vee THE 1987 CoNSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY JOAQUIN G. BERNAS, S.J. Jesuit R&idence Ateneo de Manila University Loyola Heights, Quezon City Philippines ‘ Nar «J iw { 2009 err10Naaasis was a Philippine Copyright, 2009 |. 93099 od by K F JOAQUIN G. BERNAS, S.J. S044.) ISBN 978-971-23-5326-0 Bye No portion of this book may be copied or P41F reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied indifferent electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any eapy of this book without the correspond- ing number and the signature of the author on this ‘page either proceeds fropran illegitimate source or is in possessiongof o 's no authority to dispose of the sage. ALL RIGHTS RESERVED BY THE AUTHOR No 0834_ 19BN 976-971.20-5926-0 a 9 Mragrialsssza0! Peed by Rex printing Company, _Typochuphy & cneative lithoguaphy Menino cee ieee HH sett Fort PREFACE, ‘The 1987 Constitution completed its twenty-second year last February 2, 2009, There have been attempts to amend ot revise the document but none has succeeded, Itis not that the 1987 Constitution is a perfect document. But part of the reason why it has survived attempts at elteration has been the ing around the meaning ofthe document's amendatory process in Anicle XVI. Initially designed for a unicameral National Assembly, by oversight, Article XVIT has been forced into service for a bicameral Congress. Hence, there has been a raging debate about how it should be read, i ‘Until a definitive interpretation ofits meaning can be arrived at, the document, for weal or w0e, will remain untouched. In recent months, however, the process towards clarification has intensified. Meanwhile, jurisprudence on the document’s various Provisions has grown over the years and a mere supplement tothe 2003 edition to the author's Commentary would be unwieldy. This updated 2009 edition incorporates jurisprudence up to the end of 2008 in the hope of making it more useful for those who will eventually undertake the task of amendment or revision,CONTENTS A. Deliberations onthe Committee Réport 2. Purpose and effect of the Preamble. sel neste ’ ARTICLE I: THE NATIONAL TERRITORY .. ae , Section 1 — : vreaear 1. The Place of Tenitorial Delimitation in the 1995 Coestiton, 5 2. Nasional Territory under the 1935 Constitution pau regen 3 Wy efoto of Teor inthe 1973 and 1987 ae ‘Consttetions? 8 4, The 1973 Provision on Netional Teritory n ‘5, 1982 Convention on the Law of the Sea (LOS). 2 6. National Tettory in the 1987 Constitution. = B : 7. Sommary and Conclusion, 3 ARTICLE It DECLARATION OF PRINCIPLES AND STATE POLICISS 35 38 1. Tle of he Aci as : 2. Definition and elements of “state.” : 38 3. 1ds"Peopte" 0 5 4. Tdy“Teitory” a 1d;*povenment definitions and functions. a 1s government de joe and de £2000 enn a7 5 6 : 7. Government under the 1986 Freedom Constation. a 8. The goverment nde: Gori Macapagal Aro 10. Presidential and parliamentary goverment .*Sovercignry” 11, "Demoeraie and repubiican sinSection? 1. Renunciation of war. 2 Toarporation of intemationa aw » 3. Adherence to policy of peace, freedom, Section 3 .. 1. Civilian supremacy 00 2. Role ofthe armed forces. Section 4. 1, Compulsory military and civil service; protection of people and stat Section 5 — 1." Pesce and only, genet welfare Section 6 awe - 1, Separation of Ciurch and State. STATE POLICIES Section 7, 1,” Amindepésideht foreign policy... 1, Social order Section 10, +y of freedom from nuclear weapons... 1, Social Justice in the 1935 Constitution... 2, Social Justice in the 1973 Constitution... Social justice under the 1987 Constitution 3 Section 1} Section 12 1 2. 3. ‘The family as basic social Protection ofthe urbom. ‘Natur Personal dignity and human rights... Fight and duty of parents Section 13 1 Section 14 Section 15 1 Section 16 1 Section 17 1 Seation 19 Section 20, 1 Section 21 1 Seetion 22, 1 Section 2 vu 1 Section 24 4 Section 25 . 