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HISTORY, POLITICS, GOVERNMENT, AND
CONSTITUTION IN THE PHILIPPINES

A SOCIOLOGICAL-JURIDICAL APPROACH

VIVENCIO O. BALLANO, Ph.D.

ABOUT THE AUTHOR

Dr. Vivencio (Ven) O. Ballano is a Special Lecturer of the Graduate School (MBA
Program) of Polytechnic University of the Philippines (PUP) and Associate Professor of
Sociology and Law at St. Paul University, Quezon City, Philippines. His specialized areas of
teaching and research include Sociology of Law, Love, Business Management, Religion,
Optical Media Law, Constitutional Law, Disaster Management Law and Copyright
Infringement. He obtained his master’s degree in Theology (MA) and doctoral degree (PhD)
in Sociology from the Ateneo de Manila University in 2011 and was chosen as a 2012 Post-
Doctoral Research Fellow of the Southeast Asian Studies Research Exchange Program
(SEASREP). He has read papers in local and international conferences and published
articles in journals, mostly in the area of copyright piracy and disaster management. He has
also published a textbook for his course on Politics, Government, and the Philippine
Constitution. He is a founding Board Member of the Philippine Association for the Sociology
of Religion (PASR) and a member of the Philippine Sociological Society (PSS). In 2013, St.
Paul University recognised his research work by awarding him the Best Researcher Award
for that year. He is the author of “Sociological Perspectives on Media Piracy in the
Philippines and Vietnam” (Springer Singapore 2016).
Follow him on Twitter @detectivebogart, LinkedIn@ Dr. Vivencio (Ven) Ballano,
BINGBING@venballano, Facebook @Ven Ballano Instagram@venballano, slideshare@Ven
Ballano and other social media sites. Visit his blog site @ wordpress.com/vballano. View
his profile @about.me/vballano.
COPYRIGHT
ALL RIGHTS RESERVED

Copyright 2016 by Vivencio O. Ballano

All rights reserved. No part of this book may be reproduced, copied, stored or transmitted in any
form or by any means – graphic, electronic or mechanical, including photocopying, recording, or
information storage and retrieval systems – without permission of the author, except in the case
of brief quotations embodied in critical reviews and other noncommercial uses permitted by
copyright law. For permission requests, contact the author at vballano@yahoo.com.

Cover Design: “A beach in Samar” (Image courtesy of the author)

OTHER BOOKS OF DR. BALLANO AVAILABLE AT AMAZON BOOKS KINDLE (Visit

Amazon Books and search Vivencio Ballano):
1. Sociological Perspectives on Media Piracy in the Philippines and Vietnam
(2016).

Published by Springer Science+Business Media Singapore (Also available at Springer.com)

2. Dealing with Rumors and Gossip: Your Five-Minute Sociological Guide

(December 2015, Amazon Kindle)
3. How to Deal with Rumors and Gossip: A Sociological Approach
(2016, Amazon Kindle)

4. Is It natural to Fall in Love?: A Sociological Guide to Love and Romance

 TABLE OF CONTENTS

INTRODUCTION

CHAPTER

I. THE WHAT, HOW AND WHY OF HISTORY

What is history?
Why do we study history?
How do we study history?

II. THE GOVERNMENT SYSTEM IN THE PHILIPPINES DURING THE SPANISH

PERIOD

The Executive Branch

The Legislative Branch
The Judicial Branch

III. STUDYING POLITICS, POWER AND LAW IN THE PHILIPPINES

Studying Politics, Power, and Authority

Approaches to Studying Power and Politics in the Philippines
Disciplines Studying Politics in Society
Understanding Law in Society
Law and Morality: Is it always Moral to be Legal?
Summary

IV. THE STATE AND GOVERNMENT

Understanding Society
Two Approaches in Defining the State
The Inherent Powers of the State
The Difference between the State, Government and Nation
The Importance of Government
The Difference between Presidential and Parliamentary
Forms of Government
Summary

V. THE PHILIPPINE CONSTITUTION

The Nature of a Constitution
Constitution and Statute
Methods of Changing the Constitution
Constitutions in Philippine History
The Basic Principles in the 1987 Constitution
Some Basic Constitutional Principles
The Three Branches of the Philippine Government
Summary

VI. THE BILL OF RIGHTS

The Nature of Human Rights

Types of Human Rights
Human Rights under the Bill of Rights
Summary

VII. LAW AND LEGISLATIVE POWER IN THE PHILIPPINES

Legislative Power
Constitution Distinguished from Statute
National and District Legislators
Sessions of Congress
How Congress Makes Laws or Statutes
Summary

VIII. THE EXECUTIVE BRANCH

The Nature of Executive Power

The Qualifications of the President and Vice President
Powers of the President
Presidential Succession
Causes of Removal of the President
Summary

IX. JUDICIAL POWER AND THE JUDICIARY

Judicial Power
Composition of the Supreme Court
Powers of the Supreme Court
Problems in Philippine Courts
Membership in the Judiciary
The Judicial and Bar Council (JBC)
Summary

BIBLIOGRAPHY

GLOSSARY
 INTRODUCTION

This book aims to orient readers who are interested to know some basic concepts and
principles on Philippine politics, law, government, constitution, and spirituality of social
transformation. These topics are indeed broad and one book for this would surely be not enough
to discuss them comprehensively. Therefore, this book is only introductory in nature and selects
only important political matters which are deemed necessary, especially for lay people or college
students who are not majoring in Political Science, to become familiar with politics, law and
general operations of our government.

Unlike many books on Philippine politics and government, this book attempts to combine the
normative or the juridical approach of jurisprudence used by lawyers and judges and the
empirical or descriptive approach of the social sciences, particularly that of sociology. Normative
approaches, on the one hand, usually have ideal norms or a set of values to judge reality. They
evaluate social reality using these norms to judge whether a social practice deviates from these
standards or not, or whether it is right or wrong. The judgment of a normative approach is value-
laden or is often influenced by the value system of the observer. The reality is, therefore, judged
not “as it is” but “as it should be” in accordance with a certain set of values or laws in looking at
the world. Empirical approaches of the social sciences, on the other hand, merely judge reality
“as it is” based on the methods of science. They aim to know the facts based on scientific
observation and not on the opinionated views about facts based on the observer’s values or
norms. Thus empirical judgment aims to be value-free and to be detached as much as possible
from the personal views and biases of the observer. A trained political scientist usually brackets
his personal biases and values when assessing facts in order to understand the real dynamics of
politics and power in society.

The predominant normative approach used by many books on politics, government, and
constitution can be attributed to the fact that most of their writers are lawyers. It is no surprise
then that the content focuses more on the laws prescribed by legal codes and cases decided by
the Supreme Court. There is nothing wrong with this approach. The only problem we can
encounter is that we cannot fully appreciate how these legal prescriptions operate in actual
situations without some kind of social science research which aims to understand the social and
cultural underpinnings of these laws and cases. Sociology which aims to understand the
dynamics of society is of great help to provide the social and cultural contexts of these legal
prescriptions.
 This book is composed of eight (9) chapters corresponding to the eight topics on political
history, law, politics, government, and the Philippine Constitution. Some of the topics are placed
in tabular forms or contingency tables in order that readers can see differences and similarities.
For college students, a separate manual which contains a set of objectives, keywords, review
questions and exercises of each chapter is provided to allow them to apply the important
concepts and principles of the book.

This book could not have been made possible with the assistance of some people in St. Paul
University Quezon City (SPUQC). First, I would like to thank the administrators of the
university led by Sister Nilda Masirag, SPC, President and Sister Fidelisa Portillo, SPC, Vice-
President for Academics, for approving the use of this CD learning material in the classroom for
college students. I would like also to thank Dr. Ronel de la Cruz, Head of the Research and
Publication Center for his encouragement and support for this project. I am indebted to Dr.
Consuelo Paz, Research Director of the Research and Publication Center, and to Dr. Cecille
Medina, SPUQC Faculty Research Coordinator for the CASE faculty, for their generous support
for the completion of this book, particularly in accepting, reviewing, and editing the manuscript
despite the time constraint. Finally, I am grateful to my colleagues in the General Education
Department as well as to all people who have extended their help for their support and assistance
in actualizing this textbook. May our Good Lord through the intercession of Mama Mary and St.
Paul bless all your endeavors. May the Charity of Christ urge us on!
 CHAPTER 1

THE WHAT, HOW AND WHY OF HISTORY

What is history? How do we do history? Why do we need to study history, particularly

Philippine history? Why this textbook on Philippine history? These are the questions this short
introduction aims to elaborate modestly in a simplified manner.

What is history?

Like any other academic disciples, there are as many definitions as there many theories on
history. What is common, however, is the idea that the study of history is a systematic study of
the past. One cannot do history in the future or if the event has not yet being unfolded by
historical actors. Nevertheless, history is not merely the record of past events: it is “the record of
what one age finds worthy of note in another”. Another historian understands it as “a science
whose business is to study events not accessible to our observation, and to study these events
inferentially, arguing to them from something else which is accessible to our observation, and
which the historian calls ‘evidence for the events in which he is interested” (Philippine
Encyclopedia of the Social Sciences 1993: 1).

Ambeth Ocampo’s description of history is interesting. He proposes a working definition of

history as kasaysayan or history as narrative (which be written, visual, oral or a combination of
all these) about past events that has meaning to a certain group of people in a given time and
place. For him, the two components of kasaysayan—salaysay and saysay are inseparable.
Without both, one cannot have true history. He rejected the Western words for history which can
mean a mere narrative of past events. For him, history or kasaysayan is not just a narrative or
salaysay—it MUST have saysay or meaning. If one finds meaning in history, he said, it will gain
power to change people’s lives (Ocampo 2001: x).

Whatever definition or description one has on history, the fact remains that the process of
writing history is problematic and subject to different interpretation. It depends on what theory
or framework the historian is viewing the historical event. Its objectivity is always being tainted
by the personal biases and theoretical orientation of the historian.

Can there be an objective historical writing then? This question is part of a greater debate
in social sciences, particularly in ethnographic writing in anthropology, whether it is possible to
attain objectivity in writing. Postmodernists have long challenged the assumption that the mind
can attain an objective description of reality: there is no such thing as objectivity but only shared
subjectivity, that is, there is no fixed norm of what is objective but only a consensus of people in
a community on what is considered objective. For them, there are limits of what the mind can
describe and write. When one describes and writes an event, the writer can only capture a portion
of what s/he has seen using his/her sense of sight, other data which can be attained through the
other senses such as the smell, the sound, touch, and taste are obviously missed out. Words
cannot capture the totality of even for just one event or action. Moreover, historian as a writer
can only choose one perspective or point of view on how to describe the event. The post-
structuralists such as Jacques Derrida, the father of deconstruction theory, Michel Foucault and
others have warned us that a written text can have various levels of interpretation. In the field of
Hermeneutics, the act of thinking itself is already an act of interpretation. Thus, the
reconstruction and description of a historical event is an interpretation of the historian of the
interpretation of the writer of his/her source. If s/he uses a primary source or document, his/her
piece of writing is already a second level of interpretation. The author of that source is the first
interpretation. And s/he uses a secondary source, the historian’s view is third level of
interpretation. The reader of the historian’s account is also another interpreter who can
understand the historical writing different from the historian’s intention, and so on. That is why
Derrida and others declare that everything is text and interpretation. The diversity of Filipino
historians’ interpretation of certain historical events can attest to the contentious nature of
historical writing. Take for instance, the authenticity of Jose Rizal’s retraction before his
execution. Historians are divided and their interpretation of the documents and other evidence
differ from one another. Though they can be grouped together generally as anti-retractionists and
pro-retractionists, still there are variations of interpretations within the grouping. There is no
uniformity of views even with those who hold similar position to a historical issue.

Are there given facts? Even though there is diversity of opinion and interpretation of
historians to historical events, there are certain things which many historians agree as “historical
facts” which cannot be subjected to debate. Thus, some historical figures, dates and places are
generally considered as historical facts by historians. These conventions of particular history
which practitioners recognized as given or assumed to be true. Church historians, for instance,
agree that the Patronato Real de las Indias is responsible for the Christianization of the natives in
the Philippines, or that the Royal Audiencia served as the “Supreme Court” during the Spanish
period.

Why do we need to study history?

According to Carr (1970), history is a study of human achievement. The past is intelligent to
us only in the light of the present and the present can be fully understood only in the light of the
past. To enable us to understand society of the past and to increase our mastery over the society
of the present is the dual function of history (Carr 1970: 102). In short, we cannot fully
understand the present situation in Philippine society unless we have a firm grasp of the past.
This past whether during the Pre-Spanish, Spanish, American or any other period can only be
understood in the light of the present situation. Thus, one can only understand fully, for instance,
why People Power II occurred in such an organized manner to remove Joseph Estrada from the
Presidency if one fully appreciates what actually happened during EDSA People Power I which
deposed President Marcos from the presidency. Or one can only understand the present
economic crisis of the country if one learns the whole story of the interference of the United
States in the Philippine economy since its occupation of the country after the Spanish rule,
particularly the adoption of the parity rights provision in the constitution, free trade policy and
the removal of the protectionist policy of the economy by Philippine presidents loyal to America.
History sharpens our understanding of the present and compels us to look back what happened in
the past to grasp fully the our present social ills.

Says Ocampo: “The point to remember is that history does not repeat itself. We repeat
history” (Ocampo 2001:xviii). Thus, to avoid repeating the same mistakes and errors in the past
that plague the nation, it is imperative that young people, especially students who are future
leaders of this country, must study history and learn from its lessons.

How do we study history?

Though contemporary approaches in history use artifacts and testimonies, the writing of
history remains dependent upon the availability of primary sources of evidence, particularly
documentary sources. The axiom “No documents, no history” still lingers to the mind of many
historians. To construct history is to narrate it based primarily on reliable documents. The
historian constructs narratives, that is the telling of a succession of related episodes. His primary
work is to bring these episodes to light, to show the relations existing between events, and in
relating to explain them. Thus, history appears to be the expository narration of the course of
human societies in the past (PES: 3-4). The historian first proceeds to decide what people want to
know about, and then to go in search of statements about it, oral and written, purporting to be
made by the actors in the events themselves or the eyewitnesses have told them, or have told
their informants, or those who informed their informants, and so on.

Like any other social science like sociology and anthropology, history needs a find blend of
theory and historical data in reconstructing the past. Theory and data are inseparable components
in historicizing. The theory serves as a framework to interpret historical data, while historical
data determines the appropriate choice of historical theory. A good historian starts doing history
with an open mind and evaluates historical data critically in order to reconstruct the actual event.
S/he does not tailor historical data to fit them into his favorite theory or theoretical bias. Of
course, a historian can do inductive or deductive type of historicizing. In deductive approach, the
historian begins with a theory and search for historical data to confirm it. In inductive approach,
s/he begins with appreciation of historical data and proceeds to formulate his/her theory. In either
way, the historian as a scientist must assume an objective stance and must avoid making value
judgment. For Max Weber, a true scientist must be value-free in his/her judgment. S/he must
bracket his personal values or biases while making assessment on research data. In the same
manner, the historian must be value-free and neutral in his/her judgment in evaluating historical
facts in order to attain objectivity. Exaggerating or underestimating facts to accommodate one’s
theoretical bias, or choosing a historical theory that fits to one’s taste and twisting facts to
validate it, is not a sound and scientific way of doing history.

The problem with the so-called critical history especially the Marxist approach is that the
historians tend to manipulate the facts in order to fit them into their preferred theoretical
framework. The historian Renato Constantino falls into this trap of twisting some facts to suit
one’s theoretical taste. Because of his a conflict theorist and historian, his interpretation of
historical facts tend to be twisted in order to suit to his critical-Marxist interpretation of
Philippine history. For this reason, Constantino has been criticized for not being empirical
enough or balanced in his treatment of Philippine history. Says May (1987):

In evaluating previous scholarship, Constantino applies a curious yardstick—

whether or not the writer criticizes the former colonial masters. He is not
interested in balanced history. In his view, the Spaniards and the Americans were
simply bad rulers, and the aim of the historian should be to expose their abuses. If
a scholar writes a word in their defense—or if he attempts to be objective—he too
is bad, or at least misguided. Constantino only exhibits disdain for objectivity…
(May 1987: 5).

Aside from “tailoring” historical facts to suit the historian’s theoretical preference, the
danger of exaggerating facts to highlight only the glorious past and to inspire the next generation
is also another trap that the historian must avoid. This what Prof. Randy David characterized as
monumental history where the historian includes only in his/her writings the glorious or positive
side of history and excludes its negative or dark side in order to impress people about the
achievements of a nation and its heroes. Like the critical-Marxist approach, this type of history
lacks objectivity and balanced view of the past. In monumental history, the historian becomes
too selective in his/her choice of historical facts and abandons his responsibility to choose an
appropriate theory to interpret all historical data at hand in order impress others.

A more balanced exposition of history requires neutrality and impartiality of the historian
in choosing theory and historical data. Whether the approach is inductive or deductive, s/he
should pursue his/her historical methodology with rigor and scientific discipline. S/he must allow
the data to speak for themselves and choose a theory that best interpret them, without
precondition or bias.
 CHAPTER II
THE GOVERNMENT SYSTEM OF THE PHILIPPINES
DURING THE SPANISH PERIOD

I. The Branches of Government

The most popular way of understanding our Philippine government is by dividing it into
three branches and by describing each branch according to its overall function. Under the present
set-sup of our government, the three branches are as follows: the executive, legislative and
judicial. The executive branch simply implements or enforces the law, the legislative branch
enacts, modify or abolish the law, and the judicial branch generally interprets the law and settle
cases. Though there is a big difference, of course, between our government today and the
Spanish government in the colony during the Spanish era. Nevertheless, we can still identify
these three branches during the Spanish period. After all, our government today was a product of
the Spanish colonization. Using this three-fold function of the government as a basic framework
in identifying the colonial government, we can now describe these branches which were
introduced by Legazpi and his predecessors to establish the colonial state in our country.

A. The Executive Branch

The Spanish King and the Royal and Supreme Council of the Indies

Overall, the Spanish king, being the sovereign of Spain and its colonies, was the source of
all executive powers of subordinate officials governing the Indies and the Philippines. Because
of the vast territory controlled by Spain, the king delegated some of his executive powers to
officials directly responsible in running the affairs of the archipelago. From 1565 to 1821, the
Philippines was administered by the king of Spain through the viceroyalty of Nueva Espana or
Mexico. During this period, our country was a satellite or extension of the province of Mexico
where the governing body of all colonies of Spain called the Real y Supremo Consejo de las
Indias (Royal and Supreme Council of the Indies) was located. This council was established by
Charles V of Spain to assist the Spanish king in managing the affairs of the colonies abroad. It
received its executive power from the king and possessed discretionary powers on how to
implement the royal decrees and the collection of laws of the Indies (Recopilacion de leyes de los
reynos de las Indias) in the colonies. By May 1863, this council was replaced by another
governing body for the Indies—the Ministerio de Ultramar or the Ministry of Colonies
(Agoncillo 1990: 75)

1. The Governor-General as the Chief Executive

Today, the chief executive or the highest public official of the land that implements the law
under the 1987 Constitution is the President. During the Spanish period, however, the chief
executive was the Governor General. He was appointed by the King of Spain and as the latter’s
representative in the colony, he was also called as the vice-royal patron. The governor-general
enforced the king’s royal decrees and all other laws of the colony and Spain. His executive
powers include the following (Zaide 1999 104):

1) Commander-in-chief of the armed forces in the colony (Captain-General)

2) Appointing officer of colonial officials with powers to remove them, except those
appointed directly by the king.
3) Chief justice/president of the Royal Audiencia (Supreme Court)
4) Vice-royal patron or king’s representative with power to:

4.1) recommend priests as parish priests and to intervene in religious

controversies.
4.2) declare war or peace with neighboring countries in the Orient.

4.3) appoint to and receive ambassadors from these countries.

5) Administrator of the Marianas, the Carolines and the Palaus as part of the
Philippines during the Spanish times.

There were times, however, during the Spanish period that the chief executive of the
archipelago was not the Governor-General but the institution called the Royal Audiencia. The
Royal Audiencia (its establishment and main functions will be discussed in the legislative and
judicial branches below) acted governed the country for six times, 1606-08, 1616-18, 1632-33,
1677-79, 1689-90 and 1715-17, when the governorship was vacant due to the death or incapacity
of the incumbent governor general.

2. Local Officials

Some aspects of the government structure of the Philippine government today are inherited
from the Spanish colonial government. This is particularly true to local officials or public
officers below the chief executive who enforce the law. These are the officials who work in the
provincial, city, municipal and barangay levels of the executive branch of government. For
clarity, let us identifying and briefly describe their functions according to this hierarchical order.
Despite the changes in political structure during the long years of Spanish occupation, their main
features remained.
 1) Provincial Officials

For administrative purposes, the Philippines was divided into provinces and special districts.
The provinces were called alcadias or provinces and the special districts were called
corregimientos or districts. The alcadia or the provincial government is headed by the provincial
governor who is known as alcalde mayor who while district or corregidor is usually headed by
an army officer.

2) The Municipal Officials

2.1 The Qualification and Election of the Gobernadorcillo

Each province was divided into pueblos. The pueblo or town was the unit of local
government during the Spanish period. This was headed by a local official called
gobernadorcillo (little governor), popularly called capitan (his wife was called capitana). He
was assisted by four lieutenants: (1) teniente mayor (chief lieutenant), (2) teniente de policia
(lieutenant of police), (3) teniente de sementeras (lieutenant of the fields), and (4) teniente de
ganados (lieutenant of the cattle) (Zaide 1970: 82). The position of gobenadorcillo was the
highest government position a native or Chinese mestizo can occupy. If he was 25 years of age,
literate in oral and written Spanish, and who had been a cabeza de barangay for four years, he
can be elected as a gobernadoricallo (Agoncillo 1970: 77). We have to remember that the
elective position during this period was limited only to the election of the gobernadorcillo.
During the early years of Spanish rule, the gobernadorcillo was elected annually by all married
men in the town. Later, this system was changed. He was elected annually by a board of 13
electors: the outgoing gobernadorcillo, 12 electors selected by lot, 6 incumbent cabezas de
barangay (barangay captains) and 6 among former gobernadorcillos and cabezas (Ibid). The
parish priest and the provincial governor or representative presided over this type of election
(Zaide 1970: 82).

2.2 Administrative Duties of the Gobernadorcillo

The gobernadorcillo intervened in administrative cases involving lands, justice, finance, and
the armed forces. In particular, some of his many administrative include the following: (1)
preparation of the pardon (tribute list), (2) recruitment and distribution of men for the draft labor,
(3) communal public work (such as construction and repair of minor bridges) and the quinto
(military conscription) (4) postal clerk, and (5) and judge in civil suits involving P44.00 or less
(Agoncillo 1970: 77).

2.3 Cabeza de Barangay

 For administrative purposes, the pueblo was divided into barangays, each consisting of
about 50 families. King Philip II of Spain conferred upon barangay head the title of cabezas de
barangay to “show them good treatment and entrust them, in our name, with the government of
the Indians, of whom they were formerly the lords” (Agoncillo 1970: 80). The barangay (from
the word “balanghai” or ‘boat) was retained as the basic political unit during the Spanish period.
This was headed by a cabeza de barangay (his wife cabizana). To qualify, he must have a good
moral character and owned properties.

Like the gobernadorciallo, the cabeza de barangay was responsible for the peace and order
of his jurisdiction and for the recruitment of polistas or workers for communal public works. His
main role, however, was being the tax and contributions collector for the gobernadorcillo. In lieu
of these duties, the cabeza de barangay enjoyed some privileges which included non-payment of
tax, and if he has served for 25 years, he was exempted from forced labor (Agoncillo 1970: 78).

2.4 Limited Powers for Gobernadorcillo and Cabezas

Both the gobernadorcillo and cabeza de barangay did not receive salary from the
government. They were honorary positions. However, they were both exempted from forced
labor or polo and tribute or tributo. Because they usually came from the principalia or higher
social class in the pueblo, they were looked up to with respect by the working class.

Because of the policy of the union of Church and State prevailing during the Spanish period,
the real and authority power in the pueblo did not emanate from the gobernadorcillo and cabeza
de barangay but from the parish priest. Being a representative of the Church and a salaried
public official, his word was said to be the law in the pueblo. “His recommendations on all
matters affecting the town were heeded by the Spanish authority in Manila” (Zaide 1970: 83).

1) City Government

Big towns or pueblos in the Philippines during the Spanish period were created into cities
and were governed by special charters or laws. Each city had an ayuntamiento or cabildo or city
council. For instance, the City of Cebu which was established by Miguel Lopez de Legazpi in
1569 had a council consisting of 2 alcaldes ordinaries (equivalent to mayor and vice-mayor), 8
regidores (councilors), 1 secretary and 2 alguaciles (sheriffs). In the City of Manila in 1571, the
council consisted of 2 alcades ordinaries, 12 regidores, 1 aguacil mayor (chief constable), 1 royal
standard-bearer, and 1 secretary. By the year 1889, there were 8 cities in the Philippines: Manila,
Naga, Vigan, Albay, Batangas, Iloilo and Jaro (Zaide 1970: 83).

B. The Legislative Branch

Legislative power as defined by our present 1987 Constitution is the power to enact, amend,
or abolish the law. Today, lawmaking in the country is done by hierarchical legislative bodies
depending on coverage of the laws created: Philippine Congress (Senate and House of
Representatives) for national laws, Provincial Board for provincial laws, city, municipal and
barangay councils for local laws or ordinances.

During the Spanish period, the sources of laws for the Philippines came from different
lawmaking bodies, councils and individuals outside and inside the archipelago:

1) The Spanish King

When the Philippines was colonized in the 16th Century, Spain--including other countries of
Europe during this period--was under a form of government called monarchy. Under this
government, the ruling monarch or king possesses executive, judicial and legislative powers.
With regard to laws, the king has lawmaking powers. He can issue royal decrees which are
expected to be followed by all his subjects within his territorial jurisdiction. For Spain in the 16th
Century, the enforcement of these royal decrees extended beyond its European borders and
extended up to all its colonies abroad. In the Philippines, the governor-general who represented
the Spanish king in the colony received these royal decrees and enforced them to parts of the
country controlled by the colonizers. He, however, possessed discretionary powers in
implementing these decrees. Because of his veto power called cumplase, the governor general
could choose not to implement the entire or some provisions of the royal decree (Cf. Zaide 1999:
104).

2) The Spanish Cortes

The Spanish Cortes was the highest lawmaking body in Spain assisting the king in crafting
laws the homeland Spain and for its colonies abroad. Its legislative powers underwent various
changes. There was a time where it was dissolved and reestablished by the Spanish king. As
well, there were moments in its history when its lawmaking powers were clipped by royal
decrees.

The legislative of the Spanish Cortes had significant effect to the inhabitants of the
Philippines. For instance, a law approved in November 8, 1820 prescribed new regulations
governing Spain’s trade with the East now open to Spanish nationals. It provided certain
privileges to the country. Of interest to the Philippines was the fact that products and goods
produced or manufactured in the Philippines were considered “national.” This meant that they
were entitled to the privileges and immunities which, by law, were accorded to Spanish products.
Another law approved in June 29, 1821, also affected directly the Philippines. This law
established direct mail service between Spain and the Philippines. By this legislation, the
communication between the Philippines and Spain became more intimate (Zafra 1967: 122).

All the lawmakers in the Spanish Cortes were of course Spaniards. In the earlier period of its
existence, no natives or inhabitants were appointed to represent the interest of the Philippines in
lawmaking. It was only in the 19th Century when the king’s rule was weakened and the Supreme
Council of the Regency ruled Spain and its colonies in 1810 that the Philippines was allowed to
send a representative. After the Regency laid down the regulations for the election of delegates in
the Cortes, Ventura de los Reyes, a wealthy merchant of Manila, was elected as the Philippine
representative from 1810 to 1813 (Zafra 1967: 118). Three more representatives followed him.
However, this practice was stopped when the Cortes approved a new constitution for Spain in
1837—establishing the parliamentary system of government replacing the monarchial system.
This signaled the end of Philippine representation in the process of making laws in Spain that
promoted the interests of the natives and inhabitants in the archipelago (Ibid: 123).

3) The Council of the Indies

The Council of the Indies which was established by the king of Spain in 1524 did not only
powers executive powers to enforce the royal decrees and the laws of the Indies. It also
possessed legislative or lawmaking powers in its duty to implement properly the orders of the
king to the colony.

4) The Governor General

The legislative powers of the governor general pertained to the promulgation of executive
decrees (bandos) which had the force of law. As mentioned above, he exercised the veto power,
called cumplase, in which he could suspend the enforcement of any royal decree or law from the
king (Zaide 1970: 75). Though these executive decrees, he specified his new policy to be
enforced in the colony including what part of the new royal decree he was enforcing or vetoing.

5) The Royal Audiencia

The Royal Audiencia which was known as the Supreme Court during the Spanish time also
performed legislative functions. Established in Manila on May 5, 1583 by virtue of a royal
decree, this judicial body which was composed of one president and five members, was
empowered to promulgate laws for the colony. “These laws were called autos acordados (acts
agreed upon) because they were enacted upon the agreement between the governor general and
the members of the Royal Audiencia” (Zaide 1999: 105). Examples of this type of laws included
restricting Chinese immigration to the colony and fixing the prices of prime commodities and
ordering the people to comply with their religious duties (Ibid).

C. The Judicial Branch

The basic function of the judicial branch or the courts is to interpret the law and to settle
disputes or cases. Our present judicial system is largely influenced by the Spanish legal system.
However, the judicial branch during the Spanish system was not as clearly delineated with other
two branches. The Union of Church and State during this era had even made the separation of
religious and secular functions difficult to identify.

1) Council of the Indies as an Appellate Court

In addition to the executive and legislative powers it possessed to assist the king in
governing the colonies, the Council of the Indies also exercised judicial functions. “It consisted
of a president, four councilors who were either lawyers or clergymen, a secretary, a fiscal (crown
attorney), a treasurer, a historian, cosmographer, a professor of mathematics and an usher”
(Zaide 1999: 103). Its first president was a friar, Fray Garcia Jofre de Loaisa, the Father General
of the Dominican Order and Archbishop of Seville (Ibid.).

Criminal and civil cases from the Royal Audiencia (Supreme Court) in Manila can be
appealed to this court. Assuming that he or she has the financial resources, a losing party in an
appeal case in the Supreme Court can elevate his or her case to the Council of the Indies for
judicial review. And if he or she was still unsatisfied, he or she could still elevate it to the king of
Spain for final decision.

2) The Governor General as the Chief Justice

As Chief justice of the Supreme Court in the colony, the governor-general enjoyed judicial
powers. He presided over the trials of the Royal Audiencia. He could pardon persons convicted
of crimes and grant amnesty (Zaide 1970:75).

3) The Royal Audiencia as the Supreme Court

The highest court of the land or the Supreme Court during the Spanish period was the Royal
Audiencia. It began to function in 1584 with Govenor-General Santiago de Vera as it first
president or chief justice (Zaide 1970: 77). As a judicial body, it was composed of the one
president or the chief justice and five members called oidores as associate justices. The chief
justice was normally the governor-general who was also the chief executive.

The Because of conflicts between its president and members, the Royal Audiencia was
abolished in 1590. But it was later re-established and continued until the end of the Spanish rule
in the Philippines.

The Royal Audiencia tried all kinds of criminal and civil cases appealed to it by losing parties
from the lower courts (Zaide 1999: 105) or courts headed by the alcalde mayor in the provinces
and gobernadorciallo in the towns. Criminal cases involved violation of criminal laws and
usually punishable by imprisonment while civil cases involved disputes between private parties
such as ownership of land, contracts, and so on and usually resolved by payment damages.

4) The Provincial Governor as the Regional Judge

 Though his primary duty was to enforce locally the directives and laws from Manila, Alcade
Mayor or provincial governor also performed judicial functions. He was the regional judge
during the Spanish period who heard cases within his provincial territory involving more than
200 pesos. He heard appeal cases of losing parties which had been judged by the gobernadorcillo
on the town level or pueblo (Cushner 1971: 175-176). “Since the salary of an alcalde was only
300 pesos a year, graft was a commonplace” (Ibid: 176). Oftentimes, there was conflict of
interest. Since the alcalde was given the power to control trade in the province, there were
instances where was the defendant and the judge of the case at the same time.

5) The Gobernadorcillo as the Municipal Judge

In addition to his administrative functions, the gobernadorcillo also acted as the municipal
judge. He administered justice in the town or pueblo. He handled both criminal and civil cases.
In civil cases, only cases that involved P44.00 pesos or less were under his jurisdiction.
Otherwise, the regional judge or the alcalde mayor had the power to hear the case.
 CHAPTER III

STUDYING POLITICS, POWER, AND LAW IN THE PHILIPPINES

INTRODUCTION

The basic aim of this chapter is to enlighten readers about the true nature of politics and law
using the empirical approaches of the social sciences. It is divided into two main parts. The first
part deals with understanding the study of politics, power and authority in the Philippines, while
the second part explains the nature of law from the point of view of social science. In the
Philippines, the law is often understood from the normative or prescriptive view. Its actual
operation in society is often overlooked. The distinction between legality and morality is also
misunderstood by many Filipinos. What is legal may not necessarily moral. Thus, this chapter
attempts to understand the law and legality realistically based on the descriptive view of the
social sciences, particularly from the sociology of law, and to distinguish it from Christian
morality.

