“Constitution” – a written instrument by which the fundamental powers of government are established, limited and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic Fundamental purpose of a constitution: a grant and a limitation of governmental authority The Constitution is the supreme written law of the land Classifications of the constitution: written and unwritten; flexible and rigid • Classification as to the extent to which constitutions are observed as norms of governmental action: o Normative constitution – its norms direct governmental action, and government habitually adjusts its actions to the norms  like a suit that fits and is actually worn o Nominal constitution – cannot yet be fully operative because of existing socio-economic conditions  like a suit in storage waiting for the wearer to grow to the proper size o Semantic constitution – the primary purpose of a constitution is to limit power: this does the opposite. It is a tool for the perpetuation of power in the hands of power holders  not a suit, but a disguise A constitutional document may be divided into 3 parts:

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to be established under a constitution drafted and ratified by the Filipino people, the Philippines already had a solid body of constitutional jurisprudence on which to build. o It was through the authority of this law that a Constitutional Convention was called (for the creation of the 1935 Constitution). It lasted from July 30, 1934 to February 8, 1935. o March 3, 1935 – U.S. President approved the draft o May 14, 1935 – Filipino electorate ratified the same by an overwhelming majority vote. o November 15, 1935 – Commonwealth government established by the Constitution became operative o July 4, 1946 – Philippine Independence!!!  • Many felt a certain unease in that the Philippines, already independent at the time, continued to operate under a Constitution that had been fashioned under colonial auspices. Hence, the agitation for a thorough overhaul of the 1935 Constitution arose. ♦ The 1973 Constitution • March 16, 1967 – Phil. Congress, pursuant to authority given to them by the 1935 Constitution, passed Resolution No. 2 (later amended by Resolution No. 4 passed on June 17, 1969) called for a Convention to propose amendments to the Constitution. • November 20, 1970 – election of delegates to the Convention • June 1, 1971 – 1971 Constitutional Convention (ConCon) began • September 21, 1972 – martial law was declared. Even though some delegates were placed under detention, went into hiding or voluntary exile, the ConCon continued its deliberations under an atmosphere of fear and uncertainty. • November 29, 1972 – ConCon approved its Proposed constitution • November 30, 1972 – the Pres. issued Presidential Decree No. 73: submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 ConCon and setting the date of the plebiscite on January 15, 1973 • January 7, 1973 – General Order No. 20 was issued by the President directing that the said plebiscite be postponed until further notice. • P.D. No. 86 – organized the “Citizen’s Assemblies”. Said assembly was asked certain questions, such as “Do you approve of the New Constitution?” • January 17, 1973 – the Supreme Court was still hearing arguments to enjoin the holding of the plebiscite, however, Proclamation No. 1102 was made by the President, announcing that the proposed Constitution had been ratified by an overwhelming vote of the members of the Citizen’s Assemblies • March 31, 1973 – a divided SC ruled that “there is no further judicial obstacle to the new Constitution being considered in force and effect” • The Executive Dept., with vigor and all the resources at its command, proceeded to implement the new Constitution

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Constitution of government – provisions that set up the governmental structure Constitution of liberty – guarantee individual fundamental liberties against governmental abuse Constitution of sovereignty – outline the process whereby the sovereign people may change the constitution

“Constitutional law” – body of rules resulting from the interpretation by a high court of cases in which the validity, in relation to the constitutional instrument of some act of governmental power… has been challenged. “Judicial review” – involves the power and duty on the part of the Court pronouncing void any such act which does not square with its own reading of the constitutional instrument. (power and duty to make void acts which are not in keeping with the Constitution) Constitutionalism dates back to the Treaty of Paris transferring Spanish sovereignty over the Islands to the U.S. Thereafter, Philippine constitutional law grew from a series of organic documents enacted (stated below) by the U.S. government. • Pres. McKinley’s Instruction to the Second Philippine Commission • Philippine Bill of 1902 • Philippine Autonomy Act of 1916 The 1935 Constitution

Tydings-McDuffie Law – provided for the establishment of a Commonwealth Government

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The Legislative Dept. was nowhere to be found to object Ordinary mortals lived and found their fortunes (and misfortunes) under the new Constitution In 1976, the Constitution was amended to give birth to the interim Batasang Pambansa (a legislative body which functioned no better than as a rubber stamp for the will of the President which found a new authoritarian vehicle in Amendment 6). Later on, the interim BP gave way to a regular BP. In 1981, the Constitution was amended again to depart from the parliamentary to the presidential form.

