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THE 1987 CONSTITUTION

OF THE
REPUBLIC OF THE PHILIPPINES

PREAMBLE

W E , THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF


ALMIGHTY G O D , IN ORDER TO BUILD A JUST AND HUMANE SOCIETY
AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND
ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP
OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE
BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF
LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY
AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

1. Deliberations on the Committee Report.

The very first Committee Report to come out for deliberation by


1
the 1986 Constitutional Commission was a draft of a preamble. The
draft was a modification of the Preamble of the 1973 Constitution and
read thus:

W E , THE SOVEREIGN FlLIPINO PEOPLE, IMPLORING THE


GUIDANCE OF DlVINE PROVIDENCE, TO ESTABLISH A GOVERNMENT
THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE
COMMON GOOD, CONSERVE AND ENHANCE OUR PATRIMONY, SECURE
TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF PARTICIPATORY
DEMOCRACY UNDER A RULE OF JUSTICE, PEACE, FREEDOM, AND
EQUALITY, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

'Committee Report No. 1, Committee on Preamble, National Territory, and Declaration of


Principles, June 10,1986.1 RECORD OF THE CONSTITUTIONAL COMMISSION 788 (1986),
tetinafter cited as I RECORD.

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2 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

In the course of the initial deliberations, there were those who


felt that the Preamble should be formulated only after the body of the
Constitution had been completed. Their contention was that, since the
Preamble is a distillation of the ideals and aspirations of the Filipino
people, it should not be finalized until after those ideals and aspirations
had been hammered out especially after widespread consultation in
public hearings. Others, however, thought that, since the Commission-
ers themselves were in a position to enumerate, at least tentatively, the
ideals and aspirations of the Filipino people, a Preamble formulated in
advance could serve as a guide for the rest of the work of the Commis-
sion. A compromise was reached when it was agreed that the Preamble
would still be subject to modifications after the formulation of the body
of the document. It was a reasonable compromise, because a constitu-
tion essentially consists of an enumeration of fundamental values and
goals and of devices for achieving and protecting these goals. An enu-
meration of the values and goals, therefore, albeit tentative, could be a
useful aid for future deliberations. As it turned out, however, the C o m -
mission did not go back to the Preamble after the completion of the
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body of the document.

The Commission deliberations took up most of the plenary ses-


3
sion time on June 10 and l l . The C o m m i t t e e ' s " g u i d a n c e " gave way
to "aid" as the more all-embracing term. T h e word "enhance" yielded
to the 1935's and 1973's "conserve and develop." T h e addition of the
more dynamic word "aspirations" to the passive sounding "ideals" was
accepted. But the modifier "participatory," which the Committee said
was meant to introduce the element of direct democracy and "people
power," was deleted as being tautological.

An attempt to restore the phrase "general welfare" in place of the


Committee's phrase " c o m m o n g o o d " was not accepted. The change
from "general welfare" to " c o m m o n g o o d " was intended to project the
idea of a social order that enables every citizen to attain his or her fullest
development economically, politically, culturally and spiritually. T h e
rejection of the phrase "general welfare" was based on the apprehen-
sion that the phrase could be interpreted as meaning "the greatest good
for the greatest n u m b e r " even if what the greater n u m b e r wants does

2
ld. at 93-97, 124-126.
'Journal No. 7 and 8, June 10 and 11, 1986; I RECORD 87-109, 116-140.
PREAMBLE 3

violence to h u m a n dignity, as for instance when the greater majority


might want the extermination of those who are considered as belong-
ing to an inferior race. It was thought that the phrase "common good"
would guarantee that m o b rule would not prevail and that the majority
4
would not persecute the minority.

An attempt to substitute "Lord of History" or "God of History"


for "Divine Providence" was m a d e on the reasoning that the suggested
substitute connoted active involvement of G o d in the affairs of m e n .
But the suggestion was rejected when it was pointed out that the phrase
could be misunderstood as an acceptance of the Marxist concept of his-
tory as being the only G o d . Instead, the phrase "Almighty G o d " was
chosen as being more personal than "Divine Providence" and therefore
more consonant with Filipino religiosity.

Another change m a d e by the body was the insertion of the phrase


"a just and h u m a n e society". The phrase added the notion that a con-
stitution not merely sets up a government but is also an instrument for
building the larger society of which government is merely a part.

An attempt to substitute "equity" for "equality" was rejected as


being subject to the interpretation that the Commission was rejecting
the enshrinement of "equality" already m a d e by the 1973 Constitution.
The 1973 Preamble had added "equality" to reflect the mounting wave
of protests against basic social inequalities which even at the time of the
1971 Constitutional Convention plagued Philippine society.

The Committee's desire to substitute "rule" for "regime" was


rejected. Instead, the phrase "rule of l a w " w a s inserted and the con-
cluding litany was made to read "truth, justice, freedom, love, equality
and peace". The introduction of the word "love" probably makes the
Philippines the only nation to enshrine the word in its Constitution. It
serves as a monument to the love that prevented bloodshed in the Feb-
ruary Revolution of 1986. Moreover, the insertion of "truth" is a protest
against the deception that characterized the Marcos regime. Finally, the
enumeration captures a stream in Catholic thought which sees peace as
the fruit of the convergence of truth, justice, freedom, and love.
The draft was approved on second reading on the eve of Indepen-
dence Day, June 11, 1986.

HII RECORD 277.


4 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

2. Purpose and effect of the Preamble.


Constitutionally, however, a Preamble is not a source of power or
5
right for any department of government. But because it sets down the
origin, scope, and purpose of the Constitution, it is useful as an aid in
ascertaining the meaning of ambiguous provisions in the body of the
6
Constitution. In Aglipay v. Ruiz, for instance, Justice Laurel, in seeking
the true meaning of separation of church and state in Philippine juris-
prudence, had occasion to allude to the invocation of the "aid of Divine
Providence" found in the 1935 Preamble.

The Preamble, moreover, bears witness to the fact that the Consti-
tution is the manifestation of the sovereign will of the Filipino people.
This idea comes out more clearly in the present text, as also in the 1973
text, which uses the first person approach. The 1935 Preamble had used
the third person approach: "The Filipino people, imploring the aid, etc."
The effect of the 1935 text was to suggest that some third person, the
United States, was making the announcement that the Filipino people
were finally being allowed to promulgate a constitution.

The identification of the Filipino people as the author of the con-


stitution also calls attention to an important principle: that the document
is not just the work of representatives of the people but of the people
themselves who put their mark of approval by ratifying it in a plebiscite.

The 1935 text had also stated that one of the objects of the promul-
gation of the constitution was "to secure to themselves and their poster-
ity the blessings of independence." T h e text thus suggested that inde-
pendence was still merely an aspiration (as indeed it w a s then) and not
yet a possession of the Filipino people. To remove this anachronistic
suggestion, the Preamble now, as also the 1973 Preamble, speaks of
the "blessings of d e m o c r a c y " and calls the Filipino people "sovereign."
ARTICLE I
THE NATIONAL TERRITORY

SECTION 1. THE NATIONAL TERRITORY COMPRISES THE


PHILIPPINE ARCHIPELAGO, WITH ALL THE ISLANDS AND WATERS
EMBRACED THEREIN, AND ALL OTHER TERRITORIES OVER WHICH
THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION, CONSISTING
OF ITS TERRESTRIAL, FLUVIAL, AND AERIAL DOMAINS, INCLUDING ITS
TERRITORIAL SEA, THE SEABED, THE SUBSOIL, THE INSULAR SHELVES,
AND OTHER SUBMARINE AREAS. THE WATERS AROUND, BETWEEN,
AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS
OF THEIR BREADTH AND DIMENSIONS, FORM PART OF THE INTERNAL
WATERS OF THE PHILIPPINES.

1. The Place of Territorial Delimitation in the 1935


Constitution.

The definition of national territory found in the Constitution went


through three phases. The first phase was during the 1934-1935 Con-
stitutional Convention. This was followed by the deliberations of the
1972 Constitutional Convention and finally by the deliberations of the
1986 Constitutional Commission. Between 1972 and 1986, however,
the Philippines became party to the 1982 Convention on the Law of the
Sea. In the exposition of the law on national territory all these phases
will be taken into consideration.

A constitution is a municipal law. As such, it is binding only with-


in the territorial limits of the sovereignty promulgating the constitution.
For purposes of actual exercise of sovereignty, it is important for the
sovereign state to know the extent of the territory over which it can
legitimately exercise jurisdiction. For purposes of settling international
conflicts, however, a legal instrument purporting to set out the territo-
rial limits of the state must be supported by some recognized principle

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6 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

of international law. Hence, the silence of a constitution regarding the


territorial limits of a sovereignty does not deprive such sovereignty of
any portion of territory it is entitled to under international law. Neither,
however, does a constitutional definition of territory have the effect of
legitimizing a territorial claim not founded on some legal right pro-
tected by international law.

Philippine constitutionalism accepts the principle that it is not the


Constitution which definitely fixes the extent of Philippine territory.
This principle ran through the debates on the national territory during
1
the 1935 Constitutional Convention. The existence of a territorial defi-
nition in Article I of the 1935 Constitution was not a denial of this prin-
ciple. Rather, Article I reflected a historical purpose. The determinative
factor which persuaded the 1935 Convention to include an article on
national territory was the intent of the Convention to use the Constitu-
tion as an international document binding on the United States. The
possibility of transforming the Constitution, a municipal law, into an
international document arose from a provision of the Tydings-McDuffie
Law which prescribed that the effectivity of the Philippine constitu-
tion would depend partly on the acceptance of its provisions by the
2
United States Government. Delegate Singson Encarnacion put the mat-
ter bluntly: "Es cosa necessaria para nosotros. No debemos redactor
nuestra Constitution, como se ha repetido aqui muchas veces, imitando
simplemente la Constitution de otros paises; debemos poner aqui lo
que es necessario, a fin de que despues no se conviertan algunas de
nuestras islas en 'yoyo', o sea, que Estados Unidos retire lo que hoy de
3
buena gana nos concede." Answering the question of Delegate Palma,
Singson Encarnacion was even m o r e blunt: "Como sabe su senoria
muy bien, en este mundo no rige el verdadero derecho international
basado en lajusticia estricta, sino la fundada en fuerza de los canones,
4
y claw esta, es mejor que fortalezcamos desde ahora."

'V 1934-1935 CONSTITUTIONAL CONVENTION RECORD 318-359, 389-447, 490-


528 (1967), hereinafter to be referred to as 1935 CONVENTION RECORD.
2
Sec. 3, Act, Mar. 24,1934, Ch. 84,48 Stat. 546.
3
V 1935 CONVENTION RECORD 342.
Id. at 347. After Singson Encarnacion's intervention, a vote was taken on a motion to sup-
press the provision on national territory. The motion was defeated by a vote of 38 to 119. Id. at 354.
Sec. 1 ART. I - THE NATIONAL TERRITORY 7

2. National Territory under the 1935 Constitution.

Article I, Section 1 of the 1935 Constitution read:

States by the Treaty of Paris concluded between the United


States and Spain on the tenth day of December, eighteen hundred
and ninety-eight, the limits of which are set forth in Article III of
said treaty, together with all the islands in the treaty concluded at
Washington, between the United States and Spain on the seventh
day of November, nineteen hundred, and in the treaty concluded
between the United States and Great Britain on the second day of
January, nineteen hundred and thirty, and all territory over which
the present Government of the Philippine Islands exercises juris-
diction.

T h e article, thus gave four points of reference for the determina-


tion of Philippine territory: (1) T h e Treaty of Paris on December 10,
1898; (2) T h e Treaty of Washington on N o v e m b e r 7, 1900; (3) The
treaty between Great Britain and the United States on January 2 , 1 9 3 0 ;
(4) "all territory over which the present Government of the Philippine
Islands exercises jurisdiction."

By Article III of the Treaty of Paris, Spain ceded to the United


States "the archipelago known as the Philippine Islands, and compre-
hending the islands lying within" the line drawn by the technical de-
scription of the same article. The technical description embodied in the
Treaty of Paris, however, left some doubt about the inclusion within the
ceded territory of the Batanes Islands to the north and of the Islands of
Sibutu and Cagayan de Sulu to the south as well as of the Turtle and
Mangsee Islands. The Treaty of Washington of November 7, 1900 cor-
rected the error with respect to the Islands of Sibutu and Cagayan de
Sulu, and jurisdiction over the Turtle and Mangsee Islands was clari-
fied by the convention concluded between Great Britain and the United
States of January 2, 1930.' The doubt with respect to the Batanes Is-
lands, however, was left unclarified in spite of the fact that, from time
immemorial, these islands had undisputedly formed part of the Philip-
pine Islands. Hence, to remove the doubt, the 1935 Constitution added

'Id. 319-320.
8 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

the clause "all territory over which the present (1935) government of
6
the Philippine Islands exercises jurisdiction."

3. Why a Definition of Territory in the 1973 and 1987


Constitutions?
The 1971 Convention spent a considerable amount of time on Feb-
ruary 14 and 15, 1972 debating whether the new Constitution should
contain a definition of Philippine territory. This question had to be set-
tled before the Convention could proceed to consider amendments to
the draft report of the Committee on National Territory.

The principal proponent of the motion to delete the entire article


7
on National Territory was the late Delegate Voltaire Garcia (Rizal).
Garcia argued that territorial definition was a subject of international
law, not of municipal law, and that Philippine territory was already de-
fined by existing treaties. As for the Batanes Islands, Garcia pointed
out that no state ever questioned the continued exercise of Philippine
sovereignty over these islands. While the definition of Philippine ter-
ritory in the 1935 Constitution might have been useful in 1935, Gar-
cia observed that its continued presence in the Constitution had in fact
embarrassed the Philippines in negotiations for territories not covered
by the constitutional definition. H e n c e , Garcia concluded that a consti-
tutional definition of territory would not only be unnecessary but could
even be prejudicial to the interests of the Philippines. Answering the ac-
8
cusation that his reasoning was tacit advocacy of expansionism, Garcia
said that international law recognized peaceful m o d e s of acquiring new
territory. Moreover, he retorted that the real advocates of expansionism
were those who positively wished to mandate the state to pursue claims
over areas not clearly within the Philippine territory. Garcia specifically
singled out the movement to claim the Marianas Islands, a trust territory
which the United Nations was then preparing for independence.

Delegates A m a n i o Sorongon (Iloilo 3rd district) and Magtanggol


G. Gunigundo (Bulacan 1st district) supplied the "nationalistic" argu-

Hd. 327; Committee Report No. 01, Committee on National Territory, 1971 Constitutional
Convention, Jan. 15, 1972; Committee Report No. 7, Committee on Territorial Delimitation 1935
Constitutional Convention, August 31, 1934; I A J I U E G O , THE FRAMING OF THE PHILIPPINE CoNsrmi-
TION 117-119 (1936), hereinafter cited as A R O U E C O . On the Batanes question, see also Speech of
Delegate Villalva, Session of February 11,1972.
'Speeches, Sessions of February 14 and 15,1972.
'Infra, note 11.
Sec. 1 ART. I - THE NATIONAL TERRITORY 9

ments for deletion of the article on national territory. Sorongon found


the mention of the Treaty of Paris a repulsive reminder of the indig-
nity of our colonial past.' G u n i g u n d o , in utter disregard of the historic
evolution of the Filipino nation, claimed that the Philippines existed
before Magellan ever c a m e . M o r e plausibly, but only after a leap over
four centuries of history, he recalled that Felipe Agoncillo had protested
Spain's cession of the Philippines to the United States, first, because the
Philippines had not been consulted, and second, because Spain had al-
ready lost effective control over the Philippines. Hence, he argued that
to accept the territorial boundaries defined in the Treaty of Paris would
be to lend legitimacy to the illegal act of Spain and the United States.
Finally, after some irrelevant statements about the Catholic Church,
Gunigundo concluded that the ancestral h o m e of the Filipino people
10
might be larger than the Treaty of Paris would allow.

T h e arguments for the inclusion of an article defining the national


territory ran along t w o levels. On one level was an attempt to dem-
onstrate the need for a clear definition of Philippine territory. Thus,
Delegate Raul R o c o (Camarines Sur) argued that a territorial definition
was necessary for the preservation of our national wealth, for national
security, and as a manifestation of our solidarity as a people." Similarly,

'Speech, Session February 15,1972. Sorongon favored a process of selective recollection.


He said that if the charter must remind us of our past, let it remind us of our glorious past —
Mac tan, Tirad Pass, Bataan.
10
Gunigundo's speech is a rambling sort of oratory best suited for losing a good cause.
Session of February 15,1972.
A short-sighted argument for deletion was supplied by Delegate Manuel T. Molina
(Cagayan). He said that if Sabah were to be made part of Philippine territory, the Philippine
government would have to drop criminal cases of smuggling from Sabah. And if the President
were to send an armed battalion to Sabah, nobody could rightly call such an act an invasion.
Session of February 15,1972.
Not very helpfully. Delegate Clemente Abundo (Catanduanes) argued that the definition of
our "ancestral home" has already been "written in blood." Session of February 15, 1972.
"Speech, Session of February 15, 1972. Delegate Roco also said that to argue for deletion
in order to allow for expansion is to give "dangerous obeisance to the principle of expansionism."
Moreover, he said that if some people find mention of the Treaty of Paris offensive to their
nationalist sensibilities, he would favor a mere mention of treaties without specification.
Delegate Juan Liwag (Nueva Ecija, 2nd district), speaking against the Committee report,
was opposed to its details. First, he said that the details were an unnecessary repetition of provi-
sions of R.A. No. 3046 and R.A. No. 5446. Secondly, while the proposal claimed sovereignty
over territorial waters, it did not claim dominion or ownership over the same areas. Hence, he
said that the proposal did not make the territorial waters part of the Philippine public domain. This
observation of Liwag, however, did not get any reaction from the Convention. Speech, Session of
February 15,1972.
10 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

Delegate Jose Nolledo (Palawan) expressed concern for the protection


12
of our national resources.
The arguments of Roco and Nolledo, however, did not prove that
the definition must be expressed in the Constitution. Along another
level of argumentation therefore, was an attempt to show that the defi-
nition of Philippine territory must be expressed in the Constitution it-
self. In support of this proposition, Delegate Eduardo Quintero (Leyte),
Chairman of the Committee on National Territory, made three points.
First, he said that the territorial assertions found in Republic Act 3046
were couched merely in " W h e r e a s " clauses. These clauses should be
expressed in more authoritative fashion. Second, he said that to delete
the article entirely would again leave the status of the Batanes Islands
in doubt. Third, he expressed the need for curing the failure of the 1935
Constitution to express the possibility of future territorial acquisitions
by the Philippines. He said that this failure had caused the Philippine
government some embarrassment in two conferences over Sabah, first
13
in London in 1963 and then in Bangkok in 1968. Delegate Nolledo
added that the ratification of the Constitution by the people should
14
strengthen the Philippine territorial position. Similarly, Delegate Ale-
jandro Lichauco (Rizal) argued that such an important matter as ter-
ritorial delimitation should not be left to subordinate agencies of the
15
government such as the legislature or the executive.

Admittedly, these arguments were valid for strengthening the


force of our territorial definition as municipal law. However, they did
not prove that a constitutional definition would strengthen Philippine
legal position in international law. T h e transposition of the provisions
of R.A. N o . 3046 to the Constitution would transform such provisions
into constitutional provisions, but the provisions would remain munici-
pal law, not international law. T h e deletion of the article on national
territory would not mean abandonment of the Batanes Islands or any
portion of Philippine territory as long as Philippine jurisdiction contin-
ued to be actually exercised over such territories, as in fact it had always
been exercised even before the curative clause of the 1935 Constitution.

"Speech, Session of February 15,1972.


"Speech, Session of February 15,1972. Quintero was a member of the Philippine delega-
to both the London and Bangkok conferences. See infra, note 25.
"Supra, note 12.
"Interpellating Delegate V. Garcia, Session of February 14,1972.
Sec. 1 ART. I - THE NATIONAL TERRITORY 11

Nor could the argument of estoppel, used by the British government


both in London in 1963 and in Bangkok in 1968, be answered by a 1973
unilateral assertion of jurisdiction over Sabah.

4. The 1973 Provision on National Territory.

Article I of the 1987 Constitution cannot be fully understood with-


out reference to Article I of the 1973 Constitution. Although the 1986
Constitutional Commission spent a considerable amount of time on Ar-
ticle I, in the end the provision that emerged was in substance a copy of
its 1973 Counterpart.

Article I of the 1973 Constitution said:

The national territory comprises the Philippine archipelago,


with all the islands and waters embraced therein, and all other ter-
ritories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the sea-bed,
the insular shelves, and the other submarine areas over which the
Philippines has sovereignty or jurisdiction. The waters around, be-
tween and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters
of the Philippines.

Briefly, and for purposes of analysis, Philippine national territory


under the 1973 Constitution may roughly be divided into three groups:
(1) the Philippine archipelago; (2) other territories belonging to the
Philippines; and (3) Philippine waters, air-space, and submarine areas.
The territory thus has a horizontal reach consisting of land and waters,
an upward reach consisting of air-space over the land and waters, and
a downward reach consisting of submarine areas. Moreover, the last
sentence of the provisions makes an important assertion of adherence
to the "archipelagic principle."

a. The Philippine Archipelago


What or where is the Philippine archipelago? The answer given
by Article I of the 1973 Constitution simply made reference to "all the
islands and waters embraced therein." The Article, however, gave no
point of reference that could delineate the exact location of these islands
and waters. On its face, therefore, the Article did not serve as a defini-
tion of national territory. To understand its meaning, one must look into
the evolution of the Article from its first draft to its final form.
12 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

Section 1 of the first draft submitted by the Committee on Na-


tional Territory almost literally reproduced Article I of the 1935 Con-
stitution which, as shown above, embodied four points of references.
Unlike the 1935 version, however, the draft designated the Philippines
16
not simply as the Philippines but as "the Philippine archipelago." In
response to the criticism that the definition was colonial in tone in that it
gave no indication that the Filipinos had a native land even prior to the
arrival of the Spaniards, the second draft further designated the Phil-
ippine archipelago, as "the historic home of the Filipino people from
17
its beginning." This drew the comment from Delegate Voltaire Garcia
that the home of our ancestors once formed part of the Madjapahit Em-
pire and that it would be ridiculous to suppose that we were claiming
the vast expanse of the former Madjapahit Empire as the ancestral h o m e
of the Filipino people.

After debates on February 14 and 15, 1972, the Committee re-


paired back to the drawing board and fumigated the draft of all c o -
lonial vermin by dropping all reference to prior treaties. On February
17, 1972, the Committee reported out a final draft, m o r e aseptically
patriotic than clear, which b e c a m e the initially approved version: "The
national territory consists of the Philippine archipelago, which is the
ancestral home of the Filipino people, and which is c o m p o s e d of all the
islands and waters embraced therein . . . "

What was the intent behind the designation of the Philippines as


an "archipelago"? An archipelago may be defined, depending on one's
utilitarian preference, either as a cluster of islands forming a territorial
unity, or as a unit of water studded with islands. In the first definition,
the waters are considered adjuncts to the land area and their extent is
determined by reference to the land area. In the second definition, the
land area is everything that comes within the water area. The Committee
18
preference was for the second definition. Asked by Delegate Roseller
Lim (Zamboanga) where this archipelago w a s , C o m m i t t e e Chairman
Quintero answered that it was the area delineated in the Treaty of Paris.
He said that objections to the colonial implication of mentioning the

"Report No. 01 of the Committee on National Territory.


"Report No. 02 of the Committee on National Territory, January 31,1972. Delegate Quin-
tero singled out Ambassador Leon Ma. Guerrero as the principal source of the criticism. Session
of February 14, 1972.
"Session of February 14,1972.
Sec. 1 ART. I - THE NATIONAL TERRITORY 13

Treaty of Paris was responsible for the omission of the express mention
of the Treaty of Paris."

Report N o . 01 of the Committee on National Territory had in fact


been explicit in its delineation of the expanse of this archipelago. It
said:

Now if we plot on a map the boundaries of this archipelago


as set forth in the Treaty of Paris, a huge or giant rectangle will
emerge, measuring about 600 miles in width, and over 1,200 miles
in length. Inside this giant rectangle are the 7,100 islands compris-
ing the Philippine Islands. From the east coast of Luzon to the
eastern boundary of this huge rectangle in the Pacific Ocean, there
is a distance of over 300 miles. From the west coast of Luzon to the
western boundary of this giant rectangle in the China Sea, there is
a distance of over 150 miles.

When the United States Government enacted the Jones Law,


the Hare-Hawes-Cutting Law and the Tydings-McDuffie Law, it
in reality announced to the whole world that it was turning over to
the Government of the Philippine Islands an archipelago (that is,
a big body of water studded with islands) the boundaries of which
archipelago are set forth in Article III of the Treaty of Paris. It
also announced to the whole world that the waters inside the giant
rectangle belong to the Philippines — that they are not part of the
high seas.

When Spain signed the Treaty of Paris, in effect she an-


nounced to the whole world that she was ceding to the United
States the Philippine archipelago which she had been occupying
for over four hundred years, that this archipelago was bounded by
lines specified in the treaty, and that the archipelago consisted of
the huge body of water inside the boundaries and the islands inside
said boundaries.

The delineation of the extent of the Philippine archipelago must


be understood in the context of the modifications made both by the
Treaty of Washington of November 7, 1900, and of the Convention of
January 2 , 1 9 3 0 , in order to include the Islands of Sibutu and of Cagayan
20
de Sulu and the Turtle and Mangsee Islands. However, although the

"To which Lim replied that the text should be clear even at the risk of sounding colonial.
Session of February 17,1972.
"Supra, note 5.
14 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

evident intent of the Convention was to secure the inclusion of the


Batanes group, the definition of the archipelago did not include the
Batanes group. Even the map distributed by the Cornmittee on National
Territory placed the Batanes Islands outside the boundaries of the
Philippine archipelago as set forth in the Treaty of Paris. In literal terms,
therefore, the Batanes islands would come not under the Philippine
archipelago but under the phrase "all other territories belonging to the
Philippines." It is submitted, however, since both geographically and
historically these islands form a unity with the Philippine archipelago
of the Treaty of Paris, they should be considered part of the Philippine
21
archipelago for purposes of the 1973 Constitution.

The conclusion that emerges from this discussion is that the "Phil-
ippine archipelago" of the 1973 Constitution corresponds with the ter-
ritory defined in Article I of the 1935 Constitution. Thus must the 1973
definition be understood if it is to be a useful definition at all and not
just a piece of patriotic assertion of national history dating back to an-
cestral Madjapahit rulers. In other words, try as we might to forget our
colonial past by erasing colonial traces from our Constitution, remem-
bering history also serves our national purpose.

b. " . . . all other territories belonging to the Philippines by


historic right or legal title."

Under the 1973 Constitution, aside from the Philippine archipel-


ago, Philippine territory also includes "all other territories belonging
to the Philippines by historic right or legal title." W h a t are these other
territories?

The history of this provision goes back to the last clause of Article
I of the 1935 Constitution which included "all territory over which the
present Government of the Philippine Islands exercises jurisdiction."
Section I of the first draft of the 1973 version updated the 1935 version
to read: "All the territory over which the Government of the Philippines
was exercising jurisdiction on July 4, 1946 as well as territory which

2l
The importance of including the Batanes islands within the Philippine archipelago will
become apparent when the "internal waters of the Philippines," as described in the second para-
graph of the article, are discussed. Quintero said: "The correct definition of archipelago is, it is a
sea studded with islands. In other words, an archipelago means sea plus islands. The sea seems to
be more important than the islands."
Sec. 1 ART. I - THE NATIONAL TERRITORY 15

22
said government has acquired or over which it has a right." The second
draft simplified the modification thus: "All other territories over which
the government of the Philippines has been exercising jurisdiction or
23
over which it has a right." T h e final 1973 version was the draft re-
ported out on February 1 7 , 1 9 7 2 .

It will be recalled that the last clause of Article I of the 1935 Con-
stitution was intended to ensure the inclusion of the Batanes Islands
within Philippine territory. In his sponsorship speech delivered on Feb-
ruary 1 1 , 1 9 7 2 , Delegate Custodio Villalva of Batanes said that the first
portion of Section 1 of the second draft saying "all other territories over
which the government of the Philippines has been exercising jurisdic-
tion" was a carry-over from the 1935 Constitution "expressed in the
imperfect or durative tense and intended to place the ten small islands
24
of the province of Batanes under the sovereignty of the Philippines."
Committee Report N o . 01 also said that the phrase found in the first
draft which referred to "territory which said government has acquired
or over which it has a right" was "intended to cover the claim to Sabah
which has been filed by the Republic of the Philippines, and the pos-
sible claim to F r e e d o m L a n d and the Marianas Islands." This comment
of Committee Report N o . 01 is also applicable to the clause in the sec-
ond draft which referred to all territory "over which (the Philippines)
has a right." T h u s , both the first and the second draft contained a clause
intended to cover the Batanes Islands, which certainly formed part of
Philippine territory, and all other territories over which the Philippines
might have a claim both then and in the future. The clause was inserted
in answer to the clamor to protect and ensure Philippine claim to terri-
tories not covered by prior treaties. The intent was to avoid forfeiture of
these claims by their omission from the constitutional definition.

The same intent was carried over into the final draft which said
"all the other territories belonging to the Philippines by historic right or
legal title." Committee Chairman Quintero said that the word "belong-
ing" was used both in the present and future sense: "now or later may
belong." By "historic right," Quintero said, Batanes belonged to the

"Session of February 14,1972.

"Villalva, besides going into some detail on the history of Batanes, also makes the claim
that mere retention of Article I of the 1935 Constitution would have the effect of excluding Batanes
from Philippine territory. This writer did not check whether Villalva's history is as bad as his law.
THE 1987 CONSTITUTION Sec. 1
16
OF THE REPUBLIC OF THE PHILIPPINES

Philippines because in all its history Batanes had always been a part of
the Philippines. By "historic right." he said, the Marianas Islands might
also belong to the Philippines depending on historical evidence. As for
Sabah, Quintero said that Philippine jurisdiction was based on "legal
title" perfected in 1962." "Legal title" was used to mean all accepted
26
legal modes of acquiring territory.
Briefly, then, the phrase "all other territories" was a catch-all used
to cover areas linked to the Philippines with varying degrees of certainty
and firmness. It covered Batanes, which undisputedly belonged to the
Philippines. It covered Sabah, over which the Philippines had filed
a formal claim. It covered the Marianas Islands and Freedom Land,
claim over which was under investigation. It covered any other territory
which the Philippines might acquire in the future through accepted
international modes of acquisition. T h e clause therefore w a s nothing
more than an insurance clause which could be meaningful only if
supported by title extraneous to the Constitution.

c. The territorial sea.

The territorial sea of a state, as distinct from its inland and internal
waters, consists of a marginal belt of maritime waters adjacent to the
base lines extending twelve nautical miles outward. Outside the territo-
rial sea are the high seas. A state exercises sovereignty over its territo-
rial sea subject to the right of innocent passage by other states. Innocent
passage is understood as passage not prejudicial to the interests of the
coastal state nor contrary to recognized principles of international law.
The traditional length of the territorial waters measured seawards, ac-
cording to the cannon-shot rule formulated in 1702, was three miles, the
effective range of 18th century defensive shore batteries. M o d e r n law,
however, now recognizes twelve nautical miles.

"Session of February 17, 1972. Delegates Quintero and JaJ Anni (Sulu) give the history
of the Sabah claim in Session of February 12, 1972. Delegate Amado S. Tolentino, Jr. (Oriental
Mindoro) expounds on the findings on the Marianas Islands and Delegate Geronimo M. Cabal
(Batanes) on the findings on Freedom Land in Session of February 14, 1972. Committee Report
No. 01 contains substantially the same material.
Immediate adverse reaction to the Convention claim over the Marianas Islands was sup-
plied by a visiting Guamanian senator. Sen. George M. Bamba, The Philippines Herald, February
21,1972,p.l.
"Under the 1935 Constitution, the Philippines may lawfully acquire territory not covered
by Article 1.1 A R U E G O 124-126.
Sec. 1 ART. I - THE NATIONAL TERRITORY 17

Two methods are used for fixing the starting point or baseline from
which the territorial belt is measured seawards: "1) the normal base-
line method, under which the breadth of the territorial sea is measured
from the low water-line, following the indentations of the coast; 2) the
straight baseline method, under which instead of the baseline follow-
ing the sinuosities of the coast, it is drawn as straight lines connecting
appropriate points on the coast, without departing to any appreciable
27
extent from the general direction of the coast."

Both the first and second draft of the 1973 article on national ter-
ritory contained the following provision: "All the waters beyond the
outermost islands of the archipelago within the boundaries set forth in
the treaties and convention mentioned in Section 1 hereof comprise the
territorial sea of the Philippines." The treaties and convention referred
to were those found in Article I of the 1935 Constitution. This proposed
provision represented the official position espoused by the Philippines
in international conventions and it is found in Republic Act N o . 3046
(1961) and Republic Act N o . 5446 (1968).

W h a t , then, was the extent of the territorial waters claimed by


the 1973 Constitution which antedated the 1982 Law of the Sea? The
final draft, unlike the first two drafts, simply claimed jurisdiction over
"the territorial waters," without making explicit the extent of the area
claimed. It must also be pointed out that the Convention was aware that
this claim, which extended Philippine territorial waters beyond the old
three mile rule, was something which had yet to be accepted in inter-
national circles. In his sponsorship speech delivered on February 11,
1972, Delegate Quintero reminded the delegates that no accord had yet
been reached on the breadth of the territorial sea and that the Philip-
pine government was preparing for an international conference on the
law of the sea in 1973 where "every effort will be exerted to get accord
28
on the breadth of the territorial sea." The hope, however, was also

" S A L O N C A A N D Y A P , PUBLIC INTERNATIONAL LAW 1 5 8 - 9 ( 1 9 6 6 ) , R.A. No. 3 0 4 6 and R.A. No.


5 4 4 6 draw straight baselines around the Philippines.
"Quintero added that the average breadth of territorial sea claimed by Republic Act 3 0 4 6
is only 115 miles. "The Republic of the Philippines believes that this is reasonable considering that
South American countries have declared their territorial seas to be 2 0 0 miles. ... And the United
States which wants the adoption of the territorial seas only six miles wide has established in the
Pacific Ocean the so-called safety identification zone. They have sectored 1 , 4 0 0 miles and they
can stop any traffic." They can control these aircrafts to identify itself and be subject to penalty if
it does not [sic]." Speech, Session of February 1 1 , 1 9 7 2 .
1 8 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

partly strengthened by the decision of the World Court in the Anglo-


Norwegian Fisheries Case" which upheld the straight baseline method
of fixing the territorial sea as unilaterally adopted by Norway. So indeed
the LOS would do in 1982.

Internal waters; the Archipelagic Principle


Both the first and the second draft of the 1973 article on national
territory contained the following provision: "All the waters around,
between and connecting the various islands of the Philippine archi-
pelago, irrespective of their widths and dimensions, are necessary ap-
purtenances of the land territory, forming part of the inland or internal
waters of the Philippines." An abbreviated version appeared in the final
draft: "The waters around, between and connecting the islands of the
archipelago, irrespective of their breadth and dimensions, form part of
the internal waters of the Philippines." This assertion, together with the
"straight base line method," form the "Archipelagic Principle."

The significance of this assertion lies in the meaning of "internal


waters." Internal or inland waters consist of all parts of the sea land-
wards from the baseline as well as inland rivers and lakes. All of them
are subject to the sovereignty of the state to the same extent that the land
domain is. Unlike territorial waters, they are not subject to the right of
innocent passage by other states.

This assertion over internal waters was a statement of an aspect of


the archipelagic principle which the Philippines, along with Indonesia,
had been espousing in international conferences. As early as 1955, the
Philippines projected this concept in a note verbale to the Secretary
General of the United Nations in the following language:

All waters around, between and connecting different islands


belonging to the Philippine archipelago, irrespective of their width
or dimension, are necessary appurtenances of the land territory,
forming an integral part of the national or inland waters, subject to
the exclusive sovereignty of the Philippines.

This concept, on June 17, 1 9 6 1 , was embodied in Republic Act


N o . 3046 whence it found its way into the 1973 Constitution in the

"I.C J. Reports (1951) 130. The argument from this case is by analogy and, therefore, only
as strong as the analogy. See Committee Report No. 01 and Speech of Delegate Lageui, Session
of February 14, 1972.
Sec. 1 ART. I - THE NATIONAL TERRITORY 19

hope that it would eventually gain international acceptance. Commit-


tee Report N o . 01 of 1973 said: " T h e inclusion in the new Constitution
of a provision spelling out the archipelagic principle of the Philippine
Government will certainly strengthen our historical position and will
help us in sustaining our archipelagic theory in the Convention on the
Law of the Sea in 1973 and in any case that may possibly be ventilated
before the World Court in the future."

T h e significance of this assertion on the extent of internal wa-


ters is that large bodies of water connecting the islands of the archi-
pelago — the Sibuyan Sea, the M i n d a n a o Sea, the Sulu Sea — would
be considered by the Philippines in the same light as rivers and lakes
found within the islands themselves. It should be noted, however, that
this assertion was envisioned to apply only to the waters connecting
the islands of the archipelago proper. It was not meant to apply to the
waters between the archipelago and "other territories belonging to the
30
Philippines."

" . . . the air space, the sub-soil, the sea-bed, the insular shelves
and the other submarine areas."

The first draft of the 1973 article contained the following provi-
sions:

Section 5. The sovereignty of the Philippines also extends to


the air space over its land territory and its territorial sea as well as
to its bed and sub-soil.
Section 6. The extent of the control that the Philippines ex-
ercises in the contiguous zone and the superjacent waters of the
continental shelf shall be determined by law.

T h e second draft came out thus:

Section 4. The sovereignty of the Philippines ... also extends


over the air space above its land areas, its internal waters and ter-
ritorial seas as well as to its sea-bed and sub-soil.

"See exchange between Delegate Quintero and Delegate Felixberto Serrano (Batangas),
Session of February 17,1972. Serrano said that if the internal waters include the "waters around"
the islands "irrespective of their breadth and dimensions", these waters would extend outward
indefinitely in all directions. Quintero answered that reference is merely to connecting waters. The
imperfection of the text, however, lends validity to Serrano's reading, ridiculous though it may be.
THE 1987 CONSTITUTION Sec. 1
20
OF THE REPUBLIC OF THE PHILIPPINES

Section 5. The National Assembly shall define the control


that the Philippines will exercise in the contiguous zone and in the
superjacent waters of the continental shelf.

Commenting on Section 4 of the second draft, Committee Report


No. 02 said that the provision on airspace was based on the provisions
of Articles 1 and 2 of the Convention on International Civil Aviation
adopted in Chicago in 1944. The Convention entered into force in 1974.
Thus, the present regime on air navigation has developed from the Chi-
cago Convention on International Civil Aviation (1944) which entered
into force in 1974. Articles 1 to 4 of the Convention set down the gov-
erning principles:

Article 1. Sovereignty
The contracting States recognize that every State has com-
plete and exclusive sovereignty over the airspace above its terri-
tory.
Article 2. Territory
For the purposes of this Convention the territory of a State
shall be deemed to be the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection or mandate of
such State.

The assertion under air space law was that sovereignty extended
to an unlimited extent, usque ad coelum. T h e development of the law on
outer space modified this assertion. Sovereignty over air space extends
only until where outer space begins. B u t where is that?

There is as yet no definite answer to that question. T h e answer


will eventually c o m e from technological capabilities of conventional
aircraft to reach greater heights. Different n u m b e r s ranging from fifty to
one hundred miles from the earth have been mentioned.

The provisions on the sea-bed and sub-soil were based on Article


2, Section 1 of the Convention on the Territorial Sea and Contiguous
Zone adopted in Geneva in 1958.

Commenting on Section 5, C o m m i t t e e Report N o . 02 said:

The Convention on the Territorial Sea and the Contiguous


Zone adopted by the Geneva Conference of 1958 allows a coastal
Sec. 1 ART. I - THE NATIONAL TERRITORY 21

state to exercise some control over the contiguous zone, which is


a part of the high seas. The Convention on the Continental Shelf
adopted by the Geneva Conference in 1958 allows a coastal state
to exercise over the continental shelf sovereign rights for certain
purposes. The control which the Philippines should exercise in the
contiguous zone and in the superjacent waters of the continental
shelf is the subject of study by the technical bureaus of the Phil-
ippine Government. Under the circumstances, the Committee on
National Territory believes that the matter of the extent of the con-
trol the Philippine Government should have in the contiguous zone
and in the continental shelf may be left to the National Assembly
for future decision.

It will be noted therefore that, while sovereignty is claimed over


the air space, sub-soil, sea-bed, the insular or continental shelves and
other submarine areas, the physical extent of these areas and the degree
of control claimed over these areas were left undefined. This indeter-
minate stance was preserved in the final 1973 version which simply
claimed "the air space, the sub-soil, the sea-bed, the insular shelves
other submarine areas" as part of Philippine territory. Determination,
31
in other w o r d s , was left to other modes than by constitutional precept.

32
5. 1982 Convention on the L a w of the Sea (LOS)

The 1987 Constitution was formulated while the Philippines was


already a party to the 1982 Convention on the Law of the Sea. The dis-
cussion of the 1982 Convention was not very thorough. However, since
the Convention has substantial provisions which help in the understand-
ing of the constitutional text, it is best to treat these before going on to
the 1987 version. Some important concepts found in the Convention are
archipelago, archipelagic state, archipelagic wears, baseline,

"Delegate Justiniano Hermoso (Bulacan, 2nd district) has a long disquisition on air space
in international law and on the continental shelf. Session of February 12, 1972. See also the ex-
changes on the continental shelf between Delegates Azcuna and Quintero, Session of February 14,
1972, and on air space between Delegates Hermoso and Rebeck Espiritu (Nueva Ecija), Session
of February 17, 1972. The all embracing character of "other submarine areas" is discussed in the
exchange among Delegates Serrano, Quintero, and Emmanuel Santos (Nueva Ecija), Session of
February 17,1972.
"Done at Montego Bay, Jamaica, December 10, 1982. Sixty parties are necessary for the
Convention to come into force. As of November 1990, forty-four had become parties.
22 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

Archipelago, archipelagic state


The Convention contains a definition of an archipelagic state,
which the Philippines is, and an archipelago. Article 46 says:

For the purpose of this Convention:


(a) "Archipelagic State" means a State constituted whol-
ly by one or more archipelagos and may include other islands;
(b) "Archipelago" means a group of islands, including
parts of islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters and oth-
er natural features form an intrinsic geographical, economic and
political entity, or which historically have been regarded as such.

It may be noted that under the above definition of an archipelago


Batanes should be considered part of the archipelago and not just of
other territories outside the archipelago. This conclusion has implica-
tions for the application of the archipelagic principle with reference to
the waters between Batanes and other islands of the territory which will
be discussed below.

The territorial sea.

The territorial sea of a state, as distinct from its inland and internal
waters, consists of a marginal belt of maritime waters adjacent to the
base lines extending twelve nautical miles outward. Outside the territo-
rial sea are the high seas.

The traditional length of the territorial waters measured seawards,


according to the cannon-shot rule formulated in 1702, was three miles,
the effective range of 18th century defensive shore batteries. The three
mile rule has now been discarded in favor of the twelve-mile rule now
found in Article 3 of the 1982 Convention on the L a w of the Sea.

W h e r e , however, the application of the twelve-mile rule to neigh-


boring littoral states would result in overlapping, the rule now estab-
lished is that the dividing line is a median line equidistant from the op-
posite baselines. But the equidistance rule does not apply where historic
title or other special circumstances require a different m e a s u r e m e n t . "

"Article 15,1982 LOS.


Baselines

To understand the extent of the territorial sea one must begin with
an understanding of baselines. T h e baseline is "the low-water line along
the coast as marked on large scale charts officially recognized by the
34
coastal Sate." The width of the territorial sea is measured from the
baseline.

There are two ways of drawing the baseline. The "normal" base-
line is one drawn following "the low-water line along the coast as marked
35
on large-scale charts officially recognized by the coastal State." This
line follows the sinuosities of the coast and therefore would normally
not consist of straight lines. There is no fixed norm for determining the
36
"low water m a r k " but the Anglo-Norwegian Fisheries Case suggested
that "for the purpose of measuring the breadth of the territorial sea, it
is the low-water mark as opposed to the high-water mark, or the mean
between the t w o tides, which has generally been adopted in the practice
of States. This criterion is the most favorable to the coastal State and
clearly shows the character of territorial waters as appurtenant to the
37
land territory."

Archipelagic States, however, instead of drawing "normal base-


lines," have drawn "straight baselines." Instead of following the sinu-
osities of the coast, straight lines are drawn connecting selected points
on the coast without appreciable departure from the general shape of
the coast. This method of drawing lines was first upheld in the Anglo-
Norwegian Fisheries Case. T h e case upheld the validity of the straight
baseline unilaterally adopted by Norway. Likewise, R.A. N o . 3046 and
R.A. N o . 5446 have drawn "straight baselines" around the Philippines.

The decision in the Fisheries Case upholding the "straight base-


line method" eventually became part of convention law. through Article
7(1) of the Convention on the Law of the Sea. The rule now is that in
localities where the coastline is deeply indented and cut into, or if there
is a fringe of islands along the coast in its immediate vicinity, the meth-
od of straight baselines joining appropriate points may be employed

" Section 5,182 LOS


"Article 5, Law of the Sea.
"U.K. v. Norway ICJ 1951.
"1951 ICJ 116,128.
24 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

in drawing the baseline from which the breadth of the territorial sea is
38
measured.
The provision on baselines found in Article 47 of the 1982 Con-
vention are the following:

1. An archipelagic State may draw straight archipelagic


baselines joining the outermost points of the outermost islands and
drying reefs of the archipelago provided that within such baselines
are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nauti-
cal miles, except that up to 3 per cent of the total number of base-
lines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipela-
go.
4. Such baselines shall not be drawn to and from low-
tide elevations, unless lighthouses or similar installations which
are permanently above sea level have been built on them or where
a low-tide elevation is situated wholly or partially at a distance not
exceeding the breadth of the territorial sea of another State.

5. The system of such baselines shall not be applied to an


archipelagic State in such a manner as to cut-off from the high seas
or the exclusive economic zone the territorial sea of another State.

6. If a part of the archipelagic waters of an archipelagic


State lies between two parts of an immediately adjacent neighbor-
ing State, existing rights and all other legitimate interests which
the latter State has traditionally exercised in such waters and all
rights stipulated by agreement between those States shall continue
and be respected.

7. For the purpose of computing the ratio of water to land


under paragraph 1, land areas may include waters lying within the
fringing reefs of islands and atolls, including that part of a steep-
sided oceanic plateau which is enclosed or nearly enclosed by a

'See also 1958 Territorial Sea Convention.


Sec. 1 ART. I - THE NATIONAL TERRITORY 25

chain of limestone islands and drying reefs lying on the perimeter


of the plateau.

8. The baselines drawn in accordance with this article


shall be shown on charts of a scale or scales adequate for ascertain-
ing their position. Alternatively, lists of geographical co-ordinates
of points, specifying the geodetic datum, may be substituted.

9. The archipelagic State shall give due publicity to such


charts or lists of geographical co-ordinates and shall deposit a copy
of each such chart or list with the Secretary-General of the United
Nations.

Article 47 is both a solution and a problem. Two observations


intimately interconnected need to be m a d e . First, paragraph 1 affirms
the use of "straight baselines" as practiced by the Philippines. How-
ever, paragraph 2 prescribes that "straight baselines" may not exceed a
m a x i m u m of 125 nautical miles. S o m e of the lines drawn by Republic
Act N o . 3046 and Republic Act N o . 5446 extend beyond 125 nautical
39
miles.

At the time of the publication of this edition of the Commentary,


Congress was in the process of re-drafting the baselines in order to con-
form to the requirement of the Convention on the Law of the Sea and to
deal with the territorial disputes over areas claimed by the Philippines.

Sovereignty over territorial waters

A state exercises sovereignty over its territorial sea subject to the


right of innocent passage by other States. Innocent passage is under-
stood as passage not prejudicial to the interests of the coastal state nor
contrary to recognized principles of international law. Article 19(2)
enumerates acts that are not considered innocent passage thus:

2. Passage of a foreign ship shall be considered to be


prejudicial to the peace, good order or security of the coastal State
if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, ter-
ritorial integrity or political independence of the coastal State, or

"See C O Q U I A , DEVELOPMENT OF THE ARCHIPELAGIC DOCTRINE AS A RECOGNIZED PRINCIPLE OF


INTERNATIONAL LAV/, 58 PHIL. LJ. 13,26 (1983).
26 THE 1987 CONSTTTUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

in any other manner in violation of the principles of international


law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the preju-
dice of the defense or security of the coastal State;
(d) any act of propaganda aimed at affecting the defense
or security of the coastal State;
(e) the launching, landing or taking on board of any air-
craft;
(f) the launching, landing or taking on board of any mili-
tary device;
(g) the loading or unloading of any commodity, currency
or person contrary to the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this
Convention;
(i) any fishing activities;
0) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of com-
munication or any other facilities or installations of the coastal
State;
(1) any other activity not having a direct bearing on pas-
sage.

Coastal states have the unilateral right to verify the innocent char-
acter of passage, and it may take the necessary steps to prevent passage
that it determines to be not innocent.

Archipelagic waters

Article I of the 1973 Constitution said: " T h e waters around,


between and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters of
the Philippines." This assertion, together with the "straight base line
method," form the "Archipelagic Principle." This now also found in the
1987 Constitution.

The significance of this assertion lies in the meaning of "internal


waters." Internal or inland waters consist of all parts of the sea land-
Sec. 1 ART. I - THE NATIONAL TERRITORY 27

wards from the baseline as well as inland rivers and lakes. All of them
are subject to the sovereignty of the state to the same extent that the land
domain is. Unlike territorial waters, they are not subject to the right of
innocent passage by other states.

Article 8(2) the 1982 Convention, however, says: "Where the es-
tablishment of a straight baseline in accordance with the method set
forth in Article 7 has the effect of enclosing as internal waters areas
which had not previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those waters." Ar-
ticle 53 of the Convention refers to this type of internal water as "ar-
chipelagic waters" and says that "[a]n archipelagic State may designate
sea lanes and air routes thereabove, suitable for the continuous and ex-
peditious passage of foreign ships and aircraft through or over its archi-
pelagic waters and the adjacent territorial sea." In effect, therefore, the
Law of the Sea provision establishes a right of innocent passage over
waters which the Philippine Constitution considers as internal.

Aware of this possible conflict, the Philippine government, in sign-


40
ing the Law of the Sea Convention, made the following reservation:

1. The signing of the Convention by the Government of


the Republic of the Philippines shall not in any manner impair or
prejudice the sovereign rights of the Republic of the Philippines
under and arising from the Constitution of the Philippines;
2. Such signing shall not in any manner affect the sover-
eign rights of the Republic of the Philippines as successor to the
United States of America, under and arising out of the Treaty of
Paris between Spain and the United States of America of Decem-
ber 10, 1988, and the Treaty of Washington between the United
States of America and Great Britain of January 2, 1930;
3. Such signing shall not diminish or in any manner af-
fect the rights and obligations of the Contracting Parties under the
Mutual Defense Treaty between the Philippines and the United
States of America of August 30,1951, and its related interpretative
instruments; nor those under any pertinent bilateral or multilateral
treaty or agreement to which the Philippines is a party;

"U.N Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin. Special
Issue 1, March 1987, Annex II, p. 6, quoted in S W E E N E Y , O L I V E R , L E E C H , THE INTERNATIONAL SrsrEU
193 (3rd Ed. 1988).
28 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

XXX XXX xxx


6. The provisions of the Convention on archipelagic pas-
sage through sea lanes do not nullify or impair the sovereignty of
the Philippines as an archipelagic State over the sea lanes and do
not deprive it of authority to enact legislation to protect its sover-
eignty, independence, and security;
7. The concept of archipelagic waters is similar to the
concept of internal waters under the Constitution of the Philip-
pines, and removes straits connecting these waters with the eco-
nomic zone or high sea from the rights of foreign vessels to transit
passage for international navigation;

The reservation, however, may be seen as merely ad cautelam.


The claim made in the Constitution took effect in 1973 before the 1982
Law of the Sea Convention was formulated. Article 8(2) of the Conven-
tion itself says that the new rule on archipelagic waters applies only to
"areas which had not previously been considered a s " internal waters.

Insular shelf

The continental shelf, archipelagic or insular shelf for archipela-


gos, refers to (a) the seabed and subsoil of the submarine areas adjacent
to the coastal state but outside the territorial sea, to a depth of two hun-
dred meters or, beyond that limit, to where the depth allows exploitation,
and (b) the seabed and subsoil of areas adjacent to islands. T h e coastal
state has the right to explore and exploit its natural resources, to erect
installations needed, and to erect a safety zone over its installations with
a radius of 500 meters. T h e right does not affect the right of navigation
of others. Moreover, the right does not extend to non-resource material
in the shelf area such as wrecked ship and their cargoes.

6. National Territory in the 1987 Constitution.

On June 2 6 , 1986, T h e C o m m i t t e e on P r e a m b l e , National Ter-


ritory and Declaration of Principles presented the following draft on
National Territory:

The national territory comprises the Philippine archipelago,


with all the islands and waters embraced therein, and all other ter-
ritories belonging to the Philippines by historic right or legal tide,
including the territorial sea, the air space, the subsoil, the sea-bed,
Sec. 1 ART. I - THE NATIONAL TERRITORY 29

the insular shelves, and the other submarine areas over which the
Philippines has sovereignty or jurisdiction. The waters around, be-
tween and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters
of the Philippines.

Sovereignty or jurisdiction of the Philippines shall also ex-


tend to straits connecting these waters with the economic zone pro-
vided for in the Convention on the Law of the Sea.

It will be noted that the first paragraph was an exact reproduction


of the 1973 text. T h e second paragraph was new and m a d e reference to
the 1982 Convention of the L a w of the Sea.

The concept and territorial space embodied in the phrase "Phil-


ippine Archipelago" has been left untouched by the 1987 text. The
deliberations of the 1986 Constitutional Commission focused on: (1)
whether to have a provision on national territory; (2) what posture to
take relative to Sabah as covered by the clause "all other territories be-
long to the Philippines by historic right or legal title"; and (3) how the
definition of territory would relate to the 1982 Convention on the Law
of the Sea.

T h e first issue, which c a m e almost as a side issue, was resolved


easily enough. M u c h of the 1972 debate on whether to have an article
on national territory at all was repeated in the 1986 Constitutional Com-
mission. In the end there was recognition of the fact that such an article
would have an educational value and there was apprehension that it
would be difficult to explain why after the 1935 and 1973 provisions on
41
national territory the new Constitution should fail to provide for one.

The second issue was debated per longum et latum with a certain
degree of warmth even if it was not always clear what individual dele-
gates, including the sponsor, wanted. The second was not so thoroughly
discussed, and nothing conclusive was put down in writing. Both of
these, however, need some discussion.

«'I RECORD 306-312; Journal of July 2,1986.


30 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

a. "all other territories over which the Philippines has sover-


eignty or jurisdiction."
In the 1986 Constitution, 1973's "all other territories belonging
to the Philippines by historic right or legal title" gave way to "all other
territories over which the Philippines has sovereignty or jurisdiction."
The debates on the subject were prolonged and emotionally intense but
42
easily summarized. Those who proposed to retain the 1973 phraseol-
ogy basically wanted to avoid the impression of constitutional abandon-
ment of the Philippine claim to Sabah. Those who espoused the new
phraseology, however, contended that as worded the new phraseology,
while prescinding from any international claim, did not mean abandon-
ment of any claim which might be justifiable under generally accepted
principles of international law to which the nation subscribes.

The original phraseology proposed as substitute for the 1974 ver-


sion read thus: " . . . and all other territories over which the government
exercises sovereign jurisdiction." After m u c h debate and explaining
that the phrase was not an abandonment of any unsettled Philippine
claim, the proposal was approved on second reading by a nominal vote
margin of 24-9. When the matter c a m e up for third reading, however,
on the night of July 9, 1986, the resulting vote was 2 2 - 1 1 , short of the
required majority of all the m e m b e r s of the C o m m i s s i o n .

The principal stumbling block to final approval, articulated by


Commissioner Roberto Concepcion, was the phrase "exercises sover-
eign jurisdiction." It was argued that the phrase could easily be read to
mean that territory not under the effective control of the Philippines,
such as Sabah, would not be part of the Philippines. Because of this
argument, and with the help of the suspension of rules, the matter was
reopened on July 10, 1986, for the sole purpose of returning to sec-
ond reading situation in order to introduce a very specific rephrasing.
Father Joaquin Bernas, formulator and sponsor of the original amend-
ment, introduced the new phraseology: "and all other territories over
which the Philippines has sovereignty or jurisdiction." It was explained
that the word " h a s " was of broader scope than "exercises" so that it
clearly allowed juridical retention of a territory even w h e n it was physi-
cally wrested by a stronger force. T h e phrase was explained to import

"See Journals of July 3 , 7 , 9 , and 10,1986; I RECORD 320-332,412-419,424429.


Sec. 1 ART. I - THE NATIONAL TERRITORY 31

a durative sense, that is, it included any territory over which the Philip-
pines then had sovereignty or jurisdiction, even if such territory should
temporarily be controlled by an invading force, and any other territory
over which the Philippines might establish sovereignty or jurisdiction
in the future. It clearly therefore did not abandon any claim to Sabah or
to any other territory but left all such matters to determination through
international processes. The intent was to more effectively allay the
fears of those w h o saw the abandonment of the 1973 language as an
abandonment of the Sabah claim since the Philippines did not actually
exercise jurisdiction over Sabah. T h e 1973 phraseology had acquired a
historic meaning as e m b o d y i n g a claim to Sabah which, while harming
diplomatic relations with Malaysia, did not add any more force to the
Philippine claim. T h e new phraseology had the advantage of avoiding
a phraseology which was offensive to Malaysia while not foreclosing
any claim to Sabah. Moreover, it was meant to take care of a situation
where an invading force might take away from the Philippines tempo-
rary control over all or a portion of its territory.

Even with such explanations, however, there were some firm


hold-outs. W h e n the change was put to a vote, the result was 38 in favor
43
and 2 against.

c. " . . . its terrestrial, fluvial, and aerial domains, including the


territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas thereof."

This rephrasing was authored by Commissioner Adolfo Azcuna in


order to introduce a logical sequencing and a summary of the elements
that m a k e up the Philippine territory. It was not meant to and does not
add anything to the substance of what was already contained in the
44
1973 definition. Azcuna elaborated on it thus:

The terrestrial domain includes all surfaces of land above


the sea that belong to the Philippines. These are the ones included
within the base lines of the archipelago.

"On subsequent second reading, the vote was 39-3, and on third reading 39-4.1 RECORD
428429.
"See Journal of July 2,1986; I RECORD 305.
32 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

The fluvial domain includes the inland waters: bays and riv-
ers, streams, as well as internal waters or the waters of the sea,
landwards from the baselines.
The aerial domain of the Philippines includes the air directly
above its terrestrial and fluvial domains. All the air that lies above
our land territory and our water territory belongs to us, all the way
up to outer space where there is no more air. ... The aerial domain
extends up to where outer space begins, directly over our land and
water territories.
Then we specify that our national territory includes the ter-
ritorial sea, the seabed, the subsoil — again we rearranged the se-
quence here, the territorial sea comes first — this is the margin or
belt of maritime waters adjacent to our base lines up to the extent
of 12 nautical miles. It is a belt surrounding our base lines sea-
ward. Whether we like it or not, international law imposes a ter-
ritorial sea in every country that has waters. Under the territorial
sea is the seabed, which also belongs to us. And then the insular
shelves or the continental shelf, meaning the submarine area that
is directly under the water beyond the territorial sea, up to the edge
of the continental margin, regardless of the depth of the superja-
cent waters. Under international law, the continental shelf; namely,
the seabed and subsoil of the submarine area, belongs to us. This
includes not only the continental shelf of individual islands but
[also] the archipelagic shelves and the other submarine areas over
which the Philippines has sovereignty or jurisdiction — this is true
in the old provision. This was intended to cover any other areas
that also belong to us, such as the continental slope or the conti-
nental margin, over which we have jurisdiction or sovereignty....

It will be noted that the explanation m a d e by Commissioner A z -


cuna follows closely the terms of the 1982 Convention on the L a w of
the Sea. To begin with, Article 2 of the Convention says:

1. The sovereignty of a coastal State extends, beyond its


land territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea, described
as the territorial sea.

2. This sovereignty extends to the air space over the ter-


ritorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised


subject to this Convention and to other rules of international law.
Sec. 1 ART. I - THE NATIONAL TERRITORY 33

7. S u m m a r y and Conclusion.

Like the 1934-1935 Convention, the 1971 Convention did not


claim that a constitutional provision standing by itself is binding in-
ternational law. During the 1973 debates on the provision on national
territory, the local newspapers played up the intent of the Convention
to secure the claim to Sabah and the possible claim to the Marianas
Islands and F r e e d o m Land. T h e impression was easily given that, by
a unilateral act, the Convention was attempting to add new territory to
what was defined in the 1935 Constitution. It is clear from a study of
Convention records, however, that there was no such attempt. But the
1973 language tended to admit such an interpretation. The 1987 lan-
guage attempts to remedy the misimpression.

T h e only clear claim m a d e by the 1971 Convention of the power


unilaterally to delimit territorial boundaries was with respect to inland
and territorial waters. But even in this, the Convention was merely pur-
suing the Republic's existing official policy of pushing for international
acceptance of the archipelagic principle. It was a claim therefore which
the Convention realized must be submitted to determination by interna-
tional convention.

Is the Philippine territory bigger because of the new article on


national territory? Not really. The Treaty of Paris is the 1935 Consti-
tution's principal point of reference for the delineation of Philippine
territory. Although the 1973 and 1987 Constitutions make no mention
of the Treaty of Paris or any other treaty, the Philippine archipelago
of the new Constitution is, according to the sponsors of the provision,
also the archipelago of the Treaty of Paris. If the present provision ac-
complishes anything at all, its omission of any mention of the Treaty of
Paris in the new Constitution only succeeds in putting the Philippines in
an ambiguous if not embarrassing position. On the one hand, it wishes
to be washed clean of the colonial taint of the treaty; on the other hand,
it claims the longitude and latitude lines of the treaty as the rightful
boundaries of the archipelago and of its territorial waters.

The 1973 Constitution affirmed Philippine title to the Batanes Is-


lands by "historic right." But this too was adequately covered by the
last clause of Article I of the 1935 Constitution. Under the 1987 Consti-
tution, it certainly is covered by the clause "other territories over which
the Philippines has sovereignty or jurisdiction." Moreover, under the
34 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

definition of an archipelago in Article 46 of the 1982 Convention on


the Law of the Sea, the Batanes Islands can be considered part of the
archipelago.
The 1973 Constitution ensured the possibility of claiming other
territories on the basis of "historic right or legal title." In this, it merely
affirmed what the Republic had been doing under the 1935 Constitu-
tion. The 1987 version prescinds from the question and relies on gen-
erally accepted principles of international law which recognizes legal
modes of establishing legal claim to territory. If Sabah, the Marianas,
and Freedom Land should eventually be recognized by the world as
annexed to the Philippines, it will be in virtue of "historic right or legal
title" independent of the 1973 or 1987 Constitution.

The extent and degree of control over territorial waters, internal


waters, air-space, sea-bed, sub-soil, insular shelves and other submarine
areas cannot, in our modern world, be determined with finality by a uni-
lateral fiat. Of this the 1971 Convention was well aware when it enacted
the new provision. So was the 1986 Constitutional Commission. H o w -
ever, to the extent that the provisions of Article 47 of the 1982 Conven-
tion on the Law of the Sea might conflict with Philippine constitutional
law and rights based on treaties, such provisions are repudiated.

What then did the 1973 provision gain for the Philippines? A se-
curity blanket, a rhetorical assertion of historic identity, "decolonializa-
tion" on paper, and an embarrassing muddling of Philippine position
towards the Treaty of Paris.

As to the 1987 version, it merely removed language possibly of-


fensive to an A S E A N neighbor and achieved a m o r e logical sequencing
of the elements that m a k e up the territory but preserved everything else
found in the 1973 Constitution.
ARTICLE II

DECLARATION OF PRINCIPLES AND


STATE POLICIES

PRINCIPLES

SECTION 1. THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN


STATE. SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT
AUTHORITY EMANATES FROM THEM.

1. Title of the Article.

The counterpart of this article in the 1935 Constitution was sim-


ply entitled "Declaration of Principles." Its place in the constitutional
scheme was described by Vicente Sinco thus:'

This portion of the Constitution might be called the basic


political creed of the nation. It lays down the policies that the gov-
ernment is bound to observe. With the exception of Section 2 [now
Section 4,1987 Constitution], which refers to the duty of the citi-
zen to serve the State, these provisions prescribe the fundamen-
tal obligations of the government, particularly the legislative and
executive departments as its policy determining organs. It is in-
cumbent on the people to demand fulfillment of these government
duties through the exercise of the right of suffrage. But indirectly
some of these principles may aid the courts in determining the va-
lidity of statutes or executive acts in justiciable cases.

'SINCO, PHILIPPINE POLITICAL LAW 116 (11th Ed., 1962).

35
36 T H E 1987 C O N S T I T U T I O N Sec. 1
O F T H E REPUBLIC O F T H E PHILIPPINES

In general, therefore, the 1935 provisions were not intended to


be self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the legis-
lature. If the executive and the legislature failed to heed the directives
of the article, the available remedy was not judicial but political. The
electorate could express their displeasure with the failure of the execu-
tive and the legislature through the language of the ballot.

This is not to say, however, that the provisions did not have their
usefulness in litigation. They also obligated the judiciary to be guided
by the provisions in the exercise of the power of judicial review. T h u s ,
for instance, the principle of "social justice" enunciated in Section 5 of
the 1935 Declaration of Principles revolutionized judicial attitude to
the right of property and to the powers of government in relation to the
2
regulation of property. And the same principle has had and continues to
have a profound and pervasive impact on the developing jurisprudence
on property rights and social and welfare legislation.

The 1973 Constitution changed the title of the article to "Declara-


tion of Principles and State Policies." The change in the title, however,
did not effect an intent different from that of the Declaration of Prin-
ciples of the 1935 Constitution. As the Committee on Declaration of
3
Principles and Ideologies reported:

There are inherent limits to constitution making, however,


that we accept. For a new constitution does not mean an instant
and reformed social order. The unity between thought and action,
between principles and programs, between goals and implementa-
tion will be ascertained by time, the commitment of the Filipino
people and the responsiveness both of the government structure
and the men in positions of power in the next two decades.
Nonetheless, we can never under-estimate the power of
ideas to institute change.

2
The earlier cases on this subject are discussed in B E R N A S , A HISTORICAL AND JURIDICAL STUDY
OF THE PHILIPPINE BILL OF RIGHTS 46-8,103-5 (1971).
'Committee on Declaration of Principles and Ideologies, Report No. 1, as Amended. The
Report originally entitled the article "Directive Principles and State Policies" apparently in imita-
tion, among others, of the Indian Constitution.
The Indian Constitution's "Directive Principles of State Policy," Articles 36-51, in turn has
been borrowed from the Irish and the Spanish Constitutions. J Jsf. P A N D E Y , CONSTITUTIONAL LAW OF
INDIA 225.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

The directives are therefore a source of rights in the same


way the present declaration of principles are [sic]. But such rights
will depend on the circumstances and questions involved in each
case.

The Declaration of Principles and State Policies of the 1987 Con-


stitution ballooned from the five sections of 1935 and the ten sections of
1973 to twenty-eight sections. T h e 1987 provisions were written in the
same spirit as their counterparts in the 1935 and 1973 Constitutions; but
there was an attempt to distinguish "principles" from "policies." The
"principles" are binding rules which must be observed in the conduct
of government whereas "policies" are guidelines for the orientation of
4
the state. In fact, however, the distinction is of little significance be-
cause not all of the six "principles" are self-executory and some of the
5 6
"policies" already anchor justiciable rights. Kilosbayan v. Morato, for
instance, read Sections 5 , 1 2 , 1 3 and 17 as mere "guidelines" which do
not yet confer rights enforceable by the courts but recognized Section
16 as a righ conferring provision because it speaks of "the right of the
people."
7
In Tanada v. Angara, a case involving possible conflict of the
General Agreement on Tariff and Trade with the natonalistic provisions
of Article II, the Supreme Court m a d e this statement:

By its very title, Article II of the Constitution is a "declara-


tion of principles and state policies." The counterpart of this article
in the 1935 Constitution is called the "basic political creed of the
nation" by Dean Vicente Sinco. These principles in Article II are
not intended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan vs. Morato, the principles and state policies enumer-
ated in Article II and some sections of Article XII are not "self-ex-
ecuting provisions, the disregard of which can give rise to a cause
of action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation."

4
See IV RECORD OF THE CONSTITUTIONAL COMMISSION 768 and 580.
5
See e.g., the right to ecological balance in Section 15, infra.
"G.R. No. 118910, November 16, 1935, on reconsideration.
7
G.R.No. 118295, May 2,1997.
38 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

The statement, however, is less than exact when applied to the


1987 version. Whether or not a provision in it is self-executing depends
on the way it is formulated. For instance, as already seen, the right to a
healthful environment asserted in Section 16 was deemed by the Court
8
to be an enforceable right without need for further legislation. But
Time and again, the Court has ruled that the social justice provisions
of the Constitution are not self-executing principles ready for enforce-
ment through the courts. They are merely statements of principles and
policies. To give them effect, legislative enactment is required. They do
not embody judicially enforceable constitutional rights but guidelines
9
for legislation.

2. Definition and elements of "state."

The Philippines is a state and all that being a state means in the
10
international scene:

The states are the repositories of legitimated authority over


peoples and territories. It is only in terms of state powers, preroga-
tives, jurisdictional limits and law-making capabilities that territo-
rial limits and jurisdiction, responsibility for official actions, and a
host of other questions of co-existence between nations can be de-
termined. It is by virtue of their law-making power and monopoly
that states enter into bilateral and multilateral compacts, that wars
can be started or terminated, that individuals can be punished or
extradited.

States come in various shapes and sizes and vary immensely in


their cultures, forms of government, natural resources, language and a
host of other attributes. But custom has c o m e to recognize the essen-
tial attributes which m a k e an entity a state, whatever its shape or size
or the color of its inhabitants might b e . These were s u m m e d up in the
Montevideo Convention of 1933 which said in Article I: "The state as a
person of international law should possess the following qualifications:
a) a permanent population; b) a defined territory; c) government; and d)
capacity to enter into relations with other states." Or, as the Restatement

"Oposa v. Factoran, Jr., 224 SCRA 792 (1993).


"BFAR Employees v.COA.G.R.No. 169815, August 13,2008.
' " F R I E D M A N , THE CHANGING STRUCTURE OF INTERNATIONAL LAW 213-214 (1964), in HENKIN,

S C H A C H T E R & S M I T , INTERNATIONAL LAW: CASES AND MATERIALS 229 ( 1987, 2nd Ed.).
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

(Third) on the Foreign Relations Law of the United States enumerates


them: "(a) sovereignty over its territory and general authority over its
nationals; (b) status as a legal person, with capacity to o w n , acquire and
transfer property, to m a k e contracts and enter into international agree-
ments, to b e c o m e a m e m b e r of international organizations, and to pur-
sue, and be subject to, legal remedies; (c) capacity to join with other
states to m a k e international law, as customary law or by international
11
agreement."

H e n c e , the definition of the concept "state" which has found cur-


rency a m o n g Philippine writers is this: it is a community of persons
more or less n u m e r o u s , permanently occupying a definite portion of
territory, independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual obe-
dience. C o m m e n t a t o r s , following the Montevideo Convention of 1933,
break down the concept into four elements: people, territory, sovereign-
ty, government.

Commentators are also in the habit of distinguishing "state" from


"nation" and it is pointed out that the state is a legal concept while a
nation is a racial or ethnic concept. While the distinction may be useful
for purposes of political sociology, it is of little consequence for pur-
poses of constitutional law. T h e 1935 and 1973 Preambles themselves
spoke of the "patrimony of our nation" and it is not to be supposed that
"nation" in this context should be limited to one racial or ethnic group.
Likewise, the President under the 1935 Constitution had the duty of
giving Congress information on the "state of the Nation." Indeed, it
would have been awkward for the Constitution to have said "state of
the State"; but if it had so stated, the sense would have been the same.
Similarly, the word "national" appears in the 1987 Constitution, as it
did in the 1973, in a context that does not limit the word to an ethnic
concept. The legislature, under the original 1973 Constitution, was the
National Assembly. Article XII is entitled "National Economy and Pat-
rimony." For purposes of the Constitution, therefore, the word state is
interchangeable with nation. In fact, a decision of the Supreme Court,
discussing what makes a foreign country a state in the legal sense, used
2
nation and state interchangeably. The Supreme Court said:'

"Restatement §206.
'^Collector of Internal Revenue v. Campos Rueda, 42 SCRA 23,28-9 (1971).
40 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

It does not admit of doubt that if a foreign country is to be


identified with a state, it is required in line with Pound's formula-
tion that it be a politically organized sovereign community inde-
pendent of outside control bound by ties of nationhood, legally
supreme within its territory, acting through a government func-
tioning under a regime of law. It is thus a sovereign person with
the people composing it viewed as an organized corporate society
under a government with the legal competence to exact obedience
to its commands. It has been referred to as a body-politic organized
by common consent for mutual defense and mutual safety and to
promote the general welfare. Correctly, it has been described by
Esmein as "the juridical personification of the nation." This is to
view it in the light of its historical development. The stress is on its
being a nation, its people occupying a definite territory, politically
organized, exercising by means of its government its sovereign
will over the individuals within it and maintaining its separate in-
ternational personality. Laski could speak of it then as a territo-
rial society divided into government and subject, claiming over
its allotted area a supremacy over all other institutions. Mclver
similarly would point to the power entrusted to its government to
maintain within its territory the conditions of a legal order and to
enter into international relations. With the latter requisite satisfied,
international law does not exact independence as a condition of
statehood. So Hyde did opine.

3. Id.; "People."

As an element of a state, "people" simply means a community of


persons sufficient in number and capable of maintaining the continued
existence of the community and held together by a c o m m o n bond of
law. It is of no legal consequence if they possess diverse racial, cultural,
or economic interests.