STUDYING POLITICS, POWER AND AUTHORITY

The Nature of Politics

Politics merits serious study because it is about “who gets what, when and how” (Lasswell
1950). This definition is a correct assessment why politics matters but does not directly address
the nature of politics (Goodin 2009: 4).

The meaning of the term “politics” is usually understood in two senses. In its general sense,
politics can be understood in terms of the dynamics of power in society. Individuals, groups and
organizations in society compete to control resources for their own ends and interests. Thus
Kerkvliet (1995) defined politics broadly as comprising “the activities in which people, groups,
and organizations engage in order to control, allocate, and use resources; politics also include the
values and ideas underlying those activities.” Goodin (2009) views politics in terms of power
relations and defines it as “the constrained use of social power”. And the study of politics,
whether by academics or practical politicians, might be characterized in turn, as—the study of
the nature and source of those constraints and the techniques for the use of social power within
those constraints (Goodin & Klingemann (Eds.)1996: 7).

In its strict sense, the term “politics” is often understood as “partisan politics”, that is,
engaging in the formation and promotion of political parties and actively campaigning for
candidates during elections to gain control of political positions in a given body politic.
 What is common to both senses is the use of power in society to achieve one’s personal
and/or group political interests. Politics is therefore associated with power and authority in
society. One cannot engage in politics without the use of the technologies of power in order to
allocate and control resources in society. Authority, as a special form of power, is also used by
power players or elite groups to utilize government resources for their own personal and
corporate interests. Thus, one cannot disregard power and authority in the study of politics in
society. But what is power? How is power different from authority?

Power and Authority

Sociologists usually understand power as the ability to impose one’s will on others despite
resistance. Frances Fox Piven (2008), for instance, defines power as “the ability of an actor to
sway the actions of another actor or actors, even against resistance” (Piven 2008: 3). The
classical definition of power comes from the German sociologist of Max Weber, who defines
power as an “opportunity existing within a social relationship which permits one to carry out
one's own will, even against resistance (Max Weber 1968: 212). It is the ability of an actor to
realize his or her will in a social action, even against the will of other actors.

For Max Weber, the modern sources of power are social class and social status. Social
class refers to the position of the person in the economic ladder of society--upper, middle or
lower class--as shown in his/her amount of wealth and income. Social status basically refers to
one’s life chances or position in the market as indicated by one’s credentials, level of education
and prestige earned in society.

The classical view of power sees it as a possession. If one has wealth, social influence,
one is powerful. A rich man is said to be powerful because he has many resources at his disposal
to impose his will against any poor person. Thus it has always been assumed that the rich and
influential people usually prevail in terms of economic and political decisions over the poor and
the weak.

The post-structuralist French philosopher Michelle Foucault (1977) challenged this

popular view on power in his power analytics. For Foucault, power is seen more as a personal
exercise, something that is achieved by the actor’s effective use of strategies and manipulations
to advance his/her own interest. A rich person is not powerful against a poor man if /she doesn’t
know how to use effectively his/her the resources at hand. Possessing wealth and status do not
immediately translate into domination over another if the person is poor in strategies and tactics
in influencing the other.

Authority is a legitimate form of power. It refers to the probability that the contents of a
particular kind of command will be obeyed. In other words, to have authority in a particular
domain means that one's directives will be followed. It is a type of power given by the people to
the power holder. It is also understood as the right to rule. On the one hand, a person or group
may possess power but not authority as in the case of a dictator or military junta who grabbed
political power outside the constitutional means. Thus, a military dictator can impose his/her
will on the people but his/her rule is illegitimate as it has not been sanctioned by the majority. On
the other hand, a person or group may acquire authority but may choose not to exercise power
over the people as in a case of a lame-duck president who opted not to rule on certain situations
for some reasons.

In most cases, a legitimate person or group can exercise both power and authority. As long
as the leader does not go beyond his mandate or authority under the law—assuming that this
secular law is just—exercising power over the people can be upheld as legitimate and morally
binding. Thus, a duly elected mayor, for instance, is exercising the legitimate power and
authority of his office as the local executive if s/he governs within the bounds of the law
establishing his public position.

Sources of Authority in Society

Max Weber identified three ideal types of legitimacy upon which authority may rest: (1)
charisma, (2) tradition and (3) rational-legal. In any actual society or institution, power may be
exercised on the basis of a mixture of these types.

Charismatic authority is founded on the personal traits and gifts of the leader. The more
authentic these personal traits are perceived by the people, the higher is the legitimacy of the
leader. People obey the leader not primarily because of certain laws or traditions, but because of
his/her personal talents. Because it is a personalized form of authority, charisma tends to be
unstable. It does not normally survive the death of the original leader, and it often abandons the
leader while he or she is alive. Charismatic leaders in history include Jesus Christ, Mahatma
Gandhi, Martin Luther King, St. Francis of Asisi, Mother Teresa of Calcutta, etc.

Traditional authority is one that is based on some sort of tradition handed down from
the past. The leader is obeyed by the people as legitimate because of an informal norm handed
down by elders in society. It is a kind of authority in which the legitimacy of the authority figure
is based on custom. This type of authority is that which the traditional rights of a powerful and
dominant individual or group are accepted, or at least not challenged, by the subordinate
individuals.

The ordination of a priest by a bishop is an example of traditional authority. The new priest
received his power and authority by way of tradition and people obey him as a legitimate
spiritual pastor of the Church. Succession in monarchy is also done through traditional authority.
Tradition dictates that only persons with royal blood can ascend to the throne.

Rational-legal authority is the most common feature in modern and contemporary

society. This authority is based on a set of rules, and the belief in the legitimacy of the process of
rule creation and enforcement. This form of domination is routinized through bureaucracy. The
leader assumes the right to exercise power over the people because the law says so.
 Authority is held by legally established impersonal orders and extends to people only by
virtue of the offices they hold. The power of government officials, for instance, is determined by
the offices to which they are appointed or elected because of their individual qualifications. As
long as individuals hold these offices, they have a certain amount of power, but once they leave
office, their rational-legal authority is lost. Thus, the presidential candidate who garnered the
highest vote in a national election in the Philippines acquires authority to rule/lead the people for
six years without reelection as mandated by the 1987 Constitution. The authority to rule expires
as the term of office expires. A priest who qualifies under the Canon law of the Church, after a
rigid screening, can become a bishop and assumes authority to rule in his diocese. Though
personal traits also count in the selection process, a fixed law becomes the primary legitimizer of
the leader’s capacity to exercise authority. His authority expires when he retires or becomes
incapacitated as stipulated by law.

Power Distribution in the Philippines

Power distribution in Philippine society is said to be concentrated on a few elite families.

McCoy (1994) characterizes Philippine politics as “anarchy of families” in which very wealthy
families compete with one another to control the resources of the country. Power, like wealth, is
concentrated in the hands of a few in the Philippines—the influential in society (politicians, big
businessmen, and the military). External forces such as the multinationals and political
superpowers support this concentration of power and tend to intervene in order to maintain the
structure (PCP II, p.279). IBON foundation describes the income gap between the rich and the
poor in the Philippines:

The income gap in the latest 2006 government data shows that the share of the
top 10% families in the income pie was even higher at 36% than the 35% share of
the bottom 70% families. In 2010 according to the Forbes Asia list, the net worth
of just the 20 richest Filipinos– including Lucio Tan, Enrique Razon, Jr., Eduardo
Cojuangco, Enrique Aboitiz and others– reached $20.4 billion, which is likely
equivalent to the combined income of around 12 million families.

The rich have gotten richer in recent years, the research group said. For instance,
Enrique Razon Jr., a known close ally of former Pres. Gloria Arroyo, is worth
$975 million in 2010 from $285 million in 2009, highlighting his rapid
accumulation of wealth in the past years. The net income of the Top 1,000
corporations in the country rose from P116.4 billion in 2001 to average P416.7
billion annually in the period 2002-2008. On the other hand, workers have seen
the smallest increase in their real wages; the minimum wage in NCR increased
just P5 in real terms over the almost decade-long Arroyo term.

Widening poverty is also a pressing issue that requires comprehensive solutions

beyond the ‘good governance’ approach. Using the approximate Php86 a day for
the assumed international standard for moderate poverty would show that 79 out
of 100 Filipinos were poor in 2006, and half of the population actually struggled
on Php18-54 a day. This would have likely increased in the last four years
especially with the fuel crisis in 2008, food crisis in 2009, and the climate
disasters last year (IBON Media Release 15 July 2010 accessed from
 http://ibon.org/ibon_articles.php?id=92).
.

The main economic problem in the Philippines is income and wealth distribution. There is
inequality in wealth distribution between the rich and the poor. This translates into inequality to
the access of political power and positions in the country. The rich and their protégés control
elections and political positions in the country. They enact laws that tend to protect and promote
their economic interests, while the majority who live below the poverty line remain
unrepresented in the political processes and thus remain marginalized in the distribution of the
country’s wealth and resources. To understand this inequality in power and politics in the
Philippines, political scientists use various approaches, analogies, or images as shown below:

APPROACHES TO STUDYING POWER AND POLITICS IN THE PHILIPPINES

Patron-Client Relationship or Clientelism

Its argument, in brief, is that Philippine politics revolves around interpersonal

relationships—especially familial and patron-client ones—and factions composed of personal
alliances. The relationship between a rich haciendero or landowner and the poor landless tenant
is a classic example of this relationship. The haciendero is the patron who provides medicines,
credit, burial expenses, food and other assistance while the client is usually a landless tenant. In
exchange of the patron’s generosity, the dependent farmer client and his relatives are expected to
render services and to deliver votes for the patron or whoever he or she endorses during
elections. The politics of utang-na-loob (indebtedness) often operates under this relationship of
clientelism.

Patron-client relationship and clientelism as a basis for organizing thrives in conditions that
are still pronounced in the Philippines. Such conditions as: great inequality, absence of
impersonal guarantees for physical and economic security, and the need for personal linkages
beyond immediate kin as part of the effort to have more security “(Kerkvliet 1995).

Political Machine

Personal networks, while vital for stitching factions together, are insufficient and inefficient
for winning offices in large electorates. For that reason, "political machines" became apparent in
the 1950s-1960s, fell on hard times during the Marcos years when his machine was the only
game in the country, but have been resuscitated since the mid-1980s.

Sensing that the social relations in a patron-client relationship is not sufficient to win
elections, political experts began to realize the importance of money politics to build a huge
political machinery to win elections. Political machine politics have brought out more clearly the
importance of money in Philippine politics, especially during elections.
Elite Democracy

The "elite democracy" approach says we must also understand the role of violence, coercion,
intimidation, monetary inducements, and the considerable autonomy elites have to manipulate
formal democratic procedures to their liking. The politics of “guns, goons and gold” is associated
with this type of democracy. Warlords both in the national and local levels use personal and
illegal money as well as their private armies equipped with high-powered firearms to corrupt the
electoral system and to force voters to vote for them or their protégés.

This approach contends that the political system is essentially one in which elites use
connections, wealth, and physical force to control the country's resources. Public offices are
sources for personal fortune. The higher the office, the more lucrative the returns for one's family
and allies, though officials in prosperous provinces and cities can also do very well.
Consequently, elections are devices for political elites to sort out who will feast on the public
larder for a term or two, and a way to make the masses feel a part of something from which they
are actually shut out.

Patrimonialism

One underside of the close family ties of Filipinos in the Philippines is patrimonialism.
Patrimonialism is a political phenomenon in which the politically influenced families feel that
other members have the right to public office just because one of its family members or close
relatives are elected in public office. If the father is a senator, the wife aspires to be a mayor or
the son a congressman. Influential politicians use all means to allow themselves and their
relatives to stay in power and exclude non-relatives from public office (Zialcita in Diokno ed.
1997:46) Patrimonialism treats public office like a private ownership where politicians can
transmit to their heirs their political positions. An interesting anthropological theory called the
transitory private ownership of public space by Richard Stone in his studies of police corruption
in the Philippine in the 1970s indicated that when Filipinos occupy public space and public
office, they treat it as private property. As long as they are presently occupying the public office
or space, they feel they have the right to deal privately. Thus, it is difficult for the government to
drive away squatters or informal settlers because the latter think they have the right over the land
as they are occupying it at present. Mayors, governors and other public officials once they
elected in the city or municipal they feel that they “own” the office and transmit it to their heirs
and relatives.

Patrimonialism is a product of extreme familism or strong family ties which exclude non-
relatives or kin to access public position or office in the political structure. It establishes elitism
and political dynasty in the country.

DISCIPLINES STUDYING POLITICS IN SOCIETY

The study of power, politics, law and government is not a monopoly of political science.
Other branches of social sciences also study these things. The only difference is probably their
approach to understanding political issues and problems. Politics and political behavior, for
instance, can be understood in terms of motivations and personality structure of the actors that
affect political action in the field of psychology. Economics can view such action in terms of
distribution of material rewards or Sociology in terms of the influence of social structure and
culture on political decisions. Thus, it is important to understand the various branches of social
sciences and how they can contribute to the study of politics and government.

Political Science

The branch of social science that is largely associated with the study of politics, law and
government is political science. Political science comes from two Greek words: polis for “city-
state”, and scire, which means, “to know”. The French philosopher Jean Bodin coined the term
in the 16th century. And another French philosopher Montesquieu (1689-1755) first formally
defined it a century after when he categorized the functions of government into legislation,
execution, interpretation and adjudication of laws (Dannug & Campanilla 2004: 55-56).

With the birth of social sciences in the 19th century, political science has gradually been
divorced from philosophy and assumed a more empirical character in its study of politics.
Political science began adopting research strategies and techniques from other social science
disciplines in explaining political behavior. Serious quantitative political analyses began in the
19th and early 20th centuries (Gow 1985). The use of quantitative analysis went hand-in-hand
with the post-World War II “behavioral revolution” in political science with the adoption of
sophisticated methodology imported from other disciplines such as sociology and economics
(Dahl 1961).

Although political science can trace its origin to ancient Greek political thinkers such as
Socrates, Plato and Aristotle, as an academic discipline, political science is much newer than
other social sciences (Grigsby 1999: 7). The self-definition of political science as a science goes
back only a century or so (with a convenient date being the founding of a "scientific" department
at Columbia University in 1880 (Beck 2000). At the turn of the last century, probably no more
than a couple of hundred people in the United States (US) consider themselves as political
scientists (Grigsby 1999: 7). From its humble beginnings in the US, political science started to
expand around the world and developed into different subfields (areas of specialization) and
research methods.

The American Political Science Association defines Political Science as “the study of
governments, public policies and political processes, systems, and political behavior”1 The
Political Science Department of the University of Victoria defines “Political Science” as “the
study of power, authority and governance in human affairs”.2

Political science as a discipline is substantively, not methodologically, defined. Political

scientists use a variety of methods to attack questions related to political institutions and

1
http://www.apsanet.org/content_9181.cfm
2
http://web.uvic.ca/polisci/.
behavior. Some political scientists focus on studying normative issues (issues involving value
judgments and ethics), while others concentrate on empirical (observable, factual) investigations,
and still others study both (Grigsby 1999:7). Although the methodological issues are defined by
political questions, political scientists freely use whatever methodological solutions are available
(Grigsby 1999). Thus, it is important to understand the other branches of social sciences and how
they can possibly contribute to political science’s study of political behavior.

Study of Political Science Presupposes a State Society

With its etymology, the study of political science presupposes an existence of a more
advanced and complex type of society like a state, a society with large populations, social
classes, private ownership and centralized authority or bureaucracy that assist the sovereign head
in governing it. One cannot indulge in the study of political science in a primitive, rural or non-
state society where the population is very low, politics is minimal and government structure is
simple. That is why this discipline started to flourish in the 19th century when societies in Europe
became a modern and independent nation-states. Leaders of state and complex societies need the
expertise of political scientists to understand the actual dynamics of power, law and politics in
society. Political scientists study the origin, development, and operation of political systems.
They research political ideas and analyse the structure and operation of governments, policies,
political trends, and related issues.3

Sociology

Sociology comes from two Latin words: socius which means “partner” and logos which
means study. Literally, it means “study of partners”. In its scientific definition, sociology as a
social science is the study of social behavior, relation and processes. It studies group-related
behavior and tries to understand how societal forces such as culture, social class, status and
institutions affect individual behavior.

Broadly, sociology is understood as the study of modern and contemporary society. By

modern, we mean those societies in the 19th centuries which became nation-states after gaining
their independence from their colonizers and monarchs, starting with France which became a
republican nation state after the French revolution. These are countries which became
independent after the industrial revolution in Europe. By contemporary, we mean societies or
post-industrial states which exist in today’s information age. The French philosopher first coined
the word “sociology” and the French sociologist Emile Durkheim was said to be the father of
modern sociology. Together with the German sociologist Max Weber, and the German
Philosopher Karl Marx, Durkheim envisioned a social science that aims to study the dynamics
and structure of society empirically applying the scientific methods used by natural sciences.

3
http://www.bls.gov/ooh/Life-Physical-and-Social-Science/Political-scientists.htm.
 Parts of sociology and political science merge. Political science starts by looking at society
to see “who thinks what” about politics. To demonstrate how political views vary among social
classes, regions, religions, genders, and age group, sociology provides an empirical basis to
political culture, public opinion and electoral studies. In fact, some of the renowned political
scientists are sociologists. Sociologist Seymour Martin Lipset, for instance, is a well-known
political scientist who first demonstrated the close connection between democracy and the level
of wealth (Roskin et al 2008: 4).

Anthropology

Like sociology, anthropology also studies the social behavior, social structure and social
relations in society using scientific methods. The major difference is the preferred type of
societies being examined by both disciplines. Anthropologists usually study preliterate or
primitive and non-state societies of exotic tribes while sociologists, as mentioned, focus on
modern and contemporary state societies.

Anthropologists also study politics, power, authority and government primarily in non- state
societies. They classify the political organizations of societies into as band, tribe, chiefdom and
state. Some do research studies on government and governance, law and the legal system, power
and authority using anthropological theories and social science methodologies. Others examine
the politics behind elections, political party systems, development projects, and bureaucratic
corruptions. The descriptive and interviewing techniques of anthropology are often adopted by
political scientists. Moreover, the subfield of political culture could be viewed as a branch of
anthropology (Roskin et al 2008: 4).

Economics

Economics studies the production, distribution and consumption of goods in society.

Economics is the subject matter of politics. Many political quarrels are economic: Who gets
what? Sufficient may be the basis for democracy, but a declining economy may doom
democracy and political instability (Roskin 2008).

Moreover, political scientists can examine the economic costs and rewards behind political
transactions. They can also investigate the political economy of politics or how political power
affects economic policies in society. In some cases, the economic theories of economics can
guide the political analysts to measure the economic impact of political decisions of politicians in
society.

Psychology

Psychology studies inner forces within the individual that shape his/her behavior. It studies
the ‘how’ the mind and mental processes and personality affect individual behavior.
 With the help of psychological theory and methodology, particularly that of social
psychology, political scientists can study the motivation and mental processes behind every
political action. They can do research, for instance, on the motivation of politicians why they
switch political parties during elections. They can also describe the personalities of people
attracted to politics, why and under what circumstances people obey authority figures, and how
people form national, group and voting attachments. Psychological theories can greatly help the
political scientists in understanding the state of mind of people engaging in politics.

History

History as an academic discipline is often defined as a systematic study of the past. The
study of the past is important. According to E. H. Carr (1970), history is a study of human
achievement. The past is intelligent only to us in the light of the present and the present can be
fully understood only in the light of the past. To enable us to understand society of the past and
to increase our mastery over the society of the present is the dual function of history (Carr 1970:
102).

History is significant to the political scientists as “history is past politics and politics
present history” (De Leon 1997: 2). Historical perspectives can enable them to see patterns on
how certain political phenomena appear and recur in societies at particular periods of time. It can
also provide the analyst with comparisons, how political phenomena differ from one another.
Thus, using history, he or she can see the difference between EDSA People Power I, II and III.

Human Geography

Human geography studies how locations affect human behavior or vice-versa. The
territorial component of human behavior—borders, ethnic areas, trade flows, centralization of
power and regions—have great political ramifications. Although human geography has been
neglected in recent decades in the study of politics, contemporary political scientists have started
to use geography to explain differences in political behavior. The French political scientist Andre
Siegfried pioneered the use of maps to explain regional political variations, a technique of
today’s electoral studies (Roskin et al 2008: 3).

UNDERSTANDING LAW IN SOCIETY

In the Philippines, when we talk about the law, we cannot avoid thinking of legal codes,
lawyers and judges. As a country dominated by lawyers, the study of law is often relegated to the
discipline being studied in law schools—jurisprudence. Jurisprudence is “the science of law; the
particular science of giving a wise interpretation of the law and making a just application of them
to all cases as they arise. In an untechnical sense, the term means sometimes Case Law” (Moreno
1972: 334). It is a comprehensive study of the law, particularly those statutes which are enacted
by legislatures, compiled in legal codes, and applied by courts to actual cases. There is nothing
wrong in relying on jurisprudence in understanding the law. Everyone is expected to know the
law. The only problem lies in its approach. Jurisprudence understands the law in the normative
sense, “as it ought to be” rather than “as it is” or as it actually operates in actual social practice.

What jurisprudence lacks can be supplied by the empirical or descriptive approach of the
social sciences, particularly by the subfield of sociology called sociology of law. Sociologists of
law understand law in society in relation to the social structure, culture and power dynamics in
society. They employ scientific methodology to measure or document the actual operation of law
in the courtroom or in any legal arena.

The Social Scientist and Law

To understand the full legality of the law does not only require the expertise of the lawyer
but also the expertise of the social scientist who knows the social dynamics and structures of
society where a particular law is applied. By training, the lawyer is trained in law schools in
understanding the substantive and procedural laws but they are not trained in empirical research
and social theory to understand the actual socio-cultural forces behind the application of the law.
In one case, an American lawyer of a Filipino accused of murdering a native of Hawaii solicited
the expertise of a Filipino anthropologist on Philippine culture in order to prepare a good
defense, probably to argue that there are cultural forces that influenced the accused in killing the
victim.

The main aim of the legal profession is basically practical in nature. The lawyer’s main
concern is not documenting and understanding empirically the dynamics of culture and society
but to win his/her case in court. But in order to win it, s/he needs the empirical knowledge of the
social sciences to argue and win his/her case. The social scientist provides the necessary
knowledge and empirical foundation to understand the sociological underpinnings of law as
applied in actual social practice.

The Importance of Research in Understanding Law

Scientific research is necessary to understand the actual operation of law in order to judge
whether it is a good one or not. On paper, the law may be just and impartial but in practice, the
opposite may happen. The sociologist Max Weber reminds us that the unintended consequences
can always happen in social life. Even though the objective of the law and the intention of the
lawmakers is for the promotion of the public good, the unintended or opposite effect can always
happen. The Oil Deregulation law, for instance, was enacted by the Philippine Congress with the
intended effect of encouraging competition among oil companies in order to reduce the price of
gasoline and other petroleum products, but the unintended and unforeseen effect seems to be
eclipsing its intended effect. Since the government cannot intervene directly in regulating the oil
industry— especially in the pricing of petroleum products—as stipulated in the Oil Deregulation
law, the unintended effect seems to be monopoly or the cartelization of the oil business led by
the Big Three (Shell, Chevron and Petron) and the unabated overpricing of petroleum products.

In a nutshell, the law is not what legal provision says it is but what people behind it—legal
authorities--say it is. It is the people who interpret and enforce the law that determines its nature
and application in actual social practice. It is ultimately the police, prosecutors, judges or
justices, jail officials and other officers in the judicial department of the government who
determine, by a personal appreciation of evidence and legal provisions, what the law is in
concrete cases.

The Role of Social Scientists in the Internationalization of Economic Laws

Another reason why the social scientists, like sociologists of law, play an important role in
understanding the actual effects of law in today’s society is that contemporary law has become
more and more complex and internationalized. With the dominance of multilateral institutions,
like the World Bank, the International Monetary Bank, or the World Trade Organization, laws,
especially economic ones, are no longer created by the country’s legislature. These multilateral
agreements--often dictated by rich and industrialized countries—become the framework on
which economic laws of developing or poor countries are based. If the developing country is a
signatory of these multilateral agreements, its lawmaking body has less freedom to craft its own
independent economic laws. The laws on intellectual property rights, for instance, are enshrined
in the treaty of the multilateral agreement of General Agreement on Tariffs and Trade (GATT)
called the Trade-Related Intellectual Property Rights (TRIPs) signed by more than 100 countries
around the world, including the Philippines. Each of these countries can no longer create their
own intellectual property legislation that may be contrary to TRIPs. On the contrary, they are
required by TRIPs to pass local laws which implement the multilateral agreement. The Optical
Media Law of 2003 in the Philippines, for example, is the result of the pressure from the
multilateral institutions to enact laws to combat piracy as prescribed by TRIPs.

As a result of this internationalization of law, local customs and culture are sometimes
disregarded in lawmaking. The laws which then created by the country’s legislature are no
longer bound to the local needs and culture but adjusted to suit international legal standards
often dominated by American or European culture. With this phenomenon, academic training of
lawyers may not be sufficient for them to know the current underpinnings of the law. Again, the
assistance of the social scientists with their social theories and research tools is necessary in
lawmaking and socio-legal analysis in order to understand the actual operation of law in various
cultural contexts of developing countries.

LAW AND MORALITY: IS IT ALWAYS MORAL TO BE LEGAL?

The distinction between legality and morality or between “what is moral” and “what is
legal” does not seem to be clear to Filipino Catholics. Many seem to equate the two, that is, if
something is legal, then it is also moral or acceptable in the eyes of God or of the Church.
Teachers of religion in Catholic colleges are often disappointed upon knowing that the students
do not seem to know the difference between a civil and a Church marriage. Many students
assume that civil marriage by a judge is moral because it is legally and socially acceptable. They
thought that couples who are civilly married and cohabiting are not living in sin and therefore
they can receive holy communion in the Holy Eucharist worthily and without committing a
serious sin. They reasoned out that since their marriage are legally recognized by the state and by
Philippine society, then these couples are presumed to be morally married in the eyes of the
Catholic Church.
 This indicates a confusion in the difference between morality and legality. Technically
speaking, civil marriage has long been considered by the Church as legal but immoral and thus
couples cannot receive Holy Communion worthily. This marriage is legal in a sense that the
State allows couples to be married by a judge as long as they comply with the requirements of
the Family Code. This is however, is considered immoral, in a sense that the union is not
sacramental, meaning, the couple is not blessed and solemnized by the Church and witnessed by
the priest, the representative of the Church by virtue of his ordination. Thus, they are considered
by the Church as “living in” or cohabiting without the necessary blessing of God. And if they
engage in a sexual union, they can be considered to have committed the sin of fornication and
thus ineligible to receive holy communion worthily. Legally married couples can still live a life
of grace, if they opt not to stay together pending their Church wedding. This case therefore
illustrates the fact that what is legal is not necessarily moral. So what then is the difference
between these two?

The Relationship between Legality and Morality?

“The relationship between law and morality is both complicated and subtle. This is true even
in a situation where a society is very homogenous and where one might find a large degree of
consensus about moral behavior” (Duster in Kelly (ed) 1993: 29). Ideally, laws created by the
State through legislation must be based on divine law. And there lots of state laws that reflect the
divine laws. The 1987 Philippine Constitution, the fundamental law of the land, for instance,
acknowledges that state laws must be consistent with the laws of God. They must not contradict
the commandments of God. The divine law must prevail over state law in case they collide. The
root cause of this inevitable clash between state law which defines legality and divine law which
defines morality is the vested interests of people who create state laws. More often, lawmakers in
the Philippines who come from the elite or from social classes with business interests, file bills
or proposed laws in Congress to promote or protect their vested interests rather than to promote
the common good or the social welfare of the poor as taught by the Bible and by the Church. For
example, a lawmaker who is a son of a rich landowner in Mindanao filed a bill in Congress on
alternative fuel like the bio-diesel. However, this seems to be a conflict of interest, critics
alleged, for his family and allied landowners would most likely benefit from it if the bill
becomes a law. His landowner parents, according to them, intend to utilize their vast idle lands
by planting jathropa or other plants for biodiesel production. Legislation in this case was
intended to benefit the lawmaker and his/her social networks in the guise of genuine concern for
consumers. For critical theorists of law, this is inevitable as law in society is never neutral. It
“bends” in favor of the lawmaker instead of its subjects (Ballano 2007: 12).

The laws passed by the Philippine Congress seem similar to that of Peru, a developing
country which Hernando de Soto (1989) calls in his book The Other Path as redistributive laws.
A country remains poor because the laws created are meant to redistribute wealth rather than
creating it. “From this standpoint, the law is essentially a mechanism for sharing a fixed stock of
wealth among different interest groups that demand it” (De Soto 1989: 189).
 A redistributive legal system neither benefits the rich nor the poor but only those best
organized to establish ties with people in power. “It ensures that the businesses that remain in the
market are those which are most efficient politically, not economically” (De Soto 1989:191).
Laws are then meant to maintain the level of social inequality at status quo and not to
democratize wealth. Conflict theorists of law understand the law as an instrument of domination
of the powerful over the weak. The law is not ideologically neutral. Law is a discourse which
interprets and conveys meaning, but it is a discourse with force behind it. Its impact goes beyond
the realm of meaning. Law is a key vehicle for the spread and enforcement of the ruling
ideologies, a vehicle of ideological domination (Moore in Lazarus-Black and Hirsch 1994).

The Nature of Legality and the Two General Types of Laws

Legality can be understood as a process of knowing whether an act is legal or illegal based
on a legal norm or on a written and official law. It can also refer to a social order based on law.
Laws are created and promulgated by the state or by any competent authority in a formal
organization or institution. Before we can clearly understand what makes an act illegal or not, we
first have to differentiate two general types of legal norms that judge whether something is
illegal or not. Legality and its outcome depend on the type of law people invoke to pursue their
case.

Sociologists of law distinguish two kinds of law used by society to measure legality: the
substantive law and procedural law. The substantive law refers more to the substance or the
content of the law itself as written in a legal code like the powers of President as written in the
1987 Constitution or the grounds for civil annulment of marriage in the 1987 Family Code, the
law on libel and intriguing against honor in the Revised Penal Code, or even the rules on proper
conduct contained in the student handbook of the school. In the Philippines, the sources of the
moral popular and general types of substance laws are found in legal codes and set of laws such
as the 1987 Constitution, the New Civil Code in the Philippines, the Revised Penal Code, the
Tax Code, Special Penal laws, Commercial laws or E-Commerce law, Intellectual Property Code
in the Philippines, the Code on Judicial Conduct, etc. In the Catholic Church, the main source of
substantive laws (and also procedural law) is the Code of Canon Law. The word “canon” in
Greek literally means “ a measuring stick”. Thus, the laws of the Catholic Church are called
canons. This Code is a compilation of all laws in the Church throughout the centuries on how a
Catholic Christian should live his or her life as a member of the institutional Church.

The procedural or sometimes called remedial laws are those laws that deal with steps or
procedures on how to process legal cases in court or any administrative body This includes
procedures on how to file a case, to make an appeal, to present evidence, how to make and
present a legal pleading and the like. This is the type of law that lawyers make a living since
these are the court technicalities that they know and are paid for by their clients. In the
Philippines, the popular source of this type of law is the Revised Rules of Court in the
Philippines, a handbook of court procedures which is created and constantly modified by the
highest court of the land, the Supreme Court. Procedural rules can also be found in legal manuals
of schools, organizations, institutions or administrative or investigating bodies. In the Catholic
Church, laws are found mainly in the Code of Canon Law and in the pastoral directives by the
Pope, Sacred Congregations of the Roman Curia or bishops that deal mainly with Church
discipline.

When an act becomes illegal or against a human law, we have to qualify then which type of
law is violated: is it substantive or procedural? Violating the substantive law is generally
considered more serious than violating procedural law. After all, the spirit of the law is more
important than the letter of the law. The merit of the case has more value as it involves violation
of human rights rather than technicalities of legal procedures. The former is an actual
transgression of social or moral value if proven by the court but the latter consists only of lapses
in procedural matters--though very often lawyers consider legal procedures as very vital to a
successful prosecution or defense of a legal case. Many prisoners in Bilibid Prisons, for instance,
claim that they are convicted not because they are guilty but because they are poor who cannot
afford to hire good lawyers with shrewd knowledge and expertise with regard to technicalities in
court who can acquit them.

The Basis of Legality

The foundation or basis of legality is actually the human law or the laws created by men or
women, with the exception in the Catholic Church where legality in the Code of Canon Law is
generally equated with morality. The 1987 Family Code of the Philippines, for instance, was
created by a group of people, a commission formed by the state, and was presented to Congress
for review and approval and finally to the President for approval as law. Nothing is spiritual or
ecclesial in the process—of course one can presume that these people prayed to God for
guidance and consider the common good in creating and approving this Code.

