FUNDAMENTAL PRINCIPLE AND STATE POLICIES

This evening we will be discussing on major principles and policies in the constitution and
following that, we will also be discussing the principle of separation and blending of powers next.

But tonight, we will focus on the major principles and policies that are found in the constitution,
particularly on Article 2 of the Constitution “Principles and Policies of the State”

Lecture Proper:
First thing that we have to talk about is the authorship of the Constitution.

Who is the author of the constitution?

The Preamble in the constitution speaks of the authorship, speaks of the people as the
primary authors of constitution and that everything that you are going to learn in the constitution is
actually a manifestation of the sovereign power of the people. (Memorize Preamble)

The preamble starts with the word “we” to indicate the author of the constitution, we as the
people. And of course, the fact that the constitution was conceived, by the constitutional convention of
1986, they were eventually ratified by the people through a plebiscite which actually an exercise of
the right of the people of suffrage, whether they would agree or not agree by the provisions of the
constitution.
After having ratified the constitution, the people has mandated for all the government
instrumentalities and agencies to promulgate and ordain the constitution.

The Preamble is not a source of vested right

As the word suggest, it is a preamble or to walk before. When we say “pre” that is
before. And when we say preamble, it comes from the Latin Ambulario, means to walk. Preamble
mean to “walk before”.
While it is not a source of vested rights, it actually provides for an introduction to what you
were going to learn and study in constitutional law. It already provides for what we are going to expect
when we eventually read the full text of the constitution. Because its already there that we are going
to see the primary aims and aspiration of the people and for us to be able to understand.

At what perspective are we going to study and construe the provisions of the constitution, so
that’s the very purpose of the Preamble.
Aside from telling us who the author of the constitution is, it also gives us direction in
understanding the provisions of the constitution.
So that’s the preamble.

Under article 2 of the constitution is actually a myriad of “Principles and Policies” that we are
going to learn. This number of principles and policies of the state are things that are taken in a
context of trying to help us understand also what should be the stand point of the state as well as the
government in matters of principles and policies.

That’s why, most of these cases are not really self-executing provisions but more of a non
self-executing provisions because they form part of a declaration only. However, most of the
provisions of article have a correlated provision or could be correlated in other provisions of the
constitution in order that these provisions may be given into effect.
 ARTICLE 2

SECTION 1: The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.
- It is actually a restatement of 1973 constitution on the kind of State and Government that
we have. (1st sentence of Section 1)
- The Philippines is not a pure democracy. Because when we say democracy, we are looking
at the people as the, the people would be the direct participants in the running of the
government.
- Its not pure democracy
It is also a Republican State
- That’s why we have representatives, the people are represented in the government.
- Republicanism as well as Democracy
What is the essence of Republicanism?
- The essence of Republicanism is representation and renovation.
- It means that we the people, would select a number of representatives who would
represents them in their affairs and renovations.
- That is after a time being, after being been selected, the people have the right now to
change their representatives.
- That’s why the essence of republicanism is representation as well as renovation.
o The right of the people to choose and the right of the people to change what they
have chosen. That’s why we cannot separate the essence of republicanism from the
right of suffrage. The right of the people to vote.
o In the exercise of the right to vote that the essence of republicanism is materialized.
o It is thru election that we experienced this republicanism.
o That’s why from the grassroots to the highest level, we can always say that it all
started with the people.
 How was senate president was elected? The election of the senate President
was by majority vote of the members of the senate, and who were the
members of the senate, the senators, and who are the senators, these are
the chosen by the people who cast their votes during the election.
o If the people would not want them already in the government, simple thing to do is to
remove them or if they are not a political post, or just civil post, you can be removed
thru other means of removal allowed by law.
By republicanism
- We refer to the fact that we always look into the will of the people.

How do we understand if it’s the will of the people?

- The voice of the People is the supreme law “Vox populi supreme est lex”

 This is known by the rule on majority. Since we are not a pure democracy but also a republican
state, then this is now realized thru the rule of the majority which exemplifies the meaning of
the will of the people.
What is majority?
Under normal understanding it is 50 plus 1. If you get 51 votes, then it would be majority.
That’s what you call simple majority.

