de facto government. De Jure is a Latin term which means by right, lawful, legitimate. Thus, a


21

government de jure is one established by the authority of the legitimate sovereign. While a de facto government or government of fact is one merely established in defiance of the legitimate sovereign. Doctrine of Parens Patria Parens Patriae literally means parent of the people. By this doctrine the state is called upon to defend and protect those underprivileged, handicapped, etc. Thus, in case of rape against a minor child, the state is called upon to give full protection and safeguard. This is not only a duty upon the state but, it is also in keeping the role of the state as parens patriae by virtue of which it is mandated to provide utmost protection to those of tender years.


22

CONCEPT OF THE CONSTITUTION Introduction Constitution - that body of rules and principles in

accordance with which the powers of sovereignty are regularly exercised.

the fundamental law of the land the supreme law of the land the God of all man-crafted laws the litany of rights of every individual

Nature and purpose or function Nature the charter creating the government the supreme or fundamental law of the land as it speaks

for the entire people from whom it derives its claim to obedience

it is binding on all individual citizens and all organs of government


23

a law to which all other laws must conform in accordance with which all private rights must be determined and all public authority administered

the test of the legality of all governmental action, whether proceeding from the highest official or lowest functionary

Purpose prescribe the permanent framework of the system of

government to assign to the different departments or branches, their

respective powers and duties to establish certain basic principles on which the

government is founded it is primarily designed to preserve and protect the rights

of individuals against the arbitrary actions of those in authority

Function not to legislate in detail but to set limits on the otherwise

unlimited power of the legislature


24

Constitutional Law A branch of jurisprudence which treats of constitutions, their nature, formation and amendment, operation and interpretation. It refers to the law embodied in the Constitution as well as the principles growing out of interpretation and application made by the courts (particularly the Supreme Court, being the court of last resort) of the provisions of the constitution in specific areas. The Philippine Constitution itself is brief but the law of the Constitution lies scattered in thousands of Supreme Court decisions.

Kinds of Constitution As to their origin and history

Conventional or enacted - one which is created by a constituent assembly or granted by a monarch to his subjects like the Constitution of Japan in 1889. Cumulative or evolved - like the English Constitution, one which is a product of growth or a long period of development originating in customs, traditions, judicial


25

decisions, etc., rather than from deliberate and formal enactment.

The above classification substantially coincides with that of written and unwritten constitutions.

As to their form

Written - one which has been given definite written form at a particular time, usually by a specially constituted authority called a constitutional convention. Unwritten - one which is entirely the product of political evolution, consisting largely of a mass of customs, usages and judicial decisions together with a smaller body of statutory enactments of a fundamental character, usually bearing different dates.

The English Constitution is unwritten only in the sense that it is not codified in a single document. Indeed, there is no Constitution that is entirely written or unwritten.


26

As to manner of amending them Rigid or inelastic - one regarded as a document of special sanctity which cannot be amended or altered except by special machinery more cumbrous than the ordinary legislative process. Flexible or elastic - one which possesses no higher legal authority than ordinary laws and which may be altered in the same way as other laws.

Advantages and disadvantages

Written Constitution

It has the advantage of clearness and definiteness over an unwritten one.

This is because it is prepared with great care and deliberation.

Its disadvantage lies in the difficulty of its amendment. (see Art. XVII)

This prevents the immediate introduction of needed changes and may thereby retard the healthy growth and progress of the state.


27

Requisites of a good written constitution 1. As to form a good written constitution should be: Brief - because if a constitution is too detailed, it would

lose the advantage of a fundamental law which in a few provisions outlines the structure of the government of the whole state and the rights of the citizens. It would probably never be understood by the public. Furthermore, it would then be necessary to amend it every once in a while to cover many future contingencies.

Broad - because a statement of the powers and functions of government, and the relations between the governing body and the governed, requires that it be as comprehensive as possible.

Definite - because otherwise the application of its provisions to concrete situations may prove unduly difficult if not impossible. Any vagueness which may lead to opposing interpretations of essential features may cause incalculable harm.


28

2. As to contents it should contain at least three sets of provisions: Constitution of Government - That dealing with the

framework of government and its powers and defining the electorate.

Constitution of Liberty - That setting forth the fundamental rights of the people and imposing certain limitations on the powers of the government as a means of securing the enjoyment of these rights.

Constitution of Sovereignty - That pointing out the mode or procedure for amending or revising the constitution.

Constitution distinguished from Statute A constitution is a legislation direct from the people, while a

statute (see Art. VI, Sec. 1) is a legislation from the peoples representatives;

A constitution merely states the general framework of the law and the government, while a statute provides the details of the subject of which it treats;


29

A constitution is intended not merely to meet existing conditions but to govern the future, while a statute is intended primarily to meet existing conditions only; and

A constitution is the supreme or fundamental law of the State to which statutes and all other laws must conform.


