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CHAPTER

2:
THE
CONSTITUTION

NATURE

OF

THE

Definition
-

Cooley: that body of rules and maxims in


accordance w/ w/c the powers of
sovereignty are habitually exercised
Justice Malcom: the written instrument
enacted by direct action of the people by
w/c the fundamental powers of the gov.
are established, limited & defined, & by
w/c those powers are distributed among
the several depts. For their safe & useful
exercise for the benefit of the body
politic.

Purposes
-

To prescribe the permanent framework of


system of gov.
To assign to the several depts. their
respective powers & duties
To establish certain first fixed principles
on w/c gov. is founded.
When it comes to basic individual rights
(religious freedom) it is not the
Constitution that creates of confers them.
The Constitution merely recognizes &
protects these rights & does not bring
them to existence
not the origin of private rights; it is not
the fountain of law nor the incipient state
of gov.; it is not the case but the
consequence of personal and political
freedom

Supremacy of the Constitution


-

It is the basic & paramount law to w/c all


other laws must conform & to w/c all
persons must defer.
No act shall be valid, however noble its
intentions, if it conflicts w/c the
Constitution.
All must bow to the mandate of this law.
Must be upheld as long as it has not been
changed by the sovereign people lest its
disregard result in the usurpation of the
majesty of law by the pretenders to
illegitimate power.

Classification (WU-EE-RF)
-

(1)
Written/unwritten,
evolved/enacted, (3) rigid/flexible

(2)

Written one whose percepts are


embodied in one document or set of
documents
Unwritten consists of rules w/c have not
been integrated into a single, concrete
form but are scattered in various sources,
such as statutes of a fundamental
character,
judicial
decisions,
commentaries of publicists, customs &
traditions, & certain common law
principles.
Conventional an enacted constitution,
formally struck off at a definite time &
place ff. a conscious or deliberate effort
taken by a constituent body or ruler.
Cumulative result of political evolution,
not inaugurated at any specific time but
changing by accretion rather than by any
systematic method.
Rigid can be amended only by a formal
& usually difficult process
Flexible can be changed by ordinary
legislation
Philippine
Constitution

written,
conventional, & rigid.

Essential
Qualities
Constitution (BBD)

of

the

Written

1. It must be Broad it is supposed to


embody the past, to reflect the present &
to anticipate the future
- must be comprehensive enough to
provide for every contingency
- Constitution
is
not
only
the
imprisonment of the past but the
unfolding of the future, to w/c it may be
added that it is also the fulfillment of the
present.
2. It must be Brief and confine itself to
basic principles to be implemented w/
legislative details more adjustable to
change & easier to amend
- Otherwise, it would be a prolix &
voluminous codification inaccessible to
the understanding / even only the interest
of the people & unable to adapt readily to
changing conditions because of the
difficulty of its amendment
3. It must be Definite lest ambiguity in its
provisions
result
in
confusion
&
divisiveness among the people & perhaps
even physical conflict
- Exception is found only in those cases
where the rules are deliberately worded
in a vague manner (like the due process

clause) to make them more malleable to


judicial interpretation
Essential
Parts
Constitution (LSG)

of

the

Written

1. The Constitution of Liberty consists of a


series of prescription setting forth the
fundamental civil & political rights of the
citizens & imposing limitations on the
powers of gov. as a means of securing the
enjoyment of those rights
- Found in: Arts. III, II, IV, V, & XII.
2. The Constitution of Government
consists of a series of provisions outlining
the organization of the gov., enumerating
its powers, laying down certain rules
relative to its admin., & defining the
electorate.
- Found in: Arts. VI to XI.
3. The Constitution of Sovereignty consists
of provisions pointing out the mode /
procedure in accordance w/ w/c formal
changes in the fundamental law may be
brought about.
- Found in: Art. XVII.
Permanence of the Constitution
-

Advantage of written, conventional & rigid


constitution is permanence capacity to
resist capricious / whimsical change
dictated not by legitimate needs
A Constitution must be firm & immovable;
is not easily to be tampered w/ to suit
political expediency, personal ambitions /
ill-advised agitation for change
May also be a disadvantage - where the
written constitution is unable to adjust to
the need for change justified by new
conditions & circumstances
Difficulty of the amending process may be
responsible for delay in effecting needed
change & thus cause irreparable injury to
public interest
May become an impediment rather than a
spur to progress, a treadmill to the nation
seeking to liberate itself from the
shackles of obsolete rules no longer
conformable to their needs & aspirations
People may have to resort to violate the
permanent constitution & if they cannot
make a new one, they will have to revolt.