There is also other majority that may not also require, that it should be beyond 50 percent, it
could even be below 50 percent. Even a lower than 50 percent can be considered a majority, like for
example in an election where there are 3 candidates for the position of a mayor. Plurality of Votes
(There are several candidates, the one who will get the highest vote will win)
 We also discuss Special Majorities/QUALIFIED that we have learned in cases of amendment
or revisions. In calling for a constituent assembly there is a need of a ¾ vote, or for call constitutional
convention there is a need for 2/3 vote. That is a special majority, this is also considered as the will of
the people, the will of the people, the rule of majority.

Can there be a majority of 1?

It is still possible. If you stand by your own decision, even if your only 1. That vote of yours will
be considered as the will of majority.
- Example
o In the trial before Sandiganbayan, there are certain instances like to a decree for the
sentences. If you are found guilty, there is a necessity for a unanimous vote. Any
decent by one will not constitute a guilty verdict because of the requirement of
unanimity. If there will be one decent, that one decent will already be considered as
majority of one in order to protect certain rights or the protection of rights under the
constitution.
So these are the examples of the will of the majority as maybe found in a Republican State.
So, we have learned already that the authorship of the constitution is the people. And because
of the authorship of the people we have a republican and a democratic state.

-Under Article 2 Section 1, after we say that the Philippines is a democratic and republican
state, there is a continuation which says that “sovereignty resides in the people”
The individual person becomes part of the sovereignty of the whole. Even you and me as an
individual, partakes the sovereignty of the state because sovereignty resides to the people.
That is why it is difficult to abandon an individual in a state. The state or the government
cannot abandon even a single person, because that single person also partakes in the
sovereignty. And the very source of authority is from the people.
- In fact the people limits the official dam (not sure) the exercise of the official dam is limited
by the people. And all government functionaires and public officials are accountable to the
people.
- That’s why if you enter politics/government and considered as public official. You are
always accountable to the people. Because the reason why you are in the government,
because you were placed there by the people.
Important Aspect of Republicanism
- No one is above the law,
- Even the Supreme Court is not above the law
- Even the President is not above the law
o In a republican state, all of us must bend to the majestic power of law. And no
matter how good and noble your intention is, if it’s not allowed by law. That
cannot be allowed, that cannot be sustained by the courts. If it’s against the
law, and not authorized by the law, then it would be susceptible to being
declared null and void.

CASE:
Villa Vicencio vs Lucban

FACTS:
The mayor of Metro Manila, deported prostitutes from manila and transferred them to Davao
City. His intention was to free Manila from prostitution and immorality. The act was question, one of
which is it violates the constitutional rights of our freedom of aboard and the right to travel. But the
very important lesson here in this particular case is, the Supreme Court held that the act of the mayor
was invalid, because there was no law or even ordinance to transfer that authorize the transfer the
prostitutes from manila to Davao.
And the SC said “No matter how noble the intention of the mayor, that cannot be sustained.
Because we are a government of laws and not of man.
That’s the very essence of republicanism.

SECTION 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 the nations.

 It’s the policy of the state to renounce war.

 And if you are going to relate this also to other provisions of the constitution
o Art. 2 Sec. 7 Independent Foreign Policy
o Sec 8 Policy of the state against Nuclear Weapons
o Art 17 Transitory Provision on the US bases agreement.
Article 2 Section 2 is the policy of the state to renounce war and in connection with that, the state
should pursue a foreign policy that would promote its position renouncing war.
- That is why we avoid, we don’t want to store nuclear weapons here, because that would led
to war.
- We maintain a friendly relationship between states to avoid war.
-
Section 7 and 8 – is the manifestation of the policy against war.

However, it doesn’t mean that if our state is attacked, we will not engage in war with the state who
attack us. What Art 2 Section 2 of the constitution speaks of war is “offensive war” Section 2 refers
to an offensive war but not with respect to a defensive war. If we are attacked by other state, we
are justified in doing counter attack. In this way, we are just preserving the integrity and security of
the state.
-Art 6 of the Constitution – the authority of congress is only to declare state of war but not
the authority to engage in war. It only shows that the State prohibits engaging in an offensive
war but not when the state is already attacked. In order to preserve to security and integrity the
state has also to join the war but the purpose of defending itself. And this is not contrary to the section
2 of Article 2 of the constitution on our policy to renounce war.

