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PRINCIPLES AND POLICIES

Q: Are the provisions in Article II self‐executing? A: No. By its very title, Article II of the Constitution is a “declaration of principles and state policies.” However, principles in Article II are not intended to be self‐executing principles ready for enforcement through the courts. They are used by the

judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws.

(Tondo Medical v. CA, G.R. No. 167324, July 17, 2007)

Note: As a general rule, these provisions are non‐self‐executing. But a provision that is complete in itself, and provides sufficient rules for the exercise of rights, is self‐executing. Thus, certain provisions in Art. II are self‐executing, one of which is that provided in Section 16, Art. II, “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.(Oposa v. Factoran, G.R. No. 101083, July, 30, 1993)

PRINCIPLES AND POLICIES Q: Are the provisions in Article II self‐executing? A: No. By its very

Q: What is a Republican State? A: It is a state wherein all government authority emanates from the people and is exercised by representatives chosen by the people. (Dissenting Opinion of J. Puno, G.R. No. 148334, January 21, 2004 and Bernas Primer, 2006 Edition)

Q: What are the manifestations of Republicanism?

A: The following are the manifestations of Republicanism:

  • 1. Ours is a government of laws and not of men.

  • 2. Rule of Majority (Plurality in elections)

  • 3. Accountability of public officials

  • 4. Bill of Rights

  • 5. Legislature cannot pass irrepealable laws 6. Separation of powers

Note: In the view of the new Constitution, the Philippines is not only a representative or republican state but also shares some aspects of direct democracy such as “initiative and referendum”.

Q: What do you understand by Constitutional Authoritarianism? A: Constitutional authoritarianism as understood and practiced in the Marcos regime under the 1973 constitution was the assumption of extraordinary powers by the President, including legislative and judicial and even constituent powers.

Q: Is constitutional authoritarianism compatible with a republican state? A. Yes, if the Constitution upon which the Executive bases his assumption of power is a legitimate expression of the people’s will and if the Executive who assumes power received his office through a valid election by the people. (Bernas Primer, 2006 Edition)

Note: The essence of republicanism is representation and renovation, the selection by the citizenry of 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.

Q: What is the State policy regarding war? A: The State renounces war as an instrument of national policy. (Sec. 2, Art. II, 1987 Constitution)

Q: Does the Philippines renounce defensive war?

A. No, because it is duty bound to defend its citizens. Under the Constitution, the prime duty of the government is to serve and protect the people.

Note: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Section 2, Article II, 1987 Constitution)

What are the policies of the State on the following? Working men Ecology They symbols of statehood

Cultural minorities

5. Science and Technology

A:

  • 1. Section 14, Article XIII of the Constitution provides: "The State shall protect working women by providing safe and

healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation."

  • 2. Section 16, Article II of the Constitution provides: The State shall protect and advance the right of the people and

their posterity to a balanced and healthful ECOLOGY in accord with the rhythm and harmony of nature."

  • 3. Section 1, Article XVII of the Constitution provides: "The Flag of the Philippines shall be red, white, and blue, with a

sun and three stars, as consecrated and honored by the people and recognized by law." Section 2, Article XVI of the Constitution states: “The Congress may by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum."

  • 4. Section 22, Article II of the Constitution provides: The State recognizes and promotes the rights of indigenous

cultural communities within the framework of national unity and development." Section 5, Article XII of the Constitution reads: “The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well‐being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of the ancestral domains." Section 6, Art. XIII of the Constitution provides: “The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources,

including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farm workers in its own agricultural estates which shall be distributed to them in the manner provided by law." Section 17, Article XIV of the Constitution states: "The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies."

  • 5. Section 17, Article II of the Constitution provides: "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." Section 14, Article XII of the Constitution reads in part: "The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high‐level technical manpower and skilled workers and craftsmen shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. Sub‐section 2, Section 3, Article XIV of the Constitution states: "They (educational institutions) shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency." Section 10, Article XIV of the Constitution declares: "Science and Technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, services. It shall support indigenous, appropriate, and self‐reliant scientific and cultural capabilities, and their application to the country's productive systems and national life."

Section 11, Article XIV of the Constitution provides: "The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants‐in‐aid or other forms of Incentives shall be provided to deserving science students, researchers, scientists, investors, technologists, and specially gifted citizens." Section 12, Article XIV of the Constitution reads: “The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage widest participation of private groups, local governments, and community‐based organizations in the generation and utilization of science and technology."