Interpretation

The Constitution should be read in


accordance w/ the usual rules of
interpretation & construction
Should be interpreted in such a way as to
give effect to the intendment of the
framers (discoverable in the document
itself or through extrinsic aids (records of
constitutional convention))
Must be interpreted according to the
changes inevitably transpiring in the
history of the nation progressive
It must change w/ the changing times lest
impede the progress of the people w/
antiquated rules grown ineffective in a
modern age
Justice
Winslow:
The
political
/
philosophical aphorism of one generation
is doubted by the next & entirely
discarded by the third. The race moves
forward constantly and no Canute can
stay its progress
In case of doubt, the constitution should
be considered (1) self-executing rather
than non-self-executing; (2) mandatory
rather than directory; & (3) prospective
rather than retrospective.
Self-executing provision a rule that by
itself is directly or indirectly applicable
w/o need of statutory implementation (ex.
Bill of Rights may be invoked by proper
parties independently of / even against
legislative enactment.
Collector of Customs v. Villaluz Judges
derive from Art. III, Sec. 2 the authority to
conduct preliminary investigations to
determine probable cause for the
issuance of a search warrant or warrant of
arrest, w/c power may not be withdrawn /
restricted by the legislature.
Similar observation been made in other
cases concerning the Pres. power of
control over all depts. under Art. VII, Sec.
17.
Non-self-executing provision remains
dormant unless it is activated by
legislative implementation (ex. Art. II,
Sec. 4 all citizens may be required under
conditions provided by law to render
personal military or civil service); cannot
be imposed until & unless the legislature
so wills, through the passage of a law
specifying the conditions.
Ex. 2 Art. IV, Sec. 3 Philippine
citizenship may be lost or reacquired in
the manner provided by law does not

case the loss or recovery of citizenship, it


is the implementing statute that will.
GR: Provisions of the constitution should
be considered self-executing
EXPN: Unless the contrary is clearly
intended
Reason: contrary rule would give the
legislature
discretion
to
determine
when/whether they shall be effective &
would be subordinated to the will of the
law-making body.
Implementation
may,
however,
be
imposed as a duty upon the legislature by
mandatory language of the constitution
(Art. X, Sec. 19), the legislature could not
unduly delay creation of the body.
GR: Provisions of the consti should be
regarded as mandatory
EXPN: Clear showing of a contrary
intention
Otherwise, they will serve as mere set of
directions w/c the government & the
people would be free to disregard
As a rule, whenever the lang. in the
Consti is prohibitory, it is to be
understood as intended to be a positive &
unequivocal negation; & whenever the
language contains a grant of power, it is
intended as a mandate, not a mere
direction.
GR: Prospective application of the Consti
EXPN: Unless contrary is clearly intended
Otherwise, rights already acquired/vested
might be unduly disturbed/withdrawn
even in the absence of an unmistakable
intention to place them w/in the scope of
the constitution

Amendment or Revision
-

Change in the Consti may be effected by


a mere modification in its interpretation
by the courts of justice
Where
provisions
are
ambiguously
worded, judges may read out of them, in
the light of altered conditions, meanings
that at an earlier time were considered
heretical
People v. Pomar (1924) SC declared
unconstitutional a law granting maternity
leave privileges to female employees on
the ground that it impaired the obligation
of contracts.
At present, however, the impairment
clause has not undergone any change in

language since then, such privileges are a


commonplace.
Social legislation has been sustained
under the expanded concept of police
power as a valid limitation of the freedom
of contract
There are provisions of the Consti which
are not as malleable to judicial
interpretation age qualifications of
certain officers or their term of office and
composition of Commission on Audit,
cannot be reduced or increased by a
mere court decision (modification of such
rules may be effected either by
amendment / revisions under Art. XVII.
Amendment isolated or piecemeal
change only
Ex. 1935 Constitution term of office of
President changed from 6 to 4 years
Revisions revamp or rewriting of the
whole instrument
Ex. Constitutional Commission of 1986
rewrote the Marcos charter and produced
the 1987 Constitution