Article 2 Section 2
- After the phrase Philippine renouncing war as a matter of policy, there is a continuation
phrase there that we adopt the generally accepted principle of international law as
part of the law of the land. It is followed by a clause, and we called that Incorporation
Clause
What is incorporation clause?
You just have to re state the provision of article 2 Section 2
2nd phrase “The Philippines Adopt the generally accepted principle of international law as part
of the law of the land. That is the meaning of incorporation clause.

What do you mean by that?

- Being a member of nations, there are certain norms and conduct that are accepted all
around the world and partake already of a nature of a generally accepted principles of
international laws.
o Human Rights
o Piracy/Pirates
o Doctrine of Hot Pursuit
o Prosecution of people who violated Genocide or considered as war criminals
- By virtue of the incorporation clause and the constitution, we already adopt this
international law, as part of the law of the land. And there is no more need for any
legislation or for any act on the part of the state in order to make this law applicable
because we have already adopted that as part of the land
Note: It is very important that said norms and conduct must have reached the level of generally
accepted principle of international law. Because there are so many treaty agreements, there are so
many conventions that were being entered into by different state, and the Philippines is not a party to
that convention for example. We cannot apply the convention if we are not a signatory to that
convention, you cannot be bound by that. So, the Philippines cannot be held liable for any act or
omission committed by its citizen if the Philippines is not a signatory to that treaty. So not all treaty
agreement could bind the Philippines.

However, even if we are not part of the treaty but the content of the treaty involves generally accepted
principle of International law, then that same treaty must be applied also in the Philippines.

Case:
Kuroda vs Jalandoni
This case involves a war criminal

In this case, there was a court martial that was being held in the Philippines. There was a
question on the authority of the commission to try the accused, saying that the Philippines is not a
signatory of the said convention. How could now the Philippines try the Accused?
After the war, the accused was now being held by the Military Commission. There was now a
question on whether or not he could be tried, because the one trying him is a commission, the Military
Commission. And the fact that the Philippines was not a signatory to that head convention, the
Supreme Court sustained the authority of the Commission to try the accused in a military commission
even if the Philippines was not a signatory of the head convention, because the subject of the head
convention involves generally accepted principle of international law involving prosecution of war
criminals and considering that this generally accepted principle of international law. So the Philippines
is bound by that head convention because the provision in the constitution adopting the generally
accepted principle of international law.
Case
Chan vs Valdez Tan Keh
This is now the case involving the Declaration of Gen. McArthur when he liberated the
Philippines from the Japanese forces when he said that all proceeding of the occupant government
(Japanese) rules and regulation shall already be revoked.
There is a 1 case here, when Gen McArthur ordered that all proceedings, rules and regulations
are considered revoked upon liberation and that includes judicial decisions.
It says “ if the court during Japanese occupation found you liable to pay your debts, that is not
anymore enforceable decision because it was already revoked by the liberation” that’s what the
petitioner of this case says.
Now, by virtue of incorporation clause when we say generally accepted principle of
international law, the supreme court applies the principle of Jus Post Liminium “ Upon the cessation
of the belligerency, all political laws are automatically restored. But, all proceedings involving civil law
during the time of occupancy shall continue to be valid. Because during the time of belligerency, what
was only suspended are political laws but not civil laws. The courts continue to operate even during
the state of war but not of course political laws.
What was only suspended are only political laws and will automatically restored under the
doctrine of Post Liminium after the cessation of belligerency.
Therefore, if there is a money judgment against you, that money judgment even if rendered
during Japanese occupation would still be held valid. Because that’s not what is the intendment of Mc
Arthur when he made that proclamation, otherwise if the intention would be different then that would
be a violation of the generally accepted principle of Jus Post Liminium.