The word "people" appears several times in the Constitution. T h e


Preamble attributes the authorship of the Constitution to "the sovereign
Filipino people." Article II mentions people several times. T h e Bill of
Rights also uses the word several times. T h e meaning of the word in
each case depends on the context where it is found.

The second sentence of Section 1 says that sovereignty "resides


in the people and all government authority emanates from t h e m . "
The word "people" in this context has reference to the segment of the
political society wherein legal sovereignty lies. H e n c e , as will be shown
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 41
Principles

later, it has reference to the electorate or to that segment of the political


community which can establish or alter the fundamental law.

4. Id.; "Territory."

A definite territory, consisting of land and waters and the air space
above them and the submarine areas below them, is another essential
element of the m o d e m state. A n d as the Restatement (Third) on the
Foreign Relations Law of the United States explains: "An entity may
satisfy the territorial requirement for statehood even if its boundaries
have not been finally settled, if one or more of its boundaries are dis-
puted, or if s o m e of its territory is claimed by another state. An entity
does not necessarily cease to be a state even if all its territory has been
occupied by a foreign p o w e r or if it has otherwise lost control of its ter-
13
ritory temporarily."

T h e extent of Philippine territory is defined in Article I of the Con-


stitution. T h e character of the power which the Philippines has over its
territory was the subject of Reagan v. Commissioner of Internal Rev-
enue. Petitioner in this case disputed the payment of the income tax
assessed on him by the respondent on a sale of an automobile transacted
at the Clark Field Air Base at Pampanga. His contention was that the
United States Military Base was outside Philippine territory. The Court,
14
rejecting his claim, said:

Nothing is better settled than that the Philippines being


independent and sovereign, its authority may be exercised over
its entire domain. There is no portion thereof that is beyond its
power. Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it ap-
plies must submit to its terms. That is the extent of its jurisdiction,
both territorial and personal. Necessarily, likewise, it has to be ex-
clusive. If it were not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express
or implied, submit to a restriction of its sovereign rights. There
may thus be a curtailment of what otherwise is a power plenary
in character. That is the concept of sovereignty as auto-limitation,

, 3
| 201. U.S. courts generally view the Restatement as the most authoritative scholarly
statement of contemporary international law.
I4
30 SCRA 968,973-5 (1969). Footnotes have been omitted. The same doctrine is reiter-
ated in People v. Gozo, 53 SCRA 476 (October 26,1973).
THE 1987 CONSTITUTION Sec
OF THE REPUBLIC OF THE PHILIPPINES

which, in the succinct language of Jellinek, "is the property of a


state-force due to which it has the exclusive capacity of legal self-
determination and self-restriction." A state then, if it chooses to,
may refrain from the exercise of what otherwise is illimitable com-
petence.
Its laws may as to some persons found within its territory no
longer control. Nor does the matter end there. It is not precluded
from allowing another power to participate in the exercise of ju-
risdictional right over certain portions of its territory. If it does so,
it by no means follows that such areas become impressed with an
alien character. They retain their status as native soil. They are
still subject to its authority. Its jurisdiction may be diminished, but
it does not disappear. So it is with the bases under lease to the
American armed forces by virtue of the military bases agreement
of 1947. They are not and cannot be foreign territory.
Decisions coming from petitioner's native land, penned by
jurists of repute, speak to that effect with impressive unanimity.
We start with the citation from Chief Justice Marshall, announced
in the leading case of Schooner Exchange v. M'Faddon, an 1812
decision: "The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no limita-
tion not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sover-
eignty to the extent of the restriction, and an investment of that
sovereignty to the same extent in that power which could impose
such restriction." After which came this paragraph: "All excep-
tions, therefore, to the full and complete power of a nation within
its own territories, must be traced up to the consent of the nation
itself. They can flow from no other legitimate source."

Chief Justice Taney, in an 1857 decision, affirmed the fun-


damental principle of everyone within the territorial domain of a
state being subject to its commands: "For undoubtedly every per-
son who is found within the limits of a government, whether for
temporary purposes or as a resident, is bound by its laws." It is
no exaggeration then for Justice Brewer to stress that the Unit-
ed States government "is one having jurisdiction over every foot
of soil within territory, and acting directly upon each [individual
found therein]; x x x."

Not too long ago, there was a reiteration of such a view, this
time from the pen of Justice Van Devanter. Thus, "It now is settled
in the United States and recognized elsewhere that the territory
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

subject to its jurisdiction includes the land areas under its dominion
and control the ports, harbors, bays, and other enclosed arms of the
sea along its coast, and a marginal belt of the sea extending from
the coast line outward a marine league, or 3 geographic miles." He
could cite moreover, in addition to many American decisions, such
eminent treatise writers as Kent, Moore, Hyde, Wilson, Westlake,
Wheaton and Oppenheim.

As a matter of fact, the eminent commentator Hyde in his


three-volume work on International Law, as interpreted and ap-
plied by the United States, made clear that not even the embassy
premises of a foreign power are to be considered outside the ter-
ritorial domain of the host state. Thus: "The ground occupied by
an embassy is not in fact the territory of the foreign State to which
the premises belong through possession or ownership. The law-
fulness or unlawfulness of acts there committed is determined by
the territorial sovereign. If an attache commits an offense within
the precincts of an embassy, his immunity from prosecution is not
because he has not violated the local law, but rather for the reason
that the individual is exempt from prosecution. If a person not so
exempt, or whose immunity is waived, similarly commits a crime
therein, the territorial sovereign, if it secures custody of the of-
fender, may subject him to prosecution, even though its criminal
code normally does not contemplate the punishment of one who
commits an offense outside the national domain. It is not believed,
therefore, that an ambassador himself possesses the right to exer-
cise jurisdiction, contrary to the will of the State of his sojourn,
even within his embassy with respect to acts there committed. Nor
is there apparent at the present time any tendency on the part of
States to acquiesce in his exercise of it."

5. Id.; "government"; definitions and functions.

Government, as an element of a state, is defined as "that institu-


tion or aggregate of institutions by which an independent society makes
and carries out those rules of action which are necessary to enable men
to live in a social state, or which are imposed upon the people forming
that society by those who possess the power or authority of prescribing
15
them." Section 2 of the Revised Administrative Code (1917) defined
16
the "Government of the Republic of the Philippines" thus:

,5
U.S. v. Dorr, 2 Phil. 332, cited in Bacani v. NACOCO, 100 Phil. 468,471 (1956).
"Bacani v. NACOCO, 100 Phil, at 471.
44 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

The Government of the Philippine Islands is a term which


refers to the corporate governmental entity through which the
functions of government are exercised throughout the Philippine
Islands, including, save as the contrary appears from the context,
the various arms through which political authority is made effec-
tive in said Islands, whether pertaining to the central Government
or to the provincial or municipal branches or other form of local
government.

On the national scale, therefore, the term "government of the Phil-


ippines" refers to the three great departments — legislative, executive,
and judicial — mandated by the Constitution, and on the local level, it
means the regional, provincial, city, municipal and barrio governments.
It does not include government entities which are given a corporate per-
sonality separate and distinct from the government and which are gov-
17
erned by the corporation law. Moreover, for purposes of international
law, it is the national government that has legal personality and it is the
national government that is internationally responsible for the actions
of other agencies and instrumentalities of the state.

The concept of government should be distinguished from admin-


istration. Government is the institution through which the state exercis-
es power; administration, on the other hand, consists of the set of peo-
ple currently running the institution. Administrations change without
a change in either state or government. T h e transitions from the 1935
Constitution to the 1973 Constitution to the 1987 Constitution involved
changes of government but not of state T h e transition from President
Estrada to President Arroyo did not involve a change of government but
only of administration.

The functions of government may be classified into constituent


and ministrant functions. T h e former are the compulsory functions
which constitute the very bonds of society. President Wilson's enumer-
ation of the constituent function of government w a s adopted in Bacani
1
v. NACOCO. " They a r e : "

(1) The keeping of order and providing for the protection


of persons and property from violence and robbery.

"Id. at 474.
"Id.
"Id. at 472.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

(2) The fixing of the legal relations between man and wife
and between parents and children.

(3) The regulation of the holding, transmission, and inter-


change of property, and the determination of its liabilities for debt
or for crime.

(4) The determination of contract rights between individ-


uals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges,
and relations of citizens.
(8) Dealings of the state with foreign powers: the preser-
vation of the state from external danger or encroachment and the
advancement of its international interest.

Ministrant functions are the optional functions of government in-


tended for achieving a better life for the community. "The principles
for determining whether or not a government shall exercise certain of
these optional functions are: (1) that a government should do for the
public welfare those things which private capital would not naturally
undertake, and (2) that a government should do those things which by
its very nature it is better equipped to administer for the public welfare
20
than is any private individual or group of individuals."

For the purpose of the decision in Bacani, the disquisition on the


functions of government was really of little moment. The issue in the
case was whether N A C O C O was part of "government" or not. And
since N A C O C O was a corporation with personality distinct from the
government, it was clearly not part of the government and could not
therefore claim the privileges which flow from sovereignty. When,
however, government chooses to operate not through a government-
owned corporation but through an unincorporated agency, the distinc-
tion between constituent and ministrant functions can be useful. The
concepts, however, seem to belong more to the field of political science
than to law. Law prefers to use the term governmental and proprietary.

"Id. The whole discussion on functions of government in Bacani was lifted from MAL-

COLM, THE GOVERNMENT OF THE PHILIPPINE ISLANDS 19-20.


46 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

Whether one, however, uses the terms constituent and ministrant


or governmental and proprietary, what is important to remember is that
the enumeration of specific government functions under these headings
cannot be static. This was emphasized in the case of ACCFA v. CUG-
2
CO. ' At issue was the characterization of the functions of a government
agency charged with the implementation of the land reform program.
The function, the Court said, may not strictly be "constituent" in the
sense of Bacani, but the compelling urgency with which the Constitu-
tion speaks of social justice does not leave any doubt that land reform
22
is not an optional but a compulsory function of sovereignty. In the
23
language of Justice Makalintal:

The growing complexities of modem society, however, have


rendered this traditional classification of the functions of govern-
ment quite unrealistic, not to say obsolete. The areas which used
to be left to private enterprise and initiative and which the gov-
ernment was called upon to enter optionally, and only "because
it was better equipped to administer for the public welfare than is
any private individual or group of individuals," continue to lose
their well-defined boundaries and to be absorbed within activities
that the government must undertake in its sovereign capacity if
it is to meet the increasing social challenges of the times. Here
as almost everywhere else the tendency is undoubtedly towards a
greater socialization of economic forces. Here of course this de-
velopment was envisioned, indeed adopted as a national policy, by
the Constitution itself in its declaration of principle concerning the
promotion of social justice.

A m o n g more recent decisions, housing has been found to be a


governmental function since housing is considered an essential ser-
24
vice. But undertaking to supply water for a price, as does the govern-
ment corporation National Irrigation Authority, is considered a trade
25
and not a governmental activity.

2I
30 SCRA 649 (1969).
2 2
Uat661.
"Id. at 662 (1969).
"PHHC v. Court of Industrial Relations, 150 SCRA 296,310 (1987).
"Spouses Fontanilla v. Hon. Maliaman, GJ*. Nos. 55963 and 61045, February 27,1991.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

6. Id.; g o v e r n m e n t de j u r e a n d de facto.

On the basis of legitimacy, governments are classified into de jure


governments and those which are de facto merely. "It is a legal truism in
political and international law that all acts and proceedings of the legis-
lative, executive, and judicial departments of a de facto government are
26
good and valid." This principle coupled with the fact that the Philip-
pines had just emerged from military occupation by the Imperial Forces
of Japan made the concept of a government merely de facto of great
importance in Philippine L a w of the late forties. Since then, however,
the concept has merely been of academic importance. But the concept
and some of its various ramifications have been thoroughly discussed
in Philippine jurisprudence and they are there ready for exhumation
should it b e c o m e necessary once more to use them. For the purpose of
this commentary, however, suffice it to recite the classification of gov-
1
ernments merely de facto in Co Kim Chan v. Valdez Tan Keh?

There are several kinds of de facto governments. The first,


or government de facto in a proper legal sense, is that government
that gets possession and control of, or usurps, by force or by the
voice of the majority, the rightful legal government and maintains
itself against the will of the latter, such as the government of Eng-
land under the Commonwealth, first by Parliament and later by
Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory
of the enemy in the course of war, and which is denominated a
government of paramount force, as the cases of Castine, in Maine,
which was reduced to British possession in the war of 1812, and
of Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise
in insurrection against the parent state, such as the government of
the Southern Confederacy in revolt against the Union during the
28
war of secession.

7. Government under the 1986 Freedom Constitution.

The first question that must be asked in studying a fundamental


law is: By what authority is the Constitution promulgated? Both the

"Co Kim Chan v. Valdez Tan Keh, 75 Phil. 113,122 (1945).


"Id.
a
ld.
48 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

1935 Constitution and the 1973 Constitution stated the source of their
authority in their Preamble. The Provisional Constitution of 1986 did
not contain a Preamble. What it had were the introductory "Whereases"
and the concluding paragraphs of Proclamation N o . 4. The following
preceded the text of the Provisional Constitution:

PROCLAMATION NO. 3
DECLARING A NATIONAL POLICY TO IMPLEMENT
THE REFORMS MANDATED BY THE PEOPLE, PROTECT-
ING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY
TRANSITION TO A GOVERNMENT UNDER A NEW CON-
STITUTION.
WHEREAS, the new government under President Corazon
C. Aquino was installed through a direct exercise of the power of
the Filipino people assisted by units of the New Armed Forces of
the Philippines;
WHEREAS, the heroic action of the people was done in de-
fiance of the provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested
by their extraordinary action demands the complete reorganization
of the government, restoration of democracy, protection of basic
rights, rebuilding of confidence in the entire governmental system,
eradication of graft and corruption, restoration of peace and order
and the supremacy of civilian authority over the military, the tran-
sition to a government under a New Constitution in the shortest
time possible;

WHEREAS, during the period of transition to a New Consti-


tution it must be guaranteed that the government will respect basic
human rights and fundamental freedoms;
WHEREFORE, I, CORAZON C. AQUINO, President of
the Philippines, by virtue of the powers vested in me by the sov-
ereign mandate of the people, do hereby promulgate the following
Provisional Constitution:

DONE in the City of Manila, this 24th day of March in the


year of Our Lord nineteen hundred and eighty-six.

CORAZON C. AQUINO
President of the Philippines
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

In essence therefore President Aquino anchored her assumption of


power on "the direct mandate of the people" when she "was installed
through a direct exercise of [their] p o w e r " and "in defiance of the provi-
sions of the 1973 Constitution."

Both Corazon Aquino and Ferdinand Marcos had run for the pres-
idency under the provisions of the 1973 Constitution. On February 15,
1986, the Batasan Pambansa, in the exercise of powers given by the
1973 Constitution, proclaimed Ferdinand Marcos president amid wide-
spread protest. Subsequently, starting on the afternoon of February 22,
1986, Minister of National Defense Juan Ponce Enrile and Vice Chief
of Staff General Fidel R a m o s initiated a revolt against Ferdinand Mar-
cos. R a m o s and Enrile placed their support instead behind Corazon C.
Aquino.

Completely outnumbered by the Marcos forces and confined to


C a m p C r a m e and C a m p Aguinaldo, the Enrile-Ramos forces could
have easily been crushed by the Marcos forces. But hordes of unarmed
civilians c a m e to their rescue by surrounding the two military camps
with masses of h u m a n bodies. They dared tanks and armored vehicles
to c o m e at them. T h e civilian support given to the outnumbered Enrile-
R a m o s forces caused other military elements to switch their support
to Corazon A q u i n o . By the morning of February 24, 1986, after ele-
ments of the Air Force switched, it was all over for Mr. Marcos and
all those who had connived to proclaim him President under the 1973
Constitution. Finally, on the morning of February 2 5 , 1986, Corazon
C . Aquino, in defiance of the provisions of the 1973 Constitution and
without the sanction of the Batasan Pambansa which had chosen to give
the presidency to Mr. Marcos, was proclaimed first woman President
of the Philippines in simple rites held at the Club Filipino and was im-
mediately sworn in by Senior Associate Justice of the Supreme Court
Claudio Teehankee.

Meanwhile, at almost the same time and in virtue of the Batasan


proclamation of February 1 5 , 1 9 8 6 , Mr. Marcos was sworn in by Chief
Justice Ramon Aquino at Malacaiiang. The night of the same day, Mr.
Marcos, accompanied by a large entourage of family and supporters,
went into exile.
President Aquino could have made herself subject to the provi-
sions of the 1973 Constitution by allowing herself to be proclaimed by
the Batasan. She, however, chose not to allow the Batasan members
50 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

to undo their perfidy. She hoped thereby to be able to more effectively


respond to the extraordinary challenge thrown at her by a heroic nation
which had stood against a long reigning dictator. She turned her back
on the 1973 Constitution whose officials had denied her the presidency.
Barred by the processes of the 1973 Constitution, she chose instead to
govern under a Provisional Constitution designed to enable her to meet
the people's challenge.

Was the government she set u p , therefore, revolutionary?

It was revolutionary in the sense that it came into existence in


29
defiance of the existing legal processes. She did not win her victory
through a protest lodged either before the Batasan or before a Presiden-
tial Electoral Tribunal. She won it through the extra-legal action taken
by the people.

Was it revolutionary in the sense that it was despotic? Since the


Provisional Constitution contained a Bill of Rights which also bound
the President and all officials of government, and since the actions of
the President were subject to judicial review, theoretically at least it was
not despotic. But since the Provisional Constitution also conferred ex-
traordinary powers on the President, it can be said that the government
had the potential for being despotic. In the end, therefore, the answer
to the question would depend on how President A q u i n o comported her-
self, on how courageously the Supreme Court exercised its powers to
check abuse, and on the vigilance and activism of the people who chose
to install her President.

Was it revolutionary in the sense that it w a s militaristic? T h e prin-


ciple of civilian supremacy was enshrined in the Provisional Consti-
tution. The military leaders w h o initiated the February upheaval pur-
ported to act in support of a civilian Commander-in-Chief. T h e military
establishment recognized a civilian Commander-in-Chief, and a w o m -
an at that! However, in the end, the military or non-military character of
a regime is shown not so m u c h in words but in actual behaviour: in the
behaviour of military as well as of civilian leaders.

Was it revolutionary in the sense of being temporary? That cer-


tainly is what the text of the Provisional Constitution said. Admittedly,

"This position was adapted by Justice Padilla in In re Letter of Associate Justice Puno, 210
SCRA 589,598 (1992). There were dissenting opinions in the case but not on this point.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 51
Principles

however, temporary arrangements are rarely free from the temptation


to prolongation. Fortunately, one of the first things the President did
was to appoint a Constitutional Commission to draft a Constitution for
presentation to the people for ratification or rejection.

Was the government a de facto or a de jure one?

In answering the question whether a government is merely de


facto or de jure, one must state whether the question is being raised in
a local law context or in an international law context. In local law, until
a government is ousted, it is not too important to ask the question. For
as long as the government is in possession, it is the law and it is legal
within the context of its structures. O n c e a government is ousted, how-
ever, for the purpose of determining the validity of the actions taken
by the ousted government, it b e c o m e s necessary to ask whether it was
merely de facto or de jure. T h u s , for instance, the question could not
be asked relative to the nature of the Japanese occupation government
for as long as Japan held sway in the Philippines. It was only after the
defeat of Japan that the question could usefully be asked. Similarly,
it was premature to ask soon after the February Revolution whether
President Aquino's government, which to all indications was in firm
possession, was de jure or merely de facto. If Mr. Marcos, however, had
successfully reestablished the government under the 1973 Constitution,
the question could have been asked relative to the nature of the Aquino
government.

The status of a government in international law depends on the


recognition it receives or does not receive from the community of na-
tions. It is clear now that nations accept the government of President
Aquino as the legitimate government of the Philippines.

In the light of what has been said it is not surprising that, when
the government under the Freedom Constitution was challenged, the
Supreme Court, in an en banc minute resolution did not consider the
challenge a justiciable matter and dismissed the challenge saying that
the people had accepted the Aquino government and the community of
30
nations had recognized its legitimacy.

"Lawyers' League for a Better Philippines, et al. v. President Aquino, GJt. No. 73748,
People's Crusade for the Supremacy of the Constitution v. Aquino, G.R. No. 73972; Ganay v.
Aquino, GJt. No. 73990, May 22,1986.
52 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

8. The government under Gloria Macapagal-Arroyo.


Gloria Macapagal-Airoyo succeeded Joseph Estrada in January
2001 in the wake of what came to be known as EDS A II. The legiti-
macy of her presidency was challenged by Estrada and his supporters.
The resolution of these challenges will be discussed under Article VII,
Section 8, infra.

31
9. Presidential and parliamentary government.
There is a bewildering variety of forms of m o d e m constitutional
democracy. These forms present various ways of allocating the pow-
ers that emanate from the people. For the purpose of this commentary,
however, which is not meant to be a treatise in political science, only
the highlights of the presidential and parliamentary form of government
will be treated, and these only schematically.

The presidential form of government first adopted under the 1935


Constitution and borrowed from the American system is familiar to the
contemporary Filipino. Its principal identifying feature is what is called
the "separation of powers." Legislative p o w e r is given to the Legisla-
ture whose members hold office for a fixed term; executive power is
given to a separate Executive who also holds office for a fixed term;
and judicial power is held by an independent Judiciary. T h e system is
founded on the belief that, by establishing equilibrium a m o n g the three
power holders, harmony will result, power will not be concentrated,
and thus tyranny will be avoided. Because of the prominent position,
however, which the system gives to the President as chief executive, it
is designated as a presidential form of government.

The original 1973 Constitution adopted a still-born parliamentary


system. W h a t differentiates a parliamentary form of government from
a presidential? The difference lies in certain essential features which
are found in all varieties of the parliamentary form. They are the fol-
lowing: (1) The members of the government or cabinet or the executive
arm are, as a rule, simultaneously m e m b e r s of the legislature. (2) The
government or cabinet, consisting of the political leaders of the major-
ity party or of a coalition who are also m e m b e r s of the legislative, is in
effect a committee of the legislature. (3) T h e government or cabinet has

3l
See the excellent discussion in LOE WEN STEIN, POLITICAL POWERS AND THE GOVERNMENTAL
PROCESS 72-120 (1957).
Sec. 1 ART. D - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

a pyramidal structure at the apex of which is the Prime Minister or his


equivalent. (4) The government or cabinet remains in power only for as
long as it enjoys the support of the majority of the legislature. (5) Both
government and legislature are possessed of control devices with which
each can demand of the other immediate political responsibility. In the
hands of the legislature is the vote of non-confidence (censure) whereby
government may be ousted. In the hands of government is the power to
dissolve the legislature and call for new elections.

Briefly, therefore, while the presidential system embodies inter-


dependence by separation and coordination, parliamentarism embodies
interdependence by integration.

T h e constitutional revision of 1981 reverted to a form of govern-


ment which, although adopting features of parliamentarism, preserved
the essence of presidentialism. Free Telephone Workers Union v. Minis-
32
ter of Labor and Employment put it thus:

The adoption of certain aspects of a parliamentary system in


the amended Constitution does not alter its essentially presidential
character. Article VII [1973 Constitution] on the presidency starts
with this provision: "The President shall be the head of state and
chief executive of the Republic of the Philippines." [Section 1] Its
last section is an even more emphatic affirmation that it is a presi-
dential system that obtains in our government. Thus: "All powers
vested in the President of the Philippines under the 1935 Consti-
tution and the laws of the land which are not herein provided for
or conferred upon any official shall be deemed and are hereby
vested in the president unless the Batasang Pambansa provides
otherwise." [Section 16] There is a provision, of course, on the
Prime Minister, but the Constitution is explicit that while he shall
be the head of the Cabinet, it is the President who nominates him
from among the members of the Batasang Pambansa, thereafter
being "elected by a majority of all the members thereof." [Article
IX, Section 1] He is primarily, therefore, a Presidential choice. He
need not even come from its elected members. He is responsible,
along with the Cabinet, to the Batasang Pambansa for the program
of government but as "approved by the President." [Article IX,
Section 2] His term of office as Prime Minister "shall commence
from the date of his election by the Batasang Pambansa and shall
end on the date that the nomination of his successor is submitted

"108 SCRA 757,763-5 (October 30,1981).


54 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

by the President to the Batasang Pambansa. Any other member


of the Cabinet or the Executive Committee may be removed at
the discretion of the President." [Article IX, Section 4] Even the
duration of his term then depends on the Presidential pleasure, not
on legislative approval or lack of it. During his incumbency, he
exercises supervision over all ministries [Article IX, Section 10],
a recognition of the important role he plays in the implementa-
tion of the policy of the government, the legislation duly enacted
in pursuance thereof, and the decrees and orders of the President.
To the Prime Minister can thus be delegated the performance of
administrative functions of the President, who can then devote
more time and energy in the fulfillment of his exacting role as the
national leader. As the only one whose constituency is national it
is the President who, by virtue of his election by the entire elector-
ate, has an indisputable claim to speak for the country as a whole.
Moreover, it is he who is explicitly granted the greater power of
control of such ministries . . .

With hardly any debate, the 1986 Constitutional Commission de-


cided to stay with the familiar. T h u s , the 1987 Constitution has brought
back the country to the presidential system of 1935 and has removed the
parliamentary features of the 1973 Constitution but has imposed new
limits on the powers of the President.

10. "Sovereignty."

A final essential element of statehood according to the Montevi-


deo Convention is capacity to conduct international relations. " A n en-
tity is not a state unless it has c o m p e t e n c e , within its own constitutional
system, to conduct international relations with other states, as well as
the political, technical and financial capabilities to do so. An entity that
has the capacity to conduct foreign relations does not cease to be a state
because it voluntarily turns over to another state control of its foreign
relations, as in the 'protectorates' of the period of colonialism, the case
of Liechtenstein, or the 'associated states' of today. States do not cease
to be states because they have agreed not to engage in certain interna-
tional activities or have delegated authority to do so to a 'supranational'
entity, e.g., the European C o m m u n i t i e s . Clearly, a state does not cease
to be a state if it joins a c o m m o n market.""

33
* Restatement §201(e).
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

This capacity to conduct international relations is an aspect of


sovereignty which the Constitution asserts in Section 1, Article II. The
assertion of sovereignty was already m a d e in the 1935 Constitution. But
the Philippines did not begin to conduct its foreign relations until after it
34
became independent from the United States in 1946. By way of excep-
tion, however, the Philippines became signatory to the United Nations
Charter in 1945 even before it became independent.

Section 1, Article II, says: "Sovereignty resides in the people and


all government authority emanates from them." Sovereignty in this sen-
tence therefore can be understood as the source of ultimate legal author-
ity. Since the ultimate law in the Philippine system is the constitution,
sovereignty, understood as legal sovereignty, means the power to adapt
or alter a constitution. This p o w e r resides in the "people" understood as
those w h o have a direct hand in the formulation, adoption, and amend-
ment or alteration of the Constitution.

Political writers distinguish between legal sovereignty and politi-


cal sovereignty. T h e former is described as the supreme power to make
laws and the latter as the sum total of all the influences in a state, legal
35
and non-legal, which determine the course of law.

Sovereign authority, moreover, is not always directly exercised


by the people. It is normally delegated by the people to the government
and to the concrete persons in whose hands the powers of government
temporarily reside. The temptation to which government personnel are
prone is to forget that public office is a public trust, and an essentially
temporary trust at that, and to equate every attempt to wrest that trust
from them, no matter by what means, to criminal acts of subversion. It
is a temptation not easily resisted under any form of authoritarian rule.

Sovereignty of the people also includes the concept that govern-


ment officials have only the authority given them by law and defined by
36
law, and such authority continues only with the consent of the people.

M
In terms of political reality, moreover, for as long as the United States maintained mili-
tary bases in the Philippines, Philippine foreign relations affecting national security were dictated
mostly by American decisions.
T A N A D A A N D C A R R E O N , PouriCAL LAW OF THE PHILIPPINES at 18 (1961); S I N C O , PHILIPPINE
3 5

POLITICAL LAW at 17-26 (1962 Ed.) prefers not to make the distinction and places legal sovereignty
in the state itself considered as a juridical person.
"IV R E C O R D 660-661,663-664,732-734,767.
56 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

This is the meaning of the rule of law: a government of laws and not
of men. The Constitutional Commission, however, did not consider it
necessary to make explicit the right of the people to oust an abusive and
7
authoritarian government through non-violent means.'

Finally, is recognition by other states a constitutive element of a


state such that even if it has all four elements of the Montevideo Con-
vention it is not a state if it has not been recognized? In international
law, there are two views on this. One view, the constitutive theory, is
that recognition "constitutes" a state, that is, it is what makes a state
a state and confers legal personality on the entity. The other view, the
declaratory theory, is that recognition is merely "declaratory" of the ex-
istence of the state and that its being a state depends upon its possession
of the required elements and not upon recognition. A recognizing state
merely accepts an already existing situation. T h e weight of authority fa-
vors the "declaratory view." In practice, however, whether to recognize
or not is largely a political decision.

11. "Democratic a n d republican state."

Article IV, Section 4, of the United States Constitution imposes


on the Federal Government the duty to guarantee to every state "a R e -
publican Form of Government." And a republican form of government
is understood as "one constructed on this principle, that the supreme
38
power resides in the body of the people." Its purpose therefore is to
guarantee against two extremes: on the one hand, against monarchy and
oligarchy, and on the other, against pure democracy.

It is not clear, however, from the text of the Federal Constitution


to which department of the government belongs the duty of implement-
39
ing the guarantee. Ever since the leading case of Luther v. Borden the
constant holding of the U . S . Supreme Court has been that the enforce-
ment of Article IV, Section 4, belongs solely to the political departments
and not to the courts.

One of the mandatory requirements of the Tydings-McDuffie


Law, the instrument by which the American government authorized the

31
Id. al 959-969.
3
"Chisholm v. Georgia, 2 Dall. 419,457 (U.S. 1793).
''How. 1 (U.S. 1849).
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 57
Principles

Filipino people to draft a constitution in 1934, was that the "constitution


40
formulated and drafted shall be republican in form."

Section 1, when first formulated in 1934, was a response to that


c o m m a n d . It was not an unwilling response, however, because a repub-
lican form of government was the form with which the Filipinos were
most familiar. Its meaning, as understood by the delegates at that time,
41
was the one expressed by James Madison:

We may define a republic to be a government which derives


all its power directly or indirectly from the great body of people;
and is administered by persons holding their offices during plea-
sure, for a limited period, or during good behaviour. It is essential
to such a government that it be derived from the great body of the
society, not from an inconsiderable proportion, or a favorable class
of it. It is sufficient for such a government that the person admin-
istering it be appointed either directly or indirectly, by the people;
and that they hold their appointments by either of the tenures just
specified.

To paraphrase Section 1, therefore, a government republican in


form is one where sovereignty resides in the people and where all gov-
ernment authority emanates from the people.

It should be noted, however, that the American constitution speaks


of a guarantee of a "Republican Form of Government" whereas, the
Philippine constitution provides for a "republican State." Constitution-
ally, the difference in phraseology is insignificant. What the Philippine
text declares is that the Philippines is a state whose government is re-
publican in form, that is, whose government is democratic in the sense
of American constitutionalism.

To the question whether matters arising from the constitutional


guarantee of republicanism are political questions within the exclusive
domain of the political departments, as they are in American constitu-
tional law, the Philippine Supreme Court has not yet had occasion to
2
give an express and categorical answer. In Maquera v. Borra,* however,
the Supreme Court treated a matter coming under the guarantee as a jus-

"Section 2(a).
"'I ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 132 (1936).
"15 S C R A 7 (1965).
58 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

ticiable question. At issue in the case was the validity of Republic Act
No. 4421 which required a candidate to post a surety bond equivalent to
one year's salary of the position for which he is a candidate. The Court
declared the amount of the bond constitutionally objectionable for be-
ing equivalent to a property qualification "inconsistent with the nature
and essence of the Republican system ordained in our Constitution ...
[which] ... implies necessarily that the right to vote and to be voted for
43
shall not be dependent upon the wealth of the individual." Justice J.R
Bengzon, in his concurring opinion added, that "our citizenry have thus
been given the supreme guaranty of a democratic way of life, with all
its freedom and limitations, all its rights and duties" and that Congress
may "prescribe the manner of exercising political rights so long as it
44
does not run counter to the Constitution." T h u s , there was no explicit
statement that the question was justiciable but the guarantee was used
45
as a yardstick for determining constitutionality.
46
In 1980, in Ceniza v. COMELEC, it w a s contended that to pro-
hibit voters in a city from voting for elective provincial officials would
subvert the principle of republicanism as it would deprive a citizen of
his right to participate in the affairs of government. This contention was
raised by residents of M a n d a u e City, which under the law was clas-
sified as a highly urbanized city over which provincial governments
exercised no governmental supervision. H e n c e , it was pointed out that
residents of such city had no right to claim participation in provincial
government.

Martial law and the expanded powers of the President given by


the Transitory Provisions and A m e n d m e n t 6 under the 1973 Constitu-
tion, which begot the form of government called "constitutional author-
itarianism" also gave rise to the question whether such concentration
of governmental powers in the President w a s compatible with a " R e -
publican State." But the question is easily answered on the theoretical
plain if one remembers that a republican state is nothing more than a
state where sovereignty resides in the people and where all government
authority emanates from t h e m . Provided therefore that the President is
elected by the people and bases his assumption of extraordinary powers

43
W. at 9.
"Id. at 10.
"The subject of "political questions" is treated under Article VIII.
"95 SCRA 763,774 (January 28,1980).
Sec. 2 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 59
Principles

upon an e m p o w e r m e n t given by a constitution ratified by the people,


the republican nature of the state, at least from a minimalist point of
view, is not affected.

The report of the Committee on Declaration of Principles and Ide-


47
ologies (1971) had recommended that the Philippines be designated a
"national and social democratic republic." T h e Convention, however,
was not prepared to accept a designation whose meaning and impli-
cations it did not fully comprehend. Instead, it preferred to retain the
formulation of the 1935 Constitution and the meaning it embodied as
48
understood by the 1935 Convention, a meaning borrowed from Amer-
ican constitutional theory.

T h e 1987 Constitution, formulated before the euphoria of the Feb-


ruary Revolution of 1986 had died d o w n , did what the earlier Consti-
tutional Convention chose not to do and added a new word to describe
the state: "democratic." T h e import of this addition, a monument to
"people p o w e r " which re-won democracy in E D S A (Epifanio de los
Santos Avenue), is that the Philippines under the new Constitution is
not just a representative government but also shares some aspects of
direct democracy such, for instance, as the "initiative and referendum"
under Article V I , Section 32. As Commissioner Nolledo said, the use of
49
the word is a "justifiable redundancy."

SEC. 2. THE PHILIPPINES RENOUNCES WAR AS AN INSTRUMENT


OF NATIONAL POLICY, ADOPTS THE GENERALLY ACCEPTED PRINCIPLES
OF INTERNATIONAL LAW AS PART OF THE LAW OF THE LAND AND
ADHERES TO THE POLICY OF PEACE, EQUALITY, JUSTICE, FREEDOM,
COOPERATION, AND AMITY WITH ALL NATIONS.

1. Renunciation of war.
There are three parts to Section 2: (1) renunciation of war; (2)
adoption of the principles of international law; (3) adherence to a policy
of peace, freedom, and amity with all nations. The first two parts were
copied by the 1973 Constitution from Article II, Section 3, of the 1935
Constitution. The third part is an addition made by the 1973 Constitu-
tion. The present Section 2 is an exact copy of the 1973 provision.

"Supra, note 3.
"Sessions of November 24 and 27,1972.
*TV RECORD 683-684,735-737,752-753,769.
60 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

The inspiration of this provision on renunciation of war, when first


adopted in 1935, was the Kellogg-Briand Pact of August 2 7 , 1 9 2 8 . The
Pact renounced wars of aggression. And this is all that the Constitution
renounces, for the power to wage a defensive war is of the very essence
of sovereignty. For that matter, the Constitution makes defense of the
50
state a duty of government and of the people and gives to Congress
51
the power to declare a state of war. As one writer, however, has put
it, the provision is a political gesture of no significance and a pomp-
ous declaration that impresses no one. By stating that the Philippines
"renounces" war as an instrument of national policy, the implication
is that at one time war was part of Philippine policy. "If the intention
were to declare the doctrine of anti-militarism, which apparently was
what the moral and political leadership of the country desired, better
craftsmanship could have more accurately expressed it by a statement
that the Philippines condemns war as an instrument of national policy
52
or words to this effect." Apparently, however, this criticism, valid as it
is, impressed no one in the 1971 Convention nor in the 1986 C o m m i s -
sion. Thus, the phraseology of the 1935 provision has been retained.

It should be noted, however, that as a m e m b e r of the United Na-


tions the Philippines does not merely renounce war, which is a limited
concept which does not include some forms of force. As a signatory to
the United Nations Charter the Philippines adheres to Article 2(4) of
the U.N. Charter which says: "All M e m b e r s shall refrain in their inter-
national relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."

2. Incorporation of international law.

Implicit in this provision is the acceptance of the dualist view of


legal systems, namely that domestic law is distinct from international
law. Since dualism holds that international law and municipal law be-
long to different spheres, international law b e c o m e s part of municipal
law only if it is incorporated into municipal law. What the second part
of Section 2 does is to m a k e international law part of the law of the land.
In other jurisdictions, international law can b e c o m e part of municipal

"Article II, Section 4.


''Article VI, Section 23(1).
" S I N C O , supra, note 1 at 120.
Sec. 2 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

law only if it is transformed into domestic law through the appropri-


ate constitutional machinery such as an act of Parliament. This follows
what is called the doctrine of transformation. Another theory is the doc-
trine of incorporation. Blackstone expressed this in his Commentary
when he said that:

[T]he law of nations, wherever any question arises which


is properly the object of its jurisdiction, is here adopted in its full
extent by the common law, and it is held to be part of the law of
the land.

T h e second part of Section 2 accepts the doctrine of incorporation.


This provision makes the Philippines one of the states which make a
specific declaration that international law has the force also of domes-
tic law." International law therefor can be used by Philippine courts to
settle domestic disputes in m u c h the same way that they would use the
Civil C o d e or the Penal C o d e and other laws passed by Congress.

W h a t elements of international law become part of Philippine law


by incorporation through Article II, Section 2? Since treaties become
part of Philippine law only by ratification, the principle of incorporation
applies only to customary law and to treaties which have become part of
customary law. This distinction, however, is sometimes blurred in some
54
Philippine Supreme Court decisions.

A problem, however, which the provision posses is the problem of


determining what these generally accepted principles of international
law are which the Philippines accepts. Ultimately, in the absence of the
guiding direction of treaties or statutes, the process of selecting what
these accepted principles are will have to be done by the courts. The
Supreme Court as a matter of fact, has had occasion to perform this
function. In Mejojfv. Director of Prisons," an alien of Russian descent
who had been detained pending execution of the order of deportation

"Similar provisions are found in the Austrian Constitution, Article 9: "The generally rec-
ognized rules of international law shall be considered as component parts of the Federal Law," and
in Article 25 of the Constitution of the Federal Republic of Germany: "The general rules of public
international law are an integral part of federal law."
"See A L O Y S I U S L L A M Z O N , "The Generally Accepted Principles of International Law as
Philippine Law: Towards a Structurally Consistent Use of Customary International Law in Philip-
pine Courts," a J D . Thesis presented to the College of Law, Ateneo de Manila University, 2002.
"90 Phil. 70 (1951).
62 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

was ordered released on bail when after two years the deportation or-
der could not be carried out because no ship or country would take the
56
alien. The Court said in part:

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines


"adopts the generally accepted principles of international law as
part of the law of the Nation." And in a resolution entitled "Uni-
versal Declaration of Human Rights" and approved by the Gen-
eral Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right
to life and liberty and all other fundamental rights as applied to
all human beings were proclaimed. It was there resolved that "All
human beings are bom free and equal in degree and rights" (Art.
1); that "Everyone is entitled to all the rights and freedom set forth
in this Declaration, without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, national-
ity or social origin, property, birth, or other status" (Art. 2); that
"Everyone has the right to an effective remedy by the competent
nationals for acts violating the fundamental rights granted him by
the Constitution or by law" (Art. 8); that "No one shall be sub-
jected to arbitrary arrest, detention or exile" (Art. 9); etc.

51
Earlier, in Kuroda v. Jalandoni, the Court h a d said that the pro-
vision "is not confined to the recognition of rules and principles of in-
ternational law as contained in treaties to which our government may
have been or shall be a signatory." T h u s , although the Philippines is not
a signatory to the Hague Convention and b e c a m e a signatory to the G e -
neva Convention only in 1947, the Court held that a Philippine Military
Commission had jurisdiction over war crimes committed in violation of
the two conventions prior to 1947.

The doctrine of immunity from suit of a foreign state is likewise


a principle of international law whose acceptance in this jurisdiction
has been established in a long line of cases starting with Raquiza v.
Bradford,'" and was summarized and reaffirmed in Baer v. Tizon."

*Id. at 73-4.
"83 Phil. 171,178(1949).
58
75 Phil. 50 (1945).
w
5 7 SCRA 1,6-8 (1974). A long line of cases to the same effect have followed.
Principles

m
M o r e recently, in Agustin v. Edu, a case involving a presic
etter of Instruction prescribing the use of early warning dev
) ) , the Court said that the constitutional provision "possesses
:e." T h e Court pointed out that the 1968 Vienna Convention
Signs and Signals had been ratified by the Philippine governn
Presidential Decree N o . 2 0 7 . "It is not for this country to repi
commitment to which it had pledged its word. The concept pi
servanda stands in the way of such an attitude, which is, m<
61
at war with the principle of international morality." Likew
iternational duty of protecting foreign embassies was recogni
62
Reyes v. Bagatsing.

3. Adherence to policy of p e a c e , freedom, amity.

The third part of Section 2 states that the Philippines "adhere


slicy of p e a c e , equality, justice, freedom, cooperation, and an
ill nations." This is an abbreviated statement of Section 1 and 5
of an article on Foreign Relations approved by the 1971 Con\
m second reading on June 2 , 1 9 7 2 .

Section 1 of the article read:

The Philippines shall pursue a foreign policy aimed at the


fulfillment of the national interest in a world order based on equal-
ity, peace, freedom, justice, and prosperity for all nations.

T h u s , it is seen that the guiding principle of Philippine fore


y will b e , as it is with all other nations, the national interest. 1
sh" policy, however, is tempered with concern for "equality, pes
o m , justice."

The last two items of the section — "cooperation, and amity vt


itions" — were more fully expressed by Section 2 of the ear.
>ved article which said:

In the national interest and of international peace and coop-


eration, the Philippines may extend recognition, exchange diplo-
matic relations and establish consular, trade, and cultural relations
with other nations irrespective of ideology.

w
8 8 SCRA 195.213 (February 2,1979).
"'Id.
"G.R. No. 65366, October 25,1983.
64 THE 1987 CONSTrrunON Sec. 3
OF THE REPUBLIC OF THE PHILIPPINES

While the words "cooperation and amity with all nations" found
in Section 2 do not expressly manifest the intent to establish diplomatic
and other relations with all nations irrespective of ideology, the intent
is nonetheless there. However, constitutionally, the provision is without
real significance; the decision whether to establish or not to establish
such relations remains, as in the 1935 Constitution, a policy question
addressed to the discretion of the political departments.

Finally, while the 1987 text preserves the 1973 counterpart, the
1986 Commission read into the word "amity" the concept " l o v e " found
63
in the Preamble.

SEC. 3 . CIVILIAN AUTHORITY IS, AT ALL TIMES, SUPREME


OVER THE MILITARY. THE ARMED FORCES OF THE PHILIPPINES IS
THE PROTECTOR OF THE PEOPLE AND THE STATE. ITS GOAL IS TO
SECURE THE SOVEREIGNTY OF THE STATE AND THE INTEGRITY OF THE
NATIONAL TERRITORY.

1. Civilian s u p r e m a c y .

Under the 1935 Constitution civilian supremacy was implied from


its Article VII, Section 10(2) which m a d e the President, a civilian and
as civilian, Commander-in-Chief. T h e 1973 Constitution m a d e the prin-
ciple explicit. The first sentence of the present Section 3, except for the
two c o m m a s , is a copy of the 1973 provision. T h e c o m m a s were added
64
for emphasis on "at all times."

Civilian supremacy c a m e as a legacy of the American conquer-


ors. The process of locally instilling the principle was so successful
under American rule that, up until the World War II and even b e y o n d ,
there was no serious problem which arose from military submission to
civilian authority. As the nation developed, however, faith in civilian
supremacy began to w a n e . T h e waning of that faith began w h e n civilian
officials started using military elements for furthering their ambitions
and when military officers began allowing themselves to be so used.
The author of The Power Elite, put it thus: " A s politics gets into the
army, the army gets into politics." H e n c e , when the Filipinos drafted the
1973 Constitution it was thought necessary, just to emphasize the point,
to make the principle supremacy of civilian authority.
Sec. 3 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

2. Role of the a r m e d forces.

The period of martial rule up until E D S A I was another phase


in the constitutional development. Military abuses were rampant then.
H e n c e , the 1986 Constitutional Commission thought it necessary to put
down the positive role of the military in explicit terms. "The Armed
Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the
national territory." This is counterpoint.

T h e second and third sentences of Section 3 , originally discussed


by the 1986 Constitutional C o m m i s s i o n under the General Provisions,
are meant to express the philosophy that underlies the existence of
armed forces. T h e original formulation m a d e by Commissioner Ople
read: " T h e purpose of a military establishment is to secure the sov-
ereignty of the people and the integrity of the national territory and
65
to serve the general welfare." T h e provision was b o m of a desire to
express in positive terms the C o m m i s s i o n ' s disapproval of abuses com-
mitted by the military against civilians during the period of authori-
66
tarian rule. T h e transposition of the two sentences from the General
Provisions to the Declaration of Principles and specifically as a continu-
ation of the principle of civilian supremacy was meant to add emphasis
67
on the philosophy they express.

T h e phrase "protector of the p e o p l e " was not meant to be an as-


sertion of the political role of the military. But the temptation to read it
that way against the background of the E D S A I event is understandable.
The intent of the phrase "protector of the people" was rather to make
it act as corrective to military abuses experienced during martial rule.

Does this mean, however, that the military has no political role?
It does not mean that because the political role is found in the follow-
ing sentence. "Its goal is to secure the sovereignty of the State and the
integrity of the national territory." T h u s , there are two thoughts in the
constitutional provision: disapproval of military abuses and guardian-
ship of state sovereignty, which of course means sovereignty of the
people. The military exercise of political power can be justified as a last
resort — when civilian authority has lost its legitimacy.

"V RECORD 246.


"•See id. at 104-106.
"Id. at 298-299.
66 THE 1987 CONSTITUTION Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

The two sentences, therefore, also yield a meaning which was not
articulated during the Commission debates. When one reads them in
the light of the unsuccessful military coups of 1987 and the reasons
given for them, and especially in the light of the successful and civilian-
approved coup of February 1986 which became known as the Febru-
ary Revolution, one cannot escape the conclusion that the armed forces
can be a legitimate instrument for the overthrow of a civilian govern-
ment that has ceased to be a servant of the people. Such conclusion
also finds support in the principle, accepted by the Commission but not
made explicit, that a long standing tyranny can be legitimately over-
68
thrown. Civilian supremacy, in other words, is, in the final analysis,
not a guaranteed supremacy of civilian officers w h o are in power but of
supremacy of the sovereign people. The A r m e d Forces, in this sense, "is
the protector of the people and the State."

SEC. 4. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE


AND PROTECT THE PEOPLE. THE GOVERNMENT MAY CALL UPON THE
PEOPLE TO DEFEND THE STATE AND, IN THE FULFILLMENT THEREOF,
ALL CITIZENS MAY BE REQUTRED, UNDER CONDITIONS PROVIDED BY
LAW, TO RENDER PERSONAL MILITARY OR CIVIL SERVICE.

1. Compulsory military a n d civil service; protection of peo-


ple and State.

The 1973 counterpart of this provision was Article II, Section 2


which read: "The defense of the State is a prime duty of the government
and the people, and in the fulfillment of this duty all citizens may be re-
quired by law to render personal military or civil service." It was almost
a literal reproduction of Article II, Section 2 of the 1935 Constitution.

In the light of the recent experience with the M a r c o s regime which


placed inordinate emphasis on national security, it w a s understandable
that the Commission should opt for a provision more people-centered
69
than national security-centered. T h u s the old provision was recast to
read: "The prime duty of the G o v e r n m e n t is to serve and protect the
people." National defense is placed merely as one of the m o d e s of serv-
ing and protecting the people.

"See supra, notes 34 and 35 and text.


See IV RECORD at 831-832. See speech of Commissioner Rama against the provision
depicting it as a remnant of the old spirit. Id. at 831.
Sec. 4 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

T h e 1935 provision had been inspired by Section 37 of the Con-


70
stitution of the Spanish Republic. The 1935 provision was thought
necessary because of the recognized inadequacy of a volunteer system
both in terms of military effectiveness and in terms of equality between
the rich and the poor. The report of the Committee on National Defense
71
said in part:

The volunteer system is not suitable for a poor country


which cannot afford to pay the army well enough to attract well
qualified, able-bodied young men to the service. The volunteer
system involves the objectionable feature of entrusting the sacred
mission of defending the country to men lacking in capacity who
have proved failures in other fields of activity. The volunteer sys-
tem is undemocratic, because the cannon fodder, with very few
exceptions, consists of proletarians. The sons of the wealthy can
evade the sacred duty of defending their country, though it is they
who enjoy the advantages obtained through the services rendered
and blood spilled by men to whom fortune has been unkind. A high
morale, which only a person fighting for an ideal can possess, is
very necessary in an army, and with mercenaries fighting for a pit-
tance, such a morale cannot be attained.

While the inspiration of the 1935 provision came from the Span-
ish Constitution, compulsory military service is not without precedent
in the American constitutional system to which the 1935 Constitution
was heir. T h e right of the state to exact compulsory military service
of its citizens, as against the contention that such an exaction would
violate the prohibition of involuntary servitude found in the Thirteenth
Amendment, was definitively established in 1918. In the Selective Draft
Law Cases, the Supreme Court declared that the argument based on
72
the Thirteenth A m e n d m e n t refuted itself: "We are unable to conceive
upon what theory the exaction by the government from the citizen of
the performance of his supreme and noble duty of contributing to the
defense of the rights and honor of the nation, as the result of a war de-
clared by the great representative body of the people, can be said to be
the imposition of involuntary servitude." Moreover, the U.S. Supreme
Court has upheld laws passed in the exercise of this same state power

™I ARUECO, THE FRAMING OF THE PHILIPPINE CONSTITUTION at 135.


"W. at 136.
"245 U.S. 366,390 (1918).
68 THE 1987 CONSTITUTION Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

requiring compulsory civilian labor of those who are excused from mil-
75
itary service.
The first Philippine case on the subject was People v. LagmanP*
The accused in this case, prosecuted for failure to register for military
service under the National Defense Act, assailed the validity of the Act.
The Supreme Court upheld the law on the basis of Section 2 [1935
75
Constitution] saying:

The National Defense Law, in so far as it establishes com-


pulsory military service, does not go against this constitutional
provision but is, on the contrary, in faithful compliance therewith.
The duty of the Government to defend the State cannot be per-
formed except through an army. To leave the organization of an
army to the will of the citizens would be to make this duty of the
Government excusable should there be no sufficient men who vol-
unteer to enlist therein.

In the United States the courts have held in a series of deci-


sions that the compulsory military service adopted by reason of
the civil war and the world war does not violate the Constitution,
because the power to establish it is derived from that granted to
Congress to declare war and to organize and maintain an army.
This is so because the right of the Government to require com-
pulsory military service is a consequence of its duty to defend the
State and is reciprocal with its duty to defend the life, liberty, and
property of the citizen. In the case of Jacobson v. Massachusetts
(197 (7.5., 11; 25 Sup. Ct. Rep., 385), it was said that, without
violating the Constitution; a person may be compelled by force, if
need be, against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place in the
ranks of the army of his country, and risk the chance of being shot
down in its defense. In the case of United States vs. Olson (253
Fed., 233), it was also said that this is not deprivation of property
without due process of law, because, in its just sense, there is no
right of property to an office or employment. The circumstance
that these decisions refer to laws enacted by reason of the actual
existence of war does not make our case any different, inasmuch
as, in the last analysis, what justifies compulsory military service

"SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES. PART III, RIGHTS OF
THE PERSON 805 (1968).
74
66Phil. 13 (1938).
''Id. at 15-6.
Sec. 4 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles

is the defense of the State whether actual or whether in preparation


to make it more effective, in case of need.

The circumstance that the appellants have dependent fami-


lies to support does not excuse them from their duty to present
themselves before the Acceptance Board because, if such circum-
stance exists, they can ask for deferment in complying with their
duty and, at all events, they can obtain the proper pecuniary al-
lowance to these family responsibilities (Sees. 65 and 69 of Com-
monwealth Act No. 1).

After the Second World War, the Supreme Court once mc


had occasion to appeal to Section 2 [1935 Constitution]. In People
76
Manayao, the Supreme Court said:

This constitutional provision covers both time of peace and


time of war, but it is brought more immediately and perempto-
rily into play when the country is involved in war. During such a
period of stress, under a constitution enshrining such tenets, the
citizen cannot be considered free to cast off his loyalty and obliga-
tions toward the Fatherland. And it cannot be supposed, without
reflecting on the patriotism and intelligence of the Legislature, that
in promulgating Commonwealth Act No. 63, under the aegis of
our Constitution, it intended (but did not declare) that the duties of
the citizen solemnly proclaimed in the above-quoted constitutional
precept could be effectively cast off by him even when his country
is at war, by the simple expedient of subscribing to an oath of al-
legiance to support the constitution or laws of a foreign country,
and an enemy country at that, or by accepting a commission in the
military, naval or air service of such country, or by deserting from
the Philippine Army, Navy, or Air Corps.

It would shock the conscience of any enlightened citizenry


to say that this appellant, by the very fact of committing the trea-
sonous acts charged against him, the doing of which under the cir-
cumstances of record he does not deny, divested himself of his
Philippine citizenship and thereby placed himself beyond the arm
of the law. For if this were so, his very crime would be the shield
that would protect him from punishment.

76
78 Phil. 721, 727 (1947).
70 THE 1987 CONSTITUTION Sec. 5
OF THE REPUBLIC OF THE PHILIPPINES

The 1973 provision altered the 1935 version and declared national
defense to be a prime duty not just of the government but also of the
people. The addition of the words "and the people" was objected to on
the ground that national defense was the duty only of citizens and not
of all the people, citizens and aliens alike. Sponsors of the provision
immediately explained that people in this section meant citizens. Refer-
ence was made to Article V, Section 1 (1973), which said: "It shall be
7 7
the duty of the citizens ... to defend the state . . . " Moreover, reflecting
the preoccupation of the martial law period which overtook the Con-
vention, it was pointed out that the citizen's duty was to defend the state
78
against both external and internal aggression.

As far as the constitutional doctrine on compulsory military and


civil service is concerned, the 1987 provision has preserved existing
jurisprudence on the subject. One alteration m a d e on the text is the
addition of the phrase "under conditions provided by law." This was
placed in lieu of "with due regard for objections of conscience" and
was intended to give to Congress a flexible guideline for dealing with
79
conscientious objectors; but no new doctrine w a s thereby formulated.

SEC. 5. THE MAINTENANCE OF PEACE AND ORDER, THE


PROTECTION OF LIFE, LIBERTY, AND PROPERTY, AND THE PROMOTION
OF THE GENERAL WELFARE ARE ESSENTIAL FOR THE ENJOYMENT BY
ALL THE PEOPLE OF THE BLESSINGS OF DEMOCRACY.

1. Peace a n d order, general welfare.

This provision has no counterpart either in the 1935 or in the 1973


Constitution. The mention of "maintenance of peace and order" pro-
voked the objection that it could create the notion that peace and order
must be promoted at all cost and even at the expense of justice and
could encourage the use of military solutions to what could normally
be treated as social, economic and political p r o b l e m s . But its author,
Commissioner Ambrosio Padilla, explained that the provision recog-

"Session of November 25, 1972. Later, however, on November 27, 1972, Delegate de
Guzman said that while aliens may not be compelled to render personal military or civil service,
all those enjoying the protection of the state may be required in some other manner to assist in the
defense of the state.
The 1987 Constitution no longer contains a separate article on duties and obligations of
citizens.
"Session of November 27,1972.
"See IV RECORD 666-667,681,691-692,742.
oiaie roiicies

a hierarchy of rights — first, life; second, liberty; and only th


80
:rty.

SEC. 6. THE SEPARATION OF CHURCH AND STATE SHALL BE


INVIOLABLE.

1. Separation of C h u r c h and State.

This provision is discussed under the non-establishment claus


ill of Rights.

STATE POLICIES

SEC. 7. THE STATE SHALL PURSUE AN INDEPENDENT FOREIGN


POLICY. IN ITS RELATIONS WITH OTHER STATES THE PARAMOUNT
CONSIDERATION SHALL BE NATIONAL SOVEREIGNTY, TERRITORIAL
INTEGRITY, NATIONAL INTEREST, AND THE RIGHT TO SELF-
DETERMINATION.

1. An independent foreign policy.

Although Section 7 might read like a coldly detached staten


rinciple, it in fact is a by-product of the less than detached disc
of the future of the military bases in Clark and Subic. The w
i o n s " covers the whole gamut of treaties and international agi
> and other kinds of intercourse. The Section is the closest re:
to military bases that a dominant majority in the Constitutio
nission would allow in the body of the Constitution. Although
vhelming sentiment was that only American military bases co
be allowed, and under terms dictated in Article XVIII, Section
>me inexplicable logic the dominant majority refused to accept
citation of the general principle that " N o foreign military bas
8
s or facilities shall be allowed in Philippine territory." '

Section 7 states a principle which no one will dispute but fide!


82
lich will always be a matter of dispute.

""V RECORD 11-14.


"See IV RECORD 778-813 and discussions of Article XVID, Section 25.
"The issue of neutrality was discussed in connection with this provision but the propos.
neutrality as a policy was abandoned. See Id. at 583, 592-593, 613-615,635-636,655-(
41-742,753-755.
72 THE 1987 CONSTITUTION Sec. 8
OF THE REPUBLIC OF THE PHILIPPINES

SEC. 8. THE PHILIPPINES, CONSISTENT WITH THE NATIONAL


INTEREST, ADOPTS AND PURSUES A POLICY OF FREEDOM FROM NUCLEAR
WEAPONS IN ITS TERRITORY.

1. A policy of freedom from nuclear weapons.


The original formulation of this provision read thus: "The Philip-
pines is a nuclear-free country. No portion of its territory shall be used
for the purpose of storing or stockpiling nuclear weapons, devices or
83
parts thereof." Speaking for the provision, Commissioner Azcuna said:

I do not have to elaborate, Madame President, the enormous


destructive capacity of nuclear weapons, particularly, because Asia
has had the distinct misfortune of being the only place in the world
where nuclear weapons were dropped and exploded during war.
It was not too long ago that Asia and the world commemorated
that fateful event. Since the dropping of atomic bombs in Japan
towards the end of World War II, the technology of nuclear
weapons has multiplied tremendously such that the weapons
dropped in Japan are only used as trigger devices for the weapons
of today. Those bombs were merely atomic bombs. The bombs of
today are hydrogen bombs. Those bombs merely used fission as a
principle. The bombs of today use fusion, the very power of the
sun — fusion of nuclear particles, releasing tremendous energy.

An explosion of a nuclear bomb, Madam President, is con-


sidered an uncontrolled nuclear reaction. That is the definition of a
nuclear explosion. What we seek to prevent from happening with-
in our land is the occurrence of an uncontrolled nuclear reaction.
Why put it in the Constitution? Why not leave it to the President,
why not leave it to the Senate, to deal with these matters? Madam
President, we are here framing a constitution. We are here in that
part of the Constitution which we call the Article on the Declara-
tion of Principles. We say that the Constitution is a reflection of the
aspirations and the ideals, and even the fears, of our people. Then
why be silent about this?

The provision, as it stands now, raises two questions. First, what


are banned by the provision? Second, h o w absolute is the ban?

Clearly, the ban is only on nuclear arms — that is, the use and
stockpiling of nuclear w e a p o n s , devices, and parts thereof. And this

"Id. at 587. See also Id. at 588-589,681, 815.


Sec. 8 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
State Policies

includes, according to Commissioner Azcuna, "not only possessing,


controlling and manufacturing nuclear weapons, but also nuclear tests
in our territory, as well as the use of our territory as dumping ground for
84
radioactive wastes." Moreover, the ban suggests that, in our relations
with other states, there must be a mechanism for the verification of the
85
existence or non-existence of nuclear arms. This will therefore affect
the terms of any renewal the country might agree to of existing military
bases agreements with the United States. T h e provision must be read as
a mandate to the Philippine government to insist that the pursuit of a
policy on nuclear weapons is a controlling guideline if there should be
any n e w negotiation with the United States on the subject of military
86
bases.

T h e provision, however, is not a ban on the peaceful uses of nucle-


87
ar energy. N o r is it a ban on all "nuclear-capable vessels." For a vessel
to be banned, it is not enough that it is capable of carrying nuclear arms;
88
it must actually carry nuclear arms.

T h e original formulation of the provision, cited above, might sug-


gest that the ban on nuclear arms is absolute. But, as explained by Com-
89
missioner Azcuna, that was never the intention:

In my sponsorship speech, I pointed out that this is a policy,


albeit a basic policy because it is stated in the Declaration of Prin-
ciples and State Policies in the Constitution. Consequently, what
we are seeking here is primarily a statement of an orientation,
a basic direction in the Constitution, that as a matter of policy,
we are against nuclear weapons in our territory. As practiced by
other states, that means prohibition not only of possessing, con-
trolling and manufacturing nuclear weapons, but also of nuclear
tests in our territory, as well as the use of our territory as a dump-
ing ground for radioactive wastes. This is embraced in the policy
against nuclear weapons in one's territory. As practiced both in
Latin America, under the Treaty of Tlatelolco, as well as by the
South Pacific countries that endorsed the Treaty of Rarotonga, pas-
sage of ships, whether nuclear-powered or nuclear-arms-bearing,

M
W.at818.
"Id. at 815.
"Id. at 816.
"Id. at 663,666,667-668
"Id. at 819. See also 828.
m
ld. at 818. See also Id. at 819-821.
74 THE 1987 CONSTITUTION Sec. 8
OF THE REPUBLIC OF THE PHILIPPINES

is left to the determination of every state on a case-to-case basis.


It is not per se a violation of a nuclear weapons free zone to allow
a ship that is nuclear-powered or bearing nuclear weapons to pass
or enter one's territory. However, it has to be done in the light of
policy.
There is a policy against the presence of nuclear weapons
and, therefore, the exceptions to that policy would have to be
strictly construed or justified. What we are saying with the for-
mulation now is that it can be justified only on the basis or on the
crucible of the national interest. If it is consistent with the national
interest, then really there is the possibility of deviating from that
policy but the policy is there. The basic direction is there. There
can be deviations now and then because we said that this is not a
100 percent rule; this is not absolute. But deviations must be justi-
fied on the basis and the crucible or test of national interest.

Azcuna, however, did not explicate what the exception would b e .

The exception first surfaced in the reformulation which was word-


ed thus: "The Philippines shall, consistent with considerations solely
of national interest, pursue a policy of freedom from nuclear weapons
in its territory." Explaining this reformulation, Commissioner M o n s o d
said that whether or not to allow nuclear weapons would be decided
on the basis of what is best for the "national interest" as this might be
90
defined by the executive and legislative departments. Later the word
"solely" was dropped in order not to suggest that the nation's commit-
ment to a policy against nuclear arms w a s dictated solely by national
interest; the opposition could also be based, for e x a m p l e , on the desire
91
for peace in the region.

But that was not to be the end of the discussion. Concerned about
media reports which tended to read the provision as a total and absolute
ban on nuclear a r m s , Commissioner M o n s o d wanted to be doubly sure
of what the meaning was of the phrase "consistent with the national
interest" and so he wanted it rephrased to read "subject to the national
interest." T h u s , he elicited from C o m m i s s i o n e r A z c u n a the explana-
tion that "consistent with" means "subject t o , " that is, "that both the

"Id. at 814.
"Id. at 816.
Sec. 9 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 75
State Policies

adoption and the pursuit of the policy, as well as any exception there-
92
from, must be subject to the national interest." Still uneasy about the
possibility of misinterpretation, Commissioner Monsod asked for the
approval of a clarificatory resolution. Co-authored by several Commis-
93
sioners, the resolution read:

Resolved that since it is the intent and sense of the Consti-


tutional Commission that the phrase "consistent with the national
interest" in Section 7 [now Section 8] of the Article on Declaration
of Principles involving the policy on nuclear weapons in Philip-
pine territory also means "subject to the national interest" as borne
by the records of the proceedings and the unanimous manifestation
of the Members of the Commission, the motion to reconsider and
amend such provision filed by 28 Commissioners is deemed un-
necessary and withdrawn from further consideration but is hereby
incorporated in the records of the Commission.

No one objected to the resolution and the problem was deemed


settled.

SEC. 9. THE STATE SHALL PROMOTE A JUST AND DYNAMIC


SOCIAL ORDER THAT WILL ENSURE THE PROSPERITY AND INDEPENDENCE
OF THE NATION AND FREE THE PEOPLE FROM POVERTY THROUGH
POLICIES THAT PROVIDE ADEQUATE SOCIAL SERVICES, PROMOTE FULL
EMPLOYMENT, A RISING STANDARD OF LIVING, AND AN IMPROVED
QUALITY OF LIFE FOR ALL.

1. Social order.
Perhaps the best commentary on this provision is the draft whence
it c a m e . The original proposal said: "The prime concern of the State is
the promotion and establishment of a socio-political and economic sys-
tem that will ensure the independence of the nation and aims to secure
for the people the benefits of full employment, a high standard of living,
equality in economic opportunities, security in old age, and other ba-
sic human rights." It reflects a preoccupation with poverty as resulting
from structures that mire the people in a life of dependence. Hence the
provision is closely linked with the provision on social justice which
follows.

n
ld. at 826.
,3
W.at648.
76 THE 1987 CONSTITUTION Sec.10
OF THE REPUBLIC OF THE PHILIPPINES

SEC. 1 0 . THE STATE SHALL PROMOTE SOCIAL JUSTICE IN ALL


PHASES OF NATIONAL DEVELOPMENT.

1. Social Justice in the 1935 Constitution.

Constitutional law arrived in the Philippines long after "due pro-


cess" had become recognized not just as a procedural restraint but also
as a substantive restraint upon governmental action. Although frequent-
ly invoked, however, as a protest against arbitrariness in legislation,
substantive due process was rarely invoked with success. From the very
beginning, the Supreme Court gave generous latitude to legislation de-
signed to promote public health, public safety or public welfare-even
when legislation collided with the rights to life, liberty, or property. Of
the pre-1935 cases, however, one case stands out as deficient in social
9
conscience: People v. Pomar. *

At issue in Pomar was freedom of contract. T h e case dealt with


a statute prescribing a thirty- day vacation with pay both before and
after confinement arising from pregnancy. T h e Court said: " T h e rule in
this jurisdiction is, that the contracting parties may establish any agree-
ments, terms, and conditions they may d e e m advisable, provided they
95
are not contrary to law, morals or public policy." Relying chiefly on
96
early American cases that still embodied the doctrine of laissez faire,
the Philippine Supreme Court struck down the statute as an invasion
of freedom of contract. The Court said that "the right to contract about
one's affairs is a part of the liberty of the individual guaranteed by this
[due process] clause ...'"" The Court also approved of the "equality of
right" principle: "In all such particulars the employer and the employee
have equality of right, and any legislation that disturbs that equality is
an arbitrary interference with the liberty of contract, which no govern-
98
ment can legally justify in a free land . . . " Police power, the Court
conceded, is an expanding power; but it "cannot grow faster than the
fundamental law of the state. ... If the people desire to have the police

M
4 6 Phil. 440 (1924).
n
Id. at 456, relying on Article 1255 of the (old) Civil code.
"Adkins v. Children's Hospital 261 U.S. 525 (1923); Adair v. U.S. 208 U.S. 161, 174
(1908); Coppage v. Kansas, 236 U.S. 1,14 (1915); Mugler v. Kansas, 123 U.S. 623 (1887).
"46 Phil, at 449.
"W. at 452.
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
State Policies

power extended and applied to conditions and things prohibited by the


99
organic law, they must first amend that law."

W h e n the Pomar decision came up for criticism in the Constitu-


tional Convention of 1935, Delegate Laurel contended that the Pomar
decision could no longer stand because of the "social provisions" of the
100
new (1935) constitution. Chief a m o n g these provisions was Section
5 of Article II which said: " T h e promotion of social justice to insure
the well-being and economic security of all the people should be the
concern of the State."

In the course of the 1935 Convention, principally through the ad-


vocacy of Delegate Locsin, the idea of social justice was developed to
101
mean:

[j]ustice to the common tao, the "little man" so-called. It


means justice to him, his wife, and children in relation to their
employers in the factories, in the farms, in the mines, and in other
employment's. It means justice to him in the education of his chil-
dren in the schools, in his dealings with the different offices of
government, including the courts of justice.

In other w o r d s , what the declaration of principles advocated was


nothing less than the idea echoed in the slogans used by many a can-
didate for delegate to the 1971 Constitutional Convention: Those who
have less in life should have more in law.

The idea of social justice also came up during the debates on


the contract clause. Delegate Locsin again, strongly influenced by
Roosevelt's N e w Deal Program and expressing profound concern for
the working-man bound to service by inequitable contracts, advocated
elimination of the contract clause. He considered existing jurisprudence
on police power an inadequate counterbalance to the unequivocal tenor
of the contract clause: "que peso tendria un enunciado abstracto sujeto
a pronunciamientos contradictorios para contravenir un dictum tan
m
inequivocante constitutional?" Locsin's proposal, however, was

m
ld. at 4 5 5 - 6 .
, 0 0
3 J O U R N A L O F T H E ( 1 9 3 5 ) C O N S T I T U T I O N A L C O N V E N T I O N 1 0 7 3 (FRANCISCO
ed.).
1 0 1
1 J. ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 1 4 7 ( 1 9 3 6 ) .
"»3 J O U R N A L 1 1 7 9 .
78 THE 1987 CONSTITUTION Sec. 10
OF THE REPUBLIC OF THE PHILIPPINES

rejected on the understanding that the interest of the working man


was sufficiently protected by police power as superior to the contract
03
clause.'
The impact of the 1935 Constitution on Philippine jurisprudence
first appeared as a tentative probing made by Justice Laurel in one of
104
the early decisions under the 1935 Constitution:

... the legislation which [we] are now called upon to con-
strue was enacted in pursuance of what appears to be the deliberate
embodiment of a new social policy, founded on the conception of a
society integrated not by independent individuals dealing at arm's
length, but by interdependent members of a consolidated whole
whose interests must be protected against mutual aggression and
warfare among and between diverse and diverse units which are
impelled by countervailing and opposite individual and group in-
terests. ... In the United States labor legislation has undergone a
long process of development too long to narrate here ... Scrutiny
of legislation in that country and of pronouncements made by its
Supreme Court reveals a continuous renovation and change made
necessary by the impact of changing needs and economic pres-
sure brought about by the irresistible momentum of new social and
economic forces developed there. In the light of changes that have
occurred, it is doubted if the pronouncements made by the said Su-
preme Court in 1905 or in 1908 ... — cases which are relied upon
by the petitioner in its printed memorandum — still retain their
virtuality at the present time. In the Philippines, social legislation
has had a similar development. ... In the midst of changes that
have taken place, it may likewise be doubted if the pronouncement
made by this court in the case of People v. Pomar ... — also relied
upon by the petitioner in its printed memorandum — still retains
its virtuality as a living principle. The policy of laissez faire has
to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with
public interests.

l03
/<z.at 1184-90.
l04
Antamok Goldfields Mining Co. v. Court of Industrial Relations, 70 Phil. 340, 359-60
(1940), quoting an unpublished portion of Laurel's opinion in Ang Tibay v. Court of Agrarian
Relations, 69 Phil. 635 (1940).
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
State Policies

101
The foundation for this change had been laid by the Constitution:

It should be observed at the outset that our Constitution was


adopted in the midst of surging unrest and dissatisfaction result-
ing from economic and social distress which was threatening the
stability of governments the world over. Alive to the social and
economic forces at work, the trainers of our Constitution boldly
met the problems and difficulties which faced them and endeav-
ored to crystallize, with more or less fidelity, the political, social
and economic propositions of their age, and this they did, with
the consciousness that the political and philosophical aphorism of
their generation will, in the language of a great jurist, "be doubted
by the next and perhaps entirely discarded by the third." Embody-
ing the spirit of the present epoch, general provisions were inserted
in the Constitution which are intended to bring about the needed
social and economic equilibrium between component elements
of society through the application of what may be termed as the
justitia communis advocated by Grotius and Leibnitz many years
ago to be secured through the counterbalancing of economic and
social forces and opportunities which should be regulated, if not
controlled, by the State or placed, as it were, in custodia societa-
tis. "The promotion of social justice to insure the well-being and
economic security of all the people" was thus inserted as vital prin-
ciple in our Constitution. ... And in order that this declaration of
principle may not just be an empty medley of words, the Constitu-
tion in various sections thereof has provided the means towards
its realization. For instance, Section 6 of Article XIII declares that
the State "shall afford protection to labor, especially to working
women and minors, and shall regulate the relations between land-
owner and tenant, and between labor and capital in industry and
in agriculture." The same section also states that "the State may
provide for compulsory arbitration." In extraordinary cases men-
tioned in Section 16, Article VI, of the Constitution, the President
of the Philippines may be authorized by law, for a limited period
and subject to such restrictions as the National Assembly may pre-
scribe, to "promulgate rules and regulations to carry out a declared
national policy."

Laurel's tentative probe eventually became a clear and definitive


doctrine which revolutionized jurisprudence on property. Government

,05
70 Phil. 356-7.
80 THE 1987 CONSTrTUTION Sec.10
OF THE REPUBLIC OF THE PHILIPPINES

became clearly recognized as equipped with sufficient power to push


forward a land reform and labor program designed to ameliorate the
conditions of the masses. This minor revolution will be examined in
some detail particularly in the discussion of the right of property, the
106
obligation of contracts, and the power of eminent domain.