Procedure
(1)Proposal
- Generally made (1) directly by the
Congress,
by
a
(2)
constitutional
convention (Art. XVII, Sec. 1) or through
(3) peoples initiative (amendments only)
(Art. XVII, Sec. 2)
- Where what is intended is a mere
amendment or change of particular
provisions only, the proposal is better
made by direct legislative action.
- The vote of at least of all the members
of the Congress shall be needed
- Method will avoid the unnecessary
expenditure of public funds & time that
the calling of a constitutional convention
will entail
- If what is envisioned is a revision, it will
be advisable to entrust the task to a
constitutional convention, which will have
more time, opportunity & presumably
also the needed expertise to discharge it
- Call for a constitutional convention may
be made by a vote of 2/3 of all the
members of the Congress
- If they cannot make up their mid, the
question of whether or not to call the
constitutional convention shall be thrown
by them to the people themselves, by at
least a majority vote

The last alternative is a plainly absurd


procedure permits the members of the
Congress to authorize waste of public
funds by calling on their constituents to
decide a question that is essentially
addressed to the legislators themselves
In effect, allowed to pass the buck
simply because they are unable to agree
on the decision the people expect them to
make
Occena v. COMELEC - Whatever the
nature of the change contemplated, the
choice of method of proposal is
discretionary upon the legislature
Imbong v. COMELEC Congress, acting as
a constituent body, may with the
concurrence of 2/3 of all its members call
a constitutional convention in general
terms
only.
Thereafter,
the
same
Congress, acting this time as a legislative
body,
may
pass
the
necessary
implementing law providing for the
details of the constitutional convention,
such as the number, qualifications, and
compensation of its members. This
statute may be enacted in accordance w/
ordinary legislative process
Peoples initiative third method of
proposal allowed by Art. XVII, Sec. 2
May be directly proposed by the people
through initiative upon petition of at least
12% of the total num. of registered
voters, of w/c every legislative district
must be represented by at least 3% of the
registered voters therein
No amendment under this section shall
be authorized w/in 5 years following the
ratification of this Constitution nor oftener
than once every 5 years thereafter. The
Congress
shall
provide
for
the
implementation of the exercise of such
right
Santiago v. COMELEC attempt to use
this method in 1997 was struck down by
SC for lack of the necessary implementing
law. Art. XVII, Sec. 2 was held to be not
self-executing, and RA 6735 provided for
a local initiative ONLY and not the
national initiative required for proposing
constitutional changes.
PIRMA v. COMELEC Santiago ruling was
reiterated and definitely ended the
attempt to remove the term limits of the
President and the members of the
Congress in the present charter

Note: Third method applies only to


amendments, not to a revision of the
Constitution
A. Position of the Constitutional
Convention
Three theories on the relative position of
constitutional convention vis--vis the
regular departments of the government
(1) Theory of Conventional Sovereignty Loomis v. Jackson holds that the
constitutional convention is supreme over
other depts. of the gov. because the
power it exercises are in the nature of
sovereign powers.
(2) Woods Appeal considers the
constitutional convention inferior to the
other departments of the gov. since it is
merely a creation of the legislature
(3) Frantz v. Autry declares that as long
as it exists and confines itself w/in the
sphere
of
its
jurisdiction,
the
constitutional
convention
must
be
considered independent of & co-equal
with the other departments of the gov.
Note: The third theory, w/c is the most
widely accepted, has been observed in
this jurisdiction since Mabanag v. Lopez
Vito.

(2)Ratification
- Art. XVII, Sec. 4 Any amendment to or
revision shall be valid when ratified by a
majority of the votes cast in a plebiscite
held not earlier than 60 days nor later
than 90 days after the approval of such
change by the Congress or the
constitutional convention OR after the
certification by the COMELEC of the
sufficiency of the petition under Sec. 2.
- This requirement involves the people
themselves in the sovereign act of
drafting or altering the Constitution.
- In the case of a statute, sufficient that it
is enacted by their chosen representative
- In the case of the Consti, imperative that
approval come directly from the people
themselves
- Ratification of the Consti must be done
w/in a reasonable time after they are
made because they are intended to
answer present needs
- Proposals should be voted upon at a time
when interest in them is still rife &
electorate is still knowledgeable on the