30

SEPARATION OF POWERS The Doctrine of Separation of Powers was modified under the 1973 Constitution with the establishment of a semi-parliamentary government that made the legislature subordinate in many respects to the President, who was even vested with the ultimate power of dissolving it. What is the traditional concept of the doctrine of separation of powers? Under the new Constitution, the traditional concept of the doctrine has been restored, but with several significant modifications. The three major departments of the government have been maintained, and so have the three constitutional commissions established earlier under the past charters. By and large, the separation of the principal powers have been preserved. The judiciary, regarded as the weakest of the three branches, has been considerably strengthened with the conferment of it of additional and important powers. In the case of the political


31

departments, one will observe a lessening of the executive and a corresponding increase in the authority of the legislature, inspired presumably by our recent experiences under the Marcos authoritarianism.

What commissions had been revived under the new constitution? Worthy of special interest is the revival of the Commission on Appointments as a check upon the appointing power in general . The creation of a Judicial and Bar Council to ensure better selection of the members of the judiciary. The Electoral Tribunals have also been restored (but with modified membership) to act once again as sole judge of all contests relating to the election, returns and qualification of the members of their respective Houses. This function was taken from them (even as they were abolished) and transferred to the Commission on Elections by the 1973 Constitution.


32

Why is the doctrine of separation of powers observed in our country? The doctrine is observed in our country not only because it is regarded as a characteristics of republicanism but also for the reason that the major powers of government are actually distributed by the Constitution among the several departments and the Constitutional Commissions. Additionally, Article VI, Section 13, provides that no member of the Congress may hold any other office or employment in the government during his term without forfeiting his seat. What are the purposes of the Doctrine of Separation of Powers? The doctrine of separation of powers is intended to prevent a concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions. More specifically, according to Justice Laurel, the doctrine is intended to secure action, to forestall overaction, to prevent despotism and to obtain efficiency.


33

To achieve these purposes:

the legislature is generally limited to the enactment of laws and may not enforce or apply them;

the executive to the enforcement of laws and may not enact or apply them;

the judiciary to the application of laws and may not enact or enforce them.

However, the need for the above-mentioned objectives does not call for the doctrinaire application of this theory or its observance with pedantic rigor. While it is desirable that there be a certain degree of independence among the several constitutional agencies, it is not in the public interest for them to deal with each others at arms length or with a hostile jealousy of their respective rights as this might result in frustration of the common objectives of the government. To cite Justice Laurel again, the keynote of conduct of the various agencies of the government under the doctrine of separation of powers, as properly understood, is not independence but interdependence.


34

BLENDING OF POWERS What is blending of powers of the three branches of government? There are instances under the Constitution when powers are not confined exclusively within one department but are in fact assigned to or shared by several departments. As a result of this blending of powers, as it is called, there is some difficulty in classifying some of them as definitely legislative, executive or judicial. Justice Holmes out it vividly when he remarked that the great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to another. Examples of the governments exercise of the blending of powers The powers of government may not at all times be contained with mathematical precision in water-tight compartments because of their ambiguous nature, e.g., the power of


35

appointment, which can rightfully be exercise by each department over its own administrative personnel. But more importantly, it is often necessary for certain powers to be reposed in more than one department, so that they may better collaborate with, and in the process check, each other for the public good. Examples: An illustration of such coordination is the enactment of the general appropriations law, which begins with the preparation by the President of the budget, which becomes the basis of the bill adopted by the Congress and subsequently submitted by it to the President, who may then approve it. Another is the grant of amnesty by the President which requires the concurrence of a majority of all the members of the Congress. To take a third example, the Commission on Elections does not alone deputize law-enforcement agencies and instrumentalities of the government for the purpose of


36

ensuring free, orderly and honest elections but does so with the consent of the President.


37

CHECKS AND BALANCES What is the system of checks and balances? What makes the doctrine of separation of powers especially workable is the corollary system of checks and balances, by means of which one department is allowed to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. The exercise of this authority in not itself an arrogation inasmuch as it is the Constitution itself that provides for this system of counteraction. The theory is that the ends of the government are better achieved through the exercise by its agencies of only the powers assigned to them, subject to reversal in proper cases by those constitutionally authorized. What are some illustrations of this system? There are abundant illustrations of this system in the Constitution. Thus, the lawmaking power of the Congress is checked by the President through his veto power, which in


38

turn may be overridden by the legislature. The President may nullify a conviction in a criminal case by pardoning the offender. The Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the Senate to a treaty he has concluded. The Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish the latter tribunals. As for the judiciary in general, it has the power to declare invalid an act done by the Congress, the President and his subordinates, or the Constitutional Commissions.


39

ROLE OF THE JUDICIARY What is the role of the Judiciary in the exercise of separation of powers? While it is the judiciary which sees to it that the constitutional distribution of powers among the several departments of the government is respected and observed, this does not mean that it is superior to the other departments. To correct the view is that when the Supreme Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy but the supremacy of the Constitution. In the determination of whether a given power has been validly exercised by a particular department, the test applied is not necessarily or always the nature of the power. The first criterion --- and the safest --- is whether or not the power in question, regardless of its nature, has been constitutionally conferred upon the department claiming its exercise. The grant being ascertained, the exercise of the power sustained.