The Doctrine of Incorporation vs Doctrine of Transformation

There are two ways on how we apply international law into our own land.
Doctrine of Incorporation

Doctrine of Transformation (if it did not pass the incorporation)

- The doctrine of Transformation Pre supposes that these international law does not yet
partake of a generally accepted principle.
Example
o Placing of warning the sale of milk
 Breast milk is the best food for babies
 There was a treaty on that particular requirement in order to promote
breast feeding. This one does not yet reached the degree of
generally accepted principle of international law. That’s why when
it was adopted in the Philippines, there was a Law passed adopting the
treaty on placing that sign of Breast milk is best for babies” so that it
will form part in the law of the land.
 There is a need for local legislation in order for that treaty to be
enforceable in the Philippines, Otherwise, if its not adopted and
transformed into a law, then it would not be enforceable.
o Treaties entered into by the Government between other states.
 You will not be bound by the treaties unless it runs through our own
mechanism of approval in the Philippines, like the approval of the senate of
concurring into a treaty agreement entered into by the executive department.
So that treaty will not form part of the law of the land if not concurred by the
senate.
  That is we meant by Transformation, the need to apply of our internal
mechanism so that international law will be enforced in the Philippines.

As the case between international law and municipal law, which will not prevail and which will
apply.

Like for example, there is an international agreement which is disadvantageous to you

because there is another law in the Philippine that is advantageous to you. So you want the Philippine
Law apply compared to the International Law.
There will be now a conflict of which will prevail between international law or domestic or
municipal law.
- In order to settle this issue, the rule is, if could harmonize the two laws, its better. Maybe
there is a way in harmonizing the two provision so that there be no conflicts. But if there is
really a conflict between the two laws, there will be two views.
o If the one deciding the case is international court, usually it will always be the
international law that will prevail under the justification that all municipal laws must
be enacted following the spirit and purpose of the international laws. The adherence
of the municipal law to international law.
o However, if the court that would be deciding the case is our supreme court, the
tendency would always be to if there really a conflict, the international law will always
be upheld.
o But in some cases, the supreme court would uphold a municipal law, if the domestic
or municipal law was enacted in the exercise of the police power, or was made in the
exercise of the sovereign power of the supreme court or of the state in promoting the
general welfare of the people.
o If there is an exercise of police power in a particular law, the municipal law shall be
upheld.
 Ex. Retailed Trade Rationalization law (Case of Echanova?)
 Which was upheld even against the international law, allowing the
foreigners to engage in trade but the Philippines said that “while they
could engage in trade but they cannot engaged retailed trade because
that would already destroy the mini livelihood of the Filipino People..
 The Supreme court upheld the municipal law considering that that is
actually an exercise of states police power
o It really depends upon the circumstances of which will prevail between the two laws.

Kind of Foreign Policy

Already discussed
- Towards peaceful resolution of all disputes, because abhor and proscribes in offensive war
and as much as possible our foreign policy is thru the maintenance of Amity, cooperation
among all nations

The duty of the state to defend the people and this duty would not be materialized if the
government cannot require the people to join in the armed forces. In connection with the duty
of the state to defend the people is the correlative duty of the people to get involve in defense
of the state.

How is this possible?

Under the constitution, it is provided that the defense of the state could only the attained
through the creation of armed forces. The state has to defend its sovereignty otherwise it will
 be susceptible to invasion and occupation. And in order to do that, the state has to form an
arm forces.
This is now formed through an armed forces who are trained and are required to serve
in accordance with the law.
This law is the national defense act which is the enabling act on the defense of the state as
provided for under the constitution.

Can the people refuse being enlisted in the army?

During the times of war, we cannot refuse to be enlisted in the army no matter your
disposition and gender, you have to be included in the armed forces of the Philippines.
Why?
Because the duty of the state to defend cannot be materialized without armed forces. If
enlistment would be voluntary, then, the state cannot fulfill its mandate. The government
cannot fulfill its mandate without its armed forces that would only require people to do it
voluntarily. That’s why the constitution require, that during in times of war, we should be
required to join the army, all of us.

There are two cases discussed why it is mandatory.