Unlike Church laws where the norms and directives of the Scriptures, Church teachings
and Tradition are strictly and seriously taken into consideration, human laws are generally
created through human reason based on prevailing cultural norms and values which are not
necessarily aligned with the divine teaching. One sociological theory about the law states that
laws are formal formulation of existing practices and customs. When informal sanctions such as
ostracism, shaming, or gossiping are no longer effective in upholding an existing practice, then
competent authority usually passes a law to formalize this custom to ensure effective
enforcement. The law then, in this sense, becomes a legitimizer of an existing value or practice.
The problem, however, in this process is that not all existing practices or values in society are
permeated with religious values. More often, values, particularly political values, are shaped and
manipulated by the elite or by those who hold power in society. Thus, it is probable that legal
authority like the Philippine Congress can legislate an “immoral” or “sinful” social system or
practice.
 Illustrations Where Law is Legal but Immoral or Unjust

A classic example of an immoral law is the law that proclaimed Martial Law under the
former President Marcos-Proclamation No. 1081 (September 21, 1972). The Catholic Church led
by the late Jaime Cardinal Sin always considered this law as immoral, though legal. Immoral in
a sense that there was no clear moral ground for the declaration of Martial on September 21,
1972. This proclamation is said to be based on a dubious factual basis staged by the regime and
that the approval by Congress of the declaration of Martial Law was said to be tainted by bribery
and corruption. Martial law has created a litany of human rights abuses led by the military. This
was one reason why the late Senator Benigno Aquino vigorously opposed this Law. Another law
related to the Marcos regime which was legal but highly immoral was the passage of
Amendment number 6 of the 1973 Constitution by the Batasang Pambansa, the Philippine
Congress at that time, giving the then President Marcos the legislative power to create laws or
presidential decrees which labeled him as a dictator.

Another illustration of a law that is legal but immoral is the highly biased law against
women—the law on adultery and concubinage in the Revised Penal Code, a law that is basically
crafted by male legislators. This is immoral because this law violates the virtue of justice which
requires to give one’s due in the spirit of Christian love. In particular, its definition and
enforcement is highly unequal and unjust against married women. There are three areas where
this law is bias against women. First is the label of the crime. Both adultery and concubinage
refer to one offense of marital infidelity committed by a spouse legally married by having sexual
intercourse with other partners not their wife or husband. But the law labels and defines this
same offense separately by gender. The more popular and culturally strong label of “adultery” is
assigned to Filipino wives who generally and culturally are expected to be chaste and faithful,
while the less known and repulsive term of concubinage is given to Filipino husbands. Why two
unequal labels for one offense of marital infidelity? Moreover, the legal prescriptions on how
this crime is committed also vary and make the wife more vulnerable to prosecution by the
husband. In adultery, a wife can be guilty by having carnal knowledge or sexual intercourse with
another man not her husband under any circumstance. But in concubinage, a husband can only
be guilty of the crime if he had sexual intercourse with another woman not his wife only under
the following three circumstances: by having sexual intercourse with the mistress in the conjugal
home; by cohabitation, that is, it has been established that the husband had and lived together
with the mistress, acting like husband and wife in front of the community; and by having a
sexual intercourse in a scandalous way! Under this definition, a wife can easily commit one
count of adultery for every act of sexual intercourse with her lover in any place and
circumstance. But for the husband, this is not the case. He is not guilty if he did not cohabit with
a mistress, if he only brings the mistress to a hotel secretly or he maintains his mistress in an
apartment and goes home after having sexual relations. Cohabitation as legally defined and
required by law is what makes concubinage difficult to establish in court against the husband.
 The second area of injustice is the minimum type of evidence acceptable to the court for
prosecution. In adultery, indirect evidence such as love letters, emails, text messages, pictures
showing intimate moments and the like are accepted in court. In concubinage, only direct
evidence such videos, incriminating pictures, testimonies of people who had personal knowledge
of the affair, are accepted.

Finally, the third area of inequality is in the punishment. On the one hand, adultery is
punishable by prision correctional from its medium to maximum terms. The medium period of
the penalty for adultery is from 2 years, 4 months and 1 day to 4 years and 2 months
imprisonment. The maximum period is from to 4 years, 2 months and 1 day to 6 year
imprisonment. Simply stated, the longest time a wife will be imprisoned is 6 years. On the other
hand, concubinage against the husband only carries a penalty of prision correctional in its
minimum to medium terms. The minimum period is imprisonment from six months and one day
and medium period is from 2 years, 4 months and one day to 4 years and one day. Simply stated,
the longest time that a husband will be imprisoned is 4 years and one day.4 In one decided case,
the court justified this difference of punishment by saying that it would be highly unjust for the
husband to support a probable illegitimate child not his own! This law is indeed unjust and
biased against women and must therefore be repealed by Philippine Congress.

The more recent law that is considered legal but immoral by Catholic bishops in the
Philippines is the Mining Law of 1995. Enacted in 1995, this law allows mining companies,
mostly foreign, to extract minerals from Philippine soil. The main problem of this legislation
which is upheld by the Supreme Court as constitutional is that most of the mineral-rich land for
mining are found in what are called ancestral domains or land in the hinterlands, occupied by
many indigenous or tribal people in the Philippines in the hinterlands. Allowing miners to exploit
their land would drive them away from their land they occupied since time immemorial,
depriving them of their livelihood and destroying their rich cultural heritage. This is highly
immoral since the law violates the basic rights of indigenous people to life, property and other
related rights. The Catholic Church always upholds human rights and the dignity of people,
created in the image and likeness of God. Economic development can only be moral if these
basic rights are safeguarded by the state.

What is Morality?

Probably the vast majority of people think of morality as law, but in fact it can be
considered in a variety of ways”. There are different models to choose from in thinking about
morality (Fagan 1997: 34). In fact, various academic disciplines vary on how morality should be
defined or described. Despite this diversity of formulating its meaning, they all agree that
morality has to do with doing what is right and avoiding what is wrong in accordance to one’s
adopted moral standards of behavior. The most popular view of morality is the legal model. This
model defines morality, in a normative or legal sense, as the process of knowing what is right
and what is wrong based on given moral standards or norms.

4
http://famli.blogspot.com/2006/01/adultery-concubinage-and-psychological.html.
 Anthropologists have alerted us that sense that there is a diversity of culture, religion, and
moral standards around the world. There cannot be one set of doing what is right and what is
wrong. Thus, there are different types of morality existing throughout the world. And Christian
morality is only one—though popular and dominant in the Christian world--of the many
moralities adopted by people in different societies. So we can talk of Hindu morality, Muslim
morality, Buddhist morality, Ifugao morality, Manobo morality , so on and so forth.

When we speak of Christian morality, following the legal perspective, we are simply
referring to that type morality that uses the Christian moral standards in evaluating and judging
whether an act of a person is right or wrong, moral or immoral, or good or sinful. And Christian
morality can have variations since there is not one Christian religion existing around the world.
There are Protestant Christians under different churches, Catholics, Fundamentalist Christians,
and other Christian denominations and sects. Each Christian church can be different in content
and emphasis in its moral standards compared to others, depending on its doctrines and
teachings. In the Roman Catholic Church, Christian morality refers to the process of knowing
what is right or wrong based on the moral standards set by the Scriptures and Tradition, the two
inseparable sources of Catholic faith. In the Scriptures, the major sources of moral imperatives
can be the Ten Commandments in the Old Testament and the Beatitudes in the Gospels. In
Tradition, the teaching office of the Catholic Church called the Magisterium, can be a major
source of the official moral teachings and norms.

SUMMARY

Politics can be understood in the general sense as the dynamics of power in society and in
a specific sense of organizing and promoting political parties and participation in elections. It is
rooted in power and authority in society. On the one hand, power is the ability to influence others
to act against their interests. On the other hand, authority is a legitimate form of power or the
right to rule. This can be based on the personal traits of the leader in charismatic authority, on a
particular tradition in traditional authority, or on impersonal laws in modern rational legal-
authority. The distribution of power and authority in the Philippines is highly unequal reflecting
the prevailing economic inequality among social classes in society. The few elite still controls
the political and electoral processes in the Philippines. With strong familism and privatized view
of public office, political power are still in the hands of a few political families constituting
political dynasties in the country. This grip on political power by the elite in the Philippines can
be best understood in political concepts such the patron-client relationship, elite democracy,
political machine and patrominialism.

Politics, power and authority in modern state societies are primarily studied in Political
Science, a social science which can be defined as the study of power, authority and governance
in human affairs. Other branches social sciences such as anthropology, economics, history,
psychology, sociology, or human geography also study politics using their respective
methodologies and theories.

The law can be understood and studied using the normative approach of Jurisprudence and
the empirical approach of Sociology of law. Jurisprudence, as both used by judges and lawyers,
understands law as “it should be” or according to legal norms. Sociology of law studies the law
as “it is” in actual social practice. To understand the law in contemporary times requires
scientific research and a sufficient understanding of the operations of law in culture and society.

Finally, law and morality are two important social norms in society. Their foundations and
bases are, however, different. The law is basically based on human positive law, while morality
is based on divine law as embodied in the Bible, Church’s teachings and Tradition. Ideally, both
must not be in conflict, since human law is ought to be based on divine law. But conflicts are
unavoidable. Thus what is legal may not necessarily moral or vice-versa. For Christians, the
dictates of one’s conscience must always be obeyed and thus the norms of morality must always
be followed even if it conflicts with the human law and must be ready to take the consequences
of their actions.
 CHAPTER IV

THE STATE AND GOVERNMENT

INTRODUCTION

Despite the inclusion of subjects such as history, law, social studies and political science in
the curricula of our educational system in the Philippines, many Filipinos continue to have a
vague understanding of the state. For some people, the term “state” is oftentimes considered
synonymous with the term “government”. For others, especially the lawyers, the state is
considered a juridical entity, a “community of persons” with the four elements of territory,
people, sovereignty and government. The true meaning of the term “state” continues to elude
many Filipinos as they consider this entity as distant “other”, unrelated to their social networks
of family, relatives and friends. Sociological studies on the Filipino sense of community and
social capital (e.g. Abad 2006, Zialcita 1997) reveal that Filipinos can only relate to their
network of relatives and friends or to their primary group of family, peer group, the
neighborhood or small organizations as their “community” and not the “state” which consists of
distant and unrelated others that comprise its citizens.

UNDERSTANDING SOCIETY

To appreciate the nature of the state as a society, it is necessary to understand the various
types of societies around the world. Not all societies in the world are state societies. Some are
primitive, others are more complex and advanced in development like the state. Political
sociologists and anthropologists recognize the evolution of societies from a simple to a more
complex society. Table 1 below shows the various types of societies based on subsistence or
food-procurement system:

Table 1. Types of Societies based on Subsistence System and Political Structure

Type of Society General Subsistence System Political Structure

Characteristics
A. Non-State

1. Hunting and 1. Consists of 20-30 Hunting wild animals, A band is a small kin-
Gathering or families; gathering fruits and based group (all
Foraging 2. Nomadic, vegetables. members of the group
society constantly moving are related to each other
from one place to by kinship or marriage
 E.g. Eskimos another by walking in ties)
Aborigines search for food;
of 3. Egalitarian, no Characteristics of a
Australia private ownership; band:
4. Practices infanticide 1. Impermanent,
to control population; formed
5. Lowlanders seasonally, no
differential
authority or
power;
2. Lack formal law,
no social control
and dispute
settlement;
3. Leaders like
headmen and
shaman (part-
time religious
specialists) have
little power;
4. Band leaders are
leaders in name
only, first among
equals, can give
advice or make
decisions but no
means of
enforcing them;
5. Personal
relationships
linked families
and bands.

2. Horticultural 1. Population is higher 1.Swidden or “slush A tribe is a village or

Society than a band, and burn” agriculture descent group (a
temporary houses are (kaingin) permanent social unit
E.g. Yanomami, built around the 2. Tribe members clear whose members claim
native garden; the forest by burning, common ancestry like a
Americans in create a temporary lineage or clan) which
southern 2. Semi-nomadic, tribe garden planted with lacks a formal
Venezuela and transfers to another root crops and build government and social
Brazil area of the forest to homes around the area. classes. It has no reliable
build new garden after means of enforcing
every harvest; political decisions.
 3. No land ownership The leader is a
Village Head (always a
man) or a “Big Man”.

3.Pastoral 1. Higher in Raising cattle, sheep A chiefdom is a form of

Society population than a and other animals sociopolitical
horticultural society; organization which is in-
E.g. Iranian 2. Private ownership between the tribe and the
pastoral to limited to animals state, is kin-based, but it
nomads—the or cattle and slaves; has differential access to
Basseri & resources (some people
Qashqai have wealth, prestige,
and power than others)
and a permanent
political structure.

4. Agricultural 1. Population is large 1. Sedentary A state is a form of

Society with classification of agriculture: livelihood sociopolitical
people based on is primarily fixed organization based on a
wealth (social classes) farming using the plow formal government
and prestige (social and beast of burden like structure and
status). cows or carabaos; socioeconomic
stratification.
2. There is private 2. There is food
ownership including surplus: farmers
land; produce goods not just
for personal
3. Social inequality consumption but for
between the rich the exchange in the market
poor emerged.

5. Industrial 1. Densely populated; Machinery like tractor

Society is used for mass
2. Migration of people production of goods
from rural to urban and agriculture;
centers;
Sale of goods and
3. Urbanization: services;
formation of cities and
urban zones; Manufacturing sector
emerged;
Social inequality may
 be intensified;

Source: Some of the content above are taken from Kottak (1997) Pp. 238-263.

TWO APPROACHES IN DEFINING THE STATE

There are two perspectives or disciplines vying to explain the meaning and nature of the
state: the normative approach of law or political science and the descriptive or empirical
approach of sociology or anthropology. The normative approach judges reality “as it should be”,
that is, it usually judges a social reality or phenomenon using a set of fixed norms or ideal
standards, thus it judges a certain society whether it is a state or not using some form of fixed
norms. For lawyers, trained in law and political science, for instance, a state must have the basic
elements of people, territory, government and sovereignty, otherwise it can only classify as a
non-state society or nation. There is nothing wrong with looking at the state in this normative
sense, the only difficulty in adopting this view is that a state is a complex society, and various
states around the world, whether ancient or modern, manifest different characteristics which
cannot be simplified by these four elements. The Vatican, which is considered the smallest state
in the world, for instance, can be considered a state in this normative sense but can hardly qualify
as one under the theories and empirical methodologies of the social sciences. The normative
definition of the state, as we shall see below is also identified with the juridical definition and
understanding of the state.

The sociological-anthropological or the descriptive definition and understanding of the state

is research-based and relates to the various theories or methodologies in the social sciences. The
descriptive approach often classifies societies into state and non-state societies based on some
indicators established by ethnographic research studies.

One important empirical definition of the state is the definition offered by the German
sociologist Max Weber. For him, a state is “a compulsory association with territorial basis
having the monopoly of the legitimate use of force” (Weber in Ferkis 1974).

The Normative Approach

Among lawyers, law students and students of political science, the state is commonly
defined as:

[A] community of persons more or less, permanently occupying a definite

portion of territory, having a government of their own to which the great body of
inhabitants render obedience, and enjoying freedom from external control (De
Leon 1997: 5).
 A community of
Persons

TERRITORY INHABITANTS SOVEREIGNTY GOVERNMENT

The word “persons” in the juridical or legal parlance has specific meaning commonly
known by lawyers. As defined by Philippine law, a “person” can either be natural (individuals
with human rights) or artificial or juridical (such as corporations and companies). An artificial
person is a legal entity through which the law allows a group of natural persons to act as if it
were a single individual for certain purposes such as filing lawsuits (to sue and be sued),
property ownership, and entering contracts.

Thus, under this definition, a state is composed of both natural and artificial persons “more
or less” numerous, residing is a fixed territory with government and sovereignty.

Four Elements

Based on this definition, the state has four essential elements:

People

This refers to the population of people whether young or old, male or female, or “natural or
artificial” residing within the state. In the normative sense, there seems to be no requirement as
to the number of people that should compose a state. But is should be neither too small nor too
large: small enough to be well governed and large enough to be self-sufficing.

In the descriptive or sociological definition a society cannot qualify as a state unless the
population is large enough to form social classes of people such as upper, middle or lower class.
A group, tribe or secondary group cannot form a state under this approach.

Territory

The territory of the state includes the land, inland waters such as rivers, lakes, brooks, area
of the sea (and its underwater marine life and sea bed) which abuts upon its coasts and air space
above it. Normally the territory of the state is classified into four (4) important domains or areas:
the terrestrial (all land within the state), aerial (all air space above the land and sea), fluvial (all
inland waters or bodies of water within the terrestrial domain) and maritime (the territorial sea
and marine life and sea bed).

The Philippines is an archipelagic state. It consists of clusters of islands and islets totaling
to 7, 107. It is found in Southeast Asia in the Western Pacific Ocean. To its north across the
Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam. The Sulu Sea to the
southwest lies between the country and the island of Borneo, and to the south the Celebes Sea
separates it from the other islands of Indonesia. It is bounded on the east by the Philippine Sea.
The Philippines has a total land area of about 115, 707 square miles or 299,681 square kilometers
(De Leon 1997: 6).

In actual social practice, the question may be asked, How important is the territory to the
people residing in the state? Aside from asserting identity as one independent nation-state in the
international community, a fixed territory delineates the parameters or jurisdiction of Philippines
laws, especially public laws like criminal or penal laws. One essential characteristic of penal
laws is territoriality. All citizens or aliens who reside or visit the Philippine territory are subject
to criminal laws under the Revised Penal Code and Special Penal Laws. If they commit a crime
within the Philippine territory, whether terrestrial, aerial, fluvial or maritime domain, they can be
charged, prosecuted and imprisoned in the country, unless they are exempted by an international
treaty that says otherwise. For instance, under the Visiting Forces Agreement (VFA) between the
Philippines and United States, an American soldier who commits a crime in the Philippines can
be charged in Philippine courts, but the custody of the accused while waiting for final judgment
by the Philippine Supreme Court remains under the Americans and thus can be detained in the
American Embassy as in the case of Lance Corporal Daniel Smith who was detained in the US
embassy after conviction in a Makati Regional Trail Court while his case was on appeal.
Unfortunately, the case was dismissed when the Court of Appeals ruled in Smith’s favor after the
rape victim withdrew from the case and entered an amicable settlement with the US.

Government

Sociologically speaking, every type of society has some kind of leadership or authority
structure which provides direction to a nomadic group, tribe, chiefdom or state. But not all
societies have a centralized authority, bureaucracy or machinery of officials which run complex
societies like the modern state. Some governments are less complex in structure compared to
others, depending on the level of population, technology advancement and subsistence system of
the society. The most primitive form of society like hunting and gathering tribe for instance, has
no fixed government. Since there is no private ownership and social class, everything is held in
common. Leadership in the group, especially for a hunting expedition is assigned on a daily basis
by the nomadic group.

When we talk of government as an element of the state, we are referring not to pre-
modern or non-state forms of government, but the government of a modern nation-state with a
centralized authority structure consisting of bureaucratic officials who assist the sovereign or
chief ruler in running the state. Thus, a government can be defined as:
 The totality of authorities which rule a society by prescribing and carrying
out fundamental rules which regulate the freedom of its members. It is a whole
class of officeholders upon whom devolve the executive, legislative, judicial and
administrative functions of the State (Dannug & Campanilla 2004: 136-137).

Sovereignty

Sovereignty is an abstract concept which is basically connected to state power. A state

cannot exist if it cannot exercise social control over its citizens which can result in anarchy,
chaos and the proliferation of private armies. Thus, sovereignty is defined as “the supreme,
absolute, uncontrollable power by which an independent state is governed” (Suarez 1999: 56).
Sovereignty is the paramount control of the constitution and frame of government and its
administration (Dannug & Campanilla 2004).

The source of this sovereign power of the state is the people themselves. That is why
sovereignty is said to reside in the people. Under a republican or indirect form of government
and social contract theory, it is the people or citizens who agreed to form the state as expressed
in the constitution. Thus sovereign power emanates from the citizens and public officials are
only delegated with this power by the former to govern the state.

Table 2. Two Types of Sovereignty

Type Description

Internal This refers to the power of the state to rule itself. It is the power to
control and direct the internal affairs of a country such as the
authority to enact, execute and interpret the laws.

This refers to freedom of the state to run its own affairs with the
External interference of other states. It is often called as the independence
of the state from other states. This sovereignty is lost during an
invasion or colonization by a powerful state over a weak state.
Iraq, for instance, has lost its external sovereignty when the
United States invaded it to depose Saddam Hussein.

An independent nation-state must both possess internal and external sovereignty. It cannot
administer its own affairs and when often interfered with other states, it loses its own
independence and is reduced to a mere colony or part of another superior power or state.
Table 3. Anthropological Theories on State Formation

Theory Causes of State Formation Explanation

Hydraulic The need to regulate The state emerged in some

hydraulic (water-based) arid areas to manage systems
agricultural societies. of irrigation, drainage and
flood control; water control
increases population in arid
lands like Egypt and
Mesopotamia; irrigated
agriculture fuels population
growth; political systems may
arise to regulate interpersonal
relationships and conflicts and
the means of production.

Ecological diversity The need to regulate the Ecological diversity;

production and exchange of interzonal regulation and
products between zones ecological diversity strengthen
state organization for unity.

Long-Distance Trade The need to create centers of State develops at strategic

Routes trade, exchange or supply locations in regional trade
between long trade routes networks, including
crossroads of caravan routes,
and places that threaten or halt
trade between centers.

Multivariate State formation is not just Wherever and whenever

caused by one factor or
variable but by many factors
or causes.
environmental
circumscription (or resource
concentration), increasing
population and warfare exist,
state formation will begin.

Source: Condrad Phillip Kottak (1997) Pp. 264-265.

Table 4. Philosophical-Juridical Theories on the State

Theory Cause of State Formation Explanation

Divine Right Divine intervention God gave monarchs or kings

and queens the right to rule the
people as in the case of Moses
in the Old Testament

Necessity or Force Consolidation of small tribes The state is formed as a result

and territories into a state by of annexation of small
great warriors in History like societies or tribes into a state
Alexander the Great, society. This caused by
Napoleon the Great, etc. conquest by great warriors in
history like Alexander the
Great.

Paternalistic Expansion of a family into a The state is allegedly the

lineage, clan and ultimately product of a gradual increase
into a state of population starting with one
family.

Social Contract Voluntary agreement of the A state is formed when people

people to create a state enter into a covenant or social
contract as in a modern
constitution and determine the
type of society and
government for their own
common good.

Source: Hector de Leon (1997) Pp.6-7.

THE INHERENT POWERS OF THE STATE

POLICE POWER

Police power is one of the most coercive powers of the state. Under the Constitution, it can
limit the exercise of human rights under the constitution when public welfare requires it. This is
the power of the state to restrain and regulate the individual use of liberty and property to
promote public welfare. In a comprehensive sense, police power;

embraces its whole system of internal regulations, by which the State seeks not
only to preserve public order and to prevent an offense against the State but also
to establish, for the intercourse of citizens with citizens, those rules of good
 manners and good neighborhood which are calculated to prevent a conflict of
rights, and insure to each the uninterrupted enjoyment of his won so far as it is
reasonably consistent with a like enjoyment of rights of others (Moreno 1972:
465).

Police power regulates freedoms and property rights of citizens for the promotion of
(1) public safety, (2) health and (3) morals or the promotion of (4) public convenience
and (5) general prosperity. This is justified under maxims that the “welfare of the people
is the supreme law” (salus populi est suprema lex) and that “one should not use his/her
own property in such a manner as not to injure that of another” (sic utre tuo ut alienum
non laedas) (Dannug & Campanilla 2004: 281). To achieve this end, the state may enact
laws to protect the general welfare of the people as a valid exercise of police power. In
practical terms, police power can be applied in the following areas as shown in the
following table.

Table 4. The Scope of Police Power

Areas Covered Explanation

To protect public safety, the state punishes all

Public Safety forms of crimes such as murder, homicide, rape,
physical injury, assault, hazing, etc.

To protect public health, the state through

police check point can deny people to enter a
Public Health place infected with deadly or contagious
disease. It can also ban smoking in public
places.

Morals To protect public morals, the state can

criminalize prostitution, pornography, scandal
and other indecent acts.

Public Convenience To promote public convenience, the Metro

Manila Development Authority (MMDA) or
Land Transportation Office (LTO) can issues
traffic rules and regulations to motorists.

General Prosperity To promote prosperity, the state can enact laws

punishing economic crimes such swindling,
 syndicated estafa, theft, bouncing checks, etc.

Source: Dannug & Campanilla (2004) p. 281.

POWER OF TAXATION

The power of the state to impose taxes is premised on the fact that no government,
whether democratic or despotic, can exist without the resources to finance its operations. A
government exists by necessity, a state cannot exist without it. But a government cannot likewise
exist without any funds to run the state. Thus it has to raise revenues or taxes to defray the
necessary expenses of the state (Gonzalo et al 1999: 6).

There are several similar definitions of taxes and taxation. Taxation may be defined as the
power of the sovereign to impose burdens or charges upon persons, property or property rights
for the use and support of government in order to enable it to discharge its appropriate functions
(Gonzalo et al 1999: 3-4). Tax is defined as the burden or charge imposed by the legislative
power on persons, property or services to raise money for public purposes. The power to tax may
thus be said to refer to the power of the sovereign to make a levy upon persons or property for
the raising of revenue to defray the necessary expenses of government (Gonzalo et al 1999).

The power of taxation is both inherent and legislative in character because only the
legislature can make tax laws. It exercised this power as a body of direct representatives of the
people with authority to impose compulsory levies on persons, property objects, services and
transactions to raise government revenues for the purpose of resource allocation, income
redistribution, or economic stability (Gonzalo et al 1999: 4-6). For this reason, the 1987
Philippine Constitution requires that any proposed legislation that would create new taxes or
increase existing taxes in the country must emanate or originate from the House of
Representatives. The Senate cannot initiate tax bills. Only members of the Lower House who
represent the various districts and sectors throughout the country are authorized to file tax bills.

Since taxes are the lifeblood of the state, the power of taxation is coercive in nature. Every
citizen possessing taxable income, property and property rights must pay taxes correctly and
honestly otherwise s/he can be held liable under the law. For unpaid taxes, s/he can either pay
unpaid taxes with penalties and interests and/or face imprisonment. The Commissioners of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) are authorized by law to
assess and collect taxes and impose penalties on tax evaders under the tax code.

EMINENT DOMAIN

The power of eminent domain refers to the right of a government to take and appropriate
private property for public use, whenever public exigency requires it and this can be done only
on condition of providing a reasonable compensation for it (U.S. vs. Toribio, 15 Phil 93; Moreno
1972: 205).
 It is exercised by the state through national or local governments, private persons or
corporations authorized to exercise functions of public character. A law is usually passed by the
legislature authorizing the expropriation of a private property for public use. It can be Congress,
the Provincial Board, or the City or Municipal Council which can determine it. But the Supreme
Court has repeatedly ruled that the exercise of eminent domain is valid if there is just payment or
compensation to the owner of the property based on fair market value.

The most common expressions of the exercise of eminent domain can be seen in the
widening of roads where the owners of land and houses affected by the project have no choice
but sell their property to the government at a fair market value. The construction of the
expressway SC-TEX in Tarlac where the owners of Hacienda Luisita were paid by the
government for the private agricultural land affected by the opening of this new road is an
example. The relocation of the historic Santa Clara Church and monastery is another example of
a valid exercise of eminent domain. The Catholic Church and contemplative nuns had to give up
their property and be transferred to another site, upon just payment, to give way to the
government’s LRT project on Katipunan Avenue, Quezon City.

THE DIFFERENCE BETWEEN THE STATE, GOVERNMENT AND NATION

Ordinary people tend to equate the word “state” and “government” as if they refer to the
same reality. They use the words interchangeably. But a closer look at these two terms reveal a
technical difference. A state is an advanced and complex type of society with the government as
one of its four (4) essential elements. Thus a state cannot exist without a government. As already
mentioned, the government is only a part and an agency of the state which provides economic
and political directions to its society. Therefore the word “state” is larger in scope than
“government”.

A government can exist even without a state as in the case of non-state societies. A
chiefdom in a barangay of old, for instance, was a political organization with the datu as the
chief ruler assisted by a council of elders or relatives, had a government that it is not necessarily
a state. In a modern nation-state, a government is a political machinery composed of public
official who run the affairs of the state using rational-legal authority.

Based on anthropological studies, the following are the most common types of government
of non-state and state societies:

The word “nation” is also different from the “state” or “government”. H. De Leon (1997)
suggests that “state” is a political concept while “nation” is an ethnic concept. The word “nation”
is technically synonymous to “people” in the state. It is defined as “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 (De Leon 1997:7).

The idea of nationhood is of European origin, particularly from France, the first
independent nation-state in Europe after the French Revolution. Dr. Jose Rizal first introduced
this idea through his writings in the 19th century to mean one identity of all people who are born
and residing in the Philippines during the Spanish period as “Filipinos” whether they are
Spaniards, mestizos or natives (Indios). Before Rizal, one must remember that only those with
Spanish blood like the peninsulares (Spaniards who were born in the peninsula or Spain and
residing in the colony), insulares (Spaniards who were born and residing in the Philippines) and
mestizos (those of blood mixed, Spanish, Chinese or other foreigners) were considered
“Filipinos” and as consisting the “Filipino nation” during the Spanish period. The natives were
not called “Filipinos” by the Spaniards but were looked down upon as “Indios” or savage
“Indians” who generally were uneducated and considered uncivilized.

People consisting of one identity as a nation do not necessarily come from the same
ethnicity or cultural background whose language they speak is one. The Philippines, for instance,
is a multi-ethnic nation. Filipinos come from different ethnic backgrounds and speak different
languages: some are Ilokanos, Warays, Bicolanos, Cebuanos, Maranaos, Tausugs,
Maguindanaos, Ilonggo, Tagalogs, etc. There are more than a hundred ethno-linguistic groups in
the Philippines and yet they are all Filipinos and belong to one nation—the Philippines.
“Filipino” as the national language of our country is actually a social construct which uses the
Tagalog language as its basic structure with borrowings from other Philippine languages. It is the
lingua franca or the language which is not as yet mastered with equal competence by all these
ethnic groups in the Philippines. Of course, the national language “Filipino” is taught in schools
and can easily be learned by Filipinos from various ethnic origin because of a common core.

THE IMPORTANCE OF GOVERNMENT

One of the most important elements of the state is the government. A state must have some
organizing hold over its citizenry; otherwise, it would crumble and its territory would soon split
apart or be conquered or absorbed by other nations. In the absence of government, anarchy and
chaos reigns and the state soon disintegrates.

Humanity has witnessed various forms of government being instituted by societies and
states round the world. Below are some of the most prominent and popular types:

Table 5. General Types of Government in the World

Head of Head
Type Description State of Government
Country with this
Type of
(possesses (possesses actual Government
ceremonial governmental
or nominal powers)
powers)

I. As to the number of persons exercising sovereign powers

 A government in which the supreme and final authority is in the hands of
A. Monarchy the reigning monarch (king and/or queen).

Sub-Type

1. Absolute Monarch rules Monarch Monarch Saudi Arabia,

by divine right Brunei, Swaziland
with absolute
governmental
powers

2. Limited or Monarch rules in Monarch Prime Minister England, Japan,

Constitutional accordance with Spain
a constitution
and with limited
governmental
powers

B. Democracy A system of government where the people exercise governmental powers

either directly or through their representatives.

Sub-Type

1. Direct People directly All citizens All citizens Ancient city-states

exercise of Greece and
governmental Rome
powers. All
citizens speak &
vote in
assemblies to
decide
government
matters.

2.Indirect, Prime Minister Philippines, United

Representative or (parliamentary States, Malaysia
Republican government) or
President (for
presidential
government)
C. Aristocracy This is a system of government in which the political power is exercised by
a few rich and power class or elite known as oligarchy or aristocracy.

II. As to the extent of centralization of power

A. Unitary One in which the Philippines,

control of Vietnam, Taiwan
national and
local governance
is exercised by
the national
government.

B. Federal One in which the United States,

powers of Mexico
government is
divided into two
sets, one for
national affairs
(federal
government) and
the other for
local affairs
(state
government)

III. As to the extent of state ownership of the economy and distribution of the nation’s
wealth to poorer sectors of society

A. Laissez-faire The government owns little or no industry and redistributes little in the
form of welfare programs. This is based on the assumption that private
enterprise and individual initiative make a nation both free and prosperous.
E.g. United States, the Philippines.

B. Welfare The government owns little or no industry but does redistribute wealth to
aid the poor. This is also known as “social democracy”. The welfare state
 offers “cradle-to-grave” benefits in the form of health insurance, child care,
job training, and retirement funds. To pay for this, it charges the world’s
highest taxes—in Sweden and Denmark more than 50 percent of the
country’s GDP. Industry, though is private and oriented to moneymaking.