2. Social justice in the 1973 Constitution.

Many delegates to the 1971 Constitutional Convention were ap-


parently unaware that existing jurisprudence had already formulated
a very socially oriented concept of property. Some of them spoke of
changing the concept of property from an "absolute concept" to one
imbued with a social conscience. For instance, the Committee on Dec-
laration of Principles and Ideologies, after stating that the concept of
property in the committee report "obliges all persons to use their prop-
erty to benefit not only [the owners] but [also] society" added the ex-
107
planation that "The right to property is changed in concept." In truth,
however, what the 1973 Constitution succeeded in doing was merely
to preserve and codify what had already been accomplished under the
1935 Constitution.

Section 6, Article II, of the 1973 Constitution said: " T h e State


shall promote social justice to ensure the dignity, welfare, and security
of all the people. Towards this end, the State shall regulate the acquisi-
tion, ownership, use, enjoyment, and disposition of private property,
and equitably diffuse property ownership and profits."

The constitutional c o m m a n d was addressed to the legislative arm


which creates policy, to the executive arm which implements policy,
and to the judicial arm which interprets policy. U n d e r the 1973 Con-
stitution, where the President was both executive and legislator, the re-
sponse to the social justice c o m m a n d c a m e principally from the Presi-
dent. Presidential Decree N o . 27 of October 2 1 , 1 9 7 2 , which sought to
emancipate the tenants from the bondage of the soil, while antedating
implementation of the constitutional c o m m a n d by a few m o n t h s , w a s
the most dramatic attempt at an executive-legislative response. It or-
dained that all tenant farmers "of private agricultural lands devoted to

Article III, Sections 1,9 and 10, Article II, Section 21, and Article XIII, Sections 4 and 8.
Section 6, Report No. 1, Committee on Declaration of Principles and Ideologies (1971).
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 81
State Policies

rice and c o m under a system of sharecrop or lease-tenancy, whether


classified as landed estates or not" shall be deemed "owner of a portion
constituting a family-size farm of five (5) hectares if not irrigated and
three (3) hectares if irrigated." But the luster of this dramatic response
was marred not just by decrees which curtailed other rights of laborers
and tenants but also by the preferential treatment government gave to
the acquisitive tendency of large multi-national corporations.

The judicial response c a m e in the form of a growing number of


08
cases which emphasized the urgency of the state's task' and which
m a d e constant, almost tiresome, appeal to the social justice clause even
in controversies which could be solved by simple application of stat-
utes. But there were significant pedagogic decisions clearly teaching
for instance that mere procedural technicalities should not be allowed to
109
get in the way of adequate protection for labor and also clearly estab-
lishing that social and welfare legislation must be interpreted liberally
110
in favor of labor.

At the same t i m e , however, the Court was not wanting in caution.


m
T h u s , in National Federation of Sugar Workers v. Ovejera, the Court,
against the strong plea for social justice made by Chief Justice Fernan-
d o , interpreted the 13th-month pay requirement under P.D. N o . 851 as,
from a clear reading of the statute, not applicable to a company already
giving the equivalent in the form of Christmas, milling and amelio-
ration bonuses. M o r e importantly, the Court resisted efforts to stretch
the social justice provision to clearly illegal lengths. Categorically, it
was held that the social justice provision did not legalize usurpation
2
of private or public property by squatters" or otherwise "to trample
on the rights of property owners who under our Constitution and laws
3
are entitled to protection."" Nor did it oblige the Court to be unjust
or unfair to employers. "After all, in the eyes of all fair minded men,
injustice to the more affluent and fortunate sectors of society cannot be

m
E.g., passim, Bormaheco v. Abanes, 52 SCRA 73 (1973); Sabio v. Gonzales, 54 SCRA
261 (1973); De Chavez v. Zobel, 55 SCRA 26 (1974); Victoriano v. Elizalde Rope Workers Union,
59 SCRA 54 (1974). See also cases under Section 18 of this Article.
"»E.g., Estrada v. NLRC, 112 SCRA 688 (March 19,1982).
""E.g., Galceran v. Secretary of Labor, 115 SCRA 300 (July 20, 1982).
"'114 SCRA 354 (May 31, 1982), reversing Marcopper Mining v. Bias Ople, 105 SCRA
75 (June 11,1981).
J
" Astudillo v. Board of Directors, 73 SCRA 15 (September 22, 1976).
3
" Salonga v. Farrales, 105 SCRA 359, 369 (July 10, 1981).
82 THE 1987 CONSTITUTION Sees. 11-12
OF THE REPUBLIC OF THE PHILIPPINES

less condemnable and reprehensible, and should be avoided as much as


,H
injustice to labor and the poor."
In the end, for purposes of the judiciary, the import of social jus-
tice which developed was that when the law is clear and valid, it simply
must be applied; but when the law can be interpreted in more ways than
one, an interpretation that favors the underprivileged must be followed.

3. Social justice under the 1987 Constitution.

The 1987 Constitution builds on the developments on social jus-


tice made under the 1935 and 1973 Constitutions. As will be seen, how-
ever, the 1987 provisions go beyond what was covered by the 1935 and
1973 provisions. The former Constitutions focused their attention on
economic inequities; the new Constitution covers all phases of national
development but with emphasis not just on the socio-economic but also
5
on political and cultural inequities."

To signal the urgency of promoting social justice, an entire article,


Article XIII, is devoted to the subject. Section 10, in fact, w a s approved
as the flagship provision of Article XIII but it was later lifted and trans-
ferred to Article II.

SEC. 11. THE STATE VALUES THE DIGNITY OF EVERY HUMAN


PERSON AND GUARANTEES FULL RESPECT FOR HUMAN RIGHTS.

1. Personal dignity a n d h u m a n rights.

The concretization of this provision is found principally in the Bill


of Rights and in the human rights provisions of Article XIII.

S E C 12. THE STATE RECOGNIZES THE SANCTITY OF FAMILY


LUTE AND SHALL PROTECT AND STRENGTHEN THE FAMILY AS A BASIC
AUTONOMOUS SOCIAL INSTITUTION. IT SHALL EQUALLY PROTECT
THE LIFE OF THE MOTHER AND THE LIFE OF THE UNBORN FROM
CONCEPTION. THE NATURAL AND PRIMARY RIGHT AND DUTY OF
PARENTS IN THE REARING OF THE YOUTH FOR CIVIC EFFICIENCY
AND THE DEVELOPMENT OF MORAL CHARACTER SHALL RECEIVE THE
SUPPORT OF THE GOVERNMENT.

"'Federation of Free Farmers v. Court of Appeals, 107 SCRA 352, 362-3 (September 10,

'"See IV RECORD 864-865.


Sec. 12 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 83
State Policies

1. T h e family as basic social institution.

T h e first part of Section 4 of Article II of the 1973 Constitution


said: " T h e state shall strengthen the family as a basic social institution."
Although it was a new constitutional provision then, it did not express
a new policy. It merely adopted Article 216 of the Civil Code (1950)
which said: " T h e family is a basic social institution which public policy
cherishes and protects." Title VII of the Civil C o d e spelled out in detail
116
measures protective of the family as the basic social institution. The
continuing constitutional policy is for the protection of the family as a
basic social institution. T h u s , in annulment cases, any doubt should be
117
resolved in favor of the validity of a marriage.

T h e purpose of the provision w a s to formalize the adoption of an


118
ideology which recognized the family as the basic social institution.
Positively, the provision enjoined the state to strengthen the family;
negatively, it prohibited the state from adopting measures which can
impair the solidarity of the Filipino family. On the question of divorce,
119
however, the 1973 text did not take a stand.

Section 12 in the 1987 text has recast the sentence to read:


" T h e State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution." An en-
tire article besides, Article XV, is devoted to the family.

The family here is to be understood as a stable heterosexual re-


lationship whether formalized by civilly recognized marriage or not.
Calling the family a "basic" social institution is an assertion that the
family is anterior to the state and is not a creature of the state. The
categorization of the family as "autonomous" is meant to protect the
120
family against instrumentalization by the state.

'"A new family code, Executive Order No. 209, was promulgated by President Aquino on
July 6, 1987 (and amended by Executive Order No. 227 on July 17, 1987), and took effect one
year after its publication.
'"Republic v. Dagdag,GJt. No. 109975, February 9,2001; Malcampo-Sin v. Sin.GJl. No.
'.37590, March 26,2001.
"'Speech of Delegate Corpus, Session of November 24, 1972.
'"See remark of Delegate Maria Clara L. Lobregat, Session of April 20, 1972. Delegate
Trillana, however, already saw in this provision a prohibition of divorce. Session of April 22,1972.
"TV RECORD 808-809; V RECORD 54-55.
84 THE 1987 CONSTITUTION Sec.12
OF THE REPUBLIC OF THE PHILIPPINES

2. Protection of the unborn.


The formula that is found as the second sentence of Section 12
is the product of much debate. It is first of all important to understand
what it does not assert. It does not say that the u n b o m is a legal person;
nor does it deny, however, that the state under certain conditions might
21
regard the unborn as a person.' It does not assert that the life of the
unborn is placed on exactly the same level as the life of the mother. It
recognizes that, when necessary to save the life of the mother, it may be
necessary and legitimate to sacrifice the life of the u n b o m . It, however,
denies that the life of the u n b o m may be sacrificed merely to save the
mother from emotional suffering or to spare the child from a life of
poverty. The emotional trauma of a mother as well as the welfare of the
child after birth can be attended to through other means such as availing
of the resources of welfare agencies. T h e provision, in fact, is intended
primarily to prevent the state from adopting the doctrine in the United
n2
States Supreme Court decision of Roe v. Wade which liberalized abor-
tion laws up to the sixth month of pregnancy by allowing abortion at the
discretion of the mother any time during the first six months when it can
123
be done without danger to the mother.

The unborn's entitlement to protection begins "from conception,"


that is, from the m o m e n t of conception. T h e intention is to protect life
from its beginning, and the assumption is that human life begins at con-
ception and that conception takes place at fertilization. There is, how-
ever, no attempt to pin-point the exact m o m e n t w h e n conception takes
place. But while the provision does not assert with certainty when hu-
man life precisely begins, it reflects the view that, in dealing with the
124
protection of life, it is necessary to take the safer approach.

Incidentally, too, the respect for life manifested by the provision


harmonizes with the abolition of the death penalty and the ban on nu-
clear arms.

'"E.g., Articles 40 and 41, Civil Code of the Philippines.


,22
410 U.S. 113(1973).
™Seepassim I RECORD 689-698,721-723; IV RECORD 596-602,668-700.705-761.
IM
IV RECORD 799-811. The provision clearly reflects a Catholic approach to the problem.
Advocacy of the provision was bom principally by Bishop Bacani and Commissioner Bernardo
Villegas, a stalwart Catholic layman.
State Policies

3. Natural right and duty of parents.

Modern society recognizes the indispensable role which the r


state has to play in the field of education. This role is perfoi
tie state either through state established schools or through
lation of private institutions of learning. This subject is treate
Constitution primarily in Article XIV, more fully than it ever w
er constitutions..

T h e 1973 provision, in Article II, Section 4, already not only


zed the family as the basic social institution but also recognize*
ral right and duty of parents, as heads of the family, in prep*
children for a socially useful and upright life. "The natural i
iuty of parents in the rearing of the youth for civic efficiency :
ive the aid and support of the Government." This portion of Sec
s a reproduction of Article II, Section 4 of the 1935 Constitutic
id the government not in opposition to but in support of the na
: and duty of parents. It was a logical corollary to the recognitic
amily as the basic social institution.

The 1987 provision has added the adjective "primary" to mc


ight of parents. It imports the assertion that the right of parer
125
rior to that of the state.

T h e provision, both as it is now and as it was originally embo


le 1935 and 1973 Constitutions, also has its root in the basic
phy of liberty guaranteed by the due process clause. Thus, in M
zbraska™ a statute prohibiting the teaching of German to stud
:
3 a certain age was declared invalid. The Supreme Court said:'

For the welfare of his Ideal Commonwealth, Plato suggested


a law which should provide: "That the wives of our guardians are
to be common, and their children are to be common, and no par-
ents is to know his own child nor any child his parent . . . The
proper officers will take the offspring of the good parents to the
pen or fold, and there they will deposit them with certain nurses
who dwell in a separate quarter; but the offspring of the inferior,
or the better when they chance to be deformed will be put away
in some mysterious, unknown place, as they should be." In order

m
Id. at 809.
,J6
262 U.S. 390 (1922).
m
W . at 401-2.
86 THE 1987 CONSTTrUTION Sec.12
OF THE REPUBLIC OF THE PHILIPPINES

to submerge the individual and develop ideal citizens, Sparta as-


sembled the males at seven into barracks and entrusted their subse-
quent education and training to official guardians. Although such
measures have been deliberately approved by men of great genius,
their ideas touching the relation between individual and state were
wholly different from those upon which our institutions rest; and
it hardly will be affirmed that any legislature could impose such
restrictions upon the people of a state without doing violence to
both letter and spirit of the Constitution.

m
Again in Pierce v. Society of Sisters, which invalidated a law
requiring children up to a certain age to go to public schools only, the
29
Supreme Court said:'

The fundamental theory of liberty upon which all govern-


ments in this Union repose excludes any general power of the state
to standardize its children by forcing them to accept instruction
from public teachers only. The child is not the mere creature of the
state; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for ad-
ditional obligations.

m
Thus, again, in Wisconsin v. Yoder the Supreme Court said that
"only those interests [of the State] of the highest order and those not
otherwise served can over-balance" the primary interest of parents in
the religious upbringing of their children.

In the exercise of their natural right and duty, parents are entitled
to the support of laws designed to aid t h e m in the discharge of their re-
sponsibility. Various laws, for instance, giving legitimate financial sup-
131
port for private school students, have been upheld. Moreover, in rec-
ognition of the supporting role of the state in the upbringing of children,
the law recognizes in the state a power of control over the conduct of
132
children which reaches beyond the scope of its authority over adults.

,28
2 6 2 U . S . 510 (1925).
l29
W.at535.
13O
106 U.S. 205 (1972). See also discussion under Article HI, Section 5.
m
See Everson v. Board of Education, 330 U.S. 1 (1947); Board of Allen, 392 U.S. 236
(1968); Tilton v. Richardson,403 U.S. 672 (1971).
l32
Prince v. Massachusetts, 321 U.S. 158 (1944); Ginsberg v. New York, 390 U.S. 629
(1968).
Sec.13 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 87
State Policies

This provision also highlights the inherent duty of the state to act
as parens patriae and to protect the right of persons and individuals
who because of age or inherent incapacity are in an unfavorable posi-
tion vis-a-vis other parties. Court decisions have called attention to the
inherent connection between the duty of the state as parens patriae and
the concern of the fundamental law for the strengthening of the fam-
1
ily as a basic social institution. " Likewise, in upholding the power of
schools to take disciplinary action for acts committed outside the school
c a m p u s , the Court has adverted to the duty of the state to aid schools
in the development of moral character. T h e Court has held that while
the authority of the school is generally confined within the school cam-
p u s , schools may take disciplinary action (1) in respect to violations of
school policies in connection with school sponsored activities or (2)
where the misconduct affects the student's status or the good name or
134
reputation of the school.

SEC. 1 3 . THE STATE RECOGNIZES THE VITAL ROLE OF THE


YOUTH IN NATION-BUILDING AND SHALL PROMOTE AND PROTECT
THEIR PHYSICAL, MORAL, SPIRITUAL, INTELLECTUAL, AND SOCIAL
WELL-BEING. IT SHALL INCULCATE IN THE YOUTH PATRIOTISM AND
NATIONALISM, AND ENCOURAGE THEIR INVOLVEMENT IN PUBLIC AND
CIVIC AFFAIRS.

1. Vital role of y o u t h .

Section 5, Article II, of the 1973 Constitution said: "The State rec-
ognizes the vital role of the youth in nation-building and shall promote
their physical, intellectual, and social well being." This was taken from
an entire article on youth which had been approved on second reading
on M a y 3 , 1 9 7 2 . The article contained the following provisions:

Section 1. The State recognizes the vital role of the youth in


the development and defense of society. To enable them to fulfill
this role, the State shall:
(1) Provide for their health, education, training, social
welfare, employment opportunity and community support;

'"People v. Baylon, 57 SCRA 114,121 (May 29.1974); Cabanas v. Pilapil, 58 SCRA 94,
99 (July 25,1974).
134
Angeles v. Judge Sison, 112 SCRA 26 (February 16, 1982).
88
THE 1987 CONSTITUTION Sec. 14
OF THE REPUBLIC OF THE PHILIPPINES

(2) Extend social protection to minors against all forms of


neglect, cruelty, exploitation, immorality, and practices which may
foster racial, religious, or other forms of discrimination.
(3) Recognize and strengthen the family as a basic social
institution and aid legitimate associations and youth service orga-
nizations in the preparation of youth for civic involvement.
Section 2. The State may call upon the youth between fifteen
and twenty-three to render service to the nation in development
and welfare programs of the government or in government-assist-
ed projects with such incentives and under such conditions as may
be determined by law.
Section 3. Congress shall create a National Youth Commis-
sion to coordinate the planning and implementation of government
programs concerned with child and youth development.

Report N o . 2 of the Committee on Youth (1971) had this to say on


its draft article on youth:

A comprehensive program for the development of children


and youth calls for attention to their health, welfare, education,
training, productivity, and community involvement. The adequate
satisfaction of these different aspects of young people's needs is
utterly wanting in this country. Not the least of the reasons for this
is [sic] the limited available resources of the nation, compounded
by accelerated population growth which threatens to cancel out
the possibility of raising the levels of adequacy in meeting those
needs. But more significant is the failure to appreciate properly the
role of children and youth in society and the substantial returns that
would accrue from a determined investment in their development.
This is manifest from the absence in the Constitution of a definite
and comprehensive policy for youth development, the fragmented
approach of the government in meeting the needs and problems of
children and youth, and the failure to draw the children and youth
into the mainstream of national life.

The 1987 provision, although slightly longer than the 1973 coun-
terpart, has added nothing significant.

SEC. 1 4 . THE STATE RECOGNIZES THE ROLE OF WOMEN IN


NATION-BUILDING, AND SHALL ENSURE THE FUNDAMENTAL EQUALITY
BEFORE THE LAW OF WOMEN AND MEN.
Sec. 15 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 89
State Policies

1. Equality of w o m e n and m e n .

This provision is new. Beyond stating that women do have a role


in nation-building, the provision makes the more important assertion
that there exists a fundamental equality of women and men before the
law. There w a s , however, no intent to advocate absolute sameness be-
cause there are obvious biological differences between men and wom-
135
en. It was precisely to m a k e r o o m for these natural differences that the
136
provision was m a d e to read "fundamental equality before the law."

During the period of sponsorship and interpellation, Commis-


sioner Felicitas A q u i n o took the position that the intention was to for-
mulate the provision in language that would be "self-implementing"
and would repeal all discriminatory and anti-feminist laws in the Civil
C o d e . During the period of a m e n d m e n t , however, Commissioner Aqui-
no changed her position. Answering questions from the floor, she made
it clear that the intent was not to achieve an ipso facto repeal of laws
offensive to equality but merely to give a push to statutory legislation
that would eliminate the inequalities found in existing law. The follow-
137
ing exchange should shed light:

FR. BERNAS. My problem is that a mere intent unspecified


in a constitutional provision and an intent which runs contrary to
the letter is not just a vagueness in the letter. The letter would have
to prevail over whatever unexpressed intent there is since the letter
is clear. The letter expresses equal protection and every inequality
in existing law must yield to it.
MS. AQUINO. The problem is that if we provide for an ipso
facto amendment of the Civil Code, particularly pertaining to the
laws on personal and family relations, the determination of the
rights and duties pertaining thereto carries with it intricate details
which could not proceed from a vacuum . . . .

And so the matter was left at that.

SEC. 1 5 . THE STATE SHALL PROTECT AND PROMOTE THE RIGHT


TO HEALTH OF THE PEOPLE AND INSTILL HEALTH CONSCIOUSNESS
AMONG THEM.

I35
IV RECORD 685,726-727.
I36
W. at 882-885. But ironically, it is in some fundamentals that men and women are most
different!
,37
W. at 878.
90 THE 1987 CONSTITUTION Sec.16
OF THE REPUBLIC OF THE PHILIPPINES

1. The right to health.


This is discussed under Article XIII, Sections 11 to 13, as an as-
1
pect of social justice. "

SEC. 1 6 . THE STATE SHALL PROTECT AND ADVANCE THE RIGHT


OF THE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY IN ACCORD
WITH THE RHYTHM AND HARMONY OF NATURE.

1. Right to a balanced and healthful ecology.

The 1987 Constitution was drafted at a time when there was a


growing concern about the preservation of a healthy environment. The
discussions manifested a clear desire to make environmental protection
139
and ecological balance conscious objects of police power.
140
The provision first found application in Oposa v. Factoran, Jr.
The case involved thirty-four minors w h o went to Court represented by
their parents pleading the cause of "inter-generational responsibility"
and "inter-generational justice" and asking the Supreme Court to order
the Secretary of Natural Resources to cancel all existing timber license
agreements and to "cease and desist from receiving, accepting, pro-
cessing, renewing or approving new timber license agreements." T h e
minors filed the action for themselves as representing "their generation
as well as generations yet u n b o m . " They had originally gone to a lower
court before which they had listed a whole litany of harmful effects
flowing from deforestation. In the lower court the government argued
that no legal right of the petitioners had been violated and that the issue
of whether to grant or not to grant timber licenses w a s not a matter for
the courts to decide but for the political departments, namely Congress
and the President.

The lower court dismissed the petition of the minors but the Su-
preme Court reversed. Although Oposa, Jr. did not order the Secretary
outright to cancel licenses and desist from issuing new o n e s , the Court
affirmed the justiciability of the issue raised. T h e Court, on the basis of
Section 16 linked with the right to health, recognized a "right to a bal-

'*See also IV RECORD 904-909,912-916.


I39
W. at 912-916.
'*224 SCRA 792 (1993).
Sees. 17-18 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 91
State Policies

anced and healthful ecology" and "the correlative duty to refrain from
141
impairing the environment."

Oposa, Jr. was followed by Laguna Lake Development Authority


2
(LLDA) v. Court of Appeals:* T h e Supreme Court, relying on Section
16 as also bolstered by the right to health in Section 15 as well as by the
Universal Declaration of H u m a n Rights and the Alma Conference Dec-
laration of 1978 upheld the authority of L L D A to protect the inhabitants
of the Laguna L a k e Area from the deleterious effects of pollutants com-
143
ing from garbage d u m p i n g and the discharge of wastes in the area. In
another L L D A case, in Laguna Lake Development Authority v. Court
1
of Appeals, ** the Supreme Court upheld the exclusive authority of the
Laguna L a k e Development Authority to regulate the exploitation of La-
guna L a k e , as against the claim of municipalities around the lake, in
order to effectively address the environmental and ecological stress on
Laguna L a k e . T h e latest on this subject is Metropolitan Manila Devel-
1 5
opment Authority v. Residents of Manila Bay * where various agencies
of the government were ordered by the Court to clean up Manila Bay.

SEC. 1 7 . THE STATE SHALL GIVE PRIORITY TO EDUCATION,


SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS TO FOSTER
PATRIOTISM AND NATIONALISM, ACCELERATE SOCIAL PROGRESS, AND
PROMOTE TOTAL HUMAN LIBERATION AND DEVELOPMENT.

1. Education, science a n d technology, arts, culture and


sports.

This is meant to be the flagship provision for Article XIV. It sees


education and total human development as the gateway not only to in-
tellectual and moral development but also to economic advancement
146
and the cultivation of the yearning for freedom and justice.

SEC. 1 8 . THE STATE AFFIRMS LABOR AS A PRIMARY SOCIAL


ECONOMIC FORCE. IT SHALL PROTECT THE RIGHTS OF WORKERS AND
PROMOTE THEIR WELFARE.

'"id. at 804-805.
,42
231 SCRA 292 (1994).
m
ld. at 307-308.
l44
GJi.Nos. 120865-71, December 7,1995. See also infra, under Article X, Section 2.
,4
>GR. Nos. 171947^*8, December 18,2008.
I4
*IV RECORD 173-174.
92 THE 1987 CONSTITUTION Sec. 18
OF THE REPUBLIC OF THE PHILIPPINES

1. Labor.
As a corollary to the social justice provision of the 1935 Constitu-
tion and in order that the principle of social justice may not just be a
medley of words, the 1935 Constitution provided the means towards
its realization. For instance, Article XIV, Section 6, provided that the
"State shall afford protection to labor, especially to working women
and minors, and shall regulate the relation between landowner and ten-
ant, and between labor and capital in industry and in agriculture." The
same section also stated that "[t]he State may provide for compulsory
arbitration."

The 1973 Constitution adopted the provisions of the 1935 Con-


stitution with the additional injunction that the state should "promote
full employment and equality in employment, ensure equal work op-
portunities regardless of sex, race, or creed," and "assure the rights of
workers to self-organization, collective bargaining, security of tenure,
and just and humane conditions of work." Under the 1973 Constitution,
the protection the state was c o m m a n d e d to give to labor was linked by
147
the Court to the survival of the nation itself:

More than elusive justice, survival is the daily problem of


the worker and his family. The employer is not faced with such a
problem. More often than not, the employer dissipates part of his
income or profit in pleasures of the flesh and gambling aside from
luxuries, fabulous parties and conspicuous consumption.

The stability of the economy does not depend on the em-


ployer alone, but on government economic policies concerning
productivity in all areas.... It is the living wage of workers which
is the basis of a stable economy. If the company cannot pay a liv-
ing wage, it has no business operating at the expense of the lives
of its workers....

The preservation of the lives of the citizens is a basic duty


of the State, more vital than the preservation of the profits of the
corporation. ...

To invoke the nebulous term "stable economy" to justify


rejection of the claims of workers as against the assets of the em-
ployer, is to regard human life as more expendable than corporate

'Philippine Apparel Workers Union v. NLRC, 106 SCRA 444,462 (July 31,1981).
State Policies

capital. There is nothing in the Constitution that expressly guaran-


tees the viability of business enterprises much less assuring them
of profits.

T h e assurance of equality in employment and work opportun


•dless of sex, race, or creed is also given by the equal protec
;e of the Bill of Rights. T h e specific mention of "race," how<
j by the 1973 Constitution as a prohibited basis of discrimim
it present an interesting question: Did the provision prohibit
nalization of labor? Under the 1935 Constitution, citizenship
id basis of classification for purposes of employment opporl
48
If " r a c e " means citizenship, then citizenship can no longe
id basis for discrimination in employment opportunities and l
— unless the provision is to be understood as a one-edged sv
h protects only Filipinos. There is evidence, in fact, that the r
of " r a c e " in the 1973 Constitution was intended as a protec
ilipinos working in their own country. In his sponsorship spe
gate Corpus pointed to the discrimination practiced against
s in American military bases and suggested that the Constitu
Id give protection to Filipinos against discrimination within I
149
country.

T h e 1987 Constitution builds on previous provisions and eli


on its policy on labor in Article XIII, Section 3 which will be
zd in its proper place. Suffice it here to say that Article II, Sec
n affirming labor as a "primary" social economic force, prock
irimacy of the human factor over the non-human factors of proc
150
Commissioner Bacani put it thus:

It is really an assertion of the supremacy of human dignity


over things.
In the process of production, labor is always a primary and
efficient cost [sic] while capital remains a mere instrumental [cost].
We will notice that all the means by which a person appropriates
natural resources and transforms them in accordance with his need
are the result of the historical heritage of human labor. Besides, it

'"King v. Hemaez. 4 SCRA 792 (1962).


'"Session of November 24, 1972. In the 1987 Constitution, the words race, and se*
natter, no longer appears.
,s,
W.at891.
94 THE 1987 CONSTITUTION Sees. 19-20
OF THE REPUBLIC OF THE PHILIPPINES

is clear that every person sharing in the production process is the


real efficient subject, while the collection of instruments, no mat-
ter how perfect they are, is only a mere instrument subordinate to
human labor.
In the process of production, labor is always a primary and
efficient cost, while capital remains a mere instrumental cost. We
will notice that all the means by which a person appropriates natu-
ral resources and transforms them in accordance with his need are
the result of the historical heritage of human labor. Besides, it is
clear that every person sharing in the production process is the
real efficient subject, while the collection of instruments, no mat-
ter how perfect they are, is only a mere instrument subordinate to
human labor.
In our present system, capital is sometimes given more
weight than labor. Let me give an illustration: Sometimes when
there is an increase in the price of raw materials, we automatically
increase the price of goods and there is no question about that be-
cause the price of raw materials has been increased. Yet when the
workers ask for corresponding increase in their wages, they are
told: "Wait, the price of raw materials is already very high and you
will still ask for an increase in the price of labor?"

So in actual consideration, it seems that labor takes the last


place in the consideration and computation of the things that must
be increased....

I believe Commissioner Aquino caught the thrust very well


when she said that this is really an assertion of the primacy of hu-
man dignity over things.

SEC. 1 9 . THE STATE SHALL DEVELOP A SELF-RELIANT AND


INDEPENDENT NATIONAL ECONOMY EFFECTIVELY CONTROLLED BY
FILIPINOS.

SEC. 2 0 . THE STATE RECOGNIZES THE INDISPENSABLE ROLE


OF THE PRIVATE SECTOR, ENCOURAGES PRIVATE ENTERPRISE, AND
PROVIDES INCENTIVES TO NEEDED INVESTMENTS.

1. Nationalist e c o n o m y a n d private initiative.

Sections 19 and 20 represent t w o of the pillars of the economic


policy of the Constitution. The first c o m m a n d s an independent and
nationalist approach to economic development and the second affirms
Sees. 21 -23 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 95
State Policies

151
that the private sector is an indispensable engine of development.
Both are more fully discussed under Article XII.

SEC. 2 1 . THE STATE SHALL PROMOTE COMPREHENSIVE RURAL


DEVELOPMENT AND AGRARIAN REFORM.

1. C o m p r e h e n s i v e rural a n d agrarian policy.

The emphasis in this Section is on the adjective "comprehensive."


Rural development is not just agricultural development but rather it
encompasses a broad spectrum of social, e c o n o m i c , human, cultural,
152
political and even industrial development.

SEC. 2 2 . THE STATE RECOGNIZES AND PROMOTES THE RIGHTS


OF INDIGENOUS CULTURAL COMMUNITIES WITHIN THE FRAMEWORK OF
NATIONAL UNITY AND DEVELOPMENT.

1. T h e welfare of indigenous cultural communities.

T h e implementation of this policy is found principally in the pro-


visions on cultural communities found in Article X , on local govern-
ments, Article X I I , on the economy, Article XIV, on arts and culture,
and Section 12, Article X V I , on a consultative body to advise the Presi-
dent. It is also worth noting that, in the initial discussions of this provi-
sion, the proposal had among its objectives the "banning and rectifying
of erroneous allusions to ethnic minorities in books, museums, other
153
institutions and records of government." The final text does not reflect
this objective the pursuit of which can involve the weighing of consid-
erations of freedom of experience.

More will be said about this under Article XII, Section 5.

SEC. 2 3 . THE STATE SHALL ENCOURAGE NON-GOVERNMENTAL,


COMMUNITY-BASED, OR SECTORAL ORGANIZATIONS THAT PROMOTE
THE WELFARE OF THE NATION.

"'See V RECORD 22-24.


I52
IV RECORD 898-899.
153
W.at730.
96 THE 1987 CONSTITUTION Sees. 24-25
OF THE REPUBLIC OF THE PHILIPPINES

1. Community-based private organizations.


The provision recognizes the principle that volunteerism and par-
ticipation of non-govemmental organizations in national development
54
should be encouraged.' This is elaborated on in the provisions on vol-
untary people's organizations found in the article on social justice, Ar-
ticle XIII.

SEC. 2 4 . THE STATE RECOGNIZES THE VITAL ROLE OF


COMMUNICATION AND INFORMATION IN NATION-BUILDING.

1. Communications.

More is said about communications in Article X V I , Sections 10


and 11. Significant about this provision is that the 1986 Constitutional
Commission refused to impose "a social responsibility" on media on
the reasoning that imposing such duty will open the door for the state to
155
require media to follow a certain line.

SEC. 2 5 . THE STATE SHALL ENSURE THE AUTONOMY OF LOCAL


GOVERNMENTS.

1. Local autonomy.

Under the 1935 Constitution, local governments were purely crea-


tures of the legislature. Their creation and the extent of their powers in
relation to the national government were at the discretion of the legis-
lature. The philosophy behind this structure was explained by the Su-
156
preme Court in Planus v. G//.

Our attention has been directed to the fact that, with refer-
ence to local governments, the Constitution speaks of general su-
pervision which is distinct from the control given to the President
over executive departments, bureaus and offices. This is correct.
But ... the deliberations of the Constitutional Convention show
that the grant of the supervisory authority to Chief Executive in
this regard was in the nature of a compromise resulting from the
conflict of views, in that body, mainly between the historical view

IS4
W. at 901-904.
"TV RECORD 924-927.
'*67 Phil. 62,78 (1939).
Sec. 25 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 97
State Policies

which recognizes the right of local self-government (People ex


rel. Le Roy vs. Hurlbut [1871 J, 24 Mich., 44) and the legal theory
which sanctions the possession by the state of absolute control
over local governments (Booten vs. Pinson, LJiA. [NS., 1917-1 ].
1244; 77 W. Va., 412 [1915]).The result was the recognition of the
power of supervision and all its implications and the rejection of
what otherwise would be an imperium in imperio to the detriment
of a strong national government.

It should thus be noted that, while the 1935 Constitution denied


to the President the p o w e r of control over local governments, it recog-
nized the legislature's p o w e r of control over the same.

T h e position of local governments in the constitutional structure


of the government was m a d e firmer by the 1973 Constitution, through
Section 10 of its Declaration of Principles, and was m a d e firmer still by
Article XI on Local Autonomy. T h e purpose of this new constitutional
attitude to local autonomy was expressed thus in Explanatory Note to
Report N o . 1 of the Committee on Declaration of Principles and Ideolo-
gies (1971):

Section 13 which mandates the promotion of local autonomy


is implicit in Section 2, when it seeks continuous involvement of
every citizen in public affairs. For indeed, widest participation of
the citizenry in government is best manifested in the smallest gov-
ernment unit.
In this section, the committee adopted the recommendation
of the UP Law Center, as suggested in many resolutions, to have a
new section under Article II seeking the promotion of local auton-
omy. Subject to re-styling, the committee is also in full agreement
with the Committee on Local Governments and the Committee
on Community Development on the following salient criteria for
autonomy:
First, autonomy should be compatible with national goals;
Second, autonomy should ensure widest participation and
initiative to the local government unit;
Third, autonomy should assure the development of self-re-
liant communities. In this regard, there is a recognition given the
barrio as the existing, smallest social unit; that is to say, the devel-
opment of the barrio as a self-reliant community must be fostered
by local autonomy.
98 THE 1987 CONSTrrUTlON Sec. 26
OF THE REPUBLIC OF THE PHILIPPINES

Perhaps, for clarity, the latter point should be stressed. The


barrio is not recognized here as the basic political or administrative
unit. The section merely asserts the fact that today, the smallest
existing social unit is the barrio. No matter what the local govern-
ment unit may be in the future, therefore, such unit must ensure the
development of the barrio.

The fulfillment of the constitutional mandate was placed in the


hands of the legislature. Indeed, a Local Government Code was en-
acted by the Batasang Pambansa, but Presidential Decrees issued un-
der the 1973 Constitution touching on local governments manifested a
less than zealous eagerness to relinquish central control over the affairs
of local government. Moreover, the authoritarian structure itself of the
Marcos regime was inhospitable to local autonomy.

The 1987 Constitution once more takes a crack at local autonomy.


Its more ambitious goals for local autonomy and the m a n n e r of attain-
ing them are found in and discussed under Article X.

SEC. 2 6 . THE STATE SHALL GUARANTEE EQUAL ACCESS TO


OPPORTUNITIES FOR PUBLIC SERVICE, AND PROHIBIT POLITICAL
DYNASTIES AS MAY BE DEFINED BY LAW.

1. Political dynasties.

The thrust of this provision is to impose on the state the obligation


of guaranteeing equal access to public office. Although the provision
speaks in terms of service, it is meant to be a blow in the direction of
democratizing political power. A n d since p o w e r w a s the subject, it oc-
casioned intense d e b a t e . ' " Commissioner Sarmiento explained the ra-
158
tionale of the provision thus:

By including this provision, we widen the opportunities of


competent, young and promising poor candidates to occupy im-
portant positions in the government. While it is true we have gov-
ernment officials who have ascended to power despite accident of
birth, they are exceptions to the general rule. The economic stand-
ing of these officials would show that they come from powerful
clans with vast economic fortunes.

'"See Id. at 731-732,935-956.


"*Id. at 939.
Sees. 27-28 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 99
State Policies

The establishment of political dynasties is an effective way of mo-


nopolizing and perpetuating power. H e n c e , the state is commanded to
prohibit political dynasties. But the argument that the electorate should
be left free to decide w h o m to choose is not without validity. Partly for
that reason, the meaning of political dynasties has been left for Con-
gress to define. But since Congress is the principal playground of politi-
cal dynasties, the realization of the dream of Commissioner Sarmiento,
that the provision on political dynasties would widen access to political
opportunities, will very probably be exhaustingly long in coming.

SEC. 2 7 . THE STATE SHALL MAINTAIN HONESTY AND INTEGRITY


IN THE PUBLIC SERVICE AND TAKE POSITIVE AND EFFECTIVE MEASURES
AGAINST GRAFT AND CORRUPTION.

SEC. 2 8 . SUBJECT TO REASONABLE CONDITIONS PRESCRIBED BY


LAW, THE STATE ADOPTS AND IMPLEMENTS A POLICY OF FULL PUBLIC
DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC INTEREST.

1. Honesty a n d integrity in public service.

T h e whole article on Accountability of Public Officers, Article XI,


is devoted to this subject. Section 27 is a constitutional confession of
the prevalence of graft and corruption. T h e policy of full public dis-
closure enunciated in Section 28 complements the right of access to
information on matters of public concern found in the Bill of Rights.
T h e right to information guarantees the right of the people to demand
information; this provision recognizes the duty of officialdom to give
information even if nobody demands. The provision, however, is not
159
self-executory.

,W
V RECORD 24-29.
ARTICLE III
BILL OF RIGHTS

SECTION 1. No PERSON SHALL BE DEPRIVED OF LIFE, LDJERTY


OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON
BE DENTED THE EQUAL PROTECTION OF THE LAWS.

1. Bill of Rights: Protection against abuse of power.

Marcelo H. del Pilar, one of the leading writers of the Philippine


Propaganda Movement, speaking before a gathering of Freemasons,
said:' "The perfection of humanity is not possible without freedom for
the individual. Thus, the existence of social institutions and all politi-
cal organizations and relationships are justified insofar as they have
for their primary aim the defense and protection of freedom." For the
proper defense and protection of freedom, however, a political institu-
tion must possess power. H e n c e , government b e c o m e s the delicate art
of balancing the power of government and the freedom of the governed.

The Philippine experience under Spanish rule was o n e of a politi-


cal and social system where power far outweighed freedom. T h e aim of
the Philippine revolution was to achieve a just restraint of governmental
power and a corresponding expansion of individual freedom. T h e gift
of the American conqueror, after having suppressed the Filipino repub-
lic established by the revolution, was the implantation of a system that
promised the achievement of balance between p o w e r and freedom. T h e
balancing of these two social values, first under the 1935 Constitution
and later under the 1973 Constitution and the accompanying martial
law interlude and now under the 1987 Constitution, is the story of gov-
ernmental power and the constitutional limits on it found in the Bill of
Rights.

'C. MAJUL, THE POLITICAL AND CONSTITUTIONAL IDEAS OF THE PHILIPPINES, 40 ( 1 9 5 7 ) .

100
ITie totality of governmental power is contained in three gr
s: police power, power of eminent domain, and power of ta
These belong to the very essence of government and without th
vernment can exist. They are inherent powers and they belong
nment as m u c h as spirit and mind belong to the essence of m
stitution does not grant such powers to government; a const)
in only define and delimit them and allocate their exercise amc
is government agencies. The story of constitutional jurisprudei
story of great minds striving to strike a balance between gove
1 power and personal freedom.

Police power has been characterized as "the most essential,


t and the least limitable of p o w e r s , extending as it does to all
2
public needs." Negatively, it has been defined as "that inher
lenary power in the State which enables it to prohibit all tha
3
1 to the comfort, safety, and welfare of society." The most 1
[y cited definition, however, has been Chief Justice Shaw's clas
lent which calls police power "[t]he power vested in the leg
by the constitution to m a k e , ordain, and establish all manner
some and reasonable laws, statutes, and ordinances, either w
ies or without, not repugnant to the constitution, as they si
to be for the good and welfare of the commonwealth, and of
4
:ts of the same."

Police power rests upon public necessity and upon the right
5
ite and of the public to self-protection. For this reason, its sec
ds and contracts with changing needs. "The numerous attem
i have been m a d e to limit by definition the scope of the pol
r are only interesting as illustrations of its rapid extension witl
aratively recent years to points heretofore deemed entirely witl
6
jld of private liberty and property rights."

2
Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila, G.R.
3, July 31, 1967, citing Noble State Bank v. Haskell, 219 U.S. 412 (1911) and Ichonj
dez, 101 Phil. 1155, 1163(1957).
}
ld., citing Rubi v. Provincial Board, 39 Phil. 660 (1918).
'Commonwealth v. Alger, 7 Cush, 53 (Mass. 1851), quoted in U.S. v. Pompeya, 31 P
13-254 (1915); Churchill v. Rafferty, 32 Phil. 580, 603 (1915); People v. Pomar, 46 P
7(1924).
5
U.S. v. Toribio, 15 Phil. 85,97 (1910); Iloilo Ice and Storage Co. v. Municipal Counci
24 Phil. 471,485 (1913); Chuoco Tiaco v. Forbes, 40 Phil. 1122, 1126 (1913); Cu-Unji(
one, 42 Phil. 818 (1922).
'Churchill v. Rafferty, 32 Phil. 580, 601-602 (1915); U.S. v. Salaveria, 39 Phil. 102, 1
; People v. Pomar, 46 Phil. 440,445 (1924); Calalang v. Williams, 70 Phil. 726,734 (194
102 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

The pervasive reach of police power has been used to justify such
7
public health measures as requirements to make house repairs, compul-
8
sory connection to a city sewerage system, the licensing of the practice
10
of medicine,' the regulation of cattle imports, and the sale of meat."

Police power has likewise been used to justify public safety mea-
12
sures such as building regulations, the regulation of the carrying of
13
deadly weapons, the requirement of rotational participation in patrol
14 15 16
duty, regulation of gasoline stations and movie theaters, and the use
17
of city roads.

In the field of public morals, police power has been used as the ba-
sis for judicial approval of legislation punishing vagrancy and classify-
18 19
ing a pimp as a vagrant, regulating the operation of public dance halls,
20
prohibiting gambling, regulating the days when panguingui may be
21 22
played, licensing cockpits, penalizing various activities connected
23 24
with the use of opium, prohibiting the operation of pinball machines,
25
regulating the operation of motels and hotels, and regulating establish-
26
ment of massage parlors. But where a municipality refused to give

7
U.S. v. Abendan, 24 Phil. 165 (1913).
"Case v. Board of Health, 24 Phil. 250 (1913).
"U.S. v. Gomez Jesus, 31 Phil. 218 (1915); People v. Ventura, GR. No. L-15079, January
31,1962.
'"Cruz v. Youngberg, 56 Phil. 234 (1931).
"People v. Sabarre, 65 Phil. 684 (1938); Co Kiam v. City of Manila, 96 Phil. 649 (1955).
,2
Fabie v. City of Manila, 21 Phil. 486 (1912); Bastida v. City Council of Baguio, 53 Phil.
553(1929).
13
U.S. v. Villareal, 28 Phil. 390 (1914).
I4
U.S. v. Pompeya, 31 Phil. 245 (1915).
"Javier v. Eamshaw, 64 Phil. 626 (1937).
"People v. Chan, 65 Phil. 611 (1938).
"Calalang v. Williams, 70 Phil. 726 (1940); Luque v. Villegas, GR. No. L-22545, Novem-
ber 28, 1969.
,8
U.S. v. Giner Cruz, 38 Phil. 677 (1918)
"U.S. v. Rodriguez, 38 Phil. 759 (1918); Sarmiento v. Belderal, GR. No. L-15719, May
13,1961; Lopera v. Vicente L-18102, June 30,1962.
"U.S. v. Pacis, 31 Phil. 524 (1915); U.S. v. Espiritu-Santo, 23 Phil. 610 (1912); U.S. v.
Joson, 26 Phil. 1 (1913); People v. Chan Hong, 65 Phil. 625 (1938).
2I
U.S. v. Salaveria, 39 Phil. 102 (1918). Panguingui is a card game popular in rural areas.
^Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).
23
U.S. v. Ten Yu, 24 Phil. 1 (1912).
"Uy Ha v. City Mayor, GJi. No. L-14149, May 30, 1960; Miranda v. City of Manila,
L-17252,May31,1961.
"Ermita-Malate Hotel and Motel Operators Association v. City Mayor, GR. No. L-24693,
July 31,1967.
"Velasco v. Mayor Villegas, GJt. No. 24153, February 14,1983.
Sec. 1 ART. Ill - BILL OF RIGHTS 103

any permit for night clubs and any license for professional dancers, the
Court declared the ordinance unconstitutional as going beyond mere
regulation into prohibition of a profession or calling which, properly
27
regulated, can be legitimate. Similarly, even conceding that the Er-
mita-Malate area teems with houses of ill-repute and establishments
of the like which the City Council may lawfully prohibit, it is base-
less and insupportable to bring within that classification sauna parlors,
massage parlors, karaoke bars, night clubs, day clubs, supper clubs,
discotheques, cabarets, dance halls, motels and inns. The enumerated
establishments are lawful pursuits which are not per se offensive to the
28
moral welfare of the community.

Moreover, while gambling may prohibited, when it is allowed, the


courts will not pass j u d g m e n t on the choice of Congress. "The morality
of gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the people,
there is nothing in the Constitution categorically proscribing or penal-
izing gambling or, for that matter, even mentioning it at all. It is left to
the discretion of Congress to deal with the activity as it sees fit." Nor
may local governments, in spite of the provisions on local autonomy,
2
contravene the j u d g m e n t of Congress not to prohibit gambling. '

Under the general rubric of promoting the general welfare, en-


30
actments have been upheld regulating the slaughter of carabaos, pre-
31
scribing provisions for the suppression of agricultural pests, regulating
32 33
nuisances, laying down rules for the deportation of aliens, regulating
34
building construction and the activities of town criers and the noise of
35 36
bells, prescribing registration of land under the Torrens System, zon-

27
De la Cruz v. Judge Paras, G.R. Nos. 42571-72, July 25, 1983.
28
City of Manila v. Judge Laguio.G.R. No. 118127, April 12,2005.
2
»Magtajas v. Pryce Properties, 234 SCRA 255,268 (1994). This is a much disputed issue
in local autonomy.
"U.S. v.Toribio, 15 Phil. 85 (1910).
3l
Punzalan v. Ferriols, 19 Phil. 214 (1911).
"Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil. 471 (1913);
Churchill v. Rafferty, 32 Phil. 580 (1915).
"U.S. v. De los Santos, 33 Phil. 397 (1916); ChuocoTiaco v. Forbes, 40 Phil. 1122 (1913).
"Cu-Unjieng v. Patstone,42 Phil. 818 (1922).
"People v. Gabriel, 43 Phil. 641 (1922).
"Director of Lands v. Aballa, 54 Phil. 455 (1930).
THE 1987 CONSTITUTION Sec. 1
104
OF THE REPUBLIC OF THE PHILIPPINES

37 38
ing regulations, moratorium laws, anti-graft laws designed to curb
39 40
activities of public officials, restrictions on foreign exchange, and
4
limitation on the net profits realized by public utilities. '
The only areas, however, where the use of police power has shown
significant development and change in Philippine jurisprudence are the
areas of labor, agricultural tenancy, and social legislation. The direction
of change has been away from laissez faire. With unhesitating bold-
ness police power has been used even in the face of apparent conflict
with both the freedom of contract and the sacredness of contractual
42
obligations. Even the employer's choices may also be curtailed. T h u s ,
the law requiring the decision of a labor arbiter ordering reinstatement
pending appeal has been allowed even when the employer is willing to
41
post a bond.

The almost awesome character of police power shown by the vast-


ness of its reach comes out in greater relief when seen together with the
presumption of constitutionality which its exercise enjoys. "The pre-
sumption is all in favor of validity. ... T h e judiciary should not lightly
set aside legislative action when there is no clear invasion of personal
44
or property rights under the guise of police regulation. This has been
45
the constant holding of the Supreme Court.

Vast as the power is, however, it must be exercised within the


limits set by the constitution. In the words of the leading case of U.S. v.

37
Seng Kee and Co. v. Eamshaw, 56 Phil. 204 (1931); People v. Fajardo, 104 Phil. 443
(1958).
38
Rutter v. Esteban, 93 Phil. 68 (1953).
"Morfe v. Mutuc, L-20387, January 31,1968.
""Phil. American Life Insurance Co. v. Auditor General, G.R. No. L-19255, January 18,
1968.
"'Alalayan v. National Power Corporation, G.R. No. L-24396, July 29,1968.
In Gomez v. Palomar, L-23645, October 29, 1968, Fernando, J., concurring, said that Re-
public Act 2631, providing for the raising of funds for the Philippine Tuberculosis Society by the
issuance of anti-TB postal stamps could have been treated as an exercise of the police power. The
majority treated it as an exercise of the taxing power.
42
People v. Pomar, 46 Phil. 440 (1924); People v. Reyes, 67 Phil. 187 (1939); Ongsiako v.
Gamboa, 86 Phil. 50 (1950); Primero v. Court of Agrarian Relations, 101 Phil. 675 (1957), and the
agricultural tenancy cases discussed under Obligations of Contracts.
"Maranaw Hotel v. National Labor Relations Commission, 238 SCRA 190,191 (1994).
"U.S.v. Salaveria, 39 Phil. 102,111 (1918).
n
E.g., Case v. Board of Health, 24 Phil. 250, 276 (1913); Churchill v. Rafferty, 32 Phil.
580, 602 (1915); Ebona v. Daet, 85 Phil. 369 (1950); Ermita Malate Hotel and Motel Operators
v. City Mayor of Manila, L-24693, July 31, 1967; Morfe v. Mutuc, G.R. No. L-20387, January
31,1968.
Sec. 1 ART. Ill - BILL OF RIGHTS 105

Toribio," the legislative "determination of what is a proper exercise of


its police power is not final or conclusive, but is subject to the supervi-
sion of the courts." "[T]he exercise of such police power," says a 1967
decision, "insofar as it may affect the life, liberty or property of any
47
person is subject to the judicial inquiry." And the principal yardsticks
against which such exercise must be measured are the "due process"
clause and the "equal protection clause."

Finally, it should be noted that the restrictions found in the Bill of


Rights, as constitutional law, are directed against the state. They do not
govern the relations between private persons. However, almost all the
protections against the state found in the Bill of Rights have been made
applicable as civil law to relations between private persons through
Article 32 of the Civil C o d e .

2. Life, liberty, property.

T h e methodology for the study of the due process and equal pro-
tection clauses and of their application to Philippine litigation was set in
48
the early days of the American regime. Said one decision:

The guaranties extended by the Congress of the United


States to the Philippines have been used in the same sense as like
provisions found in the United States Constitution. While the "due
process of law" and "equal protection of the laws" clause of the
Philippine Bill of Rights is couched in slightly different words
than the corresponding clause of the Fourteenth Amendment to
the United States Constitution, the first should be interpreted and
given the same force and effect as the latter The meaning of the
Fourteenth Amendment has been announced in classic decisions of
the United States Supreme C o u r t . . .

The same decision, carrying to the Philippines established Ameri-


can doctrine, made the affirmation that the reach of the protection
49
touched all persons, be they citizens or aliens, natural or corporate:

"15 Phil. 85,98 (1910).


"Ermita-Malate Hotel and Motels Operators, supra note 42.
"Smith, Bell & Co. v. Natividad, 40 Phil. 136,144-145 (1919), citing Kepner v. U.S., 195
U.S. 100 (1901); Serra v. Mortiga, 204 U.S. 470 (1907); U.S. v. Bull, 15 Phil. 7 (1910).
4
'40 Phil, at 145, citing, in favor of aliens, Yick Wo v. Hopkins, 118 U.S. 356 (1886); Truax
v. Raich, 239 U.S. 33 (1915), and, in favor of corporate persons, Santa Clara County v. Southern
Pacific R.R. Co. 118 U.S. 394 (1886); Pembina Mining Co. v. Pennsylvania, 125U.S. 181 (1888);
THE 1987 CONSTITUTION Sec. 1
106
OF THE REPUBLIC OF THE PHILIPPINES

The guaranties of the Fourteenth Amendment and so of the


first paragraph of the Philippine Bill of Rights, are universal in
their application to all persons within the territorial jurisdiction,
without regard to any differences of race, color, or nationality. The
word "person" includes aliens. ... Private corporations, likewise,
are "persons" within the scope of the guaranties in so far as their
property is concerned....

The guarantee protects liberty. Justice Malcolm, in one of the ear-


50
lier cases, elaborated on the subject thus:

Civil liberty may be said to mean that measure of freedom


which may be enjoyed in a civilized community, consistently with
the peaceful enjoyment of like freedom in others. The right to lib-
erty guaranteed by the Constitution includes that right to exist and
the right to be free from arbitrary personal restraint or servitude.
The term cannot be dwarfed into mere freedom from physical re-
straint of the person of the citizen, but is deemed to embrace the
right of man to enjoy the faculties to which he has been endowed
by his Creator, subject only to such restraints as are necessary for
the common welfare. As enunciated in a long array of authorities
including epoch-making decisions of the United States Supreme
Court, liberty includes the right of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn
his livelihood by any lawful calling; to pursue any avocation, and
for that purpose, to enter into all contracts which may be proper,
necessary, and essential to his carrying out these purposes to a suc-
cessful conclusion. The chief elements of the guaranty are the right
to contract, the right to choose one's employment, the right to la-
bor, and the right of locomotion.

Malcolm likewise borrowed from Apolinario Mabini calling lib-


erty "freedom to do right and never wrong ... ever guided by reason
51
and the upright and honorable conscience of the individual." T h e core

Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578 (18%). See also Kwong Sing v. City
of Manila, 41 Phil. 103 (1920) and other cases which reaffirm that the civil rights of aliens are
basically the same as those of citizens. The exceptions and the rule on the political rights of aliens
will be discussed elsewhere.
There is no significant Philippine jurisprudence on the inherent differences between natural
persons and artificial persons for purposes of the protection given by the due process clause.
"Rubi v. Provincial Board of Mindoro, 39 Phil. 660,705 (1919)
"U.
rotected liberty includes "not merely freedom from bodily rest
dso the right of the individual to contract, to engage in any com
ipations of life, to acquire useful knowledge, to marry, establ
e and bring up children [and] to worship G o d according to the
52
of conscience."

A n d the importance of liberty in Philippine tradition was em


I by Justice Concepcion saying that "the preservation of libei
a major preoccupation of our political system that, not sati
guaranteeing its enjoyment in the very first paragraph of Se<
f the Bill of Rights, the framers of our [1935] Constitution dev
graphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), ( 1 5 ) , ,
, (18), and (21) of said Section (1) to the promotion of severa
53
» of freedom." These have been preserved in the 1987 Cons

M o r e recently, under the guidance of Chief Justice Renato P


w safeguard of liberty, the Writ of Amparo, borrowed for I
:rican tradition, has been adopted. The new rule provides:

SECTION 1. Petition. — The petition for a writ of amparo


is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlaw-
ful act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced disap-
pearances or threats thereof.

However, a threatened demolition of a dwelling is not inch


ng the enumeration of rights as stated in the above-quoted pr
54
since it does not constitute right to life, liberty and security.

But where the only limitation imposed upon police officers is


r movements within the premises of the camp shall be monito
they have to be escorted whenever the circumstances warrant
- leave the c a m p , and that their estimated time of departure anc

"Meyer v. Nebraska. 262 U.S. 390,399 (1923).


"People v. Hernandez, 99 Phil. 515,551-2 (1956), cited in Baking v. Director of Pri
No. L-30364, July 28,1968, Fernando,/., dissenting.
"Canlas v. Napico Homeowners, GR. No. 182795, June 5,2008.
THE 1987 CONSTITUTION Sec. 1
108
OF THE REPUBLIC OF THE PHILIPPINES

rival shall be entered in a logbook, there is no deprivation of liberty."


Moreover, the case of In re Petition for Habeas Corpus upheld the blan-
ket restriction on contact visits of military detainees as a practice rea-
sonably related to maintaining security. Contact visits make it possible
for the detainees to hold visitors and jail staff hostage to effect escapes.
Contact visits also leave the jail vulnerable to visitors smuggling in
weapons, drugs, and other contraband. The security consideration in the
imposition of blanket restriction on contact visits outweighs the senti-
56
ments of the detainees.

Protected property has been deemed to include vested rights such


57 58
as a perfected mining claim, or a perfected homestead, or a final judg-
5 60 61
ment. ' It also includes the right to work and the right to earn a living.
One's employment, profession, trade, or calling is protected property."
A license to operate a cockpit, however was not considered protected
property. It was deemed merely a privilege withdrawable when public
63
interest required its withdrawal. In like manner, it has been ruled that
a certificate of public convenience granted to a transportation company
64
confers no property right on the route covered thereby. But even a
privilege may evolve into some form of property protected by the Con-
stitution, as for instance when a holder of an export quota, has been
enjoying it for so long and has put in substantial investment making the
65
business the source of employment for thousands.

It has also been asserted that public office is not property but a
66
"public trust or agency." This is not to say, however, that the right to

"Manalo v. PNP Chief, GR. No. 178920, October 15,2007.


*GR. No. 160792, August 25, 2005. Block v. Rutherford,468 U.S. 576 (1984).
"McDaniel v. Apacible, 44 Phil. 248 (1922); Goldcreek Mining Co. v. Rodriguez, 66 Phil.
259(1938).
"Balboa v. Farrales, 51 Phil. 498 (1928); Segovia v. Garcia, 94 Phil. 300 (1954); Isaac v.
Tan Chuan Leong, 89 Phil. 24 (1951).
"China Insurance and Surety Co. v. Far Eastern Surety and Insurance Co., 63 Phil. 320
(1936).
"Phil. Movie Pictures Workers' Assn. v. Premier Productions, Inc., 92 Phil. 843 (1953).
"National Labor Union v. Court of Industrial Relations, 68 Phil. 732 (1939).
"Callanta v. Carnation Phil., Inc., 145 SCRA 268,279 (October 28,1986); Crespo v. Pro-
vincial Board, 160 SCRA 66 (1988); Century Textile Mills, Inc. v. National Labor Relations. 161
SCRA 528 (1988).
"Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931).
"Luque v. Villegas, GR. No. L-22545. November 28.1969.
"American Inter-Fashion Corporation v. Office of the President, 197 SCRA 409 (1991).
**"The basic idea of government in the Philippine Islands, as in the United States, is that of
a popular representative government, the officers being mere agents and not rulers of the people.
Sec. 1 ART. m - BILL OF RIGHTS 109

67
office is not a protected right. As the court has asserted, "due process
may be relied upon by public officials to protect the security of tenure
68
which in the limited sense is analogous to property." T h u s , when the
life of existing license of harbor pilots was shortened by an adminis-
trative order to a certain date before their retirement but without any
hearing, the Court ruled that the order was a violation of the right of
the harbor pilots saying: "It is this pre-evaluation cancellation which
primarily makes PPA-AO No. 04-92 unreasonable and constitutionally
infirm. In a real sense, it is a deprivation of property without due pro-
69
cess of law."

On this same reasoning too, it can be said that pronouncements


which say that licenses are not protected property but mere privileges
cannot be taken as a sweeping declaration that revocation of licenses
never requires opportunity for a hearing. " O n c e licenses are issued ...
continued possession may b e c o m e essential in the pursuit of a liveli-
hood. Suspension of issued licenses thus involves state action that adju-
70
dicate important interests of the licensees."

T h e classification of property into historical treasures or land-


marks, to the extent that it will involve the imposition of limits on
ownership, must also be done with both procedural and substantive due
71
process.

M o r e recent decisions continue to clarify the extent of the protec-


tion given to property. T h u s , a policy against employees having marital
or romantic relationship with employees of competitor companies can
be justified if based on the right to guard a company's trade secrets, for

one where no one man or set of men has a proprietary or contractual right to an office, but where
every officer accepts office.. .as a trust for the people whom he represents." Comejo v. Gabriel, 41
Phil. 188,194 (1920), citing Taylor v. Beckham, 178 U.S. 548 (1899).
"Segovia v. Noel, 47 Phil. 543 (1925); Borja v. Agoncillo, 46 Phil. 432 (1924). The subject
more properly belongs to the Law on Public Officers and the Civil Service System whose estab-
lishment is authorized by the Constitution itself.
"Morfe v. Mutuc, L-20387, January 31, 1968. The subject more properly belongs to the
Law of Public Officers and the Civil Service System, whose establishment is authorized by the
Constitution.
"Corona v. United Harbor Pilots Association of the Phils., G.R. No. 111953, 283 SCRA
31,43.
"Bell v. Burson,402, U.S. 535,539 (1971).
71
Army and Navy Club of Manila, Inc. v. Court of Appeals, G.R. No. 110223, April 8,1997.
THE 1987 CONSTITUTION Sec. 1
no OF THE REPUBLIC OF THE PHILIPPINES

72
instance, those of a pharmaceutical company. Where, however, there
is no reasonable necessity for the prohibition, it is an illegal limitation
73
on employment as property.
A law allowing only skilled workers to be deployed for overseas
employment can be valid. No right is absolute, and the proper regula-
tion of a profession, calling, business or trade has always been upheld
as a legitimate subject of a valid exercise of the police power by the
state particularly when their conduct affects either the execution of le-
gitimate governmental functions, the preservation of the State, or the
74
public health and welfare and public morals.

Private commercial blood banks are protected property. However,


although their phase out can be disadvantageous to the owners as it can
affect their businesses and existing contracts with hospitals and other
health institutions, it can be justified by the duty of the State to promote
the general welfare. The State may interfere with personal liberty, with
property, and with business and occupations in order to secure the gen-
75
eral welfare.

But an Executive Order requiring the closure of bus terminals in


the city was found to be an unreasonable exercise of police p o w e r as it
would seriously inconvenience the riding public. Moreover, even if the
E.O. were valid, the M M D A would be the w r o n g person to carry it out
76
since this matter has been given by law to D O T C .

The constitutional protection of the right to life is not just a pro-


tection of the right to be alive or to the security of o n e ' s limb against
physical harm. The right to life is also the right to a good life. T h e im-
portance of the quality of living now finds stronger emphasis in Article
XIII, on social justice, and even the life of the u n b o m finds protection
77 78
in the 1987 Constitution. T h e policy against nuclear a r m s as well as

72
Duncan Association of Employees v. Glaxo Wellcome, GR. No. 162994, September 17,
2004.
73
Star Paper v. Simbol, GR. No. 164774, April 12,2006.
"Executive Secretary v. CA, GR. No. 131719, May 25.2004.
"Beltran v. Secretary of Health. GJt. No. 133640. November 25,2005.
76
Lucena Grand Central Terminal. Inc. v. JAC Liner, Inc., G.R. No. 148339, February 23.
2005,452 SCRA 174,185.
"Article II, Section 12.
"Article II. Section 8.
Sec. 1 ART. m - BILL OF RIGHTS 111

79
the abolition of the death penalty are also reflective of the high value
the Constitution places on life.

3. Hierarchy of rights.

In one same sweeping sentence, the Constitution has etched out


the basic protection given to life, liberty and property. The impression
is thus given that the Constitution gives to property the same degree
and quality of protection that it gives to life and liberty. It was in fact
this impression, albeit erroneous, which prompted a move in the 1971
Constitutional Convention to delete "property" from the due process
clause. T h e m o v e was motivated by the desire to relegate property right
to a level inferior to the right to life and liberty. The m o v e failed. But
Convention deliberations clearly recognized that the social character of
private property, emphatically enunciated in [1935] Article II, Section
80
6, definitely placed property in a position inferior to life or liberty.

This recognition of the inferior position occupied by property was


in fact not an enunciation of a novel principle. Already echoing estab-
lished jurisprudence in 1967, Justice Fernando categorically stated:
" W h a t cannot be stressed sufficiently is that if the liberty involved were
freedom of the mind or the person, the standard for the validity of gov-
ernmental acts is much more rigorous and exacting, but where the lib-
erty curtailed affects at the most the rights of property, the permissible
81
scope of regulatory measure is wider." Even Justice Makasiar, writing
under the 1973 Constitution could do no better than appeal to American
82
and Philippine jurisprudence which antedated the 1973 Constitution:

While the Bill of Rights also protects property rights, the pri-
macy of human rights over property rights is recognized. Because
these freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter
their exercise almost as potently as the actual application of sanc-
tions," they "need breathing space to survive," permitting govern-
ment regulation only "with narrow specificity."

"Article m, Section 19(1).


•"Session of November 25,1972.
"Ermita-Malate Hotel and Motel Operators v. City of Manila, 20 SCRA 849,865-6 (1967).
"Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc., 50 SCRA 189,202-3 (1973).
THE 1987 CONSTITUTION Sec. 1
112
OF THE REPUBLIC OF THE PHILIPPINES

Property and property rights can be lost through prescrip-


tion; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a
useless attempt to limit the power of government and ceases to be
an efficacious shield against the tyranny of officials, of majorities,
of the influential and powerful, and of oligarchs — political, eco-
nomic or otherwise.
In the hierarchy of civil liberties, the rights of free expression
and of assembly occupy a preferred position as they are essential to
the preservation and vitality of our civil and political institutions;
and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."
The superiority of these freedoms over property rights is un-
derscored by the fact that a mere reasonable or rational relation
between the means employed by the law and its object or purpose
— that the law is neither arbitrary nor discriminatory nor oppres-
sive — would suffice to validate a law which restricts or impairs
property rights. On the other hand, a constitutional or valid in-
fringement of human rights requires a more stringent criterion,
namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent.

This is not to say, however, that the right to property is not a basic
right. Property has an intimate relation with life and liberty. Shylock
was right: "[Y]ou take my life, when you do take the m e a n s whereby I
live." The Founders of the American Constitution, from which the Phil-
ippine due process clause has been lifted, were in fact keenly aware that
protection of property was a primary object of the social c o m p a c t and
that the absence of such protection could well lead to anarchy and tyr-
83
anny. Moreover, experience does teach a very clear lesson that p r o p -
erty is an important instrument for the preservation and e n h a n c e m e n t of
personal dignity. T h e poor are the oppressed precisely b e c a u s e they are
poor. In their regard therefore property is as important as life and liberty
— and to protect their property is really to protect their life and their
liberty. If in today's hierarchy of values property tends to be relegated to
a lower level than life or liberty, it is not because its intimate connection
with life or liberty is being forgotten. On the contrary, t o d a y ' s hierarchi-
cal arrangement of values is precisely a recognition of the importance
of property for m a n . H e n c e , the precise object of m o r e intensive and

'SCHWARTZ, THE RIGHTS OF PROPERTY 19-22 ( 1 9 6 4 ) .


Sec. 1 ART. Ill - BILL OF RIGHTS 113

extensive government regulation of property is to make its beneficent


purpose equitably available to all. Property is more closely regulated
not in order to oppress the owner but in order to impress upon him the
social character of what he holds.

Thus it is that property must also enjoy the protection of the due
process clause. O n e may not agree with the elder John Adams that prop-
erty is "as sacred as the laws of G o d , " but to deny protection to prop-
erty altogether is to invite both anarchy and tyranny. Under the present
provision, understood in the light of established jurisprudence on the
position of property in the hierarchy of constitutional values, property
stands a good chance of serving and enhancing the life and liberty of
all. Running through various provisions of the Constitution in fact, now
especially under Article XIII, are various provisions to protect property
— but always with he explicit or implicit reminder that property has a
social dimension and that the right to property is weighted with a social
obligation.

4. D u e process as procedural fairness.

The early history of the due process clause in American constitu-


tional law indicates that the restraint was construed mainly in the narrow
sense that a legislature must provide "due process in the enforcement of
law." T h u s , due process was understood to relate chiefly to the mode of
procedure which government agencies must follow; it was understood
as a guarantee of procedural fairness. Its essence was expressed by
84
Daniel Webster as a "law which hears before it condemns." As one
early case put it, "it is not possible to hold that a party has, without due
process of law, been deprived of his property, when, as regards the is-
sue affecting it, he has, by the laws of the State, a fair trial in a court of
85
justice, according to the mode of proceeding applicable to such case.

A m o n g early decisions in Philippine jurisprudence can be found


attempts to define the concept of due process. Many of them are gener-
alized definitions which fuse together the elements of both procedural
and substantive due process as well as the elements of equal protection.
6
Thus, U.S. v. Ling Su Fan* proclaims that due process simply means:

"Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).


"Davidson v. New Orleans, 96 U.S. 97, 105 (1878).
"10 Phil. 104,111-2 (1908); also Insular Gov't, v. Ling Su Fan, 15 Phil. 58,73 (1910).
THE 1987 CONSTITUTION Sec. 1
114
OF THE REPUBLIC OF THE PHILIPPINES

First. That there shall be a law prescribed in harmony with


the general powers of the legislative department of the Govern-
ment; Second. That this law shall be reasonable in its operation;
Third. That it shall be enforced according to the regular methods of
procedure prescribed; and Fourth. That it shall be applicable alike
to all citizens of a state or to all of a class.

1
Forbes v. Chuoco Tiaco* has this generalized statement:

Due process of law, in any particular case, means such an


exercise of the powers of the government as the settled maxims
of law permit and sanction under such safeguards for the protec-
tion of individual rights as those maxims prescribe for the class of
cases to which the one in question belongs.

w
Lopez v. Director of Lands, a mortgage foreclosure case, recalls
Webster's oft-quoted remark:

By "due process of law," as Mr. Daniel Webster said in his


arguments before the Supreme Court of the United States in the fa-
mous Dartmouth College case, "is more clearly intended the gen-
eral law, a law which hears before it condemns; which proceeds
upon enquiry, and renders judgment only after trial. The meaning
is that every citizen shall hold his life, liberty, property and immu-
nities, under the protection of general rules which govern society."
... "Due process of law" contemplates notice and opportunity to
be heard before judgment is rendered, affecting one's person or
property. "Due process of law" is not every act, legislative in form.
... Arbitrary power, enforcing its edicts to the injury of the person
and property of the citizens, is not law.

That the concept was not a fixed and static o n e was clearly ac-
knowledged. "[W]hat is due process of law depends on circumstances.
89
It varies with the subject matter and the necessities of the situation."

"16 Phil. 534,572 (1918).


"47 Phil. 23,32 (1924). SCHWARTZ points out that in Webster's conception, due process is
already more than a procedural guarantee, since the law must be a "general law," U., a law which
is not discriminatory. SCHWARTZ, THE RIGHTS OF PROPERTY 23 (1964). Philippine decisions generally
look on Webster's definition as merely one of procedural due process. Eg., Macabingkil v. Yatco,
GJt. No. L-23174, September 18,1967.
"15 Phil, at 73.
Sec. 1 ART. HI - BILL OF RIGHTS 115

Amidst such abundance of indistinct definitions, one case, Banco


Espanol Filipino v. Palanca, presents what has been considered a clear
delineation of the essentials of procedural fairness in judicial proceed-
90
ings. T h e Court said:

As applied to judicial proceedings ... it may be laid down


with certainty that the requirement of due process is satisfied if
the following conditions are present, namely: (1) There must be a
court or tribunal clothed with judicial power to hear and determine
the matter before it; (2) jurisdiction must be lawfully acquired over
the person of the defendant or over the property which is the sub-
ject of the proceedings; (3) the defendant must be given an op-
portunity to be heard; and (4) judgment must be rendered upon
lawful hearing.

T h e enumeration gives the minimal requirements. They are


spelled out in the details of procedural statutes and the Rules of Court.

D u e process, however, is not always judicial process. This has


always been recognized. D u e process does not always include "actor,
reus, judex, regular allegations, opportunity to answer and a trial ac-
91
cording to some settled course of judicial proceedings." These are re-
quired in courts of justice; but frequently legal controversies have to be
decided not by courts but by administrative bodies. And administrative
bodies are not always bound by the finer points of judicial due process,
though bound, too, they are by the due process clause. For the pur-
pose of this essay, however, suffice it here to summarize what the lead-
91
ing case of Ang Tibay v. Court of Industrial Relations has called the
"cardinal primary" requirements in administrative proceedings. These
requirements Justice Laurel gleaned from an array of American deci-
sions. They are: (1) The right to a hearing, which includes the right
to present one's case and submit evidence in support thereof; (2) The
tribunal must consider the evidence presented; (3) The decision must
have something to support itself; (4) The evidence must be substantial.
Substantial evidence means such reasonable evidence as a reasonable
mind might accept as adequate to support a conclusion; (5) The deci-

*>n Phil. 921,934 (1918).


"E.g., Forbes v. Chuoco Tiaco, 16 Phil. 534 (1910); Tan Te v. Bell, 27 Phil. 354 (1914);
U.S. v. Gomez Jesus, 31 Phil. 218 (1915); City v. Posadas,48 Phil. 309 (1925); Austria v. Solicitor
General, 71 PhU. 288 (1941).
"69 Phil. 635 (1940).
THE 1987 CONSTITUTION Sec. 1
116
OF THE REPUBLIC OF THE PHILIPPINES

sion must be based on the evidence presented at the hearing, or at least


contained in the record and disclosed to the parties affected; (6) The
tribunal or body or any of its judges must act on its own independent
consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate; (7) The Board or body should, in
all controversial questions, render its decision in such manner that the
parties to the proceeding can know the various issues involved, and the
reason for the decision rendered.

Whether in judicial or administrative proceedings, therefore, the


heart of procedural due process is the need for notice and an opportu-
nity to be heard. Moreover, what is required is not actual hearing but a
real opportunity to be heard. T h u s , one who refuses to appear at a hear-
ing is not thereby denied due process if a decision is reached without
waiting for him. Likewise, the requirement of due process can be satis-
fied by subsequent due hearing."
94
This has also been the gist of later decisions. It is a rule that guar-
antees fairness in the enforcement of laws which effect deprivation. As
a rule of fairness, procedural due process helps achieve t w o purposes.