40

The conferment of power is usually done expressly, as in the vesture of the legislative power in the Congress, the executive power in the President and the judicial power in the Supreme Court and such lower courts as may be established by law. As may be readily noticed, there is no problem as to the validity of the discharge of these powers because they naturally pertain to the entities in which they have been reposed. What are some illustrations of powers not lodge in the judiciary? To illustrate, the power to impeach, which is essentially executive, and the power to try and decide impeachment cases, which is essentially judicial, are expressly lodged in the Congress, as so too is the power of investigation, which is more executive or judicial than legislative. These powers are nevertheless validly exercised by the legislature because the Constitution so provides. By the same token, the Supreme Court can exercise the executive power of removal over judges of inferior courts although they


41

have been appointed by the President. The President may be authorized by the Congress to exercise tariff powers and emergency powers, both of them legislative in nature, because the Constitution permits it Even in the absence of an express conferment, the exercise of a given power may be justified under the doctrine of implication, which is based on the theory that the grant of express powers carries with it all other powers that may be reasonably inferred from it. In Angara v. Electoral Commission, for example, certain rules of procedure promulgated by the respondent were challenged on the ground that they had not been expressly authorized by the 1935 Constitution. The Supreme Court nevertheless upheld them, declaring that they were necessary to the proper exercise of the express power granted to the body to hear and decide election contests involving members of the legislature. Another illustration is the power to punish contempt which, although essentially judicial, can unquestionably be exercised by the legislature, more so now under the present Constitution,


42

which vests upon it the express power to conduct investigations in aid of legislation. Such investigations, needless to say, could hardly be effective if the Congress did not possess the implied authority to punish witnesses for contumacy. Mention must also be made of those powers which although not specifically granted by the Constitution either expressly or by implication may be justified as inherent or incidental. Thus, the President, as head of the government, may independently of constitutional or statutory authority deport undesirable aliens as an act of State, even as the Congress can punish any person who impugns its integrity without proof. The courts, for their part, may claim the contempt of power inherent in the judiciary.


43

ARTICLE XVIII

AMENDMENTS OR REVISIONS OF THE CONSTITUTION Amendment and Revision Amendment and revision refers to changes in the Constitution. However, the two must be distinguished. What is an amendment? Amendment refer to a change of specific provisions only. The intention of an act is not the change of the entire constitution, but only the improvement of specific parts or the addition of provisions deemed as essential. What is a revision? Revision refer to the rewriting of the whole constitution.


44

What are the three steps in amending the constitution? First, is the proposal, which can be effected either through

Constituent Assembly, Constitutional Convention or directly by the people;

Second, is the submission of proposal to the people; and Third, the ratification by the people. What does ratification by the people mean? This last step, involves the casting of votes by the people whether they agree to adopt or not the proposed amendments submitted to them in the exercise of their sovereign capacity. How is proposal applied on the Constituent Assembly? Constituent Assembly may be called to amend or revise the Constitution by a vote of three-fourths of all the Members of Congress, voting separately. A Constitutional Convention is a body convened for the sole purpose of amending or revising the Constitution.


45

What are the manners of calling a Constitutional convention? The Constitution provides for the two (2) manner of calling a constitutional convention.

First, is by the congress themselves, by a vote of two-thirds of its members.

Second, if the required two-thirds votes is not obtained or simply when the Congress cannot decide to call such a convention, they can, through a majority vote of all its members submit to the people the question of calling such a convention.

Directly by the People (Peoples Initiative) It is interesting to note that among the three methods of proposal, directly by the people is limited only to amendments or the so-called piece-meal changes only and does not include revision, which unlike the other two methods can include amendments, and revisions. The reason for this rule is that the formulation of provisions revising the Constitution


46

requires both cooperation and debates which can only be done through a collegial body like a convention or assembly. People s initiative may only be exercise by the people in amending the Constitution ones every five years. What are the requirements for Peoples Initiative? A petition signed by at least twelve (12) per centum of all

registered voters;

Each legislative district must be represented. Ratification Amendments or revision of the Constitution proposed by either the Constituent Assembly, Constitutional Convention and Peoples Initiative becomes effective after ratification by the people.

What is a ratification? Ratification is the process whereby the people will directly cast their votes whether they would like to adopt any amendment to, or revision of the Constitution.


47

When is the validity of a ratified amendment or revision? Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days not later than ninety (90) days after the approval of such amendment or revision or after the certification by the Commission on Elections of the sufficiency of the petition. Review Questions:

1. Distinguish amendment from revision of the Constitution. 2. What are the requirements for peoples initiative? 3. Why is peoples initiative limited only to amendments of

the Constitution? 4. What is a constitutional convention and what is the

manner for calling a constitutional convention?