1 Section 26. 1 Section 27. Section 28 1 Vital role Equality of women and men. ‘The right to healt, Right to balanced and healnf ecology. tncaton seen and tehnology, as and cle Nationalist economy and private initiative ‘Comprehensive rural and agrarian policy ‘The welfare of indigenous cultural communities. ‘Community-based private organizations. Communications Local autonomy Political dynasties Honesty and integrity in public service. 96 %6 98 98 88 99ARTICLE Mil: BILL OF RIGHTS... 100 Section 1 100 J. BllofRighs Proton apie eof over 100 2. Life, Liberty, Propery.. 105 3.” Hierarchy of right... ut 4. Due process procedural faimess. 13 5. Substantive due process ug 6. Publication and clarity of laws as a requirement of due process 431 7. Equal protection 139 8 age as bass of classification 14s 9. Equal protection and laws of local application . 152 10, Adjustments resulting from war. 154 11._ "Equal protection and the political process. 135 12. Equal protection and land reform 158 13, ~ Equality in the criminal process... 159 14. _ Equal protection and women, etc 162 15, ” Miscellany on equal protection. 164 16. The future of equal protecto 165 SCHON 2 sesmnn 16 1, Purpose of the provision 161 2. Probable cause 169 3. Determination of probable cause: by whom and how; meaning of “personally” sone YTD 4, rom the 1973 Constitution interlude tothe 1987 restoration 174 ‘5. Personal examination ofthe witnesses 7 6. Particularity of description. vonnn TRL 7. Searohes and seizures “of whatever nature and for ‘any purpose” 186 8. Werrantless searches and seizures: (1) search incidental to arrest 191 9. Warrantless searches and seizures: (2) search fof moving VEhiCle8 ex 193 410, Warrantess searches and seizures: (3) evidence in plain view . 197 11, Warrantless searches and seizures: (4) customs inspections : 198 12, Warrantless searches and seizures (5) waiver. 198 13, “Bxigent circumstance” 200 14. The “stop and frisk" roe 201 15, Suspicionless drug tests 16. Arrests with warrant 17. Warrantless arrest 18. Whento challenge validity of arest 19, _ASSOs and Presidential Commitment Orders (PCO). Seation 3 1 Privacy of communication and correspondence 2. Exclusionary re: historical development 3. Exclusionary rule: current status... 44. Viclations by private persons. 9. 10, B. 14 15, Section $ Freedom of Speech and Press: prior restraint ‘and subsequent punishment Prior restraint and the pre Prior restraint, movies and electronic ‘Media and judicial process : Media and privacy. Subsequen’ punishment: sandards fr restaint ‘The constitutional guarantee in action: seditious speech 145 Contempt of court by publication... Purifying the electoral process. ‘Unprotected speech: libel. Unprotected speech: obscenity Miscellany on redo of Expression ‘Assembly and petition nnn Jurisprudence before the 1935 Constitution Free exercise and non-establishment of religion: in genera. a ‘The fre exercise clause ‘The non-establishment clause ‘Non-diseriminatory concessions: tax exemptions and chaplaincis... oom Religion inthe public schools. Intramural religious disputes. Religious tests and obligations of eiizenship. (Church and state under martial rue. 3mSection 6 1. Freedom of movement: liberty of abode and of travel 2. “Aliens and right of entry. Section 7 {, Right to information, access to public documents, Section 8 1 2 3. 4. Just compensation... 5. Just compensation in te 1987 Constitaton 6. Expropriation for resale to the landless 7. Judicial Review.. 8, Does “res judicata” ‘Regulation versus taking. 9. 10 11. -Rxpropriation by municipal propery. 12, Eminent domain and contracts... Section 10 1, ‘The Conteact Cause before the 1935 Constitution ‘The Contract Clause at the 1935 Constitutional Convention enn 3. _Jurispradence on the Contract Clause under the 1935 Constitution. 