"Assistant Executive Secretary v. Court of Appeals, GJJ. No. 76761, January 9, 1989;
Central Bank v. Court of Appeals, 220 SCRA 536 (1993). A briefer statement of the requirements
is the following: Briefly, however, the following are required: "(1) the right to actual or construc-
tive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a
real opportunity to be heard personally or with the assistance of counsel, to present witnesses and
evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdic-
tion and so constituted as to afford a person charged administratively a reasonable guarantee of
honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial
evidence submitted for consideration during the hearing or contained the records or made known
to the parties affected." Fabella v. Court of Appeals, G.R. No. 110379, November 28,1997, 282
SCRA 256,267 citing Air Manila, Inc. v. Balatbat, 38 SCRA 489,492 (1971); Ang Tibay v. Court
of Industrial Relations, 69 Phil. 635 (1940).
In administrative proceedings, the quantum of proof required is only substantial evidence.
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.
"E.g., Mendoza v. National Housing Authority, 111 SCRA 637 (January 30, 1982), on
ejectment of squatters; Malayan Insurance v. Salas, 90 SCRA 252 (May 25,1979), on enforcement
of responsibility of surety; Molino v. Court of Appeals, GJt. No. 59283, July 30,1982; Benigna v.
Philippine Maritime Institute, G.R. No. 58610, September 30,1982, on the discipline of students.
For purposes of a hearing on an application for a certificate of public convenience, aside from
notice by publication there is required individual notice to operators affected and whose names
appear in the list attached to the order. Cordero v. Public Service Commission. GJi. No. 32489,
March 28,1983.
The provision of Presidential Decree No. 6 authorizing summary dismissal of civil service
officers who are "notoriously undesirable" is implicitly upheld, but without discussion, in Octot v.
Ybanez, 111 SCRA79 (January 18,1982).
Sec. 1 ART. IH - BILL OF RIGHTS 117

Instrumentally, it contributes to accuracy and thus minimizes errors in


deprivations. M o r e intrinsically to the person who is the subject of de-
privation, it gives him a sense of rational participation in a decision
that can affect his destiny and thus enhances his dignity as a thinking
person.

It has recently been held that, While fairness is not violated in


administrative proceedings when the hearing officer is not the same
95
person w h o decides the case, there is violation of due process when the
officer w h o reviews a case is the same person whose decision is on ap-
9
peal. * It has also been held that, while notice and hearing are required in
judicial and quasi-judicial proceedings, they are not prerequisites in the
97
promulgation of general rules. But fixing rates, being a quasi-judicial
98
process, requires hearing.

A relatively recent development in Philippine law is the articula-


tion of specific due process guidelines for the handling of disciplinary
cases in schools. T h e development has c o m e about as the balancing
instrument in conflicts involving the right of students to education and
the right of schools to academic freedom. The contractual obligation of
a school to afford its students a fair opportunity to complete the course
a student has enrolled for is recognized. However, when a student com-
mits a serious breach of discipline or fails to maintain the required aca-
demic standards of the school, the student forfeits his rights and courts
are not at liberty to reverse the discretion of university authorities in
99
this matter. But the Court has also set down the procedure which edu-
cational institutions must follow. In the leading case of Guzman v. Na-
00
tional University: the Court said that:

... [d]ue process in disciplinary cases involving students does


not entail proceedings and hearings similar to those prescribed for
actions and proceedings in courts of justice. The proceedings in

"American Tobacco Co. v. Director of Patents, 67 SCRA 287 (October 14,1975).


"Zambales Chromite Mining v. Court of Appeals, G.R. No. 49711, November 7, 1979;
Anzaldo v. Clave, GJt. No. 54597, December 15.1982.
Taxicab Operators v. Board of Transportation, G.R. No. 59234, September 30, 1982.
"PrflLCOMSAT v. Alcuaz, G J*. No. 84818, December 18, 1989.
"Licup v. University of San Carlos, 178 SCRA 637 (1989), citing Magtibay v. Garcia,
120 SCRA 370 (1983) and also Ateneo de Manila University v. Court of Appeals, 145 SCRA 100
(1986).
""142 SCRA 699,706-7 (1986). More will be said about academic freedom under Article
XIV.
THE 1987 CONSTITUTION Sec. 1
118
OF THE REPUBLIC OF THE PHILIPPINES

student discipline cases may be summary; and cross-examination


is not, contrary to petitioner's view, an essential part thereof. There
are withal minimum standards which must be met to satisfy the
demands of procedural due process; and these are, that (1) the stu-
dents must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the
charges against them, with the assistance of counsel, if desired; (3)
they shall be informed of the evidence against them; (4) they shall
have the right to adduce evidence in their own behalf; and (5) the
evidence must be duly considered by the investigating committee
or official designated by the school authorities to hear and decide
the case.

Similarly, a teacher in a school administrative proceeding has a


101
right to be assisted by counsel.

5. Substantive due process.


If all that the due process clause requires is proper procedure, then
life, liberty, and property can be destroyed provided proper forms are
observed. Such an interpretation, evidently, makes of the due process
clause a totally inadequate protection for personal and property rights.
Hence, the clause must be understood to guarantee not just forms of
procedure but also the very substance of life, liberty and property. T h e
due process clause must be interpreted both as a procedural and as a
substantive guarantee. It must be a guarantee against the exercise of
arbitrary power even when the p o w e r is exercised according to prop-
01
er forms and procedure. In the language of Hurtado v. California:
"Arbitrary power, enforcing its edicts to the injury of the persons and
property of its subjects, is not law, whether manifested as the decree of
a personal monarch or of an impersonal multitude." T h u s , as Justice
103
Harlan said in 1887: " T h e Courts are at liberty — indeed, are under a
solemn duty — to look at the substance of things, whenever they enter
upon the enquiry whether the legislature has transcended the limits of
its authority."

Constitutional law arrived in the Philippines long after "due pro-


cess" had become recognized as a substantive restraint upon govern-
mental action. And as such it was used even in the earliest Philippine

'Gonzales v. NLRCandAteneodeDavao.G.R.No. 125735, August 26,1999.


'110 US. 516,536 (1884).
'Mugler v. Kansas, 123 U.S. 623,661 (1887).
Sec. 1 ART. Ill BILL. OF RIGHTS 119

decisions. Although frequently invoked, however, as a protest against


arbitrariness in legislation, substantive due process was rarely invoked
with success. F r o m the very beginning, the Supreme Court gave gen-
erous latitude to legislation designed to promote public health, public
safety, or public welfare.
10
T h e pattern was set in the early case of U.S. v. Toribio, * where
a statute regulating the slaughter of large cattle, a measure designed to
preserve work animals needed for agriculture, was challenged as un-
105
lawful deprivation of property. With approval, the Court quoted Law-
06
ton v. Steel:'

... [t]he State may interfere wherever the public interest


demands it, and in this particular a large discretion is necessarily
vested in the legislature to determine, not only what the interests
of the public require, but what measures are necessary for the pro-
tection of such interests. To justify the State in thus interposing its
authority in behalf of the public, it must appear, first, that the inter-
ests of the public generally, as distinguished from those of a par-
ticular class, require such interference; and, second, that the means
are reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive upon individuals. The legislature may
not, under the guise of protecting the public interest, arbitrarily
interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. In other words, its determi-
nation as to what is a proper exercise of its police powers is not
final or conclusive, but is subject to the supervision of the courts.

T h u s , the Court clearly considered itself a competent arbiter of


the objective reasonableness of legislative action. But it also allowed
such competency to be limited by the recognition of the presumptive
01
reasonableness of governmental action. In U.S. v. Salaveria: the court
was even willing to defer to the legislative judgment of a municipal
council, the lowest law making authority under the existing system. The
108
Court said:

10
»15 Phil. 85 (1910).
105
Id. at 98.
I06
152 U.S. 133 (1894) citing Barbier v. Connolly, 113 U.S. 27 (1885); Kidd v. Pearson,
128U.S. 1 (1888).
10,
39Phil. 102(1918).
"•W.at 111.
THE 1987 CONSTITUTION Sec. I
120
OF THE REPUBLIC OF THE PHILIPPINES

Who is in a better position to say whether the playing of


panguingui (on weekdays) is deleterious to social order and the
public interest in a certain municipality — the municipal council,
or the courts? The answer is self-evident. The judiciary should not
lightly set aside legislative action where there is no clear invasion
of personal or property rights under the guise of police regulation.

Under such rule, rarely did any legislative measure meet with ju-
dicial disapproval.
Examples of the wide variety of uses to which police power has
been put have already been given. A few cases are worthy of special
note to illustrate how substantive due process was allowed to operate.
109
In Churchill v. Rafferty, the Court took a rather bold m o v e in
favor of an unusual piece of nuisance abatement. It upheld the validity
of a portion of a statute authorizing the Collector of Internal Revenue to
remove any sign, signboard or billboard found by him to be offensive to
the sight or otherwise a nuisance. It applied the rule in Munn v. Illinois
0
that:"

If no state of circumstances could exist to justify such stat-


ute, then we may declare this one void because in excess of the
legislative power of this state; but if it could, we must presume it
did. Of the propriety of legislative interference, within the scope of
the legislative power, a legislature is the exclusive judge.

1
Then the Court added: "

Without entering into the realm of psychology, we think it


quite demonstrable that sight is as valuable to a human being as
any of his other senses, and that the proper ministration to this
sense conduces as much to his contentment as the care bestowed
upon the senses of hearing and smell, and probably as much as
both together.

To the objection that aesthetic tastes are a tricky lot the Court
2
answered:"

"*32 Phil. 580 (1919).


""Id. at 602, citing Munn v. Illinois, 94 U.S. 113 (1877)
"'W. at 608.
2
" Id. at 609-10.
Sec. 1 ART. Ill - BILL OF RIGHTS 121

We answer in the language of the Supreme Court in Noble


ni
State Bank v. Haskel, and which has already been adopted by
several state courts. ... that "the prevailing morality or strong and
preponderating opinion" demands such legislation.

T h u s , by this curious juxtaposition of principles, and unwilling to


accept the American rule that aesthetic considerations are a matter of
M
luxury and do not justify the exercise of police power,' the Supreme
Court saw in its ruling no new doctrine but merely a new application of
5
an old principle." Indeed, there would be no novelty in the ruling if the
Court's solicitude for the sense of sight meant, implausibly, a desire to
protect the health of the eye.

Incidentally, the place of aesthetics in police power jurisprudence


6
in the United States has an interesting history." Time was when aes-
thetics was rejected as a basis for the use of police power. A new Jersey
Court put it this way: "Aesthetic considerations are a mater of luxury
and indulgence rather than of necessity, and it is necessity alone which
7
justifies the exercise of police power."" And a California Court said:
"We find that the one ground upon which the town council may be
thought to have acted is that appearance of billboards is, or may be, of-
fensive to the sight of persons of refined t a s t e . . . . It has never been held
that these considerations alone justify, as an exercise of police power,
a radical restriction of an owner of property to use his property in an
8
ordinary and beneficial way.""

Gradually, however, "persons of refined taste" slowly gained


ground by pairing considerations of aesthetics with health, safety and
morals, as our Court did in Churchill. Thus Justice Pound was quoted
as saying: "Beauty may not be queen, but she is not an outcast beyond
the pale of protection or respect. She may at least shelter herself under
9
the wing of safety, morality or decency.""

3
" 319U.S. 104(1911).
"*See SCHWARTZ, supra, note 74 at 249-251 and authorities cited.
'"32 Phil, at 611.
"The following paragraphs about billboards are based on CHARLES F. FLOYD, BILLBOARDS,
AESTHETICS AND THE POUCE POWET, JOURNAL OF ECONOMICS AND SOCIOLOGY (forthcom-
ing)-
7
" City of Passic v. Patterson Bill Posting, 72 NJL 288 (1905).
""Vamey & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909).
'"Perlmutter v. Greene, 259 N,Y. 327, 182 N £ . 5 (1932).
Sec. 1 ART. m - BILL OF RIGHTS 123

Malcolm, writing for the Court, recited the various provisions of the
L a w s of the Indies governing reducciones and cited the royal purpose
of uplifting the indios and protecting them from corrupting influences
of other races Then he pointed to the care which legislation after the
arrival of the Americans had lavished upon the non-Christian tribes.
He also drew analogy from the treatment of Indian tribes in the United
States. T h e conclusion reached w a s that the law was justified by the de-
123
mands of general welfare and public interest. And when in de Palad v.
Saito, the objection of deprivation of property without due process was
raised against an act prescribing that "conveyances and encumbrances
m a d e by persons belonging to the so-called 'non-Christian tribes,' when
proper, shall not be valid unless duly approved by the Director of the
Bureau of non-Christian Tribes," it was an easy matter for the Court
124
to fall back on the reasoning in Rubi. Similarly, applying principles
of social justice, the municipality of Makati was allowed to use public
125
money for burial assistance to indigents.

Not so successful, however, were the efforts of the Mayor and


Chief of Police of Manila to clean the city of prostitutes. Not authorized
by any law, order or regulation, they herded together the prostitutes of
Manila and shipped them to the distant province of Davao. There was
at that time no provision in the constitution guaranteeing to citizens
the right not to be m a d e to change their residence. Nevertheless, the
liberty of abode and of changing the same was subsumed under the
due process clause. T h e Supreme Court granted a writ of habeas corpus
and ordered the return of the deportees. The Court said that the primary
question was, "Shall the judiciary permit a government of men instead
of a government of laws to be set up in the Philippine Islands?" And
the emphatic answer given was that "the courts will assist in retain-
ing it as a government of laws, and not of men," and that "no official,
however high, is above the law," and that "the courts are the forum
which function to safeguard individual liberty and to punish official
126
transgressors."

m
ld. at 679-94.
'"55 Phil. 831,838 (1931).
'"Binay v. Domingo, GJt. No. 92389, September 11,1991
,26
Villavicencio v. Lukban, 39 Phil. 778,780,787 (1919), American authorities relied upon.
THE 1987 CONSTITUTION Sec. 1
124
OF THE REPUBLIC OF THE PHILIPPINES

More significant, however, was the judicial censure meted out in


ni
People v. Pomar. At issue was freedom of contract. The case dealt
with a statute prescribing a thirty day vacation with pay both before and
after confinement arising from pregnancy. The Court said: "The rule in
this jurisdiction is that the contracting parties may establish any agree-
ments, terms, and conditions they may deem advisable, provided they
12
are not contrary to law, morals or public policy." ' Relying chiefly on
i0
Adkins v. Children's Hospital,™ Adair v. U.S.: Coppage v. Kansas,"'
1
and Mugler v. Kansas," the Philippine Supreme Court struck down the
statute as an invasion of freedom of contract. Citing Adkins, the Court
said that "the right to contract about one's own affairs is a part of the lib-
erty o f the individual guaranteed b y this [due process] clause . . T h e
134
Court also approved of Adair's "equality of right" principle: "In all
such particulars the employer and the employee have equality of right,
and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract, which no government can legally justify
in a free land. . . . " Police power, the court conceded, is an expanding
power; but it "cannot grow faster than the fundamental law of the State.
... If the people desire to have the police p o w e r extended and applied
to conditions and things prohibited by the organic law, they must first
135
amend that law."

The general run of due process decisions under the 1935 Constitu-
tion continued to echo and occasionally elaborate on earlier doctrine.
6
In Caunca v. Salazar," the Court said that liberty could be impaired
in the absence of physical force; freedom could be lost through moral
compulsion. The care which the Rubi and the de Palad cases had for
the welfare of the non-Christian tribes found reaffirmation in People v.
31
Cayat: The right of the state to provide the citizens with competent
medical assistance through the licensing of physicians in the Gomez

127
46 Phil. 440 (1924).
,2%
ld. at 456, relying on Art. 1255 of the (old) Civil Code.
,2,
261 U.S. 525 (1923).
I30
208 U.S. 161,174(1908).
m
2 3 6 U . S . 1,14(1915).
,32
123 U.S. 623 (1887).
'"People v. Pomar, 46 Phil. 440,449.
1J4
W.at452.
' " « . at 455-6.
,J
*82 Phil. 851 (1949).
'"68 Phil. 12(1939).
Sec. 1 ART. m - BILL OF RIGHTS 125

Jesus case was affirmed in People v. Ventura.™ A few cases deserve


some discussion.

The judicial experiment in the field of aesthetics found in the


m
Churchill c a m e in People v. Fajardo. H e r e , a building permit was
denied to an o w n e r of a piece of land on the ground that the proposed
construction would block the view from the highway towards the mu-
140
nicipal plaza. The Court said:

[T]he ordinance is unreasonable and oppressive in that it op-


erates to permanently deprive appellants of the right to use their
own property; hence, it oversteps the bounds of police power, and
amounts to a taking of appellant's property without just compensa-
tion. We do not overlook that the modem tendency is to regard the
beautification of neighborhoods as conducive to the comfort and
happiness of residents. But while property may be regulated in the
interest of the general welfare, and in its pursuit, the State may pro-
hibit structures offensive to the sight, the State may not under the
guise of police power permanently divest owners of the beneficial
use of their property and practically confiscate them solely to pre-
serve or assure the aesthetic appearance of the community. As the
case now stands, every structure that may be erected on appellant's
land regardless of its own beauty, stands condemned under the or-
dinance in question, because it would interfere with the view of the
public plaza from the highway. The appellants would, in effect, be
constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To
legally achieve that result, the municipality must give appellants
just compensation and an opportunity to be heard.

In effect, aesthetics may be used as reason for "taking," but then


there must be due process and just compensation.
O n e significant 1967 due process case demonstrates the continu-
ing adherence to the principle of presumed constitutionality. Ermita
Malate Hotel and Motel Operators, Inc. v. City Mayor of Manila,"' in-
volved a city ordinance designed in part to curb the rampant use of ho-
tels and motels as places of illicit assignation. The constitutionality of

1M
G.R. No. L-15079, January 31,1962.
"•104 Phil. 443 (1958).
'"W. at 447-8.
,41
GJi. No. L-24693, July 31, 1967,20 SCRA 849 (1967).
THE 1987 CONSTITUTION Sec. 1
126
OF THE REPUBLIC OF THE PHILIPPINES

the ordinance was challenged on various grounds: (1) that the license
fee it imposed was unreasonably high; (2) that the registration require-
ments for guests (requiring full name, date of birth, address, occupa-
tion, sex, nationality, planned length of stay, number of companions and
their names, relationship, age and sex, data from the guest's residence
certificate and his passport number, together with a certification by the
competent hotel or motel officer that the person signing the form filled
it up personally and affixed his signature in the presence of such of-
ficer) violated due process not only for being arbitrary and oppressive
but also for being vague, uncertain, and likewise for being an invasion
of privacy and of the guaranty against self-incrimination; (3) that the
official inspection requirements violated due process; (4) that the mini-
mum facilities requirements were arbitrary and oppressive; (5) that the
requirements that persons less than 18 years of age may not be accepted
unless accompanied by parent or guardian and that no room may be let
out more than twice every 24 hours lacked certainty and were unreason-
able and arbitrary; and (6) that the penalty of automatic cancellation of
license was violative of due process.

The issues of invasion of the right of privacy and of the right


against self-incrimination were correctly dismissed by the Court as not
having been raised by the proper parties. Neither the hotel and motel
operators nor an "accommodating intervenor," on the basis merely of
his being a regular customer, were d e e m e d parties w h o s e right of pri-
vacy and right against self-incrimination had been affected. T h e Court
was left therefore with a simple case of the exercise of police p o w e r to
regulate the use of property for the purpose of checking "the alarming
increase in the rate of prostitution, adultery and fornication in Manila
traceable in great part to the existence of motels, which 'provide a nec-
essary atmosphere for clandestine entry, presence and exit' and thus
become the 'ideal haven for prostitutes and thrill-seekers!'" With the
issue thus limited, it was an easy matter for the Court to recall US. v.
M
Salaveria^ and O'Gorman v. Hartford Fire Insurance Co. and re-
quire that, since underlying questions of fact might condition the con-
stitutionality of this type of legislation, s o m e factual foundation must be
presented to rebut the presumption of constitutionality. No such factual
foundation was presented and the presumption of validity was allowed

,4J
39 Phil. 102(1918).
,45
282 U.S.251 (1931).
Sec. 1 ART. Ill - BILL OF RIGHTS 127

to prevail. W h e n on reconsideration petitioners invoked the principle


of laissez/aire, the Court merely reminded them that the principle had
long ago given way to the assumption by the government of the right
44
of intervention.'
5
Two significant 1968 cases, Morfe v. Mutuc" and Alalayan v. Na-
146
tional Power Corporation, again emphasized presumption of consti-
tutionality. Moreover, they again demonstrated the elastic approach to
challenges against the exercise of police power. In Morfe v. Mutuc, a
provision in the Anti-Graft Law which required public officers to sub-
mit periodically a sworn statement of assets and liabilities was chal-
lenged as an oppressive exercise of police power. The Court said that
"[i]t would be to dwell in the realm of abstractions and to ignore the
harsh and compelling realities of public service with its ever-present
temptation to heed the call of greed and avarice" were it to condemn
such requirement as arbitrary and oppressive.

In Alalayan v. National Power Corporation, the requirement that


electric power franchise holders, receiving at least fifty per cent of its
electric power from the National P o w e r Corporation, "shall not realize a
net profit of more than 12% annually of its investments plus two-month
operating e x p e n s e s " was branded as confiscatory by the petitioner. The
Court said, "To speak of it as confiscatory ... is to employ the language
of hyperbole." Such c o m m e n t was m a d e in the context of an earlier
47
case, Manila Electric Co. v. Public Service Commission,' where 12%
rate of return had been challenged, unsuccessfully, as too generous.

Homeowner's Association of the Philippines, Inc. v. Municipal


4
Board of Manila: " presented one of those rare cases where a police
power measure was declared unconstitutional. At issue was a municipal
ordinance declaring a state of emergency in the matter of housing ac-
commodations and regulating rentals of lots and buildings for residen-
tial purposes. Solely on the ground that the ordinance did not fix the
period of its effectivity, the Court declared it unreasonable and therefor
unconstitutional:

l44
G.R. No. L-24693, October 23, 1967.
I45
GJ*. No. L-20387, January 31,1968.
1<4
G.R. No. L-24396, July 29,1968.
,47
G R . No. L-24769, November 14,1966
l4
"G.R. No. L-23979. August 30,1968.
128 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

... [I]ndividual rights may be adversely affected by the ex-


ercise of police power to the extent only — and only to the extent
— that may fairly be required by the legitimate demands of public
interest or public welfare. If such demands are brought about by a
state of emergency, the interference upon individual rights, result-
ing from the regulations adopted to meet the situation, must be, by
and large, coextensive, coeval or coterminous with the existence
thereof. And since an emergency is by nature temporary in charac-
ter, so must the regulation promulgated therefor be ...

That a regulation designed to meet a temporary need must of


necessity also be temporary in duration is undeniable. Is it necessary,
however, that the statute must fix the period of its effectivity or is it suf-
ficient that the statute be understood to be only for the duration of the
emergency, however long such emergency may last? It is clear from the
Homeowners' Association case that the Court requires a fixed period;
the cardinal sin of the ordinance in question was found to be the fact
that it did not fix a period at all.

In reaching such a conclusion, the Court relied on Rutter v. Es-


t49 50
teban and the Emergency Powers Cases.' It is not clear, however,
that the Court's conclusion truly reflects the doctrine of the cited cases.
In Rutter v. Esteban, what the Court declared unconstitutional was the
continued application of the moratory law even after the lapse of eight
years. The Court presumed the initial validity of the law. L i k e w i s e , in
the Emergency Powers Cases, although Congress did not set the time
limit to the grant of emergency powers to the President, the Court did
not question the validity of the initial grant. Rather, the cases on the
emergency powers were an exercise in search for a time limit that could
not be found in the statute itself.

T h e error of the questioned ordinance w a s , it would s e e m , m o r e


tactical than substantial. It declared a "state of emergency." C o n s e -
quently, the Court applied what it considered rules on emergency leg-
islation. What is an emergency? "It is difficult to define an emergency
but as a generalization it is a sudden or unexpected event which creates
a temporarily dangerous condition usually necessitating immediate or
quick a c t i o n . . . . Ordinary conditions or customarily existing conditions

, w
9 3 Phil. 68 (1953).
'"Araneta v. Dinglasan, and companion cases, 84 Phil. 368 (1949).
Sec. 1 ART. Ill - BILL OF RIGHTS 129

51
are not emergencies."' War or threatened economic collapse would
be such an emergency. And that is the type of emergency contem-
plated in the constitutional provision which was the topic of the cited
Emergency Powers Cases. An ordinary housing shortage, however, is
not such emergency. As one American decision has said, "The word
'emergency,' as used in the housing legislation. ... does not have the
meaning given to it by lexicographers. T h e Legislature has given to
the word ' e m e r g e n c y ' a new and peculiar meaning, namely, a perma-
nent condition of insufficiency of service or of facilities, resulting in
152
social disturbance or distress." This is the type of "emergency" that
has been the subject of rental regulation in N e w York which has been
in effect for over twenty years but which the N e w York Supreme Court
153
has continued to consider valid and constitutional. This also is the
type of emergency contemplated by the questioned Manila ordinance.
It is the subject of ordinary police power, not of emergency powers. In
fact, the Court considered it as such, " T h e authority of the municipal
corporations to regulate is essentially police power." The Court, how-
ever, was diverted into considerations of emergency legislation by the
language of the questioned ordinance. H e n c e , instead of presuming the
constitutionality of the regulation and asking for a demonstration of its
unreasonableness, as it had emphatically done in recent cases discussed
in this chapter, the court immediately declared it unreasonable and a
violation of due process.

By far the most significant due process decisions, however, were


those which completely obliterated laissez /aire from constitutional ju-
risprudence. These decisions were a direct outgrowth from the social
orientation which the 1934-1935 Constitutional Convention gave to the
154
Philippine Constitution. Some of these decisions will be discussed
under the topics of eminent domain, obligation of contracts, and social
justice.
Decisions in the 70's and 80's have adhered to traditional prin-
ciples. For instance, a regulation requiring cars to be equipped with

"'Scaccia v. Borough of Old Forge, 94 A. 2d 563, 564 (Pa. 1953), cited in SCHWARTZ, THE
RIGHTS OF PROPERTY (1964) 294.
'"Huff v. City of New York. 195 N.Y. Supp. 257, 258 (2d Dep't 1922), cited in SCHWARTZ,
op. cit., 2945.
'"SCHWARTZ, ibid.
'"BERNAS, A HISTORICAL AND JURIDICAL STUDY OF THE PHIUPPINE BILL OF RIGHTS 39^13 (1971).
THE 1987 CONSTITUTION Sec. 1
130
OF THE REPUBLIC OF THE PHILIPPINES

155
"early warning devices" (EWD), an ordinance regulating the storage
156 157
of copra and another regulating public markets as well as a regula-
158
tion imposing an age limit on taxicabs, were all upheld. The principle
was also reiterated that notice and hearing, while required for judicial
and quasi-judicial proceedings, is not needed in the promulgation of
159
general regulations. But a law requiring that skimmed milk carry the
warning that it is not suitable for infants was found to be a deprivation
160
of property without due process. On due process grounds too, a Ma-
nila ordinance requiring aliens to obtain a permit from the Mayor before
accepting employment was declared unconstitutional. "While it is true
that the Philippines as a State is not obliged to admit aliens within its
territory, once an alien is admitted, he cannot be deprived of life without
161
due process of law."

Decisions under the 1987 Constitution have not departed from


established patterns. Thus car license plates may not be detached by
162
traffic officers in the absence of a law prescribing such police action.
Outright confiscation of carabaos illegally transported is unduly op-
163
pressive. Indelible markings on the forefinger as a requisite for the
exercise of suffrage is a reasonable instrument for preserving the sanc-
164
tity of the ballot. A rule of the Professional Regulatory Commission
which restricted re vie wees from attending review classes, briefing con-
ferences or the like, and receiving any hand out, review material, etc.,
was deemed unreasonable and arbitrary and violative of the academic
165
freedom of schools. An ordinance prescribing that children between
the ages of 7 and 12 should be charged only half the admission price in
166
movie houses was found to be unrelated to a public purpose. Indefi-

l55
Agustin v. Edu, 88 SCRA 195 (February 2,1979).
l56
Procter and Gamble v. Municipality, 94 SCRA 894 (December 28,1979).
157
Javellana v. Judge Kintanar, G.R. No. 33169, July 30,1982.
"Taxicab Operators v. Board of Transportation, GJi. No. 59234, September 30,1982.
I59
W.
""Vera v. Cuevas, 90 SCRA 379 (May 31,1979).
""Villegas v. Hiu Chiong Tsai Pao Ho, 86 SCRA 270,276-7 (November 10,1978). But see
Teehankee's concurrence which prefers to treat the matter as an ultra vires problem under the law
on public corporations.
'"Metropolitan Traffic Command v. Judge Gonong, G.R. No. 91023, July 13,1990.
163
Ynot v. Intermediate Court of Appeals, 148 SCRA 659 (1987).
l64
Agcaoili v. Felipe, 149 SCRA 341 (1987).
'"Lupangco v. Court of Appeals, 160 SCRA 848 (1988).
'"Balacuit v. Court of First Instance, 163 SCRA 182 (1988).
Sec. 1 ART. m - BILL OF RIGHTS 131

167
nite suspension of a person under investigation is unreasonable. The
cancellation of all mortgages and other liens was found to be an arbi-
168
trary violation of the rights of creditors. An arbitrary cancellation of
169
a government contract was found to be unconstitutional. But even the
fractured syntax of an ordinance was not enough to defeat the validity
of one regulating the construction of warehouses wherein flammable
170
materials are stored. T h e Metro Manila Development Authority may
not, without authority of law, compel a residential subdivision to open
171
its private road to the public.

T h e principle of presumptive validity of official action has been


applied by the Court under the new Constitution even to actions of Pres-
ident Marcos during the authoritarian years. Two cases stand out. In
Development Bank of the Philippines v. Pundugar,™ to recover property
lost to the government after a series of Jacinto lawyers withdrew from
the case was branded by the Court as "fraud and misrepresentation ...
perpetrated under the mantel of due process." Likewise, Lim v. Pacqu-
m
ing in a sharply divided decision upheld the validity of Presidential
Decree 771 which had stripped Associated Development Corporation
of its jai-alai franchise b u t only to give it two months later to a Marcos
relative.

6. Publication a n d clarity of laws as a requirement of due


process.

A recent 1986 case clarifies the obscurities that surround the need
to publish laws prior to their effectivity. The central issue in Tanada v.
Tuvera™ was the meaning to be given to the Civil Code's requirement
of publication. Article 2 of the Code says: "Laws shall take effect after
fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. . . . " The Court said that the

,67
Deloso v. Sandiganbayan, G.R. Nos. 86899-903, May 15, 1989. See Layno, Sr. v. San-
diganbayan, 136 SCRA 536 (1985); Doromal v. Sandiganbayan, G.R. No. 85468, September 7,
1989; Gonzaga v. Sandiganbayan, G.R. No. 96131, September 6,1991.
168
National Development Co. and New Agrix v. Philippine Veterans Bank, G.R. Nos.
84132-33, December 10,1990.
16
»Genaro Reyes Construction v. Court of Appeals, 234 SCRA 116 (1994).
17<
Tatel v. Municipality of Virac, 207 SCRA 157 (1992).
,7
'MMDA v. Bel-Air Village, GA. No. 135962, March 27,2000.
172
218 SCRA 118 (1993).
m
2 4 0 SCRA 649 (1995).
"*GR. No. 63915, December 29,1986.
THE 1987 CONSTITUTION Sec. 1
132
OF THE REPUBLIC OF THE PHILIPPINES

phrase "unless it is otherwise provided" refers not to the need of pub-


lication in the Official Gazette but to the requirement of "fifteen days."
The fifteen days can be lengthened or shortened but not to the point of
allowing no publication at all. There can therefore be no such thing as a
law that is effective immediately, even if the law is not penal in nature.
The underlying reason for this rule is that due process, which is a rule
of fairness, requires that those who must obey a command must first
know the command.

The old rule required that publication must be in the Official Ga-
zette. The legislature can change this rule and require instead that pub-
lication be made in some other form. But sufficient publication there
must be. And the rule applies to all laws and not only to those of general
application. It applies even to laws of local application and to adminis-
75
trative rules.' But it does not apply to interpretative regulations and to
those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public.

Needless to say, since the Civil C o d e is a creation of Congress,


Congress itself may require some other form of publication for a spe-
cific law even without amending the Civil C o d e , provided that equal
protection is not violated.

Moreover, the rule that requires publication for the effectivity of


laws applies not only to statutes but also to presidential decrees and
executive orders promulgated by the President in the exercise of legis-
lative powers whenever the same are validly delegated by the legisla-
ture or, at present, directly conferred by the Constitution. Administra-
tive rules and regulations must also be published if their purpose is to
176
enforce or implement existing law pursuant also to a valid delegation.

Related to the rule on publication is the rule on vagueness. A law


that is utterly vague is defective because it fails to give notice of what it
111
commands. People v. Nazario said:

As a rule, a statute or act may be said to be vague when


it lacks comprehensible standards that men "of common intelli-

l75
Joint Ministry of Health-Ministry of Labor Committee v. Court of Appeals, GJt. No.
78254,April25,1991.
'"Republic v. Pilipinas Shell,G.R. N o . 1 7 3 9 1 8 , A p r i l 8, 2 0 0 8
,77
165 SCRA 186,195-196 (1988).
Sec. 1 ART. m - BILL OF RIGHTS 133

gence must necessarily guess at its meaning and differ as to its


17
application." * It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle.

But the act must be utterly vague on its face, that is to say,
it cannot be clarified by either a saving clause or by construction.
19
Thus, in Coates v. City of Cincinnati} the U.S. Supreme Court
struck down an ordinance that had made it illegal for "three or more
persons to assemble on any sidewalk and there conduct themselves
180
in a manner annoying to persons passing by." Clearly, the ordi-
nance imposed no standard at all "because one may never know in
181
advance what 'annoys some people but does not annoy others.'"

Coates highlights what has been referred to as a "perfectly


182
vague" act whose obscurity is evident on its face. It is to be dis-
tinguished, however, from legislation couched in imprecise lan-
guage — but which nonetheless specifies a standard though de-
fectively phrased — in which case, it may be "saved" by proper
construction.
It must further be distinguished from statutes that are appar-
ently ambiguous yet fairly applicable to certain types of activities.
In that event, such statutes may not be challenged whenever direct-
1
ed against such activities. In Parker v. Levy, " a prosecution origi-
nally under the U.S. Uniform Code of Military Justice (prohibit-
ing, specially, "conduct unbecoming an officer and gentleman"),
the defendant, an army officer who had urged his men not to go
Vietnam and called the Special Forces trained to fight there thieves
and murderers, was not allowed to invoke the void for vagueness
doctrine on the premise that accepted military interpretation and
practice had provided enough standards, and consequently, a fair
notice that his conduct was impermissible.

"TRIBE, AMERICAN CONSTITUTIONAL LAW 718 (1978), citing Connally v. General Construction
Co., 269 U.S. 385 (1926).
,79
402 U.S. 611 (1971); see TRIBE, id., 720-721.
""See TRIBE, id.
"'Id., 721.
'"Id.. 720.
'"417 U.S. 733 (1974); see TRIBE, id., 721.
THE 1987 CONSTITUTION Sec. 1
134
OF THE REPUBLIC OF THE PHILIPPINES

1
People v. de la Piedra ** reiterated the principle:

A criminal statute that 'fails to give a person of ordinary in-


telligence fair notice that his contemplated conduct is forbidden
by the statute,' or is so indefinite that 'it encourages arbitrary and
erratic arrests and convictions,' is void for vagueness. The consti-
tutional vice in a vague or indefinite statute is the injustice to the
accused in placing him on trial for an offense, the nature of which
he is given no fair warning. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord per-
sons, especially the parties targeted by it, fair notice of the conduct
to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and become an arbitrary flexing of the
Government muscle.

The most important case involving vagueness was the effort of


the defense of President Estrada to declare the Plunder Law, R . A . N o .
7089, invalid for being, among other things, vague. T h e defense put
up a three pronged attack on the law saying that (a) it suffered from
the vice of vagueness; (b) it dispensed with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolished. T h e element of
mens rea in crimes already punishable under The Revised Penal C o d e ,
all of which are purportedly clear violations of the fundamental rights
of the accused to due process and to be informed of the nature and cause
of the accusation against him. The Court w a s unconvinced and, on the
185
issue of vagueness, it said:

Verily, the onerous task of rebutting the presumption weighs


heavily on the party challenging the validity of the statute. He must
demonstrate beyond any tinge of doubt that there is indeed an in-
fringement of the constitution, for absent such a showing, there
can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm,
"To doubt is to sustain." And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption
of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable


standards and well-defined parameters which would enable the

IM
GJ*.No. 121777, January 24,2001.
'"Estrada v. Sandiganbayan, GJi. No. 148560, November 19,2001.
Sec. 1 ART. Ill - BILL OF RIGHTS 135

accused to determine the nature of his violation. Section 2 is suf-


ficiently explicit in its description of the acts, conduct and con-
ditions required or forbidden, and prescribes the elements of the
crime with reasonable certainty and particularity. Thus —

1. That the offender is a public officer who acts by him-


self or in connivance with members of his family, relatives by af-
finity or consanguinity, business associates, subordinates or other
persons;

2. That he amassed, accumulated or acquired ill-gotten


wealth through a combination or series of the following overt or
criminal acts: (a) through misappropriation, conversion, misuse,
or malversation of public funds or raids on the public treasury; (b)
by receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government con-
tract or project or by reason of the office or position of the pub-
lic officer; (c) by the illegal or fraudulent conveyance or disposi-
tion of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned
or controlled corporations or their subsidiaries; (d) by obtaining,
receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the
promise of future employment in any business enterprise or under-
taking; (e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of de-
crees and orders intended to benefit particular persons or special
interests; or (f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines; and

3. That the aggregate amount or total value of the


ill-gotten wealth amassed, accumulated or acquired is at least
P50 ,(300,000.00.

The defense bewailed the vagueness of two key words: "combina-


tion" and "series." The Court replied:

Moreover, it is a well-settled principle of legal hermeneutics


that words of a statute will be interpreted in their natural, plain and
ordinary acceptation and signification, unless it is evident that the
legislature intended a technical or special legal meaning to those
THE 1987 CONSTITUTION Sec
OF THE REPUBLIC OF THE PHILIPPINES

words. The intention of the lawmakers — who are, ordinarily, un-


trained philologists and lexicographers — to use statutory phrase-
ology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted
definition of the words "combination" and "series."
Combination — the result or product of combining; the act
or process of combining. To combine is to bring into such close
relationship as to obscure individual characters.

Series — a number of things or events of the same class


coming one after another in spatial and temporal succession.

A statute or act may be said to be vague when it lacks com-


prehensible standards that men of common intelligence must nec-
essarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2)
respects — it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the Gov-
ernment muscle. But the doctrine does not apply as against legis-
lations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to
those that are apparently ambiguous yet fairly applicable to certain
types of activities. The first may be "saved" by proper construc-
tion, while no challenge may be mounted as against the second
whenever directed against such activities. With more reason, the
doctrine cannot be invoked where the assailed statute is clear and
free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for


uncertainty is whether the language conveys a sufficiendy defi-
nite warning as to the proscribed conduct when measured by com-
mon understanding and practice. It must be stressed, however, that
the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld — not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibil-
ity, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will
not be held invalid merely because it might have been more ex-
plicit in its wordings or detailed in its provisions, especially where,
because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Sec. 1 ART. Ill - BILL OF RIGHTS 137

The ponencia went on to add, borrowing from the concurrence of


Justice M e n d o z a , that the void for vagueness doctrine and the "over-
breadth doctrine" do not apply to criminal cases in general but only to
cases involving speech.

The void-for-vagueness doctrine states that "a statute which


either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due
process of law." The overbreadth doctrine, on the other hand, de-
crees that "a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."

A facial challenge is allowed to be made to a vague statute


and to one which is overbroad because of possible "chilling ef-
fect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitution-
ally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated
by a statute drawn with narrow specificity.' The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal stat-
utes have general in terrorem effect resulting from their very exis-
tence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. ... In Broadrick v. Oklahoma, the Court
ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." For this
THE 1987 CONSTITUTION Sec. 1
138
OF THE REPUBLIC OF THE PHILIPPINES

reason, it has been held that "a facial challenge to a legislative


act is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid." As for the vagueness doctrine, it
is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. "A plaintiff who engages
in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their fac-
es" statutes in free speech cases or, as they are called in American
law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such
statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges
in the First Amendment context, like overbreadth challenges typi-
cally produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied'
to a particular defendant." Consequendy, there is no basis for pe-
titioner's claim that this Court review the Anti-Plunder Law on its
face and in its entirety.

It is submitted, however, that while indeed the defect of


"overbreadth" as analytical tool is applicable only to cases involving
speech, this is not so about "vagueness." Vagueness and overbreadth are
distinct from each other. An overbroad law does not need to lack clarity
or precision, but a vague law d o e s . L a w s which do not involve speech
can be declared invalid for " v a g u e n e s s . " T h u s , for instance Lanzetta v.
6
New Jersey'" invalidated a statute for vagueness because it criminalized
being a member of a " g a n g . "

The distinction between "void for v a g u e n e s s " and "overbreadth"


1
was recently reiterated in Romualdez v. COMELEC.'*

"*306 U.S. 451 (1939); see also Coates v. City of Cincinnatti. supra.
'"GR. No. 167011, December 11,2008.
Sec. 1 ART. Ill - BILL OF RIGHTS 139

7. Equal protection.

The equal protection clause is a specific constitutional guarantee


of the Equality of the Person. T h e equality it guarantees is "legal equal-
ity or, as it is usually put, the equality of all persons before the law. Un-
der it, each individual is dealt with as an equal person in the law, which
does not treat the person differently because of who he is or what he is
or what he possesses. T h e goddess of Justice is portrayed with a blind-
fold, not because she must be hindered in seeing where the right lies,
but that she may not discriminate against suitors before her, dispensing
188
instead an even handed justice to all."

T h e equality guaranteed, however, "is not a disembodied equal-


ity." It does not deny to the state the power to recognize and act upon
factual differences between individuals and classes. It recognizes that
inherent in the right to legislate is the right to classify. The problem,
thus, in equal protection cases is one of determining the validity of the
classification m a d e by law. The guarantee of equal protection, accord-
m
ing to Tolentino v. Board of Accountancy , simply means "that no per-
son or class of persons shall be deprived of the same protection of the
laws which is enjoyed by other persons or other classes in the same
place and in like circumstances."

People v. Cayat summarized early jurisprudence on equal protec-


190
tion thus:

It is an established principle of constitutional law that the


guaranty of the equal protection of the laws is not violated by a
legislation based on reasonable classification. And the classifica-
tion, to be reasonable, (1) must rest on substantial distinctions; (2)
must be germane to the purpose of the law; (3) must not be limited
to existing conditions only; and (4) must apply equally to all mem-
bers of the same class.

For determining the reasonableness of classification, later juris-


prudence has developed three kinds of test depending on the subject
matter involved. The most demanding is the strict scrutiny test which
requires the government to show that the challenged classification

""II SCHWARTZ, THE RIGHTS OF THE PERSON, 487-8 (1968).


""90 Phil. 83.90 (1951).
"°68Phil. 12,18(1939).
THE 1987 CONSTITUTION Sec. 1
140
OF THE REPUBLIC OF THE PHILIPPINES

serves a compelling state interest and that the classification is necessary


to serve that interest. This case is used in cases involving classifications
based on race, national origin, religion, alienage, denial of the right to
vote, interstate migration, access to courts and other rights recognized
as fundamental.
Next is the intermediate or middle-tier scrutiny test which re-
quires government to show that the challenged classification serves an
important state interest and that the classification is at least substantially
related to serving that interest. This is applied to suspect classifications
like gender or illegitimacy.

The most liberal is the minimum or rational basis scrutiny accord-


ing to which government need only show that the challenged classifica-
tion is rationally related to serving a legitimate state interest. This is the
traditional rationality test and it applies to all subjects other than those
listed above.

When one looks at most if not all of Philippine jurisprudence on


the subject, one can note that the most used test is the liberal rational
scrutiny test. Thus when R.A. N o . 7227 was challenged as violative
of equal protection because it granted tax and duty incentives only to
businesses and residents within the "secured area" of the Subic Special
Economic Zone and denied them to those w h o lived within the Z o n e but
outside such "fenced-in" territory, the Court justified the classification
saying that the Constitution does not require absolute equality among
residents. The real concern of R.A. N o . 7227 was to convert the lands
formerly occupied by the US military bases into economic or industrial
areas. In furtherance of such objective, Congress d e e m e d it necessary
to extend economic incentives to attract and encourage investors, both
191
local and foreign.

n
In International School Alliance of Educators v. Quisumbing:
however, the practice of the International School of giving higher
salary for foreign hires than Filipinos of equal rank was declared un-
constitutional. T h e Court argued that the principle of "equal pay for
equal work." required that persons w h o work with substantially equal
qualifications, skill, effort and responsibility, under similar conditions,

'"Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999.


'"International School Alliance of Educators v. Quisumbing, G.R. No. 128845, June 1,
Sec. 1 ART. LTI - BILL OF RIGHTS 141

should be paid similar salaries. If an employer accords employees the


same position and rank, the presumption is that these employees per-
form equal work. Neither could the School invoke the need to entice
foreign-hires to leave their domicile to rationalize the distinction in sal-
ary rates. While the Court recognized the need of the School to attract
foreign-hires, it did not allow salaries to be used as an enticement to
the prejudice of local-hires. T h e dislocation factor and limited tenure
affecting foreign-hires w e r e , the Court argued, adequately compensated
by certain benefits accorded them which were not enjoyed by local-
hires, such as housing, transportation, shipping costs, taxes and home
leave travel allowances.

At the end of the decision, however, the Court m a d e this observa-


tion:

We agree, however, that foreign-hires do not belong to the


same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given em-
ployer, comprised of all or less than all of the entire body of em-
ployees, consistent with equity to the employer indicate to be the
best suited to serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the law." The factors
in determining the appropriate collective bargaining unit are (1)
the will of the employees (Globe Doctrine); (2) affinity and unity
of the employees' interest, such as substantial similarity of work
and duties, or similarity of compensation and working conditions
(Substantial Mutual Interests Rule); (3) prior collective bargaining
history; and (4) similarity of employment status. The basic test of
an asserted bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all em-
ployees the exercise of their collective bargaining rights.
It does not appear that foreign-hires have indicated their in-
tention to be grouped together with local-hires for purposes of col-
lective bargaining. The collective bargaining history in the School
also shows that these groups were always treated separately. For-
eign-hires have limited tenure; local-hires enjoy security of tenure.
Although foreign-hires perform similar functions under the same
working conditions as the local-hires, foreign-hires are accorded
certain benefits not granted to local-hires. These benefits, such
as housing, transportation, shipping costs, taxes, and home leave
travel allowance, are reasonably related to their status as foreign-
THE 1987 CONSTITUTION Sec. 1
142
OF THE REPUBLIC OF THE PHILIPPINES

hires, and justify the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-hires would
not assure either group the exercise of their respective collective
bargaining rights.

When one considers that the core issue of collective bargaining


is usually wages, it is legitimate to conclude that difference in wages
obtained by different bargaining units would be allowed. One wonders,
in fact, whether the proscribed differences in salary was not already the
result of bargaining!

Rationality was also the test in more recent decisions. Thus a law
that ordered discontinuance of a pension of a retired military officer if
he becomes a citizen of another country was held not to violate equal
protection for the reason that allegiance to the Philippines had been
3
cut." The Court did not seem to have considered the fact that pension
4
is property already earned."

In R.A. N o . 9 3 3 5 , the Attrition Act of 1995, the Bureau of Internal


Revenue (BIR) and the Bureau of Customs ( B O C ) were authorized to
give awards to those who surpass the BLR and B O C revenue collection
targets and to impose sanctions on those w h o fall short. T h e awards
were taken from the excess over target as set up by a Board. T h e Rules
for implementation were m a d e subject to review by an Oversight C o m -
mittee of Congress.

The validity of the law was challenged a m o n g others on the


ground that limiting the scope of the system of rewards and incentives
only to officials and employees of the BIR and the B O C would violate
the constitutional guarantee of equal protection. But the rational for the
classification was that BIR and B O C personnel were involved in rev-
5
enue collection and hence incentives should be for t h e m . "

Violation of equal protection was also challenged by British


96
American Tobacco' for the reason that its Lucky Strike Filter, Lucky
Strike Lights, and Lucky Strike Menthol Lights cigarettes, introduced
in the market sometime in 2001 and validated by a BLR survey in 2 0 0 3 ,

""Parreno v. COA, G.R. No. 162224, June 7,2007.


[9
*See Article IX, B, 8.
""Abakada Guru v. Purisima, GJ*. No. 166715, August 14,2008.
'"British American Tobacco v. Camacho, GJ*. No. 163583, August 20,2008.
Sec. 1 ART. Ill - BILL OF RIGHTS 143

were found to have net retail prices of P I 1.53, P I 1.59 and P10.34, re-
spectively, which were lower than those of Marlboro and Philip Morris.
However, since petitioner's cigarettes were newly introduced brands in
the market, they were taxed based on their current net retail prices and,
thus, fell under the premium-priced tax bracket with a higher excise tax
rate of P I 3 . 4 4 per pack. This unequal tax treatment between Marlboro
and Philip Morris, on the one hand, and Lucky Strike, on the other,
was the crux of petitioner's contention that the legislative classification
method used violated the equal protection and uniformity of taxation
clauses of the Constitution.

In upholding the method of classification used the Court said that it


was the only way of establishing a disparate tax treatment of old brands
and petitioner's newly introduced brands. The Court said: "This clari-
fication is significant because, under these circumstances, a declaration
of unconstitutionality would necessarily entail nullifying the whole
mechanism of the law and not just Annex " D . " Consequently, if the as-
sailed law is declared unconstitutional on equal protection grounds, the
entire method by which a brand of cigarette is classified would have to
be invalidated. As a result, no method to classify brands under Annex
" D " as well as new brands would be left behind and the whole Section
145 of the NTRC, as amended, would become inoperative." In the view
of the legislature, the classification into new and old brands was needed
to avert prize wars.

In making the distinction, the Court harked back to Sison, Jr. v.


Ancheta where the Court had explained the applicable standard in de-
ciding equal protection and uniformity of taxation challenges:

... [ T]he applicable standard to avoid the charge that there is


a denial of this constitutional mandate whether the assailed act is in
the exercise of the police power or the power of eminent domain is
to demonstrate "that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by
the spirit of hostility, or at the very least, discrimination that finds
no support in reason. It suffices then that the laws operate equally
and uniformly on all persons under similar circumstances or that
all persons must be treated in the same manner, the conditions not
being different, both in the privileges conferred and the liabilities
imposed. ... That same formulation applies as well to taxation
measures. The equal protection clause is, of course, inspired by
THE 1987 CONSTITUTION Sec. 1
144
OF THE REPUBLIC OF THE PHILIPPINES

the noble concept of approximating the ideal of the law's benefits


being available to all and the affairs of men being governed by that
serene and impartial uniformity, which is of the very essence of the
idea of law. ... Hence, the constant reiteration of the view that
classification if rational in character is allowable. As a matter
of fact, in a leading case of Lutz v. Araneta, this Court, through
Justice J.B.L. Reyes, went so far as to hold "at any rate, it is inher-
ent in the power to tax that a state be free to select the subjects of
taxation, and it has been repeatedly held that 'inequalities which
result from a singling out of one particular class for taxation, or
exemption infringe no constitutional limitation.'"

As to the claim of violation of the concept of uniformity, the Court


said that the requirement of uniformity is met when the tax "operates
with the same force and effect in every place where the subject may
be found." It added: "The rule of uniformity does not call for perfect
uniformity or perfect equality, because this is hardly attainable." ...
The taxing power has the authority to m a k e reasonable a n d nat-
ural classifications for purposes of taxation. As clarified by Justice
Tuason, where "the differentiation" complained of "conforms to the
practical dictates of justice and equity" it "is not discriminatory within
the meaning of this clause and is therefore uniform." There is quite a
similarity then to the standard of equal protection for all that is required
is that the tax "applies equally to all persons, firms and corporations
placed in similar situation."

The Court recalled that "in our jurisdiction, the standard and anal-
ysis of equal protection challenges in the m a i n have followed the 'ra-
tional basis'test, coupled with a deferential attitude to legislative clas-
sifications and a reluctance to invalidate a law unless there is a showing
of a clear and unequivocal breach of the Constitution." Finally it said,
"Within the present context of tax legislation on sin products which
neither contains a suspect classification nor impinges on a fundamental
right, the rational-basis test thus finds application. Under this test, a leg-
islative classification, to survive an equal protection challenge, must be
shown to rationally further a legitimate state interest. The classifications
must be reasonable and rest upon some ground of difference having a
fair and substantial relation to the object of the legislation. Since every
law has in its favor the presumption of constitutionality, the burden of
proof is on the one attacking the constitutionality of the law to prove
beyond reasonable doubt that the legislative classification is without
Sec. 1 ART. Ill - BILL OF RIGHTS 145

rational basis. T h e presumption of constitutionality can be overcome


only by the most explicit demonstration that a classification is a hostile
and oppressive discrimination against particular persons and classes,
and that there is no conceivable basis which might support it."
91
In Central Bank Employees v. Bangko Sentral: the Court applied
the third in Cayat's quadruple test: namely that the classification must
apply not to present conditions only. T h e Court held that a law valid at
one time may be rendered invalid by subsequent developments. T h u s ,
with the passage of subsequent laws amending the charter of seven (7)
other governmental financial institutions (GFIs) removing limitations
on employees, the continued operation of the limitation on Central
Bank employees under Section 15(c), Article II of the Central Bank
Law has b e c o m e invidious discrimination on the 2,994 rank-and-file
employees of the B a n g k o Sentral ng Pilipinas (BSP). The Court called
this a case of relative unconstitutionality.

8. Alienage as basis of classification.

S o m e of the more important equal protection cases which engaged


the attention of the Supreme Court prior to the enactment of the 1935
Constitution dealt with statutes which excluded aliens from the enjoy-
ment of certain economic privileges. The problem presented in Smith,
m
Bell and Co. v. Natividad, a leading case decided before the Common-
wealth, was the constitutionality of the exclusion of non-Filipinos and
non-Americans from coastwise trade. Did the statute which required
domestic ownership, that is, ownership by either Filipino or American
citizens, in order to be able to obtain a certificate of Philippine registry
of a vessel for coastwise trade, violate the due process and equal protec-
tion clauses of the Philippine Bill?
9
Relying on earlier Philippine decisions," the Court began by
saying that the "guaranties extended by the Congress of the United
States to the Philippine Islands have been used in the same sense as
200
like provisions found in the United States Constitution." Classifica-

""Central Bank Employees v. Bangko Sentral, G.R. No. 148208, December 15,2004 (See
dissents).
"MOPhil. 136(1919).
'"Kepnerv.U.S., 195U.S. 100(1904), 11 Phil.669; Serrav. Mortiga, 204 U.S. 470 (1907),
11 Phil. 762; U.S. v. Bull, 15 Phil. 7 (1910).
"°40Phil. 136,144(1919).
THE 1987 CONSTITUTION Sec. 1
146
OF THE REPUBLIC OF THE PHILIPPINES

tion in American jurisprudence, the Court said, "with the end in view of
providing diversity of treatment may be made among corporations, but
must be based upon some reasonable ground and not be a mere arbitrary
201
selection." Hence, "none of the provisions of the Philippine Organic
Law could have had the effect of denying to the Government of the
Philippine Islands, acting through its Legislature, the right to exercise
that most essential, insistent and illimitable of powers, the sovereign
police power, in the promotion of the general welfare and the public
202
interest." Classification "with reference to the evil to be prevented"
203
is a practical question "dependent upon experience." And what local
experience and local conditions could justify the statute at issue? T h e
204
Court said:

To recall a few facts in geography, within the confines of


Philippine jurisdictional limits are found more than three thousand
islands. Literally, and absolutely, steamship lines are, for an Insular
Territory thus situated, the arteries of commerce. If one be severed,
the life-blood of the nation is lost. If on the other hand these arter-
ies are protected, then the security of the country and the promo-
tion of the general welfare is sustained. Time and again, with such
conditions confronting it, has the executive branch of the Govern-
ment of the Philippine Islands, always later with the sanction of the
judicial branch, taken a firm stand with reference to the presence
of undesirable foreigners. The Government has thus assumed to
act for the all-sufficient and primitive reason of the benefit and
protection of its own citizens and of the self-preservation and in-
205
tegrity of its dominion. Boats owned by foreigners, particularly
by such solid and reputable firms as the instant claimant, might
indeed traverse the waters of the Philippines for ages without do-
ing any particular harm. Again, some evil-minded foreigner might
very easily take advantage of such lavish hospitality to chart Phil-
ippine waters, to obtain valuable information for unfriendly pow-
ers, to stir up insurrection, or to prejudice Filipino or American
commerce. Moreover, under the Spanish portion of Philippine law,
the waters within the domestic jurisdiction are deemed part of the

201
Id. at 145.
m
Id.m 147.
m
ld., citing Patstone v. Commonwealth of Pennsylvania, 232 U.S. 138 (1914).
"W. at 148.
""/n re Patterson, 1 Phil. 93 (1902); Forbes v. Chuoco Tiaco. 16 Phil. 534 (1910), 228 VS.
549; In re McCulloock Dick, 38 Phil. 41 (1918).
Sec. 1 ART. LTI - BILL OF RIGHTS 147

206
national domain, open to public use. Common carriers which
in the Philippines as in the United States and other countries are,
as Lord Hale said, "affected with a public interest," can only be
permitted to use these public waters as a privilege and under such
207
conditions as to the representatives of the people may seem wise.

Besides, the Court added, "while the apparent purpose of the Leg-
islature is seen to be to enact an anti-alien shipping act," the "ultimate
208
purpose of the Legislature is to encourage Philippine shipbuilding."
H e n c e , the Court concluded, the challenged law did "not belong to that
209
vicious species of class legislation which must always be condemned."
The Court did not say as m u c h , but it can be said that its reasoning
meets the requirements of strict scrutiny.

T h e civil rights of aliens were once more involved in Kwong Sing


210
v. City of Manila. An ordinance was passed requiring that receipts
must be issued in English and Spanish. Was the ordinance oppressive to
2
the Chinese business c o m m u n i t y ? With Tick Wo v. Hopkins " as back-
ground, the Court declared that, while the rights of the plaintiffs were
212
"not less because they may be Chinese aliens," the ordinance was not
invalid for being unduly discriminatory. The ordinance applied to all
without distinction. "If the ordinance appears to the judicial mind to
be partial or oppressive, it must be declared invalid. The presumption
is, however, that the municipal authorities, in enacting the ordinance,
did so with a rational and conscientious regard for the rights of the
213
individual and of the community." Again, considering the times, the
reasoning could satisfy today's strict scrutiny.

A statute, however, which prohibited anyone engaged in com-


merce from keeping "its account books in any language other than Eng-
lish, Spanish or any local dialect" met a different fate in the face of
the challenge of unreasonable discrimination against the Chinese. In

""Book II, Tit. IV. Ch. I, (old) Civil Code; Spanish Law of Waters of August 3, 1866, Arts.
1,2,3.
™See De Villata v. Stanley, 32 Phil. 541 (1915).
**ld.al 153.
m
ld. at 150.
2I0
41 Phil. 103(1920).
2
"118U.S. 356 (1886).
2,2
41 Phil, at 108.
in
Id. at 109.
THE 1987 CONSTITUTION Sec. 1
148
OF THE REPUBLIC OF THE PHILIPPINES

2
Yu Cong Eng v. Trinidad, " Justice Malcolm, writing for the majority,
made a valiant effort to save the law by interpreting it as applicable
only to "sales books and other records and returns required for taxation
purposes by regulations of the Bureau of Internal Revenue." Justice
215 216
Street and Justice Johns filed vigorous dissents against such inter-
pretation and accused the majority of attempting, by judicial legislation,
to save a law which patently prohibited the Chinese from keeping ac-
counts in Chinese. On appeal, the United States Supreme Court upheld
2n
the minority view and invalidated the statute as discriminatory.

Another anti-alien case is interesting as a foreshadowing of post-


Commonwealth cases dealing with exceptions to the equal protection
clause found in the Constitution itself. In Li Seng Giap and Co. v.
21
Director of Lands, " a law prohibiting aliens from acquiring certain
public lands was challenged as discriminatory. The Court rejected the
contention by appealing to the right of the state "to the integrity of its
2
territory and the exclusive and peaceable possession of its d o m i n i o n s . " "
Then it proceeded to appeal to a specific exception in the organic law
itself saying that "far from violating any constitutional law, it deals
precisely with the enforcement of the provisions of the first organic law
of the country [Philippine Bill] and those of the Jones L a w (Section 9 ) ,
to the effect that lands of the public domain should not be disposed of or
alienated to persons who are not inhabitants or citizens of the Philippine
220
Islands.

The Constitution thus, as a general rule, places the civil rights of


aliens on an equal footing with those of citizens. Their political rights,
however, do not enjoy the same protection.

It has been repeatedly decided when a government is deal-


ing with the political rights of aliens that it is not governed by that
"due process of law" which governs in dealing with the civil rights
221
of aliens. ...

214
47 Phil. 385,422 (1925).
215
W.at423.
2
"W. at 450.
2l7
Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926).
2I!
5 9 Phil. 687 (1934).
2
"W. at 700.
220
W. Also Mitsui Bussan Kaisha v. Manila E.R.R. & L. Co., 39 Phil. 624 (1919).
22,
Forbes v. Chuoco Tiaco, 16 Phil. 534, 572 (1910), affirmed in Chuoco Tiaco v. Forbes,
228 U.S. 542 (1913), 40 Phil. 1122; U.S. v. De los Santos, 33 Phil. 397 (1916); U.S. v. Ang. 34
Phil. 44 (1916); People v. Chan Fook,42 Phil. 230 (1921).
Sec. 1 ART. m - BILL OF RIGHTS 149

222
The rule that has been accepted is:
Due process of law, in any particular case, means such an
exercise of the powers of the government as the settled maxim of
law permit and sanction and under such safeguards for the protec-
tion of individual rights as those maxims prescribe for the class of
cases to which one in question belongs.

Thus far, the important pre-Commonwealth cases on equal protec-


tion have been reviewed. The other cases were merely further illustra-
tions of allowable classification. Restrictive measures imposed upon
non-Christians for their benefit, the term non-Christian being under-
stood not as a religious designation but as descriptive of their state of
223
cultural advancement, were upheld as non-discriminatory.

Under the 1935 Constitution, some of the more significant equal


protection cases also involved nationalization measures passed by Con-
gress or by local law-making bodies. Two approaches were open to the
Court: (1) to test the reasonableness of the classification and the unifor-
mity of its application, or (2) to apply one or other of the Filipinization
224
provisions of the 1935 Constitution.

T h e most economically far-reaching nationalization statute passed


225
by Congress was Republic Act 1180, the Retail Trade Nationalization
Law, which prohibited aliens from engaging in the retail trade. Expect-
edly, it met strong opposition from the formidable Chinese business
community. The law was challenged in the leading case of Ichong v.
1U
Hernandez. After the review of the Chinese stranglehold on the re-
tail business and against the background of Smith, Bell and Co. v. Na-
11 22
tividad} and an array of American cases, the Court concluded: " "The
above objectionable characteristics of the exercise of the retail trade
by the aliens, which are actual and real, furnish sufficient grounds for
legislative classification of retail traders into nationals and aliens." The

222
16 Phil.at572.
223
Rubi v. Provincial Board of Mindoro, 39 Phil. 660 (1919); de Palad v. Saito, 55 Phil.
831 (1931).
^BERNAS, A HISTORICAL AND JURIDICAL STUDY OF THE PHIUPPINE BILL OF RIGHTS 39-45.
^ 9 LAWS AND RESOLUTIONS 381 (1954).
^ l O l Phil. 1155(1957).
227
40 Phil. 136.
228
101 Phil, at 1176.
THE 1987 CONSTITUTION Sec. 1
150
OF THE REPUBLIC OF THE PHILIPPINES

229
Court added: "The law in question is deemed absolutely necessary
to bring about the desired legislative objective, i.e., to free the national
economy from alien control and dominance." And to remove any lin-
gering constitutional doubt on the subject, the Court quoted the reso-
lution passed by the Constitutional Convention leaving the subject of
230
nationalization of retail to the discretion of Congress.
To reinforce the provisions of the Retail Trade Nationalization
Law, the Anti-Dummy Law was passed. The question raised in King v.
Hernaez"' was whether the prohibition, under the Anti-Dummy Law, of
the employment of aliens in control and non-control positions in a retail
establishment or trade was constitutional. The Court answered:

It is hard to see how the nationalization of employment in


the Philippines can run counter to any provision of our Constitu-
tion considering that its aim is not exactly to deprive a citizen of a
right that he may exercise under it but rather to promote, enhance
and protect those that are expressly accorded to a citizen such as
the right to life, liberty and pursuit of happiness. The nationaliza-
tion of an economic measure when founded on grounds of public
policy cannot be branded as unjust and arbitrary or oppressive or
contrary to the Constitution because its aim is merely to further the
material progress and welfare of the citizens of a country. This is
what we expressed in the Ichong case when we declared constitu-
tional the nationalization of the retail trade.

111
To the argument that Meyer v. Nebraska guaranteed the right to
engage in the c o m m o n occupations of life, the Court replied with an-
other quotation from Ichong justifying the legislative act "in view of the
monopolistic control exercised by aliens in the retail business and their
deadly stranglehold on the national e c o n o m y endangering the national
233
security in times of crisis."
235
In Co Chiong v. Cuaderno™ and Co Chiong v. Mayor of Manila,
the Court had the first opportunity to use the nationalization provision

22,
W.at 1184.
230
W.at 1186, supra.
"'L-14859, March 31,1962.
232
262 U.S. 390 (1923).
m
See also Luzon Stevedoring Co. v. Anti-Dummy Board, 46 SCRA 474 (1972)
234
83 Phil. 242 (1949).
U5
8 3 Phil. 257 (1949).
Sec. 1 ART. Ill - BILL OF RIGHTS 151

in Article XIV, Section 8 (1935). T h e two cases involved respectively a


statute and an ordinance terminating the occupancy of public stalls by
Chinese nationals. Asserting the principle already used in the pre-Com-
monwealth case of Li Seng Giap v. Director of Lands that the Constitu-
tion itself may contain exceptions to the equal protection clause, the
Court declared the measures constitutional. Public markets, according
to the Court, are public services or utilities, the operation of which is re-
served by the Constitution to Filipinos or corporations sixty per centum
6 237
of which is o w n e d by Filipinos." T h e Court added:

Foodstuffs sold in public markets demand, at least, as much


official control and supervision as the commodities sold or distrib-
uted in other public utilities. They affect the life and health of the
people, the safeguarding of which is one of the basic obligations of
a constituted government. Official control and supervision can be
exercised more effectively if public market stalls are occupied by
citizens rather than by aliens.

It is interesting to note that the statute whose constitutionality the


Court upheld itself authorized the lease to aliens of stalls which Filipi-
nos did not want. A n d , in fact, some stalls in remote and dark comers
had been awarded to aliens. Justice Tuason pointed to this fact in his
dissent in Tan Seng Hoo v. De la Fuente™ To which Justice Briones
239
answered: "Los recurrentes, que obtuvieron licencia para ocupar un
puesto en un mercado publico a falta de solicitantes filipinos, deben
comprender que por cortesia se les concedio dicho puesto y, no porque
tienen derecho a el; no deben reclamar si se les echa del puesto porque
lo ocupan en contravention de la prohibition constitutional." The ar-
gument, however, can still be pushed backwards. Are public markets
the public utilities contemplated by the constitutional prohibition? And
240
if they are, can market stalls be equated with the public markets?

The case of Villegas v. Hiu Chiong, also invalidated on equal pro-


tection grounds a Manila ordinance imposing a uniform license fee of
fifty pesos on all aliens as a precondition for accepting employment.

,3
*M.at261.
"'Id.
JM
9 0 Phil. 605,617 (1951).
™ld. at 610.
""Id. at 616-17.
152 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

The decision is interesting not because it concerns an alienage law but


because it teaches that a law can offend against equal protection not
only when it classifies but also when it fails to classify. The uniform fee
was found unlawful "because it fails to consider valid substantial differ-
241
ences in situation among individual aliens who are required to pay it."
But it seems better to treat this case as involving ultra vires exercise of
corporate powers. As Justice Teehankee noted in his concurrence: "The
national policy on the matter has been determined in the statutes en-
acted by the legislature, viz., the various nationalization laws which on
the whole recognize the right of aliens to obtain gainful employment in
the country with the exception of certain specific fields and areas. Such
national policies may not in any way be interfered with, thwarted or in
any manner negated by any local government or its officials since they
are not separate from and independent of the national government."

9. Equal protection and laws of local application.

The equal protection clause does not require territorial uniformity


of laws. Zoning ordinances are a clear example of how the constitu-
242
tion allows different treatment of different places. However, there is a
limit to allowable territorial lack of uniformity.
243
People v. Vera gives an example of such limit. It shows also how
the equal protection clause can be violated not necessarily by actual
denial of equality but by creating a system that can foster inequality.
The case involved Act N o . 2 2 2 1 , otherwise k n o w n as the Probation
Act, which empowered Provincial Boards to appropriate salaries of
probation officers for the maintenance of the probation system in their
respective provinces. The Supreme Court said that such delegation of
legislative power to the local law making bodies, leaving to t h e m the
option to support or not to support a probation system, could result
in gross inequalities among the various provinces and thus, in effect,
permit denial of equal protection. " W e see no difference between a law
244
which denies equal protection and a law which permits such denial,"
the Court asserted. The law, the Court added, even permitted denial of
equal protection to inhabitants of the same province in that the Provin-

24,
8 6 SCRA 270,275 (November 10,1978).
M
E.g., People v. Cruz, 54 Phil. 24 (1929).
3
" 65 Phil. 56 (1937).
^W.at 127.
Sec. 1 ART. Ill - BILL OF RIGHTS 153

cial Board might appropriate money to support the system in one year
245
and refuse to do the same in another year. To the objection that the
equal protection clause did not require territorial uniformity, as held
2 6
in Ocampo v. US., * the Court pointed out that the system approved in
the Ocampo case was one which preserved substantial uniformity: the
preliminary investigation required by General Orders N o . 58 for ter-
ritories outside Manila had its equivalent, for Manila, in the prescribed
247
investigation conducted by the prosecuting attorney.

If the Vera decision leaves the impression that the equal protection
clause requires territorial uniformity, subsequent decisions are clearly
1
to the contrary. Punzalan v. Municipal Board of Manila, ** rejected the
contention that the p o w e r given to Manila to impose an occupation tax
was invalid because the same power was not enjoyed by other munici-
1 9
pal corporations. In Tibon v. Auditor General, * the fact that not all
local police and fire department officers uniformly enjoyed the right to
compensation for death in line of duty was not considered discrimina-
tory. And in Ermita-Malate Hotel and Motel Operators, Inc. v. Mayor
250
of Manila, the regulatory disadvantages imposed on hotels and motels
in Manila were upheld in the face of the challenge that hotels and mo-
tels outside Manila (but in close competitive proximity to Manila) did
not suffer the same disadvantages. Vera, in fact, is distinguishable from
these other cases because the Probation Act was not a law of local ap-
plication but one intended for the entire nation. If allowed to operate in
accordance with its tenor, it could have had the effect of giving unequal
treatment to convicts under the same national Penal Code.

All of the above, moreover, should now be read in the light of the
bias which the 1987 Constitution has towards greater local autonomy.

It should also be noted that while the power of local governments


to enact local laws necessarily results in absence of national unifor-
mity of laws, the local laws themselves must also equally apply to all
those coming within their jurisdiction. For this reason, in Viray v. City

™Id. at 128.
246
234 U.S. 91 (1914), affirming U.S. v. Ocampo, 18 Phil. 1 (1910).
7
" 65 Phil, at 129.
""95 Phil. 46 (1954).
M9
9 6 Phil. 787 (1955).
""L-24693, July 31,1967,20 SCRA 849.
THE 1987 CONSTITUTION Sec. 1
154
OF THE REPUBLIC OF THE PHILIPPINES

25
o/Caloocan, ' the Supreme Court invalidated as discriminatory against
private cemeteries a city ordinance which imposed a burial fee solely
on cadavers coming from places outside the territory of Caloocan for
burial in private cemeteries within the city.

10. Adjustments resulting from war.


Another set of cases illustrates how unusual circumstances, such
as the events following World War II, can demand certain legal adjust-
ments. For instance, the handling of the large number of political pris-
oners necessitated some change in existing procedural law. Laurel v.
2i2
Misa answered a challenge to Commonwealth Act N o . 682 which ex-
tended the period for filing an information beyond the limit prescribed
253
in article 125 of the Revised Penal Code. Said the Court: "There were
600 [political prisoners] in round numbers. The problem was m o m e n -
tous and urgent. Criminal information against all, or a majority, or even
a substantial number of them could not be properly filed within the six
hour period." Likewise, the handling of tax delinquency after the war
254
necessitated adjustment. In Juan Luna Subdivision, Inc. v. Sarmiento
Commonwealth Act N o . 7 0 3 , which remitted taxes that were due and
payable for the last semester of 1 9 4 1 , was challenged as discriminatory
255
against those who had already paid. T h e Court answered:

The property owners who had paid their taxes before libera-
tion and those who had not were not on the same footing on the
need of material relief It is also true that... the taxes paid dur-
ing the occupation had been satisfied in Japanese military notes,
many of them at a time when those notes were well-nigh worth-
less. To refund those taxes with the restored currency, even if the
Government could afford to do so, would be unduly to enrich many
of the payers at a greater expense to the people at large. What is
more, the process of refunding would entail a tremendous amount
of work and difficulties, what with the destruction of tax records
and the great number of claimants who would take advantage of
such grace.