This is the old system which predated laissez-faire and originated when the
C. Statism French kings became powerful in Europe. The government becomes the
number one capitalist, owning and running much of major industry, but is
not interested in providing welfare benefits. Small and medium business is
left in private hands. Some European and Latin American countries:
France, Brazil and Mexico were caught by statism and are now reforming
to improve their systems.

Sources: De Leon, Hector (1997) Pp.8-9; Roskin et al (2008). P.7

Which Type of Government a better fit for the Philippines: Presidential or Parliamentary?

One of the most controversial issues facing the Philippines in recent years revolved around
the choice of the form of republican government to be adopted in the country. The 1987
Constitution has expressly indicated that the government must be presidential with the President
as the head of the state and government. But debates often surfaced with regard to the advantages
and disadvantages of adopting the presidential form of government. Some preferred the
parliamentary over the presidential form of government because it was said to be easier to
remove the head of government, if s/he was corrupt, with just a mere vote of confidence of the
members of parliament compared to the tedious process of impeachment. Others pointed out the
simplicity and lesser cost in the process of making laws in a parliamentary form of government.
Thus the government can save more money in the treasury. In Parliamentary form, only one
lawmaking body and set of lawmakers would be debating to pass a bill into law, compared to the
two houses or two groups of lawmakers in the presidential type. This would certainly shorten the
duration in making important laws of the land.

Despite these advantages of adopting a parliamentary form of government, moves by the

incumbent top officials to change the charter or constitution (or CHACHA for Charter Change)
were opposed vehemently by those who were pro-presidential form. There was a general
perception that the change of government was just a pretext to extend the term of the President
and other officials rather than a quest for a more efficient government. Thus, when the former
President Gloria Macapagal Arroyo and her allies in Congress pushed for charter change to adopt
a parliamentary government, many people rejected it and preferred to maintain the presidential
form.

Before analyzing the costs and benefits of adopting the presidential or parliamentary form
of government, it is important to understand the main difference of these republican or indirect
forms of democratic governments.
THE DIFFERENCE BETWEEN THE PRESIDENTIAL AND PARLIAMENTARY
FORMS OF GOVERNMENT

The republican government or representative democracy became the popular model when
nation-states arose and became popular in the 19th century. It has two forms: the parliamentary
and the presidential. The parliamentary form originated in England, the “Mother of Parliaments”
and spread to some parts of Europe, to New Zealand, India and Malaysia. It became the most
popular form of democratic government with over 100 states operating under the parliamentary
form. The presidential form originated in the United States when it gained independence from
England in 1776. Since then, this type of government was adopted by other countries in the
world like Switzerland, Mexico, Indonesia and some Latin American republics (Zaide 1996:56).

THE DIFFERENCE IN THE HEAD OF STATE AND GOVERNMENT

On the one hand, the head or chief of state generally possesses titular or nominal powers.
He or she largely performs ceremonial functions in the government and often represents the
country abroad but does not possess political powers to directly run the government. The head of
government, on the other hand, is the true chief executive of the country, who directly
administers the laws of the land and manages the affairs of state.

In a presidential form, the function of the head of the state and the head of government are
usually performed by one person—the president— who is elected nationwide by highest vote. In
this case, the people or the electorate can directly choose their leader. His/her term is fixed by
law and can only be removed involuntarily by impeachment. In the Philippines, the President
serves for six (6) years without re-election.

In a parliamentary form, which is can be classified into two—the traditional type and the
French type—the head of state of the traditional type is the President while in the French type it
is the Prime Minister. Both of them are appointed and can be removed by the Parliament by
majority vote of its members—the MPs or Members of the Parliament. The head of the
government of the traditional type is the Prime Minister who is elected by the majority members
of the Parliament or MPs as in the case of Malaysia, Indonesia or Singapore. Usually s/he comes
from the ruling party who controls the number of MPs in the Parliament. The term of the Prime
Minister is indefinite, as long as the majority of the MPs have confidence in his/her leadership.
S/he can, however, be removed by a vote of non-confidence by the majority members of the
Parliament.

For the French type which is the case in France today, the head of government is the
President who is chosen by highest vote in a national election with a fixed term and with re-
election. The Prime Minister in France exercises minimal policy-making powers and performs
more ceremonial functions. The President runs the government and serves two terms. In the 2012
national election, the French President Nicolas Sarkoshy was defeated by Francois Hollade after
his first term.
 A STRONGER LEGISLATIVE BRANCH IN PARLIAMENTARY GOVERNMENT

The main difference between the presidential and parliamentary forms of government lies
in the allocation of powers between the executive and legislative branch. In the presidential form,
the executive branch’s power is running the country and is separate and independent from the
legislative branch. The President appoints the members of his/her cabinet who is usually non-
members of the legislature. There are only a few cases when a senator or congressman is
appointed by the President as a cabinet member—in such a case the appointed legislator has to
resign from his elected post. In the parliamentary form, the legislative and executive are fused or
merged, because the members of the cabinet are also members of the legislature and the ruling
party. The cabinet members who run the major departments of the government are first elected as
members of the parliament (MPs), the party with the highest number of seats in the parliament
elects the Prime Minister and cabinet members among themselves. Usually, the leader of the
ruling party which gained majority seats in the parliament is elected as the Prime Minister, who
has no fixed term and may continue to exercise power as long as s/he continues to enjoy the
confidence of the majority members of the parliament. If the Prime Minister loses the vote of
confidence in parliament, the cabinet members are obliged to resign. The parliament is dissolved
and a new parliamentary election is held. Those who aspire to become Prime Minister does not
have to run in a national election, all s/he has to do is to win the votes of his/her district and
constituency and when elected as a member of the parliament must win the vote of the other
members to be elected as the Prime Minister (Zaide 1996:55).

BICAMERAL LEGISLATION FOR PARLIAMENTARY GOVERNMENT

The presidential form has a bicameral legislation like in the case of the Philippines. It has
two houses which make laws or statutes: the Senate composed of 24 senators as the Upper House
and the House of Representatives, the Lower House, composed of more than 250 districts and
party-list congressmen/women. A bill or proposed law undergoes a long and tedious process
passing through these two houses before it is signed by the President as a law. In the
parliamentary form, lawmaking seems less complex as only one house and set of legislators are
assigned to tackle the bill before being signed into law by the Prime Minister in the traditional
parliamentary form or by the President in the French form.

The table below will summarize the main difference between a presidential and
parliamentary forms of a republican government:

Table 6. A Comparison between the Presidential and Parliamentary Forms of Government

Form of Government

Category
Presidential Parliamentary

Traditional Form French Form

 (Most common type)
(Adopted by
France)

A. Head of Government President Prime Minister President

Elected
1. Selection Process Elected nationwide Elected by majority nationwide
vote by Members of
Parliament (MPs),
mostly from the
Majority Party

2. Removal Process Impeachment Vote of Non- Vote of

Confidence by confidence by
majority of the MPs Parliament or
National
Assembly

3. Term of Office Fixed Term Indefinite, depending Fixed Term (5

on confidence of years with
MPs reelection)

B. Head of State President President Prime Minister

1. Selection Process Elected nationwide Appointed by the Nominated by

Parliament majority party of
National
Assembly and
appointed by the
President

2. Removal Process Impeachment Vote of Confidence Vote of

by MPs confidence by
MPs

3. Term of Office Fixed Term Indefinite Indefinite

C. Selection of Cabinet Usually non- Members of Ruling Chosen by the

Members members of party in Parliament Prime Minister
 Congress are elects Cabinet with the approval
appointed by the members of the President
President as Cabinet
members

D. Type of Legislation BICAMERAL UNICAMERAL BICAMERAL

(Meaning: 2 Houses) -The Senate and
-Two lawmaking -Only one house or National
bodies make laws one lawmaking body Assembly as the
makes laws Lower House

Philippine Congress
consisting of: The Parliament The French
1. Legislative body 1) Senate Parliament
(Upper House) &
2) House of
Representatives
(Lower House

2. Composition 24 Senators; 250+ Depending on the National

congressmen/women country’s constitution Assembly: 577
seats; Senate: 348
seats.

Source: Sonia Zaide (1996) Pp.55-58; http://www.rogerdarlington.me.uk/Frenchpoliticalsystem.

html, “A Short Guide to French Political System”

Table 7. Advantages and Disadvantages between the Presidential and Parliamentary

Governments

Parliamentary Presidential

Stability of Government Unstable as there is no fixed Stable as the executive branch

tenure of office for executive
officials (prime minister &
cabinet members can be
removed by vote of
confidence of MPs) &
parliament can be dissolved
any time with the removal of
the prime minister.
led by President & cabinet
members are separate from
legislature and thus can rule
the country unhampered by
party considerations and
excessive dependence on
legislative power.
Flexibility Flexible as elections can be
called any time to replace the
parliament, the prime minister
and the cabinet members.
Inflexible as the President and
members of Congress have
fixed tenures. Cabinet
members serve at the pleasure
of the President and thus can
be replaced any time during
the President’s term.

Harmony in Government Fosters harmony in The President is sometimes at

government as the executive
and legislative branches are
fused. The executive officers
and legislators work together
for the success and failure of
their government.
odds with Congress and can
be threatened by impeachment
if majority of the legislators
do not belong to the
President’s party.

Level of Complexity in Lawmaking tends to be less Lawmaking can be complex as

Lawmaking complex as there is only one
house and set of legislators
who will make the laws.
the bill or proposed law
undergoes various processes
in the two houses of Congress:
the Senate and House of
Representatives. This can
encourage red tape and
corruption to expedite
lawmaking.

SUMMARY

This chapter orients the reader to the basic nature of the state, nation and government. It
views the state into two major approaches. The first is the normative approach. It defined the
state as a community of persons more or less, permanently occupying a definite portion of
territory, having a government of their own to which the great body of inhabitants renders
obedience, and enjoying freedom from external control. The second is the empirical approach of
sociology and anthropology. It defined the state as a compulsory association with territorial basis
having the monopoly of the legitimate use of force. Sociologists distinguish state societies from
non-state societies. A state is a more advanced society which requires a large population, private
ownership, formation of social classes and a more advanced subsistence system.

A state is not synonymous with government. A state cannot exist without a government as
it is one of its major elements. But a government can exist without a state. Non-state or primitive
societies have governments but they do not qualify as states as they lack the necessary
anthropological requirements. A state is also different from a nation. The former is a political
concept while the latter is an ethnic concept. The word nation is technically synonymous to
“people” living in the state.

There are different types of government around the world as to the number of persons
exercising sovereign power (monarchy, democracy or aristocracy), as to the extent of
centralization of powers (unitary or federal), state ownership of the economy and distribution of
the nation’s wealth to poorer sectors of society (laissez-faire, welfare or statism). The two most
popular types of indirect or representative democracies are the presidential and parliamentary
forms of government. Each type has its own advantages and disadvantages. In the Philippines,
the debate continues as to which of these types is a better fit for the country.
 CHAPTER V

THE PHILIPPINE CONSTITUTION

THE NATURE OF A CONSTITUTION

In its broad sense, the term constitution refers to “that body of rules and principles in
accordance with which the powers of sovereignty are regularly exercised”(Cooley in Suarez
1999: 12).

With reference to our Philippine Constitution, this term may be defined as “that written
instrument by which the fundamental powers of the government are established, limited, and
defined and by which these powers are distributed among the several departments or branches
for their safe and useful exercise for the benefit of the people” (Malcom & Laurel in De Leon
1997: 18).

The constitution is popularly known as the fundamental law of the land and the basis of
government. It is established by the people, in their original sovereign capacity, to promote their
own happiness, and permanently to secure their rights, property, independence, and common
welfare (Moreno 1972: 128). The constitution is also called a charter in the sense it is the
framework of the type of government the people want to establish. That is why when one wants
to change the form of government, the charter or the constitution must first be changed; thus, the
term charter change or ChaCha became a popular acronym in the Philippines for those who
wanted to change the government from presidential to parliamentary form.

Though there are different kinds of constitutions, the most popular or common classification
as to their form is that of written or unwritten:

Written Constitution

This constitution, as the term denotes, is one has definite written form at a particular time,
usually written by a group of lawmakers tasked to frame the constitution such as the case of a
constitutional convention.

Most of the constitutions in the modern and post-modern world are written. If constitutional
laws are written, they become rigid, fixed and are not subject to constant change and whimsical
interpretation of top public officials.
Unwritten Constitution

This type of constitution is not entirely unwritten as the name denotes. Unwritten
constitution simply means that some parts of it are written and others are unwritten or handed
down from one generation to another through customs and traditions. This constitution is usually
“a 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 into one single
document. Part of it is written such the Acts of Parliament and judicial decisions of the courts.

CONSTITUTION AND STATUTE

Constitution

The constitution is considered as the highest law of the land. It is drafted indirectly by the
people through their representatives in a constitutional convention, especially in the case of
revision, and approved directly by them through votes in a process called a plebiscite. In a
plebiscite, registered voters go to the voting precincts and cast their votes “Yes” or “No” to the
amendment or revision of the constitution. In the case of a specific modification of the
constitution through people’s initiative, as we shall see below, the people themselves introduce
the amendment directly in a nationwide signature drive.

In creating, amending and revising the constitution, the people themselves, in theory,
exercise their sovereign power—the source or repository of all political authority in the country.
This makes the constitution the fundamental law or the highest form of law in the land, making it
the framework or the guiding principles the legislature follows in creating specific laws or
statutes for the public.

B. Statute

A statute is also part of the law of the land. Technically, a statute is a type of law enacted
or created by a lawmaking body like the Philippine Congress. It has various names. During the
Commonwealth period, statutes were called Commonwealth Acts (CAs), during the Marcos era
or the 1973 Constitution, they were called Batas Pambansa (BPs) and at present under the 1987
Constitution, they are called Republic Acts (RAs). A statue is not created or enacted directly by
the people but by their representatives such as senators or congressmen/women. It is usually
more specific in content than a constitutional law and addresses specific problem in the public
order. B.P. 22, for instance, punishes any person who issues a check without sufficient funds in
the bank or R.A. 7279 or Urban Development and Act provides guidelines with regard to urban
land reform and squatting. Since the constitution is the highest law of the land, it cannot be
contradicted or undermined by a statute. In case of conflict, the constitution must prevail and the
statute or any portion thereof can be declared by the Supreme Court upon a valid petition, as
unconstitutional and illegal and must therefore stricken from the legal code.
METHODS OF CHANGING THE CONSTITUTION

In the Philippines, constitutional changes can be done in two ways: (1) by amendment and
(2) by revision. It is an amendment if the change is isolated or piecemeal only like a mere change
in the term of the President from six years to four years. But there is revision if the change is
substantial which requires a revamp or rewriting of the whole instrument. Changing the form of
government, for instance, from presidential to parliamentary form is substantial and thus can be
considered a revision. The present 1987 Philippine Constitution may be considered a revision of
the 1973 Marcos Constitution in a sense; the provisions which restored the presidential system
of government from the modified parliamentary form of the Marcos Constitution, when he made
himself the President and Cesar Virata as the Prime Minister.

Two Steps in the Amendment or Revision of the Constitution

The Proposal

The process to change the constitution begins with a proposal from a legislative body like
our Philippine Congress or directly by the people to amend or revise it. Thus there are three (3)
methods with which a proposal can be made for change, contained in the 1987 Philippine
Constitution:

(1) By a Constitutional Convention (ConCon) called for the purpose;

(2) By Congress, as a Constituent Assembly (ConAss), upon a vote of three-fourths of
all its members, voting separately;
(3) By the people directly, through initiative upon petition of the required number of
voters.

Table 8. Philippine Constitutional Change

Method

Category
Constitutional Constituent People’s Initiative
Convention (ConCon) Assembly (ConAss) (PI)
(Section 3, Art. XVII) (Sec. 1[a], Art. XVII) (Section 2, Art. XVII)

Nature of Change Revision Amendment or Amendment

change of particular
provisions only

Requirements A law passed signed by A law signed by at A petition to

at least 2/3 of all least 3/4 of all directly amend the
members of Congress members of Constitution signed
calling for a Congress allowing by at least 12
 constitutional Congress to directly percent of total
convention make the proposal registered voters,
with every
legislative district
represented by at
least 3 percent of
registered voters
therein.

People who will make Delegates are elected Incumbent member Directly done by
the proposal by legislative district of Congress registered voters
throughout the country automatically signing the petition,
in a special election become the drafters COMELEC verifies
the authenticity of
the signatures

Source: Suarez 1999

Ratification

Ratification of the constitutional changes is done by the direct approval by the people, i.e.,
by registered voters, of the amendment or revision of the constitution. Except by the people’s
initiative, the final change in the constitution is done by delegates or drafters—whether by a
constitutional convention or constituent assembly. It remains a draft and proposal without the
approval of the electorate. This power of ratification is in the hands of the people, particularly the
registered voters, where sovereignty or the supreme power of the state resides (1987 Constitution
Art. II, Sec.1). In practice, this means that the registered voters would go their respective voting
precincts on the day of the plebiscite and cast their vote “Yes” or “No” when ask in the ballot
whether they would approve or not the draft of the new Constitution. If the majority vote is
“Yes” than the new Constitution is deemed ratified.

CONSTITUTIONS IN PHILIPPINE HISTORY

The 19th century is marked by the birth of nation-states in the world coinciding with the birth
of the modern world. Territories which gained independence from their colonial masters started
to build their own republics and to write their own constitutions or charters describing what kind
of government they want to establish. The Philippines too through its revolutionary leaders
during the twilight of the Spanish rule, during the late 19th century, started to make moves to
establish an independent state. General Emilio Aguinaldo, the dictatorial President of the Biak-
na-Bato Republic in 1897, was the first to draft a constitution in the country with the aim of
making the Philippines separate from the Spanish monarchy and an independent nation. He
wrote the first known constitution in the country while hiding in the caves of Bulacan—the Biak-
na-Bato Constitution. This constitution created the Biak-na-Bato Republic on November 1, 1987.
It had no lasting political impact as its operation lasted only up to December 15, 1897 with the
dissolution of the republic. Its significance lies more in the attempt to create an independent
republic separate from Spanish rule.

The Malolos Constitution

The first formal Philippine Constitution which had a significant impact on the creation of the
Philippine state is the Malolos Constitution which established the revolutionary government of
General Emilio Aguinaldo in 1899. This constitution was created by a revolutionary Congress by
virtue of presidential proclamations of Emilio Aguinaldo who declared himself as the new
president of the First Philippine Republic. It made the Philippines as the first democratic country
in Asia and the West Pacific.

This revolutionary government, however, did not last long as Aguinaldo was captured
during the Spanish-American war by the Americans in April 1901. The Philippines was annexed
to the United States as a colony and thus the Malolos constitution ceased to operate when the
American military rule was established in April 14, 1898.

1935 Constitution

It took more than thirty years before the Philippines under the Commonwealth came up
with a new constitution. The Americans took control of the archipelago under military and civil
rule. During this period, steps were taken by the United States Congress to prepare the
Philippines to enact a new constitution and gain independence. Of particular importance is the
passage of the Tydings-McDuffie Law by the US Congress on March 24, 1934. This law
primarily provided a transition of ten years during which the Philippine Commonwealth would
operate and at the expiration of said period on July 4, 1946, the Philippines would be granted
independence. Moreover, it authorized the calling of a constitutional convention by the
Philippine Legislature for the enactment of the new constitution. As a result, on March 23, 1935,
President Roosevelt approved the draft and was submitted for approval by the Filipino people.
With a vote of 1,213,046 in favor and 44, 963 against, the 1935 Constitution was ratified
overwhelmingly.

The 1935 constitution was heavily influenced by the American constitution. It subscribed
to a bicameral legislature consisting of a Senate and House of Representatives. Like the US
president, the Philippine President and Vice-President has a term of 4 years with reelection. The
form of government was presidential republican democracy with the President as the head of
State and government.

The 1935 Constitution has been praised by lawyers for its brevity and clarity. But it has
also been criticized for being pro-American. Its most controversial provision was the so-called
Parity Amendment which allowed American citizen equal right in the exploitation of Philippine
natural resources and the operation of public utilities.
 C. 1973 Constitution

The most controversial constitution ever made in Philippine history is the 1973
Constitution or what is commonly referred to as the Marcos Constitution. The irregularity of this
constitution lies in its ratification. This charter was presented for people’s approval not through
secret balloting by qualified voters in a plebiscite. Instead it was submitted to hastily-arranged
“citizen’s assemblies” composed of groups of people in various barangays (including youth 15
years or below) who were asked to ratify by viva voce or show of hands. The Supreme Court
decided that it had not been legally ratified. But, the Court was cut short of declaring it null and
void provoking Chief Justice Roberto Conception to resign (Zaide 1996:43).

This constitution has been amended many times in 1976, 1980, 1981 and 1984 making it
different from what was originally drafted in 1973. After 38 amendments in 13 years, the 1973
Constitution is said to be the most-amended written constitution in the world (Zaide 1996). One
controversial amendment was the introduction of the parliamentary form of government
following the French type in the constitution. Because of this amendment, Marcos became the
regular President and his Finance Minister Cesar Virata was appointed by him as his Prime
Minister. Another amendment that stood out as the most controversial of all is Amendment No.
6. This amendment gave President Marcos law-making powers which are ordinarily reserved for
the legislature. It enabled him to write and enforce presidential decrees (P.D.s) outside Congress.
It virtually made Marcos a very strong Philippine President possessing both executive and
legislative powers. Obviously, all these maneuvers of Marcos were meant to extend his term and
to accumulate more powers to himself and his cronies. Marcos could no longer run for a second
reelection; thus he needed to manipulate the constitution and change the form of government to
prolong his stay in power.

1987 Constitution

Marcos dictatorship began to crumble when he called a snap election in 1986 and the
widow of the slain senator Benigno Corazon “Cory” Aquino took the challenge. Because of the
massive manipulation of the election results by Marcos people became restless. This was
aggravated by the fact that the cousin of Marcos, General Fidel Ramos together with the
Secretary of Defense Juan Ponce Enrile and the Reform Armed Forces Movement (RAM) in the
military withdrew their support and loyalty to the former President. To rescue Enrile and Ramos
from arrest and to prevent a bloody revolution, the late Jaime Cardinal Sin called on the people
in Radio Veritas to go to EDSA with prayers and rosaries. This resulted in the peaceful
revolution called EDSA People Power I. Marcos and his family were forced to flee to Hawaii
with the help of the US and seek asylum in the United States and Corazon “Cory” Aquino was
installed as the new president of the republic.

After EDSA People Power I, the 1973 constitution of Marcos ceased to operate. President
Corazon Aquino declared a revolutionary government and eventually became a revolutionary
dictator. Under the transitory Freedom Constitution, President Aquino could make laws until the
convening of the legislative body (Congress) under the new constitution. Owing to her desire to
expedite the restoration of democracy and to give up her vast powers as a revolutionary leader,
Aquino appointed a Constitutional Commission composed of 50 people to draft the new
constitution. After 133 days of work and with a vote of 42-2, the Constitutional Commission
approved the proposed new constitution (De Leon 1997: 26). In a plebiscite, the new 1987
Constitution was ratified by the Filipino people on February 2, 1987.

The 1987 Constitution was a reaction to the abuses of Marcos under the 1973 Constitution.
This constitution basically restored democracy in the country and remove dictatorial provisions
of the Marcos constitution. It rejected the parliamentary experiment and restored the old
presidential system with certain modification especially to the term of the President which was
shortened from 4 years with reelection under the 1935 Constitution to 6 years without reelection.

Table 9. The Philippine Constitutions and their Characteristics

1899 1935 1973 1987

Category (Malolos (Commonwealth (Marcos (People Power
Constitution) Constitution) Constitution) Constitution)

Mode of Creation Congressional Constitutional Constitutional Constitutional

Committee Convention Convention Commission
(1935) (1971) (1986)

Manner How Appointed Elected by district Elected by Appointed by

Delegates or among district President
Drafters of the members of Corazon
Constitution were Revolutionary Aquino
chosen Congress

President/Head of Felipe Claro M. Recto Jose Nolledo Justice Cecilia

Drafters/delegates Calderon Munoz-Palma

Enabling Law/s Decrees of Tydings-McDuffie Resolution of Article V of

June 18 & 23, Law (1934) Both Houses Proclamation
1898 No. 2 (1967), No.3 (March
promulgated as amended by 25, 9186) and
by Emilio Resolution Proclamation
Aguinaldo No.4 (1969) No. 9, known
as the Law
Governing the
Constitutional
Commission of
 1986”
promulgated by
Pres. Corazon
Aquino on
April 23, 1986)

Nature of the Law Convoked the Enacted by US Authorized the Authorized the
members of the Congress & holding of President to
Philippine approved by Pres. constitutional appoint 50
Revolutionary Franklin convention in national,
Congress & Roosevelt 1971 regional and
authorized the authorizing sectoral
appointment of Philippine representatives
constitutional legislature to call to draft the
committee for Constitutional constitution
Convention

Effectivity 1898 to 1901 1942 to 1945, 1973 to 1986 1987 up to the

1946 to 1972 present

Source/s of Constitutions U.S. Constitution, 1935 Malolos

Content/inspiration of Mexico, with minor Constitution Constitution &
of the New Belgium, influence from with references 1935
Constitution Guatemala, Malolos from Malolos Constitution
Costa Rica, constitution, Constitution
Brazil and Instruction of
France Pres.William
McKinley
(1900),Phil. Bill
(1902), and Jones
Law (1916)

Date of People’s January 21, May 14, 1935 January 17, February 2,
Approval of the 1899 1973 1987
New Constitution
(Ratification)

Manner of Inaugurated by Plebiscite: Vote by Plebiscite:

ratification members of 1,213,046 in Citizens 17,059,495
Congress & favor; 44,963 assemblies: in favor;
promulgated against 14,976,561 in 5,058,714
 by Aguinaldo favor; 743,869 against
against

Type of First Philippine Commonwealth of (1) Dictatorial Republican

Government Republic the Philippines, government, government
Established which later with Marcos replacing the
became Republic given dictatorial
of the Philippines legislative government of
after gaining powers, and Marcos and the
independence in (2) a modified revolutionary
July 4, 1946. parliamentary government of
form of Pres. Corazon
government Aquino after
after lifting of EDSA People
Martial law in Power I.
1981

Sources: De Leon, Hector (1997). Pp. 22-26; “The Philippine Revolution, the Malolos
Congress”(http://filipino.biz.ph/history/malolos.html).

THE BASIC PRINCIPLES IN THE 1987 CONSTITUTION

The following provisions can provide students with an overview of the basic principles
underlying the 1987 Constitution. It is recommended that they read and examine the sections and
principles below to appreciate these principles. They are based on certain fundamental
philosophies or principles of government which become part of our democratic heritage as a
people (Munoz & Gonzales-Munoz 2002: 23).

Table 10. Overview of the Principles Underlying the 1987 Constitution

SOURCE IN 1987
BRIEF DESCRIPTION CONSTITUTION
PRINCIPLE

ARTICLE SECTION

The aid of Almighty God in the life The Preamble is a collective Preamble or
1 of the nation is expressly prayer. In imploring the aid of introduction of the
recognized. God Almighty, we declare our constitution
belief in God’s existence and
believe in His power to guide
our destinies.
2 The People are Sovereign.
3 War as an instrument of national Only defensive war is allowed
policy is renounced.
4 Civilian authority is supreme over The supremacy of civilian
the military.
5 Separation of Church and State
6 Importance of the family as a basic The State recognizes the sanctity
social institution
7 Human Rights are guaranteed.
All political powers in II 1
government emanate from the
people.
II 2
by law; invasion or offensive
war against another country is
unconstitutional.
II 3
authority over the military led by
the President must always be
observed in governance to
prevent military rule or takeover.
The domain of the state is purely II 6
on political matters while the
Church is purely on religious
and moral matters. The
relationship must be of
cooperation and not of hostility.
II 12
of family life as a basic social
institution as well as protect the
life of the mother and the unborn
from the moment of conception.
The constitution recognizes that III, Secs.1-22, XIII,
each has intrinsic human dignity Secs. 17-19
and rights which must respected
and protected against violations
by the state, individuals or
groups. The Bill of Rights is an
enumeration of a person’s rights
under the constitution and a
limitation upon the power of the
State.
8 Government Officials are elected. The right to suffrage or to elect V 1
government officials is an
obligation of qualified voters.

9 Separation of Powers with checks Executive, legislative and VI 1

and balances judicial branches of government
must be separate and
independent to provide for a
system of checks and balances
against possible abuse of power.

10 Local autonomy The local governments such as X 2

that of the provinces, cities,
towns or barangays are given
more power and autonomy from
the national government under a
local government code. It also
espouses autonomous regions of
the Cordilleras and Muslim
Mindanao.

11 Independent Judiciary The courts enjoy independence, VIII 1

i.e., autonomous in performing
their functions without
interference from the executive
or legislative branch of the
government. The judiciary
enjoys fiscal autonomy and the
Supreme Court has
administrative supervision over
all the courts.

12 Government of Laws It means that no person in this II 1

country is above or beyond the
law. The government is
governed by rational-legal rules
and not by self-interested
individuals or groups.

13 Majority Rule The majority rule is the II 1

 unwritten law of democratic
governance. It simply means that
the wishes of the majority
prevails over those of the
minority. Governance is
generally determined by the rule
of majority. Those who received
majority votes in an election, for
instance, are usually given the
authority to decide or rule.

14 Non-suability of the State In general it means that the XVI 3

government of the Republic of
the Philippines cannot be sued in
court without its consent.
Without this principle, the state
will lose much time and public
resources just to entertain
barrage of cases filed against the
government in court. Thus cases
filed against the government can
only prosper in court depending
on the nature of the lawsuit and
consent of the State.

15 Guarantee of social justice The State is mandated to XIII 1-

promote social justice in all 16
phases of national development
giving preference to the poor and
underprivileged.

16 Nationalization of natural The natural resources and XII 2,3,

resources national economy must be 17,
effectively owned and controlled 18
by Filipinos.

17 Accountability of public officers Public office is a public trust. All XI 1

government officials, whether
they be the highest in the land or
lowliest public servants shall at
all times be answerable to the
 people for their misconduct to
the people.

Source: (Munoz & Gonzales-Munoz 2002: 23)

SOME BASIC CONSTITUTIONAL PRINCIPLES

The Philippines is a democratic and republican state (Art. II, Section 1)

The 1987 Constitution explicitly subscribes to an indirect, representative or republican form

of democratic government. This means that our country is ruled by representatives of the people
chosen through democratic elections. Public officers such as the President, Vice-President,
Senators, congressmen, governors, mayors and so on, exercise power delegated by the people
who remain the ultimate source of political power and authority. Hence, Section 1 of Article II of
the Constitution states that the “sovereignty resides in the people and all government authority
emanates from them”. Technically, only registered voters or the electorate has the power to
exercise and delegate this sovereign power in an election, plebiscite or referendum.

The 1987 Constitution embodies some features of a pure democracy in which the people
can directly by their sovereign power, rule the country. This is manifested in the provisions on
referendum and people’s initiative in amending the constitution (see Art. VI, Sec. 32) (De Leon
1997: 43).

Renunciation of War as a State Policy (Art. II, Section 2)

Under this section, the Philippines subscribes to the United Nations Charter binding all
members to “refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state….” (De Leon 1997: 45). This means
that Congress cannot authorize the President to invade another country or annex any territory of
another state just like what Iraq did when Saddam Hussein invaded Kuwait during the Gulf war.
The Philippines “adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations” (Section 2). But if the Philippines is attacked or invaded by another
country, the Constitution allows Congress to declare an existence of a state of war and authorize
the President to command the Armed Forces to defend our territorial integrity. This requires the
concurrence of two-thirds of all the members of Congress voting separately (Section 23 (1),
Article VI). In short, the constitution allows the President and Congress to engage in defensive
war against an invading country, as an act of self-defense but prohibits aggressive war that
attacks another state, as this is contrary to the country’s policy of peace and friendship with other
nations.

Civilian Supremacy and the Role of the Armed Forces as Protector of the People (Art. II,
Section 3).

The principle of civilian supremacy simply requires that the armed forces of the
Philippines are always subordinate to civilian authority. This was included in the constitution to
prevent the rise of military dictatorship or junta that grabs political power illegally. A clear
expression of this principle is that the President as commander-in-chief of the Armed Forces
must be a civilian and not an active general or member of the Armed Forces of the Philippines.
President Fidel Ramos is a military general but he was only elected President of our country after
he had retired from military service. Another manifestation of this principle is that civilian
authority remains superior over the military even during martial law, suspension of the writ of
habeas corpus or war (see Art. III, Sec. 15; Art. VII, Sec. 18). Lastly, the President together with
Congress, determines the military budget and defines the national policy on defense and security
(De Leon 1997: 47).