pros and cons of the issues submitted to


them
Judge Jameson: an alteration of the
Constitution proposed today has relation
to the sentiment and felt needs of today
and, if not ratified early while the
sentiment may fairly be supposed to
exist, it ought to be regarded as waived &
not again to be voted upon unless for a
second time proposed.
Gonzales v. COMELEC one of the issues
raised was the validity of the submission
of
certain
proposed
constitutional
amendments at a plebiscite scheduled on
the same day as the regular elections.
Petitioners argued that this was unlawful
as there would be no proper submission
of the proposal to the people who would
be more interested in the issues involved
in the election campaign. The SC
however, declared, in interpreting Art. XV
of the 1935 Constitution: There is
nothing in this provision to indicate that
the election therein referred to is a
special, not a general election. The
circumstance
that
the
previous
amendment to the Constitution had been
submitted to the people for ratification in
special elections merely shows that
Congress deemed it best to do so under
the circumstances then obtaining. It does
not negate its authority to submit
proposed amendments for ratification in
general elections.
Justice Sanchezs dissent: In order that
the proposed amendments could be
considered to have been properly
submitted, the people must be afforded
opportunity to mull over the original
provisions, compare them with the
proposed amendments, & try to reach a
conclusion as the dictates of their
conscience suggest, free from the incubus
of extraneous or possibly insidious
influence There must be a fair
submission,
intelligent
consent
or
rejection. Such fair submission, would be
possible only if the plebiscite were
scheduled on a special date.
Occena v. COMELEC SC affirmed the
majority view in Gonzales v. COMELEC
and sustained the simultaneous holding
in 1980 of the local elections and the
plebiscite on the proposal to restore the

retirement age of judges to seventy


years.
Judicial Review of Amendments
-

The question of the validity of the


adoption
of
amendments
to
the
Constitution is regarded now as subject to
judicial review
Mabanag v. Lopez Vito the question of
whether or not the Parity proposal had
been validly adopted in Congress was
political in nature has been rejected, as
early as in the case of Tanada v. Cuenco.
Present doctrine allows the courts to
inquire whether or not the prescribed
procedure for amendment has been
observed.
Sanidad v. COMELEC The SC assumed
jurisdiction
over
the
Sol.
Gen.s
contention that the amendment of the
Consti was a political question: We
disagree. The amending process, both as
to proposal & ratification, raises a judicial
question. This is especially true in cases
where the power of the Presidency to
initiate amending process by proposals of
amendments,
a
function
normally
exercised by the legislature, is seriously
doubted.
Thus, judiciary may declare invalid a
proposal adopted by less than of the
members of the Congress or a call for a
constitutional convention by less than 2/3
of the legislature, or a ratification made
by less than a majority of the votes cast,
or a plebiscite irregularly held.

The 1987 Constitution


-

4th fundamental law to govern the


Philippines since it became independent
on July 4, 1946.
(1) Commonwealth Constitution (1935)
which continued by its provisions to be
operative after the proclamation of the
RP.
(2) 1973 Constitution enforced during
the Marcos regime ff. its dubious approval
& ratification at a time when the country
was already under martial law.
(3) Freedom Constitution (1986) On Feb.
25, as a result of the people power
upheaval that deposed Pres. Marcos,
Aquino proclaimed it to be effective
pending the adoption of a permanent
constitution aimed at correcting the

shortcomings
of
the
previous
constitutions & specifically eliminating all
immoral vestiges of the past regime.
Aquino, in Proc. No. 9, created a
Constitutional Commission composed of
50 members to be appointed by her &
charged it to frame a new charter not
later than Sept. 2, 1986. All but one of
those
appointed
accepted
and
immediately undertook their mission
under the Presidency of Justice Cecilia
Munoz-Palma, formerly of the SC.
Members came from various sectors &
represented diverse persuasions; did not
meet their deadline and were able to
approve the final draft only on Oct. 15,
1986.
By resolution of the Commission, it was
recommended to the President that the

plebiscite on the proposed Consti be


scheduled, not w/in 60 days as originally
provided, but w/in 3 months, to give the
people more opportunity to study it.
Accordingly, it was scheduled & held on
Feb. 2, 1987.
Campaign for ratification was led by Pres.
Aquino herself, whose main argument
was that it would restrict the powers of
the Presidency as provided for in the
Freedom Constitution.
76.29% the electorate had voted to ratify,
with only 22.74% against