4. Police power and conwacts 5. Reservation clause 6. ‘The contact clause under the 1973 and 1987 Constitution Seetion 11 1, Free access to courts, quasi-judicial bodies, ‘and adequate legal assistance, Section 12 1, Evolution ofthe provision .. 2. “Any person under investigation 315 as 319 319 380 386 387 389 391 396 396 396 402 413 415 432 433 439 448 41 455 4589 461 3 4. When Section 129(1) rights end. 5. Waiver of the ght Senn €. Coerced confessions. 1 8 9 Exclusionary nile Retroactvity o prospectivity sanctions, compensation and 1. Right to bail. 2. The 1987 provision 3. Excessive bail. Seeti0a 14 en ‘Due process in criminal cases.. ‘Due process and military tribunals “In all eximinal prosecutions ..”. 8. Speedy, impartial, and public tris 9, Right to confrontation a. 10. Compulsory process 11 Teal in abeonta Seetien 15 1, Suspension ofthe privilege: seat and limits of the power under the 1935 and 1973 Constitutions run 535 2. fect of the suspension ofthe prvilege under the 1935 and 1973 Constitution 345 3. Changes made by the 1987 Constitution, 582 Section 16 556 1. Speedy disposition of cases, 356 Section 17. 558 1. Self-nerimination... 558 2. Documents and Records Section 18. 568 1, Freedom of politcal belief 565 2. Involuntary servitude 365Section 20. 1 2 Section 21 Section 22 1 2 Cel, degrading rnin poise excessive fines Abolition of death penalty ‘Capital punishment restored, reviewed, stopped Custodial ervlties and inadequate penal facilites. ‘Imprisonment for deb. Non-payment of poll tax Double jeopardy. ‘When jeopardy attaches ‘Termination of jeopardy. ‘The sine offense. Same offense: Ordinance and Statute Same offense: “Supervening Fact’ “Appeals. “Ex post facto” laws. Bills of stainder. ARTICLE IV: CITIZENSHIP. Section 1 Section 2 L Section 3 . 1 2, Section 4 1 Citizenship. Citizens ofthe Philippines tthe time ofthe adoption of the 1973 Constitution nema Children of Filipino fathers or mothers... Citizens by election Natutalization, judicial and administrative [Natural-born citizen. Loss of citizenship . Reacquisition of citizensi Marriage to an alien spouse. xi 568 569 374 578 380 381 581 588 589 589 592 594 612 615 618 os 623 os Cr) 632 Section 5 1, Dual citizenship 2. Dual allegiance. ARTICLE V: SUFFRAGE... Section 1 Section 2 Suffrage as ight and duty “The broadening of the mass base ienship qualification ‘Age quaificatio residence qualification Absentee voting Prohibited qualications: Literacy txt ‘orig by iterates and dsubled in the 1987 Constitution. 9, Secrecy and sanctity ofthe ballot 1. Prohibited qualifications property ne 11, Prohibited qualifications other substantive requirements 12, Disqualifcations: forfeiture ofthe ight 13. The requirement of registration ARTICLE VI: THE LEGISLATIVE DEPARTMENT Section I 1, ABicameral body 2, Nature of legislative power... 3. Separation of powers. 44. Limits on legislative power. 5, The holders of legislative power: Congress; people through initiative and referendum; resident in emergency. 619 ! 6. The Once and Former Legislative power of President Marcos and President Aquino... 681 7, Nonsdelegebility of legislative power. rennin 85 8. Developmnts in jurisprudence noe one 691 i Exceptions to non-delegability 695 - 06 696 on xi1 1 4 Qualification of Senators ‘The term of Senators; staggering of terms.. Section 5. ee 1. Compoton fhe Howse of Representatives. 2. District representatives. : 3. Apportionment... 4 Seco eesaton td part presen. 5. _ Jurisprudence on the pary-lst system. *Section 6 : or » 1, Qualifications of district and party-list representatives * Seetion7 1, Term of Representative Section 8 Section 9 1, Filling vacancies : Section 19. 1. Sada of enter Representatives 2. Allowances, Section 11 1, Privilege from arrest 2. Parliamentary freedom of speech and deaate. Section 12, Section 30 L Section 14. 