Separation of Church and State (Art. II, Section 6)

The doctrine of separation of Church and State simply means that each institution has a
specific sphere or duty to perform in society: the Church on purely matters of religion and morals
and the State on purely political matters or temporal aspects of people’s life. Ideally, each
institution should not interfere with the other’s sphere in order to avoid conflict. But in some
cases, the Church criticizes some public officials and lobbies for a change in public policies
claiming that morality covers public service especially corruption in government. This was seen
when some Philippine presidents and top public officials tried to influence the Catholic bishops
or the Iglesia ni Cristo to support some of their government policies. Thus the dividing line
between the respective domains of the Church and State has always been the subject of
disagreement. Ideally, the relationship must be that of cooperation and mutual support but
questionable, corrupt, and immoral government action or policy often invites Church
interference and thus leads to hostility between these two powerful institutions in Philippine
society.

The important principles of the doctrine of Separation of Church and State is shown in the
following table.

Table 11. Principles of the Separation of Church and State

Principle Explanation

1 The State has no official religion. Although predominantly a Catholic

country, the Philippines has different
religions. The word “religion” includes
all faiths, or all churches, sects,
denominations, sectarian institution or
system of beliefs. The state assumes an
attitude of neutrality with regard to all
religions and is not allowed by the
constitution to enact a law making a
particular religion or church as the state
religion.
 2 The State cannot set-up a church, whether
or not supported with public funds; nor aid
one or all religions (see Art. VI, Sec. 29 [2]),
or prefer one religion over another;
The government cannot initiate the
building of a church, chapel or any
religious structure nor sponsor religious
activities favoring a particular religion,
whether funds being used come from the
government or private sector. It cannot
also pass laws aiding one or all religions
or prefer one religion over another. In
some cases the government may spend
money for the Pope’s visit in the
Philippines not as the head of the
Catholic Church but as the Head of the
independent state of the Vatican.

3 Every person is free to profess belief or Any person has the right to choose or not
disbelief in any religion; choose a particular religion without
duress or punishment from the state. In
communist countries like China, for
instance, Catholics are pressured to join
the Patriotic Church of China loyal to the
government and not to the underground
Catholic Church loyal to the Pope.

4 Every religious minister is free to practice This respects the vocation of those who
his calling; and wish to become a priest, religious, imam,
pastor, minister of any religious calling.

5 The State cannot punish a person for The right to believe and not to believe in
entertaining or professing religious beliefs God is covered by this constitutional
or disbeliefs. doctrine. A person who believes in
Satanism or rejects God’s existence
cannot just be arrested by the State unless
he or she performs illegal or criminal acts
in relation to such belief.

Source: Article II, Section 6 of the 1987 Constitution cited in De Leon (1997)

The doctrine of separation of Church and State does not mean hostility between these two
powerful institutions in the country. After all, both serve the same people as their constituents or
believers. To illustrate, the constitution has allowed some concessions to the Church as these can
provide beneficial results to the citizens in the long run:
 (1) Our Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (Art.VI, Sec 28 (3).);

(2) Optional, religious instruction is allowed in public elementary and high schools (Art.
XIV, Sec. 3[3]).

(3) Holy Thursday and Good Friday of the Holy Week, Christmas Day and Sundays and
Ramadan are made legal holidays as their observance can promote public morals.

(4) Public money may be used when a priest or preacher or dignitary as such is assigned and
worked as chaplain or any position in the armed forces, penal institution, government orphanage
or leprosarium (Art. VI, Sec. 29[2]); and

(5) The punishment of bigamy, polygamy, and certain crimes against public worship is
another expression of the State’s concern for the moral welfare of the citizens.

Equal Access to Opportunities to Public Service and Prohibition of Political Dynasty (Art.
II, Sec. 26).

Ideally, what the 1987 Constitution wants is to give every qualified Filipino an opportunity
to serve the government. In fact, the basic educational attainment for the President, Vice-
President, Senator and Congressman has been reduced to “able to read and write” presumably to
provide all Filipinos the opportunity to serve our government. Moreover, the law provides
limitations of term of office for elective and appointive positions to enhance access of people to
public service. Thus, the President serves only for 6 years without reelection, or the senator can
serve for 6 years with reelection but no consecutive 3 terms. The criteria for selection must be
based on merit and qualification and not by political connections, expediency, and kinship ties.
Unfortunately, this criteria as envisioned by the constitution is only partially fulfilled with this
limitation of terms. But the major problem of political dynasty has not been properly addressed
by Congress. At present, no law against political dynasty has been passed by Congress.

The limitation of terms of office for public officials is not a sufficient guarantee to prevent
political dynasty. It is a common practice among politicians to allow their wives, sons, daughters
or a close relatives to replace them soon after their last term ends. In other cases, incumbent
officials like senators, congressmen, governors, or mayors can influence Congress to pass new
laws creating another district, city or municipality just to provide them new positions to continue
to stay in public office. This common pattern of political behavior in the Philippines that treats
public office as private ownership is often called as patrimonialism in which politically
influential families feel that other members of their family have the right to public office just
because one member assumed public office (Zialcita in Diokno (ed) 1997: 46).The more popular
political dynasties include the Osmenas of Cebu, the Josons of Nueva Ecija, the Albanos of
Isabela and Binays of Makati to name a few.
Developing a self-reliant and independent national economy effectively controlled by
Filipinos (Art. II, Section 19)

To prevent foreign control of the local economy, the 1987 Constitution prohibits foreigners
to own real properties in the country. With regard to ownership of foreign investment, it requires
that at least 60 percent of the capital is owned by Filipinos and a maximum of 40 percent for
foreign investors.

Developing a self-reliant and independent national economy controlled by Filipinos has

long been an issue in our country. The Philippine economy during the American period could not
be said to be independent of foreign control. For instance, the parity amendment in the 1935
Constitution which provided Americans equal rights with Filipinos to own and control natural
resources in the country revealed the lack of independence of our economy. Moreover, some
analysts cited foreign American aid and loans extended by the World Bank and International
Monetary Fund for reconstruction after World War II as a means to further control the economy.
With the conditions attached to these loans, the Philippines, they say, became more and more
controlled by the US. The US required the adoption of a free trade policy for borrowers like the
Philippines in order to open their local economies to American products. The US experienced an
overproduction of goods after the World War II and was searching for new markets abroad as
countries ravaged by war tended to adopt protectionist policies and disallowed imports from
other countries. Foreign aid and loans with their attached conditions from multilateral institutions
such as the World Bank (WB) and the International Monetary Fund (IMF) to the Philippines
became an instrument of the US to make the local economy a ready market for US goods. As a
result, the Philippine economy became dependent on US imports and was discouraged to
establish an industrialized economy free from foreign control.

With the advent of globalization and liberalization of world trade as a result of the
multilateral agreement signed by more than a hundred countries including the Philippines called
the General Agreement on Tariffs and Trade (GATT) and the creation of its enforcing institution
called the World Trade Organization (WTO), this constitutional provision of developing a self-
reliant and independent economy controlled by Filipinos would be difficult to realize. The
Philippines could have started the establishment of the fundamentals of an industrialized
economy after the war, if it had not been manipulated by the US to make our country dependent
on American imports and thus enabled us to compete against developed countries in today’s free
trade.

Citizenship (Art. IV)

One important principle under the 1987 Constitution is that on citizenship. Before we try
to understand good citizenship, we must first determine what is citizenship, who is a citizen and
who is considered a Filipino citizen.

Firstly, citizenship is a “term denoting membership of a citizen in a political society” and a

citizen is “a member of a democratic community who enjoys full civil and political rights, and is
accorded protection inside and outside the territory of the State” (De Leon 1997: 122). A person
who is not a citizen is either called a “stateless person” or an “alien”. A stateless person, on one
hand, is a foreigner in another country whose state has been dissolved due to anarchy or
revolution. The movie “Terminal” illustrates this case. Tom Hanks visited the United States. But
after arriving at the airport, a revolution occurred in his country Liberia. The US and other
countries did not recognize the chaotic leadership of his country and thus his passport was not
honored. He became a “stateless person” and is at the mercy of the US authorities whether to
allow him to enter the US or not. An alien, on the other hand, “is a citizen of a country who is
residing in or passing through another country” (De Leon 1997: 123). Both a stateless person and
an alien are subject to our laws. A stateless person, unlike an alien, is not protected by his/her
own country and has no legal rights and no embassy to turn to in case of legal problems in the
sense that he has no country or has no diplomatic ties with the country s/he is residing in.

Two Principles of Citizenship by Birth

Persons who are born in a particular country are not automatically citizens of the land. They
are not automatically considered natural-born citizens. It still depends on the principle of
citizenship by birth adopted of the country where they are born. Some countries choose to adopt
one of the following 2 principles, others prefer to follow a combination of these principles:

Jus sanguinis (from Latin words “jus” which means “law” and “sanguinis” which means
blood).

Literally, the term means the “law of the blood”. Under this principle, the blood of the
parents is the basis for the acquisition of citizenship and not the territory or the country
where the baby was born. The children follow the citizenship of both or one of the
parents. The Philippines is following this principle (Art. IV, Sec 1[2]) in determining the
citizenship of persons born in the country. Thus, if one or both parents of the person who
is born in the Philippines are Filipinos, then his or her citizenship is automatically
Filipino. But it his or her parents are both aliens or foreigners, then his/her citizenship
would follow that of his/her parents whatever that be.

Jus Soli or Jus Loci (Law of the soil or law of the place).

Under this principle, the law of the soil or the place of birth determines the
citizenship of the child regardless of the citizenship or blood of one or both parents.
Thus, when a child is born in any part of the territory of the country be it in aerial,
terrestrial, or maritime domain, he or she automatically becomes a citizen of that country.
This principle is followed by the United States and France. A pregnant Filipino mother,
for instance, who gave birth in a commercial place which had entered US airspace is,
under this rule, the child is already considered an American citizen even though the
mother is an alien.

To be a Filipino citizen, a person must belong to any of the following types of citizens as
determined by the constitution and laws:
 Natural-born citizens

Naturalize-born citizens are “those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship” (Art.
IV, Sec. 2). Thus a child who is born in the Philippines of Filipino parents, or a Filipino
mother or father after the ratification of the 1987 Constitution on February 2, 1987 is a
natural-born citizen.

Citizens through election

This refers to those who are born of Filipino mother before January 17, 1973 and
who upon reaching the age of majority or 18 years old after the ratification of the 1973
Constitution (even prior to the effectivity of the new Constitution on February 2, 1987)
chose or elected Philippine citizenship are considered natural born-citizens. Those who
failed to make such election are considered aliens.

Citizens at the time of the adoption of 1987 Constitution

Those who are considered citizens of the Philippines under the 1987 Constitution at
the time of the adoption of the new constitution on February 2, 1987 are also natural-
born citizens.

Naturalized citizens

Naturalized citizens are citizens by operation of law. These are aliens or foreigners
who acquired Filipino citizenship by applying and complying with all requirements
provided in the Philippine naturalization law. Naturalization is defined as an ‘act of
formality adopting a foreigner into the political body of the state and clothing him or
her with rights and privilege of citizenship” (De Leon 1997: 126). A person may be
naturalized in two ways: 1) by judgment of the court, after foreigner-applicant had
complied with all the conditions prescribed by law, or 2) by direct act of Congress, in
which a foreigner is conferred citizenship by a law enacted by Congress. The Jesuit
American historian Fr. John Schumacher, S.J. became a naturalized Filipino by direct act
of Congress because of his great contribution to Philippine History.

5) Dual citizens

Under a new law passed by Congress a Filipino can still retain his/her citizenship
despite the fact that s/he has acquired a foreign citizenship. Thus, a person can
still be a Filipino citizen even if s/he has become a green card holder or has become
an American.

Suffrage (Art. V)

Since the country is under a republican presidential system, elections abound. We

witnessed many elections in the past and expect more to come in the future. Therefore it is
proper for citizens to know their basic rights with regard to suffrage under our present
constitution. Suffrage is “the right and obligation to vote for qualified citizens in the election of
certain national and local officers of the government and in the decision of public questions
submitted to the people” (De Leon 1997: 135). Under the 1987 Constitution (Art. V, Sec. 1),
suffrage may be exercised by all citizens of the Philippines who are not disqualified by law and
who are:

(1) at least 18 years old, and

(2) who have resided in the Philippines for at least 1 year, and
(3) who are in the place wherein they propose to vote for at least 6 months before the
election.

The Scope of Suffrage

Suffrage is a broad term that includes various types of electoral processes. Registered
voters exercise suffrage in any of the following cases:

Election

Election is the process by which the voters choose their officials for definite and
fixed terms as their duly chosen representatives in exercising their sovereign power in
the government. The Commission on Elections (COMELEC) is the constitutional
commission tasked by the constitution to conduct and supervise elections. To save
money for the government, the national election of the president and vice-president
every 6 years is usually synchronized with the elections of members of Congress and
local public officials. This is done on the second Monday of May.

Plebiscite

A plebiscite is the process by which the people express their choice for or against a
proposed law or enactment submitted to them. It is also a form of election where voters
go to election precincts to cast their votes whether they approve or ratify any proposed
amendment to, or revision of the Constitution (Art. XVII, Sec.2). Any proposed
changes affecting local government units also requires the approval of the people by
plebiscite (Art. X, Secs. 10, 11, 18).

Referendum

This is a process by which a law or part thereof passed by Congress or local

legislative body is presented to the voters for their ratification or rejection (see Art. VI,
Sec. 32).

Initiative

This is a process by which the people directly propose and enact new laws. This
requires a petition containing the proposed law or amendment of the constitution and
 the required number of verified signatures of petitioners. Congress has been tasked by
the Constitution to provide this system of initiative and referendum. Amendments to the
Constitution can also be directly proposed by the people through their initiative.

Recall

Recall is the process by which an elected official is removed from office during
his/her tenure by a vote of the people after registration of a petition signed by a required
percentage of the qualified voters. The former governor of Pampanga, Fr. Ed Panlilio
underwent this process. He was removed by his political enemies but he won in a recall
election thereafter.

Forces Influencing Philippine Suffrage

Since suffrage implies positioning people in the political system that determines control of
our country’s resources, foreign forces, various institutions, including political parties, groups
and individuals compete to field their own set of candidates, making our electoral system subject
to external and internal control. From the outside, many Philippine elections appear to be
democratic and peaceful. But from the inside, especially if one examines the system empirically,
various schemes of cheating and manipulations devised by external and internal forces can be
observed.

An important external force that determines our election especially with regard to the
presidency is the American interference. Political analysts often observe that no can win the
presidency without the endorsement and the blessing of the United States. The US has so much
to lose in their economic and military interests if a new Philippine president is an anti-American.
The Central Intelligence Agency (CIA) of the US, for instance, is said to be behind the election
of President Ramon Magsaysay because the Americans feared the growing influence of
communism in the Far East which threatened their capitalist interest. The US wants a Philippine
President who is friendly to America in order to protect their multinational corporations in the
country and to a maintain military presence in the Asia-Pacific.

In addition to the American interference in our elections is the influence of powerful

institutions in the country like the military, the Church and the media. Some politicized members
of the military such as the Reform Armed Forces Movement (RAM) or the organization of
retired generals have their own preferred candidates and mobilize their own connections and
resources to win elections. The churches too, led by the Catholic Church and Iglesia ni Cristo,
play a crucial role in elections. The Iglesia ni Cristo, for instance, engages in bloc voting and
thus politicians often court its endorsement. The mass media led by the big TV networks also
have their preferred candidates. In fact, some top politicians in the country like Senator Loren
Legarda and Vice-President Noli de Castro are former broadcasters of ABS-CBN. Despite the
declaration of media of being neutral and impartial in reporting, one can still notice a bias in the
manner and frequency of covering the campaign of certain candidates.

The underworld also influence our elections. Drug lords as well as “Jueteng” and gambling
lords invest money in elections to insure that the winners can become protectors of their illegal
trade. Political parties also determine elections. That is why politicians called “political
butterflies change party very often to corner funds for their candidacy. In particular, the
administration party, supported by the incumbent president, is often seen as using illegal or
public funds without qualms of conscience just to make sure that their candidates sweep the
election. Big businessmen also contribute to the campaign funds of politicians to insure that the
new government would be friendly to their economic interests. Warlords in the provinces also
influencing elections. It is alleged that the Ampatuans in Maguindanao, for instance, were able to
deliver votes allegedly through cheating, violence and intimidation to the former president Gloria
Arroyo and her senatorial candidates during the last 2004 elections. The Dimaporos of Lanao
were said to be helping Marcos to get more votes in Mindanao during his incumbency.

Suffrage as a Privilege and Political Rights

Suffrage is both a privilege and a political right granted by the constitution. It is not a
natural right but a privilege. Thus one may or may not exercise this right. Therefore a voter who
boycotts an election because he or she feels that the election is a farce or an exercise in futility
because all the candidates are unfit or the entire electoral process seems manipulated, he or she
cannot be punished by law. During the snap election called by Marcos in 1986, the left or the
communists and other concerned sectors chose to boycott and not to participate in a farce
election allegedly manipulated by the former dictator. With political dynasties existing in the
country and the culture of cheating in Philippine elections, one wonders if the principles of
suffrage in our constitution can effect meaningful change in our political system. With a high
level of social inequality prevailing in the country, one cannot expect elections to be democratic:
the few powerful elite remain in control of elections and public service while the poor who live
below the poverty line remains the victims of manipulation and vote buying and abuse.

THE THREE BRANCHES OF PHILIPPINE GOVERNMENT

The Philippines is a republican and presidential form of government. This means that the
Philippines is governed through the representatives of the people, who are either elected and
appointed, with the President of the republic as the chief executive of the land. As such,
governance is performed mainly by three major branches of government. Articles VI (Section 1),
VII (Section 1), VIII (Section (Section 1) of the 1987 Constitution provides that the Philippine
government is structured into three principal branches the representing major powers of
government, namely: the legislative, executive and judicial. The legislative branch enacts,
modifies, and abolishes the law. This is vested in the Philippine Congress which consists of two
legislative houses: the Upper House (Senate) and the Lower House (House of Representatives).
The executive branch administers or enforces the law. This is vested in the Philippine President.
Finally, the judicial branch interprets the law and settle legal cases in the courts. This is vested
by the Constitution in the one Supreme Court and in lower courts established by law. A further
discussion on these branches of government are found in chapters V, VI, VII of this book.

Separation of Powers

Political scientists and sociologists agree that abuse of power in governance occurs if there
is a lack or absence of social control or checks and balance system in the government structure.
Too much concentration of power in one branch of government without the necessary
mechanism to review its administrative acts and to hold it accountable for abusive acts or
policies by another branch can lead to dictatorship and death of democratic processes. This is
allegedly what happened, for instance, during the Marcos regime. President Marcos ruled the
country with executive and legislative powers (with law-making powers under amendment 6 of
the 1973 Constitution) under a predominantly Marcos-appointed justices of the Supreme Court.
Thus to avoid it, the major powers of the government are delegated to three different branches of
government. The 1987 Constitution adopted the principle of Separation of Powers to prevent
concentration of power in one person or department of the government and thus weakens the
checks and balances system which can result to corruption and abuse of power. “Under the
system of checks and balances system, one department is given certain powers by which it may
definitely restrain the others from exceeding constitutional authority” (Suarez 1999: 97). For
instance, the legislative branch or Congress can create new laws, but they are subject to approval
by the President of the executive branch. A proposed law or bill cannot become a law without the
President’s signature. Exercising his or her veto power, the President can disapprove the entire
bill or some portions of it s/he wants it. But to ensure that this power will not be abused,
Congress is also vested by the Constitution to overrule this veto power of the President. By a
vote two-thirds of all members of the two Houses of Congress voting separately, the bill can still
become a law and disregard the President’s veto.

On paper, the separation of the three branches of government a deterrent against possible
abuse of power by one branch over another. In practice, however, the executive branch led by the
President seems to dominate the other branches of Philippine President. For one, the release of
the budget of the legislature and the judicial branch is controlled by the Department of Budget
and Management (DBM) which under the executive branch and the President. For instance, the
release of the pork barrel or the Countryside Development Fund (CDF) of the senators and
congressmen intended for their various projects need the go signal of the President. That is why
it is highly probable that the executive branch can pressure Congress to accommodate the wishes
of the President such in the cases of impeachment. Moreover, the politics of “utang-na-loob”
often affects the independence of those appointed by the President. The Chief Justice and
associate justices of the Supreme Court, for instance, are appointed by the President. Despite the
rhetoric of judicial independence, one cannot deny that in the past, there are some protégé
justices of Malacanang in the high court voted in favor of the cases of the administration.
Although justices and judges promised to be neutral and stay away from parties and social
functions that may compromise their neutrality and independence, there is no monitoring system
available at the moment in order that the citizens can track down backdoor negotiations which
are enemical to public interest. Moreover, it is highly probable the use of information and
communication technologies such as the telephones, cellphones and the Internet can be used to
facilitate backdoor negotiations between these three branches of government. Despite denials by
Malacanang, one cannot erase the perception of the public that the full weight of the presidency
has been used to ensure the impeachment of former Chief Justice Renato Corona. Probably, it is
about time to evaluate the distribution of powers in the government. The Philippine constitution
has created a very strong Presidency which can the jeopardize the autonomy of the other
branches of the government.
 SUMMARY

This chapter orients the readers to the nature, types, basic principles and processes in
amending or revising of the constitution as the fundamental law of the land. The constitution is
defined as that body of rules and principles in accordance with which the powers of sovereignty
are regularly exercised. With reference to our Philippine Constitution, it is defined as “that
written instrument by which the fundamental powers of the government are established, limited,
and defined and by which these powers are distributed among the several departments or
branches for their safe and useful exercise for the benefit of the people. A constitution can be
written or unwritten. It is different from statute in the legislature as it is directly created and
ratified by the people. It can be changed by following the two major steps, namely: proposal and
ratification. If the change is substantial or revision, the appropriate method of changing it is
either by constitutional convention or constituent assembly. If the change is a mere amendment,
the appropriate method is a people’s initiative as stipulated in the 1987 Constitution.

There are four formal constitutions in Philippine history, namely: the Malolos
Constitution, the 1935 Constitution during the Commonwealth period, the 1973 Constitution
during the Marcos regime, and the present 1987 Constitution. Each of these constitutions has
unique characteristics which were responsive to the needs of the time.

The 1987 Constitution was created by a constitutional committee appointed by the former
president Corazon Aquino. Some of its basic principles include republican character of the
Philippine government, renunciation of war as a national policy, civilian supremacy, separation
of Church and State, equal access to political opportunities, developing a self-reliant economy,
citizenship and suffrage to name a few. To provide checks and balances system in the
government, it adopted the principle of separation of powers of the three branches of
government: the executive, legislative and judicial.
 CHAPTER VI

THE BILL OF RIGHTS

THE NATURE OF HUMAN RIGHTS

The idea of human rights is not universal. Even if human rights are considered to be
inalienable, a moral attribute of persons that the state cannot violate, rights still have to be
identified – that is constructed – by human being and codified in the legal system (Donnelly
1999: 71-102). Human right is a socially constructed concept which was gradually accepted by
modern nations through the United Nations Charter and declarations. Conversely, not all
societies around the world recognize the fundamental rights of each individual in society. In
ancient societies and states ruled by absolute monarchs, kings or emperors, for instance,
individuals especially the commoners had no power to assert their basic human rights. The word
of the king becomes the law of the land. Even our pre-colonial barangays with the datu ruling as
the chief executive assisted by his close relatives and allies, the idea of human rights was non-
existent.

Although in theory, the idea of people having God-given and inalienable rights have long
been discussed by earlier philosophers and theologians, its codification and application to
modern societies is a recent development in legal history. It was the American and French
revolutions of the eighteenth century that started to create national policies based on broadly
shared human rights. Despite the rhetoric of universality, the adoption and implementation of
human rights still depend on the political will of each country.

With the birth of nation-states in the 19th century and the establishment of the United
Nations, the idea of human rights gradually became universalized by its members. In particular,
the Bill of Rights became more and more integrated in constitutions and legal codes of countries
after the United Nations enacted a global international law called the Universal Declaration of
Human Rights in 1945. This was adopted by the General Assembly or member-countries of the
United Nations on December 10, 1948 (Forsythe 2006: 3-5).

TYPES OF HUMAN RIGHTS

In general, human rights can be classified into three types as shown below: natural,
constitutional, and statutory. Of all these rights, natural rights are the highest form because they
are God-given and inherent in a person’s human dignity as created in the image and likeness of
God (Genesis 1). Constitutional rights are granted by the country’s constitution to all its citizens.
They presumed to respect the natural rights given by God. The statutory rights are created by the
legislature and approved by the President. These rights must be based on the constitutional
provisions on human rights; otherwise, they can be abolished by the Supreme Court as illegal
and unconstitutional. These rights are expected also to respect the natural rights of the human
person.
Table 12. General Types of Human Rights

Type Description Examples

Natural God-given right, inherent and Right to life, to love, to marry,
inalienable to raise a family

Constitutional Conferred and guaranteed by the Rights in the Bill of Rights

Constitution such right to due process, equal
protection, warrant of arrest,
etc.

Statutory Conferred or given by the legislature Right to minimum wage, to

like Philippine Congress inherit property

Constitutional rights are further divided into three types below, namely: political, civil,
social and economic, and the rights of the accused.

Table 13. Types of Constitutional Rights

TYPE DESCRIPTION EXAMPLES

Rights which give citizens to Right to citizenship, suffrage,

Political participate directly or indirectly in information of public concern,
the establishing and administering etc.
the government.

Rights given to private individuals Rights against involuntary

Civil for the purpose of securing the servitude, imprisonment
enjoyment of their means of against non-payment of debt
happiness. or poll tax, liberty of abode,
etc.

Rights intended to secure the well- Right to property, rights

Social and Economic being and economic security of dealing with social justice
individuals. (Art. XIII), promotion of
education, science &
technology, arts & culture
(Art. XIV), etc.

Rights of the Accused Rights intended to protect a person Right to a speedy, impartial
accused of any crime. and public trial, right to a
lawyer of his/her own choice,
right to remain silent, etc.
 In the Philippines, the incorporation of human rights in the constitution started with the
Malolos Constitution in 1899 and was continued in the 1935, 1973 and 1987 Constitutions. In
the 1987 Constitution, the list of human rights is contained in the Bill of Rights, Article III,
Sections 1 to 22 of the charter. A Bill of Rights is defined as a “declaration and enumeration of a
person’s rights and privileges which the Constitution is designed to protect against violations by
the government, or by individual or groups of individuals” (De Leon 1997: 67).

The Bill of Rights in the Constitution is a basic characteristic in any democratic and
republican society. It is based on a belief that each person has an intrinsic worth and human
dignity, being created in the image and likeness of God. This human dignity provides the person
some inalienable and God-given rights which must respected in all democratic processes. By
enumerating the basic rights of people in the Bill of Rights, the Constitution limits the vast and
enormous powers of the State. The Bill of Rights is a charter of liberties and at the same time a
limitation upon the powers of the government.

HUMAN RIGHTS UNDER THE BILL OF RIGHTS

1. RIGHT TO DUE PROCESS & EQUAL SEC.1. No person shall be deprived of life,
PROTECTION OF THE LAWS liberty, or property without due process of law,
nor shall any person be denied the equal
protection of the law.

Under this section, a person has two important constitutional rights, namely: 1) the right to
due process, especially with regard to his or her right to life, liberty and property, and 2) the right
to equal protection of the law.

The Nature of Due Process

The most popular term in legal cases and arguments is “due process”. This term has no
strict definition. But it is a very important aspect in the acquisition of justice in the courtroom. It
has various descriptions in cases decided by the courts. Due process can refer to:

1. “ A law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial” (Darmouth College vs. Woodward, 4 Wheaton
518).

2. “Responsiveness to the supremacy of reason, obedience to the dictates of

justice” (Ermita-Malate Hotel & Motel Operators Association vs. City of Manila,
20 SCRA 849).
 Two Types of Due Process

In the court of law, two types of due process must be followed in order to attain true
justice.

1. Substantive due process

This due process refers to the content or the letter of the law itself. It requires that the law
itself is reasonable, just and enacted in good faith and according to legislative rules. An unjust
law cannot be used by the State to charge a person for committing a crime or illegality. Thus, a
person who is charged in court for violating a law or stature that limits the number of children of
couple to one child, such as the one-child policy in China, is deprived of substantive due process
if the court convicts him. This law obviously violates the natural and God-given right of married
couples to procreation.

2. Procedural due process

This type of due process simply requires that the rules or procedures in processing a legal
case must be observed judiciously by the court. The Supreme Court of the Philippines as
mandated by the constitution promulgates rules in processing legal cases in court. This legal
code is called the Revised Rules of Court in the Philippines. It contains all the rules in dealing
with criminal, civil and administrative cases such as the rules on appeals, rules of evidence,
criminal and civil procedures, and so on.

As a whole, “due process” simply means that a person’s case in court should be treated
justly, which means that his/her case must be judged based a just law and according to the rules
of legal procedures prescribed by the judicial system.

Due process in Relation to the Right to Life, Liberty and Property

The right to life, liberty and property are three fundamental rights of a person in society.
They are so sacred and inalienable that the Bill of Rights in the constitution stipulates that they
are protected by due process of law. With regard to the right to life, due process prohibits
deprivation of life of one’s person as in the case of murder or homicide as well as injury to his/
her limbs or faculties as in the crime of physical injury, mutilation, or direct assault. With regard
to liberty, due process disallows illegal physical restraint or imprisonment as well as restraint in
the use of the person’s God-given faculties such speech or artistic expression. Finally, due
process protects the right of the person over his real or personal property. This includes the right
to own, use, transmit, and even destroy one’s property subject to the right of the State and other
persons.

Equal Protection of the Laws

The expression which states that “everybody is equal in the eyes of the law” does not mean
that the law does not consider the person’s social class, age, gender and social status in society.
People in society are stratified into certain categories. Equal protection signifies that “all persons
subject to legislation should be treated alike, under like circumstances and conditions both in the
privileges conferred and liabilities imposed. What is prohibited under right is a class legislation
which discriminates against some and favors others when both are similarly situated or
circumstanced (Cooley in De Leon 1997: 73). Thus, if Congress passed a tax law, for instance,
that requires lawyers in Metro Manila to pay P2,000 and lawyers in Luzon to pay P1,000 this is
discriminatory and a violation of the equal protection of the law.

2. (1) THE RIGHT TO SEARCH WARRANT
FOR UNREASONABLE SEARCHES
AND SEIZURES;
(2) THE RIGHT TO WARRANT OF
ARREST AGAINST ILLEGAL ARRESTS
SEC.2. The right of the people to be
secure in their persons, houses, papers,
and effects against unreasonable searches
and seizures of whatever nature… no
search warrant or warrant of arrest shall be
issued except upon probable cause to be
determined personally by the judge….

The Scope of Protection

Section 2 of Article III of the Constitution protects:

1. Persons: all persons whether accused of a crime or not, whether citizens or aliens and
whether individuals or corporations are protected by this right against illegal
arrest.

2. Houses: all dwelling places, garage, warehouses, shops, store, office or even a safety
deposit vault. But open spaces and fields are excluded.

3. Papers and personal effects: include all sealed letters and packages in the mail which
can be opened and examined only by a search warrant.

Meaning of Search Warrant and Warrant of Arrest

1. Search Warrant: an order in writing, issued in the name of the People of the
Philippines, signed by the judge and directed to a peace officer
commanding him/her to search for certain personal property
and bring it before the court.

2. Warrant of Arrest: an order in writing, issued in the name of the People of the
Philippines, signed by the judge and directed to a peace officer,
commanding him to arrest a person in order that he/she can answer
for the commission of an offense.
 Requisites for a valid Search Warrant

1. It must be issued upon probable cause. By probable cause it meant that facts and
circumstances antecedent to the issuance of a warrant are sufficient in themselves to
induce a cautious man or woman to rely upon them and act in pursuance thereof.

2. The determination of the existence of probable cause must be made after

examination of the judge of the complainant and the witnesses he or she may
produce; and

3. It must particularly describe the place to be searched, and the persons or things
to be seized.

Warrantless or Citizen’s Arrest

Not all cases of arrest against suspects are done with search warrants. Under Rule 113 and
Rule 115 of the Rules of Court, an arrest without warrant is lawful when, in the presence of
arresting officer or individual, the person to be arrested 1) HAS COMMITTED, 2) IS
ACTUALLY COMMITTING, or 3) IS ATTEMPTING TO COMMIT the crime. This is called
under the law as in flagrante delicto (caught in the act). This is best exemplified in a “buy-bust”
operation by law enforcers against drug pushers. Government agents pose as buyers of illegal
drugs in order to arrest the pushers right then and there selling prohibited substances.

Another instance when the offense has in fact been committed and the arresting officer or
individual has probable cause to believe, based on personal knowledge of the facts and
circumstances, that the person to be arrested has committed it. In this case the arresting person
did not see the actual commission of the crime but he or she has a probable cause to believe
based on personal knowledge of the facts and circumstances that the person to be arrested has
committed it. This is commonly understood among law enforcers as called the “doctrine of hot
pursuit” which requires no warrant.