Q: Does the 1987 Constitution provide for a policy of transparency in matters of public concern?

A: Yes, the 1987 Constitution provides for a policy of transparency in matters of public interest:

1. Section 28, Article II of the 1987 Constitution provides: "Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full disclosure of all its transactions involving public interest,"

2. Section 7, Article III states: "The right of the people to information on matters of public concern shall be recognized, access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law." 3. Section 20, Article VI reads: "The records and books of account of the Congress shall

be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each member." 4. Section 17, Article XI provides: sworn statement of assets, liabilities and net worth of the President, the Vice‐President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commission and other constitutional offices, and officers of the armed forces with general or flag rank filed upon their assumption of office shall be disclosed to the public in the manner provided by law.

  • 5. Section 21, Article XII declares: "Information on foreign loans obtained or guaranteed by the government shall be made available to the public."

Note: These provisions on public disclosures are intended to enhance the role of the citizenry in governmental decision‐making as well as in checking abuse in government. (Valmonte vs. Belmonte, G.R. No. 74930, Feb. 13, 1989)

Q: What is the Doctrine of Incorporation? A: It means that the rules of International law form part of the law of the land and no legislative action is required to make them applicable in a country. By this doctrine, the Philippines is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. (Tañada v. Angara, G.R. No. 118295, May 2, 1997)

Q: What is the Doctrine of Auto‐limitation? A: It is the doctrine where the Philippines adhere to principles of international law as a limitation to the exercise of its sovereignty.

Note: The fact that the international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. (Philip Morris, Inc. v. CA, G.R. No. 91332, July 16, 1993)

What is the “incorporation theory” or the “Incorporation Clause” of the Constitution?

It is the principle embodied in Section 2, Article II of the Constitution which states that “The Philippines adopts the generally accepted principles of international law as part of the law of the land”. (MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70) As such, even if the Philippines is not a signatory to a generally accepted principle of international law like the Geneva Convention on Land Warfare, it may validly use the same in the trial of war criminals during the Second World War. KURODA VS. JALANDONI, 83 Phil 171, and AGUSTIN VS. EDU, 88 SCRA 195).

In case of conflict between a constitutional right of a citizen and a generally accepted principle of international law, which shall prevail?

In the case of REYES VS. BAGATSING, 125 SCRA 553, the Supreme Court held that the constitutional right shall prevail. Though Article 22 of the Vienna Convention on Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy, the same shall give way to the constitutional right of the citizens to “peaceably assemble and to petition the government for redress of their grievances”.

Q: What is meant by the principle of Civilian Supremacy? A: The civilian authority is, at all times, supreme over the military.

Q: How is civilian supremacy ensured? A:

1. By the installation of the President, the highest civilian authority, as the commander‐in‐chief of all the armed forces of the Philippines.

(Sec. 18, Art. VII, 1987 Constitution)

  • 2. Through the requirement that members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of civil

government. (Sec. 5[1], Art. XVI, 1987 Constitution)

Q: Can a person avoid the rendition of military services to defend the State? A: No. One cannot avoid compulsory military service by invoking one’s religious convictions or by saying that he has a sick father and several brothers and sisters to support. Accordingly, the duty of government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist therein. The right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen.” (People v. Zosa, G.R. No. L‐45892‐93, July 13, 1938).

May a citizen refuse to render personal military service/training because he does not have military inclination or he does not want to kill or be killed?

No as held in PEOPLE VS. LAGMAN, 66 Phil. 13. “The appellant’s argument that he does not want to join the armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not acceptable because it is his obligation to join the armed forces in connection with the “defense of the State” provision of the Constitution.

Q: What are the provisions of the Constitution that support the principle of separation of Church and State?

The non‐establishment clause. (Sec. 5 of Art. III) Sectoral representation in the House of Representatives. Various sectors may be represented except the religious sector. (Par. 2, Sec. 5 of Art. VI)

  • 3. Religious groups shall not be registered as political parties. (Par. 5, Sec. 2, Art. IX‐C, 1987 Constitution)

Note : Exceptions to the above‐mentioned rule are the following provisons :

  • 1. Churches, parsonages, etc. actually, directly and exclusively used for religious purposes shall be exempt from taxation. (Article VI, Section 28[3]);

  • 2. When priest, preacher, minister or dignitary is assigned to the armed forces, or any penal

institution or government orphanage or leprosarium, public money may be paid to them (Article VI, Section 29 [2]);

  • 3. Optional religious instruction for public elementary and high school students (Article XIV, Section 3 [3]);

Is the “separation of church and state” a myth or a reality?