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The FREEDOM Constitution • February 15, 1986 – the BP, in the exercise of powers given by the 1973 Constitution, proclaimed Marcos as the president, amidst widespread protest. • February 22, 1986 – Minister of National Defense Enrile and Vice Chief of Staff General Ramos initiated a revolt against Marcos o The civilian support given to the outnumbered Ramos-Enrile forces caused other military elements to switch their support to Pres. Aquino • February 24, 1986 – after the Air Force started to support Aquino, it was deemed over for Marcos and his allies • February 25, 1986 – in defiance of the provisions of the 1973 Constitution and without the sanction of the BP, Aquino was proclaimed president at the Club Filipino and was immediately sworn into office by Senior Associate Justice of the SC Claudio Teehankee o At the same time, Marcos was being sworn into office by Chief Justice Ramon Aquino at Malacañang. The same night, he and his family and supporters went into exile. • Pres. Aquino chose to turn her back on the 1973 Constitution whose officials had denied her the presidency. She chose instead to govern under a Provisional Constitution, which was Proclamation No. 3 or the Freedom Constitution The 1987 Constitution • 1986 ConCon: June 1, 1986 to October 15, 1986 • Article 6 of the Freedom Constitution: o Sec. 1: Within 60 days from date of this Proclamation, a Commission shall be appointed by the President to draft a New Constitution. The Commission shall be composed of not less than 30 and not more than 50 natural-born citizens of the Philippines, of recognized probity known for their independence, nationalism and patriotism. They shall be chosen by the President after consultation with various sectors of society. o Sec. 2: The Commission shall complete its work within as short a period as may be consistent with the need both to hasten the return of normal constitutional gov’t and to draft a document truly reflective of the ideals and aspirations of the Filipino people. o Sec. 3: The Commission shall conduct public hearings to insure that the people will have adequate

participation in the formulation of the New Constitution. Sec. 4: The plenary sessions of the Commission shall be public and fully recorded. Sec. 5: The new Constitution shall be presented by the Commission to the President who shall fix the date for the holding of a plebiscite. It shall become valid and effective upon ratification by a majority of the votes cast in such which shall be held within a period of 60 days following its submission to the President. • Plebiscite was held on February 2, 1987

PREAMBLE “We, the sovereign Filipino people, imploring the aid of Almighty God, 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.”
The Preamble Should the Preamble be written before or after the completion of the Constitution? 1. Preamble should be formulated after the completion of the Constitution: • Preamble – a distillation of the ideals and aspirations of the Filipino people • Since it is a distillation of the ideals and aspirations, it should not be finalized until after those ideals and aspirations had been hammered out. 2. Preamble can be formulated even before the completion of the Constitution: • Commissioners themselves were in a position to enumerate 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 Commission. • Commission agreed that the Preamble would still be subject to modifications after the formulation of the body of the document. • But the commission did not go back to the Preamble after the completion of the body of document.

Purpose and effect of the Preamble

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It is not a source of power or right for any department of government. It sets down the origin, scope, and purpose of the Constitution and is thus useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the constitution. The Preamble bears witness to the fact that the Constitution is the manifestation of the sovereign will of the Filipino people.

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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. Source of Light: Useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the Constitution Aglipay v. Ruiz – Justice Laurel, in seeking the true meaning of separation of church and state in the Philippine jurisprudence, had occasion to allude to the invocation of the “aid of Divine Providence” found on the 1935 Preamble. 4.

Jurisdiction over Turtle and Mangsee Islands were clarified by the convention concluded between Great Britain and US b. The doubt over Batanes was not clarified. However, from time immemorial, these islands had undisputedly formed part of the Philippines. “all territory over which the present Government of the Philippine Island exercise jurisdiction” a. To remove the doubts over Batanes.



ARTICLE 1: National Territory 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.
A Constitution is a municipal law. As such, it is binding only within the territorial limits of the sovereignty promulgating the constitution. It is important for the sovereign state to know the extent of the territory over which it can legitimately exercise jurisdiction. 1. The Place of Territorial delimitation in the 1935 Constitution Definition of territory underwent three phases: • 1934-1935 Constitutional Convention • 1972 Constitutional Convention • 1986 Constitutional Commission • The factor which persuaded the 1935 Convention to include an article on national territory was the intent of the Convention to use the Constitution as an international document binding on the US. • This possibility of transforming the Constitution (a municipal law) into an international document arose from the provision of the Tydings-McDuffie law. • Tydings-McDuffie law: the effectivity of the Philippine constitution would depend partly on the acceptance of its provision by the US Government.