48

Article I: NATIONAL TERRITORY Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. National Territory of the Philippines: As provided in Article I, it comprises: The Philippine Archipelago with all the islands and waters

embraced therein; All other territories over which the Philippines has

sovereignty or jurisdiction;


49

The terrestrial, fluvial, and aerial domains including the territorial sea, the sea-bed, the subsoil, the insular shelves, and other submarine areas corresponding to Nos. 1 and 2; and

The internal waters. (Sec. 1) Meaning of archipelago The term archipelago is derived from the Greek word pelages meaning sea. It has been defined as a sea or part of a sea studded with islands, often synonymous with island groups, or as a large group of islands in an extensive body of water, such as sea. In other words, it includes both sea and islands which geographically may be considered as an independent whole. Other territories over which the Philippines has sovereignty or jurisdiction. The phrase all the other territories belonging to the Philippines be historic right or legal title in the former provision was amended as indicated above. The phrase


50

acquired a definite meaning in the 1973 Constitution as a cover-all for pending Philippine claim to Sabah (formerly North Borneo) against Malaysia and the possible claim to the so-called Freedomland (a group of Islands known as Spratley Islands in the South China Sea) and the Marianas Islands, including Guam (which according to historical documents were under the control of the civil and ecclesiastical authorities in the Philippines during the Spanish Regime), or any other territory over which the Philippines may in the future find it has a right claim. The deletion, however, of the words by historic right or legal title is not to be construed as precluding future claims by the Philippines to areas over which it does not actually exercise sovereignty. The change is designed to improve our relations with Malaysia while allowing flexibility in pursuing the Sabah claim. Other areas included in the Philippine archipelago. The territorial sea it is that part of the sea extending 12

nautical miles (19kms) from the low-watermark. It is also


51

called the marginal sea, the marginal belt, or the marine belt.

The seabed (or sea floor or sea bottom) this refers to the land that holds the sea, lying beyond the seashore, including mineral and natural resources;

The sub-soil this refers to everything beneath the surface soil and the sea-bed, including mineral and natural resources;

Insular shelves (or continental shelves) they are the submerged portions of a continent or offshore island, which slope gently seaward from the low waterline to a point where a substantial break in grade occurs at which point the bottom slopes seaward at a considerable increase in slope until the great ocean depths are reached; and

Other submarine areas they refer to all areas under the territorial sea. Among oceanographic terms used are seamount, trough, trench, basin, deep, bank, shoal, and reef.

As part of the national territory, the sea-bed, the insular shelves, and other submarine areas are necessary co-


52

extensive with the territorial sea. The Philippines has a right or title to them to the extent recognized by international law. Three-fold division of navigable waters From the standpoint of International Law, the waters of the earth are divided into: Inland or internal waters they are the parts of the sea

within the land territory. They are considered in the same light as rivers, canals and lakes within the land territory of a state. They are sometimes called national waters.

Territorial sea it is a belt of water outside and parallel to the coastline or to the outer limits of the inland or internal waters; and

High or open seas they are waters that lie seaward of the territorial sea.

Jurisdiction over navigable waters The inland or internal waters and the territorial sea together comprise what is generally known as the territorial waters of a


53

state. Over these waters, a state exercises sovereignty to the same extent as its land territory but foreign vessels have the right of innocent passage through the territorial sea. On the other hand, the open seas are international waters which means that they are not subject to the sovereignty of any state but every state has equal rights of uses in them. The archipelagic concept or principle of territoriality: The use of the word archipelago in Article I is intended to project the idea that the Philippines is an archipelago (a state composed of a number of islands) and bolster the archipelagic concept (or archipelago doctrine) which the Philippines together with Indonesia, and other archipelago states, had espoused in international conferences on the Law of the Sea. By this concept is meant that an archipelago shall be regarded as a single unit, so that the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the state, subject to its exclusive sovereignty.


54

Article II: Fundamental Principles and State Policies Article II of the Constitution is entitled Declaration of Principles and State Policies. What is the intention in providing Art. II of the Constitution? This article is intended to lay down the rules underlying our system of government and must therefore be adhered to in the conduct of public affairs and the resolution of public issues. The present article is an enlargement and, in some sections, a modification of the original provisions found also in Article II of the 1973 Constitution. What is the purpose of Art. II of the Philippine Constitution? The purpose is to emphasize and articulate more unequivocally the objectives and limitations of governmental action in pursuit of the general goals announced in the Preamble.


55

Preamble The Preamble to the Constitution reads as follows:

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.

Unlike in the 1935 Constitution, the above Preamble is couched not in the third person but in the first. Why was the Preamble couched in the first person and not the third as it was originally written in the 1935 Constitution? It was felt that the use of the more intimate first person would deepen the sense of involvement and participation of the


56

individual citizens in the ordaining and promulgation of the Constitution, which is supposed to be their common handiwork. This impression was not adequately conveyed by the 1935 Constitution, where the Filipino people were viewed by many as a remote, impersonal and abstract legal entity to which they did not belong. The Preamble is not considered a source of substantive right since its purpose is only to introduce, i.e., to walk before, the Constitution. What is the function of the Preamble? Its function is not merely rhetorical, as, in the first place, the Preamble serves to indicate the authors of the Constitution, to wit, we, the sovereign Filipino people. In addition, it also enumerates the primary aims and expresses the aspirations of the framers in drafting the Constitution and is also useful as an aid in the construction and interpretation of the text of the Constitution.


57

REPUBLICANISM Section 1 of Article II provides: The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. What form of government is established under Republicanism? Who are declared supreme under this form? This reproduction of the original principle in the 1935 Constitution establishes the democratic and representative nature of our government and proclaims our hostility to autocratic and totalitarian regimes. Thus, the people are declared supreme. It is affirmed that every citizen is an individual repository of sovereignty. The citizenry and not officialdom is recognized as the origin, and therefore also the restriction, of all government authority.