It is a reality as shown by the following provisions of the Constitution.

  • 1. ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS.

  • 2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually,

directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

  • 3. ART. VI, Sec. 29. (2). No public money or property shall be appropriated, applied, paid, for the

benefit, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except when such priest, minister is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

  • 4. ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties.

(NOTE: Religious organizations are also prohibited in connection with sectoral representatives under

Art. VI)

  • 5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall be allowed to be taught to

their children in elementary and high schools within the regular class hours by instructors

designated or approved by religious authorities to which said children belong, without additional cost to the government

Q: What is the Strict Separationist Approach? A: Under this approach, the establishment clause was meant to protect the State from the church, and the State’s hostility towards religion allows no interaction between the two. (Estrada v. Escritor, A.M. No. P‐02‐1651, June 22, 2006)

Q: What is the Strict Neutrality Approach? A: It is not hostile in religion, but it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require accommodation of secular programs to religious belief. (Estrada v. Escritor, A.M. No. P‐02‐1651, June 22, 2006)

Q: What is the theory of Benevolent Neutrality?

A: Under this theory the “wall of separation” is meant to protect the church from the State. It believes that with respect to governmental actions, accommodation of religion may be allowed, not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. (Estrada v. Escritor, A.M. No. P‐02‐1651, June 22, 2006) Q: What theory is applied in the Philippines? A: In the Philippine context, the Court categorically ruled that, “the Filipino people, in adopting the Constitution, manifested their adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion clauses. (Estrada v. Escritor, A.M. No. P‐02‐1651, June 22, 2006) Q: What are the three kinds of accommodation that results from free exercise claim?

Those which are:

Found to be constitutionally compelled, i.e. required by the Free Exercise Clause (mandatory), Discretionary or legislative, i.e. not required by the Free Exercise Clause (permissive),

  • 3. Prohibited by the religion clauses (prohibited).

Note: Based on the foregoing, and after holding that the Philippine Constitution upholds the benevolent neutrality doctrine which allows for accommodation, the Court laid down the rule that in dealing with cases involving purely conduct based on religious belief, it shall adopt the strict‐ compelling State interest test because it is most in line with the benevolent neutrality‐accommodation.

Q: What is Mandatory Accommodation? A: This is based on the premise that when religious conscience conflicts with a government obligation or prohibition, the government sometimes may have to give way. This accommodation occurs when all three conditions of the compelling State interest test are met.

Q: What is Permissive Accommodation? A: It means that the State may, but is not required to, accommodate religious interests.

Q: What is Prohibited Accommodation? A: This results when the Court finds no basis for a mandatory accommodation, or it determines that the legislative accommodation runs afoul of the establishment or the free exercise clause. In this case, the Court finds that establishment concerns prevail over potential accommodation interests.

Note: The purpose of accommodations is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religions.

What are the factors to be considered by the Philippines in dealing with other nations?

As provided in Section 7 of Art. II, the Philippines shall pursue an independent foreign policy. In its

relations with other states the paramount consideration shall be [1] national sovereignty, [2] territorial integrity, [3] national interest, and [4] the right to self-determination,

Is there absolute prohibition for the Philippines to be equipped with nuclear weapons?

No, as stated in Section 8, Art. II, “the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” As such, if it is consistent with national interest, the same is not prohibited.

Is “divorce” prohibited by the 1987 Philippine Constitution?

Father Bernas opines that the provision of the Constitution (Section 12, Art. III) Which provides in part that the “State shall strengthen the family” does not take a stand on divorce though it appears that a divorce law would “break” the family instead of “strengthening” it. As such, a Divorce Law to be passed by Congress may or may not be unconstitutional.

Is abortion allowed in the Philippines?

Section 12, Art. II prohibits all forms of abortion except “therapeutic abortion” or when the life of the mother is in danger. (Note: In the United States, abortion is allowed but only up to the 2nd trimester of the pregnancy [ROE vs. WADE])

Is the provision of the Reproductive Health law allowing contraceptives violative of Section 12, Art. II of the Constitution which prohibits abortion?

No provided said contraceptives do not kill or destroy a fertilized ovum. But contraceptives that prevent the union of male sperm and female ovum are not prohibited by the Constitution. Contraceptives before fertilization are not prohibited. (IMBONG VS. OCHOA, GR No. 204819, April 8, 2014)

Does the provision of the RH Law allowing a spouse to undergo reproductive health procedures like tubal ligation or vasectomy without the knowledge and consent of the husband constitutional?