Why the definition of territory in the 1973 and 1987 Constitutions? • Voltaire Garcia (Rizal) – delete the entire article on National Territory o Why? Because territorial definition was a subject of international law, not municipal law, and the Philippine territory is already defined by existing treaties o Batanes – no state ever questioned the continued exercise of Philippine jurisdiction over it o Prejudicial to the interest of the Philippines o Amanio Sorsogon and Magtanggol Gunigundo supplied the “nationalistic” arguments for the deletion of the article on territory  Sorsogon: Treaty of Paris a repulsive reminder of the indignity of our colonial past  Gunigundo: To accept the territorial boundaries defined in the Treaty of Paris would be to lend legitimacy to the illegal act of Spain and the US • Raul Roco (Camarines Sur) – territorial definition is necessary for the preservation of our national wealth, for national security, and as a manifestation of our solidarity as a people • Eduardo Quintero (Leyte) on why a territorial article is needed: o Territorial assertions found in RA 3046 are merely “whereas” clauses. These clauses should be expressed in more authoritative fashion. o To delete the article would leave the status of Batanes Island in doubt. o Failure of the 1935 constitution to express the possibility of future territorial acquisitions by the Philippines The 1973 Provision on National Territory • Philippine Territory under the 1973 Constitution can be divided into three groups: 1. The Philippine archipelago 2. Other territories belonging to the Philippines 3. Philippine waters, air-space, and submarine areas  Horizontal reach consisting of lands and waters  An upward reach consisting of airspace over the land and waters  A downward reach consisting of submarine areas  Adherence to the “archipelagic principle” The Philippine Archipelago  1973 Consti: “all the islands and waters embraced therein”  Archipelago: a cluster of islands forming a territorial unity o Waters are considered adjuncts to the land area and their extent is determined by reference to the land area


2. National territory under the 1935 Constitution Four Points of Reference for determination of the Philippine territory in the 1935 Constitution 1. The Treaty of Paris (December 10, 1989) a. Article III – Spain has ceded to the US “the archipelago known as the Philippine Islands, and comprehending the islands lying within” b. Doubts whether the Batanes Islands to the north and the Island of Sibutu and Cagayan de Sulu to the south as well as the Turtle and Mangsee Island were included 2. The Treaty of Washington (November 7, 1900) a. Corrected the error with respect to the Islands of Sibutu and Cagayan de Sulu 3. The treaty between Great Britain and the United States (January 2, 1930) Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 


Archipelago: as a unit of water studded with islands o The land area is everything that comes within the water area o The committee preferred this definition over the first one Archipelagic principle o principle that the Philippine Constitution adheres to; Legal & Political basis for considering the 7,107 islands as one political unit o Committee Report No. 01 of 1973: “the 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” “..all other territories belonging to the Philippines by historic right or legal title”  Inclusion of Batanes Islands  Committee Report No. 1: intended to cover the claim to Sabah which has been filed by the Philippines and the possible claim to Freedom Land and the Marianas Islands  The intent was to avoid forfeiture of these claims by their omission from the constitutional definition  Historic right: Batanes belongs to the Philippine because in all its history, Batanes had always been part of our country.  Sabah: our claim is based on a “legal title” perfected in 1962  5. 1982 Convention on the Law of the Sea (LOS) • 1987 Constitution was formulated while the Philippines was already a party to the 1982 Convention on the Law of the Sea. Substantial provisions found in LOS which helps in the understanding of the constitutional text: 1. Archipelago, archipelagic state • Article 46 of the Convention (a) “Archipelagic State” means a State constituted wholly 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 other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Under this definition, Batanes should be considered part of the archipelago and not just of territories outside the archipelago. The territorial sea • As distinct from the state’s inland and internal waters, the territorial sea consists of a marginal belt of maritime waters adjacent to the baselines extending 12 nautical miles outward. Outside these are the high seas. • The Three (3) mile rule, which was the traditional length of the territorial waters

measured seawards according to the cannonshot rule formulated in 1702, has now been discarded. • When the Twelve (12) mile rule application overlaps to neighboring littoral states, the rule established is that the dividing line is a median line equidistant from the opposite baselines. 3. Baselines • “the low water line along the coast as marked on large scale charts officially recognized by the coastal State” • Two (2) ways to draw the baseline: a. “Normal” baseline is one drawn following “the low water line along the coast as marked on large scale charts officially recognized by the coastal State”. This would normally not consist of straight lines. b. “Straight” baselines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. This method was first upheld in the Anglo-Norwegian Fisheries Case. Likewise, R.A. No. 3046 and R.A. No. 5446 have drawn “straight baselines” around the Philippines. • The rule now is that in localities where the coastlines is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed. • BASELINE provisions are found in Article 47 of the 1982 Convention. It is both a solution and a problem. 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 understood as passage not prejudicial to the interests of the coastal state nor contrary to recognized principles of international law. • Acts that are not considered innocent passage under Article 19(2) a. any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or 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 prejudice 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 aircraft f. the launching, landing or taking on board of any military 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