1 2 Section 15 1 Section | 1 Financial and busines interests... Disqualification Prohibitions; lawyer le Prohibitions: Conflict of interests ‘Sessions of Congress... Officers nf Congress 68 8 9 700 701 02 705 709 13 13 n9 n9 m ma . m2 ms _ 73 nA _ mS ns m 79 730 730 730 BI mL 78 m4 Te 7s 76 2. “A quorum to do business”. 740 3. nema rules and discipline 44, Journals, Record: publicity and probative value; “enrolled bill” rule 5. Recess Section 17. 1. Composition, 2. _usistition of the Electoral Tribunals 5. Independence ofthe Electoral Tribunals. Section 18 1, Congress and Heads of Departments 768 Section 23. 1, Declaration of the existence ofa state of war 2, Delegation of emergency powers. Seet98 24 ou 1. Ofgin of mony bl te bills and ils ‘of local application _ 713 76 Section 25 1, Limits on power to appropriate... 2. Prohibition of increase. vn 3. _Proibon of “iden” in appropiation bls 4. Transfer of funds. 5. Appropriations must be fora public purpose. Section 26 . 782 1. Subjet and ile of bis general probit ‘of “riders” = 783 2. ‘Three readings. 785 Seetion 27 _ 788 788 1. Passage of bills.Section 2 L 2, « Seetion 30. ed Section 31 L Section 32. ARTICLE YI: EXECUTIVE DEPARTMENT Section 1 5. Section 2 1 Section 3 1 Section 4. 1 Power of taxation: scope and purpose... Limitation onthe power to tax. Specific limits onthe taxing power: “uniform and eqUitable™ Progrestive system of taxation. Delegated tax legislation. ‘Tax exemptions Fiscal powers of Congress ‘Special funds... Appellate jurisdiction of the Supreme Court Titles of royalty or nobility. Initiative and referendum ‘The executive power. Ceremonial funetions {Immunity from suit Executive privilege ‘The Cabinet. ‘Qualifications of the President. ‘The Vice-President lection ofthe President and Vice-President. wi 189 m1 798 798 193 1” 801 803 805 805 87 Bil . Bil . 8d 81s 815 816 816 816 8i7 820 820 820 827 827 535 837 838 838 839 839 Bal ‘Term of the President and Vice-President... ‘The Congress as national board of canvassers Breaking a presidential or vice-presidential tie Presidential and Vice-Presidental election ‘controversies Section 5 Section 6 Section 7 Section 8 1, Filling a vacancy in the presidency. 2. From Joseph Estrada to Gloria Arroyo Section 9. 1. Vacaney in the Ofiée of Vice-President wu 858 Section 10, = 858 1, Vacaney in both the presidency and vice:presidency 859 859 858 Section 11 1, Incapacity of the President Sestion 12... - 861 1, Serious illness of the President. 862 Section 13, 862 1 Prohibition against holding another office ‘or empiayment, 862 2. Other prohibitions. 867 Section 14 868 Seetion 15, 868 2. Kinds of presidential appointments 3. Scope ofthe power of the Commission sn 816 4. appointment of officers “lower in ran 5. May Congress require other appointments to be ‘confirmed by the Commission on Appointments?... 878 6, “Recess or “ad-interim” appointments and “temporary appointments” 8827... Aquino appointments made between February 2, 1987 and July 27, 1987 vn Section £7 1. Power of control. 2. Faithful execution clause Section 18... (Commander-in-chief ship ‘Taree types of “martial law’ ‘Martial law proper is essentially Pole power ‘The 1972 Martial Law .. Tas Aquino, Iv. Enrile 143 Aquino, Jr. v. COMELEC.... 1; Aquino, ev. Miltary Commission No.2; Military Tribunals. 8, Ids Sanidad v. COMELEC; Constituent Powers. 9c» Jorispradenctial legacy of martial law. 10. The new martial law doctrine; when, by whom, and how imposed? 11 The new martial law doctrine: role of Congress and Court 12. ‘The new martial law doctrine: effects of imposition. 13, The May 2001 “state of rebelion” or “state of emergency”, Section 19.. 1, Purpose of executive clemency... 2. Constitutional limits on executive clemency. 3. Pardon: nature and legal effects... 4. Amnesty. 