23,
L-23118,July26,1967.
a 2
7 6 Phil. 372 (1946).
™ld. at 378. Also People v. Carlos, 78 Phil. 535 (1947).
^ l Phil. 371 (1952).
Sec. 1 ART. in - BILL OF RIGHTS 155

11. Equal protection a n d the political process.


6
In Philippine Constitutional Association v. Jimenez," an interest-
ing if not questionable application of the equal protection clause was
m a d e . The case involved a politically scandalous legislation entitled
" A n Act A m e n d i n g Subsection (c), Section Twelve of Commonwealth
Act N u m b e r e d O n e Eighty Six, as A m e n d e d by Republic Act Numbered
Thirty Hundred Ninety-Six." T h e particular provision challenged was
paragraph 2, Subsection c, Section 1. T h e amendatory paragraph pro-
vided for retirement benefits for Senators and M e m b e r s of the House of
Representatives. T h e law w a s found defective on three counts. Two of
these, defective title and violation of the prohibition of increase of com-
pensation of m e m b e r s of Congress, need not concern us here except to
ask the question whether, absent such grounds, which by themselves
could have settled the issue, the Court would have nullified the law on
the basis of the equal protection clause. T h e Court's censure on this
last ground seems to m a k e an unwarranted denial of the possibility of
grouping m e m b e r s of Congress as a class and considering them worthy
of treatment different from that given to other elective officials or other
m e m b e r s of the governmental system. The Court enumerated the cen-
surable inequalities created by law: (1) The retirement benefits given
to M e m b e r s of Congress, w h o are elective officials, were not given to
other elective officials; (2) M e m b e r s of Congress could be entitled to
retirement benefits after serving twelve years, which did not have to be
continuous, whereas other officers of the government must wait for at
least twenty years; (3) All other government officers could earn only one
retirement benefit irrespective of length of service, whereas members of
Congress could be entitled to retirement benefits after twenty years of
service; (4) Most grantees of retirement benefits had to be members of
the Government Service Insurance System or must at least contribute
a portion of their monthly salaries to the system, whereas members of
Congress were not and did not have to be members of the system.
257
In Martinez v. Morfe, among the reasons for invalidating Article
145 of the Revised Penal C o d e , which gave legislators immunity from
arrest for certain criminal offenses, was that such immunity "would
amount to the creation of a privileged class, without justification in rea-

"*15 SCRA 479 (1965).


7
" 44 SCRA 22 (1972).
THE 1987 CONSTITUTION Sec. 1
156
OF THE REPUBLIC OF THE PHILIPPINES

son." This salutary decision, however, has been nullified by both the
1973 and 1987 Constitutions which give to legislators immunity from
arrest, while Congress is in session, for crimes punishable by not more
than six years imprisonment.
The effort of Congress to purify the electoral process has received
cooperative sympathy from the Court against the challenge of odious
25
discrimination. In In re Subido, * Section 4 of R.A. N o . 6132 was chal-
lenged as discriminatory on the ground that it disqualified public of-
ficials and employees from serving as delegates to the Constitutional
Convention by considering them resigned from office upon filing of
their certificates of candidacy — a disqualification that did not apply to
259
persons employed in private enterprises. The Court answered:

That while Section 4 of Republic Act No. 6132 applies ex-


clusively to officials and employees of the government or of gov-
ernment-owned and/or controlled corporations, it does not offend
against the equal protection clause of the Constitution, since the
classification is germane to the purpose of the Act and is based on
substantial differences between the situation of said officials and
employees and that of persons outside the government enterprises.

This effort at purification as basis for valid classification was dis-


260
cussed more thoroughly from another angle in Imbong v. COMELEC.

Under the 1973 Constitution, a statute providing that a "retired


elective provincial city or municipal official w h o has received payment
of retirement benefits ... and w h o shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected,
shall not be qualified to run for the same elective local office from which
he has retired" was upheld as valid against the challenge of violation
of the equal protection clause. The reasons given were geriatric: " T h e
need for new blood assumes relevance. T h e tiredness of the retiree for
government work is present, and what is emphatically significant is that
the retired employee has already declared himself tired and unavailable
for the same government work, but, which by virtue of a change of

'35 SCRA 1 (1970).


'Id. at 6.
'35 SCRA 28(1970).
Sec. 1 ART. Ill - BILL OF RIGHTS 157

261
mind, he would like to assume again." Indeed, retirees must really be
tired because the challenge was not posed by a retiree.

Of interest in the Marcos years, in the face of the overwhelming


strength of President M a r c o s ' Kilusang Bagong Lipunan, were the at-
tempts of oppositionists to use the equal protection clause to gain a
measure of equality with the ruling party. T h e Marcos Supreme Court
did not show itself hospitable to such challenges. The first attempt was
by way of challenge to the adoption of block voting as being disad-
262
vantageous to independent candidates. In Per aha v. COMELEC, the
Court, aside from pointing to safety measures in the actual law which
require the listing of all candidates on the ballots and at the same time
give the voters the option to vote either for party or for individuals, also
curtly pointed out that, if a candidate wishes to avail of the advantage
of block-voting, he was free to join a party.

Next followed the challenge to the rule that residents of Mandaue


City, a supposedly oppositionist city, should be excluded from voting in
provincial elections. To the argument that residents of similarly situated
cities were allowed to vote in provincial elections, the Court said in
263
Ceniza v. COMELEC that this was a "matter of legislative discretion"
and that equal protection would be violated only if groups within the
same city were allowed to vote while others were not.

Again, on the occasion of the campaign for and against the ratifi-
cation of amendments to the Constitution scheduled for submission to
a plebiscite on April 7 , 1 9 8 1 , the C O M E L E C issued rules providing for
equal opportunity in public discussion, equal time in the use of broad-
cast media, and equal space in the papers. On March 1 2 , 1 9 8 1 , the Pres-
ident spent two hours on radio and television speaking in favor of the
amendments. The United Democratic Opposition (UNIDO) asked for
equal time and for media coverage of their Plaza Miranda rally in oppo-
sition to the amendments. On the equal protection issue, the Court said
26
in UNIDO v. COMELEC * that "the head of state of every country in
the world must, from the very nature of his position, be accorded certain
privileges not equally available to those who are opposed to him in the

"'Dumlao v. COMELEC, 95 SCRA 392, 405 (January 22, 1980). For reasons of great
public interest, the Court closed its eyes to the requirement of "standing."
M2
8 2 SCRA 30,56 (March 11,1978).
M3
9 5 SCRA 763.772,773 (January 28,1980).
""104 SCRA 17,38-9 (April 3,1981).
THE 1987 CONSTITUTION Sec. 1
158
OF THE REPUBLIC OF THE PHILIPPINES

sense t h a t . . . the opposition cannot be placed at par with him, since the
opposition can only fiscalize the administration and punctualize [sic] its
errors and shortcomings." Similar limitations on election campaigns for
the purpose of equalizing opportunities was likewise upheld under the
new Constitution in National Press Club v. Commission on Elections.™

12. Equal protection and land reform.


A novel approach to the equal protection clause was made in JM.
66
Tuason &Co.v. Land Tenure Administration? Petitioners argued that
singling out their property for expropriation would violate the equal
protection clause. It is clear, of course, that when the government de-
cides to expropriate land, it must decide which among various possible
objects of expropriation it should take. To compel the government to
take "all or none" would be practically to strip the government of the
power of eminent domain. Hence, as Justice Fernando concluded, to
make out a case of violation of the equal protection clause, it would
require a clear and palpable showing that a particular piece of property
was chosen to bear the brunt of governmental authority out of "a feeling
267
of disapproval or ill-will." Fernando added:

Moreover, there is nothing to prevent Congress in view of the


public funds at its disposal to follow a system of priorities. It could
thus determine what lands would first be the subject of expropria-
tion. This it did under the challenged legislative act. As already
noted, Congress was moved to act in view of what it considered
a serious social and economic problem. The solution which for it
was the most acceptable was the authorization of the expropriation
of the Tatalon Estate. So it provided under the statute in question.
It was confronted with a situation that called for correction, and
the legislation that was the result of its deliberation sought to apply
the necessary palliative. That it stopped short of possibly attaining
the cure of other analogous ills certainly does not stigmatize its ef-
fort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation,
but certainly not excluding eminent domain, that "the legislature
is not required by the Constitution to adhere to the policy of 'all
or none'." Thus, to reiterate, the invocation by petitioner of equal
protection clause is not attended with success.

'G.R. No. 102653, March 5,1992.


M SCRA413(1970).
'Id. at 439.
Sec. 1 ART. Ill - BILL OF RIGHTS 159

It is clear from JM. Tuason that the power of eminent domain


can be used by the government as an instrument for the effectuation of
land reform. Land reform, however, to the extent that it seeks to diffuse
enjoyment of land, cannot be used as an argument for nullifying clas-
2M
sification based on alienage. In Tan Sy v. Land Tenure Administration,
Section 3 of R . A . N o . 1162, interpreted as effectively excluding aliens
from the right to lease land covered by the law, was upheld as a valid
classification. The law, the Court said, was "aimed at giving realization
and meaning to the policy of the State to provide land for the landless
269
citizens and enabling them to acquire home-lots at minimum cost."
M o r e recently, the n a m e Barrio Obrero of a section of Manila was used
as justification for allowing sale of subdivided lots in the area exclu-
sively to ordinary laborers even to the exclusion of foreclosing mort-
270
gagees.

13. Equality in the criminal process.

O n e clear consequence of economic inequality is inequality in the


field of criminal justice. In a criminal prosecution the accused finds
himself face to face with the State and all its resources of wealth and
power. Even the rich can feel intimidated by the resources that are at
the disposal of the State. H o w much more helpless will a poor man feel
when he finds himself ranged against the power of the State? It is for
this reason that the law takes a special interest in the poor when brought
before the bar of justice to answer for a crime. The Constitution itself,
in Article III, Section 11, which will be discussed below, ordains that
"[f]ree access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty."

The interest of the law in the plight of the poor is the foundation
for the defense made by the Supreme Court, during the Japanese occu-
pation, of Article 66 of the Revised Penal Code which graduates fines
within a prescribed minimum and maximum range determined accord-
271
ing to the "means and wealth of the culprit." The Court said:

**3S SCRA 250 (1970).


M
Id. at 255.
270
Citizen Surety v. Judge Puno, G.R. No. 34669, December 15, 1982.
"'People v. Ching Kuan, 74 Phil. 23,24 (1942). The same spirit of concern for the less for-
tunate may be read in Tate v. Short, 39 LW 4301 (1971) where the U.S. Supreme Court said that the
equal protection clause bars the state from automatically converting fine to imprisonment for those
who are willing but unable to pay, while limiting punishment to fine for those who are able to pay.
160 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES

This but goes to show that equality before the law is not
literal and mathematical but relative and practical. That is neces-
sarily so because human beings are not bom equal and do not all
start in life from scratch; many have handicaps — material, physi-
cal, or intellectual. It is not within the power of society to abolish
such congenital inequality. All it can do by way of remedy is to
endeavor to afford everybody equal opportunity.

Another case of equality in criminal justice, but not arising from


poverty, presents an instance of the equal protection clause and the due
process clause combining to protect the liberty of a person. In Gumabon
112
v. Director of Prisons, petitioners had been sentenced to life impris-
onment for the complex crime of rebellion with murder. Subsequently,
211
People v. Hernandez negated the existence of such complex offense.
Petitioners asked for release invoking the equal protection clause.
Granting the petition, the Court said: " T h e continued incarceration after
the twelve-year period when such is the m a x i m u m length of imprison-
ment in accordance with our controlling doctrine, is fraught with impli-
274
cations at war with equal protection."

With the creation of the Sandiganbayan mandated by the 1973


Constitution came the challenge on equal protection grounds to the
Sandiganbayan Law. Charged with estafa before the Sandiganbayan,
petitioner contended that the law creating the special court was un-
constitutional because procedural rights of accused before the special
court, such as the extent of the right of appeal, were less than those
before ordinary courts for the same offense. In upholding the law, the
215
Court said in Nunez v. Sandiganbayan, that the constitutional c o m -
mand mandating the creation of the special court in recognition of the
pervasiveness of crime in public office w a s itself authority for making
a distinction between prosecution for dishonesty in public service and
prosecution for crimes not connected with public service. T h e Court
saw Article XIII (1973) as textual exception to the general guarantee of
equal protection in the Bill of Rights and as confirmatory of justifiably
distinct treatment of corrupt public officers.

272
37 SCRA 420 (1971).
271
99 Phil. 515 (1956).
2,4
3 7 SCRAat428.
275
1 1 1 SCRA 433,445-6 (January 30,1982).
Sec. 1 ART. Ill - BILL OF RIGHTS 161

In Himagan v. People, the Court also allowed different treatment


for accused police officers. Section 47 of R.A. N o . 6 9 7 5 , the National
Police Law, allows suspension of a police man to continue beyond 90
days until the case against him is terminated. This was challenged as
violative of the equal protection clause. In upholding the provision the
Court said that the "reason why m e m b e r s of the P N P are treated differ-
ently from the other classes of persons charged criminally or adminis-
tratively insofar as the application of the rule on preventive suspension
is concerned is that policemen carry weapons and the badge of the law
which can be used to harass or intimidate witnesses against them, as
276
succinctly brought out in the legislative discussions."

Equal protection also played a role the disposition of martial law


cases where military tribunals had been allowed to try civilians. In
271
Olaguer v. Military Commission, the Court had declared that mili-
tary tribunals had no jurisdiction over civilians even during martial law.
T h e Court therefore vacated the conviction of Olaguer. Cruz v. Enrile™
following Olaguer, nullified the proceedings against petitioners who
had been convicted by military tribunals and still serving sentence but,
without ordering their release, had directed the Department of Justice
to file appropriate charges in the proper civil courts against them. Tan
was not among the petitioners in Cruz v. Enrile because he was free,
having been acquitted by the military tribunal. Acting on the basis of
Cruz v. Enrile however, the Fiscal filed information against Tan for the
crime for which he had previously been acquitted by a military tribunal.
The Court, beyond ruling that Cruz v. Enrile was not applicable to Tan
because he had not been a party to the suit, also made the following
27
observation: '

There is, however, a perceptible lack of consistency in the


application of the Olaguer doctrine to Cruz v. Enrile which needs
to be rectified. For, although the Court nullified the proceedings
against the civilians-petitioners who were still serving their sen-
tences after conviction by the military courts and commissions,
and we directed the Secretary of Justice to file the necessary infor-

"'Himagan v. People, 237 SCRA 538,551 (1994).


277
150 SCRA 144(1987).
278
160 SCRA 700 (1987).
"Tan v. Barrios, G.R. Nos. 85481-82, October 18, 1990. The Court's decision in Tan
adapted the dissent of Justice Gutierrez in Cruz v. Enrile.
THE 1987 CONSTITUTION Sec. 1
162
OF THE REPUBLIC OF THE PHILIPPINES

mation against them in the proper civil courts, we did not nullify
the court martial proceedings against the other civilians-petitioners
who: (1) had finished serving their sentences; (2) had been granted
amnesty; or (3) had been acquitted by the military courts. We did
not order their prosecution, retrial, and resentencing by the proper
civil courts. We set them free.
In effect, the Court applied one rule for those civilians who
were convicted by the military courts and were still serving their
sentences, and another rule for those who were acquitted, or par-
doned, or had finished service of their sentences. The Court ap-
plied a rule of retroactive invalidity to the first group (whom the
Court ordered to be prosecuted before the proper civil courts) and
another of prospective invalidity for the others (whom the Court
ordered to be released from custody."

To remedy this imbalance, the Court ordered that the Olaguer


doctrine be applied only "to future cases and cases still ongoing or not
yet final when that decision was promulgated" saying that the "trial
of thousands of civilians for c o m m o n crimes before military tribunals
and commissions during the ten-year period of martial rule ... is an op-
erative fact that may not be justly ignored" and thereby expanding the
application of the "operative fact" principle of Municipality of Mala-
2 0
bang v. Benito. " The Court added that to go against the "operative fact"
would constitute "double jeopardy in hard fact if not in constitutional
281
logic" and would also be in ex post facto ruling against them.

In recent years, the restoration of the death penalty has been chal-
lenged as discriminatory against the poor w h o cannot obtain the ser-
vices of first class counsel. The argument, however, has been dismissed
282
as speculative and unsupported by evidence.

14. Equal protection a n d w o m e n , etc.

"Woman is the lesser m a n , " wrote Tennyson in Locksley Hall. L a w


has tended to confirm such societal prejudice and statutes have prohib-
ited women from engaging in certain occupations, such as professional
283
wrestling or bartending. "[BJartending by w o m e n , " said the United

"°n SCRA 533.


a ,
2 7 SCRA 533
a2
Ibid.
"'E.g., State v. Hunter, 208 Ore. 282, 300 P. 2d 455 (1956).
Sec. 1 ART. in - BILL OF RIGHTS 163

States Supreme Court in Goesart v. Cleary™ may, in the allowable leg-


islative j u d g m e n t , give rise to moral and social problems against which
285
it may devise preventive measures " The Court also said:

The fact that women may now have achieved the virtues that
men have long claimed as their prerogatives and now indulge in
vices that men have long practiced, does not preclude the States
from drawing a sharp line between the sexes, certainly in such
matters as the regulation of the liquor traffic. ... The Constitution
does not require legislatures to reflect sociological insight, or shift-
ing social standards, any more than it requires them to keep abreast
of the latest scientific standards.

T h e Court also justified an exception m a d e in favor of wives and


daughters of the owners of liquor establishments by saying that "the
legislature need not go to the full length of prohibition if it believes that
as to a defined group of females other facts are operating which either
eliminate or reduce the moral and social problems otherwise calling for
286
prohibition."

It is doubtful if such reasoning will sit well with Filipina "women


libbers" especially since Section 14 of Article II, which will be dis-
cussed in its proper place, now c o m m a n d s the State to ensure the fun-
damental equality of w o m e n and m e n before the law and since Article
IV has sought the equalization of men and women at least in matters
of citizenship. Filipinas might, however, take heart from the victory
2
of sorts for w o m e n ' s lib in Reed v. Reed, " which invalidated the Ida-
ho Probate C o d e provision giving mandatory preference to men over
women when members of the same entitlement class apply for appoint-
ment as the administrator of an estate. However, within four months
after Reed, " m e n ' s lib" struck back. Under Illinois law, parents can be
deprived of custody of their children only after notice and hearing. An
unwed father, however, did not come under the definition of "parent"
in the Juvenile Court Act. The children of unwed fathers become wards
of the state upon the death of their mother. The United States Supreme

at
33S U.S. 464,466 (1948).
ai
ld.
™Id.
a,
4 0 4 U . S . 7 1 (1971).
THE 1987 CONSTITUTION Sec. 1
164
OF THE REPUBLIC OF THE PHILIPPINES

21
Court ruled in Stanley v. Illinois " that an unwed father cannot be denied
28
custody of his children without a hearing on parental fitness. '
In Philippine Telegraph and Telephone Company v. NLRC}*> the
Court proscribed the company policy of not accepting or considering
as disqualified from work any woman worker who contracts marriage.
Since, however, P T & T is a private corporation, this decision must be
seen not so much as a constitutional law case as a civil law case under
Article 32 of the Civil Code.

15. Miscellany on equal protection.

Many of the appeals made to the equal protection clause may be


classed as appeals to the "usual last refuge of constitutional arguments."
Hence, in not a few cases, the Court's task has simply been to point out
either the obvious reasonableness of the challenged classification or the
2
uniform applicability of a particular restraint to all of a class. " N o t all
of the cases, however, c o m e out with totally satisfactory conclusions.

One such case was Rafael v. Embroidery and Apparel Control


292
Board where petitioner, a m e m b e r of the Philippine C h a m b e r of E m -
broidery and Apparel Producers, Inc. ( P C E A P ) objected to the provi-
sion of Republic Act N o . 3137 which prescribed that the representative
of the private sector in the Embroidery and Apparel Control and Inspec-
tion Board shall be chosen from the Philippine Association of Embroi-
dery and Apparel Exporters, Inc. (P.A.E.A.E.). Petitioner considered
2 3
this discriminatory against P C E A P . T h e Court answered: '

298
405 U.S. 645 (1972).
28
' 0 f interest to students of family relations is Labine v. Vincent, 401 U.S. 532 (1971),
where the U.S. Supreme Court said that neither due process nor equal protection bars denial to
illegitimate children of inheritance rights in the father's estate equal to those of legitimate children.
290
G.R. No. 118978, May 23,1997.
m
GE.g., Batangas Transportation Co. v. Manila Railroad, 64 Phil. 312 (1937); People v.
Sabarre, 65 Phil. 684 (1938); People v. Chan, 65 Phil. 611 (1938); Yap Tak Wing and Co. v. Mu-
nicipal Board of Manila, 68 Phil. 511 (1939); Manila Electric Co. v. Public Utilities Employees
Asso., 79 Phil. 409 (1947); People v. Isnain, 85 Phil. 648 (1950); Manila Race Horse Trainers
Assn. v. de la Fuente, 88 Phil. 60 (1951); Tolentino v. Board of Accountancy, 90 Phil. 83 (1951);
Co Kiam v. City of Manila, 96 Phil. 649 (1955); Manansala v. Herras, 103 Phil. 575 (1958); Ca-
bangis v. Almeda-Lopez, 70 Phil. 443 (1940); Government v. Visayan Surety, 66 Phil. 326 (1938);
People v. Solon, L-14864, November 23,1960.
'"L-19978, September 29,1967.
M3
21 SCRA 366 (1967).
Sec. 1 ART. m - BILL OF RIGHTS 165

The argument is without merit. Respondent RA.E.A.E.


was not singled out by the law in order to favor it over and above
others, but rather because it is the dominant organization in the
field. Under the law no privileges are accorded RA.E.A.E. mem-
bers which are not similarly given to non-members. Both are
within the coverage of the Act. Non-membership in the RA.E.A.E.
does not mean that the benefits granted and the restrictions im-
posed by the Act shall not apply to those who choose to venture
into the business independently.

Apparently, either the Court did not consider the privilege of being
the sole source of private representation in the Control and Inspection
Board a favor, or it forgot that this favor was denied the rival P C E A R

Most equal protection cases, however, are run of the mill. For in-
294
stance, in Vera v. Cuevas an unequal application of the requirement of
warning markers on infant feed was proscribed while in Taxicab Opera-
295
tors v. Board of Transportation special regulations imposed on taxi-
cabs as distinct from other modes of public transportation was upheld.

16. T h e future of equal protection.

The question has been asked "whether the c o m m a n d implicit in


equal protection constitute merely a ban on the creation of inequalities
by the state or a c o m m a n d , as well, to eliminate inequalities existing
296
without direct contribution thereto by state action." In other words,
does the equal protection clause merely prohibit the state from institu-
tionalizing inequality or does it c o m m a n d the state to take positive mea-
sures to eradicate inequalities that have arisen not necessarily through
state action?

The equal protection clause in the constitution is a legacy from "a


nation which depends so greatly on initiative and achievement in the pri-
297
vate sector to determine the distribution of most of society's goods,"
and which consequently has not recognized in the state a constitution-
ally imposed "duty to raise everyone to a minimum acceptable standard

2 9 4
9 0 SCRA 3 7 9 (May 3 1 , 1 9 7 9 ) .
2
"G.R. No. 5 9 2 3 4 , September 3 0 , 1 9 8 2 .
""•KURLAND, THE SUPREME COURT, 1963 TERM: FOREWORD: "EQUAL IN ORIGIN AND EQUAL
TITLE TO THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT," 7 8 HARV. L . REV. 14
148(1964).
^Developments in the Law-Equal Protection, 82 HARV. L. REV. 1 0 6 5 , 1191 ( 1 9 6 9 ) .
THE 1987 CONSTITUTION Sec. 2
166
OF THE REPUBLIC OF THE PHILIPPINES

298
of living." But even in that nation and under the vague generality of
its equal protection clause there have been significant strides towards
recognizing a constitutionally imposed duty of the state to take positive
measures to achieve equality in certain fields, such as the requirement
299
of free court transcripts for indigents.

Philippine constitutional law, however, does not have to take


its cue from American developments in law before it can take bolder
strides towards equalization. Equality is one ideal which cries out for
bold attention and action in the Constitution. The Preamble proclaims
"equality" as an ideal precisely in protest against crushing inequities in
Philippine society. The c o m m a n d to promote social justice in Article II,
Section 10, in "all phases of national development," further explicated
in Article XIII, are clear c o m m a n d s to the State to take affirmative ac-
tion in the direction of greater equality. The Commission on Elections
is given broad powers in order to enable it to implement laws seeking to
equalize political opportunities. The c o m m a n d to Congress to prohibit
political dynasties has equalization for its goal. In the Bill of Rights,
Section 11, there is an express guarantee of free access to the courts
regardless of ability or inability to pay. Finally, in Article XIV, the State
is commanded to m a k e quality education accessible to all.

There is thus in the Philippine Constitution no lack of doctrinal


support for a more vigorous state effort towards achieving a reasonable
measure of equality. The Puno Supreme Court, for instance, is vigor-
ously promoting equal justice by its efforts to bring justice especially to
the under privileged through the Justice on W h e e l s p r o g r a m . Equality is
not an ideal which can be achieved by doctrinal fiat alone. T h e practical
problems of surmounting the m o n u m e n t a l obstacles that stand in the
way towards approximating the ideal remain as one of the most daring
challenges to any government administration.

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 AND FOR ANY PURPOSE
SHALL BE INVIOLABLE, AND NO SEARCH WARRANT OR WARRANT
OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE

'Id. at 1192.
'Griffin v. Illinois, 351 U.S. 12 (1956).
Sec. 2 ART. Ill - BILL OF RIGHTS 167

DETERMINED PERSONALLY BY THE JUDGE AFTER EXAMINATION UNDER


OATH OR AFFIRMATION OF THE COMPLAINANT AND THE WITNESSES
HE MAY PRODUCE, AND PARTICULARLY DESCRIBING THE PLACE TO BE
SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED.

1. P u r p o s e of the provision.

O n e lofty purpose of the protection against unreasonable searches


and seizures — and, perhaps, the most important in the eyes of the
Filipino just freed from the Spanish regime — was clearly set out in an
300
early decision of the Supreme Court:

The inviolability of the home is one of the most fundamental


of all the individual rights declared and recognized in the political
codes of civilized nations. No one can enter into the home of an-
other without the consent of its owners or occupants.

The privacy of the home — the place of abode, the place


where a man with his family may dwell in peace and enjoy the
companionship of his wife and children unmolested by anyone,
even the king, except in rare cases — has always been regarded by
civilized nations as one of the most sacred personal rights to which
men are entitled. Both the common and the civil law guaranteed
to man the right of absolute protection to the privacy of his home.
The king was powerful; he was clothed with majesty; his will was
the law, but, with few exceptions, the humblest citizen or subject
might shut the door of his humble cottage in the face of the mon-
arch and defend his intrusion into that privacy which was regarded
as sacred as any of the kingly prerogatives. The poorest and most
humble citizen or subject may, in his cottage, no matter how frail
or humble it is, bid defiance to all the powers of the state; the wind,
the storm and the sunshine alike may enter through its weather-
beaten parts, but the king may not enter against its owner's will;
none of his forces dare to cross the threshold of even the humblest
tenement without its owner's consent.

"A man's home is his castle," has become a maxim among


the civilized people of the earth. His protection therein has be-
come a matter of constitutional protection in England, America,
and Spain, as well as in other countries.

M
V.S. v. Arceo, 3 Phil. 381,384 (1904).
THE 1987 CONSTITUTION Sec. 2
168
OF THE REPUBLIC OF THE PHILIPPINES

Or, as a later decision put it, the guarantee prevents a person from
being irreversibly "cut off from that domestic security which renders
301
the lives of the most unhappy in some measure agreeable."
Section 2, however, is not just a circumscription of the power of
the state over a person's home and possessions. More important, it pro-
tects the privacy and sanctity of the person himself. It is a guarantee of
the right of the people to be secure in their "persons. . . against unrea-
sonable searches and seizures." It is therefore also a guarantee against
unlawful arrests and other forms of restraint on the physical liberty of
the person.
The constitutional guarantee is not a prohibition of all searches
and seizures but only of "unreasonable" searches and seizures. What
are "unreasonable searches and seizures?" For search or seizure to be-
come unreasonable, there must be in the first place a search or seizure
in the constitutional sense. The point at which seizure occurs is eas-
ily enough determined; but at what point does an inspection b e c o m e
a search in the sense of Section 2? This b e c a m e an issue in cases in-
volving police check points instituted at a time w h e n the country was
wracked by crimes and the government by coup attempts. The Court
in Valmonte v. de Villa said that there is as yet no cause for the ap-
plication of the constitutional rule w h e n what are involved are routine
checks consisting of "a brief question or two. For as long as the vehicle
is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individual's right against
302
unreasonable searches and seizures."
Mi
People v. Escano elaborated on this further in dealing with
checkpoints when a gun ban has been imposed by the C o m e l e c . Escano
described what are allowable checkpoints:

Those which are warranted by the exigencies of public order


and are conducted in a way least intrusive to motorists are allowed.
For, admittedly, routine checkpoints do intrude, to a certain ex-
tent, on motorists' right to 'free passage without interruption,' but

"'People v. Bolasa, G.R. No. 125754, December 22, 1999.


M2
185 SCRA 665,669(1990).
"'People v. Escano, G.R. Nos. 129756-58, January 28, 2000. The case involved unwar-
ranted entry by the police upon seeing through a small window a man and woman packing sus-
pected marijuana.
rtiw. i n — DIL,L u r K i u n i a

t cannot be denied that, as a rule, it involves only a brief detention


f travelers during which the vehicle's occupants are required to
nswer a brief question or two. For as long as the vehicle is nei-
ler searched nor its occupants subjected to a body search, and
le inspection of the vehicle is limited to a visual search, said rou-
me checks cannot be regarded as violative of an individual's right
gainst unreasonable search. In fact, these routine checks, when
onducted in a fixed area, are even less intrusive. We see no need
ar checkpoints to be announced, as the accused have invoked,
lot only would it be impractical, it would also forewarn those
mo intend to violate the ban. Even so, badges of legitimacy of
heckpoints may still be inferred from their fixed location and the
jgularized manner in which they are operated.

is a general rule, however, wherever there is a search or seizu


i n import of the language of the Constitution, which in one sc
prohibits unreasonable searches and seizures and at the sai
rescribes the requisites for a valid warrant, is that searches a
js are unreasonable unless authorized by a validly issued sear
it or warrant of arrest. T h u s , the fundamental protection given
irch and seizure clause is that between person and police mi
he protective authority of a magistrate clothed with power to
refuse to issue search warrants or warrants of arrest.

\. Probable cause.

[Tie key function of the officer w h o m the Constitution has intt


between state and private person is the determination of the e
5 of probable cause: " n o search warrant or warrant of arrest sh;
except upon probable cause." Probable cause is then the prima
ement for the issuance of a warrant, and, as will be seen lati
istence is also one of the requirements for the narrowly drav
ces when search or seizure may be made without a warrant. Wh
s probable cause?

Tn dealing with probable cause ... as the very name implies, v


/ith probabilities. These are not technical; they are the factual ai
cal considerations of everyday life on which reasonable and pri
304
nen, not legal technicians act." It has been defined generally ;

""Brinegar v. United States, 338 U.S. 160,175 (1949).


170 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

"such reasons, supported by facts and circumstances, as will warrant a


cautious man in the belief that his action, and the means taken in pros-
305
ecuting it, are legally just and proper." It is "such facts and circum-
stances antecedent to the issuance of a warrant, that are in themselves
sufficient to induce a cautious man to rely upon them and act in pursu-
306
ance thereof."
As implied by the words themselves, "probable cause" is con-
cerned with probability, not absolute or even moral certainty. The pros-
ecution need not present at this stage proof beyond reasonable doubt.
The standards of judgment are those of a reasonably prudent m a n , not
307
the exacting calibrations of a judge after a full-blown trial.

For judges of municipal courts the rule for the issuance of war-
rants of arrest is found in the Rules of Court which requires that a j u d g e
"issue a warrant of arrest if he finds after an examination in writing and
under oath of the complainant and his witnesses in the form of search-
308
ing questions and answers, that a probable cause exists."

But to establish probable cause of illegal possession of firearms


the witness must have personal knowledge of the existence of the fire-
309
arms and of the absence of license for such firearms. Moreover, to
prevent stealthy encroachment upon, or gradual depreciation of the
right to privacy, a liberal construction in search and seizure cases is
given in favor of the individual. H e n c e , there is no presumption of regu-
310
larity of searches.

M o r e specifically, probable cause must be defined in relation to


the action which it justifies. Probable cause for an arrest or for the is-
suance of a warrant of arrest would m e a n such facts and circumstances
which would lead a reasonably discreet and prudent man to believe
that an offense has been committed by the person sought to be arrested.
Probable cause for a search would m e a n such facts and circumstances
which would lead a reasonably discreet and prudent m a n to believe that
an offense has been committed and that the objects sought in connec-
tion with the offense are in the place sought to be searched. It should

"'U.S. v.Addison, 28 Phil. 566,570 (1914).


"•People v. Sy Juco, 64 Phil. 667,674 (1937).
"TMicrosoft Corporation v. Maxicorp, G.R. No. 140946, September 13, 2004.
Tabujara v. People, G.R. No. 175162, October 29,2008.
'"Betoy v. Judge, A.M. No. MTJ-05-1608, February 26,2006.
3
'"Sony Music v. Judge Espaflol, G.R. No. 156804, March 14,2005.
Sec. 2 ART. Ill RILL OF RIGHTS 171

be noted, however, that unlike proof of probable cause for warrant of


arrest, probable cause for a search warrant need not point to a specific
3
offender. " But, in either case, it should be emphasized that what is re-
quired is not proof beyond reasonable doubt but merely probable cause.
312
"Evidence required to establish guilt is not necessary."

W h a t amounts to sufficient evidence may differ from case to case


depending on the nature of the object of search. T h u s , for instance, it
has been held that in an application for a search warrant for contraband
videotapes the presentation of the master tapes of copyrighted films
from which copies had been m a d e is essential but only if there is doubt
313
about the true nexus between the master tape and the copies.

In the 1967 case of Stone hill v. Diokno?" the Court said that the
establishment of the existence of probable cause "presupposes the intro-
duction of competent proof that the party against w h o m it is sought has
performed particular acts, or committed specific omissions violating
a given provision of our criminal law." T h e Court, in invalidating the
warrant issued in the case, said that the description of the offense sim-
ply as "violation of the Central Bank L a w s , Tariff and Customs Laws,
Internal Revenue C o d e and Revised Penal C o d e " m a d e it "impossible
for the judges w h o issued the warrants to have found the existence of
315
probable cause." In other w o r d s , "probable cause" means probable
cause of something specific.
3 6
The situation was different in Central Bank v. Judge Morfe '
where failure to show probable cause was also raised by a respondent
savings and loans association. The association was one not authorized
to accept deposits of funds from the public nor to engage in the banking

3
"Webb v. de Leon, G.R. No. 121234, August 23,1995.
312
Henry v. United States, 361 U.S. 98,102 (1959).
'"Columbia Pictures v. CA, G J*. No. 110318, August 28, 1996. In two earlier cases, 20th
Century Fox Films v. Court of Appeals, 164 SCRA 524 (1988); Columbia Pictures. Inc. v. Court
of Appeals, 237 SCRA 367 (1994), the Court had said "The court cannot presume that duplicate or
copied tapes were necessarily reproduced from the tapes that [the complainant] owns.
3U
L-19550, June 19, 1967.
3
"The Court stressed the seriousness of the irregularity by pointing to the amended provi-
sion of the Rules of Court which now says that "a search warrant shall not issue but upon probable
cause in connection with one specific offense" and that "no search warrant shall issue for more
than one specific offense." Section 3, Rule 126. This amendment was passed post the issuance
of the Stonehill warrants (but before the present decision) and, according to one writer, propter.
FRANCISCO, CRIMINAL PROCEDURE 890.
316
L-20119,June30, 1967.
THE 1987 CONSTITUTION Sec. 2
172
OF THE REPUBLIC OF THE PHILIPPINES

business nor to perform any banking activity or function. After observ-


ing the activities of the organization over a period of time, a member of
the intelligence division of the Central Bank filed an application for a
search warrant alleging that the organization was engaging in unauthor-
ized banking activity "by receiving deposits of money for deposit, dis-
bursement, safekeeping or otherwise ... without having first complied
with the provisions of the Republic Act N o . 337." The sufficiency of
these averments for establishing probable cause was challenged on the
ground that there was no showing of personal knowledge of "specific
illegal transactions" with identified parties. The Court answered this
argument by saying that "the failure of the witness to mention particular
individuals did not necessarily prove that he had no personal knowl-
edge of specific illegal transaction ... even if the names of the indi-
viduals concerned were unknown to him." Moreover, the interest of the
law in regulating this particular type of operation, the Court said, was
not necessarily to protect a specific "victim" but "to protect the public
against actual as well as potential injury." T h e acts imputed to the as-
sociation, besides, were not "isolated transactions distinct from the type
of business in which it was generally engaged" but "the general pattern
of the business organization."

3. Determination o f probable cause: b y w h o m a n d h o w ;


meaning of "personally."

Article III, Section 2, says that probable cause is "to be determined


personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may p r o d u c e . " T h e provision then
poses two questions: (1) W h o may determine probable cause? (2) W h a t
procedure must be followed in determining probable cause?

Under Article III, Section 1 (3), of the 1935 Constitution, probable


cause could be determined only by a j u d g e and by no other officer. Qua
1 1
Chee Gan v. Deportation Board ' called attention to this rule which was
a departure from the Fourth A m e n d m e n t of the American constitution
and from earlier organic acts applicable to the Philippines. The Court
318
noted:

3
"SCRA 27 (1963). Probable cause for the purpose of filing an information, however, is
determined by the prosecuting officer. People v. Court of Appeals, G.R. No. 126005, January 21,

""SCRA 35-6(1963).
Sec. 2 ART. rn - BILL OF RIGHTS 173

[A] notable innovation in this guarantee is found in our Con-


stitution that it specifically provides that the probable cause upon
which a warrant of arrest may be issued, must be determined by
the judge after examination under oath, etc., of the complainant
and the witnesses he may produce. This requirement — "to be de-
termined by the judge" — is not found in the Fourth Amendment
of the U.S. Constitution, in the Philippine Bill or in the Jones Act,
all of which do not specify who will determine the existence of a
probable cause. Hence, under their provisions, any public officer
may be authorized by the legislature to make such determination,
and thereafter issue the warrant of arrest. Under the express terms
of our Constitution, it is, therefore, even doubtful whether the ar-
rest of an individual may be ordered by any authority other than
the judge if the purpose is merely to determine the existence of
a probable cause, leading to an administrative investigation. The
Constitution does not distinguish between warrants in a criminal
case and administrative warrants in administrative proceedings.
And, if one suspected of having committed a crime is entitled to a
determination of the probable cause against him, by a judge, why
should one suspected of a violation of an administrative nature
deserve less guarantee? Of course it is different if the order of ar-
rest is issued to carry out a final finding of a violation, either by an
executive or legislative officer or agency duly authorized for the
purpose, as then the warrant is not that mentioned in the Constitu-
tion which is issuable only on probable cause. Such, for example,
would be a warrant of arrest to carry out a final order of deporta-
tion, or to effect compliance of an order of contempt.

1 9
In Collector of Customs v. VMaluz, ' the Court also ruled that
judges, since the Constitution has conferred upon them the power to de-
termine probable cause for the purpose of issuing warrants, necessarily
also have the power to conduct preliminary examination even if statutes
are silent about such power. Moreover, inherent in the courts' power to
issue search warrants is the power to quash warrants already issued.
The motion to quash should be filed in the court that issued the warrant
unless a criminal case has already been instituted in another court, in
320
which case, the motion should be filed with the latter.

3
"71 SCRA 356,373 (June 18,1976). In his concurrence Justice Fernando pointed out that
the ruling is only on the power of judges to conduct preliminary examination and not on the power
to conduct preliminary investigation.
3M
Solid Triangle Sales v. Sheriff, GR. No. 144309, November 23, 2001.
THE 1987 CONSTITUTION Sec.2
174
OF THE REPUBLIC OF THE PHILIPPINES

Since Qua Chee Gan, in an undeviating line of cases, the Supreme


Court has held that the Commissioner of Immigration, an executive of-
ficer, cannot issue warrants of arrest in aid merely of his investigatory
321
power.

4. From the 1973 Constitution interlude to the 1987 resto-


ration.
The 1973 provision departed from the 1935 rule. Under that 1973
law, probable cause could be determined also by "such other responsible
officer as may be authorized by law." While judges thus had authority
from the Constitution itself to determine probable cause, the Constitu-
tion also authorized the legislative authority to designate other "respon-
sible officers" to perform the same function. T h e jurisprudential task
under this new provision was to try to determine who the "responsible
officers" were who might be authorized by law to determine probable
cause and ultimately to issue warrants.

When the provision c a m e for discussion on the convention floor


on November 2 7 , 1 9 7 2 , Delegate Suarez m o v e d for its deletion arguing
that the determination of probable cause, and ultimately the issuance of
warrants, was essentially a judicial function. T h e Convention voted to
support Suarez' motion but only to reverse itself, on motion of Delegate
Duavit, within hours of the initial approval.

It is in fact difficult to support S u a r e z ' claim that the determina-


tion of probable cause is essentially a judicial function. Jurisprudence
12
attests to the contrary. In Ocampo v. United States? a case of Philip-
pine origin, the United States Supreme Court stated that "the function
of determining whether probable cause exists for the arrest of a person
accused is only quasi-judicial, and not such that, because of its nature,
it must necessarily be confided to a strictly judicial officer or tribunal."
The previously cited Qua Chee Gan case also points to the contrary rule
both in American jurisprudence and in Philippine law prior to the 1935
23
Constitution. And in Shadwick v. City of Tampa? the United States
Supreme Court upheld the validity of a warrant issued by a municipal
clerk who was not even a lawyer. This is not difficult to see w h e n one

32l
Dalamal v. Deportation Board, 9 SCRA 382 (1963); Morano v. Vivo, 20 SCRA 562
(1967); Neria v. Vivo, 29 SCRA 701 (1969); Calacday v. Vivo. 33 SCRA 413 (1970).
322
234 U.S. 91,100(1914).
323
40 LW 4758 (1971).
Sec. 2 ART. Ill - BILL OF RIGHTS 175

recalls that probable cause is a factual and practical concept which is


324
not necessarily technical.

W h e n the a m e n d m e n t was being discussed by the 166-Man Spe-


cial Committee of the 1971 Constitutional Convention charged with
preparing the final working draft of the Convention, Delegate De la
Serna asked w h o these officers were w h o may be authorized by law to
issue warrants. T h e answer of Delegate R. Ortiz was that the provision
contemplated the "situation where the law may authorize the fiscals to
325
issue search warrants or warrants of arrest." It was thus clear from
the little there was of Convention discussion that one view was that
the intent of the provision was to m a k e it possible for the legislature to
authorize prosecution or law enforcement officers to issue search war-
rants or warrants of arrest. But in the session of November 2 7 , 1972,
it was partly the fear of the dire consequences that could follow from
giving such authority to local chiefs of police and similar officers which
persuaded the Convention to delete the innovation. And when the inno-
vation was eventually restored, the restoration came without any floor
discussion. Could any and every responsible officer then be authorized
to determine probable cause under the 1973 Constitution?

In looking for an answer to this question, an examination of


American jurisprudence should help. American constitutional law does
not ban the grant of this quasi-judicial power to non-judicial officers.
But American jurisprudence has evolved what amounts to a per se rule
prohibiting prosecutors and police officers from issuing warrants. The
American rule is that the estimate of probable cause must be made upon
326
a "detached scrutiny by a neutral magistrate" and "not by a policeman
327
or government enforcement agent." This rule was re-emphasized in
Coolidge v. New Hampshire.™ Moreover, in upholding the validity of a
warrant issued by a municipal court clerk who was not even a lawyer,
329
Justice Powell said in Shadwick v. City ofTampa.

An examination of the Court's decisions reveals that the


terms "magistrate" and "judicial officer" have been used inter-

324
Supra, text with note 3.
'"Meeting of 166-Man Special Committee, November 16,1972.
326
Katz v. United States, 389 U.S. 347,356 (1967).
'"Johnson v. United states, 333 U.S. 10,14 (1948).
M
' 403 U.S. 443 (1971).
'"40 LW 4758,4760-1 (1971).
THE 1987 CONSTITUTION Sec
OF THE REPUBLIC OF THE PHILIPPINES

changeably. Little attempt was made to define either term, to dis-


tinguish the one from the other, or to advance one as the definitive
Fourth Amendment requirement. We find no commandment in
either term, however, that all warrant authority must reside exclu-
sively in a lawyer or judge. Such a requirement would have been
incongruous when even within the federal system warrants were
until recently widely issued by non-lawyers.
To attempt to extract further significance from the above ter-
minology would be both unnecessary and futile. The substance of
the Constitution's warrant requirements does not tum on the label-
ing of the issuing party. The warrant traditionally has represented
an independent assurance that a search and arrest will not proceed
without probable cause to believe that a crime has been committed
and that the person or place named in the warrant is involved in the
crime. Thus an issuing magistrate must meet two tests. He must
be neutral and detached, and he must be capable of determining
whether probable cause exists for the requested arrest or search.
This Court long has insisted that inferences of probable cause
be drawn by "a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise
of ferreting out crime." Johnson v. United States, supra, at 13-14;
Giordenello v. United States, supra, at 486. In Coolidge v. New
Hampshire, supra, the Court last Term voided a search warrant
issued by the state attorney general "who was actively in charge of
the investigation and later was to be chief prosecutor at trial." Id. at
450. If, on the other hand, detachment and capacity do conjoin, the
magistrate has satisfied the Fourth Amendment's purpose.
What we do reject today is any per se invalidation of a state
or local warrant system on the ground that the issuing magistrate
is not a lawyer or judge. Communities may have sound reasons
for delegating the responsibility of issuing warrants to competent
personnel other than judges or lawyers. Many municipal courts
face stiff and unrelenting caseloads. A judge pressured with the
docket before him may give warrant applications more brisk and
summary treatment than would a clerk. All this is not to imply
that a judge or lawyer would not normally provide the most desir-
able review of warrant requests. But our federal system warns of
converting desirable practice into constitutional commandment. It
recognizes in plural and diverse state activity one key to national
innovativeness and vitality. States are entitled to some flexibility
and leeway in their designation of magistrates, so long as all are
neutral and detached and capable of the probable cause determina-
tion required of them.
Sec. 2 ART. Ill - BILL OF RIGHTS 177

This rule of American jurisprudence is a requirement of due pro-


cess. D u e process is basically a rule of fair play, and fair play demands
that the arbiter of h u m a n rights be both competent and impartial. Due
process, as a rule of fair play, is also a basic principle of Philippine con-
stitutional law. T h u s , the term "responsible officer" in the 1973 search
and seizure clause should have been given a meaning that did not do
violence to due process.

On June 1 8 , 1 9 7 6 , the Court could still say that no law had as yet
330
been passed authorizing an executive officer to issue warrants. There-
after, however, a n u m b e r of administrative boards were given such au-
thority. Moreover, in People v. Villanueva™ Justice Aquino made the
assertion that a fiscal is a responsible officer authorized by law within
the meaning of Section 3 (1973). This case, however, was decided in
division and the assertion carried the concurrence of only two other
Justices. It therefore did not establish doctrine.

T h e above discussion of the 1973 provision, however, has become


academic. T h e 1987 Constitution has returned to the 1935 rule that war-
332
rants may be issued only by judges. However, the Commissioner of
Immigration may order the arrest of an alien in order to carry out a
333
deportation order that has already b e c o m e final.

5. Personal examination of the witnesses.

Whether, however, the officer determining probable cause be a


judge or not, the determination must be made only "after examination
under oath or affirmation of the complainant and the witnesses he may
produce" and the warrant must contain the required particularity of de-
scription.

The import of the prescribed manner of examination can be fully


understood when seen against the background of its development.

'"Collector of Customs v. Villaluz, 71 SCRA 356.373 (June 18, 1976).


"'110 SCRA 465,470 (December 19,1981).
2
" Salazar v. Achacoso, G.R. 81510, March 14, 1990; Board of Commissioners v. De la
Rosa, 197 SCRA 853,879 (1991).
333
Qua Chee Gan v. Deportation Board, 9 SCRA 382 (1963); Calacday v. Vivo, 33 SCRA
413 (1970); Board of Commissioners (CID) v. De la Rosa, 197 SCRA 853, 879 (1991). This last
case clarifies the apparent departure from the rule in Harvey v. Commissioner on Immigration and
Deportation, 162 SCRA 840 (1988).
THE 1987 CONSTITUTION Sec. 2
178
OF THE REPUBLIC OF THE PHILIPPINES

Under Section 3 of the Jones Law of 1916, the provision was: "That
no warrant shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the person or thing to be seized." This was supplemented by General
Orders No. 58, Section 98 of which read: "The judge or justice must,
before issuing the warrant, examine on oath the complainant and
witnesses he may produce and take their deposition in writing." Thus,
it was considered an irregularity for the judge to issue a search warrant
354
without first examining the complainant or any witnesses under oath.

With the adoption of the 1935 Constitution, Section 98 of General


Orders No. 58 became part of the organic law. The constitutional provi-
sion was made to read: " . . . no warrant shall issue but upon probable
cause, to be determined by the judge after examination under oath or af-
firmation of the complainant and the witnesses he may produce . . . " The
5
leading case of Alvarez v. Court of First Instance" settled definitively
the import of this provision. Here, the government agent applying for a
search warrant admitted under oath that he had no personal knowledge
of the facts which were to serve as a basis for the issuance of the warrant
but that he had knowledge of them through mere information secured
from a person he considered reliable. T h e Court said that the "oath re-
quired must refer to the truth of the facts within the personal knowledge
of the petitioner or his witnesses, because the purpose thereof is to con-
vince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable
336
cause." The test of sufficiency, according to the Court, was "whether
it had been drawn in such a m a n n e r that perjury could be charged there-
337
on and affiant be held liable for d a m a g e s caused."

On the eve of the 1971 Constitutional Convention the need for


personal examination by the officer w a s reiterated in Bache & Co.

334
Uy Kheytin v. Villareal, 42 Phil. 886, 894 (1920). The irregularity, however, was not
considered sufficient cause for ordering the return of the seized object which, in this case, was
prohibited opium. Id. at 895.
335
64 Phil. 33 (1937).
33
*W. at 43. Same ruling in case under the Jones Law, U.S. v. Addison, 28 Phil. 566, and
later cases of People v. Sy Juco, 64 Phil. 667, 674, (1937); Rodriguez v. Villamiel, 65 Phil. 230.
238 (1937); De Garcia v. Locsin, 65 Phil. 689, 693-4 (1938); Yee Sue Koy v. Almeda, 70 Phil.
141,145-6(1940).
3J7
64Phil.at44.
Sec. 2 ART. m - BILL OF RIGHTS 179

33
v. Ruiz * and perhaps was pushed to its limit. In the instant case, the
Deputy Clerk took the deposition of the complainant and his witness,
after which the stenographic notes of the deposition were read to the
j u d g e in the presence of the complainant and his witness. The judge
inquired about the correctness of what w a s read with a few words of
warning against the commission of perjury. Thereafter, the judge issued
339
the warrant. T h e Supreme Court, declaring the warrant invalidly is-
340
sued, said:

This cannot be considered as a personal examination. If


there was an examination at all of the complainant and his witness,
it was the one conducted by the Deputy Clerk of Court. But, as
already stated, the Constitution and the rules require a personal ex-
amination by the judge. It was precisely on account of the intention
of the delegates to the Constitutional Convention to make it a duty
of the issuing judge to personally examine the complainant and his
witnesses that the question of how much time would be consumed
by the judge in examining them came up before the Convention,
as can be seen from the record of the proceedings. The reading of
the stenographic notes to respondent Judge did not constitute suf-
ficient compliance with the constitutional mandate and the rule;
for by that manner respondent Judge did not have the opportunity
to observe the demeanor of the complainant and his witness, and to
propound initial and follow up questions which the judicial mind,
on account of its training, was in the best position to conceive.
These were important in arriving at a sound inference on the all-
important question of whether or not there was probable cause.

Jurisprudence under the 1973 Constitution followed the Bache


341
rule and was recalled in Roan v. Gonzales while the draft of 1987
342
Constitution was being finalized. Citing Mata v. Bayona, the Court
343
said in Roan: " M e r e affidavits of the complainant and his witnesses
are thus not sufficient. The examining Judge has to take depositions in
writing of the complainant and the witnesses he may produce and attach
them to the record."

3M
3 7 SCRA 823 (1971).
"•/d. at 831.
^W. at 831-2.
M1
145 SCRA 687.694 (November 25,1986).
" ^ S C R A 388,391.
M3
145 SCRA at 694.
180 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

This rule found in die 1987 text saying that probable cause must be
determined "personally by the judge" was intended to embody Bache.
The import of the addition of the word "personally" was taken up in an
exchange between Commissioner Suarez and Father B e m a s where it
was made clear that "the judge conducting the examination must do it
344
in person and not through a commissioner or a deputy clerk of court."
As formulated, however, "personally" defines "determined" and not the
examination of the witnesses. Thus it was that, almost immediately af-
ter the adoption of the new Constitution, in the libel case filed by Presi-
dent Aquino against the late Luis Beltran, the Court could soften the
Bache rule to justify the warrant issued against Beltran.
345
In Soliven v. Judge Makasiar, the Court said:

The addition of the word "personally" after the word "de-


termined" and the deletion of the grant of authority by the 1973
Constitution to issue warrants to "other responsible officers as may
be authorized by law," has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and per-


sonal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge
is not required to personally examine the complainant and his wit-
nesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents sub-
mitted by the fiscal regarding the existence of probable cause and,
on the basis thereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's
report and require the submission of supporting affidavits of wit-
nesses to aid him in arriving at a conclusion as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges


would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.

'I RECORD 715.


'167 SCRA 394,398 (1988).
T h e Court thereby returned to the 1935 rule in Alvarez which said:
"Neither the Constitution nor General Orders N o . 48 provides that it is
of imperative necessity to take the depositions of the witnesses to be
presented by the applicant or complainant in addition to the affidavit of
the latter. The purpose of both in requiring the presentation of deposi-
tions is nothing more than to satisfy the committing magistrate of the
existence of probable cause. Therefore, if the affidavit of the applicant
346
is sufficient, the j u d g e may dispense with that of the other witnesses."

Notwithstanding the Soliven case, however, subsequent decisions


still cite Section 4 of Rule 126 of the N e w Rules of Criminal Procedure
which says: " S e c . 4. Examination of complainant; record. — The judge
must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the com-
plainant and the witnesses he may produce on facts personally known to
them and attach to the record their sworn statements together with any
affidavits submitted." Thus in Pendon v. Court of Appeals, the Court
reached this conclusion: "We find that the requirement mandated by
the law and the rules that the j u d g e must personally examine the appli-
cant and his witnesses in the form of searching questions and answers
347
before issuing the warrant was not sufficiently complied with." What
this m e a n s , however, is that, depending on the circumstances of the
case, the j u d g e may or may not rely on the fiscal's evaluation. Lim, Sr.
3
v. Judge Felix *" said:

We reiterate the ruling in Soliven v. Makasiar that the Judge


does not have to personally examine the complainant and his wit-
nesses. The Prosecutor can perform the same functions as a com-
missioner in the taking of evidence. However, there should be a
report and necessary documents supporting a Fiscal's bare certifi-
cation. All of these should be before the Judge.
The extent of the Judge's personal examination depends on
the circumstances of each case. We cannot determine beforehand
how cursory or exhaustive the Judge's examination should be. The
judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be
as brief as or as detailed as the circumstances of each case require.
To be sure, the Judge must go beyond the Prosecutor's certification

"•64 Phil, at 45. Reiterated in Webb v. De Leon, G.R. No. 121234, August 23,1995.
M7
191 SCRA 429,437 (1990).
*"G Jl. Nos. 94054-7, February 19,1991.
THE 1987 CONSTITUTION Sec. 2
182
OF THE REPUBLIC OF THE PHILIPPINES

and investigation report whenever necessary. He should call for


the complainant and witnesses themselves to answer the court's
probing questions when the circumstances of the case so warrants.

Thus, what is clear now is that a judge is not required to personally


examine the complainant and his witnesses or to await the submission
of counter affidavits from an accused. Following established doctrine
and procedure, the judge shall: (1) personally evaluate the report and
the supporting documents submitted by the prosecutor regarding the
existence of probable cause, and on the basis thereof, he may already
make a personal determination of the existence of probable cause; and
(2) if he is not satisfied that probable cause exists, he may disregard the
prosecutor's report and require the submission of supporting affidavits
of witnesses to aid him in arriving at a conclusion as to the existence of
349
probable cause.

6. Particularity of description.
iS0
In Uy Kheytin v. Villareal, the Supreme Court explained the re-
quirement of particularity of description thus:

The evident purpose and intent of this requirement is to limit


the things to be seized to those, and only those, particularly de-
scribed in the search warrant — to leave the officers of the law with
no discretion regarding what articles they shall seize, to the end
that unreasonable searches and seizures may not be made, — that
abuses may not be committed . . .

This would mean therefore that whatever is not included in the


description may not be seized. Beyond that, however, jurisprudence has
551
defined the requirement thus:

A search warrant may be said to particularly describe the


things to be seized when the description therein is as specific as
the circumstances will ordinarily allow ... or when the description
expresses a conclusion of fact — not of law — by which the war-
rant officer may be guided in making the search and seizure ...; or
when the things described are limited to those which bear direct
relation to the offense for which the warrant is being issued. ...

""Borlongan, Jr. v. Pena, G.R. No. 143591, November 23, 2007.


350
42 Phil. 886, 896 (1920).
"'Bache and Co. v. Ruiz, 37 SCRA at 835.
Sec. 2 ART. Ill - BILL OF RIGHTS 183

Like the question of probable cause, the question of adequacy


of description was also met early in the pre-Commonwealth and ear-
152
ly post-Commonwealth period. In People v. Veloso, the legality of a
John Doe warrant of arrest was questioned. (The principle enunciated
here is applicable, mutatis mutandis, to search warrants.) In upholding
its validity, the Court examined the warrant as a whole. While the per-
son to be seized was simply identified as John D o e , the place occupied
by him was identified as "the building numbered 124 Calle Arzobispo,
3
City of Manila, Philippine Islands." T h e Court concluded:"

[A] is invariably recognized that the warrant for the appre-


hension of an unnamed party is void, "except in those cases where
it contains a descriptio personae such as will enable the officer
to identify the accuseds The description must be sufficient to in-
dicate clearly the proper person upon whom the warrant is to be
served. As the search warrant stated that John Doe had gambling
apparatus in his possession in the building occupied by him at No.
124 Calle Arzobispo, City of Manila, and as this John Doe was
Jose Ma. Veloso, the manager of the club, the police could identify
John Doe as Jose Ma. Veloso without difficulty.

There is, however, a limit to John D o e warrants. T h u s , a warrant


for the arrest of fifty John Does is of the nature of a general warrant
354
which does not satisfy the requirement of particularity of description.

With reference to property, the Court has also said that the de-
scription "is required to be specific only so far as the circumstances will
ordinarily allow" and " w h e r e , by the nature of the goods to be seized,
their description must be rather general, it is not required that a tech-
nical description be given, as this would mean that no warrant could
355
issue." T h u s , the description "fraudulent books, invoices and records"
356
was found sufficient. So also was the description "books, documents,
receipts, lists, chits and other papers used by him in connection with his
activities as money-lender, charging a usurious rate of interest, in viola-

J52
48 Phil. 169(1925).
353
W.at 181.
iiA
Pangandaman v.Casar. 159 SCRA 599,611 (1988).
"'People v. Rubio, 57 Phil. 384, 389 (1932); Alvarez v. Court of First Instance, 64 Phil.
33,46(1937).
"*57 Phil, at 389.
184 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

357
tion of the law." Justifying the sufficiency of the later description, the
358
Court said:

Taking into consideration the nature of the articles so de-


scribed, it is clear that no other more adequate and detailed de-
scription could have been given, particularly because it is diffi-
cult to give a particular description of the contents thereof. The
description so made substantially complies with the legal provi-
sions because the officer of the law who executed the warrant was
thereby placed in a position enabling him to identify the articles,
which he did.

One can see from the above cases that the Court has taken a broad
view of what particularity of description m e a n s , and this, in spite of
the oft-repeated assertion that the constitutional protection should be
given a "liberal construction or a strict construction in favor of the
359 0
individual." In the case of Stonehill v. Diokno?* however, the Court
set the limit to permissible generality. H e r e , the warrant simply said:

Books of accounts, financial records, vouchers, journals,


correspondence, receipts, ledgers, portfolios, credit journals, type-
writers, and other documents and/or papers showing all business
transactions including disbursement receipts, balance sheets and
related profit and loss statements.

The Court said:

[T]he warrants authorized the search for and seizure of re-


cords pertaining to all business transactions of petitioners herein,
regardless, of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners
and the aforementioned corporations, whatever their nature, thus
openly contravening the explicit command of our Bill of Rights
— that the things to be seized be particularly described — as well
as tending to defeat its major objective: the elimination of general
warrants.

357
64 Phil, at 47.
358
w.
359
People v. Veloso, 48 Phil. 169,176 (1925); Alvarez v. Court of First Instance, 64 Phil, at
42; People v. Sy Juco, 64 Phil. 667,674 (1937).
""G.R. No. 19550, June 19, 1967
Sec. 2 ART. Ill - BILL OF RIGHTS 185

36
Similarly the following description is insufficient: '

Television sets, Video Cassettes Recorders, rewinders, tape


head cleaners, accessories, equipment and other machines used or
intended to be used in the unlawful reproduction, sale, rental/lease,
distribution of the above-mentioned video tapes which she is keep-
ing and concealing in the premises above-described.

The items mentioned may be found in legitimate business shops.

F r o m this discussion of Stonehill and from the earlier discussion


of probable cause, one can see that the sufficiency of the description of
the object of the search is closely related with the sufficient particularity
of the averments of the offense. T h e possibility of properly identify-
ing the object of the search may depend on the proper identification of
362
the offense committed. This fact also became apparent, although in
a different way, in the case of Central Bank v. Judge Morfe?" In this
case, the failure of the witness to identify the names of the parties to
the transaction was raised as proof of failure to prove probable cause
and, hence, as evidence of the impossibility of properly identifying the
corporate papers which were the object of the search. It was argued that
the warrant, containing merely an itemized list of the type of books
whose seizure was desired, amounted to a "roving cornmission." The
books, it was argued, should have been identified according to specific
transactions with named persons. T h e Court, however, rejected this ar-
gument. The Central Bank in this particular case had petitioned for a
search warrant in its capacity as the state administrative supervisor of
the operation of banks. If the Court had barred access to the records of
the mutual savings and loans association by asking for an unreasonable
degree of particularity in the description of the books whose inspection
was desired, it would have unduly paralyzed the regulatory power of
the Central Bank.

It should also be noted that it is not enough that the object be suf-
ficiently described. It is necessary besides that the warrant be applied
to what is described. Thus where the warrant indicated "Abigail Vari-
ety Store Apt. 1207, Area-F, Bagong Buhay Avenue, Sapang Palay, San

"'Columbia Pictures v. Flores, G.R. No. L-78631, June 29, 1993.


M
See also Bache & Co. v. Ruiz, 37 SCRA at 832-3.
36J
G.R. No. 20119, June 30, 1967.
186 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

Jose del Monte, Bulacan," it was illegitimate to apply it to Apt. 1, a unit


at the rear of and immediately next to what is described. "It is neither
fair nor licit to allow police officers to search a place different from
that stated in the warrant on the claim that the place actually searched-
-although not that specified in the warrant — is exactly what they had
in view when they applied for the warrant and had demarcated in their
supporting evidence. What is material in determining the validity of a
search is the place stated in the warrant itself, not what the applicants
had in their thought, or had represented in the proofs they submitted to
364
the court issuing the warrant."

7. Searches and seizures "of whatever nature a n d for any


purpose."
When the Constitution says that it is meant to cover "searches
and seizures of whatever nature and for any purpose," one might ask
what the 1971 Convention meant to sweep into the grab-bag. T h e same
language, not found in the 1935 Constitution, is now also in the 1987
Constitution. It is submitted, although the present writer has not found
anything explicit in the convention discussions in support of the posi-
tion, that the new phrase has effectively extended the search and seizure
clause to at least two penumbral areas.

The first is the area of constructive search contained in a subpoena


duces tecum or an order for the production of books and papers. Rule 27
[CHECK] of the Rules of Court says in part:

Upon motion of any party showing good cause therefor and


upon notice to all other parties, the court in which an action is
pending may (a) order any party to produce and permit the inspec-
tion and copying or photographing, by or on behalf of the moving
party, of any designated documents, papers, books, accounts, let-
ters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control . . .

'"People v. Court of Appeals, G.R. No. 126379, June 26,1998. This is different from Bur-
gos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (1984), where the searching officers corrected an
obvious typographical error, or from Frank Uy v. BIR, G.R. No. 129651, October 20,2000, where
the mistake in the description was obvious.
Sec. 2 ART. m - BILL OF RIGHTS 187

365
T h e case of Material Distributors (Phil.), Inc. v. Judge Natividad,
had an opportunity to look into constitutional issues arising from the
provision. Under authority of Rule 2 7 , Judge Natividad had granted
a motion for the production and inspection of: (1) books and papers
of Material Distributors, Inc. comprising journals, ledgers, letters and
cablegrams; (2) books and papers belonging to Harry Lyons, likewise,
comprising journals, ledgers, letters and cablegrams; (3) the originals
of t w o annexes to the complaint containing lists of names. Against such
an order, three constitutional issues were raised: self-incrimination, un-
reasonable search and seizure, violation of the privacy of communica-
tion. T h e decision was outstanding for a very scanty discussion of very
important issues.

T h e self-incrimination issue arose out of the order to produce the


originals of the two annexes to the complaint. The object of such order
was to ascertain whether the additional names found in the annexes
also appeared in the original. In dismissing the allegation of self-in-
366
crimination, the Court gave nothing beyond this perplexing answer:
"We have considered carefully the reasons advanced by the petitioners
in their pleadings in support of this allegation and we found nothing in
them to show how, without the inspection of Annexes A and B of the
complaint, petitioners may incriminate themselves."

As to the violation of the search and seizure clause, the Court


367
said:

The orders in question ... pertain to a civil procedure that


cannot be identified or confused with unreasonable searches pro-
hibited by the Constitution. But in the erroneous hypothesis that
the production and inspection of books and documents in question
is tantamount to a search warrant, the procedure outlined by Rule
21 [now 27] and followed by respondent judge place them out-
side the realm of the prohibited unreasonable searches. There is no
question that upon the pleadings in the case, Sarreal [the party who
asked for the order] has an interest in the books and documents in
question, that they are material and important to the issues between
him and the petitioners, that justice will be better served if all the
facts pertinent to the controversy are placed before the trial court.

"WPhil. 127(1949).
**Id.at 135.
7
» W. at 135-6.
188
THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

The question which this pronouncement raises is whether, indeed,


the principles applicable to a search warrant are foreign to Rule 27.
The 1964 case of PANTRANCO v. Judge Legaspi™ even went to the
extent of saying that Rule 27 "permits 'fishing' for evidence." This was
reiterated in Caltex (Phil.), Inc. v. Caltex Dealers Association,™ where
the Court said that '"fishing for evidence' is not prohibited but allowed
under the present Rules of Court on Discovery and Deposition, for the
reason that it enables litigants adequately to prepare their pleadings and
for trial, this, in turn, resulting often in the simplification or reduction of
triable issues." When it is realized that the power of the Supreme Court
to issue rules of procedure is subject to the specific constitutional limi-
370
tation that they shall not diminish substantive rights, it becomes clear
that the application of Rule 27 must follow constitutional principles on
search and seizure.

At any rate, even if to equate the power to order the production


of books with search and seizure w a s , under Material Distributors, an
"erroneous hypothesis," now, with the sweeping coverage of the new
search and seizure clause, the matter should be re-examined. In fact,
even the language of Rule 27 satisfies what the search and seizure clause
demands as a minimum requirement. Probable cause is the m i n i m u m
requirement of the search and seizure clause. A n d the idea of prob-
able cause is expressed in the requirement of Rule 27 that the books
and papers must "contain evidence material to any matter involved in
the action." Moreover, the requirement of particularity of description
is also contained in Rule 27 in that these books and papers must be
"designated." A 1948 American case puts the analogy with search and
371
seizure thus:"

Without attempt to summarize or accurately distinguish all


of the cases, the fair distillation, in so far as they apply merely to
the production of corporate records and papers in response to a
subpoena or order authorized by law and safeguarded by judicial
sanction, seems to be that the Fifth Amendment affords no protec-

L-20916-7, December 23, 1964, citing 2 MOHAN, COMMENTS ON THE RULES OF COURT 109
(1963), which in rum cited the Material Distributors case.
""L-25883, April 29,1969.
A r t i C l e V I 1 1 , S e C t i n 1 3 ( 1 9 3 5 ) l A r t i c l e X ) S e c t i o n 5 ( 5 )
(1987) " ° ° (1973). Article VIII, Section 5(5)

"'Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186,208-9 (1948).


Sec. 2 ART. m - BILL OF RIGHTS 189

tion by virtue of the self-incrimination provision, whether for the


corporation or for its officers; and the Fourth, if applicable, at the
most guards against abuse only by way of too much indefinite-
ness or breadth in the things required to be particularly described,
if also the inquiry is one the demanding agency is authorized by
law to make and the materials specified are relevant. The gist of
the protection is in the requirement, expressed in terms, that the
disclosure sought shall not be unreasonable.
As this has taken form in the decisions, the following spe-
cific results have been worked out. It is not necessary, as in the
case of a warrant, that a specific charge or complaint of violation
of law be pending or that the order be made pursuant to one. It
is enough that the investigation be for a lawfully authorized pur-
pose, within the power of Congress to command. This has been
ruled most often perhaps in relation to grand jury investigations,
but also frequently in respect to general or statistical investiga-
tion authorized by Congress. The requirement of "probable cause,
supported by oath or affirmation" literally applicable in the case
of a warrant is satisfied, in that of an order for production, by
the court's determination that the investigation is authorized by
Congress, is for a purpose Congress can order, and the documents
sought are relevant to the inquiry. Beyond this the requirement of
reasonableness, including particularity in "describing the place to
be searched, and the persons or things to be seized," also literally
applicable to warrants, comes down to specification of the docu-
ments to be produced adequate, but not excessive, for the purposes
of the relevant inquiry. Necessarily, as has been said, this cannot
be reduced to formula; for relevancy and adequacy or excess in
the breadth of the subpoena are matters variable in relation to the
nature, purposes and scope of the inquiry.

The other penumbral area of search and seizure, as yet untouched


by Philippine jurisprudence, became the subject of Camara v. Munici-
12
pal Court? The case arose out of the conviction of the appellant for re-
fusing entry to a housing inspector w h o , unarmed with a search warrant,
sought to inspect appellant's dwelling. The Supreme Court reversed the
conviction saying: "We hold that administrative searches of the kind at
issue here are significant intrusions upon the interests protected by the
Fourth Amendment, that such searches when authorized and conducted

37J
387 U.S. 523 (1967), overruling Frank v. Maryland, 359 U.S. 360 (1959).
190 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

without a warrant procedure lack the traditional safeguards which the


373
Fourth Amendment guarantees to the individual."
In arriving at this conclusion, however, the Court was quite aware
"that the only effective way to seek universal compliance with the mini-
mum standards required by municipal codes is through routine periodic
374
inspections of all structures." Thus, the search warrant it required,
the nature of the probable cause and the degree of particularity of de-
scription it prescribed were characterized by the dissent as "a new-
fangled 'warrant' system that is entirely foreign to Fourth Amendment
375
standards." For determination of probable cause the Court did not
require specification of evidence of violation but allowed the issuing
magistrate's evaluation to rest upon "the passage of time, the nature
of the building (e.g., a multi-family apartment house), or the condition
376
of the entire area." As for description, the Court was willing to ac-
377
cept warrants on an area-wide basis. In justification of this "synthetic
warrant" the Court said: "Such an approach neither endangers time-
honored doctrines applicable to criminal investigations or makes nullity
of the probable cause requirement in this area. It merely gives full rec-
ognition to the competing public and private interests here at stake and,
in so doing, best fulfills the historic purpose behind the constitutional
right to be free from unreasonable government invasions of privacy."

Still another instance when the issue of search can c o m e up is the


requirement of IDs. Executive Order 4 2 0 , which standardized I D ' s in
government offices, was challenged. But the Court said that the EO did
not establish a national ID card system injurious to privacy. EO 4 2 0 did
not compel all citizens to have an ID card. EO 4 2 0 applied only to gov-
ernment entities that under existing laws were already collecting data
and issuing ID cards as part of their governmental functions. H e n c e , it
378
did not require legislation.

Bank enquiries can also raise privacy issues. T h e Constitution and


the Rules of Court prescribe particular requirements attaching to search
warrants. But these are not imposed by the A M L A with respect to bank

m
Id. at 534.
374
W. at 535-6.
375
W. at 547.
376
W.at538.
)rl
ld.
"'KMU v. Director, G.R. No. 167798, April 19,2006.
Sec. 2 ART. in - BILL OF RIGHTS 191

inquiry orders. A constitutional warrant requires that the judge person-


ally examine under oath or affirmation the complainant and the wit-
nesses he may produce such examination being in the form of searching
questions and answers. Those are impositions which the legislative did
not prescribe as to the bank inquiry order under the A M L A . Simply put,
a bank inquiry order is not a search warrant or warrant of arrest as it
379
contemplates a direct object but not the seizure of persons or property.

Waiver of right.

Even w h e n a petitioner admits to opening his bag when the police


asks to see its contents, it does not necessarily follow that the action
signifies valid consent. His implied acquiescence, if at all, may have
been no m o r e than m e r e passive conformity given under coercive or
380
intimidating circumstances.

Section 2 6 , Rule 114 of the Revised Rules in Criminal Procedure


says that an application for bail or the admission to bail by an accused
is not considered a waiver of his right to assail the warrant issued for
his arrest or the legalities or irregularities thereof. This is a new rule
intended to modify previous rulings of this Court. The new rule is cu-
rative in nature because precisely, it is designed to supply defects and
381
curb evils in procedural rules.

382
8. Warrantless searches and seizures: (1) search inciden-
tal to arrest.

T h e rule that searches and seizures must be supported by a val-


id warrant is not an absolute rule. The search and seizure clause has
two parts. The first prohibits "unreasonable searches and seizures" and
the second lays down the requirements for a valid warrant. As the text
stands, it does not yield the conclusion that a search or seizure not sup-
ported by a warrant is necessarily "unreasonable." Thus it is that juris-
prudence recognizes five generally well-established exceptions to the
warrant requirement. They are: (1) search incidental to an arrest, (2)

""Republic v. Eugenic-,G.R. No. 174629, February 14,2008.