58

What is a republican government? A republic is a representative government, a government run by the people and for the people. It is not pure democracy where the people govern themselves. What is the essence of republicanism? The essence of republicanism is representation and renovation. It is the selection by the citizenry by a corps of public functionaries who derive their mandate from the people and act on their behalf, serving for a limited period only, after which they are replaced or retained at the option of their principal. Obviously, a republican government is a responsible government whose officials hold and discharge their position as a public trust and shall, according to the Constitution, at all times be accountable to the people they are sworn to serve.


59

What is the purpose of a republican government? The purpose of a republican government, it is almost needless to state, is the promotion of the common welfare according to the will of the people themselves. How is the promotion of the general welfare of the people determined? This will is usually determined by the rule of the majority, that is, the greater number of the people. Under the Constitution, for example, the Senate President and the Speaker are elected by majority vote of all the members of their respective Houses, meaning more than one-half of the total membership. How is the rule of the majority justified? This is justified because the law so provides and ours is a government of laws and not of men. That no person is above the law; all must bow to its majesty. The ascendancy of the law is axiomatic in a republic and must be recognized by


60

every public official no matter how exalted. Every official act must be based upon and conform to the authority of a valid law, lacking which the act must be rejected. THE DEFENSE OF THE STATE Section 4 provides: The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. From where does this right been based? This provision is based upon the inherent right of every State to existence and self-preservation. By virtue of this right, a State may take up all necessary action, including the use of armed force, to repeal any threat to its security. To this end, it is provided in Article XVI, Section 4, of the Constitution that the armed forces of the Philippines shall be composed of a


61

citizen armed force which shall undergo military training and serve, as may be provided by law. The pertinent law is C.A. No. 1, otherwise known as the National Defense Act. Are all citizens of the Philippines imposed the duty to defend the State? It is noteworthy that the duty to defend the State is imposed upon all citizens, including women, and that the military or civil service that may be required of them by law must be personal. This precludes the hiring by the rich of mercenaries or professional soldiers to take their place in the defense of the State. Are citizens with religious or have no military inclinations exempted from rendering personal services in defense of the State? As for those who may have sincere conscientious or religious scruples about the taking of human life, or have no military inclinations or aptitudes, accommodation can probably be made by assigning them to non-combatant or civil duties.


62

PEACE AND ORDER Section 5 provides rather pompously: 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. This was probably inspired by the American Declaration of Independence or some high school commencement address. In any case, it speaks for itself --- needlessly, it would seem --- as these are implicit in a welfare state, which is what we are repeatedly told the Constitution is establishing. THE INCORPORATION CLAUSE Section 2 provides: 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


63

and amity with all nations. Every State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, which are considered to be automatically part of its own laws. This is known as the Doctrine of Incorporation. By virtue thereof, and particularly since it is expressly affirmed in our Constitution, our Supreme Court has applied the rules of international law in the decision of a number of cases notwithstanding that such rules had not been previously converted to statutory enactments. Section 2 must be read with another section in this Article, which provides as follows: Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. and with Section 8, declaring that: Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.


64

REARING OF THE YOUTH There are two sections in Article II dealing with the proper rearing of the youth. Section 12 The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother, and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and support of the Government. What kind of kindred ties do Filipino families possess? Kindred ties are specially close in the Philippines, making the family a fundamental and important factor in the enhancement of the nation. The theory is that the better the home, the better the nation; and also that the strength of the family lies in the correct upbringing of its children.


65

Proper recognition is therefore given to the complementary roles of the parents and the government in the rearing of the youth for the principal purposes mentioned, to wit, civil efficiency and the development of moral character. Significantly, the new provision declares that the State shall equally protect the life of the mother and the life of the unborn from conception, which seems to suggest a policy against abortion. This, however, must be equated with the equal protection due to the mother. It should also be observed that in recognizing the sanctity of the family life, the provision is not closing the door on divorce, which is left for legislature to allow in its discretion. Section 13 The State recognizes the vital role of the youth in nation-building, and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism and encourage their involvement in public and civic affairs.


66

This 1973 provision was a reaction to the upsurge of youth activism that marked the days prior to the adoption of the 1973 Constitution and evidently influenced the thinking of its framers. Accordingly, it is now sought to promote not only the civic efficiency and moral character of our young citizens but also their physical, moral, spiritual, intellectual and social well-being so that they will be fully prepared when they assume their responsibility of leadership in the direction of our countrys destiny. WOMEN Article II, Section 14, provides that the State shall recognize the role of women in nation-building and shall ensure the fundamental equality before the law of women and men. What is the stand and role of women in our society? The reverse order follows the polite phraseology of ladies and gentlemen and ladies first and does not suggest a social upheaval, much less an overturning of the tradition conferring upon the man the position of the head of the


67

family, administrator of the conjugal funds and other similar capacities. SOCIAL JUSTICE What is one of the most serious problems the nation is facing right now? The acute imbalance between the rich and the poor and the resultant divisiveness and hostility between them. This polarization has created an explosive situation that, unless corrected in time, may lead to a violent social upheaval. Example: The story of the ditch-digger. What is the meaning of life to the countless impoverished Filipino family? Life is but an unending cycle of drudgery and toil, a ceaseless struggle for survival for the elemental right to just exist instead of truly living. Want is a constant companion. Oppression is always close by. As for those interests intended to enhance