5. Other forms of executive clemency. Section 20, 1. Power to contract or guarantee foreign loans Section 21 1. Senate concurrence in intemational agreements 2. The Visiting Forces Agreement 3. Termination of treaty 4 ion Other foreiga affairs powers Sedtion 2 a L 886 888 888 895 396 598 sor 303 996 910 913 913 a5 916 on 919 oa ss sx 932 933 933 938 sas 938 940 9a 943 943 Section 2 1. Section 3 i 10. re B. 14. 13, 16. re Section 6 Judicial Power. Tinsic limit on judicial power. Grave abuse of discretion. Role ofthe legislature 958 961 Fiscal autonomy 961 Powers ofthe Supreme Cou - 961 Toaicial review . 968 Requisits forthe exercise of jadi ‘actual case” and “ripeness ne 970 Requisite forthe exercise of judicial review: “standing” Standing of legislators, taxpayers and ctzens ‘Other requisites for judicial review. Political questions. Effect of declaration of unconstitutional Judicial review by inferior courts Movaltes of onstaonainterreton ‘constitutional rights, pleading, practice, and procedure, and admission tothe Bar. Congress and the Rules of Court 7 Integration of the Bar. ‘Appointment of court officials and employees ‘Administrative supervision of inferior cours aeSection. : 01s Le Qualifications of Members ofthe Judicity scone 103 one Section 8 1016 1.” Appointment of justices and judges au son 1018 Section 10. nnn 1, Diminution of star . Section 11 — 1, Security of Tenure in the judiciary. 1020 Section 12 1025 1 1025 Section 13, 1025 1. Process of decision making, 1026 Section 14. 3027 1. Contents of decisions of cours. 2. Petitions for review and motions for reconsideration .... 1030 Seetion 15 . 1030 1. Period of making decisions... sons 1OBH 2. Period for decisions under the 1973 Constitution 1032 3. Report tothe President and to Congress vcevnnivnvns W034 ARTICLE IX: CONSTITUTIONAL COMMISSIONS 0100+ 1035 ‘Common Provisions 103s Section 1 1035 L Section 2 Section 3 Section 4 1 Section 5 1. Automatic release of funds 1036 Section 6 o 1036 1. Independence ofthe Commission ven 1037 Decisions of the Commissions Review of decisions. ‘The Civil Service Commission. ‘Purpose and Historylf the System. Organization of the Commission Scope ofthe System. Classification and appointments Role ofthe Civil Service Commi Seeurity of tenure. Flectioneesing or parsl political activity. “The righ to self-organization. Powers of the Commission (Oath to defend this Constitution Standardiz:tion of compensation. Political lame ducks... Political opportunism and spoils. ‘Additional ar double compensation. Present, emolument, office or ttle from & The Commission on Elections. Composition, qualifications appointment, term.Section 2 [Nature ofthe powers of the Commission Historical development of Commission's administrative powers: 1935-1987 Section 2(2): Election contests . ‘Section 2(3): Powers not VER ener ‘Section 2(4): Deputizing law enforcement age ‘Section 2(5): Registration of parties and organizations. ‘Section 2(6): Prosecution of election offenses. ‘Section 2(7), (8), and (9): Recommendatory powe 07s 1077 1078 1083 1087 1088 089 1091 1092 1. Section 4 1. Section 5: beat! «Section 6 Section 7 Section 8 Section 9 1 Commission decisions. Regulation of public utilities, medi, franchise . Pardons. From two-party, to multi-party, to one-party, to multi-party system. “Election perio”. Section 10, Section 11 1 1, Equal protection of candidates. Fiscal autonomy. D. ‘The Commission on Audit. Section 1 1 Section 2 1 2 3 Purpose, organization, composition, appointment... Powers and functions Private auditors : Review of Commission's decisions 092 1093 1098 1096 1096 1096 1096 "1096 .~ 1097 1098 1098, 1099 1099 1099 1099 1099 1100 uo 101 1107 1109 Section 3 Section 4 ARTICLE X: LOCAL GOVERNMENT. General Provisions. Section 1 1, Units of local government. Section 2 1, Local autonomy . Secti0N 3 enn 1. Local Government Code... Section 4 . 1, "The President and focal governments 2. Hierarchical elation among local units 1, Shire in the national taxes Section 7 = . 