38D
Vergara v. People,G.R. No. 170180, November 23,2007.
38,
Okabe v. Judge de Leon, G.R. No. 150185, May 27,2004.
'"A convenient summary of the doctrine may be found in People v. Anita, GJt. No.
120915, April 3,1998,288 SCRA 626,637-38, and PadUla v. Court of Appeals, G J*. No. 121917,
March 12,1997.
192 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

search of moving vehicles, (3) seizure of evidence in plain view, (4)


customs searches, and (5) where there is waiver of the right. A rarer
exception is the rule on "exigent circumstance" and the "stop and frisk"
rule.
The Philippine rule on search made incidental to arrest was stated
in Moreno v. Ago Chi?" "An officer making an arrest may take from the
person arrested any money or property found upon his person which
was used in the commission of the crime or was the fruit of the crime or
which might furnish the prisoner with the means of committing violence
or escaping, or which may be used in evidence in the trial of the cause.
. . . " From the statement of the rule it can be seen that the purpose of the
exception is both to protect the arresting officer against physical harm
from the person being arrested who might be armed with a concealed
weapon and also to prevent the person arrested from destroying evi-
dence within his reach. The exception therefore should not be strained
beyond what is needed in order to serve its purpose. Thus Chimel v.
1 4
California * established the rule that the scope of allowable warrant-
less search is limited to the area within which the person arrested could
reach for a weapon or reach for evidence to destroy it. This was a rejec-
tion of the earlier case of United States v. Rabinowitz™ which allowed
warrantless searches of the area within the arrested person's " i m m e d i -
ate control" and defined that phrase so vaguely as to allow a search of
the arrested person's entire premises. Subsequent to Chimel, the U . S .
Supreme Court disallowed warrantless search of a house following an
386
arrest on the steps, search of a house following an arrest twenty feet
387
from the house, and search of a car parked on the driveway following
388
an arrest in the house.
9
The rule on the subject is now found in Nolasco v. Pano?* T h e
arrest had been m a d e while Nolasco w a s riding in a j e e p n e y and the
search was m a d e in her house several blocks away from the place of

3B3
12 Phil. 439, 442 (1909). Also People v. Veloso, 48 Phil. 168, 181 (1925); Alvero v.
Dizon, 76 Phil. 637,645 (1946); People v. Che Chun Ting, G.R. Nos. 130568-69, March 21,2000;
Padilla v. Court of Appeals, G.R. No. 121917, March 12,1997.
384
395 U.S. 752 (1969).
385
339 U.S.56(1950).
386
Vale v. Louisiana, 399 U.S. 30 (1970).
387
Shipley v. California, 395 U.S. 818 (1969).
388
Coolidge v. New Hampshire, 403 U.S. 443 (1971)
389
147 SCRA 509(1987).
Sec. 2 ART. Ill - BILL OF RIGHTS 193

arrest. T h e original Court ruling under the authoritarian rule had justi-
fied the search as one incidental to an arrest. Nolasco reversed the rule.
390
Chief Justice Teehankee in his concurring opinion said: " T h e better
and established rule is a strict application of the exception provided in
Rule 126, Sec. 12 and that is to absolutely limit a warrantless search
of a person w h o is lawfully arrested to his or her person at the time of
and incident to his or her arrest and to 'dangerous weapons or anything
which may be used as proof of the commission of the offense.' Such
warrantless search obviously cannot be m a d e in a place other than the
391
place of arrest."

9. Warrantless searches a n d seizures: (2) search of moving


vehicles.
392
T h e 1968 Philippine case of Papa v. Mago decided a case on
search and seizure which was of first impression in this jurisdiction. It
involved the seizure, without warrant, of two trucks coming from the
customs zone of the port of Manila and allegedly loaded with misde-
clared and undervalued imported goods. In upholding the validity of
the search and seizure without warrant, as authorized by the Tariff and
Customs C o d e , the Court relied solely on the distinction between mov-
ing vehicles and stationary objects. T h e Court cited Carroll v. United
393
States:

The guaranty of freedom from unreasonable searches and


seizures is construed as recognizing a necessary difference be-
tween a search of a dwelling house or other structure in respect
of which a search warrant may readily be obtained and a search
of a ship, motorboat, wagon, or automobile for contraband goods,
where it is not practicable to secure a warrant, because the vehicle
can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.

While the distinction is plainly correct, it is important to emphasize


two points. First, the Carroll rule arose out of a portion of the Volstead

""W. at 515.
"The 1985 Revised Rules on Criminal Procedure expressly clarifies this through a change
in the caption, as follows: "Sec. 12 Search incident to lawful arrest. — A person lawfully arrested
may be searched for dangerous weapons or anything which may be used as proof of the commis-
sion of an offense, without a search warrant." (Rule 126)
"^-27360, February 28, 1968.
W3
267 U.S. 132, 153(1925).
THE 1987 CONSTITUTION Sec. 2
194
OF THE REPUBLIC OF THE PHILIPPINES

Act providing for warrantless searches of a moving automobile on


the open road "where it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or jurisdiction in
3 4
which the warrant must be sought." ' It was thus founded on an exigent
circumstance which demanded immediate action. Thus in Coolidge v.
New Hampshire™ the Court did not allow the warrantless search of a
parked car because the facts did not indicate that it was impracticable
to secure a warrant. Secondly, the Carroll rule does not dispense with
the requirement of probable cause. As a later decision put it, " T h e
Carroll doctrine does not declare a field day for the police in searching
automobiles. Automobile or no automobile, there must be probable
396
cause for the search." Probable cause is the " m i n i m u m requirement
397
for a reasonable search permitted by the Constitution."

It should also be noted that the Papa case involved enforcement of


customs laws which, as is also recognized in Papa, establish the third
398
exception to the requirement of warrants. It was therefore compara-
ble to American border control cases which give to customs and im-
399
migration officers the broadest power of search. As the Carroll case
400
itself said, "Travelers may be . . . stopped in crossing an international
boundary because of national self protection reasonably requiring one
entering the country to identify himself as entitled to c o m e in, and his
belongings as effects which may be lawfully brought in." T h u s , the doc-
trine in the Papa case cannot be applied without necessary purification
to any and every search of moving vehicles.

The rule on moving vehicles was also applied by the Court to a


401
fishing vessel found violating fishery laws, but not to a motor launch

394
«.
395
403 U.S.443,461 (1971).
396
Almeida-Sanchez v. United States, 37 L Ed. 2nd 596,600-1 (1973).
^Chambers v. Maroney, 399 U.S. 42,51 (1970).
m
See also Pacis v. Pamaran, 56 SCRA 16 (March 15, 1974). Moreover, the rule is that
the moment imported goods are actually in the possession or control of Customs, the Bureau of
Customs acquires exclusive jurisdiction over the goods, subject only to appeal to the Court of Tax
Appeals and the Supreme Court. Collector of Customs v. Villaluz, 71 SCRA 356, 373 (June 18,
1976).
399
1 SCHWARTZ, RIGHTS OF THE PERSON (1968) 216-8
0
" 267 U.S. at 154.
"'Roldan, Jr. v. Area, 65 SCRA 336 (July 25,1975). The seizure was also justified as inci-
dental to the arrest of the crew. Hizon v. Court of Appeals, GJi. No. 119619, December 13. 19%,
265 SCRA 517,527-28.
Sec. 2 ART. Ill - BILL OF RIGHTS 195

402
that had already been stripped of its engine. Nor was warrantless
search allowed where the officers had the evidence and every opportu-
403
nity to obtain a warrant while waiting for an inter-island boat to arrive.

A police checkpoint can also be the occasion for a search of a


404
moving vehicle. Illustrative of this is People v. Malmstedt. Accused,
Malmstedt, w a s a passenger on a bus from Sagada to Baguio City
which was stopped at a checkpoint in C a m p D a n g w a . The checkpoint
had been set up on the basis of reports that vehicles from Sagada were
being used to transport marijuana. Moreover, information had been re-
ceived that a Caucasian coming from Sagada had prohibited drugs in
his possession. During the inspection, officers noticed a bulge in ac-
cused's waist. W h e n accused refused to comply with the request for
identification papers, he was m a d e to show what he had on his waist. It
403
was found to contain hashish.

It was also by appeal to Malmstead in an analogous way that a


warrantless search of Eurocar Sales was justified. The occasion was the
attempted coup of 1989. There was an immediate need to search the
suspected arsenal of arms. "In addition, there was general chaos and
disorder at that time because of simultaneous and intense firing within
the vicinity of the office and in the nearby C a m p Aguinaldo which was
406
under attack by rebel forces." In such a situation, waiting for a war-
rant could give the suspects time to hide the instruments of the crime.

^ i m v. Ponce de Leon, 66 SCRA 299, 307 (August 29,1975).


"'People v. Amminudin, 163 SCRA 402 (1988). But see an earlier case where the Court
seems to have extended the exception beyond its rationale when it justified the warrantless search
of a car even though the searching authorities had all the time to obtain a warrant. People v. CFI of
Rizal, 101 SCRA 86 (November 17,1980).
*°*GSl. No. 91107, June 19, 1991. See also People v. Lo Ho Wing, et al., G.R. No. 88017,
21 January 1991 and People v. Bagista,G£. No. 86218, September 18, 1992.
"'On stepping outside, Malmstead stopped to pick up two traveling bags which, upon be-
ing opened, were also found to contain prohibited drugs. This one was justified as search of one
who had just been arrested for possession of illegal drugs.
'n Guazon, et al. v. General de Villa. GJt. No. 80508, January 30,1990, a blanket prohibi-
tion of "Areal Target Zonings" or "Saturation Drives" by the police was sought. While the Court
admitted the possibility of abuses in saturation drives, it did not grant a blanket prohibition. The
most it did was to say (1) that in the absence of complainants and complaints against specific actors
no prohibition could be issued, and (2) to "temporarily restrain the alleged banging on walls, the
kicking of doors, the herding of half-naked men to assembly areas for examination of tattoo marks,
the violation of residences even if these are humble shanties of squatters, and the other alleged acts
which are shocking to the conscience."
•"People v. de Gracia, 233 SCRA 716 (1994).
THE 1987 CONSTITUTION Sec. 2
196
OF THE REPUBLIC OF THE PHILIPPINES

As to searches in check points, Aniag, Jr. v. Commission on Elec-


01
tions, recalling what was earlier said in Valmonte v. De Villa,* had this
408
to say:
An extensive search without warrant could only be resorted
to if the officers conducting the search had reasonable or probable
cause to believe before the search that either the motorist was a
law offender or that they would find the instrumentality or evi-
dence pertaining to the commission of a crime in the vehicle to be
searched. The existence of probable cause justifying the warrant-
less search is determined by the facts of each case. Thus, we upheld
the validity of a warrantless search in situations where the smell of
marijuana emanated from a plastic bag owned by the accused, or
where the accused was acting suspiciously, and attempted to flee.

In Aniag, Jr., however, the search of a car m a d e by police officers


twenty meters from the entrance to the Batasan complex was not justi-
fied by any earlier confidential report nor by the behaviour or appear-
409
ance of the motorist.
10
In Caballes v. Court of Appeals,* the Court had occasion to re-
view the rulings on moving vehicles:

The mere mobility of these vehicles, however, does not give


the police officers unlimited discretion to conduct indiscriminate
searches without warrants if made within the interior of the terri-
tory and in the absence of probable cause....

Although the term eludes exact definition, probable cause


signifies a reasonable ground of suspicion supported by circum-
stances sufficiently strong in themselves to warrant a cautious
man's belief that the person accused is guilty of the offense with
which he is charged; or the existence of such facts and circum-
stances which could lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject
to seizure and destruction by law is in the place to be searched.
The required probable cause that will justify a warrantless search

m l
m SCRA at 216 (1989).
M
237 SCRA 424(1994).
405
'Aniag has a summary of cases where warrantless searches of vehicles have been justi-
fied. Id. at 433-435.
4I0
G.R. No. 136292, January 15,2002.
ind seizure is not determined by a fixed formula but is resolved
iccording to the facts of each case.
One such form of search of moving vehicles is the "stop-
ind-search" without warrant at military or police checkpoints
vhich has been declared to be not illegal per se, for as long as it
s warranted by the exigencies of public order and conducted in a
vay least intrusive to motorists. A checkpoint may either be a mere
outine inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an in-
lividua!'s right against unreasonable search. The search which is
lormally permissible in this instance is limited to the following
nstances: (1) where the officer merely draws aside the curtain of a
acant vehicle which is parked on the public fair grounds; (2) sim-
ily looks into a vehicle; (3) flashes a light therein without open-
ng the car's doors; (4) where the occupants are not subjected to a
ihysical or body search; (5) where the inspection of the vehicles
s limited to a visual search or visual inspection; and (6) where the
outine check is conducted in a fixed area.

n this case, the search which was thorough, was invalidated 1


it was based only on the fact that kakawati leaves covered p
)f the vehicle.

10. Warrantless searches and seizures: (3) evidence in ph

rhe third exception, according to Harris v. United States*" is d


s "falling in the plain view of an officer who has a right to be
isition to have that view are subject to seizure and may be inti
in evidence." T h u s , where marijuana sticks fall before the eyes
:e officer from an object a person is carrying, seizure of the stic
2
I not require a warrant.'"
rhe rule, however, was modified in the plurality opinion
n
dge* which said that to come under the exception the discove
be "inadvertent." If an officer encounters prohibited objects on
414
poking around, the discovery would not be inadvertent.

"390 U.S. 234,236 (1968).


"People v. Tabar, 222 SCRA 144 (1993).
"403U.S.at472.
"People v. Musa, 217 SCRA 597 (1993).
THE 1987 CONSTITUTION Sec. 2
198
OF THE REPUBLIC OF THE PHILIPPINES

Our Supreme Court also had occasion to re-examine this excep-


tion in Roan v. Gonzales*" where the object seized was an unlicensed
gun. But the seizure had been made in the course of a search on the
strength of a warrant which, besides not containing any mention of the
gun, turned out to be invalid. The Court stated the rule: seizure of a
malum prohibitum requires a warrant unless it is truly stumbled upon;
which was not the case here.

11. Warrantless searches and seizures: (4) customs inspec-


tions.
It has also been traditionally understood that customs officers or
border officers may search incoming persons and goods to look for ei-
416
ther goods concealed to avoid duties or other illegal materials.

12. Warrantless searches and seizures: (5) waiver.

To the above specific exceptions must also be added the general


exception of waiver. "The right to be secure from unreasonable search
may, like every right, be waived and such waiver may be m a d e either
417
expressly or impliedly. T h e waiver can be shown by failure to m a k e
418
any objection or even mutter a bit of protest. De Garcia v. Locsin
419
stated the rule:

It is well-settled that to constitute a waiver of a constitutional


right, it must appear, first, that the right exists; secondly, that the
person involved had knowledge, either actual or constructive, of
the existence of such right; lastly, that said person had an actual
intention to relinquish the right.

There was in De Gratia failure to object to an objectionable war-


420
rant. But the Court added:

In any event, the failure on the part of the petitioner and her
bookkeeper to resist or object to the execution of the warrant does

4,5
145 SCRA 687 (November 25,1986).
416
Uy Kheytin v. Villareal, 116 U.S. 746 (1886); Papa v. Mago, 22 SCRA 857 (February 28,
1968); Pacis v. Pamaran, 56 SCRA 16 (March 15,1974).
4l7
People v. Kagui Malasugui, 63 Phil. 221,226 (1936); Alvarez v. Court of First Instance,
64 Phil, at 48; People v. Bayua, 40 O.G. 12th supp. 184,187 (1940)
4
"63 Phil, at 226.
419
65 Phil. 689, 694-5 (1938), citing 67 CJ. 299. Recently reiterated in People v. Barros,
231 SCRA557 (1994).
420
65 Phil at 695, citing 1 COOLEY, CONST. UM. 630 (8th Ed.) and 56 C J. 1180-1.
Sec. 2 ART. Ill - BILL OF RIGHTS 199

not constitute an implied waiver of constitutional right. It is


but a submission to the authority of the law. As the constitutional
guaranty is not dependent upon any affirmative act of the citizen,
the courts do not place the citizen in the position either of contest-
ing an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law.

Similarly, were the raid was conducted by armed officers, the


421
Court said:

The act of the accused-appellant in allowing the members of


the military to enter his premises and his consequent silence dur-
ing the unreasonable search and seizure could not be construed as
voluntary submission or an implied acquiescence to warrantless
search and seizure especially so when members of the raiding team
were intimidatingly numerous and heavily armed. His implied ac-
quiescence, if any, could not have been more than mere passive
conformity given under coercive or intimidating circumstances
and is, thus, considered no consent at all within the purview of the
constitutional guarantee. Consequently, herein accused-appellant's
lack of objection to the search and seizure is not tantamount to a
waiver of his constitutional right or a voluntary submission to the
warrantless search and seizure.

Even when a petitioner admits to opening his bag when the police
asks to see its contents, it does not necessarily follow that the action
signifies valid consent. His implied acquiescence, if at all, may have
been no more than mere passive conformity given under coercive or
422
intimidating circumstances.
423
But in Lopez v. Commissioner of Customs, the Court saw waiver
in the fact that a "mere manicurist" found in a hotel room allowed of-
ficers to make a search in the absence of the registered occupant. The
Court said: "Under the circumstances, that was the most prudent course
of action [for the "manicurist"]. It would save her and even petitioner
Velasco himself from any gossip or innuendo. Nor could the officers of
the law be blamed if they would act on appearances. There was a person

"'People v. Comapacion, GR. No. 124442. July 20,2001.


422
Vergara v. People, G.R. No. 170180, November 23,2007.
42,
6 8 SCRA 320,328 (December 12,1975).
200
THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

inside who from all indications was ready to accede to their request.
Even common courtesy alone would have precluded them from inquir-
424
ing too closely as to why she was there." Thus, Velasco became the
victim of gentlemanliness! But the moral is clear: have your nails mani-
cured outside your hotel room — even if a later decision has said that,
since the right is a personal one, waiver must be given by the person
425
himself or by one who has the authority to execute waiver for him.

It should finally be noted that the waiver must be understood to


cover only what is included within the terms of the language. A permis-
sion granted for officers to enter a house to look for rebel soldiers does
426
not include permission for a room to room search for firearms.

13. "Exigent circumstance."

A rare case of allowable warrantless search is what can be called


the doctrine of "exigent circumstance" applied in People v. De Gra-
tia.™ What precipitated its birth were intelligence reports that a build-
ing was being used as headquarters by the R A M during the 1989 at-
tempted coup d'etat. A surveillance team was fired at by a group of
armed men coming out of the building and the occupants of the building
refused to open the door despite repeated requests. Indications were
that there were large quantities of explosives and ammunitions inside
the building. Nearby courts were closed and general chaos and disorder
prevailed. The Court ruled: "Under the foregoing circumstances, it is
our considered opinion that the instant case falls under one of the ex-
ceptions to the prohibition against warrantless search. In the first place,
the military operatives, taking into account the facts obtaining in this
case, had reasonable ground to believe that a crime was being c o m -
mitted. There was consequently more than sufficient probable cause to
warrant their action. Furthermore, under the situation then prevailing,
the raiding team had no opportunity to apply for and secure a search

424
But if the defense of illegality of the search is purely personal, can it be waived by any
other than the person himself?
It has also been held that the voluntary surrender of a gun constitutes waiver. People v.
Agbot, 106 SCRA 325, 331 (July 31,1981) and that the posting of a bail bond constitutes waiver
of the right to challenge any defect in the warrant. Callanta v. Villanueva, 77 SCRA 377 (June 20,
1977).
""People v. Damaso.G.R. No. 93516, August 12, 1992.
426
Spouses Veroy v. Layague, G.R. No. 95632, June 18, 1992
<27
G.R. Nos. 102009-10, July 6, 1994.
Sec. 2 ART. Ill - BILL OF RIGHTS 201

warrant from the courts. T h e trial j u d g e himself manifested that on De-


cember 5, 1989 when the raid was conducted, his court was closed. Un-
der such urgency and exigency of the m o m e n t , a search warrant should
lawfully be dispensed with."

14. T h e "stop a n d frisk" rule.

Related to warrantless searches is what is known as the "stop and


frisk" rule taken from the US Supreme Court decision of Terry v. Ohio™
A29
and adopted by Posadas v. Court of Appeals .

T h e rule arose out of the following situation described by Terry:


"In this case, t w o men repeatedly walked past a store window and re-
turned to a spot where they apparently conferred with a third man. This
aroused the suspicion of a police officer. To the experienced officer,
the behavior of the men indicated that they were sizing up the store
for an armed robbery. W h e n the police officer approached the men and
asked them their n a m e s , they mumbled a reply. Whereupon, the of-
ficer grabbed one of them, spun him around and frisked him. Finding a
concealed w e a p o n , he did the same to the other two and found another
weapon. In prosecution for the offense of carrying a concealed weapon,
the defense of illegal search and seizure was put up." On this basis the
Court ruled that: "[Wjhere a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the person with whom he is
dealing may be armed and presently dangerous, where in the course of
investigation of this behavior he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own or oth-
ers' safety, he is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to as-
sault him. Such a search is reasonable search under the Fourth Amend-
ment . . . "

"•392U.S. 1,88 S.Ct. 1868,20 L.Ed. 2d. 889 (1968).


4M
G.R. No. 89139, August 2, 1990, 188 SCRA 288, later notably applied in the following
cases: People v. Solayao, G.R. No. 119220, September 20, 1996, 262 SCRA 255; and Malacat v.
Court of Appeals, G.R. No. 123595, December 12, 1997,283 SCRA 159.
THE 1987 CONSTITUTION Sec. 2
202
OF THE REPUBLIC OF THE PHILIPPINES

After Posadas, our Court applied the principle in People v. So-


3 3
layao* " and Malacat v. Court of Appeals.* ' In Solayao, the Court said:
"As with Posadas, the case at bar constitutes an instance where a search
and seizure may be effected without first making an arrest. There was
justifiable cause to 'stop and frisk' [Solayao] when his companions fled
upon seeing the government agents. Under the circumstances, the gov-
ernment agents could not possibly have procured a search warrant first.
In Malacat, the Court, delving into the notable points of the Terry rul-
ing, discussed the "justification for and allowable scope of a 'stop-and-
frisk' as a 'limited protective search of outer clothing for w e a p o n s ' . "
Thus, the Court said that: "while probable cause is not required to con-
duct a 'stop and frisk,' it nevertheless holds that mere suspicion or a
hunch will not validate a 'stop and frisk.' A genuine reason must exist,
in light of the police officer's experience and surrounding conditions,
to warrant the belief that the person detained has weapons concealed
about him.

Finally, a 'stop-and-frisk' serves a two-fold interest: (1) the gen-


eral interest of effective crime prevention and detection, which under-
lies the recognition that a police officer may, under appropriate circum-
stances and in an appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without probable cause;
and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could un-
expectedly and fatally be used against the police officer.
432
The above should be compared with People v. Mengote, where
all the surveillance team of police officers saw were t w o m e n "looking
from side to side," and one of them holding his a b d o m e n . W h e n ap-
proached, the two men ran away but were caught. W h e n searched, they
yielded a .38 caliber Smith and Wesson revolver with six live bullets
in the chamber. The weapons were taken, given to the police w h o used
it as evidence in a prosecution for possession of an unlicensed firearm.
The Court ruled the evidence inadmissible saying that no offense was
involved in "looking from side to side" and holing the a b d o m e n .

4M
GA. No. 119220, September 20,1996.
43,
G J i . No. 123595, December 12,1997.
,i2
GR. No. 87059, June 22,1992.
Sec. 2 ART. Ill - BILL OF RIGHTS 203

These exceptions do not declare a field day for searching officers.


"The essential requisite of probable cause must still be satisfied before
a warrantless search and seizure can be lawfully conducted." "Prob-
able cause, in these cases, must only be based on reasonable ground of
suspicion or belief that a crime has been committed or is about to be
committed." It is, however, decided not by a j u d g e but by the searching
4
officer. "

15. Suspicionless d r u g tests.

A new set of US decisions arose because of the rampant problem


of drugs. Because the problem can affect schools, measures have been
taken to protect the school atmosphere from drug abusers. One such
measure was Student Athlete D r u g Policy adopted by Vemonia School
District in Oregon which denied participation in school athletics to stu-
dents who refused to submit to drug test. Parents of the students denied
participation filed suit seeking injunctive relief on the ground that the
policy constituted unconstitutional search. In Vemonia School District
3
v. Acton* * the Court acknowledged that compelled urinalysis was a
form of search but that its "reasonableness" must be judged by balanc-
ing the intrusion on the individual's interests against the promotion of
legitimate government interests. Student athletes have a lesser privacy
expectation than free adults because an element of communal undress
is inherent in athletic participation and athletes are subject to preseason
physical examinations. The privacy interests involved in the process of
obtaining urine samples are negligible since the conditions of collection
are almost identical with those found in public restrooms. Moreover,
the tests looked only for standard drugs and not medical conditions, and
the results would be released only to a selected group. The legitimate
interest of the state in reducing the risk of physical harm to the athlete
and to others outweighs the privacy interest of the student athlete.
35
Vemonia was followed by Board of Education v. Earls* which
involved the Student Activities Drug Testing Policy (Policy) adopted by
the Tecumseh, Oklahoma, School District. The policy required all mid-

433
People v. Anita, GR. No. 120915, April 3,1998.
454
No. 94-590. Decided June 26,1995.
435
No. 01332. Decided June 27,2002.
THE 1987 CONSTITUTION Sec. 2
204
OF THE REPUBLIC OF THE PHILIPPINES

die and high school students to consent to urinalysis testing for drugs in
order to participate in any extra-curricular activity and not just in athlet-
ics. Students and parents brought suit. The Court upheld the policy rely-
ing on the reasoning in Vemonia. To the argument that students engaged
in activities which are not athletic have greater expectation of privacy,
the Court replied that the distinction between athletes and non-athletes
in Vernonia was not essential. What was essential were the schools cus-
todial responsibility and authority, the nature of the intrusion, the confi-
dentiality of test results and the legitimate government interest.

Republic Act No. (RA) 9 1 6 5 , otherwise known as the Compre-


hensive Dangerous Drugs Act of 2002, which requires mandatory drug
testing of candidates for public office, students of secondary and ter-
tiary schools, officers and employees of public and private offices, and
persons charged before the prosecutor's office with certain offenses,
among other personalities. The law was challenged Social Justice So-
3
ciety v. Dangerous Drugs Board* '' but, following the ruling in Verno-
nia on random drug testing of students, the court upeld it as applied to
students. As applied to candidates for national office, the requirement
was declared unconstitutional because it added to the exclusive quali-
fications for such offices prescribed by the Constitution. But as to all
the others, the Court followed Vernonia equivalently saying that the
requirement was reasonable.

16. Arrests with w a r r a n t .

The constitutional protection of the person against arbitrary ar-


rests in the search and seizure clause of the 1935 Constitution was im-
plicit in the protection against unreasonable "seizures." Arrest, after all,
is a seizure. Moreover, since the 1935 text did not distinguish between
search warrants and warrants of arrest but merely used the general term
31
warrant, Amarga v. Abbas* held that both search warrants and warrants
of arrest must satisfy the same requirements as to probable cause and
the manner of its determination. Both the 1973 and the 1987 texts re-
458
moved any doubt about the correctness of the Amarga decision since
the new provision now specifically imposes the same requirements for
both search warrants and warrants of arrest. H e n c e , what has been said

436
C R . No. 157870. November 3.2008.
4
"98 Phil. 739 (1956).
"See Montemayor, J., dissenting in Amarga v. Abbas, id., and discussion infra.
Sec. 2 ART. m - BILL OF RIGHTS 205

about probable cause and particularity of description in the discussion


of search warrants can with equal truth be said of warrants of arrest, and
little need be said on these two subjects.

In the discussion of probable cause, it will be recalled that for its


determination the j u d g e is bound to examine the complainant and the
witnesses the complainant may produce. In other words, it is the judge
himself w h o must personally determine whether probable cause ex-
439
ists or not. A doubt arose in Amarga v. Abbas when the question was
asked whether, after the filing of the information by the fiscal (which
presupposes that the fiscal has found probable cause after preliminary
investigation), a j u d g e could still refuse to issue a warrant of arrest.

T h e background of this question goes back to the pre-1935 Con-


40
stitution doctrine on the subject. In the 1910 case of U.S. v. Ocampo,*
the Philippine Supreme Court had said that the existence of probable
cause was for the j u d g e to decide. The U . S . Supreme Court, however,
[
reviewing the decision in Ocampo v. U.S.,** said that the determina-
tion of probable cause was "only a quasi-judicial function or power
which could be exercised not only by a j u d g e or magistrate but could
be delegated to an executive." Was such doctrine changed by the 1935
Constitution?

Justice Montemayor, dissenting in Amarga v. Abbas, argued that


it was not. He said that the motivation, brought out at the Convention,
for altering the search and seizure provision of the Autonomy Act, was
442
the occurrence of abuses touching on the issuance of search warrants.
"Nothing, absolutely nothing," Montemayor recalled, "was said about
443
the issuance of warrants of arrest ever having been abused." What was
incorporated in the Constitution, moreover, according to the Conven-
tion debates, was Section 98 of General Orders No. 5 8 , a section falling
444
under the chapter on search warrants.
Nothing, indeed, was said in the Convention about abuses in the
issuance of warrants of arrest. But Francisco, speaking for the incor-

43,
w.
""IS Phil. 1,41-2(1910).
*"234U.S.91 (1914).
Mi
9i Phil, at 748.
443
M.at763.
M
ld. at 752.
THE 1987 CONSTTTUTION Sec. 2
206
OF THE REPUBLIC OF THE PHILIPPINES

poration of Section 98 of General Orders N o . 58 in the provision on


search and seizure, did say that the manner of determining probable
cause for the issuance of search warrants should also apply to warrants
of arrest.*" In the context, however, of Francisco's speech, dealing with
the abuses in the issuance of search warrants, it is not clear that the Con-
vention approved his amendment with the intention of extending it to
warrants of arrest. Either for this reason, or, perhaps, because Chief Jus-
tice Paras was not aware of Francisco's convention remark, the Chief
Justice did not make use of this argument in the majority opinion. In
holding that the judge was not bound by the findings of the fiscal as to
44
probable cause, Paras merely appealed * to the text of the constitutional
provision and to the ruling in the 1910 case of US. v. Ocampo. T h u s , in
effect and without saying so in so many words, Paras rejected the U . S .
Supreme Court ruling in Ocampo v. US. in favor of the original Philip-
pine decision. But Paras also said that the j u d g e may issue a warrant of
arrest on the basis merely of the fiscal's findings recited in the informa-
447
tion, if he is satisfied with its adequacy.

In Amarga, the doctrine on the verification of probable cause for


the issuance of arrest warrants was less than lucidly clear, subsequent
decisions emphasized that it is the j u d g e w h o must determine probable
448
cause. In the immigration cases discussed above, the Court reiterated
that only a judge can issue warrants. T h e legislature also affirmed the
constitutional need for judicial intervention w h e n by R . A . N o . 3828
(1963) it amended Section 87(c) of the Judiciary Act of 1948 by insert-
ing: " N o warrant of arrest shall be issued by any justice of the peace
in any criminal case filed with him unless he first examines the witness
or witnesses personally, and the examination shall be under oath and
449
reduced to writing in the form of searching questions and a n s w e r s . "

Indeed, it is the judge who must determine the existence of prob-


able cause for the purpose of issuing a warrant of arrest. Moreover,
that the j u d g e may require the prosecuting officer to present the evi-
dence which compelled him to conclude that probable cause exists is

"'3 JOURNAL OF THE (1935) CONSTITUTIONAL CONVENTION 1100.


*"98 Phil. at741.
m
ld. at 758.
"'Supra, under "3. Determination of probable cause: by whom and how?"
"^n Luna v. Plaza, 26 SCRA 310 (1968), however, the Supreme Court allowed the judge
to adopt the questions asked by a previous non-judicial investigator. Compare with Bache & Co.
v. Ruiz,31 SCRA 823(1971).
Sec. 2 ART. m - BILL OF RIGHTS 207

450
also clear. But again, as in the case of search warrants, must the judge
personally examine the complainant and the witnesses or can he rely
on evidence presented by the prosecuting officer? In Lim, Sr. v. Felix,™
Justice Gutierrez, Jr. put the question thus: " M a y a judge without ascer-
taining the facts through his own personal determination and relying
solely on the certification or recommendation of a prosecutor that a
probable cause exists issue a warrant of arrest?" In answering the ques-
452
tion Gutierrez said:

We reiterate the ruling in Soliven v. Makasiar that the Judge


does not have to personally examine the complainant and his wit-
nesses. The Prosecutor can perform the same function as a com-
missioner for the taking of evidence. However, there should be a
report and necessary documents supporting the Fiscal's bare certi-
fication. All of these should be before the judge.

It should be noted that the Rules of Court prescribe detailed rules


which municipal j u d g e s must follow:

SEC. 6. When warrant of arrest may issue. — x x x


(b) By the Municipal Trial Court. — x x x [T]he judge
may issue a warrant of arrest if he finds after an examination in
writing and under oath of the complainant and his witnesses in the
form of searching questions and answers, that a probable cause
exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.

T h u s a j u d g e cannot base his finding of probable cause solely on


the statement of a witness w h o m he did not personally examine in writ-
453
ing and under oath and without propounding searching questions.

17. Warrantless arrest.


There is no question but that there can be cases of valid arrests
without a search warrant. This was definitely established in a series of

450
City Fiscal v. Judge Villanueva, G.R. Nos. 60349-62, December 29, 1983. Note, howev-
er, that when it comes to a preliminary investigation for the purpose of determining whether there
is probable cause for filing a case, the matter can be left to the Fiscal. Salta v. Court of Appeals,
143 SCRA 228 (July 31.1986).)
*"194 SCRA 292 (1991).
4M
W. at 306.
"Tabujara v. People, G.R. No. 175162, October 29,2008.
THE 1987 CONSTITUTION Sec. 2
208
OF THE REPUBLIC OF THE PHILIPPINES

decisions under the Philippine Bill of 1902. "The right to arrest without
a warrant was well-established in the common law of England" and
454
such common law doctrine was deemed carried to the Philippines.
The exceptions to the requirement of a arrest warrant are now summa-
rized in Rule 113, Section 5, Rules of Court.

Sec. 5. Arrest without a warrant; when lawful. — A peace


officer or private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or attempting to commit an of-
fense;
(b) When an offense has in fact been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the per-
son arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.

455
People v. Burgos had occasion to explain the scope of Rule 113,
Section 5(a). The Court said that "the officer arresting a person w h o has
just committed, is committing, or about to c o m m i t an offense must have
personal knowledge of that fact. T h e offense must also be committed in
his presence or within his view." W h e r e , however, while patrolling in
their car, policemen received a radio message from their c a m p directing
them to proceed to "Ihaw-Ihaw" where there had been a shooting, went
to the place and there saw the victim and bystanders pointing to the ac-
cused fleeing from the scene, the Court ruled under Rule 113, §5(b): an
offense had in fact just been committed, and the officers had personal
456
knowledge of the facts indicating that the accused had committed it.

454
£.«., U.S. v. Wilson, 4 Phil. 317, 323-4 (1908).
455
People v. Burgos, 144 SCRA 1,14 (September 4,1986).
4S6
PeopIe v. Jayson.G-R. No. 120330, November 18,1997.
Sec. 2 ART. m - BILL OF RIGHTS 209

But a warrantless arrest effected three months after the commission of


457
the crime was invalidated.

The most c o m m o n application of this in flagrante delicto rule is


the buy-bust operation conducted to enforce the Dangerous Drugs Act.
A buy-bust operation is a form of entrapment. The method is for an
officer to pose as a buyer. H e , however, neither instigates nor induces
the accused to c o m m i t a crime because in these cases the "seller" has
already decided to c o m m i t a crime. Since the offense happens right be-
fore the eyes of the officer, there is no need for a warrant either for the
458
seizure of the goods or for the apprehension of the offender.

A "buy bust" operation thus is closely related to "entrapment."


Entrapment m a y or may not be allowed depending on the circumstanc-
es. "It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate the
law. Not every deception is forbidden. T h e type of entrapment the law
forbids is the inducing of another to violate the law, the 'seduction' of
an otherwise innocent person into a criminal career. W h e r e the criminal
intent originates in the mind of the entrapping person and the accused is
lured into the commission of the offense charged in order to prosecute
h i m , there is entrapment and no conviction may be had. Where, how-
ever, the criminal intent originates in the mind of the accused and the
criminal offense is completed, the fact that a person acting as a decoy
for the state, or public officials furnished the accused an opportunity for
commission of the offense, or that the accused is aided in the commis-
sion of the crime in order to secure the evidence necessary to prosecute
him, there is no entrapment and the accused must be convicted. The
459
law tolerates the use of decoys and other artifices to catch a criminal."

In warrantless arrests, the law tilts in favor of authority. Thus,


speech which in an officer's estimation is criminally seditious can jus-
tify warrantless arrest even if upon prosecution the officer is proved
wrong. The criminal character of speech is something that is not easily
460
determined and must await court estimation.

""People v. Salvatierra, GJ*. No. 104663, July 24, 1997. Invalidated also was an arrest
made six days after the alleged commission of the crime. People v. Escordial, G R . Nos. 138934-
35, January 16,2002.
""People v. De la Cruz, GJt. No. 83260, April 18,1990.
""People v. Doria, G.R. No. 125299, January 22,1999.
"*°Espiritu v. Lim, G.R. No. 85727, October 3,1991. But see dissents.
THE 1987 CONSTITUTION Sec. 2
210
OF THE REPUBLIC OF THE PHILIPPINES

A controversial application of the in flagrante delicto rule is its


use with regard to "continuing crimes." Rebellion and conspiracy or
proposal to commit rebellion are considered continuing crimes. In con-
tinuing crimes the accused is assumed to be always committing the of-
fense even when asleep. Hence, he may be arrested any time he may be
461
encountered.

Regarding Section 5(b), "it is not enough that there is reasonable


ground to believe that the person to be arrested has committed a crime.
A crime must in fact or actually have been committed first. That a crime
462
has been committed is an essential precondition." And the arresting
officer must have personal knowledge of the commission of the crime.
Thus, a police officer who leams about the recent commission of the
crime merely from a report does not possess the "personal k n o w l e d g e "
463
needed to justify a warrantless arrest. Moreover, an arrest m a d e nine-
teen hours after the offense has been committed cannot be of one whose
464
crime "in fact has just been committed."

A person may also waive his right not to be arrested without a


valid warrant. But courts indulge every reasonable presumption against
a waiver of fundamental constitutional rights. T h u s waiver cannot be
inferred from the mere fact of having failed to object to a warrantless
465
arrest. But if a person enters a plea without having challenged the
466
validity of his arrest, he is d e e m e d to have waived his right.

It is noteworthy, too, that in prosecutions of peace officers for


illegal detention or arrest without warrant, the defense of good faith
has frequently been accepted with liberality. As o n e decision put it, "It
would be exacting too m u c h of police officers to require t h e m to in-
form themselves as to the right or wrong of a quarrel before making an
467
arrest."

"'Umil and Dural v. Fidel Ramos, GR. No. 81567, July 9,1990, reaffirmed on reconsid-
eration in In re Until, October 3, 1991. The decision was a reaffirmation of the notorious Garcia-
Padilla v. Enrile, 121 SCRA 472 (1983).
""M.at 15.
•"Go v. Court of Appeals, 206 SCRA 138,150 (1992).
""People v. Manlulu, 231 SCRA 701 (1994). See also People v. Rodrigueza, 205 SCRA
791,796-797 (1992) and People v. Enrile, 222 SCRA 586 (1993).
""People v. Burgos, 144 SCRA at 16.
^People v. Rabang, 187 SCRA 682 (1990).
• " U S . v. Burgueta, 10 Phil. 188,189 (1908).
Sec. 2 ART. m - BILL OF RIGHTS 211

While it is true, perhaps, that one should not expect too much of an
ordinary policeman and that therefore good faith should be a valid de-
fense against criminal liability for his action, it is nonetheless necessary
to determine the validity of the arrest, without reference to the criminal
liability of the arresting officer, because a search made incidentally to
an invalid arrest would itself be invalid and therefore unproductive of
admissible evidence. Thus it must be emphasized that for the validity
of a warrantless arrest, as in warrantless searches, the minimal require-
ment is probable cause. "Probable cause for an arrest without warrant
is such a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves as to warrant a reasonable man in be-
468
lieving the accused to be guilty."

It should, however, also be noted that both statutory law and the
1973 and 1987 Constitutions speak of "seizure" and "arrest" and that,
while an "arrest" is necessarily a "seizure," not every seizure is an ar-
rest. An arrest, according Rules of Court, "is the taking of a person into
custody in order that he may be forthcoming to answer for the commis-
sion of an offense." There are, however, deprivations of physical liberty
whose object is not necessarily detention in order to be available to
answer for an offense. T h e classic case is the "stop and frisk" already
discussed above.

18. W h e n to challenge validity of arrest.

" A n y objection involving a warrant of arrest or procedure in the


acquisition by the court of jurisdiction over the person of the accused
must be made before he enters his plea, otherwise the objection is
deemed waived." The accused must move for the quashing of the infor-
mation against him before arraignment. Otherwise, he is estopped from
469
questioning the validity of the arrest.
But Section 2 6 , Rule 114 of the Revised Rules in Criminal Pro-
cedure says that an application for bail or the admission to bail by an
accused is not considered a waiver of his right to assail the warrant is-
sued for his arrest or the legalities or irregularities thereof. This is a new
rule intended to modify previous rulings of this Court. The new rule is

•"HJ-S. v. Santos, 36 Phil. 851,855 (1917).


•"People v. Cabiles, GJt. No. 112035, January 16, 1998; People v. Hernandez, G.R. No.
117624, December 4,1997.
THE 1987 CONSTTTUTION Sec. 2
212
OF THE REPUBLIC OF THE PHILIPPINES

curative in nature because precisely, it is designed to supply defects and


470
curb evils in procedural rules.

19. ASSOs and Presidential Commitment Orders (PCO).

During the period of martial law, searches and seizures by the mil-
itary of persons suspected to be engaged in revolutionary activity were
carried out by an Arrest, Search and Seizure Order (ASSO) generally
issued by the Minister of National Defense. Such orders by the Minister
of Defense were made in virtue of General Order N o . 2-A issued by the
President pursuant to the proclamation of martial law and specifically
authorizing the Minister to arrest and detain such persons until released
by the President himself. And since the imposition of martial law, in the
accepted doctrine then, also carried with it the suspension of the privi-
411
lege of the writ of habeas corpus, the Court considered "purposeless"
472
any inquiry into the validity of these arrests and detentions.

After the lifting of martial law came the use of another instrument,
the Presidential Corrunitment Order or P C O . In a general sense, the
P C O was an order of preventive detention issued by the President as
Commander-in-Chief. As concretized in Letter of Instruction N o . 1211,
it was an order issued by the President to his subordinates for the ar-
rest and detention of persons committing crimes mentioned in P.D. N o .
2045 with respect to which the privilege of the writ remained suspended
by the same P.D. N o . 2 0 4 5 . L O I 1211 said that the P C O would issue
"(a) When resort to judicial process is not possible or expedient without
endangering public order and safety; or (b) W h e n the release on bail of
the person or persons already under arrest by virtue of a judicial warrant
would endanger said public order or safety."

Two questions were posed by the P C O in relation to the search


and seizure clause: (1) Did the President have the p o w e r to order arrest
and detention in times of crises? (2) M u s t the order of arrest and deten-
tion conform with the requirements of a valid warrant? T h e s e questions
473
were both dealt with in the landmark cases of Garcia-Padilla v. Enrile

470
Okabe v. Judge de Leon, GJt. No. 150185, May 27,2004.
"'Aquino, Jr. v. Enrile, 59 SCRA 183 (September 17.1974).
47J
Cruz v. Gatan, 74 SCRA 226,229 (November 29,1976).
m
GR. No. 61388, April 20,1983.
Sec. 2 ART. m - BILL OF RIGHTS 213

1
and Morales v. Enrile.* * And although these cases dealt with the P C O ,
the doctrine formulated also applied to the earlier A S S O .

Although these case happened under the regime of the 1973 Con-
stitution, there are elements in it which have applicability to the current
Constitution. The President's power of preventive detention rests on
solid foundation. T h e crisis powers of the President as Commander-
in-Chief in Article VII, Section 9 of the 1973 Constitution, in hierar-
chic order were: (1) to call on the armed forces to suppress or prevent
lawless violence, invasion, insurrection or rebellion; (2) to suspend the
privilege of the writ of habeas corpus; (3) to impose martial law. In the
concrete, L O I 1211 linked the P C O with the suspension of the privi-
lege, the second of the President's crisis powers; but as Chief Justice
Fernando noted in Garcia-Padilla, preventive detention can also be
ordered when the Commander-in-Chief calls on the armed forces to
prevent or suppress lawless violence, invasion, insurrection, or rebel-
lion. Chief jurisprudential reliance by Fernando, and also by the main
15
opinion, w a s on Moyer v. Peabody* which did not involve the suspen-
sion of the writ but the calling of the National Guard for the suppression
of an insurrection. T h e American Supreme Court said:

This means that [the Governor] shall make the ordinary use
of soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies
of those whom he considers to stand in the way of restoring peace.
Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power. ... So long
as such arrest are made in good faith and in the honest belief that
they are needed in order to head the insurrection off, the Governor
is the final judge and cannot be subjected to an action after he is
out of office on the ground that he had not reasonable ground for
his belief.... When it comes to a decision by the head of the State
upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial
process.

Granted, however, that the President has the power to order pre-
ventive detention, is his order beyond judicial review? The question is

"•CR. No. 61016, April 26,1983.


""212 U.S. 78,84-85 (1909).
214
THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES

still relevant because the 1987 provision on emergency retains much of


the old rule. Garcia-Padilla and Morales said that the PCO was beyond
judicial review. But could the answer really be as simple as that? And,
even if it could under the 1973 Constitution, can the same be said under
the 1987 Constitution?
As the question arose in the concrete cases of Garcia-Padilla and
Morales, the P C O was inextricably tied to the suspension of the privi-
lege of the writ of habeas corpus. The argument in Garcia-Padilla and
Morales was that the restrictive effect of the P C O may not be inquired
into by the courts through a habeas corpus action because the privilege
of the writ, whose object precisely is the inquiry into the validity of a
detention, had been suspended. In other words, inquiry was not possible
not because the nature of the detention was preventive but because the
means for inquiry, the privilege of the writ, had been suspended. N o t e ,
however, that the privilege of the writ was merely suspended; it was
not forever abolished. H e n c e , when the suspension of the privilege is
lifted and the person is still in detention, should a habeas corpus case be
entertained? Similarly, if the preventive detention is ordered on the oc-
casion merely of the calling of the armed forces but without suspension
of the privilege, will a habeas corpus case be entertained?

The Chief Justice seemed to suggest that preventive detention, for


as long as it remained only preventive, w a s not subject to judicial re-
view. The detention could be actionable by habeas corpus only should
it continue for such a length of time as to m a k e it punitive in character.

Assuming that the above is a correct reading of the view of the


Chief Justice on the justiciability of preventive detention under circum-
stances where neither martial law nor suspension of the privilege is
in effect, it is submitted that a contrary view m o r e hospitable to indi-
vidual liberty is defensible. Admittedly, the language of Justice H o l m e s
in Moyer v. Peabody on which the Chief Justice relied w a s sweeping
in its affirmation of executive discretion. But executive discretion in
Moyer v. Peabody was affirmed as possessing finality not for the pur-
pose of blocking release of M o y e r but for the purpose of protecting
Peabody, a former governor, from being m a d e to answer for action he
took while governor. H o l m e s in fact conceded that the action taken by
the then Governor Peabody was "without sufficient r e a s o n " but H o l m e s
absolved the governor of liability because the governor had acted "in
good faith."
Sec. 2 ART. Ill - BILL OF RIGHTS 215

The significance of the ruling in Moyer v. Peabody becomes clear-


er when compared with the later case of Sterling v. Constantin.™ In
Sterling, the object of the suit was not to m a k e a state governor civilly
or criminally liable but to enjoin him from proceeding with measures
he was bent on taking pursuant to a martial law declaration and on the
claim that discretionary measures taken by him were not subject to judi-
cial review. Chief Justice H u g h e s , writing for the Court in Sterling said:

It does not follow from the fact that the Executive has this
range of discretion, deemed to be a necessary incident of his power
to suppress disorder, that every sort of action the Governor may
take, no matter how unjustified by the exigency or subversive of
private right and the jurisdiction of the courts, otherwise available,
is conclusively supported by mere executive fiat. The contrary is
well established. What are the allowable limits of military discre-
tion, and whether or not they have been overstepped in a particular
case, are judicial questions.

By analogy, while the President may indeed have final discretion


on whether or not to call on the armed forces or to suspend the privilege
or to impose martial law, it does not follow that everything he does in
the n a m e of necessity or that everything he orders the armed forces to
do is legal. T h e contrary position completely subverts the supremacy
of the constitution. H e n c e , if the P C O in Garcia-Morales and Padilla
were not subject to judicial inquiry then, it was not because they were
orders of preventive detention but because the suspension of the writ
of habeas corpus temporarily prevented inquiry into their legality. In
other words, if the President wishes to close off inquiry into the legality
of emergency detentions, it is not enough that the detentions be charac-
terized as preventive; the President must in addition close the avenue
to inquiry by suspending the privilege of the writ. Which was what in
fact President Marcos had done. And since by its nature a suspension
of the privilege is temporary, the exclusion of the courts from inquiry
into questions of legality must also be temporary. Which in n u n brings
up the question of standards for measuring the legality of the detention.

The purpose of inquiry into the legality of detention can be either


for determining the criminal or civil liability of the persons responsible
for the arrest and detention, or for the release of the person detained.

4,
»287U.S. 378 (1932).
THE 1987 CONSTITUTION Sec.2
216
OF THE REPUBLIC OF THE PHILIPPINES

For purposes of determining liability, the standard is the good or bad


faith of the executive ordering the arrest. As already shown, this was
the case in Moyer v. Peabody. In the language of Justice Holmes: "So
long as such arrests are made in good faith and in the honest belief that
they are needed in order to head the insurrection off, the Governor is the
final judge and cannot be subjected to an action after he is out of office
on the ground that he had no reasonable ground for his belief." In the
concrete case of our constitutional system under the 1973 Constitution,
however, for purposes of civil or criminal liability, the good or bad faith
of the Executive was irrelevant. Executive immunity, for the President
and for those who act on his specific instructions, was guaranteed in
sweeping terms by the mantle of immunity woven by the geniuses of
the Batasan. Article VII, Section 15 (1973), said: "The President shall
be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or others pursuant to his specific
orders during his tenure."

Immunity of the executive from liability, however, is one thing;


the legality of keeping a person under detention is another. T h e suspen-
sion of the privilege of the writ, while it prevents inquiry into the legali-
ty of the detention, does not legalize the detention. O n c e the suspension
is lifted, the legality of the detention, even under the 1973 Constitution,
should be examined by the courts for the purpose of determining wheth-
er release should be ordered. For this purpose, the standard of legality
cannot be simply the good faith or bad faith of the executive. It must be
something more objective. Must the standard be the requirements for a
valid warrant?

Justice Hermogenes Concepcion in Morales says that the P C O


is a warrant issued by the President and therefore must comply with
the requirements of a valid warrant "in the same manner and to the
same extent as a warrant of arrest issued by a j u d g e . " T h i s , of course,
is obiter dictum because both Garcia-Padilla and Morales found the
arrests to be justifiable as exceptions to the ordinary requirement of
a warrant. Moreover, it overstates the case. The P C O can c o m e in the
form of a warrant, in which case it must conform to the requirements
of a valid warrant. But the P C O can also be a simple go-signal given
by the President for a warrantless arrest. It is established doctrine that
warrantless arrests can be valid, and the procedural requirements, such
as examination under oath, applicable to a warrant of arrest do not apply
Sec. 3 ART. Ill - BILL OF RIGHTS 217

to allowable arrests without warrant. However, as already seen, the rule


consecrated by the Constitution for the validity of arrests, whether the
arrests be with warrant or without warrant or whether the warrant be is-
sued by a j u d g e or by any other responsible officer authorized by law, is
that the arrest must be based on the existence of "probable cause." This
is the bottom line. To require less and to say that the ultimate test for the
validity of a detention is not probable cause but the good or bad faith of
the executive is to trivialize personal dignity.

Almost everything said above has been said in the context of the
1973 Constitution under which the Supreme Court saw itself as con-
strained to a large measure by the emergency powers of the President.
N o w under the 1987 Constitution, the Supreme Court has less reason for
being pusillanimous when face to face with the presidency. The 1986
Constitutional C o m m i s s i o n , very much aware of the less than valorous
stand taken by the M a r c o s Supreme Court in a number of human rights
cases, included in Article VIII, Section 1, the declaration that "Judicial
power includes the duty of the courts of justice ... 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
477
Government."

SEC. 3. (1) THE PRIVACY OF COMMUNICATION AND CORRES-


PONDENCE SHALL BE INVIOLABLE EXCEPT UPON LAWFUL ORDER OF THE
COURT, OR WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS
PRESCRIBED BY LAW.

(2) ANY EVIDENCE OBTAINED IN VIOLATION OF THIS OR THE


PRECEDING SECTION SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY
PROCEEDING.

1. Privacy of communication and correspondence.

Invasion of communication and correspondence is one kind of


search. The first paragraph of the present provision on privacy of com-
munication and correspondence poses two questions: (1) What type of
communication and correspondence does the provision cover? (2) What
are the conditions for allowable intrusion into the privacy of communi-
cation and correspondence?

See Article VIII, Section 18.


THE 1987 CONSTITUTION Sec. 3
218
OF THE REPUBLIC OF THE PHILIPPINES

At the 1935 Constitutional Convention, Delegate Laurel said that


the object of the provision was to provide adequate protection for "let-
ters and messages" carried by the agencies of the government lest "their
privacy be wantonly violated and great harm [be] inflicted upon the
478
citizens." If the impression given by this explanation is that the pro-
tection is meant only for written communication sent through the mails,
the impression is corrected by Laurel himself. When he was asked
whether the protection covered telephone calls, he replied that the terms
479
communication and correspondence were "used in a general sense."

The increasingly sophisticated methods of electronic surveillance


which have been made possible by m o d e m technology and their pos-
sible impact on personal privacy make the clarification of the scope of
the privacy provision crucial for present day constitutional law. Does
it in fact cover wiretaps or other methods of electronic eavesdropping?
Definitely it does.
When the 1935 Constitution was being formulated the control-
ling doctrine was that the search and seizure clause did not prohibit
non-trespassory wire-taps. This doctrine was established in 1928 in 01-
0
mstead v. United States.** Briefly, the argument in Olmstead was that
where there is no actual trespass there is no search, and where the ob-
ject is not tangible it cannot be seized. T h e "tangibles o n l y " rule was
anchored on the text of the Fourth A m e n d m e n t which enumerates tan-
481
gibles: house, persons, papers, effects. T h e framers of the 1935 C o n -
stitution were quite aware of the Olmstead doctrine and their realization
of the inadequacy of the search and seizure clause as a protection for
personal privacy must have at least partly motivated the adoption of the
privacy provision. It has no counterpart in the American Constitution
nor in Philippine organic law earlier than the 1935 Constitution. In ef-
fect, the privacy provision anticipated future development of American
2
jurisprudence, for in 1967 Katz v. United States** overruled the Olm-
stead doctrine and placed wiretapping, with or without trespass, under
483
the ban of the search and seizure clause.

478
3 JOURNAL OF THE (1935) CONSTITUTIONAL CONVENTION (FRANCISCO Ed.)
1034-5.
479
W.at 1120.
4
*°277U.S. 438 (1928).
*"ld. at 464-5.
4 M
3 8 9 U 5 . 347 (1967).
a r
' F ° a discussion of electronic eavesdropping situations which do not come under the
privacy rule, see United States v. White, 401 U.S. 745 (1971).
Sec. 3 ART. m - BILL OF RIGHTS 219

T h e guarantee given by the privacy provision is not absolute. But


what is the measure of allowable state intrusion into privacy? The origi-
nal proposal at the 1935 Convention read: " T h e privacy of communica-
tion and correspondence shall be inviolable except upon lawful order of
the court." It was obviously the intent of the proponent of the provision,
Delegate Laurel, to condition allowable intrusion upon an order of a
484
court. He argued:

We state the fundamental principle that a person is entitled


to the privacy of communication; that he is entitled to his secrets,
but in those cases where a secret involves public questions which
the State should and ought to know, the State may infringe that
privacy of communication by some process or by appealing to the
Court for the purpose of determining whether or not the privacy
should be maintained.

Laurel won approval for his proposal. But the Committee on Style
added to it: "or w h e n public safety and order require otherwise." This
addition was readily approved by the Convention on Recto's plea that:
"Esto es en enteres del orden publico y de la seguridad del Estado,
porque puede que se envien por correo propagandas subversivas que
AK
tengan por objecto destruir el Estado filipino." It is clear therefore
that the 1935 Constitution allowed intrusion into the privacy of com-
munication either upon lawful order of a court or even without a court
order when public safety and order so d e m a n d s .

W h e n intrusion is sought through an order of a court, upon what


grounds may the court allow intrusion? The text does not give any
ground. It is submitted that the requirement of probable cause in the
preceding section should be followed. After all, as may be seen in the
development of American jurisprudence on the subject, the privacy
486
right is but an aspect of the right to be secure in one's person.
Should the order also particularly describe the communication or
correspondence sought to be seized? When the correspondence sought
is written correspondence, it would seem that there should be no incon-
venience in requiring particularity of description. But if the intrusion
is to be done through wire-taps, how is the description to be made?

"*Supra, note 1 at 1119-20.


« X [1935] CONSTITUTIONAL CONTENTION RECORD (Congress ed.) 417 (1965).
*"See Material Distributors, Inc. v. Natividad, 84 Phil. 127,136 (1949).
THE 1987 CONSTITUTION Sec. 3
220
OF THE REPUBLIC OF THE PHILIPPINES

Evidently, it would be impossible to describe the contents of a com-


munication that has not yet been made. Hence, it would be unreason-
able to require a description of the contents of the communication. But
the identity of the person or persons whose communication is to be
intercepted, and the identity of the offense or offenses sought to be pre-
vented, and the period of the authorization given can be specified. In
fact, an attempt in this direction is made by Section 3 of R.A. 4200, the
487
Anti-Wiretapping Law, and similar safeguards also found in Title III
of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Section
2518, which was discussed in the wiretapping case of United States v.
488
US. District Ct., Eastern Michigan.

When intrusion is made without a judicial order, how is the mat-


ter to be approached? It would have to be based upon a non-judicial
government official's assessment that public safety and order demands
such intrusion. In addition to what has been said about what transpired
at the 1935 Convention, it was also m a d e clear in the 1972 Convention
that an executive officer can order intrusion when in his j u d g m e n t and
even without prior court approval he believes that public safety or order
so requires. And public order and safety were defined as "the security
of human lives, liberty and property against the activities of invaders,
489
insurrectionists and rebels."

Thus the law stood during the period of martial law, which did not
leave behind any clarificatory jurisprudence on the subject. In review-
ing this provision, the 1986 Constitutional C o m m i s s i o n sought to find
ways of ensuring that the power will not be abused by executive offi-
cers. The Committee Report sought to modify the 1935 and 1973 ver-
sions to read "The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court when public safety
or order requires otherwise." By the simple expedient of dropping the
word "or," the effect sought was the restoration of the original 1935
490
proposal of Laurel which required court order for a valid intrusion.

R a m i r e z v. Court of Appeals, GR. No. 93833, September 28,1995 was a conviction un-
der this law for a tape recording of a private conversation in an office. The evidence was excluded
but the constitutional aspect was not touched.
4O
4 0 7 U.S. 297 (1972). But Ivanov v. United States. 419 U.S. 881 (1974) sustained war-
rantless tapping of a foreign agent and of an American found guilty of espionage.
4
"1971 Constitutional Convention, Session of November 25,1972
*°I RECORD 675,687-8.
Sec. 3 ART. m - BILL OF RIGHTS 221

This was resisted as being too restrictive of executive power. Commis-


sioner Rodrigo argued: "We must not hamper the activities of the intel-
ligence service of the government. This is specially true now that there
are threats to the stability of the government; for example, there is the
criticism [of] why the A r m e d Forces seemed not to have known before-
hand about the aborted coup d'hotel that happened a few Sundays ago.
... While I myself would want all my communications and correspon-
dence absolutely untampered w i t h , . . . [w]e should not tie the hands of
government. So I would be willing to subordinate my personal privacy
4
to public safety." " But Commissioner Regalado added that intrusion
492
without court order should be "resorted to only in extreme cases."

Rodrigo's and Regalado's argument struck a responsive chord and


the word " o r " was restored. But Commissioner Davide was quick to
add a new phrase, "as prescribed by law," which Commissioner Bernas
493
immediately accepted for the Committee. The effect of this addition,
m a d e in the interest of safeguarding liberty, is not only that the discre-
tion of the executive officer is limitable by law but also that a public
officer w h o exercises this power must be able to point to a law under
which he acts. To hold otherwise would be to opt for a government of
men and not of laws. Every police agent would feel authorized to snoop.
Moreover, it goes without saying that "abuse of discretion amounting to
494
lack or excess of jurisdiction" can be checked through judicial review.

2. Exclusionary rule: historical d e v e l o p m e n t .

The exclusionary rule bars admission of illegally obtained evi-


dence. The second paragraph of Section 3, Article III makes the rule
applicable to evidence obtained under both Section 2 and Section 3(1).
The rule, which first became explicit in Article IV, Section 4(2) of the
1973 Constitution, has had an uneven history in Philippine jurispru-
dence. It was first brought into prominence in a case involving the ac-
tivities of agents of the Anti-Usury Board. In Uy Kheytin v. VMareal,™
the issue was clearly raised whether "books of account, private docu-

«'I RECORD 724. Rodrigo spoke on July 18, 1987, within a week from the aborted coup
by Marcos loyalists who took control of the Manila Hotel.
ld. at 725.
m

ld. at 726.
m

m
Article VDJ, Section 1.
*»42 Phil. 886 (1920).
THE 1987 CONSTITUTION Sec. 3
222
OF THE REPUBLIC OF THE PHILIPPINES

merits, and private papers" could be the object of a search and seizure.
Justice Johnson, writing for the majority, said:**

Books of account, private documents, and private papers are


property which men may lawfully possess. It is not believed that
the statute (subsection 2 of Section 96, G.O. 58) was intended to
cover property of this class. Granting that property of which men
may lawfully possess themselves has been used in the commission
of a crime and not possessed nor created purely for the purpose of
committing a crime, and not likely to be used again, then certainly
its seizure can only be for the purpose of using the same as evi-
dence to prove the commission of the crime already committed.
This purpose is not contemplated by the provision of the law. The
finding of evidence cannot be the immediate reason for issuing a
search warrant. To use a search warrant for the purpose of obtain-
ing possession of property for this purpose would be an "unreason-
able use of the remedy by search warrant, which is prohibited by
law."

There is here, therefore, a proscription of "fishing expeditions."


497 m
The Court added, moreover, citing Justice Bradley in Boyd v. US.,
that "seizure or compulsory production of a m a n ' s private papers to
be used against h i m " was equivalent to self-incrimination and there-
fore was "unreasonable search and seizure." W h e r e u p o n , the Court re-
strained the prosecution from using the b o o k s as e v i d e n c e .

W h e n , however, the defense of self-incrimination w a s raised in


99 500
People v. Carlos: the Court said that although Boyd v. US. and Sil-
verthorn Lumber Co. v. US.™ were authority for the proposition that
documents obtained by illegal searches were inadmissible evidence in
502
criminal cases, Weeks v. US. had modified this doctrine by adding that
"the illegality of the search and seizure should first have been directly
litigated and established by a motion m a d e before trial, for the return of
503
the things seized." This precondition had not been satisfied; h e n c e , the

**ld. at 898-9, citing Regidor v. Araullo, 5 O.G. 955,961-2; U.S. v. de los Reyes, 20 Phil.
467(1911).
497
4 2 Phil.at899.
^ m U . S . 616 (1886).
w
4 7 Phil. 626 (1925).
""116 U.S. 616 (1886).
"'251 U.S. 385 (1920).
m
2 3 2 U . S . 383 (1920).
W3
47Phil.at631.
Sec. 3 ART. m - BILL OF RIGHTS 223

illegality of the seizure was not considered an obstacle to admissibility.


Fortunately, however, this overzealous interest in procedural technical-
ity in the face of a violation of substantive right was rendered harmless
504
by the exclusion of the evidence in question for being hearsay.

The defense of self-incrimination was also raised in People v. Ru-


505
bio where "fraudulent b o o k s , invoices and records" had been seized;
506
but again the Court rejected the contention. Three reasons were given:
"[T]he public has an interest in the proper regulation of appellant's
books. (Act N o . 3 2 9 2 , Section 4 . ) " (2) T h e books belonged to a cor-
poration of which the appellant was simply manager. (3) The warrant
was not issued to get papers "solely for use as evidence of crime" but
to seize the "instruments used in the violation of said [internal revenue]
l a w s " and "to prevent the further perpetration of fraud." Justice Abad
Santos, however, filed a strong dissent reiterating mainly the doctrine
501
of Boyd and Weeks.

While the Carlos and Rubio cases did not reject the doctrine in
Uy Kheytin, the clearest case reaffirming Uy Kheytin was also an Anti-
50
Usury Board case. In Alvarez v. Court of First Instance ofTayabas, *
decided under the 1935 Constitution, the Court decreed in no uncer-
tain terms: " T h e seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case
against the person in whose possession they were found, is unconstitu-
tional because it makes the warrant unreasonable, and it is equivalent to
a violation of the constitutional provision prohibiting compulsion of an
accused to testify against himself."

Several other Anti-Usury Board cases reaffirmed the proscription


509
of "fishing expeditions." However, the final case in the Anti-Usury
510
Board series, Yee Sue Koy v. Almeda ended in uncertainty. Here, the
5
Court found the warrant in every respect regular, " but, on the issue of

**Id. at 31-2. The evidence in question was a letter written by wife to husband which had
lost its privileged character because it had come into the hands of third persons. Id. at 629-30.
m
51 Phil. 384 (1932).
m
ld. at 394. See also Pueblo contra Remojo, 40 O.G. 11th supp. 40,42^5 (1941).
m
51 Phil, at 399-401.
" M Phil. 33,47 (1937).
'"People v. Sy Juco, 64 Phil. 667 (1937); Rodriguez v. Villamiel, 65 Phil. 230 (1937); De
Garcia v. Locsin, 65 Phil. 689 (1938).
5,0
70Phil. 141 (1940).
511
Id. at 147.
THE 1987 CONSTITUTION Sec. 3
224
OF THE REPUBLIC OF THE PHILIPPINES

self-incrimination, Justice Laurel, writing for the high bench, said that
self-incrimination was not clearly shown and had in fact been denied by
512
respondents. Then he continued:

In the application for the issuance of the search warrant in


question, it was alleged that the articles seized were "being used
by it (Sam Sing and Co.) in connection with its activities of lend-
ing money at usurious rates of interest in violation of the Usury
Law," and it is now suggested (memoranda of respondents) that
the only object of the agents of the Anti-Usury Board in keeping
the articles is to prevent petitioners from employing them as means
of further violations of the Usury Law. In this state of the record,
without deciding the question whether petitioners will in fact use
the articles in question, if returned, for illegal purposes, we are
513
not prepared to order the return prayed for by the petitioners. If
it be true, furthermore, without, however, deciding the point, that
as alleged by the respondents the articles in question constitute the
corpus delicti of the violation of the Usury Law, their return to the
petitioners cannot be ordered.

From this brief survey it can be gathered that, at the start of the
second World War, the Supreme Court's teaching on search and seizure
of books and papers was this: (1) To use a search warrant to obtain pri-
vate papers for the purpose of using them as evidence of crime against
the person from w h o m they are taken is equivalent to self-incrimination
and is "unreasonable search and seizure." Such papers are not admis-
sible evidence. (2) However, for one to be able to use this privilege,
the illegality of the search and seizure should first have been directly
litigated and established by a motion, m a d e before trial, for the return of
the things seized. (3) This privilege does not extend to books in whose
regulation the public has an interest. (4) N o r may an individual person
avail himself of this privilege with respect to papers belonging to a cor-
poration. (5) The privilege does not apply to books used in the perpetra-
tion of a crime, i.e., when they constitute the corpus delicti.

The close of the second World War and the prosecution of treason
cases brought in new opportunities for the court to develop its teaching

,l2
ld. at 147-8.
5
"C/. People v. Rubio, 57 Phil. 384, 394-5 (1932). These pages, to which Laurel refers in
Rubio, are those which say that the warrant was issued not to get papers "solely for use as evidence
of crime" but to seize instruments of the crime and to prevent further fraud.
Sec. 3 ART. Ill - BILL OF RIGHTS 225

5
on search and seizure. Alvero v. Dizon " was the first foreboding of ill
o m e n s . H e r e , documents were seized without search warrant by United
States Military officers. M a y these be used by the Philippine Govern-
ment as evidence in a prosecution for treason? The Court answered in
the affirmative, giving as reasons (1) that the seizure of the documents
5
was in conformity with the L a w s and C u s t o m s of War" and (2) that the
seizure, although without warrant, was legal because it was incidental
516
to arrest. T h e problem of self-incrimination was not considered at all.
517
Instead, the Court said that even if the seizure had been illegal, the
51
evidence would still be admissible under the doctrine of the Weeks '
9
and Gambino" cases allowing Federal officers the use of evidence il-
520
legally obtained by state officers, or under the Burdeau doctrine al-
lowing Federal officers the use of evidence illegally obtained by pri-
vate persons. Moreover, by not following the preconditions laid down
in Weeks, which had been adopted in Carlos, the accused equivalently
52
waived whatever privilege there was. ' T h e most cutting part of the
decision, however, w a s de la R o s a ' s remark, m a d e in utter disregard of
presumption of innocence, to the effect that treason implied the renun-
ciation and deprivation of the guarantee against unreasonable searches
522
and seizures.

In the light of this uneven history of the doctrine on the seizure of


documents and their admissibility as evidence, one is startled by Justice
523
Pablo's disregard of history in Moncado v. People's Court expressed

514
76 Phil. 637 (1946).
515
W. at 644.
5l6
W.at645.
5,7
W. at 647.
518
232 U.S. 383 (1920).
'"Gambino v. U.S., 275 U.S. 310 (1922). But this ruling said that the evidence would not
be admissible if defendants were violating no state law and the seizure was made only for the
benefit of federal officers.
520
Burdeau v. McDowell, 256 U.S. 465 (1921).
52,
7 6 Phil, at 645.
522
"La traicion implica renuncia y privation de la garantra contra irrazonables registros y
secuestros, deligencias previas a la conviccion o absolucion, actuales estas finales del proceso.
Id. at 648.
523
80 Phil. 1,3-4 (1948). "La teoria de Weeks vs. U.S. que subvierte las reglas deprueba no
es aceptable en esta jurisdiction: es contratria al sentido de justicia yala ordenada y sana admin-
istration de justicia. La doctrina ortodoxa se impone por su consistencia probada de muchisimos
anos. No hay que abandonarla si se desea que los derechos constitucionales sean respetados
y no profanados. Los culpables deben reciber su condigno castigo. aunque las pruebas contra
ellos hayan sido obtenidos ilegalmente. Y los que con infraction de la ley de la Constitution se
apoderan indebidamente de tales pruebas deben tambien ser castigados. Asi es como la ley im-
THE 1987 CONSTITUTION Sec. 3
226
OF THE REPUBLIC OF THE PHILIPPINES

in the categorical declaration that "It is established doctrine in the Phil-


ippines that the admissibility of evidence is not affected by the illegal-
ity of the means used for obtaining it." He condemned with Wigmore
the "pernicious influence" of Boyd and totally rejected the doctrine in
Weeks as subversive of the rules of evidence in Philippine jurisdiction.
It is sufficient protection for the people, he said, that those guilty of
violating the right against unreasonable searches and seizures be pros-
ecuted.
To no avail was Justice Cesar Bengzon's appeal to history in his
dissent. Bengzon argued that the 1935 Philippine Constitutional Con-
vention wanted the search and seizure provision to be exactly like the
provision of the Fourth Amendment of the American Federal Constitu-
52 525
tion. The Convention made specific reference to Boyd * and Gouled.
Subsequently, under the 1935 Constitution, the Court adopted in Al-
varez the ruling in Boyd, and this, in spite of the fact that the Court, as
shown in Carlos, was aware of the divergent courses taken by Federal
and State decisions. H e n c e , Bengzon concluded, " w e are not at liberty
now to select between two conflicting theories. The selection has been
made by the [1935] Constitutional Convention w h e n it impliedly chose
to abide by the Federal decisions, upholding to the limit the inviolabil-
6
ity of a man's domicile.""

With Bengzon's failure to win the other justices to his side and to
the side of the ruling in Uy Kheytin and Alvarez, a new era was intro-
duced for the role of search and seizure in the Philippines. After M o n c a -
d o , decisions could say that it was settled in Philippine jurisdiction "that
illegally obtained documents and papers [were] admissible in evidence,

pera, majestuoso y incolume." Id. at 11, citing Barton v. Leyte Asphalt and Mineral Oil Co., 47
Phil. 938 (1934). But there in Barton, what was involved was a carbon copy of a letter which in
some unexplained way came into the hands of the adverse party. The court admitted it, saying that
"it makes no difference how the adversary acquired possession," whether legally or illegally. Id. at
953-4. This was not a question of use of evidence for prosecution.
524
116 U.S. 616 (1886).
i25
Gouled v. U.S., 255 U.S., 298 (1921).
3
*80 Phil, at 26-7.
Although Laurel did make reference to Boyd in his sponsorship speech on the Bill of
Rights, it is not clear whether he was advocating the adoption of everything that Boyd said. See 3
JOURNAL OF THE (1934) CONSTITUTIONAL CONVENTION 1034 (FRANCISCO Ed.).
Failing in his efforts, Bengzon asked that the ruling be made applicable only to cases after
Moncado. (80 Phil, at 28).
Sec. 3 ART. HI - BILL OF RIGHTS 227

527
if found to be competent and relevant to the case." It is paradoxical
that this doctrine, oppressive to free people, was occasioned in part, at
least, by the arrival of American forces c o m e to liberate the Philippines
from the Japanese. T h e circumstances of liberation and the establish-
ment of temporary American military government brought about a tem-
porary duality of internal jurisdiction which allowed judicial appeal to
the Weeks, Burdeau and Gambino decisions which the United States
528
Supreme Court would eventually reject.