68

the joy of living --- these are total strangers. One cannot enjoy the sunset when he must worry about the oil to light the lamp when the darkness closes in. What were the programs of the government to alleviate the standard of living? To alleviate the plight of these forgotten men, to give those with less privileges in life more privileges in law, in the words of President Ramon Magsaysay, our government has assiduously, if not always successfully, pursued the policy of social justice enshrined in both the old and the new Constitutions. What is social justice? The classic definition of social justice is found in Calalang v. Williams, where Justice Laurel declared as follows: Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so


69

that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra - -constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. The new provisions on social justice in Article II are the following: Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.


70

Sec. 10. The State shall promote social justice in all phases of national development. Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Sec. 21. The State shall promote comprehensive rural development and agrarian reform. SEPARATION OF CHURCH AND STATE Section 6 reiterates that: the separation of Church and State shall be inviolable. This is a reproduction of Article XV, Section 15, of the 1973 Constitution.


71

What is the law provided for the rule? The separation of Church and State was originally, and quite adequately, expressed in the bill of rights providing that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. It is now more emphatic by the said Section 6, which says that the separation shall be inviolable. What is the rationale of the rule? The rationale of the rule is summed up in the familiar saying, Strong fences make good neighbors. The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective jurisdictions. The demarcation line calls on the entities to render therefore unto Caesar the things that are Caesars and unto God the things that are Gods. What is the prohibited actions of both the church and the state?


72

The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely ecclesiastical affairs. The Church is likewise barred from meddling in purely secular matters. And the reason is plain. A union of Church and State, as aptly remarked, tends to destroy government and to degrade religion. It is also likely to result in a conspiracy, well nigh irresistible because of its composite strength, against the individuals right to worship. The wall of separation between Church and State is not a wall of hostility. The State in fact recognizes the beneficent influence of religion in the enrichment of the nations life. SUPREMACY OF CIVILIAN AUTHORITY Section 3 provides: Civilian authority is, at all times, supreme over the military. 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.


73

Although this is implicit in a republican system of government, it was felt advisable to expressly affirm this principle in order to allay fears of a military take-over of our civilian government. The military establishment is the physically strongest single institution in our country and has the capacity and might to wrest power from the constituted authorities. Under this provisions who is the commander-in-Chief of the Armed Forces of the Philippines? To avoid this it is also fittingly declared in Article VII, Section 18, of our Constitution that the President, who is a civilian official, shall be the commander-in-chief of all the armed forces of the Philippines. LOCAL AUTONOMY The policy of local autonomy, which was not specifically mentioned in the 1935 Constitution but was dignified into a constitutional principle by the 1973 charter is affirmed in Section 25, which provides:


74

The State shall ensure the autonomy of local governments. This principle is fleshed out in Article X, entitled Local Government, and the Local Government Code. The strengthening of local governments is based upon the Jeffersonian view that municipal corporations are the small republics from which the great one derives its strength. The belief is shared in this country that vitalization of the local government unit will enable its inhabitants to develop their resources and thereby contribute to the progress of the whole nation. More importantly, they will acquire a deepened sense of involvement that will encourage them to participate more actively in the direction of public affairs as members of the body politic. Economy The various policies on the economy, which is also the subject of Article XIII, are the following:


75

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Sec. 20. The State recognizes the indispensable role of the private enterprise, and provides incentives to needed investments. Sec. 21. The State shall promote comprehensive rural development and agrarian reform. MISCELLANEOUS In addition to the above-discussed provision, Article II contains the following rules on miscellaneous subjects: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.


76

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Sec. 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. Sec. 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Sec. 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.


77

Article III

BILL OF RIGHTS

Litany of weapons which a person may implore or assert to resist or defeat any abuse or misuse of governmental power.

It is primarily directed against the abuses of the government in the exercise of the massive powers it has at its command, particularly police power, eminent domain and taxation.

It is protection against the state.

It governs the relationship between the state and the individual.

Its concern is not the relation between the individuals, between a private individual and other individuals, but rather, it declares some forbidden zones in the private sphere inaccessible to any power holder.

It restrains the government from invading into the life, liberty and property of persons.

It is the catalogue of rights that monumentalizes the maxim ours is a government of laws and not of men.


78

THE DUE PROCESS & EQUAL PROTECTION CLAUSES Section 1 provides that: No person shall be deprive of life, liberty or property without due process of law nor shall any person be denied the equal protection of laws. THE DUE PROCESS CLAUSE The most used (or perhaps abused) weapon available to a person to arrest the intrusion of government on matters affecting the life, liberty or property of persons. It is beyond quantification or definition, elastic and flexible to be able to meet varied contingencies. Does the due process clause always require trial-type proceedings? Due process, as a constitutional precept, does not always and in all situations, require trial-type proceedings.