1. Share in proceeds from natural resources... SeCtION B rvresnnn |. Term of local officials Section 9 . 1, Sectoral representation. Section 10. a 7 1. Creation, division, merger, abolition, substantial change of boundary. : Section 11 = ns 1, Metropolitan political subdivision Sestion 12. 1, Classification of cities Section 13 vanson or = 1. Common efforts, services, and resources, aitSection 14 1. Regional development courts Autonomous Regions... Section 15. 1. Why and how many autonomous rei ‘Section 16. 1. The President and autonomous regions. ‘Section 17, Section 18, Section 19 1, Bnactment of Organic Acts and creation of ‘autonomous regions. “Seaton 20 ‘Section 21 Section |. = 1, , Public office @ public trust. Section? . 1, Ampeachment as “political justice”. 2. Officers subject to impeachment.. 3. Grounds for impeschment.. Section 3 1, _ Nature and initiation of impeachment. 2. Trial and penalties. 1. Legislative power of autonomous regions . 1, Peace and orders defense and national security. ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS ... 3. The Estrada impeachment tial =. 4. Only one impeachment in a year. 5. Prosecution after impeachment. Section 4 sn 1, The Sandiganbayan. Section 5 Section 6 en 1. Independent body, 1137 1138 1138 1138 1138 1139 = 1139 1140 1140 1140 1140 mas 1146 nat wat 1148 1148 nas 1149 a9 nisi sz usa uss 156 us7 37 1158 1159 1159 160 11160 ue Section 7. 1, ‘Tae Tanoddayan (Oiibudsinar} and the Speci Seation 8 Section Section 10 Section 11 1 Seetion 15 1 Section 17 Section 18, 1 ARTICLE X11: NATIONAL ECONOMY AND PATRIMONY Section |. 1 Section 2 1 2 3. 4 Section 3 1 Qualifications, appointment, term. Section 12. Procedure. Section 13, Section 14 Prescription Section 16.. Prosecutor nu Powers and responsibilities of Ombudsman and Deputies aaucial accommodations... Disclosure of assets... A public officer's allegiance General ezonomic policy of the Constitution Sura regalia and limits on dominium.. Limits on dominium, Exploration, development and utilization of inalienable resources . . (Other limitation ‘Classification of lands ofthe public domain... 161 161 162 1163 1163 163 163 1163 1164 _ 164 1165 6s 170 1170 un un ww M72 un un un 1174 74 174 un 178 179 1180 uss 1188 11882. Disposition of lands ofthe public domain. 3. Disqualification of private corporations. ; 4+ From public agricultural land to private land .. 5. Area limits on leases and acquisitions 6. Discretion of Congress in development of alienable lands. 4. Citizenship limitation. 1. Forest lands and parks. Section 5 1.” Ancestral lands and ancestral domain ‘Séetion 6 ——— 1. Lands and the common good . Seotion 7. 1 Aa.Meaning of private Tands" 2. Who may acquire private land? 3." ‘Can a Fllipino corporation acquire land. 4..-Bifect of Party Amendment oa Section 7 1. 5:, Consequences of conveyances made in violation of Section 7... Section 8 12 Exception for former Philippine citizens Section 9 Section 10. Fillpinization of areas of investment... | Section 11 1. Public utilities... Section 12. 1. Filipino First Poticy. Section 13, 1, Forms and arrangements in economic exchange Section 14 —— = 1, Care for Filipino Professionals and skilled workers wl 1, The National Economic and Development Authority. 1209 1213 1213 ras ras 1216 1216 29 rp ras 1205 1226 1228 1226 1226 Section 15, 1226 1, Developmen: of cooperatives 127 Section 16. saa 1, Private Corporations r27 Section 17 : ce 1228 | Temporary stake take over of business affected ‘with public interest . Section 18, 1231 1, Nationalization of industries i 1231 Section 19. 13 |, Monopolies and combinat 1233 Section 20. sen APB 1. Acentral monetary authority 1235 Section 21 1, Foreign loans. Section 22. 1, Penal sanctions. 