T h e pre-Moncado rule, however, w a s not allowed to die. Justice


529
Roberto Concepcion kept it alive in dissent appealing both to Weeks
0
and the more recent case of Elkins v. United States." Hence, it was fit-
ting that Concepcion should pen the 1967 decision in Stonehill v. Dio-
i3]
kno formally rejecting M o n c a d o : " U p o n mature deliberation ... we
are unanimously of the opinion that the position taken in the Moncado
case must be abandoned."

It is noteworthy, however, that while the Stonehill decision re-


jected the Moncado doctrine that evidence illegally obtained was ad-
missible, it was not a complete return to the pre-Moncado rule. The
Uy Kheytin and the Alvarez cases appealed to the theory that seizure of
papers amounted to self-incrimination and thus rendered the seizure un-
reasonable. T h e Stonehill case, on the other hand, considered the search
and seizure clause by itself: admission of illegally obtained evidence
makes the rule of freedom from state invasion of privacy "so ephemeral
and so neatly severed from its conceptual nexus with freedom from all
532
brutish means of coercing evidence." To the argument that prosecu-
tion of those guilty of illegal search and seizure sufficed to protect the
constitutional guarantee, the Court answered that such argument over-
looks the fact that violation thereof are, in general, committed by agents
of the party in power, for, certainly, those belonging to the minority

527
Wong Lee v. Collector of Internal Revenue, L-10155, August 30, 1958; Medina v. Col-
lector of Internal Revenue, L-15113, January 28,1961.
528
Both Weeks and Gambino were rejected in Elkins v. U.S., 364 U.S. 206 (1960). Burdeau
may also not be able to stand now in view of Weeks and of Mapp. v. Ohio, 367 U.S. 643 (1961).
'"Dissenting in Medina v. Collector of Internal Revenue. G.R. No. 15113, January 28,
1961.
530
364 U.S. 206 (1960)
"'L-19550, June 19, 1967. Justice Ruiz Castro's dissent was not on admissibility but on
"standing."
'"/d., quoting Mapp. v. Ohio, 367 U.S. 643 (1961).
THE 1987 CONSTITUTION Sec. 3
228
OF THE REPUBLIC OF THE PHILIPPINES

could not possibly abuse a power they do not have. Regardless of the
handicap under which the minority usually — but, understandably —
finds itself in prosecuting agents of the majority, one must not lose sight
of the fact that the psychological and moral effect of the possibility of
securing their conviction is watered down by the pardoning power of
the party for whose benefit the illegality has been committed.
3
In spite of the patent illegality of the search warrant," however,
and in spite of the reversal of the Moncado doctrine, not all the evi-
dence seized in virtue of the warrants was barred from admission. Jus-
tice Concepcion made a distinction between the documents, papers and
effects "found and seized in the offices of the aforementioned corpora-
tions" and those "found and seized in the residences of the petitioners."
The latter, Concepcion said, were barred from admission whereas the
former were not, because Stonehill, being a person separate and distinct
from the corporations, had no personality to raise unconstitutional sei-
zure of the evidence found in corporation premises. No effort, however,
was made to determine which items among the two sets of evidence
belonged to Stonehill and which to the corporations. Concepcion m a d e
place of seizure the sole standard for distinguishing the admissible from
the inadmissible. He seemed to assume that the location of the items
seized also determined ownership.

Even assuming, however, that Concepcion's distinction had the


effect of separating personal papers from corporate papers, and admit-
ting further that the right against unreasonable searches and seizures is
a personal right, the distinction, under the circumstances, smacked of
hyperlegalism. The warrants were issued as part of a single operation
and they were couched in identically defective forms. U n d e r such cir-
cumstances, to allow the distinction m a d e by Concepcion on the basis
of "lack of standing" seems to render the constitutional provision "so
ephemeral and so neatly severed from its conceptual nexus with free-
dom from all brutish means of coercing evidence." This conclusion is
especially cogent since Concepcion's "location test" did not effectively
divide the personal from the corporate effects.

At any rate, Stonehill also clearly affirmed that "the legality of a


seizure can be contested only by the party whose rights have been im-

'Supra, under "probable cause" and "particularity of description.'


Sec. 3 ART. m - BILL OF RIGHTS 229

paired thereby, and that the objection to an unlawful search and seizure
4
is purely personal and cannot be availed of by third parties.""

3. Exclusionary rule: current status.

Ever since Stonehill, the exclusionary rule has been in firm pos-
5
session. It was reiterated in Bache & Co. v. Ruiz" which, among other
things, also upheld the right of a corporation to object against unreason-
6
able searches and seizures." With the incorporation of the rule into the
text of Article IV, Section 4(2) (1973), and now in Article III, Section 3 ,
the position of the rule in Philippine jurisprudence becomes firmer still.
It is no longer subject to the vagaries of a fluctuating judicial climate.

T h e specific incorporation of the rule into the constitutional text,


aside from firming up the rule, produces two other consequences. First,
it divorces the rule from the self-incrimination clause. Now, evidence
obtained in violation of the search and seizure clause, whether or not
it is also self-incriminating testimonial evidence, is inadmissible. Sec-
ondly, by making such evidence inadmissible "for any purpose in any
proceeding," the Constitution has closed the door to any judicial temp-
7
tation to erode the rule by distinguishing and splitting hairs."

T h e inadmissibility of the evidence, however, does not mean that


it must be returned where it c a m e from. If the object is not a prohibited
8 9
object, it must be returned." But if contraband, it can be confiscated."

4. Violations by private persons.

To c o m e under the exclusionary rule, however, the evidence must


be obtained by government agents and not by private individuals acting
on their o w n . In People v. Andre Marti, a private firm engaged in the
business of forwarding packages, opened boxes entrusted to it by a cus-
tomer for final inspection as part of standard its operating procedure be-
fore delivery of packages to the Bureau of Posts or Bureau of Customs.
Finding dried marijuana leaves inside a package, the firm took samples

"*20 SCRA 15 390. See also Nasiad v. Court of Tax Appeals, 61 SCRA 238, 243-4 (No-
vember 29, 1974).
5
" 37 SCRA 823(1971).
iM
ld. at 837.
'"Compare the erosion by distinction which the Burger Court started in Harris v. New
York.401 U.S. 222 (1972).
"•Bagalihog v. Fernandez, G Jt. No. 96356, June 27,1991.
5M
Alih v. Castro, 151 SCRA 279 (1987).
THE 1987 CONSTITUTION Sec. 4
230
OF THE REPUBLIC OF THE PHEJPPINES

to the NBI, who verified that the dried leaves were marijuana leaves.
When presented by the NBI as evidence for prosecution for violation
of drug laws, its admissibility was challenged on the ground that it was
540
fruit of an illegal search. Brushing aside such defense the Court said:

The constitutional proscription against unlawful searches


and seizures therefore applies as a restraint directed only against
the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom
the restraint against arbitrary and unreasonable exercise of power
is imposed.
If the search is made upon the request of law enforcers, a
warrant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own
and private purposes, as in the case at bar, and without the inter-
vention of police authorities, the right against unreasonable search
and seizure cannot be invoked for only the act of private indi-
vidual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to
acts committed by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the government.

It must be made clear, however, that the principle that the Bill of
Rights applies only to actions taken by state officials does not necessar-
ily mean that a private individual cannot violate the liberty of another.
Violation of the Bill of Rights precisely as a constitutional guarantee
can be done only by public officials. But almost all these liberties are
also guaranteed by Article 32 of the Civil C o d e thus m a k i n g private
violations actionable even if the violation does not have a constitutional
consequence such as the applicability of the exclusionary rule. T h u s ,
a private entity or person may be held liable for illegal search under
541
Article 32 of the Civil Code.

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.

M
m SCRA 57, 67-68 (1991); Waterous Drug Corporation v. NLRC, G.R. No. 113271,
October 16, 1997.
"'Silahis International v. Soluta. GJ*. No. 163087, February 20,2006.
Sec. 4 ART. Ill - BILL OF RIGHTS 231

1. T h e 1987 Text.

There are several reasons why freedom of expression is guaran-


teed by the Constitution. For s o m e , freedom of expression is essential
for the search of truth. This is the marketplace idea which posits that the
power of thought can be tested by its acceptability in the competition of
the market. Another reason offered is that free expression is needed for
democracy to work properly. T h e citizen-critic has to be given the in-
formation and freedom required for him to be able to perform his civic
duty. Still another reason is a very personal o n e . Freedom of expression
promotes individual self-realization and self-determination.

Except for the addition of the phrase "of expression," the pres-
ent provision preserves the 1935 and 1973 texts. The sentiment was
that the provision had b e c o m e the subject of an extensive body of ju-
risprudence, both Philippine and American, and should be preserved.
Moreover, the C o m m i t t e e noted that the proposed reformulation of the
provision, which c a m e from the floor, did not contain anything not al-
542
ready contained in the old formula. The addition of the phrase "of ex-
pression," however, was readily accepted by the Committee as a "minor
a m e n d m e n t " and a broader formula which, while by itself does not add
anything to existing jurisprudence, should itself be inclusive of various
forms of expression which jurisprudence has placed under the speech
543
and press clause.

2. Freedom of Speech and Press: prior restraint and subse-


quent punishment.

Freedom of expression was a concept unknown to Philippine ju-


risprudence prior to 1900. It was one of the burning issues during the
Filipino campaign against Spain, first, in the writings of the Filipino
propagandists, and, finally, in the armed revolt against the mother coun-
try. Spain's refusal to recognize the right w a s , in fact, a prime cause of

2
» \ RECORD 758-60. The rejected reformulation read: "The right of the people to enjoy
freedom of speech and press and to peaceably assemble and petition the government for redress of
grievances shall not be abridged." In rejecting the amendment Commissioner Bemas pointed out,
among other things, that by specifying "people" the amendment would limit the scope of the pro-
tection to natural persons thus leaving corporate entities, like publishing companies, unprotected.
™ld. at 770.
2 3 2 THE 1987 CONSTITUTION Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

544
the revolution. But the privilege was not known by Filipinos until its
guarantee was transplanted to the Philippines by President McKinley's
Instruction to the second Philippine Commission. Hence, as Justice
Malcolm observed, "a reform so sacred to the people of these Islands
and won at so dear a cost, should now be protected and carried forward
545
as one would protect and preserve the covenant of liberty itself."

The Instruction's text, lifted bodily from the Federal Constitu-


tion of the United States and reproduced without alteration in both the
Philippine Bill and the Autonomy Act, brought the guarantee to the
Philippines weighted with all the applicable jurisprudence of American
546
constitutional cases. The same guarantee, unaltered in form, became
part of the 1935 Philippine Constitution. It remained unaltered in the
1973 Constitution and, as already noted, remains unaltered in the 1987
Constitution.

The common law doctrine, which was first elevated to a constitu-


tional principle through the First A m e n d m e n t of the American Federal
547
Constitution, was summarized by Blackstone thus:

The liberty of the press is indeed essential to the nature of


a free state: but this consists in laying no previous restraints upon
publication, and not in freedom from censure for criminal matter
when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public: to forbid this is to destroy
the freedom of the press: but if he publishes what is improper,
mischievous, or illegal, he must take the consequence of his own
temerity. To subject the press to the restrictive power of a licenser,
as was formerly done, both before and since the Revolution, is
to subject all freedom of sentiment to the prejudices of one man,
and make him the arbitrary and infallible judge of all controverted
points in learning, religion and government. But to punish as the
law does at present any dangerous or offensive writings, which,
when published, shall on a fair and impartial trial be adjudged of
a pernicious tendency, is necessary for the preservation of peace

^Jose Rizal, the national hero of the Philippines, in his work Filipinos Despues de Cien
Anos counted freedom of expression as one of the reforms sine quibus non demanded by the Fili-
pinos. The columns of La Solidaridad were instruments used by the Filipino patriots in Spain for
advocating the needed reforms. See U.S. v. Bustos, 37 Phil 731 739-0(1918)
"'Wat 740.
M
ld.
M 7
W . BLACKSTONE, COMMENTARIES 145 (1876).
Sec. 4 ART. Ill - BILL OF RIGHTS 233

and good order, of government and religion, the only solid founda-
tions of civil liberty. Thus, the will of individuals is still left free:
the abuse only of that free will is the object of legal punishment.
Neither is any restraint hereby laid upon freedom of thought or in-
quiry: liberty of private sentiment is still left; the disseminating, or
making public, of bad sentiments destructive to the ends of society,
is the crime which society corrects.

T h e first prohibition of the constitutional provision is thus a pro-


hibition of prior restraint. Prior restraint means official governmental
restrictions on the press or other forms of expression in advance of
actual publication or dissemination. Its most blatant form is a system
of licensing administered by an executive officer. In fact, the doctrine
which prohibits prior restraint arose as a reaction to sixteenth and sev-
enteenth century attempts to control the press by requiring licenses and
permits as a prerequisite to publication. M o v i e censorship, although not
placed on the same level as press censorship, also belongs to this type
548
of prior restraint. Also similar to the licensing system is judicial prior
549
restraint which takes the form of an injunction against publication.
Equally objectionable as prior restraint are license taxes measured by
gross receipts for the privilege of engaging in the business of advertis-
550
ing in any newspaper or flat license fees for the privilege of selling
551
religious books.

T h e mere prohibition of government interference before words are


spoken or published would be an inadequate protection of the freedom
of expression if the government could punish without restraint after
publication. T h e unrestrained threat of subsequent punishment itself
would operate as a very effective prior restraint. As Cooley put it, "the
mere exemption from previous restraint cannot be all that is secured by
the constitutional provisions, inasmuch as of words to be uttered orally
there can be no previous censorship, and the liberty of the press might
be rendered a mockery and a delusion, and the phrase itself a byword
if, while every man was at liberty to publish what he pleased, the public

"Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961); Freedman v. Maryland, 380
U.S.51 (1965).
M9
Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United States, 403 U.S.
713(1971).
5S0
Grosjean v. American Press Co., 297 U.S. 233 (1936).
"'Murdock v. Pennsylvania, 319 U.S. 105 (1943); American Bible Society v. City of Ma-
nila, 101 Phil. 386(1957).
THE 1987 CONSTITUTION Sec. 4
234
OF THE REPUBLIC OF THE PHILIPPINES

5
authorities might nevertheless punish him for harmless publications." "
Hence, the guarantee of freedom of expression also means a limitation
on the power of the state to impose subsequent punishment. Thus, it is
that much of the jurisprudence on freedom of expression consists of at-
tempts to find standards for allowable subsequent punishment.

3. Prior restraint and the press.


The two leading cases on prior restraint, separated by a span of
forty years, are Near v. Minnesota™ and New York Times v. United
States.™
At issue in Near was a statute authorizing the state to obtain an
injunction against the continued publication of any newspaper or maga-
zine after finding by a court that such newspaper or magazine has be-
come a public nuisance by engaging in the business of regularly pub-
lishing "malicious, scandalous and defamatory" articles. T h e Saturday
Press was found to be such a public nuisance because of a series of vi-
ciously anti-Semitic articles it had published. T h e articles in substance
charged that "a Jewish gangster was in control of gambling, bootleg-
ging and racketeering in Minneapolis, and that law enforcement agen-
555
cies were not energetically performing their duties." On this basis,
further publication of the newspaper was permanently enjoined.

As can be seen, the issue in Near was not licensing, or censorship


of the traditional type. T h e Court nonetheless found it to be a constitu-
tionally objectionable form of prior restraint:

If we cut through mere details of procedure, the operation


and effect of the statute in substance is that public authorities may
bring the owner or publisher of a newspaper or periodical before a
judge upon a charge of conducting a business of publishing scan-
dalous and defamatory matter — in particular that the matter con-
sists of charges against public officers of official dereliction — and
unless the owner or publisher is able and disposed to bring com-
petent evidence to satisfy the judge that the charges are true and
are published with good motives and for justifiable ends, his news-

,52
COOLEY, CONSTITUTIONAL LIMITATIONS 421 (1808).
m
Supra, note 8.
iu
Supra, note 8.
555
283 U.S.at714.
Sec. 4 ART. in - BILL OF RIGHTS 235

paper or periodical is suppressed and further publication is made


556
punishable as a contempt. This is of the essence of censorship.

T h e Supreme Court then added: "In determining the extent of the


constitutional protection, it has been generally, if not universally, con-
sidered that it is the chief purpose of the guaranty to prevent previous
557
restraints of publication ,"

T h e case was decided by a narrow 5-4 vote. Moreover, Chief Jus-


tice H u g h e s , writing for the majority, acknowledged in an obiter dictum
that the prior restraint principle was not an unbending rule but admitted
558
of exceptions.

"When a nation is at war, many things that might be said


in time of peace are such a hindrance to its effort that their utter-
ance will not be endured so long as men fight and that no court
559
could regard them as protected by any constitutional right." No
one would question but that government might prevent actual ob-
struction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced
against obscene publications. The security of the community life
may be protected against incitements to acts of violence and the
overthrow by force of orderly government.

Prior restraint again attracted public attention in 1971 in the cel-


560
ebrated case of New York Times v. United States. The case arose when
the N e w York Times started publication of excerpts from a classified
Pentagon study entitled "History of U . S . Decision Making Process on
Vietnam Policy." The Nixon administration claimed that continued
publication of the study would pose a serious threat to national security.
On June 3 0 , 1 9 7 1 , the United States Supreme Court refused injunction.

The brief per curiam order of the Court simply reiterated the
traditional presumption against prior restraint. "Any system of prior
restraints of expression comes to this Court bearing a heavy presumption

556
W.at713.
"'Id.
55
"W.at716.
'"Schenck v. United States, 249 U.S. 47 (1919).
" ' W U . S . 713 (1971).
THE 1987 CONSTITUTION Sec. 4
236
OF THE REPUBLIC OF THE PHILIPPINES

561
against its constitutional validity." The Government "thus carries
a heavy burden of showing justification for the enforcement of such
562
a restraint." The Court held that "the Government had not met
563
that burden." But the per curiam opinion was accompanied by six
concurring and three dissenting opinions all of which, in their divergent
ways, grappled with the problem of establishing norms for determining
exceptions to the prior restraint rule. Specifically, the national security
exception mentioned in the Near dictum came up for examination.

For Justice Black, consistent with his absolutist views, there could
be no occasion for enjoining the publication of news. "In my view it is
unfortunate that some of my Brethren are apparently willing to hold
that the publication of news may sometimes be enjoined. Such a hold-
564
ing would make a shambles of the First A m e n d m e n t . " Likewise, for
Justice Douglas, there could be no two ways about the constitutional
mandate: "It should be noted at the outset that the First A m e n d m e n t
provides that 'Congress shall m a k e no law ... abridging the freedom of
speech or of the p r e s s ' . That leaves, in my view, no r o o m for govern-
565
mental restraint on the press."

Looking back to the Near dictum, Justice Brennan was willing to


concede a very narrow class of exception: "only governmental allega-
tion and proof that publication must inevitably, directly and immedi-
ately cause the occurrence of an event kindred to imperiling the safety
of a transport already at sea can support even the issuance of an interim
566
restraining order." Likewise, Justice Stewart, while recognizing the
Executive duty, "through the promulgation and enforcement of execu-
tive regulations, to protect the confidentiality necessary to carry out its
responsibilities in the fields of international relations and national de-
fense," joined in refusing to grant the injunction because he could "not
say that disclosure of any of [the documents] would surely result in di-
567
rect, immediate, and irreparable damage to our Nation or its p e o p l e . "

^Citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) and Near v. Minnesota,
supra.
^Citing Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).
™4m U.S.713.
M
U. at 714.
M
ld. at 720.
M
ld. at 726-7.
M7
W. at 730.
Sec. 4 ART. m - BILL OF RIGHTS 237

Justice White would not deny the possibility of granting an in-


junction against publishing information about governmental plans or
operations. He would also grant that publication of some of the docu-
ments involved would " d o substantial damage to public interests." But,
he concluded, "I nevertheless agree that the United States has not satis-
fied the very heavy burden which it must meet to warrant an injunction
against publication in these cases, at least in the absence of express and
appropriately limited congressional authorization for prior restraint in
568
circumstances such as these." Moreover, he said that to sustain the
government's suggestion that "grave and irreparable danger" is a suffi-
cient standard for prior restraint "would start the courts down a long and
hazardous road and I am not willing to travel at least without congres-
sional guidance and direction."
56
Justice M a r s h a l l ' discussed C o n g r e s s ' refusal to grant the execu-
tive branch the power that the Government contended it had and then
concluded: "It is not for this Court to fling itself into every breach per-
ceived by some government official nor is it for this Court to take on
itself the burden of enacting law, especially law that Congress has re-
fused to pass." Marshall, however, left open the question as to whether
Congress could authorize the prior restraint sought by the government.

Chief Justice Burger in his dissent was appalled by the excessive


haste with which the case was decided, with the Court unable to know
570
what the facts were. Similarly appalled was Justice Blackmunn. And
57
so was Justice Harlan. ' Moreover, Harlan added that the Court should
defer to the Executive's judgment in foreign affairs and should limit its
enquiry to a determination of whether the Executive acted within his
572
powers to m a k e treaties and c o m m a n d the armed forces.
573
So the press won. But why? Justice Stewart put it well:

In the government structure created by our Constitution, the


Executive is endowed with enormous power in the two related
areas of national defense and international relations. This power,

ld. at 740.
m

570
W.at759.
571
W.at748.
57J
W.at757.
573
W.at727.
THE 1987 CONSTITUTION Sec. 4
238
OF THE REPUBLIC OF THE PHILIPPINES

largely unchecked by the Legislative and Judicial branches, has


been pressed to the very hilt since the advent of the nuclear missile
age. For better or for worse, the simple fact is that a President of
the United States possesses vastly greater constitutional indepen-
dence in these two vital areas of power than does, say, a prime
minister of a country with a parliamentary form of government.
In the absence of the governmental checks and balances
present in other areas of our national life, the only effective re-
straint upon executive policy and power in the areas of national
affairs may lie in an enlightened citizenry — in an informed and
critical public opinion which alone can here protect the values of
democratic government. For this reason, it is perhaps here that a
press that is alert, aware, and free most vitally serves the basic
purpose of the First Amendment. For without an informed and free
press there cannot be an enlightened people.

The field of freedom of expression in the martial law decade is a


desolate wasteland. Newspapers and magazines and radios closed by
the regime at the start of martial law remained closed, and so total was
the regime's hold on media that none of these closures occasioned a
single freedom of expression case until 1984. T h e closure of the o p -
position newspaper We Forum later during the regime w a s followed by
charges of rebellion against editors and columnists. T h e Court in 1984
did condemn the closure. "Such closure is in the nature of previous
restraint or censorship abhorrent to the freedom of the press guaranteed
under the fundamental law, and constitutes virtual denial of petitioners'
574
freedom to express themselves in dissent." B u t there w a s recogni-
tion on the part of publishers of the futility of trying to ask the Court
for leave to resume publication. A n d where blatant restraint w a s not
imposed, warning was used. A clear case of violation of freedom of
expression through the harassment of media was the s u m m o n s the mili-
tary sent to several w o m e n writers. W h e n brought to Court, the Court
did not pass j u d g m e n t on the case but instead considered it moot since
the military had discontinued the interviews. But the warning had been
575
given.

In the aftermath of the 2004 elections when there was wide talk
about election cheating, one of the topics that hugged the headlines was

S74
Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (1984). See also Corro v. Using, 137
SCRA 541 (1985).
"'See Babst v. National Intelligence Board, 132 SCRA 316 (1984).
Sec. 4 ART. Ill - BILL OF RIGHTS 239

the alleged telephone conversation between President Gloria Macapa-


gal-Arroyo and Election Commissioner Garcillano. The government
warning addressed to media against airing the alleged wiretapped con-
versation w a s deemed by the Court to constitute unconstitutional prior
576
restraint on the exercise of freedom of speech and of the press.

4. Prior restraint, movies and electronic media.

Radio and television suffered the same fate during martial rule.
Radio and television stations were closed. Even before martial rule,
however, different standards were used for radio. A solitary Philippine
511
case, Santiago v. Far East Broadcasting, is an illustration of less than
578
total obeisance to the prior restraint rule. Commonwealth Act N o . 9 8
gave the Secretary of Interior (before a Radio Board could be formed)
power to censor all programs and "to eliminate or cancel from the pro-
gram such n u m b e r or parts thereof as in his opinion are neither moral,
579
educational nor entertaining, and prejudicial to public interest." Pur-
suant to this authorization, the Secretary of Interior issued a regula-
tion requiring the submission of speeches twenty-four hours before
broadcast time. Was the requirement valid? T h e Court said it was, "as a
proper exercise of its police power." But then it added: "However, we
are not called upon here to inquire into the constitutionality and validity
58
of said Act because the petitioner has not specifically raised i t . . . " °
And if the petitioner had raised it, what could the Court have said? The
581
thinking of the Court was sufficiently made clear when it said that —

... [a] speech that may endanger the public safety may be
censored and disapproved for broadcasting. How could the cen-
sor verify the petitioner's claim that the speeches he intended to
broadcast offered no danger to public safety or public morality,
if the petitioner refused to submit the manuscript or even the gist
thereof?

In 1985, when the strictures of martial rule had eased up somewhat,


5 2
Far Eastern Broadcasting v. Dans, Jr., " had the opportunity to deal

""Chavez v. Gonzales, GR. No. 168338, February 15,2008.


7
" 73 Phil. 408 (1941).
57
M PUBLIC LAWS OF THE COMMONWEALTH 399 (1936).
"•73 Phil, at 411.
>*>Id. at 412.
M1
W.at413.
582
137 SCRA 628 (1985).
THE 1987 CONSTITUTION Sec. 4
240
OF THE REPUBLIC OF THE PHILIPPINES

with a radio station which had been summarily closed on the grounds of
national security. In the midst of the litigation for the reopening of the
station, however, ownership of the station passed to someone to whom
the government willingly gave a permit to operate. Nevertheless, "for
the guidance of inferior courts and administrative tribunals," the Court
issued guidelines which essentially required hearing and the application
of the clear and present danger rule. The need for licensing, moreover,
was rightly defended for the purpose not of regulation of broadcast
content but for the proper allocation of airwaves. At the same time,
however, the Court pronounced that the freedom of broadcast media is
lesser in scope than the press because of their pervasive presence in the
lives of people and because of their accessibility to children. T h e same
0
observation was made in Gonzales v. Kalaw Katigbak* with respect to
television.

Similarly, the preferential treatment in the matter of prior restraint


that has been given to the press, has not been extended with equal vigor
to motion pictures either. Even American jurisprudence treats motion
5
pictures differently. True it is that Burstyn v. Wilson ** held that motion
pictures come under the constitutional protection given to expression.
5 5
But in Times Film Corp. v. Chicago, * the U . S . Supreme Court, by a
vote of 5 to 4, concluded that a Chicago ordinance requiring films to
be submitted and viewed by a board of censors prior to public exhibi-
tion was not unconstitutional on its face. Recalling the exceptions to
5 6
prior restraint in Near v. Minnesota * the Court held that the constitu-
tional protection does not include "complete and absolute freedom to
exhibit, at least once, any and every kind of motion picture ... even if
this film contains the basest type of pornography, or incitement to riot,
5 8 7
or forceful overthrow of orderly government. . . . " Three years later,
however, in Freedman v. Maryland,™ the Court took pains to set down
strict standards and procedural safeguards for movie censorship. The
589
Court said:

583
137 SCRA 717 (1985).
584
343 U.S. 495,502 (1952).
5Bi
365 U.S.43,46(1961).
586
283 U.S.at716.
587
365 U.S.at47.
588
380 U.S.51 (1965).
m
ld. at 58-59.
Sec. 4 ART. m - BILL OF RIGHTS 241

[We] hold that a non-criminal process which requires prior


submission of a film to a censor avoids constitutional infirmity
only if it takes place under procedural safeguards designed to ob-
viate dangers of a censorship system. First, the burden of proving
that the film is unprotected expression must rest on the censor. ...
Second, ... the requirement cannot be administered in a manner
which would lend an effect of finality to the censor's determina-
tion. ... The teaching of our cases is that, because only a judicial
determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a
judicial determination suffices to impose a valid final restraint. ...
To this end, the exhibitor must be assured, by statute or authorita-
tive judicial construction, that the censor will, within a specified
brief period, either issue a license or go to court to restrain show-
ing the film. Any restraint imposed in advance of a final judicial
determination on the merits must similarly be limited to preserva-
tion of the status quo for the shortest fixed period compatible with
sound judicial resolution. Moreover, ... the procedure must also
assure a prompt judicial decision, to minimize the deterrent effect
of an interim and possibly erroneous denial of a license.

T h e Freedman doctrine, however, was not fully accepted by the


Philippine Court in Iglesia ni Kristo v. Court of Appeals, where the
590
Court said:

This thoughtful thesis is an attempt to transplant another


American rule in our jurisdiction. Its seedbed was laid down by
Mr. Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day. By 1965, the US Supreme Court
in Freedman v. Maryland was ready to hold that "the teaching of
cases is that, because only a judicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom of expres-
sion, only a procedure requiring a judicial determination suffices
to impose a valid final restraint."
While the thesis has a lot to commend itself, we are not
ready to hold that it is unconstitutional for Congress to grant an ad-
ministrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts.
As far back as 1921, we upheld this set-up in Sotto v. Ruiz,™ viz.:

""CR. No. 119673, July 26,1996.


M1
4 1 Phil. 468 (1921) per Justice Malcolm.
THE 1987 CONSTITUTION Sec. 4
242
OF THE REPUBLIC OF THE PHILIPPINES

"The use of the mails by private persons is in the


nature of a privilege which can be regulated in order to avoid
its abuse. Persons posses no absolute right to put into the
mail anything they please, regardless of its character."
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power,
is extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars
of the law, since whether an article is or is not libelous, is funda-
mentally a legal question. In order for there to be due process of
law, the action of the Director of Posts must be subject to revision
by the courts in case he had abused his discretion or exceeded his
592
authority.
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous char-
acter rests with the Director of Posts and involves the exercise of
his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only
to those cases coming from the United States Supreme Court and
pertaining to the United States Postmaster-General), that the courts
will not interfere with the decision of the Director of Posts unless
593
clearly of opinion that it was wrong.

To be sure, legal scholars in the United States are still de-


bating the proposition whether or not courts alone are competent
to decide whether speech is constitutionally protected. The issue
involves highly arguable policy considerations and can be better
addressed by our legislators.

Under martial rule in the Philippines, strict movie censor-


ship procedures were in effect. But even now after martial rule
movies are still under the constricting grip of the as yet judicial-
ly unchallenged censorship body created by Presidential Decree

in
Ex parte Jackson (1878), 96 U.S., 727; Public Clearing House vs. Coyne (1903), 194
U.S., 497; Post Publishing Co. vs. Murray (1916). 23-Fed., 773.
^Bates & Guilid Co. vs. Payne (1904), 194 U.S., 106; Smith vs. Hitchcock (1912), 226
U.S., 63; Masses Pub. Co. vs. Patten (1917), 246 Fed.. 24. But see David vs. Brown (1900), 103
Fed., 909, announcing a somewhat different doctrine and relied upon by the Attorney-General.
Sec. 4 ART. m - BILL OF RIGHTS 243

1986. Under the decree a movie classification board is made the ar-
biter of what movies and television programs or parts of either are
fit for public consumption. It decides what movies are "immoral,
indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people," and what
"tend to incite subversion, insurrection, rebellion or sedition," or
"tend to undermine the faith and confidence of the people in their
government and/or duly constituted authorities," etc. Moreover, its
decisions are executory unless stopped by a court.

Similarly, a television show such as "The Inside Story" was found


to be not exempt from the requirement of prior submission to the MT-
594
C R B . It was seen as being on the same level as news reporting.

5. M e d i a a n d judicial process.

A case of first impression in Philippine Jurisprudence was Secre-


5 5
tary of Justice v. Sandiganbayan ? which involved a petition to allow
live television coverage of the trial of former President Estrada. In deny-
ing the petition the Court relied completely on American jurisprudence:
596
In Estes vs. Texas, the United States Supreme Court held
that television coverage of judicial proceedings involves an inher-
ent denial of the due process rights of a criminal defendant. Voting
5-4, the Court through Mr. Justice Clark, identified four (4) areas
of potential prejudice which might arise from the impact of the
cameras on the jury, witnesses, the trial judge and the defendant.
The decision in part pertinently stated:
Experience likewise has established the prejudicial effect of
telecasting on witnesses. Witnesses might be frightened, play to
the camera, or become nervous. They are subject to extraordinary
out-of-court influences which might affect their testimony. Also,
telecasting not only increases the trial judge's responsibility to
avoid actual prejudice to the defendant, it may as well affect his
own performance. Judges are human beings also and are subject
to the same psychological reactions as laymen. For the defendant,
telecasting is a form of mental harassment and subjects him to
excessive public exposure and distracts him from the effective
presentation of his defense.

"•MTRCB v.ABS-CBN,G.R.No. 155282, January 17,2005.


•"AM. No. 01-4-03-SC, June 29,2001.
•"381 U.S. 532,14 Led 2d 543,85 S Ct 1628.
THE 1987 CONSTITUTION Sec. 4
244
OF THE REPUBLIC OF THE PHILIPPINES

The television camera is a powerful weapon which inten-


tionally or inadvertently can destroy an accused and his case in the
eyes of the public'
Representatives of the press have no special standing to ap-
ply for a writ of mandate to compel a court to permit them to at-
tend a trial, since within the courtroom, a reporter's constitutional
rights are no greater than those of any other member of the public.
Massive intrusion of representatives of the news media into the
trial itself can so alter or destroy the constitutionally necessary ju-
dicial atmosphere and decorum that the requirements of impartial-
ity imposed by due process of law are denied the defendant and
a defendant in a criminal proceeding should not be forced to run
a gauntlet of reporters and photographers each time he enters or
leaves the courtroom.

Considering the prejudice it poses to the defendant's right


to due process as well as to the fair and orderly administration of
justice, and considering further that the freedom of the press and
the right of the people to information may be served and satis-
fied by less distracting, degrading and prejudicial means, live radio
and television coverage of court proceedings shall not be allowed.
Video footages of court hearings for news purposes shall be re-
stricted and limited to shots of the courtroom, the judicial officers,
the parties and their counsel taken prior to the commencement of
official proceedings. No video shots or photographs shall be per-
mitted during the trial proper.

Accordingly, in order to protect the parties' right to due pro-


cess, to prevent the distraction of the participants in the proceed-
ings and in the last analysis, to avoid miscarriage of justice, the
Court resolved to PROHIBIT live radio and television coverage
of court proceedings. Video footages of court hearings for news
purposes shall be limited and restricted as above indicated.

6. Media and privacy.


597
The case of Ayer Productions v. CapiUong was the occasion for
an examination of motion pictures as a vehicle not just for entertain-
ment but also for communication. T h e case involved the production
of "The Four Day Revolution," a movie account of the bloodless c o u p
that toppled the Marcos regime. Juan P o n c e Enrile, a principal actor in

160 SCRA 861 (1988).


Sec. 4 ART. m - BILL OF RIGHTS 245

the historic event, sought to enjoin the use of his name or of any mem-
ber of his family. Against Enrile's claim was the producer's assertion
of freedom of expression. The Court had to balance Enrile's claim to
the right of privacy against the producer's freedom of expression. The
Court began its disquisition with the assertion that freedom of expres-
598
sion as applicable to motion pictures:

Considering first petitioners' claim to freedom of speech and


of expression, the Court would once more stress that this freedom
includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a universally
utilized vehicle of communication and medium of expression.
Along with the press, radio and television, motion pictures consti-
tute a principal medium of mass communication for information,
599
education and entertainment. In Gonzales v. Katigbak, former
Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium


for the communication of ideas and the expression of the ar-
tistic impulse. Their effects on the perception by our people
of issues and public officials or public figures as well as the
prevailing cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson (343 US 495 [1942]) is the 'importance
of motion pictures as an organ of public opinion lessened
by the fact that they are designed to entertain as well as to
inform' (Ibid., 501). there is no clear dividing line between
what involves knowledge and what affords pleasure. If such
a distinction were sustained, there is a diminution of the ba-
600
sic right to free expression, x x x
This freedom is available in our country both to locally-
owned and to foreign-owned motion picture companies. Further-
more, the circumstance that the production of motion picture films
is a commercial activity expected to yield monetary profit, is not
a disqualification for availing of freedom of speech and of expres-
sion. In our community as in many other countries, media facilities
are owned either by the government or the private sector but the
private sector-owned media facilities commonly require to be sus-
tained by being devoted in whole or in part to revenue producing

"•Id. at 869-870.
m
m SCRA 717 (1985).
'"'Ill SCRA at 723.
THE 1987 CONSTITUTION Sec. 4
246
OF THE REPUBLIC OF THE PHILIPPINES

activities. Indeed, commercial media constitute the bulk of such


facilities available in our country and hence to exclude commer-
cially owned and operated media from the exercise of constitu-
tionally protected freedom of speech and of expression can only
result in the drastic contraction of such constitutional liberties in
our country.

Against freedom of expression, however, must be balanced the


right of privacy which is recognized by law as the "right to be left
601
alone." The Court said: "A limited intrusion into a person's privacy
has long been regarded as permissible where that person is a public
figure and the information sought to be elicited from him or to be pub-
lished about him constitute matters of a public character. Succinctly
put, the right of privacy cannot be invoked to resist publication and
dissemination of matters of public interest. The interest sought to be
protected by the right of privacy is the right to be free from 'unwar-
ranted publicity, from the wrongful publicizing of the private affairs
and activities of an individual which are outside the realm of legitimate
mi
public concern.'"

Important for the resolution of the case is the concept of "public


figure" and the consequences of being such. T h e Court quoted from
03
Prosser and Keeton:*

A public figure has been defined as a person who, by his ac-


complishments, fame, or mode of living, or by adopting a profes-
sion or calling which gives the public a legitimate interest in his
doings, his affairs, and his character, has become a 'public person-
age.' He is, in other words, a celebrity. Obviously to be included in
this category are those who have achieved some degree of reputa-
tion by appearing before the public, as in the case of an actor* a
professional baseball player, a pugilist, or any other entertainer.
That list is, however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even ordinary sol-
diers, an infant prodigy, and no less a personage than the Grand

601
160 SCRA at 870, citing "The Constitutional Foundations of Privacy," in Cortes, Emerg-
ing Trends in Law, pp. 1-70 (Univ. of the Philippines Press, 1983). This lecture was originally
delivered in 1970.
ml
ld. The Court had had occasion to deal with a similar case in Lagunsad v Vda de Gon-
zales, 92 SCRA 476 (1979).
M3
PROSSER AND KEETON ON TORTS, 5th Ed. at 859-861 (1984); italics supplied.
4 ART. Ill - BILL OF RIGHTS

Exalted Ruler of a lodge. It includes, in short, anyone who has


arrived at a position where public attention is focused upon him
as a person.

Such public figures were held to have lost, to some extent at


least, their right of privacy. Three reasons were given, more or less
indiscriminately, in the decisions" that they had sought publicity
and consented to it, and so could not complain when they received
it; that their personalities and their affairs had already become pub-
lic, and could no longer be regarded as their own private business;
and that the press had a privilege, under the Constitution, to inform
the public about those who have become legitimate matters of pub-
lic interest. On one or another of these grounds, and sometimes
all, it was held that there was no liability when they were given
additional publicity, as to matters legitimately within the scope of
the public interest they had aroused.

The privilege of giving publicity to news, and other mat-


ters of public interest, was held to arise out of the desire and the
right of the public to know what is going on in the world, and the
freedom of the press and other agencies of information to tell it.
'News' includes all events and items of information which are out
of the ordinary humdrum routine, and which have 'that indefinable
quality of information which arouses public attention.' To a very
great extent the press, with its experience or instinct as to what
its readers will want, has succeeded in making its own definition
of news, as a glance at any morning newspaper will sufficiently
indicate. It includes homicide and other crimes, arrests and police
raids, suicides, marriages and divorces, accidents, a death from
the use of narcotics, a woman with a rare disease, the birth of a
child to a twelve year old girl, the reappearance of one supposed to
have been murdered years ago, and undoubtedly many other simi-
lar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however,


limited to the dissemination of news in the sense of current events.
It extended also to information or education, or even entertainment
and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well
as the reproduction of the public scene in newsreels and travel-
ogues. In determining where to draw the line, the courts were in-
vited to exercise a species of censorship over what the public may
be permitted to read; and they were understandably liberal in al-
lowing the benefit of the doubt.
248 THE 1987 CONSTITUTION Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

Clearly, Enrile was a public figure. Hence, he had no right to pre-


vent publication of the story of his participation in the event. But the
Court put down some necessary caution:

The line of equilibrium in the specific context of the instant


case between the constitutional freedom of speech and of expres-
sion and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truth-
ful and historical in its presentation of events. There must, in other
words, be no knowing or reckless disregard of truth in depicting
604
the participation of private respondent in the EDSA Revolution.
There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of inti-
605
mate or embarrassing personal facts. The proposed motion pic-
ture should not enter into what Mme. Justice Melencio-Herrera in
606
Lagunzad referred to as "matters of essentially private concern."
To the extent that "The Four Day Revolution" limits itself in por-
traying the participation of private respondent in the EDSA Revo-
lution to those events which are directly and reasonably related to
the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and ac-
tionable. Such portrayal may be carried out even without a license
from private respondent.

7. Subsequent punishment: standards for restraint.

If prior restraint were all that the constitutional guarantee prohib-


ited and government could impose subsequent punishment without re-
607
straint, freedom of expression would be "a mockery and a delusion."
Hence, freedom of expression also means that there are limits to the
power of government to impose rules or regulations curtailing freedom
of speech and of the press.

The search for standards for governmental curtailment of speech


presupposes the premise that freedom of speech is not absolute. In the

'"Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456 (1967); New York Times Co. v. Sul-
livan, 376 U.S. 254, 11 L. Ed. 2d 686 (1964); and Cox Broadcasting Corp. v. Cohn,420 U.S. 469,
43 L.Ed. 2d 328 (1975).
m
See Sidis v. F-R Publishing Corp., 113 F. 2d 806 (2d Cir. 1940) cert, denied 311 U.S.
711,85 L.Ed. 462.
**92 SCRA at 489.
""Supra, note 11.
Sec. 4 ART. Ill - BILL OF RIGHTS 249

oft-quoted expression of Justice H o l m e s , the constitutional guarantee


"obviously was not intended to give immunity for every possible use
608
of language." For testing the validity of laws which impinge upon
freedom of expression, various tests have been evolved. The evolution
of the standards for curtailment of speech took place mainly in cases
involving speech which incited to illegal action.

In the early stages of Philippine jurisprudence, the accepted rule


was that speech m a y be curtailed or punished when it "creates a dan-
609
gerous tendency which the State has the right to prevent." This stan-
dard has been labeled the "dangerous tendency" rule. All it requires, for
speech to be punishable, is that there be a rational connection between
the speech and the evil apprehended. In other w o r d s , under this rule, the
constitutionality of a statute curtailing speech is determined in the same
manner that the constitutionality of any statute is determined, namely,
by answering the question whether a statute is "reasonable."

In American jurisprudence, chiefly through the efforts of Justice


H o l m e s , the "dangerous tendency" rule yielded to the "clear and present
danger" test, a standard which serves to emphasize the importance of
speech to a free society without sacrificing other freedoms essential to
a democracy. In the celebrated case of Schenck v. United States, Justice
Holmes rejected the absolutist view of freedom of speech saying that
"the character of every act depends upon the circumstances in which
it is d o n e . . . . T h e most stringent protection of free speech would not
610
protect a m a n in falsely shouting fire in a theater and causing a panic."
At the same time, however, he made this oft-quoted formulation of the
"clear and present danger" rule: "The question in every case is whether
the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
6
proximity and degree." " As the Supreme Court was later on to explain,
6
in Dennis v. United States: "

Obviously, the words cannot mean that before the Govern-


ment may act, it must wait until the putsch is about to be executed.

Trohwerk v. United States. 249 U.S. 204,206 (1919).


""People v. Perez,45 Phil. 599 (1923).
<
"°249U.S.47,52(1919).
61
'Id.
6I2
341 U.S. 494,509 (1951).
THE 1987 CONSTITUTION Sec. 4
250
OF THE REPUBLIC OF THE PHILIPPINES

the plans have been laid and the signal is awaited. If the Govern-
ment is aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby
they will strike when the leaders feel the circumstances permit, ac-
tion by the Government is required. The argument that there is no
need for Government to concern itself, for government is strong, it
possesses ample powers to put down a rebellion, it may defeat the
revolution with ease needs no answer. For that is not the question.
Certainly an attempt to overthrow the government by force, even
though doomed from the outset because of inadequate numbers
or power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically
and politically to a nation makes it impossible to measure the va-
lidity in terms of the probability of success, or the immediacy of a
successful attempt.... We must therefore reject the contention that
success or probability of success is the criterion.

Citing Justice Learned Hand, the Supreme Court summarized the


rule thus: "In each case [courts] must ask whether the gravity of the
' e v i l ' , discounted by its improbability, justifies such invasion of free
613
speech as is necessary to avoid the danger."

Although, like the "dangerous tendency" rule, the "clear and pres-
ent danger" test evolved in the context of prosecutions for crimes in-
volving overthrow of the government, the test can be applied to other
substantive evils which the State has the right to prevent even if these
evils do not clearly undermine the safety of the Republic. However,
since the test is "a question of proximity and d e g r e e " and since not
all evils easily lend themselves to measurement in terms of proximity
and degree, the test cannot always be conveniently applied to all types
of encroachment on freedom of expression. As Professor Freund has
observed:

Even where it is appropriate, the clear and present danger


test is an oversimplified judgment unless it takes account also of a
number of other factors. The relative seriousness of the danger in
comparison with the value of the occasion for speech or political
activity; the availability of more moderate controls than those the
state has imposed; and perhaps the specific intent with which the
speech or activity is launched. No matter how rapidly we utter the
Sec. 4 ART. m - BILL OF RIGHTS 251

phrase 'clear and present danger,' or how closely we hyphenate the


words, they are not a substitute for the weighing of values. They
tend to convey a delusion of certitude when what is most certain
is the complexity of the strands in the web of freedom which the
614
judge must disentangle.

6
A case in point is Gonzales v. COMELEC. " At issue in the case
was the validity of Republic Act N o . 4 8 8 0 which among other things
prohibited the too early nomination of political candidates and limited
the period for partisan political activity. The statute was designed to
prevent the debasement of the electoral process. W h e n it was chal-
lenged as an infringement of freedom of speech and press, of assembly
and petition and of association, the main opinion written by Justice Fer-
nando, approached the case via the clear and present danger test. In a
separate opinion, however, Justice Castro suggested that the clear and
present danger test, fashioned in the course of testing legislation limit-
ing speech expected to have deleterious consequences on public secu-
rity and order, w a s of doubtful applicability. He said that "where the
legislation under constitutional attack interferes with freedom of speech
and assembly in a more generalized way and where the effect of speech
and assembly in terms of the probability of realization of a specific
danger is not susceptible even of impressionistic calculation," what is
6 6
more suitable is what has been called the "balancing of interests" test. '
The basis for this test was stated by Chief Justice Vinson in American
6
Communications Association v. Douds " thus:

When particular conduct is regulated in the interest of public


order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which
of the two conflicting interests demands the greater protection un-
der the particular circumstances presented.... We must, therefore,
undertake the 'delicate and difficult task. ... to weigh the circum-
stances and to appraise the substantiality of the reasons advanced
6 8
in support of the regulation of the free enjoyment of rights. .. . '

614
FREUND, THE SUPREME COURT OF THE UNrrED STATES 44 (1961), cited in Gonzales v. COM-
ELEC, 27 SCRA 835,860 (1969), note 26.
615
27 SCRA 835(1969).
616
W. at 898-9.
6
"339 U.S. 383,94 L Ed 925,943 (1947).
•'"W. at 94 L Ed 944.
THE 1987 CONSTITUTION Sec. 4
252
OF THE REPUBLIC OF THE PHILIPPINES

6
Professor Kauper explained the theory further: "

The theory of balance of interests represents a wholly prag-


matic approach to the problem of First Amendment freedom, in-
deed, to the whole problem of constitutional interpretation. It rests
on the theory that it is the Court's function in the case before it
when it finds public interests served by legislation on the one hand,
and First Amendment freedoms affected by it on the other, to bal-
ance the one against the other and to arrive at a judgment where
the greater weight shall be placed. If on balance it appears that the
public interest served by restrictive legislation is of such a charac-
ter that it outweighs the abridgment of freedom, then the Court will
find the legislation valid. In short, the balance-of-interests theory
rests on the basis that constitutional freedoms are not absolute, not
even those stated in the First Amendment, and that they may be
abridged to some extent to serve appropriate and important public
interests.

These then are the tests for determining the validity of curtailment
of speech. The "dangerous tendency" rule found favor in early Philip-
620
pine jurisprudence. M o r e recent decisions have preferred the "clear
621
and present danger" rule. In addition, the "balancing of interests" test
has also been given clear recognition.

It should also be noted that these tests apply not only to freedom
of speech and press, but also to the other preferred freedoms: freedom
622
of association, right of assembly and petition, freedom of religion.

8. The constitutional guarantee in action: seditious speech.

The line of cases involving seditious utterances begins with Peo-


623
ple v. Perez, typically a decision of a nervous colonial government
disturbed by the unrest of the natives. T h e case arose at the time when

KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966), cited in 27 SCRA at 899.
619

620
E.g., People v. Perez, 45 Phil. 599 (1923); People v. Evangelista, 57 Phil. 354 (1932);
People v. Nabong, 57 Phil. 455 (1932); People v. Feleo, 58 Phil. 573 (1933); Espuelas v. People,
90 Phil. 524 (1951).
62l
£\g., Primicias v. Fugoso, 80 Phil. 71 (1948); Cabansag v. Fernandez, 102 Phil. 152
(1957); Gonzales v. COMELEC, 27 SCRA 835 (1969); Imbong v. Ferrer, 35 SCRA 28 (1970);
Philippine Blooming Mills Employees v. Philippine Blooming Mills, 51 SCRA 189 (1973).
'"Philippine Blooming Mills Employees v. Philippine Blooming Mills, supra, note 58;
Gonzales v. COMELEC, supra, note 52; American Bible Society v. City of Manila, 101 Phil. 386
(1957).
6J1
45 Phil. 599 (1923).
Sec. 4 ART. m - BILL OF RIGHTS 253

there was great dissatisfaction with the administration of Governor


General Wood. In a political discussion that lacked the calm detach-
ment found in a graduate seminar, citizen Perez had made this remark:
" A n d the Filipinos, like myself must use bolos for cutting off Wood's
624
head for having r e c o m m e n d e d a bad thing for the Philippines." Pros-
ecuted for seditious speech, Perez was convicted. "Criticism," Justice
625
Malcolm said for the Court, " n o matter how severe, on the Execu-
tive, the Legislature, and the Judiciary, is within the range of liberty of
speech, unless the intention and effect be seditious." Such, apparently,
in the j u d g m e n t of the Court were the intention and effect of Perez'
remarks. M a l c o l m found in them "a seditious tendency which could
easily produce disaffection a m o n g the people and a state of feeling in-
compatible with a disposition to remain loyal to the Government and
626
obedient to the l a w s . " That the character of the threatened extermi-
nation of Wood was "so excessive and outrageous" as to suggest that
the "superlative vilification" had "overleapt itself and become uncon-
627
sciously h u m o r o u s " did not appeal to the sense of humor of the Court.
628
" W h i l e our sense of humor is not entirely blunted," Malcolm wrote,
" w e nevertheless entertain the conviction that the courts should be the
first to stamp out the embers of insurrection. The fugitive flame of dis-
loyalty, lighted by an irresponsible individual, must be dealt with firmly
before it endangers the general peace."

The language of Perez was decidedly less inflammatory than that


629
of Feleo in a later case. People v. Feleo arose out of Communist dis-
turbances of the early thirties. Speaking before a group of about a hun-
dred or s o , among w h o m were soldiers of the Philippine Constabulary,
Feleo had m a d e a special appeal to the soldiers in the crowd urging
them to imitate the French soldiers, who shot their chiefs, to desert their
ranks, and to join the Communists against the Americans, to get rid of
their leaders and to take possession of the haciendas of the rich land-
lords. Prosecuted for seditious utterances, Feleo was convicted. Bor-

M
< ld. at 605.
"'Id.
**ld.
""J.Taft's words in Balzac v. Puerto Rico, 288 U.S. 298 (1922).
a
* 45 Phil, at 607.
"»57 Phil. 451 (1932).
THE 1987 CONSTITUTION Sec. 4
254
OF THE REPUBLIC OF THE PHILIPPINES

631
rowing a line from Gitlow v. New York,™ Justice Street said: "Words
of this kind are properly considered seditious because they tend to incite
the people to take up arms against the constituted authorities and to rise
against the established government." Thus, the doctrine in Perez was
given an American garb — the "dangerous tendency rule."

The Feleo ruling was followed by several more of the same


632 m
tenor, the most significant of which was People v. Evangelista. In
a public meeting, Evangelista had read the constitution and by-laws
of the Communist Party, had explained the advantages of the Russian
form of government, and had distributed pamphlets urging the seizure
of the government. Prosecuted for inciting to sedition, Evangelista of-
fered the defense that the meeting was unaccompanied by public distur-
bance. The Court ruled such defense untenable "in view of the doctrine
614
laid down in the case of People v. Perez" "It is not necessary," the
635
Court continued, "that there should be any disturbance or breach of
the peace in order that the act may c o m e under the sanction of the P e -
nal Code. It is sufficient that it incites uprising or produces a feeling
incompatible with the permanency of the government. N o r can the acts
charged be considered as mere exposition in abstracto, coming within
the exemption set out in Gitlow v. People of New York."

A later case, decided under the 1935 Constitution, did not show
any advance in the sense of h u m o r of the S u p r e m e Court of the R e p u b -
636
lic. Espuelas v. People was also a prosecution for inciting to sedition.
Espuelas had his picture taken making it appear that he w a s hanging
lifeless at the end of a piece of rope suspended from the limb of a tree.
He w a s , in fact, standing on a barrel. He then had this picture published

630
268 U.S. 652 (1925).
63
'57Phil.at454.
""People v. Nabong, 57 Phil. 453 (1932) which also followed Gitlow v. New York. 268 U.S.
652 (1925). In the third, People v. Feleo, 58 Phil. 573, 574 (1933), the speech in substance said:
"My brothers: Nobody violates the law but he who makes it; and it is necessary that we should all
unite to overthrow that power. A Soviet government is necessary here; Russia is the first country
where the laborers have had their emancipation from oppression, imperialism and capitalism. It is
necessary that all property should be delivered to the government for its administration, and from
this we will see the redemption of the Filipino people "
633
5 7 Phil. 354 (1932).
634
W.at363.
63i
ld.
636
90 Phil. 524 (1951).
Sec. 4 ART. Ill BILL. OF RIGHTS 255

in several papers of general circulation accompanied by a letter whose


637
translation follows:

Dearest wife and children, bury me five meters deep. Over


my grave don't plant a cross or put floral wreaths, for I don't need
them.
Please don't bury me in a lonely place. Bury me in the Cath-
olic cemetery. Although I have committed suicide, I still have the
right to be buried among Christians.
But don't pray for me. Don't remember me, and don't feel
sorry. Wipe me out of your lives.
My dear wife, if someone asks you why I committed suicide,
tell them I did it because I was not pleased with the administration
of (President) Roxas. Tell the whole world about this.
And if they ask why I did not like the administration of
Roxas, point out to them the situation in Central Luzon, the Huk-
balahaps. Tell them about Julio Guillen and the banditry of Leyte.
Dear wife, write to President Truman and Churchill. Tell
them that here in the Philippines our government is infested with
many Hitlers and Mussolinis.
Teach our children to bum pictures of Roxas if and when
they come across one.
I committed suicide because I am ashamed of our govern-
ment under Roxas. I cannot hold high my brows to the world with
this dirty government.
I committed suicide because I have no power to put under
Juez de Cuchillo all the Roxas people now in power. So, I sacri-
ficed my own self.

Espuelas was convicted of seditious libel. The Court solemnly


38
said:'
The letter is a scurrilous libel against the Government. It
calls our government one of crooks and dishonest persons (dirty)
infested with Nazis and Fascists, i.e., dictators.

"'Id. at 526.
"'Id. at 527, citing U.S. v. Dorr, 2 Phil. 332 (1903) and 19 Am. Law REP. 1511. The Court
continued id. at 530: "The essence of seditious libel may be said to be its immediate tendency to
stir up general discontent to the pitch of illegal courses; that is to say induce people to resort to
illegal methods other than those provided by the Constitution, in order to repress the evils which
press upon their minds."
THE 1987 CONSTTTUnON Sec. 4
256
OF THE REPUBLIC OF THE PHILIPPINES

And the communication reveals a tendency to produce dis-


satisfaction or a feeling incompatible with the disposition to re-
main loyal to the government.
Writings which tend to overthrow or undermine the security
of the government or to weaken the confidence of the people in the
government are against the public peace, and are criminal not only
because they tend to incite to a breach of the peace but because
they are conducive to the destruction of the very government itself.
Regarded as seditious libels they were the subject of criminal pro-
ceedings since early times in England.

The Espuelas decision was not unanimous and the dissent of


Justice Tuason, concurred in by Chief Justice Paras and Justice Feria,
discussed the ancient background of the penal provision on seditious
639
libel:
It is true that there are ancient dicta to the effect that any
publication tending to "possess the people with an ill opinion of
the Government is a seditious libel ... but no one would accept
that doctrine now. Unless the words used directly tend to foment
riot or rebellion or otherwise disturb the peace and tranquility of
the Kingdom, the utmost latitude is allowed in the discussion of all
public affairs. ... Judge Cooley says: "The English common law
rule which made libels on the constitution or the government in-
dictable, as it was administered by the courts, seem to us unsuited
to the condition and circumstances of the people of America, and
therefore never to have been adopted in the several states."

In a decision of 1922, Justice M a l c o l m had spoken in a similar


640
vein: " N o longer is there a Minister of the C r o w n or a person in au-
thority of such exalted position that the citizen must speak of h i m only
641
with bated breath." And again: " T h e crime of lese majeste disappeared
in the Philippines with the ratification of the Treaty of Paris." Finally,
Tuason asked what possible reaction the publication of the picture and
642
the letter could have evoked. He answered:

m
ld. at 533-4, quoting English and American authorities.
""People v. Perfecto, 43 Phil. 887,900 (1922).
MI
W.at902.
M2
9 0 Phil, at 536. Tuason also quoted id.. Holmes' rule that for speech to be prohibited it
t be in such circumstances and of "such a nature as to create clear and present danger that they
bring about the substantial evils that Congress has a right to prevent."
Sec. 4 ART. m - BILL OF RIGHTS 257

. . . The general reaction, it is fairly safe to say, was one of


regret for a man of eccentric and unbalanced mind and ridicule and
curiosity for a grotesque stunt. The witnesses for the government
themselves, some of whom were Constabulary officers stationed
at Tagbilaran, stated that upon reading the article and seeing the
author's picture they just laughed it off, "thinking that this fellow
must be crazy." That was akin to our own reaction, and there is
little or no doubt that that exemplified the general effect upon the
minds of other readers of the article....

There has been no significant and clarifying decision on seditious


643
speech since Espuelas. T h e case of Espiritu v. Lim, however, while it
involves inciting to sedition, offers only vague hint about the thinking
of the current Supreme Court on the subject. Espiritu, in a gathering of
drivers and sympathizers at the c o m e r of Valencia Street and Magsay-
say Boulevard, said, a m o n g others: "Bukas tuloy ang welga natin ...
hang gang sa magkagulo na." T h e facts, therefore, were very similar to
Perez. Later, at a conference at the National Press Club he called for a
nationwide strike. He was arrested, without warrant, for inciting to sedi-
tion. The decision on the habeas corpus petition, however, touched only
on the validity of the arrest without warrant and said that, while people
may differ as to the criminal character of the speech, which at any rate
will be decided in court, for purposes of the arrest, not for conviction,
there was sufficient ground for the officer to believe that Espiritu was in
the act of committing a crime.

9. Id.; C o n t e m p t o f c o u r t b y p u b l i c a t i o n .

The freedom of the press to express in good faith legal opinions


on legal questions pending before the Courts is guaranteed by the Con-
stitution. "So long as it is done in good faith," the Court said in El
Hogar Filipino v. Prautch, "newspapers have the legal right to have
and express opinions on legal questions. To deny them that right would
644
infringe upon the freedom of the press." But legal opinions are fre-
quently expressed with less than Olympian detachment and courts have
frequently moved in to defend themselves by the use of contempt pow-

M5
2 0 2 SCRA 252 (1991). Since the arrest itself took place some time after the utterance
was made, the validity of the warrantless arrest was questioned in the dissenting opinions.
*"49 Phil. 171,176 (1926). The article was described as containing some expression 'more
forcible than elegant."
THE 1987 CONSTITUTION Sec. 4
258
OF THE REPUBLIC OF THE PHILIPPINES

ers. The history of this aspect of the contempt powers of courts is not
uninteresting.
The first major contempt case was In re Kelly,™ a Supreme Court
decision based on the now discredited case of US. v. Toledo Newspaper
6
Co. " Amzi B. Kelly, an American, had been previously found guilty of
contempt. He was granted a rehearing and, pending final decision, he
caused a letter to be published in "The Independent," a Manila paper, in
which he severely castigated the Supreme Court. Characterizing the ini-
tial decision as "atrocious," "arbitrary and arrogant and knowingly and
maliciously perpetrated ... for the purpose of terrorizing the people and
intimidating the press," he accused members of the Court of "arrogantly
misusing imaginary judicial powers (to punish for contempt)," of being
made of mud, and of "cowardly shielding themselves behind contempt
proceedings." Mr. Justice Johnson, writing for a unanimous court laid
down the following rule: "Any publication pending a suit, reflecting
upon the court, the jury, the parties, the officers of the court, the coun-
sel, etc., with reference to the suit, or tending to influence the decision
of the controversy, is contempt of court and is punishable." T h e Court
found that Kelly's letter constituted contempt because it manifested an
intentional attempt to bring the Supreme Court and its m e m b e r s "into
contempt and ridicule and to lower their dignity, standing and prestige
... and to hinder and delay the due administration of justice." T h e publi-
cation tended "directly to affect and influence the action of the S u p r e m e
647
Court."

The decision, however, for all its crippling implications, was not a
foreclosure on the right to criticize judicial action. T w o years later, Mr.
Justice Malcolm, the man w h o m o r e than any single American contrib-
uted most to early constitutional development in the Philippines, was
to assert that " T h e guarantees of a free speech and a free press include
the right to criticize judicial conduct." Said he: " T h e interest of society
and the maintenance of good g o v e r n m e n t d e m a n d a full discussion of
public affairs. Complete liberty to c o m m e n t on the conduct of public
men is a scalpel in the case of free speech. T h e sharp incision of its

5
** 35 Phil. 944 (1916).
646
220 Fed. 458 (1915), upheld in Toledo Newspaper Co. v. U.S., 247 U.S. 454 (1917) and
overruled in Nye v. United States, 313 U.S. 33 (1941).
7
** 35 Phil, at 947-8,951-2.
Sec. 4 ART. Ill - BILL OF RIGHTS 259

probe relieves the abscesses of officialdom. ... A public officer must


not be too thin skinned with reference to c o m m e n t upon his official
648
acts." Noteworthy, however, in this decision was the fact that the of-
ficial " c o n t e m n e d " was not a m e m b e r of the Supreme Court but a judge
of an inferior court.

Three subsequent contempt decisions penned by Mr. Justice Mal-


c o l m still loom large as landmarks in the Philippine judicial scene. The
m
first, In Re Lozano and Quevedo, arose out of an article published in
"El P u e b l o " , an Iloilo newspaper, purporting to relate the proceedings
in an investigation of a district j u d g e . T h e investigation had been held
behind closed doors in compliance with a resolution of the Supreme
Court making such investigations secret and confidential. The editor of
the paper and the author of the article were cited for contempt. Malcolm
approached the case conscious of its novelty and with the realization
that English jurisprudence supported the Supreme Court resolution, that
American state courts were divided on the subject, and that there was
no authoritative Federal Supreme Court decision he could rely upon.
"What is best for the maintenance of the judiciary in the Philippines,"
he said, "should be the criterion. H e r e , in contrast to other jurisdictions,
we need not be overly sensitive because of the sting of newspaper ar-
ticles, for there are no juries to be kept free from outside influence. Here
also we are not restrained by regulatory law. The only law, and that
judge m a d e , which is at all applicable to the situation, is the resolution
650
adopted by this Court." Whereupon, the Court proceeded to declare
Lozano and Quevedo in contempt!

The reasoning behind this decision, which is still law, is easily


summarized. The Supreme Court resolution requiring secrecy was in-
tended as a protection "against the practice of litigants and others mak-
ing vindictive and malicious charges against lawyers and Judges of
First Instance, which are ruinous to the reputations of the respondent
lawyers and judges." From that, it was only one step to saying that "Re-
spect for the Judiciary cannot be had if persons are privileged to scorn
a resolution of the court adopted for good purposes . . . " And disrespect,
in the form of disregard of this resolution, prevents the Court from pro-

"HJ-S. v. Buetos, 37 Phil. 731,740-1 (1918).


M
54 Phil. 801 (1930).
«°M.at807.
THE 1987 CONSTITUTION Sec. 4
260
OF THE REPUBLIC OF THE PHILIPPINES

ceeding "with the disposition of its business in an orderly manner free


631
from outside interference obstructive of its constitutional functions."
The rule as here applied, by any other name, still smells "prior
restraint." There are no juries to be kept free from outside influence,
the Court said: yet there are lawyers to be shielded and judges to be
respected. Ordinary libel laws are not deemed sufficient for these. And
52
Malcolm was not only to reiterate this rule in In Re Abistado* but he
was also to give it a novel twist in In Re Torres.*"

Torres was the editor of "El Debate," a Manila paper which ran
an article anticipatory of a Supreme Court decision. The article claimed
knowledge of the actual decision already m a d e , purported to n a m e the
writer of the decision, and even pointed out the probable distribution of
the votes among the justices. The Court declared Torres in contempt.
654
Mr. Justice Malcolm, again writing for a unanimous court, said:

... The proceedings of this court must remain confidential


until decisions or orders have been properly promulgated. The rea-
son for this is so obvious that it hardly needs explanation. In a
civil case, for example, prior knowledge of the result would permit
parties to compromise cases to the detriment of parties not so well
informed. In criminal cases, for example, advance advice regard-
ing the outcome would permit the accused to flee the jurisdiction
of the court. The court must therefore insist on being permitted to
proceed to the disposition of its business in an orderly manner, free
from outside interference obstructive of its functions and tending
to embarrass the administration of justice.

A refreshing change from the stringent tone of the above decisions


was the first contempt case decided under the 1935 Constitution. Jus-
655
tice Laurel, writing for the Court in People v. Alarcon, said: "It must
however clearly appear that such publications do i m p e d e , interfere with
and embarrass the administration of justice before the author of the p u b -
lications should be held for contempt." T h e impact of this statement,

65I
W. at 805,807-8.
652
57 Phil. 668 (1932).
653
55 Phil. 799 (1931)
654
W. at 800. Thus the stage was set for an embarrassing interlude in which the court would
find itself seventeen years later. See In Re Subido, 81 Phil. 517 (1948), infra
655
69 Phil. 265,271 (1939)
Sec. 4 ART. m - B I L L OF RIGHTS 261

however, is lost in the fact that the publication in question was a com-
656
ment on a case which technically was no longer pending. (Here again
the object of criticism was not the Supreme Court but an inferior court.)
We only add that Mr. Justice M o r a n ' s dissent advocating the application
of the "dangerous tendency" rule even to cases no longer pending sym-
bolized the dying gasp of that extreme view. Moran said that while the
opposite rule may find justification in the United States, "considering
the American temper and psychology and the stability of its political
institutions, it is doubtful whether here a similar toleration of gross mis-
use of liberty of the press would, under our circumstances, result in no
untoward consequences to our structure of democracy yet in the process
657
of healthful development and growth." This growing democracy was
in fact to meet its supreme test in a war which occasioned our next case
of contempt by publication.

To expedite the prosecution of the numerous treason cases which


arose out of the war against Japan, a People's Court with special juris-
diction over the crime of treason was established. A resolution of the
fifth division of this court denying bail to an accused was reversed by
the Supreme Court. Three days after the reversal, Judge Quirino of the
fifth division openly criticized the action of the Supreme Court before
a group of newspapermen. Calling the decision the "biggest blunder"
and claiming that it "robbed" the People's Court of its jurisdiction, he
accused the Supreme Court of lacking "intellectual leadership" and of
offering merely "sentimental leadership." He characterized the deci-
sion as the result of intellectual dishonesty and of quantitative and not
658
qualitative voting. His remarks were published in the local dailies at
a time when, technically, the case was still pending before the Supreme
659
Court.

Although the Court said, in declaring Quirino in contempt, that


the latter's remarks merely "tended to embarrass this Court," it seems

'"The alleged contemptuous utterance was made against a judge of a Court of First In-
stance after he had lost jurisdiction over the case by the perfection of the appeal to the Court of
Appeals.
6 7
' 69 Phil, at 279.
6
"/n Re Quirino. 76 Phil. 631 -2 (1946).
T h e case was considered still pending because the Court had not yet written the extended
opinion which it announced would be given and the case was still open to a motion for reconsid-
eration. Id. at 632.
THE 1987 CONSTITUTION Sec. 4
262
OF THE REPUBLIC OF THE PHILIPPINES

that the court meant that they actually did embarrass the Court. The
660
Court said:

To be specific: At the time of adopting the resolution, the


majority members made up their minds to announce ... that, as a
general rule, in cases of abuse of discretion in the matter of bail,
our judgment should be to return the case to the People's Court
with a direction for the granting of bail; but in this particular case,
in view of the long process which the petitioner had to undergo,
the majority thought it conformable to equity and justice that
she should be bailed immediately. After the criticism had been
launched, it became a bit embarrassing for said majority members
to expound that view in the full-dress opinion, because the public
might suspect they had receded somewhat from this stand, falsely
represented as "robbing" the People's Court of its power to grant
bail. Again, the minority members proposed to question our au-
thority to grant bail. After Judge Quirino, without waiting for their
dissent, had publicly raised the same doubt, said minority felt un-
easy to appear as taking the cue from him. And so of other phases
of the issue.

One may well wonder whether the judicial embarrassment and


uneasiness generated by Judge Quirino's remarks were so substantive
an evil as to warrant curtailment of a cherished freedom.

The next case to reach the S u p r e m e Court w a s a repetition of the


Torres incident, but with a comico-tragic twist. Pending before the Su-
m
preme Court was the historic case of Krivenko v. Register of Deeds.
The question at issue was whether aliens could, under the Constitution,
validly acquire residential lands. T h e case was with the S u p r e m e Court
on appeal by Krivenko. W h e n the Secretary of Justice issued a circular
amending a previous o n e , which Krivenko had originally challenged,
and directing Registrars of Deeds to accept registration of alien-ac-
quired real estate, Krivenko asked to withdraw his appeal. At this point,
Subido, editor of the "Manila Post," on information received from an
official of the Supreme Court, published an article saying that the Su-
preme Court had already voted 8-3 against the right of aliens to acquire
662
residential lands. T h e article further said:

M
ld. at 633-4.
"'79 Phil. 461 (1947).
2
" In Re Subido, 81 Phil. 517 (1948).
Sec. 4 ART. Ill - BILL OF RIGHTS 263

My informant told me that the Court held three sessions to


deliberate on this petition to withdraw the appeal. These sessions,
he said, were featured [sic] by tumultuous and violent discussions
among the justices. He also told me that my series of editorials at-
tacking the unconstitutionality of Justice Secretary Ozaeta's order
helped in a big way to make the justices decide against the with-
drawal.

This official pointed out that the position of the petitioner


was strong because the office of the solicitor general, which rep-
resented the government in the case, agreed to the withdrawal.
Had the withdrawal been allowed, my informant indicated, the Su-
preme Court would have culpably abdicated its important function
as guardian or protector of the Philippine Constitution.

It turned out that Subido's informant was one of the Justices of the
Supreme Court. He had "leaked out" the information because he was
disturbed by the delay in the promulgation of the decision.

On the strength of the Torres ruling, Subido was declared in


contempt. T h e Court said that although the information had been fur-
nished by a m e m b e r of the Court, it nonetheless was unauthorized and
therefore constituted contempt "por entorpecer, obstruir o embarazar
la administration de justicia" That the article may have hastened the
promulgation of the decision and thus forestalled certain evils was not
recognized as a valid defense. N o r did the fact that the source of the
information was a m e m b e r of the Court excuse the respondent. His re-
sponsibility was considered distinct from that of the Justice concerned.
Newspapermen, the Court said, should restrain the desire to satisfy the
public's yen for news "cuando van de por medio la vida y seguridad de
663
las instituciones."

One would wish that the perfervid utterances made in the name of
an outraged dignity and threatened extermination of democratic insti-
tutions were but lawyer's rhetorical flourishes, florid but painless; but
one who has read up to this point will easily see that the Court seriously
sees the problem as a matter of life and death: "van de por medio la
66
vida y seguridad de las instituciones." The cases of In Re Parazo * and

Mi
ld. at 523-7. The Court further added, at 528, that since the Philippine judiciary had been
liberal to the press, the latter should reciprocate with respect.
""82 Phil. 230 (1948).
THE 1987 CONSTITUTION Sec. 4
264
OF THE REPUBLIC OF THE PHILIPPINES

665
In Re Sotto, parts of the series of vindications of the dignity of the
Supreme Court, may even give the impression that the final nails have
been driven into the coffin of critics of such an august body.
Angel Parazo, a reporter for the "Star Reporter," had published an
article alleging that the Bar Examination questions for 1948 had leaked
out. The examinations were conducted under direct supervision of the
666
Supreme Court in the exercise of a constitutional duty. The Court,
therefore, ordered Parazo to reveal the source of his information. Para-
zo refused; he was declared in contempt. The Court said: " . . . we have
the inherent power of courts in general, specially of the Supreme Court
as representative of the Judicial Department, to proper and adequate
measures to preserve their integrity, and render possible and facilitate
the exercise of their functions, including, as in the present case, the
investigation of charges of error, abuse or misconduct of their officials
667
and subordinates, including lawyers, w h o are officers of the Court."