1. The case of a person who was afraid to join the army because he just lost his father and he
has to take charge of his family.
2. The case that involves one who has to take care of his mother and is afraid to kill and be killed.
(find it)

The Supreme Court held that these are not valid defense, that’s why they are convicted for not
following the provision of the national defense act. These defenses cannot be considered valid,
because the requirement for us to join the army is mandatory.
The Supreme Court held, while you have a problem with respect of killing or handicap or
unable to go to the front. The Supreme court says that anyway you could join the army in any other
ways, like performing civilian works, staff in the army, it is considered for as long as you joined the
army.
By the way, the wording of the provision says, “it must be personal military service” which
means you cannot hire somebody to enlist for you or hire a mercenary if you are rich an just take your
place in the army. The Constitution will ensure that these will not happen and require that it will be
personal military service.

As you can see in the constitution, the armed forces, the army, the navy, PNP, etc. these are
divisions of the armed forces of the Philippines.
They are not considered as over and above the people. We have this principle of Civilian
Supremacy. Our Soldiers have taken an oath to defend the people at all times. There are so many
provisions in the constitution that would show that the armed forces of the Philippines cannot be
made over and above the civilians. The civilians remains supreme over the military and it’s the duty of
the military to ensure the safety of the civilians.
Another example of the supremacy of the civilian
- Under the constitution, the commander in chief should be a civilian. That’s why the
president now is considered as the Commander in Chief of the Armed Forces of the
Philippines. Its not the Chief of Staff, the commander in chief is the President of the
Philippines.
o It expresses the fact that the civilian is over the military
The Doctrine of Separation of Church and State

The gospel in the bible tells us, when Jesus Christ was made to explain by the members of the Priest
and the Hebrews on what to do with respect to allegiance to the Romans as well as to the Jews.
Jesus said “Give to Caesar what is Caesars and God what is Gods”
- If you need to pay your taxes, pay your taxes, but if you have to pray for your soul,
you pray to God.

You cannot mingle church with the affairs of the state as well as the state with the affairs of the
Church. Because either way, it could corrupt the other. So that’s why there is a saying
“Strong Fences make good neighbors”
To do that, the constitution says, the inviolability of separation between the state and the
church.

Once we reach article 3 on the Bill of Rights, we are going to discuss our Freedom of Religion
which has two faces, Freedom to express ones belief and freedom to what we believe.

It is the policy of the state to separate religion from political affairs in order to avoid
deprivation of its respective jurisdiction.
However, it doesn’t mean that the separation of church and state that they are at war at each other.
While they are separated from each other as a matter of policy, they could be actually of help to each
other. They could maintain their relationship in helping one another for the betterment of the
individual. By providing the individuals learning for the betterment of souls so that it could effectively
function in the society. It is manner that the state will also provide and sustain that individual so that
this person will be hold in expressing his devotion to god. There is an interrelationship between the
two. In such a way that the state has already recognized the importance of the church in the
Philippines and that’s precisely why there are provisions in the constitution that favors the church.
Ex. The State will not tax the Church, School runs by the Church and Religious affairs are not
taxed. Their income are not taxed.
There are also provisions that provides recognition on the part of the state on the role of the
church on our government.
These are roles of the government that are taken cared by the Church
- Providing Education
- Orphanage
- Charitable Institution
These are duties of the state that are being performed by the church, in response the state in the
form of tax exemption and privileges. Because the kind of relationship that the church and the state
must have helping one another developed the citizen, making the people as a whole individual
so that it can effectively perform it obligation in the government.
A separation of Respect and Cooperation between the Church and the State, that is what is
required under the constitution.

The very importance of the authorship of the people in all the provisions in the constitution that we are
going to learn in the coming days and that would also shows how important we are in the government
in expressing our opinions and thoughts that we are not just a spec or particle in the government. We
are part of the bigger whole which is the sovereign power of the state that we also enjoy.
Under Section 1 of Article 2 “ Sovereignty resides in the people gives us the knowledge that
ultimately when the people has to decide, then the government will be changed.
Be proud of who you, no matter what station in life, you play a big part in this Government.

ECONOMY
Sec. 19 The state shall develop a self reliant and independent national economy
effectively controlled by Filipino
Sec. 20. The state recognizes the indispensible role of the private sector encourages
private enterprises, and provides incentives to needed investments
Sec. 21 The state shall promote comprehensive rural development and agrarian reform

The above provisions