79

What is the essence of due process? It is found in the reasonable opportunity to be heard and submit any evidence one may have in support of ones defense. What the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of opportunity to be heard. Due process is equivalent to the law of the land which means a general law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. What is life as protected by the due process clause of the Constitution? It includes the right of an individual to his body in its completeness, free from dismemberment and extends to the use of God-given faculties which makes life enjoyable. Life means more than mere animal existence. It is the enjoyment of all faculties given to man by God: the right to see, hear, eat, contract, to use any part of the body


80

through which the soul communicates with the outside world. It includes the right to earn a living or livelihood. What is liberty in contemplation of the Constitution? It consists in the ability to do what one ought to desire and in not being forced to do what one ought not to desire. Liberty, not a license, the more restraint, the more liberty. It is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience. What is property? The term includes the right to own, use, transmit, to dispose or even to destroy, subject to the right of the State and of other persons; it includes the right to exercise profession. It is used in its most general sense as embracing everything over which man has exclusive dominion. The word is used to denote everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or


81

personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every specie or valuable right and interest and include real and personal property, easements, franchises and incorporeal hereditaments and includes every invasion of ones property rights by actionable wrong. Who are protected by the due process clause? It protects all kinds of persons, whether natural or juridical; includes not only Filipinos but aliens, as well. What is the standard to be applied in a given case in order to comply with the due process clause? Procedural Due Process It is the fulfillment of the procedures or steps and even periods prescribed by the fundamental law or statute and in conformity with the standard of fair play and without arbitrariness on the part of those who are called upon to administer the law or justice.


82

Substantive Due Process It is the intrinsic validity of the law that interferes with the rights of a person to his life, liberty or property. It is the law that is reasonable and not oppressive and one that responds to the supremacy of reason. What are the requisites of procedural due process as applied in judicial proceedings? 1. There must be a court or tribunal clothed with judicial power

to hear and decide the matter before it. 2. Jurisdiction must be lawfully acquired over the person of

the defendant or over the property which is the subject of the proceedings.

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

4. Judgment must be rendered upon lawful hearing.


83

THE EQUAL PROTECTION CLAUSE A weapon available to an individual to nullify an unreasonable act of government. It does not forbid classification or discrimination as long as the classification is reasonable and the parameter of reasonableness must be based on substantial distinctions which make real differences. It must be germane to the purpose of law; it must not be limited to existing conditions only, and must apply equally to each member of the class. Who are protected by the equal protection clause? All persons are covered. However, insofar as juridical persons are concerned, the clause only protects their properties. What is purpose of the equal protection guaranty? It is designed as a safeguard against the acts of the State and not against the conduct of private individuals. It serves as a restraint against favoritism or hostility which the government may employ in pursuance of their official acts.


84

SEARCHES AND SEIZURES Section 2 provides that: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. What is the measure in determining whether a search or seizure is reasonable or not? What constitutes a reasonable or unreasonable search or seizure in a particular case is purely a judicial question, which is determinable from a consideration of the circumstances involved including the purpose of the search, the presence or absence of probable cause, the manner in which the search


85

or seizure was made, the place or thing searched and the character of the articles procured. Sec. 3 of Rule 126 of the Rules of Criminal Procedure mandates that a search warrant must only be issued in connection with one specific offense. Also, it directs a judge that before issuing a warrant, he must place the complainant with the witnesses he may produce under oath or affirmation and profound searching questions to be reduced in writing and attach to the record their sworn statements. Non-compliance of these constitutional and statutory elements will thus make the warrant so issued unreasonable. Who are entitled to the protection against unreasonable search and seizure? The Court held that it is available to all persons, including aliens, whether accused of a crime or not. What is a warrant of arrest? Search?


86

Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

When is a warrantless arrest lawful? In the following instances, a warrantless arrest may lawfully be made by a peace officer or a private person: 1. When in his presence, the person to be arrested has

committed, is actually committing or is attempting to commit an offense.

2. When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it;

3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his


87

case is pending or has escaped while being transferred from one confinement to another.

What kind of property may be seized? 1. subject of the offense 2. stolen or embezzled and other proceeds or fruits of the

offense 3. used or intended to be used as the means of committing an

offense

What are the requisites of a valid warrant? 1. issued in the existence of probable cause. 2. the probable cause must be determined personally by the

judge. 3. the judge must examine under oath or affirmation the

complainant and the witnesses he may produce. 4. the warrant must describe with particularity the place to be

searched and the persons or things to be seized. 5. the warrant must be issued in connection with one specific

offense.


88

6. the judge must, in question and answer form, ask searching questions to be reduced in writing and attach to the record of the case.

What is probable cause? Such facts or circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that objects sought in connection with the offense are in the place to be searched. When may a warrantless search or seizure be made validly? 1. when the right is waived 2. when it is incidental to a valid arrest 3. when there is a violation of the Tariff and Customs Law 4. search on moving vehicles 5. prohibited objects within the plainview of an agent of the

law and open to his eyes and hands


89

PRIVACY OF COMMUNICATION Section 3 provides that: The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. What is the extent of the freedom of correspondence? The freedom of correspondence clause extends to all kinds of communications to convey ones views and sentiments. What are the modes of conveying ones thought? It may be through letters, telegrams, signals, cables, telephone or any other mode not prohibited by law. Are illegally secured evidences admissible in court?