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h. any act of wilful and serious pollution contrary to this Convention i. any fishing activity j. the carrying out of research or survey activities k. any act aimed at interfering with any system of communication or any other facilities or installations of the coastal State l. any other activity not having a direct bearing on passage • Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent. 5. Archipelagic waters • 1973 Constitution, Article I: “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 baseline method”, forms the “Archipelagic Principle”, which is now found in the 1987 Constitution. • “Internal Waters”: internal or inland waters consist of all parts of the sea landwards 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. Insular shelf • The continental shelf , archipelagic or insular shelf for archipelagos, 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 hundred meter or, beyond that limit, to where the depth allows exploitation. B. the seabed and subsoil of areas adjacent to islands. • The 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. The right does not affect the right of navigation of others. Moreover, the right does not extent to non-resource material in the shelf area such as wrecked ship and their cargoes.

would have an educational value and there was apprehension that it would be difficult to explain why after 1935 and 1973 provisions on national territory the new Constitution should fail to provide for one. (2) What posture to take relative to Sabah as covered by the clause “all other territories belong to the Philippines by historic right or legal title”. This was debated per longum et latum with a certain degree of warmth even if it was not always clear what individual delegates, including sponsor wanted. • This was not thoroughly discussed, and nothing conclusive was put down in writing. (3) How the definition of territory would relate to the 1982 Convention on the Law of the Sea. a. “all other territories over which the Philippines has sovereignty or jurisdiction” • 1973: “all other territories belonging to the Philippines by historic right or legal title” was replaced by 1987: “all other territories over which the Philippines has sovereignty or jurisdiction.” • Those who espoused the 1973 basically wanted to avoid the impression of constitutional abandonment of the Philippine claim to Sabah. Those who espoused the new phraseology contended that theirs did not mean abandonment of any claim which might be justifiable under generally accepted principles of international law. • The principal stumbling block was the phrase “exercises sovereign jurisdiction”, which could easily be read to mean that territory not under the effective control of the Philippines, such as Sabah, would not be part of it. • Fr. Joaquin Bernas SJ provided the solution by introducing a new phraseology: “and all other territories over which the Philippines has sovereignty or jurisdiction”, where “has” was of broader scope than exercises so that it clearly allowed juridical retention of a territory even when it was physically wrested by a stronger force. c. “...its terrestrial, fluvial, and aerial domains, including the territorial sea, the sea bed, the subsoil, the insular shelves, and other submarine areas thereof.” • This rephrasing was authored by Commissioner Adolfo Azcuna. • It was not meant to and does not add anything to the substance of what was already contained in the 1973 definition. • Azcuna’s explanation follows closely the terms of the 1982 Convention on the Law 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 airspace over the territorial 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.


6. National Territory in the 1987 Constitution • On June 26, 1986, the Committee draft of the National Territory noted that the first paragraph was an exact reproduction of the 1973 text. The second paragraph was new and made reference to the 1982 Convention of the Law of the Sea. • The deliberations of the 1986 Constitutional Commission focused on: (1) Whether to have a provision on national territory. • This was resolved easily. Much of the 1972 debate was repeated. In the end there was recognition that such an article Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 


7. Summary and Conclusion • Like the 1934-35 Convention, the 1971 Convention did not claim that a constitutional provision standing by itself is binding international law. During the 1973 debates on the provisions on national territory, the local newspapers gave the impression that, by unilateral act, the Convention was attempting to add new territory to what was defined in the 1935 Constitution. However, there was no such attempt. The 1987 language attempts to remedy the misimpression. • The only clear claim made by the 1971 Convention of the power unilaterally to delimit territorial boundaries was with respect to inland and territorial waters. • Is the Philippine territory bigger because of the new article on national territory? Not really. • The Treaty of Paris is the 1935 Constitution’s principal point of reference for the delineation of Philippine territory. The attempt of the present provisions to omit 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 Islands by “historic right” • The 1973 Constitution ensured the possibility of claiming other territories on the basis of “historic right or legal title”. The 1987 Constitution prescinds from the question and reies on generally accepted principles of international law which recognizes legal modes of establishing legal claim to territory. • What then did the 1973 provision gain for the Philippines? A security blanket, a rhetorical assertion of historic identity, “decolonization” on paper, and an embarrassing muddling of Philippine position towards the Treaty of Paris. • As to the 1987 version, it merely removed language possibly offensive to an ASEAN neighbour and achieved a more logical sequencing of the elements that make up the territory but preserved everything else found in the 1973 Constitution.

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