The third instance is when the person to be arrested is a prisoner who has escaped from
prison or a place where he or she is serving final judgment or temporarily confined while his/her
case is pending, or has escaped while being transferred from one jail to another. No warrant is
required to arrest this prisoner as long as the arresting person is certain of the identity of the
prisoner.

In all instances, the arresting officer or individual who makes a warrantless arrest must first
inform the person before arresting him/her why he or she is arrested and what criminal offense
has he or she committed.
3. THE RIGHT TO PRIVACY SEC. 3 (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety
or order requires otherwise as prescribed by
law.

The Meaning and Purpose of the Provision

The right to privacy means the right to be alone, to be free from unwarranted publicity and
to live without unwarranted interference by the State on matters which do not concern the public.
Although people are social beings, they are also entitled to privacy on personal and group
matters that do not affect the rights others.

The Constitution recognizes the right of the individual to communicate and correspond
through letters, emails, and messages with others without the State having the right to know the
content of these communications, except on matters that affect national security, public order or
safety which require a lawful court order. Any evidence illegally obtained in violation of this
right to privacy is inadmissible in court (Sec.3 [2]).

4. THE RIGHT TO (1) FREEDOM OF
SPEECH, (2) EXPRESSION, (3) OF THE
PRESS, (4) THE RIGHT TO ASSEMBLY
AND (5) PETITION THE GOVERNMENT
FOR REDRESS OF GRIEVANCES.
SEC. 4. 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.

A. The Scope of this Provision

Section 4 of the Bill of Rights of our Constitution five (5) human rights which the State
must protect by not passing any law in the legislature or Philippine Congress that curtails these
rights:

1. The Right to Freedom of Speech: Every person has the right to speak what s/he wants
to say privately or publicly as long as he or she does not offend or violate the rights of
others and of the State. The freedom of speech is a hallmark of democracy. In a
totalitarian government, the right to speech especially if critical to the government is
is curtailed. The most common violation of this right is oral defamation in which a
person destroys the reputation of others by verbal attacks or malicious gossiping.
Sedition is another crime which can be committed by individuals or groups against the
State by uttering words which promote hatred against a public official or against the
 government.

2. Right to Freedom of Expression: Expression includes oral utterances, actions or

artistic performances in state, video or film. Every person or group has the right
to express their mind as long as the right of others or the State are not violated.
Pornography, public scandal or libel are the more common violations of this right
in our society.

3. Right to Freedom of the Press: The term press includes every kind of publications:
newspapers, periodicals, journals, magazines, handbills, leaflets, etc. and all
instruments of mass media: radio, television, film, video, etc. Libel or malicious
defamation of another person is using published materials in the press to destroy
reputation of other people.

4. Right to Freedom of Assembly: This refers to the right on the part of citizens to meet
peacefully for consultation in respect to public affairs. Rallies, demonstrations, and
protests are protected by our Constitution as long they do not disrupt public order and
jeopardize the national security of the State. Permits for rallies are usually approved or
rejected by the city or municipal mayor. Every rejection must be accompanied with an
explanation and petitioners can appeal to the courts.

5. Right to Petition the Government for Redress of Grievances: This means that
every citizen or group has right to apply, without fear of penalty, to the appropriate
branch or office of the government for redress of grievances. Thus, a citizen or group
may request an internal investigation of a complaint of misconduct against a public
official in a government agency or demand an explanation for an inaction of a certain
petition or application filed in a government office.

5. THE RIGHT TO RELIGIOUS SEC. 5. No law shall be made respecting an

FREEDOM establishment of religion, or prohibiting the
free expression thereof. The free exercise and
enjoyment of religious profession and worship,
without discrimination or preference…No
religious test shall be required for the exercise
of civil or political rights.

The Meaning and Scope of the Provision

The right to religious freedom has to three aspects: the right to religious belief and worship,
the right to religious profession and the right against religious tests in the exercise of civil or
political rights:
 1. Right to Religious Belief and Worship: Our constitution protects the right of
individuals to worship God and to entertain views according to their conscience
without interference or dictation by any person or power, civil or ecclesiastical.
Under the doctrine of Separation of the Church and State, the right of the individual
not to believe and worship God is also protected by the Constitution and thus
included under this right.

2. Right to Religious Profession: Our Constitution also protects the right of

individuals who wish to enter religious life or follow a religious vocation in
accordance with his or her religion. The government cannot prevent people to
want to become priests, nuns, monks, imams, pastors, or ministers if they wish to.

3. Right against Religious Test: A religious test is one that demands the denial or
rejection of certain religious beliefs before the performance of any act. Thus, the
religion of citizens must not be included in the qualifications of candidates in public
office. It is prohibited to include in the qualification for President that s/he
should be a member of the Iglesia ni Cristo or of the Catholic religion. Moreover,
an employer cannot reject a job application on the basis of religion. One must not
reject a qualified applicant just because he or she belongs to the Born-again
movement.

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

The Meaning and Scope of the Provision

There are two human rights under this provision of the Constitution namely:

1. Right to Abode: The right to abode simply means that any citizen has the right to have
his home or residence in whatever place chosen by him and thereafter to change it at
will. As long as he or she does not squat on the land of others or of the government, he
or she has the freedom to choose where he or she wants to build his house or to transfer
it thereafter if he or she wants to.

2. Right to Travel: It means that every person has the right to go where he or she pleases
 without interference from the government or other people. The only limitation of this right
is court order and the exercise of the police power of the state. In the interest of national
security, public safety, or public health, one may be prohibited by check-points to enter a
particular place like a special military installation, or the place is infected with a deadly
virus or contagious disease.

7. THE RIGHT TO INFORMATION ON SEC. 7. The right of the people to information

MATTERS OF PUBLIC CONCERN
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
government research data used as basis for
public development, shall be afforded the
citizens, subject to such limitations as may be
provided by law.

The Meaning and Scope of the Provision

This provision has been inserted in our Constitution to provide the sovereign people who
constitute the State the right of access to the records of their government which can affect their
lives directly. In the spirit of transparency, public records, documents, decisions and transactions
must be open for people for inspection and evaluation. This can prevent graft and corruption in
the government. If government contracts and agreements are open for public scrutiny, any
anomaly or malfeasance or misconduct by public officials involved in these contracts can easily
be prosecuted by the Ombudsman. As of this writing, no law has been passed in Congress
detailing the dynamics of this right in actual social practice. The Freedom of Information Bill is
still pending and has not yet been acted upon by Congress.

The right to public records and information has limitations. Those documents that pertain
to the national security of the State are not covered by this right. The income tax records of
individuals in the Bureau of Internal Revenue (BIR) are also confidential. Accounts pertaining to
banks under the Central Bank and to military intelligence are also excluded from public scrutiny.

8. THE RIGHT TO FORM SEC. 8. The right of the people, including

ASSOCIATION, UNIONS OR SOCIETIES. those employed in the public and private
sectors, to form unions, associations, or
societies for the purposes not contrary to law
shall not be abridged.
 The Meaning and Scope of the Provision

This provision of our Constitution recognizes the social nature of persons. People are social
beings and as such they have the natural right to join or form associations not contrary to law.
The sphere between the individual and the State is called “civil society.” This includes social
groups and organizations, people’s organizations (POs) and non-government organizations
(NGOs). These are intermediary groups which can assist the state in its development programs
can serve as checks and balances to the affairs of the government. “The right to form an
association is the freedom to organize or to be a member of any group or associations, union or
society, and to adopt the rules which the members judge most appropriate to achieve their
purpose (De Leon 1997: 89).

9. THE RIGHT TO A JUST SEC. 9. Private property shall not be

COMPENSATION IN EXPROPRIATION taken for public use without just
compensation.

The Meaning and Scope of the Provision

As already mentioned in the previous chapter on the State’s inherent powers, any private
property whether it may be a piece of land or house and lot may be taken by the government for
public use after paying a just compensation or payment based on the property’s market value
under its power of eminent domain law (See Art. XII, Sec. 18). The most common instances
involving expropriation is the opening of new roads or widening of existing streets or highways
for public convenience and safety which affect the adjacent private property of private
individuals.

10. THE RIGHT TO CONTRACT SHALL SEC. 10. No law impairing the obligation of
NOT BE IMPAIRED BY THE STATE contracts shall be passed

The Nature and Scope of the Provision

A contract is the meeting of the minds or agreement between two parties with a
consideration. Contracts have various types. A contract can involve property, money or service.
For instance, a contract of loan between two persons, for instance, stipulates the amount of loan,
terms of payment, interest, or penalties.

The obligation of a contract is the law or a duty which binds the parties to perform their
agreement according to its terms or intent. As long as the contract is not contrary to law, morals,
good customs, public order, or public policy, the State cannot interfere with the agreement
between private parties. A contract is impaired when its terms or conditions are changed by law
or by a party without the consent of the other thereby weakening the position or rights of the
latter (Edwards vs. Kearney, 96 US 607). Thus in a contract of loan where the original interest
rate is low and a subsequent statute or law passed by Congress which requires existing contracts
to double their interest rates is an example of this as the debtor would be prejudiced by this
sudden change of interest caused by law.

11. (1) RIGHT TO FREE ACCESS TO SEC. 11. Free access to the courts and quasi-
THE COURTS AND QUASI-JUDICIAL judicial bodies and adequate legal assistance
COURTS & (2) THE RIGHT TO FREE shall not be denied to any person by reason of
LEGAL ASSISTANCE poverty.

The Meaning and Scope of the Provision

This provision gives all persons whether individuals or corporations, to go to regular courts
and quasi-judicial courts to file criminal, civil or administrative cases if they feel that their rights
are violated by others. If the offense is punishable by one year or less, the parties normally go
first to the barangay and settle amicably their case before they are allowed to go to court. If the
case is punishable by more than 1 year imprisonment, they may immediately go to the trial court
if there is a legal basis for the case.

Quasi-judicial bodies are administrative or investigative bodies of the government which

operate like regular courts such as the Securities and Exchange Commission, the Commission on
Election (COMELEC), the Commission of Human Rights (CHR), etc. People can go to these
quasi-judicial bodies if they feel their rights are offended.

The right to free legal assistance—especially in a criminal case where the right to life and
liberty is at stake—is premised on the assumption that in a democratic government, poverty
cannot be a hindrance to attaining justice in court. In the Philippines, more than seventy (70)
percent of the population lives below the poverty line. Thus, obviously the poor cannot obviously
afford the acceptance and appearance fees of private lawyers. It is expensive to use the legal
system. It is often the rich who possess many properties and businesses are regular users of the
judicial system. It is no wonder their familiarity with the system and available resources for
litigation give them the edge to win legal cases rather than the poor.

To avoid the injustice to the poor, the Constitution requires the government to provide free
legal assistance to them to be pauper litigants in court. It is usually the Public Attorney’s Office
(PAO) under the Department of Justice (DOJ), which provide free legal assistance to the poor or
those who cannot afford to pay the services of private lawyers. The Integrated Bar of the
Philippines with various chapters in the country, as well as some law schools, also provides free
legal assistance or pro bono services to the poor.
12. (1) THE RIGHT TO REMAIN SILENT,
(2) THE RIGHT TO CHOOSE ONE’S
OWN COMPETENT AND
INDEPENDENT COUNSEL,
(3) THE RIGHT AGAINST TORTURE,
FORCE, VIOLENCE, THREAT,
OR OTHER ILLEGAL MEANS, &
(4) THE RIGHT AGAINST BEING HELD
IN SECRET, SOLITARY,
INCOMMUNICADO, OR OTHER
SIMILAR FORMS OF DETENTION.
SEC. 12. (1) Any person under
investigation for the commission of an
offense shall have the right to be informed
of his right to remain silent and to have
competent and independent counsel of his
own choice. If the person cannot afford the
services of a counsel, he must be provided
with one….
(2) No torture, force, violence, threat,
intimidation, or any other means which
vitiate the free will shall be used against
him. Secret detention places, solitary,
incommunicado, or other similar forms of
detention are prohibited.

The Meaning and Scope of the Provision

This provision enumerates some of the basic rights of a person accused of a crime under a
custodial investigation. A custodial investigation is a process by which the accused undergoes
questioning by the police or law enforcers in connection of an alleged crime. This involves not
just a mere general inquiry into an alleged crime, but also initiatives to focus on a particular
suspect taken into custody by the police who carry out the interrogation. When under this type of
investigation, the police is required by the Constitution to observe these rights of the accused.
Otherwise any confession or admission obtained in violation of this or Section 17 shall be used
as evidence against him/her. Thus, when an accused confesses his crime voluntarily without the
presence of a lawyer of his or her own choice or involuntarily through torture, the confession
would be illegal and cannot be admitted in court. If the accused is really sincere in confessing
his/her crime voluntarily without a lawyer, s/he is usually required by the police to sign a waiver
to this effect.

As a whole, section 12 can be seen as containing safeguards to secure the rights of the
accused under arrest or custodial investigation. These rights are available the moment an accused
is arrested, with or without warrant from the judge. The law enforcers are required to inform the
accused of these rights during arrest.

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

The Meaning and Scope of the Provision

Bail is defined as “the security required by a court and given for the provisional or
temporary release of a person who is in the custody of the law conditioned upon his appearance
before any court as required under the conditions specified” (De Leon 1997: 100). The right to
bail is available to all persons arrested, detained or otherwise deprived of his liberty, whether or
not a criminal information has been filed against him/her or not. However, there are two cases
where bail may not be available to him or her: if (1) the crime is punishable by reclusion
perpetua, death or life imprisonment or (2) when the evidence of guilt as determined by the
judge is strong. Serious or heinous crimes such as murder, rape, plunder, syndicated estafa or
qualified theft are generally non-bailable. But less serious offenses are all bailable.

The amount of bail is determined by the judge handling the case depending on the nature
of the offense, the penalty, the probability of guilt, and the financial capacity of the accused.

14. (1) THE RIGHT TO DUE PROCESS,
(2) THE RIGHT TO PRESUMPTION
OF INNOCENCE IN ALL CRIMINAL
PROSECUTION,
(3) THE RIGHT TO BE HEARD BY
HIMSELF AND COUNSEL, &
(4) THE RIGHT TO A SPEEDY,
IMPARTIAL AND PUBLIC TRIAL,
SEC. 14. (2). In all criminal prosecution, the
accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to
be heard by himself and counsel, to be
informed of the nature and cause of the
accusation against him, to have a speedy,
impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to secure the attendance of witnesses
and the production of evidence in his behalf.
However, after arraignment, trial may proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable.

Presumption of Innocence

This provision speaks of the rights of a person accused of committing a crime. The accused
must be presumed innocent until proven otherwise in a court of law. He or she has also
constitutional rights as an accused which includes the right to be heard by himself and counsel
and the right to a speedy, impartial and public trial.
 1. The Right to Due Process under this section pertains more to the procedural aspect. A
person who is accused of a crime must be:

(i) tried before a court which has jurisdiction of the case;

(ii) given a fair and impartial trail;
(iii) allowed to use all legal means and opportunity to defend himself; and
(iv) given a judgment must be based on a valid law.

2. The Right to Presumption of Innocence requires that the accused must be presumed
innocent in all stages of the criminal proceedings until a final verdict by a judge or
justices, in case appeals are made, are handed down with finality. Ideally, this may be
true, but in actual practice, one cannot prevent the mass media or the public to make
informal or psychological judgment against the accused even if the trial is not yet
finished. That is why “trial by publicity” must be prevented at all times to preserve this
right to presumption of innocence of the accused.

The burden of proof in a criminal prosecution is on the shoulders of the prosecution.

The prosecutor must convince the court by presenting evidence beyond reasonable doubt
that the accused is guilty as charged. Proof beyond reasonable doubt is the strictest form
of evidence in court used in criminal proceedings as the life and liberty of the accused is
at stake.

3. The Right to be heard by himself and by counsel. Hearing is an indispensible in

criminal justice. The accused cannot just be punished upon a doubtful assumption. Lack
of notice of hearing violates due process. In all criminal prosecutions, the accused or
defendant shall be entitled to present and defend in person and by counsel at every
stage of the proceedings, from the arraignment to the promulgation of the judgment

In arraignment, the court reads the criminal charge against the accused and the
accused enters his plea in open court whether he or she pleads “guilty” or “not guilty” to
the charge. If the plea is “not guilty” the court will give the defendant time to prepare
for trial.

(4) The Right to a speedy, impartial and public trial. A speedy trial is important in
criminal proceedings. Justice delayed is justice denied. The final decision of a criminal
case is important as the life and liberty of the accused is at stake. In many cases, the poor
accused who cannot afford to pay the bail languishes in jail while the case is still
pending.

There is really no fixed period when a criminal prosecution ends. It all depends on
the nature of the case, the availability of lawyers, witnesses and judges, and number of
motions filed in court. But a speedy trial means that the trial must be terminated as soon
as possible. Unreasonable and intentional delays especially postponements must not be
allowed in order to terminate the trial early.
 The issue of impartial trial has always been the concern of people in criminal case.
The most important person who determines impartiality in court is the judge who
handles and decides the case. The social and political connections of the parties to the
judge as well as bribery or corruption must not influence the outcome of the trial.

The prevent impartiality and anomalies in court proceedings, trials are always
public in order that people can observe and check whether the trial is fair and neutral.
Closed-door trials are prohibited by our Constitution except in rape cases where the
victim is asked to testify in open court.

15. THE RIGHT TO WRIT OF HABEAS SEC. 15. The privilege of the writ of habeas
CORPUS corpus shall not be suspended except in cases
of invasion or rebellion when public safety
requires it.

The Meaning and Scope of the Provision

This provision of our Constitution gives the right to the relatives or representatives of
detained or missing persons to petition the court to compel the person/s detaining them illegally
to release their bodies in a designated place and time set by the court.

A writ of habeas corpus is an order issued by a court of competent jurisdiction, directed to

the person detaining another, commanding him or her to produce the body of the prisoner at a
designated time and place, and to show sufficient cause for holding in custody the individual so
detained” (De Leon 1997: 108).

This privilege may be suspended by the President (Art. VII, Sec. 18) only in cases of
invasion or rebellion when public safety requires it. This suspension can enable the State to hold
in preventive imprisonment, pending investigation and trial, persons who plot to destroy it or
endanger its very existence.

16. THE RIGHT TO SPEEDY SEC. 16. All persons shall have the right to a
DISPOSITION OF ONE’S CASES. speedy disposition of their cases before all
judicial, quasi-judicial, or administrative cases.
 Speedy Disposition of Court Cases

The Constitution requires judges and presiding officers of judicial, quasi-judicial and
administrative bodies to render decisions or judgments over pending cases as soon as possible as
“Justice delayed is justice denied.” The right to speedy disposition of cases can only be invoked
by persons only after the trial or hearing of the case is terminated. This right only commences
when the case is submitted for resolution or judgment of the judge or presiding officer.

The speedy disposition of cases is not only required before the courts or judicial bodies but
also before quasi-judicial bodies (that is, executive agencies performing adjudicatory functions
similar to those of the courts like the National Labor Relations Committee (NLRC), Securities
and Exchange Commission (SEC), etc. and administrative bodies (executive agencies performing
limited adjudicatory functions such as the bureaus under the different departments) (De Leon
1997: 110).

17. RIGHT AGAINST SELF-INCRIMINATION SEC. 17. No person shall be compelled

to be witness against himself.

Self-incrimination

This right to self-incrimination applies to all criminal, civil and administrative cases: The
Constitution protects the person to say something or to act which may incriminate himself or
herself to the case. “No person shall be compelled to be a witness against himself”. This
prohibition includes the following:

1. Forcing the accused to testify, extracting from his own lips against his or her will, an
admission of guilt;

2. Obliging the defendant to produce documents, chattels and other objects, compelling to
identify them expressly or impliedly;

3. Compelling the defendant to produce his or her own handwriting to implicate him or
her in the case.
18. (1) THE RIGHT AGAINST DETENTION SEC. 18. (1) No person shall be detained
SOLELY BY REASON OF POLITICAL solely by reason of his political beliefs and
BELIEFS AND ASPIRATIONS & aspirations.

(2) THE RIGHT AGAINST (2) No involuntary servitude in any

INVOLUNTARY SERVITUDE form shall exist except as a punishment
for a crime whereof the party shall have
been duly convicted.

The Meaning and Scope of the Provision

This provision of our Constitution protects the political beliefs of individuals against
interference by the State as well as theirs rights against involuntary servitude.

1. The Right against Detention solely by Reason of political beliefs and aspirations.
Under the Bill of Rights the political beliefs of people whether they are pro-Marxists,
communists, socialists rightists or leftists cannot be a basis for arrest and detention. If
there are no overt acts which are illegal in nature in relation to their political beliefs, the
government cannot arrest and imprison them. This provision is highlighted in our
Constitution to protect political prisoners who are detained solely on the basis of their
political beliefs. Under Martial Law, President Marcos arrested and detained
political prisoners whose ideologies and political beliefs were critical of the status quo.

2. The Right against Involuntary Servitude. Involuntary servitude is forced labor or

compulsory service rendered by one person to another. Under our Bill of Rights, no
person can be forced to work for other persons or company if s/he does not want to.
A debt to an employee to his or her employer is not a sufficient ground for forcing
The employee to continue to work in the company. The indebted employee can always
provide a promissory note but he or she cannot be prevented to resign as this would be
tantamount to slavery.
19. (1) THE RIGHT AGAINST SEC. 19 (1) Excessive fines shall not be
EXCESSIVE FINES; & imposed, nor cruel, degrading or inhuman
punishment inflicted….
(2) THE RIGHT AGAINST CRUEL, (2) The employment of physical,
DEGRADING OR INHUMAN psychological, or degrading punishment
PUNISHMENT against any prisoner or detainee or the use of
substandard or inadequate penal facilities
under subhuman conditions shall be dealt with
by law.

Excessive Punishment

This provision prohibits the imposition of excessive fines for violation of law or ordinance.
Considering the nature of the offense and financial capacity of the offender, fines must be
reasonable. And the courts have the discretion how much fine the offender must pay.

The right against cruel, degrading or inhuman punishment can only be invoked after the
accused is convicted in court. The Constitution is against any inhuman form of punishment and
against disproportionality of punishment to the nature of the offense. In a civilized society,
inhuman punishment which uses torture or lingering death is condemnable. Punishment is
degrading if it lowers his dignity of a convicted person, brings shame and humiliation on him, or
exposes him to public ridicule.

Punishment is also inhuman if the punishment is not proportionate to the nature of the
crime. Thus the penalty of death and life imprisonment for physical injury or oral defamation can
be considered inhuman; not for a criminal who is convicted of murder or rape because these
crimes are much more serious in nature.

20. THE RIGHT AGAINST SEC. 20 No person shall be imprisoned for

IMPRISONMENT FOR NON-PAYMENT debt or non-payment of poll tax.
OF DEBT OR POLL TAX

Non-Payment of Debt or Poll Tax

Our Constitution prevents the power of the State to force the payments of debts. The control
of the creditor over the person of the debtor has been abolished in our Bill of Rights for
humanitarian considerations. A person cannot be arrested and imprisoned by the government for
non-payment of debt owing to misfortune and poverty. The word “debt” under this provision
means any liability to pay money arising out of contract, express or implied. It refers to civil debt
but not to debt arising from a criminal offense. Thus if a person borrows money from another
and promises to pay on a certain date with interest but fails to do it because of unexpected
bankruptcy cannot be ordered by a judge to be arrested and imprisoned after a criminal
complaint is filed by the creditor. Nonpayment of civil debt cannot be a subject of a criminal
case punishable by imprisonment. The filing of a civil case or collection of debt is the proper
remedy where the properties of the debtor can be used as payment for the unpaid debt.

The non-payment of poll tax such as the community tax which was formerly called cedula
or residence tax is not also punishable by imprisonment. A poll tax is a tax of a fixed amount
imposed on residents within a specified territory such as a barangay, whether citizens or not,
without regard to their property or the occupation in which they may be engaged (De Leon 1997:
117). However, other forms of taxes such as income tax are compulsory in nature. Any person
who fails to pay these taxes can be charged, arrested and imprisoned by the Bureau of Internal
Revenue (BIR) for tax evasion.

21. THE RIGHT AGAINST DOUBLE SEC 21. No person shall be twice put in
JEOPARDY jeopardy of punishment for the same offense, if
an act is punished by a law and an ordinance,
conviction or acquittal under either shall
constitute a bar to another prosecution for the
same act.

Double Jeopardy

This constitutional provision protects a person from the danger of second punishment and
trial for the same offense he or she has been charged and sentenced by a court. The right to
double jeopardy means that when an accused is charged with an offense and the case is decided
by the court either by acquittal or conviction, s/he cannot be charged again in another case with
the same offense. For instance, Mr. Bogart was charged in a Manila trial court for raping Miss
Charing in 2002. In 2004. He was acquitted by the court. Miss Charing was not satisfied with the
judgment. In 2005, she filed the same case with another trial court. This second charge reviving
the old case is an example of a case of double jeopardy and cannot be entertained by the court.

The issue of double jeopardy can arise in three different ways (Munoz & Gonzales-Munoz
2002: 56):

(1) When the accused is charged with the same offense in two separate pending cases, in
one of which he has validly pleaded;

(2) When the accused is prosecuted anew for the same offense after he or she has previously
 convicted or acquitted thereof or the charge therefore has been dismissed without his or
her consent; or

(3) When the prosecution makes a legally unauthorized appeal from a judgment in the same
case.

22. THE RIGHT AGAINST EX POST SEC. 22. No ex post facto law or bill of
FACTO LAW OR BILL OF ATTAINDER attainder shall be enacted.

The Meaning and Scope of the Provision

This provision prohibits the legislature to pass laws which can prejudice the rights of the
prisoner or the accused. Although Congress is vested by the Constitution to enact laws, it cannot
legislate on matters that violate some basic rights of the citizens. It cannot pass the following
type of bills or laws:

(1) Ex Post Facto Law is a law which is penal in nature, retroactive in effect and
prejudicial or disadvantageous to the accused. It is a legislation which:

(i) makes an act done before the passage of a law, innocent when done, criminal, and
punishes such act; or
(ii) aggravates a crime or makes it greater when it was committed; or
(iii) changes the punishment and inflicts a greater punishment than what the law
annexed to the crime, when committed; or
(iv) alters the legal rules of evidence and receives less testimony than or
testimony from what the law required at the time of the commission of the
offenses, in order to convict the offender (De Leon 1997).

(2) Bill of Attainder is a legislative act which inflicts punishment without a judicial trial.
This means that Congress cannot just pass a law and declare individuals or groups to be
guilty of an offense with judicial trial (De Leon 1997). In bill of attainder, it is the
legislature, not the courts, which determines the guilt of the accused and not by the
court. This is against due process since every charge in court the guilt of the accused
must first be established by evidence in a court proceeding. Thus if a law is passed in
Congress who states that members of the Communist Party in the Philippines are guilty
of rebellion and must all be imprisoned is a bill of attainder as the courts must first
determine who among them are directly involved in rebellion. The law cannot
generalize and impute guilt to all members of the communist party.
 SUMMARY

This chapter introduces the readers to the nature and types of human rights in the Philippine
Constitution. The idea of human rights is not universal. It is a socially constructed concept which
was gradually accepted by modern nations through the United Nations Charter and declarations
in 1945. The foundation of human rights is based on the fundamental belief that each person has
an intrinsic worth and human dignity, being created in the image and likeness of God. This
human dignity provides the person’s inalienable and God-given rights which must respected in
all democratic processes. Rights are generally classified into natural, constitutional and statutory
and constitutional rights are further classified into political, civil, social and economic rights and
the rights of the accused in criminal cases.

A Bill of Rights is a declaration and enumeration of a person’s rights and privileges which
the Constitution is designed to protect against violations by the government, or by individual or
groups of individuals. It is also called as the charter of liberties and at the same time a limitation
upon the powers of the government. The 1987 Constitution (Article III, Sections 1-22)
enumerates around 30 constitutional rights of the Filipino citizens. These include the right to
search warrant and warrant of arrest, due process, abode, travel, privacy, peaceful assembly,
religion to name a few.
 CHAPTER VII

LAW AND LEGISLATIVE POWER IN THE PHILIPPINES

LEGISLATIVE POWER

Meaning

In its general sense, legislative power refers to the power to enact or create laws which
includes the power to alter or repeal them. It is essentially the authority, under our Constitution
to make, amend or abolish the law. This power is vested in the Philippine Congress and it is
reserved to the people in cases of initiative and referendum. Section 1, Article VI, of the 1987
Constitution states that:

. . .[t]he legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.

Bicameral Legislation

The 1987 Constitution dissolved the unicameral or one-house legislature under the 1973
Marcos Constitution and restored the bicameral system of the 1935 Constitution. A presidential
form of government like the Philippines is usually bicameral while a parliamentary form of
government is unicameral or a one-house legislature. A bicameral legislature for the Philippines
means that the legislature which is the Congress is made of two houses: the Upper House which
is the Senate and the Lower House which is the House of Representatives. H. De Leon (1997)
identified the advantages and disadvantages of a bicameral system as follows:

ADVANTAGES (For those in favor of bicameralism)

(1) A second chamber (Senate) is necessary to serve as a check to hasty and ill-
considered legislation;

(2) It serves as a training ground for future leaders;

(3) It provides a representation for both regional and national interests;

(4) A bicameral legislature is less susceptible to bribery and control of big interests; and

(5) It is the traditional form of legislative body dating from ancient times; as such, it has
been tested and proven in the crucible of human experience.

DISADVANTAGES (For those who oppose bicameralism)

(1) The bicameral set-up has not worked out as an effective fiscalizing machinery;

(2) Although it affords a double consideration of bills, it is no assurance of better

considered and better deliberated legislation;

(3) It produces duplication of efforts and serious deadlocks in the enactment of important
measures with the Conference Committee of both Houses, derisively called the “third
chamber,” practically arrogating unto itself the power to enact law under its authority
to thresh out differences;

(4) All things being equal, it is more expensive to maintain than a unicameral legislature;

(5) The prohibitive costs of senatorial elections have made it possible for only wealthy
individuals to make it to the Senate; and as to claim that a Senate is needed to
provide a training ground for future leaders, two of our Presidents became chief
executives even if their service was confined to the House of Representatives.

Functions and Powers of the Philippine Congress

In general, the Philippine Congress performs various legislative functions for the good of
the country. These include the: (1) definition of the rights and duties of citizens, (2) imposition of
taxes to defray expenses of government, (3) appropriation of public funds, (4) definition and
punishment of crimes, (5) creations and abolition of government offices including the
determination of their jurisdictions and functions, and (6) regulation of human conduct and the
use of property for the promotion of the common good. Because of multilateral economic
agreements and international treaties in this age of free trade under World Trade Organization
where the country is a signatory, the Philippine Congress cannot, however, enact economic laws
which do not conform to these multilateral agreements. Moreover, the Philippine legislature
cannot also pass an ex post facto law and a bill of attainder as discussed in the previous chapter
on human rights.

To fulfill its duty, the Constitution provides the Philippine Congress the following powers.
Some of these are non-legislative in nature and implied as Congress cannot enact, modify or
repeal laws without them:

General Legislative Power--Congress has the general powers to create laws which
include the power to change or abolish the law.

Specific Legislative Powers---These are powers expressly conferred by the Constitution

to Congress. These include the power of appropriation or determining the national budget of the
government, the power of taxation or to enact tax laws, or the power of expropriation or to pass
laws appropriating private property for public use upon payment of just compensation.

Non-Legislative Powers---These powers do not directly relate to enactment of laws but

nevertheless are performed by Congress as part of its obligations under the Constitution. These
include (1) the power to propose amendments to the constitution such as calling a Constitutional
convention for the revision of the Charter; (2) the power to impeach impeachable officials such
as the President, Vice-President, the Ombudsman, the Chief Justice and Commissioners of the
constitutional bodies such as the COMELEC; (3) the power to canvas votes for the President and
Vice-President; and (4) the power to declare the existence of a state of war when our country is
invaded by another country.

Implied Powers---These are powers which are not expressly given by the Constitution to
Congress but which are implied from those expressly granted. These include the power to (1)
punish or declare a person in contempt during or in the course of legislative investigation, and
(2) issue summons and notices in connection with legislative inquiry or investigation. Without
these powers, Congress cannot punish people who disregard summons or notices or disrupt
legislative inquiry or investigation in aid of legislation. Contempt powers include the power to
imprison witnesses who directly and indirectly show disrespect for legislative proceedings of
Congress.

Inherent Powers---These powers are inherent to the exercise of legislative powers by

Congress. To be able to perform its functions orderly, Congress has the power to determine the
rules of its proceedings. In case of impeachment proceedings, the House of Representatives and
the Senate have enacted specific rules on how to investigate and decide on how to remove
impeachable officials. The Constitution has expressly given Congress the power to determine its
own internal rules.

Constitutional Prohibitions on the Powers of Congress

Although Congress is vested with legislative authority by the Constitution, its lawmaking
power has limitations and restrictions. Congress cannot pass the following type of laws as
imposed by the Constitution:

No ex post facto law shall be passed (Art. III, Sec. 22).