90

Like illegally secured searches and seizures, the Constitution ordains the inadmissibility of any evidence obtained in violation of this right for any purpose in any proceeding. When may the privacy of communication and correspondence be validly violated? 1. upon lawful order of the court. 2. when public safety or order requires otherwise as

prescribed by law. FREEDOM OF EXPRESSION AND ASSEMBLY Section 4 provides that: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. What is speech to man?


91

Speech is the body and soul of man without which his existence becomes empty and meaningless. The resume of the sacredness of a God-given gift which is inalienable. It includes the ancillary right to access to information on matters of public concern. While freedom of expression is sacred, such right however is neither a license nor is it illimitable. What are not permitted in the exercise of freedom of expression? The publications and utterances of libelous, blasphemous, or indecent articles, or other publications injurious to public morals or private reputation. Likewise, the existence of government is entitled to protection against seditious attacks. What is the scope of the freedom of expression clause of the Constitution? It covers the entire gamut of human affairs. The use of symbols, signals, signs, pictures, monuments or any mode of conveying ones thoughts or views including the right to


92

remain silent, come within the purview of the freedom of expression clause of the Constitution. What is the purpose of the freedom of expression clause of the Constitution? The fundamental purpose is to give every individual the right to speak out his mind, float ideas in the open market and invite intellectual dispute with the end purpose of provoking every person to contribute his ideas, thought and views on any matter that will help shape a community that is the product and embodiment of their ideas and thoughts peddled in an atmosphere of complete liberty without prior restraint and fear of subsequent punishment. Two important components the freedom of expression carries:

freedom to speak and write without prior government restriction

freedom from any punishment as a consequence of such speech, utterance or writing


93

What is prior restraint as anathematic to the freedom of expression clause?

Prior restraint carries the import that the State should not, as a matter of policy, imposed any restriction or condition before the freedom can be exercised.

Any prior condition attached to the right before an individual person is allowed to express his views or thought is prior restraint which is offensive to the constitutional command.

Explain subsequent punishment as a curtailment of the freedom of expression. It means that in order to make the freedom of expression more meaningful, there must be an assurance that after making any utterance or publication, the author is not subject to any form of punishment. If the State would imposed punishment as a condition for such exercise, it would negate the right and make the freedom of expression a mockery and a delusion.


94

Like any other freedom, the right to expression is not absolute. What are the standards that may be used in judging whether the author of a publication or speech or writing may be made liable?

The clear and present danger . . . a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before the utterance can be punished.

Dangerous tendency rule . . . if the words uttered create a dangerous tendency which the state has to prevent, then such words are punishable. It is sufficient that the advocacy be in general terms. Mere tendency to create evil will suffice to subject the author to punishment. Under this rule, it is not necessary that immediate acts of violence and unlawfulness be done. It is sufficient that the utterance tends to incite the people to do violence or any other unlawful act.


95

Balancing-of-interests doctrine . . . gives the Court the prerogative, in case there is a collision between two rights, to determine which right demands the greater protection. It requires a Court to take conscious and detailed consideration of the interplay of interests observable in a given type of situation. Right of Assembly and Petition What is the nature and basis of the peoples right to assembly and petition the government of their grievances? The right of assembly is the right of the citizens to meet peaceably for consultation in respect to public affairs. Right of Petition

The right of petition is the right of a person or group to apply without fear of penalty, to the appropriate branch of government for the redress of grievances.


96

The right of assembly and petition is a necessary consequence of republican institution and the complement of the right of free speech.

RELIGIOUS FREEDOM Section 5 provides that: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall forever be allowed. No religious test shall be required for the exercise of civil and political rights. What is Religion? Religion is ones relation to his God-Creator. What is religious freedom?


97

Religious freedom is the right of the individual to worship God according to the dictates of his conscience or not to worship him at all. What is the guaranty of the freedom of religion clause? The freedom of religion clause of the Constitution guarantees mans liberty to worship his Maker in whatever form and in whatever language as long as the expression does not collide with accepted norms of social order and decency. The serenity of ones communion with his Master is not however absolute. If the actualization of ones belief is at war with established standards of morality, decency, public order, policy and the law, then the act may be restrained by the State in the name of law and order. What is the nature and extent of religious freedom? Religious freedom is the right of an individual to worship God according to the dictates of his conscience, or not to worship him at all. The right is intended to allow every man to entertain such notions respecting his relations to his Master


98

and the duties imposed, as maybe approved by his judgment and conscience and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others and to prohibit any legislation for the support of any religious tenets or the modes of worship of any sect. Two aspects of religious freedom:

Freedom to believe it is absolute, infinite and limitless and beyond regulation.

Freedom to act it may be regulated if the actualization of such beliefs clashes with accepted norms of social behavior and established order and decency.

What is meant by no establishment of religion clause of the Constitution? Neither the State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. It was intended to erect a wall of separation between the Church and the State.


99

What are the acts prohibited under the guaranty of religious freedom?

1. the enactment of laws prohibiting the establishment of religion.

2. the enactment of laws prohibiting the free exercise thereof.

3. the enactment of laws prohibiting the free exercise and enjoyment of religious profession and worship and enacting discriminating laws.

4. religious

Documents

The 1987 Philippine Constitution