It is unconstitutional because it violates the provisions on “family. Family is shared by both spouses. One person cannot complete a family. There should be mutual decision- making on the part of the spouses on said procedures. IMBONG VS. OCHOA, GR No. 204819, April 8, 2014)

Does the provision of the RH Law allowing contraceptives violative of the constitutional provision on the right to health since contraceptives are hazardous to one’s health?

No. There exists adequate safeguards in the RH Law which safeguards that only contraceptives which are safe shall be made available to the public because

dispensation and distribution of contraceptives shall still require the prescription of a physician. IMBONG VS. OCHOA, GR No. 204819, April 8, 2014)

Is a law prohibiting the sale of “girlie (bold) magazines” to minors violates the right of parents in rearing their children for civic efficiency?

No, as held in the case of GINSBERG VS. NEW YORK, 390 US 629 (1969), a law

prohibiting the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…”

May the State prohibit the teaching of a particular language in any school?

No as held in MEYER VS. NEBRASKA, 260 US 260 (1922) because the child is not a mere creature of the State and the parents have the natural right and duty of rearing their children for civic efficiency.

May the State require parents to enrol their small children only to public schools valid?

As held in PIERCE VS. SOCIETY OF SISTERS, 268 US 510 (1925), a law requiring small kids to be enrolled in public schools only is unconstitutional since it interferes with the right of parents in rearing their children. They have the right to choose which school is best suited for the development of their children without interference from the State. THIS IS SO BECAUSE THE CHILDREN ARE NOT MERE CREATURES OF THE STATE.

Do we practice the free enterprise system in the Philippines or is it the

welfare state concept? Distinguish the two. As held in ACCFA VS. CUGCO, 30 SCRA 649 “the Philippines never practiced the free enterprise system. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform, housing, protection to labor… (NOTE, however, that the 1987 Constitution have provisions which provide for “free enterprise). The said doctrine was reiterated in PHILIPPINE COCONUT DESICCATORS VS. PHILIPPINE COCONUT AUTHORITY, 286 SCRA 109 where it was held that the Philippine Constitutions, starting from the 1935 document, HAVE REPUDIATED laissez faire (or the doctrine of free enterprise) as an economic principle, and although the present Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare. As such, free enterprise does not call for the removal of “protective regulations” for the benefit of the general public. This is so because under Art. XII, Sections 6 and 9, it is very clear that the government reserves the power to intervene whenever necessary to promote the general welfare and when the public interest so requires.

Is the Trade Liberalization Act of 2000, RA No. 8762 which allows foreigners to engage in retail trade in the Philippines violative of Secs. 9, 19 and 20, At. II of the Constitution which mandates that the national economy shall be effectively controlled by Filipinos?

No, said law is constitutional. As held by the Supreme Court in REP. GERARDO ESPINA ET AL VS. EXEC. SEC. RONALDO ZAMORA, G.R. No. 143855, September 21, 2010 (The Trade Liberalization Act of 2000, RA No. 8762) which allows foreigners to engage in retail trade in 4 categories is not unconstitutional for alleged violation of Secs. 9, 19 and 20 of Art. II which mandates that the national economy shall be effectively controlled by Filipinos. The constitutional provisions does not prohibit foreign investments BUT ONLY TO REGULATE THE SAME. As such, the claim that as a result of the law, WALMART and KMART retailers could come to the Philippines and would KILL Filipino retailers has no basis because foreign participation in retail business is limited.

May the PCGG Commissioners refuse to appear before a Senate Committee conducting alleged irregularities committed by them while sitting in the Board of PHILCOMSAT, a private firm sequestered by the government on account of Executive Order No. 1 providing that they should not be the subject of any

investigation in connection with their acts in connection with the performance of their duties as such?

No. Such act would violate Section 28, Art. II of the Constitution mandating disclosure of all public transactions involving the public interest. Such act would also violate the “right to information on matters of public concern” as well as the “public accountability of public officials” as embodied in Section 1, Art. XI of the 1987 Constitution, not to mention that such would render nugatory the power of Congress under Section 21, Art. VI. IN FACT, GOVERNMENT OFFICIALS HAVE ONLY A LIMITED RIGHT TO PRIVACY. (SABIO VS. GORDON, 504 SCRA 704)