As mentioned in the previous chapter, an ex post facto law is a law which:

(i) makes an act done before the passage of the law; (ii) aggravates a crime or
makes it greater when it was committed; (iii) changes the punishment & inflicts a
greater punishment than what the law annexed to the crime when committed; (iv)
alters rules of evidence.

This type of law is prohibited as this is prejudicial to the rights of the

accused. If allowed, the accused suffers more punishment for a crime which
becomes more serious than at the time it was committed, just because a
subsequent ipso facto law altered the nature, punishment and rules evidence of the
crime.
 No bill of attainder shall be passed (Art. III, Sec. 23).

A bill of attainder is not allowed in Congress as it also prejudicial to the

rights of the accused. A bill of attainder is a legislative act or law which inflicts
punishment without a judicial trial.

No law impairing the obligation of contracts shall be passed (Art.III, Sec. 10).

Congress cannot interfere with private contracts entered into by private

individuals or groups. A contract is a meeting of minds between 2 parties and a law that
governs its agreement.

No law granting a title of royalty or nobility shall be passed (Art.VI, Sec. 31).

The Philippines is a republican and democratic government and not a monarchy. The
conferment of royalty and nobility is only appropriate for absolute or constitutional monarchies
but not for the Philippines. This prohibition prevents the creation of a privileged class who may
transmit their status by inheritance to their children.

No law shall be passed increasing the appellate jurisdiction of the Supreme

Court as provided in the Constitution without its advice and concurrence
(Art. VI, Sec. 30).

Congress cannot reduce the original and appellate jurisdiction of the Supreme Court as the
highest court of the land as enumerated in Article VIII, Section 5 (2). But it can increase its
jurisdiction by assigning to it additional cases for adjudication.

No law granting any tax exemption shall be passed without the

concurrence of a majority of all members of Congress (Art.VI, Sec. 28 [4] ).

Tax exemptions must be granted to taxpayers judiciously. Under the principle of

uniformity in taxation, all taxable articles or properties of the same class shall be taxed at the
same rate. It implies equality in burden, not equality in amount. The principle of equity in
taxation requires that the apportionment of the tax burden be more or less just in the light of the
taxpayer’s ability to shoulder the tax. Congress must be able to balance these 2 principles when
legislating tax exemptions to taxpayers, making sure that one group of tax payers is not
prejudiced by the granting of exemptions to other groups.

CONSTITUTION DISTINGUISHED FROM STATUTE

A constitution is a fundamental law of the land which is directly enacted by the people.
Thus, the legislative power of Congress cannot just amend or revise it without the consent of the
former in a plebiscite. A statute is a type of law that is created by a lawmaking body like the
Philippine Congress. A statute is an “inferior” type of law in the sense that this must conform
and emanate from constitutional law. The Senate, the House of Representatives and the President
cannot pass a bill into a law or statute if it is contrary or contradictory to the provisions of the
constitution. The Supreme Court, upon a valid petition, can strike out this statute as illegal and
unconstitutional.

Statutes in the country have various names in Philippine history. During the
Commonwealth period under the Americans, statutes passed by the Philippine legislature are
called Commonwealth Acts or C.A. During the Marcos era, statutes were called Batas Pambansa
(BPs) like Batas Pambansa 22 (B.P. 22) or the anti-bouncing check law. At present, statutes
enacted by the Philippine Congress are called Republic Acts (RAs) such as the Republic Acts
7279 or the Urban Housing and Development Act.

The local law-making bodies in the local governments such as the Provincial Board
(Sangguniang Panlalawigan) and City (Sangguniang Panlungsod) and Municipal (Sangguniang
Bayan) Councils, delegated as legislative bodies by Philippine Congress can also enact local
laws or statutes called ordinances. Under the Local Government Code, these bodies can enact
laws for their own locality such the enactment of local tax laws for the province, city or
municipality.

Table 14. LEGISLATIVE OFFICERS IN THE PHILIPPINES BY TERRITORIAL

JURISDICTION AND RANK

TERRITORIAL LEGISLATIVE OFFICER

JURISDICTION

NATIONAL Senate President

Senators

DISTRICT Speaker of the House

TYPE OF CONGRESSMAN

DISTRICT District Congressmen/women

SECTORAL Party-List Congressmen/women

LOCAL GOVERNMENT UNITS

 PROVINCE Board Members (Sangguniang Panglalawigan)

CITY City Councilors (Sangguniang Panglunsod)

MUNICIPALITY Municipal Councilors (Sangguniang Bayan)

BARANGAY Barangay Councilors (Kagawads)

NATIONAL AND DISTRICT LEGISLATORS

The Senate

Composition: The Senate is composed of twenty-four (24) Senators who are elected at
large by the qualified voters of the Philippines nationwide (Art. VI, Sec. 2).

Term of Office: The term of office of the senators is six (6) years and shall commence at
noon on the 30th of June following their election. They can be
reelected for another 6 years but they cannot serve for more than 2
consecutive terms (Art. VI, Sec. 3-4).

Voluntary renunciation of office for any length of time shall not be

considered an interruption in service for the full term for which he was
elected (Art. VI, Sec. 3-4).

Qualifications: The qualifications of a senator are the following (Art. VI, Sec.3):

(1) A natural-born citizen of the Philippines;

(2) at least 35 years of age on the day of the election;
(3) able to read and write;
(4) a registered voter; and
(5) a resident of the Philippines for not less than two (2) years immediately
preceding the day of elections.

Immunities: One of the privileges of senators is that they cannot be arrested on a

criminal charge punishable by 6 years imprisonment or less while
Congress is in session. They cannot also be charged with libel for their
privilege speeches delivered in the Senate. If thy are charged with
oral defamation, slander, slight physical injury, unjust vexation or any
minor crimes, the police cannot arrest them in Congress.
House of Representatives

Photo source: en.wikipedia.org

House of Representatives in plenary session

Composition: Under the 1987 Constitution the House of Representatives is

composed of 250 members elected from legislative districts and party-
list groups. This was, however, increased as of 2012 to 286 members:
230 district representatives and 56 party-list representatives. Since 1987,
more legislative districts were created by Congress and more party-list
groups were accredited by COMELEC and have won seats in Congress.
Thus, the total number of congressmen and women has increased. The
Constitution, however, limits the total number of party-list
representatives to only 20 percent of the number of representatives in
Congress. (Art. VI, Sec. 5).

A district representative is elected to Congress if he or she garnered the

highest vote in the district. A party-list congressman or woman is
elected in Congress if after being nominated by the party-list group
s/he got at least 3% of the total votes of all districts nationwide.
This can increase to 2 or 3 seats for the party-list if it gets more votes
throughout the country.

Term of Office: The term of office of House representatives is three (3) years. But they
cannot be elected for more than 3 consecutive terms. Thus, the
 maximum number of years for a congressman or woman is 9 years.
After a break of one term or 3 years, they can be eligible again for
another 3 more terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he or she was
elected (Art. VI, Sec. 7). Thus, if a representative resigns two days
after being elected for a third term, his or her third term is deemed
completed and therefore ineligible to run for the next election.

Photo source: newsinfo.inquirer.net

The House of Representatives building (Batasang Pambansa in
Commonwealth Avenue, Quezon City

Qualifications: The qualifications of a representative in Congress are the following

(Art. VI, Sec. 6):

(1) a natural-born citizen of the Philippines;

(2) at least 25 years of age on the day of election;
(3) able to read and write;
(4) in case of a party-list representative, a registered voter in the
District in which he or she shall be elected (a registered voter
anywhere in the Philippines for party-list representative); and
(5) a resident thereof for a period of not less than one (1) year
preceding the day of the election.

Immunities: A representative in the House of Representatives whether district or party-

list she cannot be arrested on a criminal charge punishable by 6 years
imprisonment or less while Congress is in session. He or she cannot also be
charged with libel for his or her privilege speech delivered in the Senate. If
he or she is charged with oral defamation, slander, slight physical injury,
unjust vexation or any minor crimes, the police cannot arrest him or her in
Congress.
Table 15. DISTINCTIONS BETWEEN SENATORS AND REPRESENTATIVES

REPRESENTATIVES
CATEGORY SENATORS

DISTRICT PARTY-LIST

INSTITUTION Senate (GSIS House of Representatives (Batasang

building) Pambansa Building)

COMPOSITION (as of 24 230 56

2012, 15th Congress)

MANNER OF Within the top 12 Highest vote by At least 3% of

ELECTION candidates garnering district nationwide votes to
the highest votes get one seat
nationwide

TERM OF OFFICE 6 years per term Limited to 3 years per Limited to 3

with reelection, but term, but more than 3 consecutive terms
limited to 2 consecutive terms
consecutive terms

QUALIFICATIONS

Citizenship Natural-Born Natural-Born Natural-Born

Minimum Education Able to Read & Able to Read & Write Able to Read &
Write Write

Minimum Age 35 years old on the 25 years old on the 25 years old on the
day of election day of election day of election

Voter Status A registered voter A registered voter in A registered voter

district in which he
shall be elected
 Residency* At least 2 years At least 1 year At least 1 year
immediately immediately immediately
preceding the day of preceding the day of preceding the day of
election election election

IMMUNITIES Cannot be arrested Cannot be arrested Cannot be arrested

while Congress is in while Congress is in while Congress is in
session if crime session if crime session if crime
committed is committed is committed is
punishable by 6 punishable by 6 years punishable by 6
years or less or less years or less

*Residence is “the place where one habitually resides and to which, when he is absent, he has the
intention of returning” (Evangelista vs. Santos, 86 Phil. 837)

Table 16. OFFICERS OF BOTH HOUSES IN CONGRESS

SENATE HOUSE OF REPRESENTATIVES

Senate President Speaker

Senate President pro tempore Speaker pro tempore

Majority Floor Leader Majority Floor Leader

Minority Floor Leader Minority Floor Leader

Chairman of various standing committees Chairman of various standing committees

Chairman of special committees Chairman of special committees

Secretary* Secretary*

Sergeant-at-arms* Sergeant-at-arms*
*Not members of Congress but regular employees of the legislature
Source: (Suarez 1999: 177)

SESSIONS OF CONGRESS

To fulfill its lawmaking obligations, Congress convenes two kinds of sessions as stated in
Art. VI, Sec. 15 of the Constitution: regular and special sessions. But for Congress to validly
perform its function a quorum, as discussed below, is needed every time it holds a regular or
special session.

Regular Session

Congress, i.e., the Senate and the House of Representatives convenes once a year on the
4th Monday in July for its regular session, unless a different date is fixed by law. Once it is
convened, the session continues to fulfill its legislative obligations until 30 days before the
opening of its next regular session, usually excluding Saturdays, Sundays and legal holidays.
Congress is in session for the entire year as lawmaking is a full-time duty and legislators receive
a fixed yearly salary. Article VI, Sec. 15 states:

SEC. 15. The Congress shall convene once every year on the
fourth of July for its regular session, unless a different date is fixed
by law, and shall continue to be in session for such number of days
as it may determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal
holidays. The President may call a special session at any time.

Special Session

As stated in the last sentence of the above Sec. 15., the President of the Republic of the
Philippines may ask Congress to call a special session at any time during the period that it is in
recess. This usually takes place if the President feels that there is an urgent legislative agenda
that Congress must undertake for the good of the country. The President may designate the
subjects in his proclamation or special message calling such special session.

Quorum

A quorum refers to the number of the membership of an assembly or collective body as is

competent to transact its business. It is the number which gives a lawful body the power to pass a
law or ordinance or do any other valid corporate act (De Leon 1997: 162).

The number of members whose presence is required at a meeting to constitute a quorum is

usually the majority of the entire body, that is, one-half of all the members plus one (Suarez
1999: 178). Thus, if the total number of senators in the Senate is 24, the quorum would have at
least 13 senators present in a session.
 In the absence of a quorum, the session may be adjourned. During emergencies, absent
members can be arrested by the minority to force them to attend sessions.

HOW CONGRESS MAKE LAWS OR STATUTES

Since the Constitution adopted a bicameral legislature which consists of a Senate and a
House of Representatives, it is expected that the steps and processes would be more tedious and
complex compared to a unicameral legislature. The major steps can be categorized into 3 phases:
the Preliminary, Formal, and Final stages.

Preliminary Stage

This is the initial stage of the lawmaking wherein the lawmaker, a senator or
congressman/woman, attempts to understand the legal needs of the people or constituents by
conducting public hearings and consultations. After identifying the legislative needs of the
people, the lawmaker prepares a draft of the bill or proposed law and consults lawyers or experts
before filing it with the Senate or House of Representatives as the case may be. When the draft
becomes final, the lawmaker sponsors it alone or with other senators or congressmen/women as
co-authors and files it in the Bill Section of the Senate/House of Representatives in order to be
calendared for the First Reading in the next stage.

Formal Stage

This is the longest stage of lawmaking as every bill undergoes 3 readings both in the Senate
and in the House of Representatives as required in a bicameral legislature. These are the
important steps during this stage:

The First Reading

The term “first reading” simply means that the bill is formally introduced in
the session hall in the Senate/House of Representatives. What is read during this
step is only the number and title of the bill and thereafter the Senate President or
Speaker of the House, noting the nature and content of the bill, will refer it to the
appropriate Senate/House Committee to investigate it further.
 Source: prieststuff.blogspot.com
The controversial House Bill Number 4244, also known as the Reproductive
Health Bill or RH Bill.

Second Reading

This is the most important part of the bill. During this stage, the bill is
examined, debated, or amended by members of the respective committees. If
approved by a majority of its members, the bill is printed in its final form and
copies are distributed to senators or congressmen/women at least 3 days before
the third reading. If disapproved, the sponsor has to re-file it perhaps in a more
acceptable way to committee members; otherwise, it is considered “dead”.

Photo source: irri-news.blogspot.com

A House Committee hearing deliberating a bill.
 Source:www.facebook.com
Results of the voting of congressmen on the RH Bill
after Second Reading

Third Reading

At this stage, the bill is now presented to the members of the Senate/House
of Representatives in a plenary session for approval. Legislators merely register
their votes for the bill. They may explain their votes if the rules of the Senate or
House would allow. If approved by the required votes, the bill is sent to the other
chamber for the required readings. If the bill originates in the Senate, it is sent to
the House of Representatives. If it comes from the House of Representatives, it is
sent to the Senate.
 Photo source: cbcpforlife.com
Third Reading and voting of the controversial RH Bill

Reconciliation of Two Bills

If the approved bills of the same nature or topic by the Senate and by the
House of Representative are very different, a reconciliation process would be
done by a selected group of senators and representatives called as the Bicameral
Committee. This group is called as the “Third Chamber” as members are
authorized by Congress to finalize the 2 bills and come out with a unified.

Enrollment of the Bill

A bill is considered enrolled when it is approved by both Houses, the

Senate and the House of Representatives and sent to the President for
consideration and signature.

Final Stage

This stage represents the final steps before an enrolled bill in Congress becomes an
effective law. The most important steps include the signature or approval of the President
for the bill and publication of the new law to make it effective and made known to the
public.

Signature or Veto of the President

An enrolled bill automatically becomes a law or statute in any of the

following manner:

(1) When the President signs it;

(2) When the veto or disapproval of the President is overridden by 2/3 votes of all
members of each House; or
(3) When the President does not act on the bill within 30 days after presentation.
 Publication of the New Law

If the bill is signed by the President, it automatically becomes a new law or

statute. However, it can only be effective if the people who are subject of the new
law must know about it. Thus, the publication of the new law is required. It can be
published in the Official Gazette, the official publication of government for new
laws by the National Printing Office, or in newspapers of national circulation like
the Philippine Daily Inquirer, Philippine Star or Manila Bulletin. A new law
usually becomes enforceable 15 days after its publication date.

SUMMARY

Legislative power is the power to enact, modify or abolish the law. This is vested in
Philippine Congress which is composed of two legislative houses: the Senate and the House of
Representatives. The Senate is composed of 24 senators elected nationwide, while the House of
Representatives is composed of district and party-list congressmen/women who are elected by
district or by a nationwide vote as in the case of party-list representatives. Local legislators such
board members and councilors also exercise legislative powers to pass local laws or ordinances.
They are elected as lawmakers in the province, city, municipal or barangay.

Both Houses of the legislature have a set of officers. To transact official business, they
need a quorum, i.e., the required number of legislators which gives a lawful body the power to
pass a law or ordinance or do any other valid corporate act. As part of their official function, they
hold regular and special sessions to tackle legislative agenda and pass the important bills to be
signed by the President. The 1987 Constitution provided Congress with general, specific, and
implied legislative and non-legislative powers in order that its constitutional mandate is
performed satisfactorily.

The primary duty of Congress is pass a bill or proposed law sponsored by any member of
the Senate or House of Representatives in accordance with the Constitution. A bill undergoes a
tedious process in the legislature before it is certified as an enrolled bill and ready to be signed
by the President into law. It ordinarily undergoes three readings and other formalities in both
chambers of Congress. It can become a law if the President signs it or fails to act upon it within
30 days. If approved by the President, the new law needs to be published in the Official Gazette
or in any newspapers of national circulation. After fifteen days of publication, the new law is
generally considered effective and the people affected by it are required to obey it.
 CHAPTER VIII

THE EXECUTIVE BRANCH

THE NATURE OF EXECUTIVE POWER

In an indirect democratic or republican political system, the government is often divided

into three (3) separate, independent but interdependent powers, namely: the executive, legislative
and judicial. Executive power is generally defined as “the power to administer the laws, which
means carrying them into practical operation and enforcing their due observance” (Cooley, 183).
In another definition, executive power is the power to enforce or implement the laws of the land.
For the German sociologist Max Weber, a law or rule cannot be considered a true standard for
action unless there is somebody who is in-charge in enforcing it. Thus, in the Philippine, laws
will be mere words and prescriptions that guide action if there are no law enforcers that
implement them. Under the 1987 Constitution. The person who is vested with full executive
powers to administer the laws of the republic is the President. Of course, s/he is not alone in
doing this job. He is assisted by a whole group of public officers who share executive powers
with him by virtue of delegation of powers. Those who join him in administering the laws are
appointed and elected local officials such the governors, mayors, or barangay captains, cabinet
members or secretaries of the different department of our government like the departments of
Justice (DOJ), energy (DOE), health (DOH), finance (DOF), tourism (DOT), trade and industry
(DTI), transportation and communication (DOTC), public works (DPWH), etc. The chairman of
the Metro Manila Development Authority (MMDA) also belongs to the executive branch and
carries the rank of a cabinet member.

The Constitution does not expressly provide the Vice-President as a specific executive
position. This official is considered a “spare tire” in case the President dies, resigns or
impeached. However, out of respect to his/her elected status, the Vice-President is usually given
a cabinet post. Salvador “Doy” Laurel, the Vice-President of President Corazon Aquino was
appointed Secretary of Foreign Affairs; Erap Estrada was appointed Crime Czar by President
Ramos; and Vice-President Noli de Castro the Head of the Housing Program of the Arroyo
administration. If the Vice-President is appointed in the Cabinet or any position in the
government, the appointment does not require confirmation from the Commission on
Appointments (CA), as any ordinary cabinet nominee of the President.
Table 17. MAJOR PUBLIC OFFICERS UNDER THE EXECUTIVE BRANCH
AND THE NATURE OF THEIR OCCUPATION OF THE POSITION

CATEGORY POSITION NATURE OF

OCCUPATION

A. National Officials President By national election

B. Local officials
Vice-President By national election
Cabinet Member/Department Appointment by the President
Secretary
Bureau Chief (e.g. BIR, Appointment by the President
Bureau of Customs, excluding
constitutional bodies like
COMELEC)
Governor By election in the province
Vice-Governor By election in the province
City Mayor By election in the city
Vice-Mayor By election in the city
Municipal mayor By election in the town or
municipality
Vice Municipal Mayor By election in the town or
municipality
Barangay Captain By election in the barangay

QUALIFICATIONS OF THE PRESIDENT AND VICE-PRESIDENT

The qualification of the President and Vice-President is the same under the Constitution.
As summarized in the table below, the qualifications are as follows:

Citizenship

Both the President and the Vice-President must be natural-born citizen. A natural-born
Filipino citizen as mentioned in Chapter III is a citizen of the Philippines from birth without
having to perform an act to acquire or perfect his Philippine Citizenship.

Registered Voter

A registered voter is one who is duly registered in the list of voters because he possesses the
qualification for suffrage, as required by Article V, Section 1 which states:

Section 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen (18) years of age, and
who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the
 election. No literacy, property, or other substantive requirement shall be imposed
on the exercise of suffrage.

Education

The Constitution does not provide a higher level of educational attainment for those who
would want to be President or Vice-President. Presumably, the Constitution wants to widen the
access to these positions to as many people as it can. It only requires candidates to be “able to
read and write” to qualify. Many of the Philippine Presidents were highly educated. In fact, some
were bar topnochers and brilliant lawyers like Marcos, Roxas and Macapagal. Joseph Estrada is
the only President who was a college drop-out.

Age

The presidential and vice-presidential candidates must be at least forty (40) years of age on
the day of the election, not on the day of the filing of candidacy nor on the day of their
proclamation.

Residency

The Constitution requires that those who would want to become President or Vice-President
must be acquainted with the economic and political conditions of the country in order that they
can gain insight on how to run the country in case they elected into office. Thus, it requires that
both candidates must reside in the country at least 10 years immediately preceding the election.

Table 18. SUMMARY OF THE QUALIFICATIONS OF A PRESIDENT AND VICE-

PRESIDENT (Section 2, 4, Article VII, 1987 Constitution)

CATEGORY REQUIREMENT

CITIZENSHIP Natural-born Citizen

VOTER STATUS Registered Voter

MINIMUM EDUCATION Able to read and write

AGE At least 40 years on the day of election

RESIDENCY At least 10 years immediately preceding the

presidential election
The Canvassing and Proclamation

As provided in Article VII of the Constitution, the election for the President and Vice-
President is set on the second Monday of May, six years thereafter. Unlike the senators whose
Board of canvassers for the counting of votes is the COMELEC en banc, the votes for the
President and Vice-President are canvassed by Congress consisting of senators and
congressmen/women seating in joint public session. It is the same Congress who will proclaim
the President-elect and the Vice-President elect. If there is a complaint questioning the
canvassing or proclamation, the proper venue is not the COMELEC but the Supreme Court as
provided by law.

Term of Office

Under the 1935 Constitution, the term of the President and Vice-President is four (4) years
with reelection. But this has been changed by the 1987 Constitution owing to the Marcos
dictatorship experience that allows a dictator to rule the country beyond what the Constitution
requires. In the 1987 Constitution, the term of the President has been reduced to six (6) without
reelection. It begins at the noon of the thirtieth day (30th) of June next following the day of the
election (Art. VII, Sec. 4) and ends at noon of the same date six years thereafter.

The Vice-President, unlike the President, is eligible for reelection. But the Constitution
disallows him or her to run for more than two (2) consecutive terms (Sec. 4, par.2, Art. VII),
although eligible to run as President for his or her third election. Moreover, the Vice-President
who has succeeded and served as President for more than four (4) years (even in an acting
capacity) is also disqualified for election to the same office at any other time.

The voluntary renunciation of the office of the Vice-President for any length of time does
not interrupt the continuity of the service for the full term of six years. Thus, if the Vice-
President resigns on the second day in office, this is considered being served for full six years.
So s/he is disqualified to run for the next election.

The President is disqualified for reelection, but is qualified to run for a lower position after
finishing six years as President, as in the case of former President Arroyo who run as a
congresswoman of Pampanga after finishing her term. The Vice-President too is qualified to run
for a lower position after serving the maximum number of terms.
Table 19. SUMMARY: CANVASSING, PROCALAMATION AND TERM OF OFFICE
OF THE PRESIDENT AND VICE-PRESIDENT

CATEGORY PRESIDENT VICE-PRESIDENT

DAY OF ELECTION Second Monday of May Second Monday of May

BOARD OF Congress in joint public Congress in joint public

CANVASSERS session, with all senators & session, with all senators &
congressmen congressmen

PROCLAMATION Congress in joint public Congress in joint public

session, session,
after canvassing of votes after canvassing of votes

TERM 6 years, without re-election 6 years with re-election but 3

successive terms not allowed,
an unfinished term is
considered one full term

START & END OF 12:00 Noon of the 30th of June 12:00 Noon of the 30th of June
TERM next following the day of next following the day of
election & shall end at noon of election & shall end at noon of
the same date 6 years thereafter. the same date 6 years thereafter.

POWERS OF THE PRESIDENT

Administrative Powers

The President has the power of control over the executive departments of the government
and supervisory powers over all local government units (LGUs) such that of the province, city,
municipality and barangay.
Military Powers

Powers of the President as Commander-in-Chief includes the power to:

(1) call out the armed forces to prevent or suppress lawless violence, invasion, or
rebellion; and
(2) create military tribunals to try persons who violate military laws or commit crimes
against national security.

Power to suspend writ of habeas corpus under the following necessary conditions:

(1) There must be invasion or rebellion; and

(2) The public safety must require the suspension.

Power to declare Martial Law during invasion or rebellion.

Pardoning Powers

Under Article VII, Section 19 of the 1987 Constitution, the President has the power to grant
reprieves, commutations and pardons and remit fines and forfeitures, after conviction by final
judgment. The pardoning powers of the President include the following:

Reprieve: it is the postponement of the execution of a death sentence to a certain date.

Suspension: this refers to the postponement of an execution of death to an indefinite

time. It can be performed on the next day, week or month depending on the
order of the President.

Commutation: this refers to the reduction of sentence imposed to a lesser punishment,

as from death penalty to life imprisonment. It can be granted without the
acceptance and even against the will of the prisoner.

Pardon: this is an act of grace proceeding from the power entrusted with the execution of
the laws which exempts the individual on whom it is bestowed, from the
punishment the law inflicts from a crime he has committed (De Leon vs.
Director of Prisons, 31 Phil. 60).

Two Kinds:

(1) Absolute: when pardon is not subject to any condition whatsoever. It becomes
effective when made.

(2) Conditional: when it is given subject to any condition or qualification the

President may see fit. It must be accepted by the prisoner to become
effective.
 Pardon distinguished from Amnesty

Amnesty: it is an act of the sovereign power granting oblivion or a general pardon for
A past offense usually granted in favor of certain class of persons who have
committed crimes of a political character, such as treason, sedition or
rebellion. An Amnesty proclamation of the President needs approval of
Congress.

Table 20. DISTINCTIONS BETWEEN AMNESTY AND PARDON

AMNESTY PARDON

1. political offenses 1. infractions of peace

2. groups (classes) of persons 2. individuals

3. requires concurrence of Congress 3. does not

4. public act to which court may take judicial 4. private act which must be pleaded and
notice of proved

5. looks backward and puts to oblivion the 5. looks forward and relieves the pardonee of
offense itself the consequences of the offense

6. must acknowledge the commission of the 6. must have been convicted of the offense
crime with finality

Source: (Munoz & Gonzales-Munoz 2002: 98)

Parole: this is a process in which the prisoner is released from imprisonment, but
without full restoration of liberty as a parolee is still in the custody of the law.

Remission of fines and forfeitures: the president can remit fines and forfeitures for any
offenses after final conviction. This prevents collection of fines or the
confiscation of forfeited property of the convict.

Powers to contract and guarantee foreign loans on behalf of the Republic of the
Philippines (Art. VII, Sec.20).

The President can contract or guarantee loans with multilateral institutions like the World
Bank and International Monetary Fund (IMF) or other regional banks. But this needs the
concurrence of the Monetary Board of the Central Bank.
Budgetary Powers

The President is authorized by the Constitution to prepare the budget of receipts and
expenditures based on existing and proposed revenue measures and other resources of financing
and to submit it to Congress within 30 days from the opening of each regular session. This can
become the basis of the general appropriations act to be enacted by Congress for the next fiscal
year.

PRESIDENTIAL SUCCESSION

Who succeeds the President in case of death, resignation, impeachment, disability or

incapacity? What if the Vice-President is not qualified or incapacitated to the succeed the
President? To prevent chaos and anarchy in case the President and/or the Vice-President cannot
rule the country, the 1987 Constitution has prepared a set of rules for presidential succession and
for a smooth transfer of power in government.

RULES WHEN VACANCY OCCURS BEFORE THE BEGINNING

OF THE TERM OF THE PRESIDENT (Article VII, Section 7)

SEC. 7. The President-elect and the Vice-President-elect shall assume office at the
beginning of their terms.

If the President-elect fails to qualify, the Vice-President-elect shall act as

President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice-President-elect shall act
as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have
died or shall have become permanently disabled, the Vice-President-elect shall
become President.

Where no President and Vice-President shall have been chosen or shall have
qualified, or where both shall have died or become permanently disabled, the President
of the Senate or, in case of inability, the Speaker of the House of Representatives shall
act as President until a President or a Vice-President shall have been chosen and
qualified.

The Congress shall, by law, provide for the manner in which one who is to act
as President shall be selected until a President or a Vice-president shall have
qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
Table 21. SIMPLIFICATION OF SECTION 7:
WHEN VACANCY OCCURS BEFORE TERM OF PRESIDENT
IN CASE OF:
DEATH OR PERMANENT FAILURE TO ELECT THE
DISABILITY OF THE PRESIDENT (i.e.,
PRESIDENT Presidential election has not
been held or non-completion
of the canvass of Presidential
elections)
SUCCESSORS
The Vice-president elect The Vice-President shall act
shall become President as the President until the
President shall have been
chosen and qualified.
NO PRESIDENT AND
VICE-PRESIDENT SHALL
HAVE BEEN CHOSEN &
QUALIFIED, OR BOTH
SHALL HAVE DIED OR
BECOME
PERMANENTLY
DISABLED
The Senate President, or in
case of his inability, the
Speaker of the House of
Representatives shall act as
president until a President
or a Vice-President shall
have been chosen and
qualified.
If Senate President and
Speaker is unable to act as
President,
Congress shall by law
provide for the manner in
which one who is to act as
President shall be selected
until a President or a Vice-
President shall have
qualified.
RULES IF VACANCY OCCURS DRUING THE INCUMBENCY OF THE PRESIDENT
(SECTION 8, ARTICLE VII)

SEC. 8. In case of death, permanent disability, removal from office, or resignation

of the President, the Vice-President shall become the President to serve the
unexpired term. In case of death, disability, removal from office, or resignation of
both the President and Vice-President, the President of the Senate or, in case of
inability, the Speaker of the House of Representatives, shall then act as President
until the President or Vice-President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have been elected and qualified, and
be subject to the same restrictions of powers and disqualifications as the Acting
President.

Table 22. SIMPLIFICATION OF SECTION 8:

SUCCESSORS IN CASE OF:

1) DEATH, 2) PERMANENT 1) DEATH, 2) PERMANENT

DISABILITY, 3) REMOVAL FROM DISABILITY, REMOVAL FROM
OFFICE OR 4) RESIGNATION OF: OFFICE, OR RESIGNATION OF:

THE PRESIDENT BOTH THE PRESIDENT AND VICE-

PRESIDENT

Vice-President shall become the President to The Senate President, or in case of his
serve the unexpired term. inability, the Speaker of the House of
Representatives, shall act as President until the
President or Vice-president shall have been
elected and qualified.

CAUSES OF REMOVAL OF THE PRESIDENT

The President can be removed from office either voluntarily or involuntarily. Voluntarily,
if the President resigns, died, suffers permanent disability and declares incapacity in his or her
own volition. Involuntarily, if the President is forced to leave office because of impeachment or
Congress decides that the President is incapable to perform in office, the President must
relinquish his/her post.
 The following are the causes of removal of the President from office:

1. DEATH: The President is removed by a natural cause. The Vice-President becomes the
President in case of death of the Chief Executive.

2. RESIGNATION: The President for some personal or political reasons voluntarily relinquish
His/her position, the Vice-President acts as the President.

3. PERMANENT DISABILITY: The President is replaced by the Vice-President for serious

physical conditions that incapacitates him/her to live up to his/her
solemn oath.

4. INCAPACITY: The President writes to the Senate President and Speaker of the House of
Representatives informing them that s/he is no longer capable of
discharging his or her duties as President. But s/he can assume the
position as soon as the incapacity is removed.

: The majority of the cabinet members can write to the Senate President and
Speaker of the House informing them of the incapacity of the President. If
the President objects, Congress will determine whether such incapacity
exists.

5. IMPEACHMENT: The President is removed from office involuntarily. The House of

Representatives in a vote of at least one-third of all members can transmit
to the Senate the Articles of Impeachment charging the President for
culpable violation of the Constitution, betrayal of public trust, high
crimes, and graft and corruption.

The Senate sitting as an Impeachment Court holds a trial to determine

whether the Articles of Impeachment from the House have legal basis.
The senators will act as judges with the Chief Justice as the Presiding
officer. A vote of at least two-thirds or 16 of the senators is needed
to impeach the President. Thereafter, the Vice-President becomes the
new President.
SUMMARY OF THE LINE OF SUCCESSION IN CASE THE PRESIDENT IS
REMOVED VOLUNTARILY OR INVOLUNTARILY

Vice-President

Senate President

Speaker of the House of Representatives

Acting President elected by all members of Congress

SUMMARY

Executive power is the power to administer or implement the law. Under the 1987
Constitution, this power is vested in the President of the Republic of the Philippines. S/he is
assisted by national and local officials who are either elected or appointed.