While the Supreme Court was reconsidering this decision, Sena-


tor Vicente Sotto published an article in the "Manila T i m e s " which read
668
partly as follows:

I regret to say that our High Tribunal... is once more putting


in evidence the incompetence or narrow mindedness of the major-
ity of its members. In the wake of so many blunders and injustices
deliberately committed during these last years, I believe that the
only remedy to put an end to so much evil is to change the mem-
bers [sic] of the Supreme Court. To this effect I announce that one
of the first measures, which I will introduce in the coming congres-
sional sessions, will have as its object the complete reorganization
of the Supreme Court. As it is now constituted, the Supreme Court
of today constitutes a constant peril to liberty and democracy....

665
Id. at 595.
666
Article VII, Section 13 (1935).
*"/n Re Parazo, 82 Phil. 230, 244-5 (1948). Parazo's defense was that under section 1 of
Republic Act No. 53 newspapermen could be compelled to reveal the source of their news only
when revelation was demanded by the "interest of the State." Parazo claimed that "interest of the
State" meant "security of the State." The Court did not accept this defense. Subsequent to and be-
cause of this decision, Congress, by Republic Act 1477, amended the law to read "security of the
State." The question may therefore be asked whether such amendment can affect what the court
claims to be its "inherent power."
M
In Re Sotto, 82 Phil. 595, 597 (1949).
Sec. 4 ART. Ill - BILL OF RIGHTS 265

Sotto went the way of Parazo. The Court said that "criticism or
c o m m e n t on the correctness or wrongness, soundness or unsoundness
of the decision of the Court in a pending case made in good faith may be
tolerated" and m a y even "enlighten the Court and contribute to the cor-
rection of an error." But "to intimidate the members of this Court with
the presentation of a bill in the next C o n g r e s s " and to falsely charge
"that this Court has been for the last years committing deliberately
669
' s o many blunders and injustices' " constitute contempt. The Court
670
continued:

As a member of the bar and an officer of the courts Atty. Vi-


cente Sotto, like any other, is in duty bound to uphold the dignity
and authority of this Court, to which he owes fidelity according to
the oath he has taken as such attorney, and not to promote distrust
in the administration of justice. Respect to [sic] the courts guaran-
tee the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.

T h e decision was unanimous.

O n e of the later cases in this series of contempt citations, Ca-


bansag v. Fernandez"' gave no sign of any relaxation of the rule. Ca-
bansag, chafing at the long delay of his case before a Court of First
Instance, wrote a letter asking for relief. The letter was addressed not to
a court but to the Presidential Claims and Actions Committee (PCAC)
an executive body. The lower court resented this recourse to an extra-
judicial forum and declared Cabansag in contempt. On appeal, after
discoursing on the existence of two "rules," citing among others the
1
pronouncements in the Bridges," Pennekamp,™ and Craig"* cases, the
Supreme Court, apparently accepting the applicability of either rule,
said: "The question then to be determined is: Has the letter of Cabansag
created a sufficient danger to a fair administration of justice? Did its
remittance to the P C A C create a danger sufficiently imminent to come
675
under the two rules mentioned above?" In acquitting Cabansag, the

""Id. at 600-1.
™ld. at 602.
6,,
102Phil. 152(1957).
'"Bridges v. California, 314 U.S. 252 (1941).
673
Pennekamp v. Florida, 328 U.S. 367 (1946).
""Craig v. Harvey, 331 U.S. 367 (1947).
675
102 Phil.at 164.
THE 1987 CONSTITUTION Sec. 4
266
OF THE REPUBLIC OF THE PHILIPPINES

Supreme Court found that neither rule was satisfied. For expression to
constitute contempt "the danger must cause a serious imminent threat
to the administration of justice. Nor can we infer that such act has a
'dangerous tendency' to belittle the court or undermine the administra-
tion of justice, for the writer merely expressed his constitutional right to
676
petition the government for redress of a legitimate grievance."

The decision, however, ends with a special note addressed to Ca-


bansag's lawyers: "But they should be warned, as we now d o , that a
commission of a similar misstep in the future would render them ame-
677
nable to a more severe disciplinary action." T h u s , a further question:
Do lawyers, by the very fact of their being lawyers, enjoy a lesser de-
gree of freedom to criticize courts? It is true that Article VIII, Section
5(5) gives the Supreme Court regulatory powers over "pleading, prac-
tice, and procedure in all courts, and the admission to the practice of
law"; but the same provision also adds that this power "shall not dimin-
ish, increase, or modify substantive rights." W h a t right can be more
substantive for a lawyer than the right freely to speak out in the n a m e
of justice, and what person is in a better position than lawyers to see
whether justice is being done by the courts? Yet the Cabansag case sug-
gests that precisely in this area the lawyer is less free than the ordinary
citizen.

From this brief survey of Philippine decision, the following pre-


liminary observations may be drawn: (1) only publication m a d e during
the pendency of a case is punishable as contempt. A case is pending
not only prior to the promulgation of the decision but even after prom-
678 679
ulgation when the possibility of reconsideration by the same court
still exists. (2) The only test conclusively established by S u p r e m e Court
decisions is the "dangerous tendency" rule. However, in certain cases
involving contempt of inferior courts, the "clear and present d a n g e r "
680
rule has been given at least a nodding assent. (3) T h e danger guarded
against in punishing for contempt is either extraneous influence on the
court's act of decision making or disrespect and disobedience which

676
W.at 165.
""/a", at 168.
67
'76Phil.at362.
67
*This and the preceding note seem to indicate a tendency to prolong the "pending" status
of a case precisely for the purpose of prosecution.
""People v. Alarcon.69 Phil, at 271, and Cabansag v. Fernandez, 102 Phil. 152 (1957).
Sec. 4 ART. Ill - BILL OF RIGHTS 267

can breed popular distrust in courts and court decisions. (4) In every
case reaching the Supreme Court where the questioned publication was
alleged to be contemptuous of the Supreme Court or its Justices, the
681
publication w a s declared contemptuous; but in every case where an
inferior court or its j u d g e was the target, absolution followed. (5) In
the early cases, where the rule for contempt by publication was forged,
reliance was had on American state court cases and on Federal Supreme
Court cases decided at a time w h e n the guarantees of the First Amend-
ment had not yet been recognized as extending to state actions via the
682
Fourteenth A m e n d m e n t . (6) At least one decision suggests that the
freedom of lawyers in relation to courts is less than that of ordinary
citizens.

In Re Contempt Proceedings Against Alfonso Ponce Enrile™ may


be an indication that things have not changed. T h e contempt proceed-
ings against Alfonso Ponce Enrile and his law partners arose out of a
motion for reconsideration filed with the Supreme Court. The motion,
in part, used the following language:

One pitfall into which this Honorable Court has repeatedly


fallen whenever the question as to whether or not a particular sub-
ject matter is within the jurisdiction of the Court of Industrial Rela-
tions is the tendency of this Honorable Court to rely upon its own
pronouncement without due regard to the statutes which delineate
the jurisdiction of the industrial court. Quite often, it is overlooked
that no court, not even this Honorable Court, is empowered to ex-
pand or contract through its decision the scope of its jurisdictional
authority as conferred by law. This error is manifested by the de-
cisions of this Honorable Court citing earlier rulings but without
making any reference to and analysis of the pertinent statute gov-
erning the jurisdiction of the Court of Industrial Relations. This
manifestation appears in this Honorable Court's decision in the
instant case. As a result, the errors committed in earlier cases deal-
ing with the jurisdiction of the industrial court are perpetuated in
subsequent cases involving the same issue...

681
An exception to this is In Re Gomez, 43 Phil. 376 (1922). But here the charges made by
respondent were not made in relation to a pending case.
M2
The extension was made in Gitlow v. New York, 268 U.S. 652 (1925). In Re Kelly, 35
Phil. 944, which is still followed was decided in 1916.
6M
L-22979, June 26,1967. See also Rheem of the Philippines v. Ferrer, L-22979, June 26,
1967; Surigao Mineral Reservation Board v. Cloribel, L-27072, January 9, 1970; In re Almacen,
L-27654, February 18,1970.
THE 1987 CONSTITUTION Sec. 4
268
OF THE REPUBLIC OF THE PHILIPPINES

After recalling to the respondents the duty of lawyers to maintain


the respect due to courts of justice and to judicial officers, the Court
made this observation:
We concede that a lawyer may think highly of his intellectu-
al endowment. That is his privilege. And, he may suffer frustration
at what he feels is others' lack of it. That is his misfortune. Some
such frame of mind, however, should not be allowed to harden into
the belief that he may attack a court's decision in words calculated
to jettison the time-honored aphorism that courts are the temples
of right. He should give due allowance to the fact that judges are
but men; and men are encompassed by error, fettered by fallibility.

After such solemn acknowledgment of the fallibility of the presid-


ing officers of the "temple of right," one would expect a magniloquent
conclusion approximating the tenor of an imperial decree found in the
684
Code of Justinian:

... [I]f anyone who knows no restraint and is a stranger to


propriety, thinks he must attack our names with scurrilous abuse
and in his intemperance become a noisy berater of our era, we
desire that he be not subjected to punishment nor suffer any harsh
or severe treatment, since if what he does proceeds from irrespon-
sibility, it should be despised, if from irrationality, it deserves pity,
and if from ill-will, it should be pardoned.

Indeed, the respondents were not m a d e to suffer "harsh and severe


treatment"; but warning was given to the principal author of the motion
that a "repetition of this incident will be dealt with accordingly" and
a copy of the court's warning was ordered attached to the attorney's
record.

The pattern, however, of a more lenient attitude towards "con-


t e m n e r s " of courts lower than the S u p r e m e Court continues. In Austria
6 5
v. Masaquel, * the j u d g e had asked the lawyer: " D o you doubt the in-
tegrity of the presiding Judge to decide the case fairly and impartially
because the lawyer of the other party was my former assistant? Do you
doubt? Just answer the question." U n d e r such " e n c o u r a g e m e n t , " the
lawyer acknowledged his doubt. W h e r e u p o n the Judge declared him in

"'Quoted in RADIN, FREEDOM OF SPEECH AND CONTEMPT OF COURT, 3 6 I L L . LR. 599,619-20


(1942).
6 , 5
L - 2 2 5 3 6 , August 3 1 , 1 9 6 7 .
Sec. 4 ART. m - BILL OF RIGHTS 269

6
contempt. T h e Supreme Court disagreed. In Matulina v. Buslon, ** the
Supreme Court had said that "contempt of court presupposes a contu-
macious attitude, a flouting or arrogant belligerence, a defiance of the
court." In the present instance, the Court said that the lawyer "simply
expressed his sincere feeling under the circumstances."

Finally, one may contrast the tendency perpetuated in the Ponce


Enrile case with the absolute privilege that has been accorded to state-
ments m a d e in the course of judicial proceedings when the object of the
statements is not the Court but private parties. The Court has repeatedly
687
ruled that:

... [statements made in the course of judicial proceedings


are absolutely privileged — that is, privileged regardless of de-
famatory tenor and of the presence of malice — if the same are
relevant, pertinent or material to the cause in hand or subject of
the inquiry. And that, in view of this, the person who makes them
— such as a judge, lawyer or witness — does not thereby incur the
risk of being found liable thereon in a criminal prosecution or an
action for the recovery of damages.

688
The reason for this privilege has been stated thus:

The privilege is not intended so much for the protection of


those engaged in the public service and in the enactment and ad-
ministration of law, as for the promotion of the public welfare, the
purpose being that members of the legislature, judges of courts,
jurors, lawyers, and witnesses may speak their minds freely and
exercise their respective functions without incurring the risk of a
criminal prosecution or an action for the recovery of damages.

From this, it should also be reasonable to conclude that the Court


should exercise greater tolerance for the rhetorical effusions of lawyers
such as those found in the Ponce Enrile case. But the jealousy with
which the Court guards its dignity persists even under the 1987 Consti-

" " L - ^ S ? , August 24, 1960.


'"People v. Aquino, L-23908, October 29,1966, citing U.S. v. Bustos, 37 Phil. 743 (1918);
Tupas v. Pareno, L-12545, April 30, 1959; People v. Andres, L-14548. April 29, 1960; Sison v.
David, L-l 1268, January 28, 1961; Tolentino v. Baylosis, L-15742, January 31,1961; Gonzales v.
Alvares, L-19072, August 14,1964. Reiterated in Deles v. Aragona, Jr., Adm. Case in 598, March
28.1969.
"•33 Am. Jur. 123-24, quoted in People v. Aquino, L-23908, October 29,1966.
THE 1987 CONSTTTUTION Sec. 4
270
OF THE REPUBLIC OF THE PHILIPPINES

tution. Judicial tolerance of the Court was put to the test soon after the
ratification of the new Constitution. Former Tanodbayan Raul Gonza-
les, soon after losing a case in the Supreme Court, openly accused the
Court of deliberately rendering an erroneous judgment in retaliation for
his claim that the justices should not claim immunity from investiga-
tion by government prosecutors, of pressuring him to render decisions
favorable to colleagues and friends, and for dismissing cases without
689
rhyme or reason. The charges were serious enough to occasion the
filing of a complaint for the impeachment of thirteen out of the fourteen
justices. Citing an exhaustive list of cases, the Court found Gonzalez
"guilty both of contempt of court in facie curiae and of gross miscon-
duct as an officer of the court and m e m b e r of the B a r " and was punished
690
with indefinite suspension from the practice of law. W h e n on recon-
sideration he contended that the application of the "clear and present
danger rule" should absolve h i m , the Court replied: " T h e 'clear and
present danger' doctrine ... is not a magic incantation which dissolves
all problems and dispenses with analysis and judgment in the testing
of the legitimacy of claims to free speech, and which compels a court
to exonerate a defendant the m o m e n t the doctrine is invoked, absent
proof of impending apocalypse. ... It is not [moreover] the only test
which has been recognized and applied by the courts." T h e utterances
of Gonzales were deemed to merit proscription either under the "clear
and present danger" test or under the "balancing of interests" test. T h e
Court said: "What is here at stake is the authority of the Supreme Court
to confront and prevent a 'substantive evil' consisting not only of the
obstruction of a free and fair hearing of a particular case but also the
avoidance of the broader evil of the degradation of the judicial system
of a country and the destruction of the standards of professional conduct
691
required from members of the bar and officers of the courts."

The next to test the patience of the S u p r e m e Court was the lawyer-
journalist Emil Jurado. In his newspaper c o l u m n , Jurado was relentless
in his diatribes against justices, both n a m e d and u n n a m e d . He too was
found guilty of contempt but received nothing more than a token fine of
692
one thousand pesos, hardly an amount to deter obstinate critics.

""Zaldivar v. Gonzalez, 166 SCRA 316,335-337 (1988)


""W. at 359.
4 9 1 1 7 0
SCRA 1,8-9 (1989). In 1995, Gonzales was elected to the House of Representatives.
m
ln re Jurado, AM 93-2-037SC, April 6,1995; See also In Re Any. Leonard De Vera, AM
P-01-1524, July 29,2002.
Sec.4 ART. i n - BILL OF RIGHTS 271

In the 2007 c a s e against n e w s m a n Jake Macasaet, the Court ex-


patiated on its finding of libel against the Court. "Unfortunately, the
published articles of respondent Macasaet ... has crossed the line, as
his are baseless scurrilous attacks which demonstrate nothing but an
abuse of press freedom. They leave no redeeming value in furtherance
of freedom of the press. T h e y do nothing but damage the integrity of
the High Court, undermine the faith and confidence of the people in the
judiciary, and threaten the doctrine of judicial independence.

"A veteran journalist of m a n y years and a president of a group


of respectable media practitioners, respondent Macasaet has brilliantly
sewn an incredible tale, adorned it with some facts to make it lifelike,
but impregnated it as well with insinuations and innuendoes, which,
when digested entirely by an unsuspecting soul, may make him throw
up with seethe. T h u s , he published his highly speculative articles that
bribery occurred in the High Court, based on specious information,
without any regard for the injury such would cause to the reputation of
the judiciary and the effective administration of justice. N o r did he give
any thought to the u n d u e , irreparable d a m a g e such false accusations
6 3
and thinly veiled allusions would have on a m e m b e r of the Court." '

10. Purifying the electoral process.


69
Gonzales v. COMELEC, * the first of the series of cases involv-
ing statutes designed to maintain the purity and integrity of the elec-
toral process, set the tone for the Court's approach to subsequent cases
involving the same topic. Republic Act 4 8 8 0 , amending the Revised
Election C o d e , prohibited the too early nomination of candidates and
limited the period of election campaign and partisan political activity.
T h e statute was challenged as a violation of the rights of free speech,
free press, freedom of assembly and freedom of association.
6 5
T h e principal bone of contention was the following provision: '

Sec. 50-B. Limitation upon the period of Election Campaign


or Partisan Political Activity. — It is unlawful for any person
whether or not a voter or candidate, or for any group or association
of persons, whether or not a political party or political commit-

""/JI re Macasaet, A-M. No. 07-09-13-SC, August 6,2007.


***27 SCRA 835 (1969).
"Bid. at 875-6.
THE 1987 CONSTITUTION Sec. 4
272
OF THE REPUBLIC OF THE PHILIPPINES

tee, to engage in an election campaign or partisan political activity


except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large
and ninety days immediately preceding an election for any other
elective public office.
The term "Candidate" refers to any person aspiring for or
seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate.
The term "Election Campaign" or "Partisan Political Activ-
ity" refers to acts designed to have a candidate elected or not or
promote the candidacy of a person to a public office which shall
include:
a. Forming Organizations, Associations, Clubs, Commit-
tees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a
party or candidate;
b. Holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the pur-
poses of soliciting votes and/or undertaking any campaign or pro-
paganda for or against any candidate or party;
c. Making speeches, announcements or commentaries or
holding interviews for or against the election of any party or can-
didate for public office;
d. Publishing or distributing campaign literature or materi-
als;
e. Directly or indirectly soliciting votes and/or undertak-
ing any campaign or propaganda for or against any candidate or
party;
f. Giving, soliciting, or receiving contributions for elec-
tion campaign purposes, either directly or indirectly: Provided,
That simple expressions of opinion and thoughts concerning the
election shall not be considered as part of an election campaign:
Provided, further, That nothing herein stated shall be understood to
prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candi-
dates for public office whom he supports.

The law thus, by enumerating the acts included in the terms "elec-
tion campaign" or "partisan political activity," avoided the constitu-
Scc.4 ART. Ill - BILL OF RIGHTS 273

tional objection of vagueness and at the same time enabled the Court to
take separate votes on the enumerated acts and measure them against
the substantive evil the prohibitions were intended to prevent. Justice
696
Sanchez described the evil in his separate opinion thus:

State authority here manifests itself in legislation intended


as an answer to the strong public sentiment that politics is growing
into a way of life, that political campaigns are becoming longer
and more bitter. It is a result of legislative appraisal that protracted
election campaign is the root of undesirable conditions. Bitter ri-
valries precipitate violence and deaths. Huge expenditures of funds
give deserving but poor candidates slim chances of winning. They
constitute an inducement to graft to winning candidates already in
office in order to recoup campaign expenses. Handouts doled out
by and expected from candidates corrupt the electorate. Official
duties and affairs of state are neglected by incumbent officials de-
siring to run for re-election. The life and health of candidates and
their followers are endangered. People's energies are dissipated in
697
political bickerings and long drawn-out campaigns.

Indeed, a drawn-out political campaign taxes the reservoir of


patience and undermines respect of the electorate for democratic
processes. Sustained and bilious political contests eat away even
the veneer of civility among candidates and their followers and
transplant brute force into the arena.

As already seen in the discussion of the tests for constitutional


validity, Justice Fernando approached the question through the clear
and present danger test whereas Justice Castro expressed preference
for the balancing of interests test. The statute was upheld by a sharply
divided vote. Paragraphs (a), (b), and (f) were upheld by a vote of 6 to
6,8
5 . On paragraphs (c), (d), and (e), the five dissenters were joined by
two others for a total of seven, one vote short of the required two-thirds
699
to declare a statute unconstitutional.

at 878.
""Explanatory Notes to Senate Bill 209 and House Bill 2475, which eventually became
Republic Act 4880.
T h e s e paragraphs had the approval of Fernando and Sanchez, J J. with Conception, CJ.,
Reyes, JBL, Makalintal, and Teehankee, J J., concurring in the result, Dizon, Zaldivar, Castro, or
J J., Capistrano and Barredo were for declaring them unconstitutional.
T h e five were Joined by Sanchez and Fernando, J J.
THE 1987 CONSTITUTION Sec.4
274
OF THE REPUBLIC OF THE PHILIPPINES

Explaining his switch to the side of the dissenters in the vote on


paragraphs (c), (d), and (e), Fernando emphasized that "the scope of
the curtailment to which freedom of expression may be subjected is
not foreclosed by the recognition of the existence of a clear and present
700
danger of a substantive evil, the debasement of the electoral process."
For him, these paragraphs prohibited "what under the Constitution can-
701
not by any law be abridged." For Justice Sanchez, also explaining
his switch, the vagueness of paragraphs (c), (d), and (e) "opens a wide
latitude to law enforcers. Arbitrary enforcement of the letter of the law
by an expansive definition of election campaign or partisan political
activity, should not be branded as improbable. For, political rivalries
702
spawn persecution. The law then becomes an unwilling tool."

It should also be noted that of those who chose to uphold the stat-
ute, four merely concurred in the result. As noted by Justice Sanchez,
these Justices preferred to leave the statute well alone in order to allow
the courts of justice "to h a m m e r out the contours of the statute case by
703
case." Doctrinally, therefore, Gonzales v. COMELEC left the validity
of all the prohibitions open to re-examination. Neither did the case of
104
Badoy, Jr. v. COMELEC, decided a year later, definitively settle the
matter.

At issue in Badoy was paragraph F of Section 12 of Republic Act


705
N o . 6132 which read:

The Commission on Elections shall endeavor to obtain free


space from newspapers, magazines and periodicals which shall be
known as COMELEC space, and shall allocate this space equally
and impartially among all candidates within the areas in which
the newspapers are circulated. Outside of said COMELEC space,
it shall be unlawful to print or publish, or cause to be printed or
published, any advertisement, paid comment or paid article in fur-
therance of or in opposition to the candidacy of any person for
delegate, or mentioning the name of any candidate and the fact of
his candidacy, unless all the names of all other candidates in the

™27 SCRA at 869 (1969).


70I
W. at 870.
^Id. at 886-7.
™ld. at 887.
704
35 SCRA 285 (1970).
m
Id. at 289.
Sec. 4 ART. m - B I L L OF RIGHTS 275

district in which the candidate is running are also mentioned with


equal prominence.

706
Writing for the prevailing opinion, Justice Makasiar said:

The evident purpose of this limitation, on the freedom of


the candidate or his sympathizer to spend his own money for his
candidacy alone and not for the furtherance of the candidacy of
his opponents, is to give the poor candidates a fighting chance in
the election. While it is true that the mere mention of the poor
opponent in the same advertisement or paid article does not by it-
self alone engender perfect equality of chances, at least the chance
of the poor candidate for victory is improved because thereby his
name will be exposed to the reading public in the same article as
that of the wealthy candidate.

Moreover, against the background of so many other avenues of


expression open to the candidate, Makasiar found the limitation on the
law "so narrow as not to effect the substance and vitality of his freedom
707 708
of expression itself." Then he concluded:

Hence, consistent with our opinion expressed in the cases of


Imbong vs. COMELEC and Gonzales vs. COMELEC, this slight
limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F of Sec. 12, is only one of
the many devices employed by the law to prevent a clear and pres-
ent danger of the perversion of prostitution of the electoral appara-
tus and of the denial of the equal protection of the laws.
The fears and apprehensions of petitioner concerning his lib-
erty of expression in these two cases, applying the less stringent
balancing-of-interests criterion, are far outweighed by the all im-
portant substantive interests of the State to preserve the purity of
the ballot and to render more meaningful and real the guarantee of
the equal protection of the laws.

Makasiar's opinion was supported by a total of five Justices. Fer-


nando's dissenting opinion, also supported by a total of five Justices,
compared Makasiar's use of the clear and present danger rule and the

" / J . at 290-91.
™ld. at 295.
™Id. at 297.
THE 1987 CONSTITUTION Sec. 4
276
OF THE REPUBLIC OF THE PHILIPPINES

balancing of interests test to Byron's Julia who "whispering 'I will ne'er
709
consent' consented." Quoting from his own opinion in Gonzales v.
COMELEC, which had initially let the camel's nose into the tent, Fer-
nando said that "even though the governmental purposes be legitimate
and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly
710
achieved." Fernando, it will be recalled, in the dissenting portion of
his opinion in Gonzales had said that "the scope of curtailment to which
freedom of expression may be subjected is not foreclosed by the rec-
ognition of the existence of a clear and present danger of a substantive
7
evil." " What Fernando found unforgivable in the statute was the clear
impairment of "the right to determine what the advertisement, the paid
712
comment or the paid article should contain" in a matter which dealt
713
with "the right to disseminate political information."

It should be noted that both sides of the divided Court, both in


Gonzales and in Badoy, eloquently defended the preferred position of
the right of political expression. Moreover, the side which ultimately fa-
vored curtailment found solace in the argument that, after all, the limita-
tion sought to be imposed was "so narrow as not to affect the substance
714
and vitality of freedom of expression."

Such was the jurisprudential situation of allowable curtailment


of political campaign in 1970. The situation had not changed by the
715
time martial law was imposed in 1972. N o r did it c h a n g e , at least
doctrinally, during martial rule. T h u s w h e n the regulation imposed on
allowable time in broadcast media was challenged as unconstitutional
curtailment of speech, the Court ruled: "[I]t is our considered opinion
and we so hold that if such be the effect of the C O M E L E C regulations,
it is because they must have been contemplated to precisely constitute
an exception to freedom-of-speech-and-press clause on account of con-

709
W.at3U.
m
Id. at 309, citing 27 SCRA at 871.
7
"27 SCRA at 289.
7I2
35 SCRA at 309 (1970).
m
Id. at 304.
7,4
W.at295.
715
The case of Mutuc v. COMELEC, 36 SCRA 228 (1970), which unanimously declared
unconstitutional a COMELEC ruling enjoining the use of taped jingles for campaign purposes is
not really significant for the doctrine on freedom of expression because the decision, applying the
principle of ejusdem generis, largely vested on the lack of statutory authorization for the action
taken by the COMELEC.
Sec. 4 ART. m - BILL OF RIGHTS 277

siderations more paramount for the general welfare and public interest,
which exceptions after all would operate only during limited periods,
that is, during the duration of the election campaign filed in the charter
716
itself and/or by law."

With the restoration of democracy, political campaigns once again


heated u p . In response to the new challenge and to give substance to
the desire to equalize political opportunities, the Electoral Reform Law
of 1987, Republic Act 6 6 4 6 , Section 11(b) m a d e it unlawful "for any
newspaper, radio broadcasting or television station, other mass media,
or any person making use of the mass media to sell or to give free of
charge print space or air time for campaign or other political purposes
except to the Commission as provided under Sections 90 and 92 of Ba-
tas Pambansa B i g . 8 8 1 . " Batas Pambansa Big. 881 had also command-
ed the Commission to procure print space and broadcast time to be al-
located impartially among the candidates. The validity of the measures
was challenged as offensive to freedom of expression. In upholding the
reasonableness of the provisions National Press Club v. Commission
111
on Elections, said that the objective of the prohibition was the equal-
izing, as far as practicable, of the situation of rich and poor candidates
by preventing the former from enjoying undue advantage offered by
huge campaign " w a r chests." Further, the c o m m a n d to the Commission
on Elections to m a k e avenues for expression available both in print
and broadcast media was seen as a saving grace. The Court said that
the provision on freedom of expression must be read in conjunction
with the power given to the Commission on Elections to supervise and
regulate media during elections as well as with the various provisions
in the Constitution which place a high premium on equalization of op-
718
portunities. A significant observation was made:

The technical effect of Article IX(C)(4) of the Constitution


may be seen to be that no presumption of invalidity arise in re-
spect of exercises of supervisory or regulatory authority on the part
of the COMELEC for the purpose of securing equal opportunity
among candidates for political office, although such supervision
or regulation may result in some limitation of the rights of free
speech and free press. For supervision or regulation of the opera-

71
*UNTDO v. COMELEC, 104 SCRA 17,38 (1981).
7I7
207 SCRA 1 (1992).
7
"W. at 9-10. But see the vigorous dissents.
THE 1987 CONSTITUTION Sec. 4
278
OF THE REPUBLIC OF THE PHILIPPINES

tions of media enterprises is scarcely conceivable without such ac-


companying limitation. Thus, the applicable rule is the general,
time-honored one— that a statute is presumed to be constitutional
and that the party asserting its unconstitutionality must discharge
the burden of clearly and convincingly proving that assertion.

Opposition to the election ad ban law was revived in Osmeha


v. COMELEC,™ on the eve of the 1998 elections. The argument used
was that the experience in the last five years since the National Press
Club case had "shown the 'undesirable effects' of the law because 'the
ban on political advertising [had] not only failed to level the playing
field, [but had] actually worked to the grave disadvantage of the poor
candidate[s]' by depriving them of a medium which they [could] afford
to pay while their more affluent rivals [could] always resort to other
means of reaching v o t e r s . . . . "

Justice Mendoza m a d e short shrift of the argument:

No empirical data have been presented by petitioners to back


up their claim, however. Argumentation is made at the theoretical
and not the practical level. Unable to show the "experience" and
"subsequent events" which they claim invalidate the major prem-
ise of our prior decision, petitioners now say "there is no need for
'empirical data' to determine whether the political ad ban offends
the Constitution or not." Instead they make arguments from which
it is clear that their disagreement is with the opinion of the Court
on the constitutionality of § 11(b) of R.A. No. 6646 and that what
they seek is a re-argument on the same issue already decided in
that case. What is more, some of the arguments were already con-
sidered and rejected in the NPC case.

Mendoza also added that the "term political ' a d b a n , ' when used
to describe §11(b) of R . A . N o . 6 6 4 6 , [was] misleading, for even as
§ 11(b) prohibits the sale or donation of print space and air time to p o -
litical candidates, it mandates the C O M E L E C to procure and itself al-
locate to the candidates space and time in the media. There is no sup-
pression of political ads but only a regulation of the time and m a n n e r
of advertising." Moreover, § 11(b) of R . A . N o . 6 6 4 6 , M e n d o z a added,
was a content-neutral restriction, not content-based. T h u s , it passed the

'G-R.No. 132231, March 31,1998.


Sec. 4 ART. m - BILL OF RIGHTS 279

120
test for content-neutral restriction enunciated in U.S. v. O'Brien. The
O'Brien case, which involved political protest by the burning of Selec-
tive Service certificates, ruled that when " s p e e c h " and "non-speech"
elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the non-speech element
can justify incidental limitations on free speech. A governmental regu-
lation is sufficiently justified if it is within the constitutional power of
the Government and furthers an important or substantial governmental
interest unrelated to the suppression of free expression, and if the inci-
dental restriction on alleged freedom is no greater than is essential to
that interest.

T h e political ad ban law, however, has since been repealed.

Not everything in the Electoral Reform L a w was saved. The


companion case to National Press Club — Adiong v. Commission on
121
Elections, held that the C O M E L E C may not prohibit the posting of
decals and stickers of candidates on " m o b i l e " places, public or private.
The portion of Section 11 of Republic Act 6646 upon which the C O M -
E L E C had relied was declared to be unconstitutional for infringing
freedom of speech and for being an undue delegation of rule making au-
thority. The prohibited acts were found to present no substantial danger
to government interest. T h e prohibition therefore did not satisfy the re-
quirements of the clear and present danger rule. "The regulation strikes
at the freedom of an individual to express his preference and, by dis-
playing it on his car, to convince others to agree with him." Moreover,
the prohibition was found to suffer from over breadth. It encompassed
the use of privately owned property such as a vehicle. It therefore was
an unreasonable restriction on the use of property. Finally, the constitu-
tional objective to give rich and poor candidates equal opportunity was
722
not seen as served by the prohibition of decals.

Similarly, Sanidad v. COMELEC* struck down an inappropriate


use of the powers given to the C O M E L E C to regulate the electoral pro-
cess. On the occasion of the ratification campaign for the Autonomy Act
for the Cordillera, the C O M E L E C had issued a resolution prohibiting

730
391 U.S. 367,20 L. Ed. 2d 672 (1968).
72
'207 SCRA 712 (1992).
722
207 SCRA712(1992).
7J3
181 SCRA 529 (1990).
THE 1987 CONSTITUTION Sec. 4
280
OF THE REPUBLIC OF THE PHILIPPINES

columnists, commentators, and announcers from using their columns


or radio or television time to campaign for or against the plebiscite
during the period of the campaign. Sanidad, a newspaper columnist,
challenged the validity of the resolution as a violation of freedom of
expression. The Court ruled that the authority given by the Constitution
was over holders of franchises and that the purpose was to assure can-
didates equal opportunity and equal access to media. Sanidad was not a
candidate and in fact, in a plebiscite, there are no candidates. Plebiscite
issues are matters of public concern. The people's right to be informed
must be preserved. Moreover, the people's choice of forum for discus-
sion should not be restricted.

Another freedom of expression case connected with elections was


the matter of "exit polls." Exit polls are of recent origin in the country.
It is "a species of electoral survey conducted by qualified individuals
or group of individuals for the purpose of determining the probable
result of an election by confidentially asking randomly selected vot-
ers, immediately after they have officially cast their ballots, w h o m they
have voted for. The results of the survey are announced to the public,
usually through the mass media, to give an advance overview of how,
in the opinion of the polling individuals or organizations, the electorate
voted." The C O M E L E C , however, promulgated a resolution restrain-
ing A B S - C B N or any other groups, its agents or representatives from
conducting such exit survey. T h e resolution w a s challenged by A B S -
C B N as violative of freedom of expression. The Court, in ABS-CBN v.
124
COMELEC, upheld the challenge saying: " T h e holding of exit polls
and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. H e n c e , the
C O M E L E C cannot ban them totally in the guise of promoting clean,
honest, orderly and credible elections. Quite the contrary, exit polls —
properly conducted and publicized — can be vital tools in eliminating
the evils of election-fixing and fraud."

125
Social Weather Station (SWS) v. COMELEC was another land-
mark decision on media and the electoral process. S W S brought action
for prohibition to enjoin the C o m m i s s i o n on Elections from enforcing
Section 5.4 of R.A. N o . 9006 (Fair Election A c t ) , which provided that

""ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, January 28,


2000.
72S
GJ*.No. 147571, May 5,2000.
Sec. 4 ART. Ill - BILL OF RIGHTS 281

"Surveys affecting national candidates shall not be published fifteen


(15) days before an election and surveys affecting local candidates shall
not be published seven (7) days before an election." In implementing
this law, the C O M E L E C justified its action saying that the ban was
necessary in order to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys just before the
election. It contended that (1) the prohibition on the publication of elec-
tion survey results during the period proscribed by law bore a rational
connection to the objective of the law, i.e., the prevention of the debase-
ment of the electoral process resulting from manipulated surveys, band-
wagon effect, and absence of reply; (2) it was narrowly tailored to meet
the "evils" sought to be prevented; and finally that (3) the impairment
of freedom of expression was minimal, the restriction being limited in
duration.

The Court disagreed and saw the law as a form of prior restraint
and therefore presumed to be invalid. The grant of power to the C O M -
E L E C under Art. I X - C , Section 4, the Court said, was limited to en-
suring "equal opportunity, time, space, and the right to reply" as well
as uniform and reasonable rates of charges for the use of such media
facilities for "public information campaigns and forums among candi-
dates." It is only when exercising this power that Art. IX, C, 4 reverses
this presumption of invalidity as it did in the National Press Club case.
The Court ruled that the state had failed to overcome the presumption
of invalidity.

11. Commercial speech.

Commercial speech simply means communication whose sole


purpose is to propose a commercial transaction. The literature on com-
126
mercial speech begins with Valentine v. Chrestensen which involved
an ordinance banning distribution in the streets of printed handbills
bearing commercial advertising material. The Court upheld the ban
simply saying: "It is enough for the present purpose that the stipulated
facts justify the conclusion that the affixing of the protest against of-
ficial conduct to the advertising circular was with the intent, and for
the purpose, of evading the prohibition of the ordinance. If that evasion
were successful, every merchant who desires to broadcast advertising

™316 U.S. 52(1942).


THE 1987 CONSTITUTION Sec. 4
282
OF THE REPUBLIC OF THE PHILIPPINES

leaflets in the streets need only append a civic appeal, or a moral plati-
tude, to achieve immunity from the law's command." It was not until
more than thirty years later, in Virginia State Bd. of Pharmacy v. Vir-
127
ginia Citizens Consumer Council, that the constitutional protection of
commercial advertising was recognized.
The Virginia State Bid case involved the advertising of prescrip-
tion drugs and affirmed that commercial advertising enjoyed First
Amendment protection. The Court reasoned:

Focusing first on the individual parties to the transaction


that is proposed in the commercial advertisement, we may assume
that the advertiser's interest is a purely economic one. That hardly
disqualifies him from protection under the First Amendment. The
interests of the contestants in a labor dispute are primarily eco-
nomic, but it has long been settled that both the employee and the
employer are protected by the First Amendment when they express
themselves on the merits of the dispute in order to influence its
outcome....

As to the particular consumer's interest in the free flow of


commercial information, that interest may be as keen, if not keener
by far, than his interest in the day's most urgent political debate
Generalizing, society also may have a strong interest in the
free flow of commercial information. Even an individual adver-
tisement, though entirely "commercial," may be of general pub-
lic interest. The facts of decided cases furnish illustrations: ... a
manufacturer of artificial furs promotes his product as an alterna-
tive to the extinction by his competitors of fur-bearing mammals,
... a domestic producer advertises his product as an alternative to
imports that tend to deprive American residents of their j o b s , . . .

Moreover, there is another consideration that suggests that


no line between publicly "interesting" or "important" commercial
advertising and the opposite kind could ever be drawn. Advertis-
ing, however tasteless and excessive it sometimes may seem, is
nonetheless dissemination of information as to who is producing
and selling what product, for what reason, and at what price. So
long as we preserve a predominantly free enterprise economy, the
allocation of our resources in large measure will be made through
numerous private economic decisions. It is a matter of public in-

'"425 VS. 748 (1976).


Sec. 4 ART. m - BILL OF RIGHTS 283

terest that those decisions, in the aggregate, be intelligent and well


informed. To this end, the free flow of commercial information is
indispensable.

Commercial speech, however, has not been accorded the same


level of protection as that given to what is called " c o r e " speech such as
political speech. Central Hudson Gas v. Public Service Commission™
set down the requirements for the protection of commercial speech.
First, the speech must not be false or misleading or proposing an il-
legal activity; second, the governmental interest sought to be served by
the regulation must be substantial; third, the regulation must directly
advance the government interest; fourth, the regulation must not be
overbroad.

In Pharmaceutical v. Secretary of Health,™ the Court found an


absolute ban on advertising breast milk substitutes as unduly restrictive
and as more than necessary to further the avowed governmental interest
of promoting the health of infants and young children.

12. Unprotected speech: libel.

Both historically and doctrinally, freedom of expression, as seen


in the preceding discussion, has never been understood to be an ab-
130
solute right. Moreover, as noted in Chaplinsky v. New Hampshire:
"There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which has never been thought to raise
any Constitutional problems." In other words, s o m e forms of speech are
not protected by the Constitution.

Two types of unprotected speech have in fact received consider-


able attention from the courts: libel and obscenity. "It has been well-
observed that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
731
social interests in order and morality." T h u s , in dealing with them
there is no call for the application of the clear and present danger rule
or the dangerous tendency rule or the balancing of interests test because

7a
4 4 7 US 557(1980).
729
Pharmaceutical v. Secretary of Health, G.R. No. 173034, October 9,2007.
,30
315 U.S. 568,571-2 (1942).
n
'ld. at 572.
THE 1987 CONSTITUTION Sec. 4
284
OF THE REPUBLIC OF THE PHILIPPINES

these are essentially methods of weighing competing values. But that


is not the end of the problem; it is merely the beginning. For there still
remains the complicated task of discovering the norms for determining
what speech is libelous or what speech is obscene.
The jurisprudence on libel has developed around the statutory pro-
visions on the subject with only occasional excursions to constitutional
issues. Libel is defined in Article 353 of the Revised Penal Code thus:

A libel is a public and malicious imputation of a crime, or of


a vice or a defect, real or imaginary, or any act, omission, condi-
tion, status, or circumstance tending to cause the dishonor, dis-
credit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead.

There is libel when the imputation is public and malicious. Pub-


licity means "making the defamatory matter, after it has been written,
known to someone other than the person to w h o m it has been written.
The reason for such rule is that 'a communication of the defamatory
matter to the person defamed cannot injure his reputation though it may
wound his self-esteem. A m a n ' s reputation is not the good opinion he
732
has of himself, but the estimation in which others hold h i m . ' " It is
malicious "when the author of the imputation is prompted by ill-will or
spite and speaks not in response to duty but merely to injure the reputa-
tion of the person who claims to have been defamed." But if speech is
not malicious even if defamatory, it is privileged. " T h e rule on privi-
leged communication is that a communication m a d e in good faith on
any subject matter in which the communicator has an interest, or con-
cerning which he has a duty, is privileged if m a d e to a person hav-
ing a corresponding interest, although it contains incriminatory matter
733
which, without the privilege, would be libelous and actionable."

The rule on privileged communication is found in Article 354(2)


of the Revised Penal C o d e . Article 3 5 4 , however, is not an exclusive
list of qualifiedly privileged communications since fair commentaries
on matters of public interest are likewise privileged. T h e concept of
privileged communications is implicit in the freedom of the press. Fair

,32
Ledesma v. Court of Appeals, G.R. No. 113216, September 5, 1997, 278 SCRA 656,
686-87.
733
Alonzo v. Court of Appeals, G.R. No. 110088, February 1, 1995,241 SCRA 51, 59-60
reiterated in Ledesma v. Court of Appeals, G.R. No. 113216, September 5,1997.
Sec. 4 ART. Ill - BILL OF RIGHTS 285

commentaries on matters of public interest are privileged and constitute


734
a valid defense in an action for libel or slander.

The principle followed is that libel is a form of expression not


735
protected by the Constitution. A n d it has been held that the evil which
the law on libel seeks to punish is not the disturbance of public or-
der caused by defamatory language but "its tendency ... to injure the
736
person defamed, regardless of its effect upon the public." Thus, it is
immediately obvious that in the matter of libel there is no occasion for
choosing between the "clear and present danger rule" or the "dangerous
tendency rule."

The characterization of libel as constitutionally unprotected


speech is easily understandable when the object of vilification is not a
public figure. A private person is entitled to the protection of his repu-
tation, and the stupidity or immorality of his acts affecting only his
private life are not of vital concern to the c o m m o n weal. But when a
person b e c o m e s a public figure, either as an occupant of or an aspirant
to a public office, the wisdom or unwisdom of his actions and the ab-
sence or abundance of his mental and moral qualifications for office, are
of vital concern to the public. H e n c e , it is in this area of the libel law
that the constitutional guarantee of freedom of expression deserves to
be carefully guarded. Two early cases serve to illustrate the allowable
limits of criticism of public figures.

In the 1909 case of US. v. Sedano,™ the subject of the prosecu-


tion was an article criticizing Rafael Palma, incumbent delegate to the
Philippine Assembly and, at the time of the publication, a candidate
for re-election. It was not denied that the publication "impeached the
honesty, virtue and reputation of [Palma] and tended to expose him to
public hatred, contempt, and ridicule by publishing to the world his al-
leged mental, moral, and physical defects." The Court enunciated the
738
rule relative to candidates thus:

734
Boijal v. Court of Appeals, GJt. No. 126466, January 14, 1999.
"'Worcester v. Ocampo, 22 Phil. 42 (1912).
,36
People v. Del Rosario, 86 Phil. 163, 1966 (1950). "The purpose of libel laws is to en-
courage victims to civil suit instead of taking the law into their own hands." U.S. v. Sotto, 38 Phil.
666,676(1918).
737
14 Phil. 338 (1909).
™ld. at 341-2. Another rule for the conduct of political campaigns a rule which is now a
dead letter, was established in People v. Titular, 49 Phil. 931 (1927). Upheld by the decision was
a statute which punished anonymous criticism of candidates by means of posters and circulars.
THE 1987 CONSTITUTION Sec. 4
286
OF THE REPUBLIC OF THE PHILIPPINES

But while it may be admitted that the public acts of public


men may lawfully be made the subject of comment and criticism
by the public and by the press, and that such criticism, when made
in good faith, should be and is privileged; and while it may, per-
haps, also be admitted that a somewhat broad license should be
allowed to criticisms of and comment on the mental, moral, and
physical fitness of candidates for public office, the very fact of
candidacy putting these matters in issue, and the public having a
right to be informed as to the qualifications of those who seek elec-
tion, and perhaps appointment to public office, nevertheless it is
clear upon general principle ... that such comment or criticism, if
defamatory in its nature, constitutes a criminal libel if it appears
that it was actuated by actual or express malice; that from the very
nature of the privilege claimed the freedom of such criticism is
necessarily limited to fair comment. ... fair comment being com-
ment which is true, or which, if false, expresses the real opinion
of the author, such opinion having been formed with a reasonable
degree of care and on reasonable grounds; and that such criticism
cannot be used as a cloak for malicious assaults on the private life
and character of the person criticized.

The accused was convicted.

In US. v. Contreras,™ the case w a s one of libel of the governor


of the province of A m b o s Camarines. In convicting the author of the
740
publication, the Court said:

Men have the right to attack, rightly or wrongly, the policy


of a public official with every argument which ability can find and
ingenuity can invent. They may show, by argument good or bad,
such policy to be injurious to the individual and to society. They
may demonstrate by logic true or false, that it is destructive of hu-
man freedom and will result in the overthrow of the nation itself.
But the law does not permit men falsely to impeach the motives,

For such criticism to be punishable, the law did not even require that the language be defamatory.
What it intended to punish, said the Court, was the anonymous character of the criticism. Such
criticism, according to the Court, tended to mislead the voters and tended to injure and defeat a
candidate while at the same time denying him the opportunity of searching out his detractors and
answering them. Id. at 937. The law, therefore, was a rule of fair play. And the Court did not find
it suppressive of public opinion because it left the citizen free to assert himself fearlessly during
election campaigns, "if he possessed the valor to do so under his individual responsibility." Id. at
938. The ruling was reiterated in Diaz v. People, 67 Phil 432 (1939)
7M
2 3 Phil. 513 (1912).
740
W. at 516. See U.S. v. Perfecto,43 Phil. 58 (1922).
Sec. 4 ART. i n - BILL OF RIGHTS

attack the honesty, blacken the virtue, or injure the reputation of


that official. They may destroy, by fair means or foul, the whole
fabric of his statesmanship, but the law does not permit them to at-
tack the man himself. They may falsely charge that his policies are
bad, but they may not falsely charge that he is bad.

What the Court has done in these two cases is to compartmental-


ize the life of a public figure into three possible objects of criticism:
his public and official acts, his "mental, moral and physical fitness" for
office, his strictly private life. W h e n the object of criticism is his strictly
private life, defamatory imputations are not constitutionally protected
expression. W h e n , however, his public acts are the object of criticism,
constitutional immunity applies. Sedaho says that "public acts of pub-
lic men may lawfully be m a d e the subject of c o m m e n t and criticism."
W h e n such c o m m e n t or criticism is done in good faith, it is privileged.
Contreras even goes a step further in that it protects criticism of official
acts even when the criticism is done in bad faith: "They may destroy
by fair means or foul, the whole fabric of his statesmanship." When,
finally, the object of the criticism is a public person's "mental, moral,
or physical fitness" for office, criticism, while liberally treated, enjoys
constitutional protection only when it is fair. And Sedano says that fair
criticism means c o m m e n t "which is true, or which, if false, expresses
the real opinion of the author, such opinion having been formed with a
reasonable degree of care and on reasonable grounds." True criticism,
therefore, of a person's fitness for office is always fair and, therefore,
privileged; false criticism is not privileged if malicious, that is, when
used as a cloak for assaults on a person's private life. Hence, good faith
is always a valid defense in a suit for defamatory imputations against a
person's moral, mental or physical fitness for office.

The early Philippine cases on libel were decided under Act No.
2 7 7 , the Libel Law in effect prior to its incorporation into the Revised
Penal Code. Three sections of this law are important for an understand-
ing of the role of malice or absence of good faith in libel prosecutions.
Section 3 apportioned the burden of proof: "An injurious publication is
presumed to have been malicious if no justifiable motives for making it
are .shown." Section 4 set out the requisites for a valid defense:

In all criminal prosecutions for libel the truth may be given


in evidence to the Court, and if it appears to the Court that the
matter charged as libelous is true and was published with good
THE 1987 CONSTITUTION Sec. 4
288
OF THE REPUBLIC OF THE PHILIPPINES

motives and for justifiable ends, the party shall be acquitted; other-
wise, he shall be convicted; but to establish this defense, not only
must the truth of the matter so charged be proven but also that it
was published with good motives and for justifiable ends.

Section 9 contained the provision on "privilege":

A private communication made by any person to another in


good faith, in the performance of any duty, whether legal, moral,
or social, solely with the fair and reasonable purpose of protecting
the interests of the person making the communication, or in the
interests of the person to whom the communication is made, is a
privileged communication, and the person making the same shall
not be guilty of libel within the provision of this Act.

By a laborious process of interpretation of the apparent clash of


privilege and presumptions in these three sections of the Libel Law, the
Court arrived at what basically is still the present doctrine on libel.
1 1
Unnecessarily, perhaps, the 1903 case of US. v. Lerma * created
some confusion. The case was a prosecution arising out of a petition
written by the defendant to the local justice of the p e a c e . Several crimi-
nal cases were at that time pending against the defendant before this
same judge. The petition stated that it was rumored that a plan had been
formed to prosecute the petitioner for the purpose of discrediting his
candidacy for the governorship of the province. He attributed the ru-
mored prosecutions to the malicious machinations of certain provincial
officials naming especially the governor and the provincial fiscal. He
considered the rumored accusations fabricated and the testimonial af-
742
fidavits extorted.

From the evidence presented during the trial, the Court concluded
that "the circumstances of the case showed quite conclusively that the
sole motive of the defendant in presenting the petition w a s to defend
743
himself against those charges." Looking to Section 3 of the Libel
Law, the Court saw in it the rule that whether the imputations m a d e
were true or untrue, the existence of justifiable motives was an absolute
744
defense. T h e accused therefore was acquitted.

74l
2 Phil. 254 (1903).
li2
ld. at 255-6.
743
Id. at 259-60.
7
"Id. at 257-8. J. Willard, at 260-4 and J. Cooper, at 264-5, concurred, but both contended
that Section 3 was merely a rule of evidence and its function was to fix the burden of proof and not
to make justifiable motive and absolute defense.
Sec. 4 ART. Ill - BILL OF RIGHTS 289

In refusing to consider the truth or untruth of the allegations of


L e r m a , did the Court run counter to the requisites for a valid defense
in Section 4 of the Libel L a w ? It seems that it did not. A careful read-
ing of Section 4 will reveal that it does not require truth as an essential
element for a valid defense. W h a t it does say is that truth alone, un-
accompanied by good motives and justifiable e n d s , is not a sufficient
defense. But was it not said in the analysis of the Sedaho case that true
criticism of a person's fitness for office is always fair and therefore a
valid defense by itself? T h e meaning of this conclusion in the analysis
of the Sedaho case is that truth of the criticism of a person's fitness for
office justifies itself because of the public interest in the preservation of
the integrity of the office.

While the conclusion arrived at in U.S. v. Lerma was sound, it was


unfortunate in that the conclusion was reached by looking to Section 3
alone and seeing in it the establishment of "justifiable motives" as an
absolute defense. This view of Section 3 may perhaps be attributed to
the misleading awkwardness of its formulation. But its proper role in
libel prosecutions seems to have been better understood in the 1909
745
case of US. v. Bustos.

The Bustos case was a prosecution for a written statement made


to the Secretary of Justice impeaching the honesty and reputation of a
judge and a fiscal. Bustos admitted that the letter was defamatory in
content but he claimed that the communication was privileged because
74
it was done in good faith. * Was such an initial showing of justifiable
motives an absolute defense on the basis of Section 3? The Court an-
swered that it was not. The proper function of Section 3 was to relieve
the prosecution of the burden of proving malice whenever the utterance
w a s , on its face, defamatory and no justifiable motives were shown. If
justifiable motives were shown, the only effect this had was to rebut
the prima facie presumption of malice in law. Then the prosecution
must come up with proof of malice in fact to rebut the prima facie
proof of justifiable motives. "When malice in fact is shown to exist the
publisher cannot be relieved from liability by a pretense of 'justifiable
motives.' Section 3 relieves the plaintiff from the necessity of proving
malice simply when no justifiable motives are shown, but it does not

13 Phil. 690 (1909).


7d\at695.
290 THE 1987 CONSTrrUTlON Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

relieve the defendant from liability under the guise of 'justifiable mo-
tives' when malice actually is proved." Neither truth, the Court said, nor
1 1
qualified privilege could be a defense against proven malice in fact. *
And the Court found that there was malice in fact because during the
trial the defendant had admitted that "he had personally made no in-
vestigation with reference to the truth of the statements made in said
748
communication ."
While the Bustos decision was not unanimous, the objection
raised by the dissent was not against the role the majority had given to
"malice in fact." Rather, it was against the interpretation given to the
"qualified privilege" found in Section 9. T h e purpose of Section 9, ac-
cording to the majority, "was to permit all interested persons or citizens
with grievances, to freely communicate, with immunity, to the persons
who could furnish the protection asked for, requiring, however, at all
times that such petitions or communications shall be m a d e in good faith
749
or 'with justifiable m o t i v e s . ' " The majority, however, did not consider
750
the Secretary of Justice a person who could give the relief expected.
Moreover, the Court said that the publication had not been m a d e , in the
language of the statute, "for the sole purpose of protecting the interests
of the Secretary of Finance and Justice, to w h o m it was m a d e , " but
merely to have one "Jose Rivera brought to trial upon a charge of the
751
crime of robbery."

The burden of Justice C a r s o n ' s dissent in Bustos w a s that the de-


cision placed "almost insurmountable difficulties in the way of clean
administration of government in these Islands, and materially abridged
the right of the people to petition the G o v e r n m e n t for redress of griev-
ances, and seek relief from the abuses at the hands of those set in author-
752
ity over them." Carson suggested that the accused, as a citizen of the
province and as a litigant in the courts of that province, had an interest
753
in the removal of incompetent and corrupt officials in the judiciary.

141
Id. at 697-98.
la
Id. at 703.
74,
W.at701.
750
W.at703.
75,
W. at 719-20.
'"Id. at 703.
753
W. at 719-20.
Sec. 4 ART. i n - BILL OF RIGHTS 291

754
A second Bustos case c a m e nine years later, and its view on
qualified privilege was along the lines of Carson's thinking. The charg-
es which were m a d e the basis of the prosecution for libel were misfea-
sance and malfeasance in office. These charges, accompanied by affi-
755
davits, were sent to the Executive Secretary. This time the Court said:

It is true that the particular words set out in the information,


if said of a private person, might well be considered libelous per
se. The charges might also under certain conceivable conditions
convict one of libel of a government official. As a general rule
words imputing to a judge or a justice of the peace dishonesty or
corruption or incapacity or misconduct touching him in his office
are actionable. But as suggested in the beginning we do not have
at present a simple case of direct and vicious accusations published
in the press, but of charges predicated on affidavits made to the
proper official and thus qualified privileged. Express malice has
not been proved by the prosecution. Further, although the charges
are probably not true as to the justice of the peace, they were be-
lieved to be true by the petitioners. Good faith surrounded their
action. Probable cause for them to think that malfeasance in office
existed is apparent. The ends and the motives of these citizens —
to secure the removal from office of a person thought to be venal-
were justifiable. In no way did they abuse the privilege. ...

756
H o w did this differ from the first Bustos case? The court said:
" . . . in the Julio Bustos case we find wild statements, with no basis in
fact, m a d e against reputable members of the judiciary, 'to persons who
could not furnish protection.'" It seems, however, that Justice Carson,
757
in his concurrence, is more correct: "The truth is that the doctrine in
the former Bustos case has long since been abandoned by this Court;
and in my opinion it would make for the more efficient administration
of the Libel Law in these Islands to say so, in so many words."
T h e present law on presumption of malice and on qualified privi-
lege is now found in Article 3 5 4 of the Revised Penal Code. It reads:

7i4
U.S. v. Bustos, 37 Phil. 731 (1918).
m
ld. at 744. In US. v. Canete, 38 Phil. 253 (1918), the privilege was applied to communi-
cation to religious superior.
756
W.at745.
757
W., citing U.S. v. Sedafio, 14 Phil. 338. 339 (1909); U.S. v. Contreras, 23 Phil. 513
(1912); U.S. v. Montalvo, 29 Phil. 595 (1915); U.S. v. Galeza, 31 Phil. 365 (1915).
THE 1987 CONSTITUTION Sec. 4
292
OF THE REPUBLIC OF THE PHILIPPINES

Every defamatory imputation is presumed to be malicious,


even if it be true if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to an-
other in the performance of any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative, or other official
proceedings which are not of confidential nature, or of any state-
ment, report, or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of their func-
tion.

The Court had occasion to apply this provision in the 1962 case of
15
Policarpio v. Manila Times Publishing Co. " and the results are not too
encouraging for the Philippine press. Policarpio was Executive Secre-
tary of the U N E S C O . In that capacity, she worked under the Executive
Office of the Philippine government. An article was published in the
Saturday Mirror imputing various acts of dishonesty to her, much of
which were untrue. Policarpio sued for damages and the Court, finding
for her, said:

It goes without saying that newspapers must enjoy a certain


degree of discretion in determining the manner in which a given
event should be presented to the public, and the importance to be
attached thereto as a news item, and that its presentation in a sensa-
tional manner is not per se illegal. Newspapers may publish news
items relative to judicial, legislative, or other official proceedings,
which are not of a confidential nature, because the public is en-
titled to know the truth with respect to such proceedings, which,
being official and non-confidential, are open to public consump-
tion. But to enjoy immunity, a publication containing derogatory
information must be not only true but, also, fair, and it must be
made in good faith and without comments or remarks.

It will be noted that the n o r m s for immunity used by the Court


in this civil suit for damages were those of Article 354 of the Revised

ln
L-16027, May 30, 1962. See also Imperial v. Ziga, L-19726, April 13, 1967, where ac-
tual malice was proved. In Barretto v. Philippine Publishing Co.. 30 Phil. 8 8 , 9 (1915), it was held
that publication of allegations in the pleadings is not privileged if made before the case comes to
trial. Reiterated in Choa Tek Hee v. Philippine Publishing Co., 34 Phil. 447 (1916). Allegations in
the pleadings, however, are absolutely privileged. People v. Aquino, L-23908, October 29, 1966.
See also Zurbito v. Bayot, 20 Phil. 219, 220-1 (1911).
Sec. 4 ART. Ill - BILL OF RIGHTS 293

Penal C o d e . T h e Court, moreover, pointed to the presumption of malice


in Article 354: "Every defamatory imputation is presumed to be mali-
cious, even if it be true, if no good intention and justifiable motive for
making it is s h o w n , e x c e p t . . . " in the enumerated instances of qualified
privilege. No distinction was m a d e whether the subject of defamatory
statement was a public officer or a private person. What is more dis-
turbing, however, is that, besides the presumption of malice, the Court
now requires truth as an element of a valid defense: "a publication con-
taining derogatory information must not only be true but, also, fair"
Moreover, added to this requirement of truth in reporting, the Court also
introduced an interesting novelty which might be labeled "libel by neg-
ligence." Pointing to the omissions in the newspaper report which con-
tributed to the unfair picture created by the article, the Court said that
if the publisher was aware of the facts suppressed, there was malice; if
unaware, w h e n , under the facts, the truth could have been verified, the
publisher was guilty of negligence and was liable under Articles 2176,
2 1 9 4 , 2 2 0 8 and 2219 of the Civil C o d e ! Apparently, while malice is an
essential element in libel as a crime, negligence suffices to justify an
award in a civil suit — a dangerous doctrine, indeed, if applied to the
press!

159
The case of Lopez v. Court of Appeals penned by Justice Fer-
nando, does not depart from the Policarpio rule. Here Fernando takes
his turn to play the part of Byron's Julia saying "I'll ne'er consent" but
nonetheless consenting. Fernando quoted with approval the rule estab-
160
lished in the landmark 1964 case of New York Times v. Sullivan: "The
constitutional guarantees require, we think, a federal rule that prohibits
a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was
made with 'actual malice' — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not." Fernando also
16
agreed with the later rule in Curtis Publishing Co. v. Butts ' extending
the New York Times rule to statements referring to public figures regard-
less whether or not they are public officials. The rationale behind this
rule is that, in the discussion of public issues, the issues cannot be fully
meaningful unless reference is made to the men involved on both sides

"•34SCRA 116(1970).
7
«°376 U.S. 254,279-80 (1964).
,6
'388U.S. 130(1967).
294 THE 1987 CONSTITUTION Sec. 4
OF THE REPUBLIC OF THE PHILIPPINES

762
who may not necessarily be public officials. Nonetheless, Fernando
awarded damages in this action for libel arising from the publication in
a weekly magazine of plaintiff's photograph erroneously captioned as
that of the person responsible for a widely publicized hoax. In justifi-
cation of the award, Fernando said: "Here there was no pressure of a
daily deadline to meet, no occasion to act with haste as the picture of
763
respondent was published in a weekly magazine."

At this point, it may be worthwhile to review the development


which the New York Times decision has undergone. T h e privilege pro-
tected under the New York Times case was conditioned upon the status
of the complainant, that is, that he be a public officer. Butts extended
the rule to statements affecting public figures. Both cases underscored
the vitality of the "profound national corninitment to the principle
that debate on public issues should be uninhibited, robust, and wide
764
open." But as the Supreme Court would later say, in Rosenbloom v.
165
Metromedia:

If a matter is a subject of public interest, it cannot suddenly


become less so merely because a private individual is involved, or
because in some sense the individual did not "voluntarily" choose
to become involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and the con-
tent, effect, and significance of the conduct, not the participant's
prior anonymity or notoriety.

Whence it was easy for the Court to arrive at the final conclusion:
"We honor the commitment to robust debate on public issues ... by
extending constitutional protection to all discussion and c o m m u n i c a -
tion involving matters of public or general concern, without regard to
whether the persons involved are famous or a n o n y m o u s . " Rosenbloom,
166
however, was rejected by Gertz v. Welch, Inc. and for all practical pur-
poses the basis for diverse treatment is still the status of being a public
official or a public figure.

As to Philippine jurisprudence, however, the general rule remains:


every defamatory imputation is presumed to be malicious. But the New

762
34 SCRA at 126.
763
W. at 128.
764
New York Times Co. v. Sullivan, 376 U.S. at 270-271
7
"403 U.S.29(1971).
7<
*418 U.S. 323 (1974).
Sec. 4 ART. Ill - BILL OF RIGHTS 295

161
York Times rule was finally accepted in Borjal v. Court of Appeals and
6
Jalandoni v. Drilon: " The Court even applied the rule to a defamatory
769
imputation against a lowly baranggay official!

T h u s , it is firmly established now that Public officials must prove


actual malice in order to recover damages for alleged libel. But, al-
though Japan Airlines (JA) is not a public official, it was deemed cov-
ered by the rule already enunciated in the early case of Borjal v. Court
of Appeals. T h e rule on privileged commentaries on matters of public
interest applies to it. The privilege applies not only to criticism of public
officials but extends to the criticism of a great variety of subjects, and
includes matters of public concern, public m e n , and candidates for of-
770
fice.

However, public figures are not unprotected. Although a wide lati-


tude is given to critical utterances m a d e against public officials in the
performance of their official duties, or against public figures on matters
of public interest, such criticism does not automatically fall within the
ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officer's performance of his duties
or irrelevant to matters of public interest involving public figures, the
same may give rise to criminal and civil liability. While personalities in
the entertainment business, media people, including gossip and intrigue
writers and commentators, do not have the unbridled license to malign
their honor and dignity by indiscriminately airing fabricated and mali-
771
cious comments.

Similar result was found in Tulfo v. People, where the Court found
that the article of a columnist was not "consistent with good faith and
reasonable care. The writer had abandoned his responsibility to verify
772
his story.

But a network telecast reporting alleged anomalies in the Medical


Board exams is not necessarily libelous where the report is based on

7 7
* G.R. No. 126466, January 14, 1999.
7 M
G.R. Nos. 115239-40, March 2,2000.
'« Vasquez v. Court of Appeals, GJt. No. 118971, September 15,1999.
770
JAL v. Simangan, G.R. No. 170141, April 22,2008.
771
Feremin v. People,G.R. No. 157643, March 28,2008.
772
G JR. No. 161032, September 16,2008.
THE 1987 CONSTITUTION Sec. 4
296
OF THE REPUBLIC OF THE PHILIPPINES

the content of the complaint filed in court. Malice means the offender is
7
prompted by ill-will or spite with intent to injure. "

13. Unprotected speech: obscenity.


There is not one reported decision of the Philippine Supreme
Court involving obscene literature. There are in fact only three report-
115
ed obscenity decisions: People v. Kottinger,™ People v. Go Pin, and
n
People v. Padan: The first was a prosecution under Section 12 of Act
No. 277 and the last two under Article 201 of the Revised Penal C o d e .

The statutes cited do not attempt to define obscenity. This is be-


cause, in the words of the Supreme Court, "The words 'obscene or in-
decent' are themselves descriptive. They are words in c o m m o n use and
777
every person of average intelligence understands their meaning." The
Kottinger case, however, did make an attempt at definition by borrow-
ing from American jurisprudence: "The word ' o b s c e n e ' and the term
'obscenity' may be defined as meaning something offensive to chastity,
decency or delicacy. 'Indecency' is an act against good behavior and a
778
just delicacy." It is a definition which is very broad, very untechnical
and most unhelpful. Subsequent decisions have not added to it anything
in the way of improvement.

The chief contribution of the Kottinger case to Philippine juris-


prudence consists in the obscenity tests which it likewise borrowed
779
from American jurisprudence:

... [T]he test ordinarily followed by the courts ... is whether


the tendency of the matter charged as obscene is to deprave or cor-
rupt those whose minds are open to such immoral influences and
into whose hands a publication or other article charged as being
obscene may fall. Another test of obscenity is that which shocks
the ordinary and common sense of men as an indecency.

773
GMA Network v. Bustos, G.R. No. 146848, October 17,2006
774
45 Phil. 352 (1923).
775
97 Phil. 418 (1955).
™98 Phil. 749 (1957).
777
People v. Kottinger, supra. Note 180, at 357
77e
W. at 356.
m
ld.
Sec. 4 ART. Ill - BILL OF RIGHTS 297

These are the tests still followed by Philippine courts.


lw
The case of People v. Go Pin has two noteworthy contributions
to offer: a relative theory of obscenity and a theory of redeeming social
values. The case involved movie shorts which the lower court charac-
terized as possessing "only slight degree of obscenity, indecency and
immorality." We are not told, however, in what this obscenity precisely
consisted. T h e accused had pleaded guilty to a charge under Article 201
of the Revised Penal C o d e . In upholding the lower court's decision the
781
Supreme Court m a d e these observations on the exhibition of nudes:

... [I]f such pictures, sculptures and paintings are shown in


art exhibits and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not
exacdy for art's sake but rather for commercial purposes. In other
words, the supposed artistic qualities of said pictures were being
commercialized so that the cause of art was only of secondary or
minor importance.

T h e Court further said that those who went to see the pictures
upon payment of a fee were most likely more interested in "satisfy-
ing their morbid curiosity and taste, and lust, and love for excitement,
including the youth w h o , because of their immaturity, are not in a posi-
tion to resist and shield themselves from the ill and perverting effects
782
of these pictures."
There seems to be in this decision a definition of a crime — the
crime of commercially offering material dealing with sex to satisfy
"morbid curiosity and taste, and lust and love for [sexual] excitement."
The decision thus suggests that material dealing with sex, which may be
legitimate material under certain circumstances, can be the subject of a
crime if exploited for illegitimate purposes. Thus, the outcome is made
to depend not so much on the character of the object itself as on the
783
manner of purveyance and on the intended audience. This does not
mean, however, that under such a dispensation the law can do without

™°Supra, note 181.


'"Id. at 419.
ln
ld. footnote 20.
783
This is but another way of saying that in a prosecution for obscenity it is not a picture
publication which is on trial but a person. The central issue is the conduct of the defendant.
THE 1987 CONSTITUTION Sec. 4
298
OF THE REPUBLIC OF THE PHILIPPINES

a satisfactory definition of or test for obscenity or that the intent of the


purveyor is always material. When the material being purveyed by the
defendant is patently obscene, proof of criminal intent is unnecessary. It
is only in borderline cases that the relative obscenity theory should find
application. The second contribution of the Go Pin cases is its recogni-
tion of redeeming aesthetic values. It recognizes that there are people
who can perceive "the element of art" and derive legitimate aesthetic
"inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness as models or in tableaux vivants." There,
however, the Court stops; it does not say when alleged art is really mas-
queraded pandering to the baser passions.
784
The Padan case does not help to clarify this question in spite of
its reiteration of the theory of redeeming values. The defendants in this
case were prosecuted for performing carnal intercourse for the benefit
of paying viewers. The Court concluded that the act inspired and caused
"nothing but lust and lewdness" and, therefore, w a s obscene.

Against the relative paucity of Philippine literature on obscenity,


one may compare the abundance of American material. A survey of
American material on what Justice Harlan has characterized as "the
785
intractable obscenity p r o b l e m " should help underscore the delicate
problem of balancing freedom of speech and of the press against the
duty of the state of providing a wholesome atmosphere of public moral-
ity.

In Roth v. United States, which definitively established "that o b -


scenity is not within the area of constitutionally protected speech or
786
press," the Supreme Court defined obscenity as "material which deals
787
with sex in a manner appealing to prurient interest." This w a s further
explained in a footnote as "material having a tendency to excite lustful
788
thoughts." The Court likewise cited Webster's definition of "pruri-

1M
Supra, note 182. The Court said: "In those cases [stills and moving pictures], one might
yet claim that there was involved the element of art; that connoisseurs of the same, and painters
and sculptors might find inspiration of the showing of pictures in the nude, or the human body ex-
hibited in sheer nakedness as models or in tableaux vivants. But an actual exhibition of the sexual
act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for
art. ..."U. at 752.
"'Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 704 (1968)
7
"*354 U.S. 476,484-5 (1957).
7,7
W.at487.
m
ld.
Sec. 4 ART. m - BILL OF RIGHTS 299

ent": " . . . Itching, longing; uneasy with desire or longing; of persons,


having itching, morbid, or lascivious longings; of desire, curiosity, or
7 8 9
propensity, lewd ... " It likewise accepted the definition of obscenity
suggested in the American L a w Institute's Model Penal C o d e , s 207 10
(2):

... [A] thing is obscene if, considered as a whole, its pre-


dominant appeal is to prurient interest, i.e., a shameful or morbid
interest in nudity, sex, or excretion, and if it goes substantially be-
yond customary limits of candor in description or representation
79
of such matters... . °

These explanations and sub-explanations, however, do not serve


as convenient guides for the classification of material presented for ad-
judication. For this reason, courts have invariably resorted to various
tests in the form of verbal formulae by means of which they evaluate
the " o b s c e n e " contents of a piece of writing. In 1868, in the English
case of Regina v. Hicklin, which arose out of a prosecution for obscene
libel for the publication of an anti-Catholic piece entitled "The Confes-
sional U n m a s k e d , " Lord Cockburn wrote out the verbal formula now
k n o w n as the Hicklin rule:

I think the test of obscenity is this, whether the tendency


of the matter charged as obscene is to deprave and corrupt those
whose minds are open to such immoral influences, and into whose
791
hands a publication of this sort may fall.

789
w.
"'L.R. 3 Q B . 3 6 0 ( 1 8 8 6 ) . For purposes of criminal prosecution, the English practice seems
to be different from the American. In the former, there is a presumption that the accused intended
the consequences of his act. The presumption, however, is not irrebuttable." The presumption
of intention is not a proposition of ordinary good sense." (Hosegood v. Hosegood 1 TX.R. 7 3 5
( 1 9 5 0 ) . One judge expresses this presumption thus: "... when, from the act committed, an immedi-
ate intention of a particular character would be implied, the party doing the act is not exempted by
reason of some other paramount intention of a different description, which actually operated upon
his mind. The only question, therefore, would appear to be, what is the intention which may fairly
be implied from the act of offering for indiscriminate sale a work dealing with subjects of a filthy
nature. (Steele v. Brannan LJR. 7 CP. 2 6 1 , 2 7 1 [ 1 9 7 2 ] ) . See J.E. HALL WILUAMS, OBSCENITY IN MOD-
ERN ENCUSH LAW 20 LAW AND CONTEMPORARY PROBLEMS 6 3 4 - 5 ( 1 9 5 5 ) . American law, on
the other hand, requires of the prosecution a showing of scienter. The reason: "By dispensing with
any requirement of knowledge of the contents of the book on the part of the seller, the ordinance
tends to impose a severe limitation on the public's access to constitutionally protected matter. For
if the bookseller is criminally liable without knowledge of the contents and the ordinance fulfills its
purpose, he will tend to restrict the books he sells to those he has inspected; and thus the state will
THE 1987 CONSTmrriON Sec.4
300
OF THE REPUBLIC OF THE PHILIPPINES

The Hicklin rule was adopted by some American courts and ig-
nored by many. The chief criticism leveled against it was that, by mak-
ing the minds of susceptible persons the gauge for censorability or
non-censorability of materials, the rule reduced adult reading "to the
standards of a child's library in the supposed interest of a salacious
few." Hence, this aspect of the Hicklin rule was finally rejected by the
U.S. Supreme Court in Butler v. Michigan. Speaking for a unanimous
court, Mr. Justice Frankfurter said that to quarantine "the general read-
ing public against books not too ragged for grown men and women in
order to shield juvenile innocence" is "to b u m the house to roast the
:
pig."^ The gauge which many courts found more acceptable was the
"average" or "normal" person. Judge Woolsey described such a per-
son as one "with average sex instincts — what the French would call
Vhomme moyen sensuel — who plays, in this branch of legal inquiry,
the same role of hypothetical reagent as does the 'reasonable m a n ' in
the law of torts and 'the learned man in the arts' on question of inven-
793
tion and patent law."

The Hicklin rule, moreover, as adopted by some American courts,


admitted the "isolated passages test," i.e., a book could be rejected on
the basis of isolated obscene passages without regard to the total effect
of the entire work. Already,