The qualification of the President and Vice-President under the 1987 Constitution is the
same. Both must be natural-born citizen, at least 40 years of age, able to read and write, a
registered voter, and a resident in the country for at least 10 years immediately preceding the
election. The canvassing of their votes and their proclamations are both done by Congress in
joint public session. The term of office of the President is 6 years without reelection. The term
of the Vice-President is also 6 years but s/he is eligible for reelection for not more that 2
consecutive terms.

As the head of the executive branch, the President exercises military, administrative,
pardoning, diplomatic and budgetary powers. In cases of death, incapacity, disability, resignation
or impeachment, the Constitution designates the following public officials as his/her successor in
accordance with the rules of presidential succession: Vice President, Senate President, Speaker
of the House, or whoever is elected among the members of Congress as the Acting President.
 CHAPTER IX

JUDICIAL POWER AND THE JUDICIARY

JUDICIAL POWER

Meaning

Generally speaking, judicial power refers to the power to interpret the law and to settle
legal cases. In particular, judicial power has been described by the present 1987 Philippine
Constitution as:

the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government (Sec.
1, Art. VIII).

Whereas executive power is vested in the President and legislative power in Philippine
Congress consisting of the Senate and House of Representatives, the judicial power in the
government is vested in the Supreme Court and in such lower courts as may established by law
(Sec1, Art. VIII). The lower courts in the country, as shown in the table below, are created by
virtue of a law enacted by Congress such as the Judicial Reorganization Act of 1980 and by
Presidential Decree No. 1083 of President Marcos which created the Shariah courts for Filipino
Muslims.

This grant of judicial power to the Supreme Court and all other courts under it is plenary and
includes the power that is expressly conferred upon it, the power not otherwise withheld from it,
and incidental powers needed to discharge its duties such as the right to cite people in contempt
(Munoz & Gonzales-Munoz 2002: 102).

One may ask: Is there a new element added in this description of judicial power by the
1987 Constitution?

Expanded Meaning under the 1987 Constitution

Compared to the previous 1973 Constitution during the Marcos era, this definition of
judicial power under the 1987 Constitution has a wider scope. Under the 1973 Constitution, the
judicial power was vested in one Supreme Court and lower courts but its scope was only limited
to interpreting laws and deciding legal disputes but not reviewing any decision done with grave
abuse of discretion by any government agency or instrumentality. In practical terms, the old
definition did not allow the courts, especially the Supreme Court, to directly entertain petitions
for review or certiorari for a decision rendered by any government officer perceived by an
aggrieved party to be biased or done with grave abuse of power. A certiorari is a writ issued to
annul or modify the proceedings, as the law requires, of a tribunal, board, or officer exercising
judicial functions, who has acted without or in excess of its jurisdiction, or with grave abuse of
discretion, there being no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law” (Moreno 1972: 94).

What is new is the phrase “to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the government” (Sec. 1, Art. VIII). This is tantamount to giving the Supreme Court
additional power and to interfere in any decision rendered by any government agency upon
petition of the party’s lawyer via certiorari. For instance, a losing party may not agree with the
decision of the COMELEC regarding his election case, s/he may file a petition for review in the
Supreme Court through his/her lawyer via certiorari and ask for a reversal of the decision or an
issuance of a Temporary Restraining Order (TRO) or an injunction as this action may apply. A
worker in a labor case who lost his case on appeal with the Commissioner of the National Labor
and Regulatory Commission (NLRC), may go to the Supreme Court for review for grave abuse
of discretion under this expanded definition of judicial power. Under the 1935 and 1973
Constitutions, this expanded power was not allowed. Some legal observers say this expanded
power has given the Supreme Court a license to intervene in almost all decisions of the
government, particularly in the executive and legislative branches which are supposed to be
independent and co-equal.

R. Suarez (1999) raised (3) points which must be remembered in connection with this new
concept of judicial power:

(1) The grave abuse of discretion, as alleged, must be grave enough which
amounts to lack or excess of jurisdiction.

(2) The alleged grave abuse of discretion will have yet to be determined by the
courts of justice, particularly the Supreme Court.

(3) That if indeed it is alleged that there exists a grave abuse of discretion
amounting to lack or excess of jurisdiction, our courts of justice, particularly
the Supreme Court, can check this including the Congress and the President
of the Republic of the Philippines, or even Constitutional bodies because they
fall within the phrase “any branch or instrumentality of the government.”

COMPOSITION OF THE SUPREME COURT

Under our existing 1987 Constitution, the total members of the Supreme Court are
fifteen (15), consisting of 1 Chief Justice and 14 Associate Justices. As shown in the
comparative table below, there was an increase of Justices of the Supreme Court from 11
members to 15 members in 1935 to 1973. However, this total membership of the
Supreme Court did not increase in the 1987. The total population of the country and legal
cases filed in courts have increased significantly. This non-increase of the members of
the Supreme Court can have a significant effect on the disposition of cases as shown in
the statistics of cases filed and pending in the Supreme Court towards the end of this
chapter.

Table 23. COMPARATIVE TABLE OF SUPREME COURT JUSTICES

PHILIPPINE CONSTITUTIONS

1935 1973 1987

One (1) Chief Justice One (1) Chief Justice One (1) Chief Justice
and And and
Ten (10) Associate Fourteen (14) Fourteen (14)
Justices Associate Justices Associate Justices

(Art. VIII, Sec. 4) (Art. X, Sec. 2 [1]) (Art. VIII, Sec. 4[1])

As a general rule, justices of the Supreme Court decide criminal, civil and administrative
cases by divisions unless provided by the rules that they should decide as one collegiate body or
in an en banc session. At present, 15 justices of the Supreme Court sit in 3 divisions with 5
members for each division. The First division is headed by the Chief Justice, the second division
by the most senior associate justice, and third division by the second most senior justice.

More serious legal matters which have significant impact on the country are heard and
decided by en banc such as:

A. All cases involving the constitutionality of a/an:

(1) Treaty
(2) International Agreement
(3) Executive Agreement
(4) Law

B. All other cases which under the Rules of Court are required to be heard en banc.

C. All cases involving the constitutionality, application or operation of:

(1) Presidential Decrees

(2) Proclamations
(3) Orders

(4) Instructions
(5) Ordinances
 (6) and other regulations

POWERS OF THE SUPREME COURT

Original Jurisdiction

Under Article VIII, Section 5 (1), the Supreme Court shall have the power to exercise
original jurisdiction over (1) cases affecting ambassadors, other public ministers and consuls,
and over (2) petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

Appellate Jurisdiction

Under Article VIII, Section 5 (2), the Supreme Court shall have the power to review,
revise, reverse, modify, or affirm on appeal or certiorari, as the law or Rules of Court may
provide, final judgments and orders of lower courts in:

(1) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(3) All cases in which the jurisdiction of any lower court is in issue.
(4) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(5) All cases in which only an error or question of law is involved.

Administrative Powers

Under Article VIII, Section 5 (3,4,5,6), the Supreme Court does not only interpret the law
and decide cases, but it also exercises administrative powers to supervise all the courts of the
land as well as the admission and practice of law by lawyers. Thus, the Supreme Court can:

(1) Assign temporarily judges of lower courts to other stations as public interest may
require. Such temporary assignment shall not exceed six months without the consent of judge
concerned.
(2) Order a change of venue or place of trial to avoid a miscarriage of justice.
(3) Appoint all officials and employee of the Judiciary in accordance with the Civil
Service Law.
(4) Promulgate rules concerning:

(i) the protection and enforcement of constitutional rights;

(ii) pleadings in courts;
(iii) the practice of law by lawyers;

(iv) procedure in all courts;

(v) the admission to the practice of law;
 (vi) the integrated Bar; and
(viii) legal assistance to the underprivileged.

Table 24. SUMMARY—COURTS IN THE PHILIPPINES: FUNCTION, HEAD,

COMPOSITION AND JURISDICTION

TYPE COMPOSITION
DESCRIPTION GENERAL FUNCTION

REVIEW
COURTS
Supreme The highest 14 Associate Justices 1. Reviews losing cases on
Court court of the land with 1 Chief Justice; appeal from CA, CTA, and
Sandiganbayan;
3 divisions with 5
justices for each 2. Reviews all cases involving
division constitutionality of a treaty,
international agreement,
executive order, law,
presidential decree,
proclamation, instruction,
ordinance and other regulations;

3. Reviews all cases under

Rules of Court to be heard en
banc or by all justices of the
SC;

4. Promulgate rules concerning

protection & enforcement of
constitutional rights, pleading,
practice, procedure in all courts,
admission to the practice of
law, Integrated Bar, and legal
assistance ot the
underprivileged.

Court of General Appeals 1 presiding justice & Reviews cases on appeal

Appeals (CA) Court for regular 50 associate justices; decided by trial courts
criminal,
administrative 17 divisions, with 3
and civil cases justices for each
division

Court of Tax Specialized Composed of justices 1. Reviews cases on appeal

Appeals (CTA) Appeals Court sitting in divisions which are previously decided
on Taxation and headed by a by the BIR and Bureau of
cases Presiding justice. Customs Commissioners on
taxation and customs duties;

2. Reviews decisions of
provincial or city boards of
assessment on taxation or real
property & other matters arising
under Assessment Law, now
under the Local Government
Code.

Sandiganbayan Trial and Composed of justices 1. Tries cases involving graft

appellate court sitting in divisions of and corruption by public
for criminal and 3 members and official punishable by more
graft and headed by a Presiding than 6 years;
corruption cases justice
committed by 2. Reviews cases on appeal
public officers from RTC committed by public
officials on graft or criminal
cases punishable by 6 years or
less.

TRIAL
COURTS

Regional Trial Regular trial Tries criminal, administrative

Court (RTC) court for serious 720 RTCs and and civil cases of serious
offences and judges, distributed nature;
civil breaches throughout the 12
judicial regions Appellate court for decisions of
in the country municipal and metropolitan trial
courts

Presiding Judge and Tries less serious criminal,

Metropolitan Trial Court in court employees administrative, and civil cases
Trial Court big or chartered involving smaller amounts
(MeTC) cities

Metropolitan A group of small Presiding judge and Tries less serious criminal,
Trial Circuit Metropolitan court employees administrative and civil cases
Courts Trial courts
(MTCC) under one judge

Presiding Judge and Tries less serious criminal,

Municipal Trial courts in court employees administrative and civil cases
Trial Court municipalities
(MTC)

Municipal Consists of 2 or Presiding Judge for 2 Tries less serious criminal,

circuit Trial more small or more small MTC administrative and civil cases
Court (MCTC) municipal courts courts
under 1 judge

COURT FOR
MUSLIMS

Shariah Trial courts for Presiding judge and Hears all cases involving
District Court Filipino Muslims court employees children, inheritance and estate
of deceased Muslims, petitions
of declaration of absence &
death & correction of entries,
customary contracts, petitions
for mandamus, injunction,
certiorari, habeas corpus and
other writs in aid of its appellate
jurisdiction;

2. Concurrently with existing

civil courts, it exercises
jurisdiction over petition by
Muslims or constitution of a
family home, change of name &
commitment of insane to any
asylum and all other personal &
real actions involving Muslims;

3. All special civil actions for

interpleader or declaratory relief
for Muslims.

Shariah Circuit Trial courts for Presiding judge and 1. Tries all cases involving
Court Filipino Muslims court employees offenses under Muslim Code
(P.D. No. 1083);

2. All civil cases between

 parties who are Muslims and
married in accordance to the
Muslim Code;

3. All cases involving disputes

relative to communal rights.

PROBLEMS IN PHILIPPINE COURTS

Vacancy in the Judiciary

One of the major problems faced by Philippine courts is the lack of justices and judges who
can resolve legal cases in the courts and administer justice in the country. Based on the 2010
Annual Report of the Supreme Court, the vacancy rate in the judiciary is 25.26% or 586
vacancies out of the 2,320 judicial positions. While there has been a huge volume of applications
for judgeship positions, the Judicial and Bar Council (JBC) seemed slow in filling up these
vacancies with competent applicants.

Vacancies in the Different Courts of the Philippines as of 2010:

SC CA SB CTA RTC MetC MTCC MTC MCTC SDC SCC TOTAL

0 7 1 0 207 21 63 101 160 5 21 586

This lack of judges in courts, especially in trial courts (RTC, MeTC, MTCC, MTC, MCTC,
SDC, SCC) has a serious effect on delivering justice to the people. With the continuous increase
of cases filed in court every day and lack of judges to resolve and dispose cases immediately has
resulted in more pending cases and thus delay, the administration of justice. At the end of 2009,
the Supreme Court noted that lower or trial courts had a total of 617, 704 pending cases. By
December 31, 2010, the number of pending cases totaled 614, 888 with 324,726 new cases filed
that year.

Table 25. SUPREME COURT’S CASE DISPOSAL AS OF DECEMBER 2010

CASE CASE % OF CASE

INPUT OUTPUT DISPOSAL

EN BANC Judicial Matters 720 359 50%

Administrative Matters 664 453 68%

First Division Judicial Matters 4,479 2,479 55%

Administrative Matters 1,342 904 67%

 Second Judicial Matters 5,436 3,604 66%
Division
Administrative Matters 2,323 1,177 51%

Third Division Judicial Matters 5,871 4,003 68%

Administrative Matters 1,712 1,078 63%

TOTAL 22,547 14,057 62%

SOURCE: SCAR 2010, p. 41.

The table above also shows delay in the disposal of cases even in the Supreme Court. As
of December 2010, the disposal rate of cases in en banc and in divisions was between 50-68
percent. That is just around a little more than half of the total cases filed in the court. The main
bulk of these cases were judicial matters or regular cases filed for decision or under review by
the court. Except in en banc, administrative matters which deal with civil service and legal
procedures in running the government constitute less than half compared to the judicial matters.
In the first division, for instance, there are 4479 judicial cases but only1,342 administrative
cases. As a whole, the disposal rate of the Supreme Court was only 62 % of all the cases filed for
decision and review. May it is time to revise our Constitution and increase the number of justices
in the Supreme Court to keep pace with increasing population and legal cases filed in all courts
in the country which will most likely end up in the highest court of the land for review.

Table 26. MIDDLE LEVEL AND LOWER COURT’S CASE DISPOSAL AS OF

DECEMBER 2010

COURTS CASE INPUT CASE OUTPUT % OF CASE

DISPOSAL

MIDDLE LEVEL COURT

CA 33,032 13,241 40%

(Court of Appeals)

SB 2,405 247 10%

(Sandiganbayan)

CTA 1,067 315 30%

(Court of Tax Appeals)

TOTAL 36,504 13,804 38%

 LOWER/TRIAL COURTS

RTCs 552,554 180,529 33%

(Regional Trial Courts)

MeTCs 163,413 73,439 45%

(Metropolitan Trial Courts)

MTCCs 135,813 72,606 53%

(Metropolitan Trial Circuit
Courts)

MTCs 73,624 29,481 40%

(Municipal Trial Courts)

MCTCs 66,532 21,441 32%

(Municipal Circuit Trial
Courts)

SDCs 196 29 15%

(Shariah District Courts)

SCCs 685 314 46%

(Shariah Circuit Courts)

TOTAL 992,817 377,839 38%

Source: SCAR 2010, p.41. (Names of the courts are added to the original table)

Compared to the Supreme Court, the middle and lower courts move even slower in their
disposition of cases. The middle courts which consist of the Court of Appeals (CA), the
Sandiganbayan (SB) and Court of Tax Appeals (CTA) and lower courts which consist of all trial
courts in the country have a similar disposal rate of cases of thirty-eight percent (38%). In the
middle courts, it is noteworthy that the slowest court in disposing cases is the Sandiganbayan, a
court that decides corruption cases in the government, with a dismal 10% disposal rate. As of
December 2010, 2,405 cases filed in court, only 247 were decided, leaving more than two
thousand cases pending. This is ironic since the Sandiganbayan, the graft court in the country, is
expected to expedite prosecution of corruption cases to discourage public officials to steal from
the government coffers. The Court of Appeals (CA) emerged as the highest disposal rate among
the middle level courts. But this 40% disposal rate is still slower than that of the Supreme Court.

Among the trial courts, the Regional Trial Courts (RTCs), the largest number of trial courts
in the country, manifest a low disposal rate of 33%, much lower compared to the Supreme Court
and middle level courts. This is really a reflection of the slow justice system in the country as the
main bulk of all cases in the country is pending in the RTCs. Of course, the lack of judges plays
an important role of this delay. The complex and tedious rules of court and proceedings also
contribute to this delay. Some lawyers deliberately delay cases in order to earn more appearance
fees in court. Others delay the proceedings hoping that the case will end up settled amicably
outside the court.

The municipal courts, especially the Metropolitan Trial Circuit Courts (MTCCs) with a 53
% disposal rate, Metropolitan Trial Courts (MeTCs) with 45%, and Municipal Trial Courts
(MTCs) with 40% showed a relatively faster rate compared than the middle level courts. But the
Municipal Circuit Trial Courts (MCTCs) were the slowest among the municipal and
metropolitan courts with a 32% disposal rate. One must consider that this type of court is usually
found in remote regions or provinces in the country and with more vacant positions for judges.

The Shariah courts for Muslims handle less cases compared to the regular courts. But the
Shariah District Courts (SDCs) have the slowest disposal rate of 15% compared to all the courts
in the country.

MEMBERSHIP IN THE JUDICIARY

Unlike the educational qualification of the President, Vice-President, Senators and

Congressmen/women which requires only the ability to read and write, the members of the
judicial branch must be licensed lawyers or members of the Integrated Bar of the Philippines.

Why is this so? Well, the judicial work of justices and judges requires litigation which is a
specialized type of work. The work of members of the judiciary is very technical and thus
requires a special education in law schools and passing the bar examinations. The President,
Vice-president, senators or congressmen can always avail the services of a lawyer to perform the
technical legal work for them. In the judiciary, the justices and judges must render their own
personal decision or judgment on legal cases and thus he or she must be knowledgeable of the
law. Although they can have a staff of legal researchers composed of lawyers as in the case of
justices of the Supreme Court, judicial decision based on sound judgment of the facts of the case
requires the personal expertise of the justice or judge.

Table 27. QUALIFICATIONS OF THE MEMBERS OF THE JUDICIARY (Section 7,

Article VIII)

CATEGORY JUSTICES OF SUPREME JUSTICES OF LOWER

COURT COLLEGIATE COURTS (CA,
 CTA, Sandiganbayan)
&
JUDGES OF LOWER COURT
(RTC, MeTC, MTC, MCTC)

SOURCE OF AUTHORITY 1987 Philippine Constitution 1987 Philippine Constitution

DETERMINING (Sec. 7, Art.VIII) and by qualifications prescribed
QUALIFICATION by Congress (Sec. 7, Art.VIII)

CITIZENSHIP Natural-born Filipino citizen Natural-born Filipino citizen or a

Naturalized Filipino citizen

AGE At least 40 years old

EDUCATION A Lawyer, a member of the Bar A Lawyer, a member of the Bar

EXPERIENCE At least 15 years as practicing

lawyer or judge

MORAL FITNESS A person of proven competence, A person of proven competence,

integrity, probity, and integrity, probity, and
independence independence

THE JUDICIAL AND BAR COUNCIL (JBC)

AND THE NOMINATION AND SELECTION OF JUSTICES AND JUDGES

In the 1935 and 1973 Constitutions, the selection and appointment of justices and judges
were left entirely in the hands of the President. Political and social connections rather than
qualifications oftentimes predominated in the selection process. As a result, some justice and
judges who are incompetent and lack personal integrity, probity and independence are appointed
to the judiciary. The framers of the 1987 Constitution were aware of this problem when they set
the qualification and the selection process for the members of the judiciary. As an assurance that
members of the judiciary were highly qualified and competent, they established a special body
known as the Judicial and Bar Council (JBC) tasked to screen and nominate candidates to the
President.
Normally, the JBC accepts applications for vacant positions in the judiciary whether for
justices or judges. Then, they screen the applications by soliciting recommendations and
interviewing the applicants. Out of the many applicants, the JBC comes up with a short list of 3
nominees which they send to the President for his choice of appointees. The JBC only screens
and nominates candidates but it is the President who makes the final decision.
 This new procedure is not always free from political influence coming from Malacanang.
In some cases, the President can do maneuvering, influencing the members of the JBC to include
in the short list his/her a preferred nominee. The President can refuse to choose from the list and
can ask the JBC to give another list which might include his/her preferred candidate. The
problem with this system is that it does not state that the President cannot reject the JBC list and
ask for another list. This loophole can be exploited by presidents who want their favorite
nominee appointed to the judiciary. A nominee who is close to Malacanang especially for a
position in the Supreme Court can provide the President with an important connection in the
highest court of the land. Pending government cases as well as cases which may be filed against
the President when he leaves office can get additional support in the collegiate body of the
Supreme Court. The more justices friendly to Malacanang, the more the President can control the
supposedly independent and co-equal body in the government like the Supreme Court.

Table 28. THE FUNCTION AND COMPOSITION OF THE JUDICIAL AND BAR
COUNCIL (JBC) (SEC. 8, ART. VIII)

SUPERVISING BODY The Supreme Court of the Philippines

PRINCIPAL To recommend appointees to the Judiciary. It may exercise such

FUNCTION other functions and duties as the Supreme Court may assign to it.

COMPOSITION

Ex-Officio Chairman Chief Justice of the Supreme Court

Ex-Officio Secretary Clerk of Court of the Supreme Court

Members Secretary of Justice (DOJ) as Ex-officio member

Representative of Congress as Ex-officio member

Representative of the Integrated Bar (IBP)

A Professor of Law
 A Retired Member of the Supreme Court

Representative of the Private Sector

SALARY OF ITS May be determined by the Supreme Court, tasked by the constitution
MEMBERS to provide in its annual budget the appropriations for the council.

SUMMARY

Judicial power is the power to interpret the law and settle legal cases. Under the 1987
Constitution, this power is vested in one Supreme Court and other lower courts created by law.
Its scope has been expanded by the present Constitution to include the power of the courts to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government.

The present Supreme Court is composed of 1 Chief Justice and 14 Associate justices. It
exercises original and appellate jurisdictions over legal cases for review and resolution and
administrative powers to manage and oversee the middle and lower courts of the country. Its
main problem is the delay in the administration of justice owing to vacancies of judges and court
officers in the lower courts and the backlog of pending cases.

The qualification of the members of the judiciary includes the minimum age of 40 years,
natural-born citizen, a member of the Philippine bar, at least 15 years of experience as a judge or
practicing lawyer, and a person of proven competence, integrity, probity, and independence. The
Judicial and Bar Council (JBC) is tasked by the Constitution to screen the applicants to the
judiciary. In the case of the justices of the Supreme Court, the JBC submits to the President a
short list of qualified candidates. The President is the appointing officer for members of the
judiciary.
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 GLOSSARY

Abode—a dwelling place, a home, or residence.

Adultery—a married having a carnal knowledge or sexual intercourse with another man not her
husband.

Anarchy— refers to a society without a publicly enforced government or violently enforced

political authority.

Anthropology—a branch of social science that studies primitive or preliterate societies and
cultures.

Appellate jurisdiction—refers to the power of the court to review the decisions on the lower
courts.

Authority—a legitimate form of power given by the people. It also refers to the right to rule.

Bail—the security required by a court and given for the provisional or temporary release of a
person who is in the custody of the law conditioned upon his appearance before any
court as required under the conditions specified.

Band— a small kin-based group with all its members are related to each other by kinship or
marriage ties

Bicameral—two legislative houses in lawmaking; this refers to the Senate as the Upper House
and the House of Representatives as the Lower House in a presidential form of
government.

Bill of Attainder—a legislative act which inflicts punishment without a judicial trial.

Canon Law— Canon is a Latin word meaning “rule.” A canon is an established rule, or body of
rules, for guidance. Canon law is the body of laws governing the Catholic
 Church.
Certiorari— a writ issued to annul or modify the proceedings, as the law requires, of a tribunal,
board, or officer exercising judicial functions, who has acted without or in excess
of its jurisdiction, or with grave abuse of discretion, there being no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law.

Charter—another term for constitution.

Chiefdom—a form of sociopolitical organization which is in- between the tribe and the state, is
kin-based, but it has differential access to resources (some people have wealth,
prestige, and power than others) and a permanent political structure.

Clientelism—a political phenomenon where the poor landless tenants become dependent clients
on their rich landlords who act as their patrons for their material and social needs.
In return, the poor clients provide votes and support to ensure victory of the
patrons and their candidates in the polls.

Code on Judicial Conduct— a collection of rules governing the conduct of judges while they
serve in their professional capacity.

Concubinage—a married man having a carnal knowledge or sexual intercourse with another
woman not his wife.

Constitution—the fundamental law of the land, a written instrument by which the fundamental
powers of the government are established, limited, and defined and by which
these powers are distributed among the several departments or branches for their
safe and useful exercise for the benefit of the people.

Contract— an agreement entered into voluntarily by two parties or more with the intention of
creating a legal obligation, which can either be in writing or oral. The three
essential elements are: Proposal, acceptance and consideration.

Custodial investigation— refers to any questioning initiated on a crime by the police or any law
enforcement officer after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.

E-Commerce Law— a law that governs the use of electronic commercial and non-commercial
transactions and documents (Republic Act No. 8792).

Economics—a branch of social science which studies the production, distribution and
consumption of goods in society.

Enrolled bill—a bill or proposed law which has been approved by both Houses of Congress
and ready for the President’s signature.

Eminent Domain—an inherent power of the state to take and appropriate private property for
 public use, whenever public exigency requires it and this can be done only
on condition of providing a reasonable compensation for it.

Familism—an extreme attachment to one’s own family.

Grievances— An actual or supposed circumstance regarded as just cause for complaint.

Illustrados—Spanish word for "erudite" or "learned, or "enlightened ones". It refers to the

Filipino educated class during the Spanish colonial period in the late 19th century.

Incommunicado—a solitary imprisonment without communication from the outside world.

Jathropa—(Jatropha curcas, locally called as tuba-tuba), is a drought-resistant

perennial shrub and a genus of flowering plants in the spurge family.
Its seeds can be used for biodiesel.

Jurisprudence— the science of law; the particular science of giving a wise

interpretation to the law and making a just application of them
to all cases as they arise.

History—a branch of social science which studies the past systematically.

Human Geography—a branch of social science which studies locations and how they affect
human behavior in society.

Ideology— a set of ideas that constitute one's goals, expectations, and actions; a comprehensive
vision or as a way of looking at things.

Immunities— legal exemptions from penalties or burdens that the law generally places upon
other citizens.

Integrated Bar of the Philippines (IBP)— the national organization of lawyers in the
Philippines. It is the mandatory bar association for Filipino lawyers. A lawyer
cannot practice law in the Philippines without being an active member of the IBP.

Intellectual Property Code of the Philippines—a set of laws that protect and secure the
exclusive rights of scientists, inventors, artists and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the people
(R.A.8293)

International Monetary Fund (IMF) — is an international organization that was created on

July 22, 1944 at the Bretton Woods Conference. It is a multilateral organization of
188 countries, working to foster global monetary cooperation, secure financial
 stability, facilitate international trade, promote high employment and sustainable
economic growth, and reduce poverty.

Magisterium—the official teaching office of the Catholic Church with its authority embodied in
the episcopacy of all bishops headed by the Pope.

Mining Act of 1995— the governing law that regulates mineral resources development in the
country (Republic Act No. 7942)

Multivariate— an analysis that comprises a set of techniques dedicated to the analysis of data
sets with more than one variable.

New Civil Code of the Philippines—a compilation of private laws in the Philippines; the
general law that governs family and property relations in the Philippines. It
was enacted in 1950, and remains in force to date despite some significant
amendments.

NGO—refers to Non-governmental organization. It is an association that operates independently

of government and typically created for a specific purpose. NGOs for environmental for
instance, include protection, the popular NGOs are Haribon Foundation, Friends of the
Earth International, Phil., Environmental NGO Network Ecolink Philippines, etc.

Oil Deregulation Law—known as the Downstream Oil Deregulation Act (R.A.8479), a law
passed in Philippine Congress in 1998 to liberalize and deregulate the oil
industry to boost the petroleum’s competitive market and promote the influx
of more new players in the industry. Prices of petroleum products are
determined by market forces and by the oil companies and are free from
government intervention.

Ombudsman— a constitutional body headed by an ombudsman, responsible for investigating

and prosecuting Philippine government officials accused of corruption and
other crimes. The Ombudsman is appointed by the President with a term of 7
years and can only removed from office by impeachment.

Patrimonialism—is a political phenomenon in which the politically influenced families feel that
other members have the right to public office just because one of its family members
or close relatives are elected in public office.

Personal effects—privately owned items, such as keys, an identification card, or a wallet or

watch.

Police Power—an inherent power of the state to restrain and regulate the individual use of
liberty and property to promote public welfare
Political Science— the study of governments, public policies and political processes,
systems, and political behavior

Politics – broadly defined as the activities in which people, groups, and organizations engage in
order to control, allocate, and use resources; politics also includes the values and ideas
underlying those activities.

Poll Tax—a community or residence tax, popularly called as cedula.

POs—refers to people’s organizations. They are groups of people, which may be an association,
cooperative, federation, or other legal entity, established by the community to undertake
collective action to address community concerns and needs and mutually share the
benefits from the endeavor.

Power -- refers to the ability of an actor to sway the actions of another actor or actors, even
against resistance.

Prision correctional—an afflictive penalty from the Revised Penal Code of the Philippines
which imposes a minimum imprisonment of 6 years and 1 day and a
maximum of 12 years for certain serious crimes.

Privacy—the right of individuals to determine when, how and to what extent

information
about them is communicated to others.

Psychology—a branch of social science which studies individual behavior, the mind, mental
processes and personalities.

Quasi-judicial bodies—administrative or investigative bodies of the government which operate

like regular courts such as the Securities and Exchange Commission,
the Commission on Election (COMELEC), the Commission of Human
Rights (CHR), etc.

Quorum— refers to the number of the membership of an assembly or collective body as is

competent to transact its business.

Redress— to compensate or set a situation right.

Reform Armed Forces Movement (RAM)—a reform movement within the Armed Forces in
the Philippines in the 70,s led by Defense Minister Juan Ponce Enrile and Col.
Gringo Honasan. The members turned rebel soldiers during EDSA People Power
I.

Residency—the place where one habitually resides and to which, when he is absent, he has the
 intention of returning.

Revised Penal Code of the Philippines—a compilation of criminal laws in the Philippines
(Act No. 3185) which took effect on 1 January 1932, revised and superseded the
old Penal Code

Revised Rules of Court in the Philippines—a set of procedural rules promulgated by the
Supreme Court of the Philippines that govern all aspects in processing legal cases
in courts.

Roman Curia—the administrative apparatus of the Holy See and the central governing body of
the entire Catholic Church, headed by the Pope.

Social Class—a social classification of people in society based on their amount of wealth and
property they possess.

Social Movement—a loosely organized collectivity in support of a social goal, typically either
the implementation or the prevention of a change in society’s structure or
values. Women’s movement, Pro-Life, or Pro-Choice Movements are
examples of social movements.

Social Status—a social classification of people based on prestige, credentials and level of
education.

Sociology—a branch of social science that studies modern and contemporary society. It also
studies social behavior, interaction and processes.

Sovereignty—the supreme, absolute, incontrollable power by which an independent state is

Governed.

Special Penal Laws—penal laws passed by Philippine Congress which are not found in the
Revised Penal Code of the Philippines such as criminal laws against
hazing, illegal drugs, money laundering, etc.

State— is a form of sociopolitical organization based on a formal government structure and

socioeconomic stratification

Statute—a type of law enacted or created by a lawmaking body or legislature.

Taxation—an inherent power of the state to impose burdens or charges upon persons, property
or property rights for the use and support of government in order to enable it to
discharge its appropriate functions

Tribe—a village or descent group (a permanent social unit whose members claim common
ancestry like a lineage or clan) which lacks a formal government and social classes.
 Tydings-McDuffie Law— a US federal law approved on March 24, 1934 which provided for
self-government of the Philippines and for Filipino independence from the US after a
period of ten years. It is officially called the Philippines Independence Act.

Visiting Forces Agreement (VFA)— a bilateral agreement between the Philippines and the
United States which govern the behavior of visiting US troops in the Philippines.
With regard to criminal offenses, the custody of American soldiers charged and
convicted in lower courts remains under the US until the Philippine Supreme Court
decided the case with finality.

World Bank (WB) — an international financial institution that provides loans to developing
countries for capital programs.

Writ of Habeas Corpus— an order issued by a court of competent jurisdiction, directed to the
person detaining another, commanding him or her to produce the
body of the prisoner at a designated time and place, and to show
sufficient cause for holding in custody the individual so detained.

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