1235 1236 1 1236 1236 1237 1237 1237 ——t 1237 1. Social Yustice 1. Rights of Labor Agrarian and Natnral Resources Reform 14 Section + a 1244 1. The Foundation of agrarian land reform. sess 1AM 2. Holders ofthe right to own land through agrarian land reform, sn 126 3. Priorities and reasonable retention limits, mas 4. Just compensation 1250 5. Voluntary land sharing. 135,‘The Comprehensive Agrarian Reform Law: R.A.No. 6657 1255 Section 5 1257 1. Right to participate in management of program. 1257 Section 6 187 1, Agrarian reform and natural resources. 1258 Section 7 w- 1260 1. Special rights of subsistence fishermen and fish ' Works 1260 Section 8 1263 . 1. Agrarian reform and total development, 1263 ‘Urban Land Reform and Housing v= 1264 Section 9 1264 1. Prograrn of urban land reform and howsing .rrenwn 1264 Section 10. 1266 41, Dealing with “squater” 1267 Healt = 1269 ‘Section it 1269 ‘Section 12 1269 Section 13 1269 1. Integrated and comprehensive health delivery system... 1270 Women . 1270 Section 14. 1270 1, Special protection for women im 1 1271 71 12 Role and Rights of People's Organizations. Seotion 15, 273 1273 123 wm 1275 1275 1, Fanetions of the Commission. ARTICLE XIV: EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Education Section 1 1. Quality education accessible to all citizens. Section 2 . 1. Availability of quality edveation Section 3 . 1, Desired educational values 2. Optional religious instruction in pubic schon Section 4 1, Private schoo! education... 2. Filipinization of education. 3. Tax breaks for private schools. Section $ - 1, Education in national perspective... 2. Academie freedom... ‘Language. Section 6 Section? .. 1, Filipino as national and official language 1307 Section 8. 1309 Seeti0 9 cnn 1309 1, ‘The Language ofthe Constitution 1309 1310 Science and Technology 1, Science and technology.‘Arts and Cultare : itt Section 14. = sens TBM Section 15 : 3 Bt BH Bu IL 1311 iB iB : 1. Sports Br ‘ARTICLE XV: THE FAMILY. snc IB Section. BB sj) Ye The lyf foundation ofthe ation 1313 Section .. 1313 1, Mariage. 1313 {© Section 3 _ i Specific family righ... ais "section's 1316 15 Care ofthe elderly. ren 1316 ARTICLE XVI: GENERAL PROVISIONS 1317 Section 1 1317 “The Fig. 1317 "Section 2 1317 © 1, New national name anthem eal 1317 ‘Section 3. — 118 1. Sovereign Immunity: foundation of the rl. 1318 2. When a suits agains the state... 1320 3. Ids sits ogsinst unincorporated agencies vrs 132 4. 1d sits against government officers wo 1323 5. ds suits against government-owned corporation... 1329 6. Waiver of immonity ne 1330 7. Suability, ability, execution 1333 a 1334 Section 4 ... 1, ‘The armed forces ofthe Philippines 1334 Section 5 1 1334 1. The quality of service expected from the armed force... 1335 Section 6 . 1337 1, One police fore. 1337 Section 7 1339 Section & "1339 Remuneration and benefits. .- 1339 Section 9 1340 1. Consumer protection 1340 Section 10.. 1340 1, Communication policy. 1340 Seotion 11. be 1. Mass medi ws 1342 ‘ 2. The advertising BB Section 1 1343 ARTICLE XVII: AMENDMENTS OR REVISIONS... 1344 Section 1 = 1344 Section 2 B44 Section 3 . 1348 1, Amendment, Revision, Revolution 1344 2. Popes af nenimens te 195 and 1987 methods... ee 1348, 3. Initiative and Referendum. : 1350 4 ris-uence on constionsl change. 1353 5. Inthe realm ofthe Unustl rc 1364 Section 4 = 1365 Ratification of Revolution: the 1973 Constitution 1365 2. Polite charcterof tie ete of revolaonary constitution 3. Postscript to “Javellana™ 4, Ratification and So fey of ence “1380 1381"ARTICLE XVIII: TRANSITORY PROVISIONS «1383 Seaton 16. 1391 section 1 . . 1383 1. Carve civil service officers _ 1392 1. Festetetions under the 1987 Consittion nnn 1383 Section 17 11392 Sexton? a Section 18 ra 1, Term of first Members of Congress and of first aden anes aoe Toc offi. : 1364 Section 19. ; Section 20 «Seaton 3 . 1384 cae 11, Status laws, deres, te. passed before the 1987 ; rhb ss 1. Reversion of lands and eal rights illegally sired. becca me " ines Section 22. « : 1384 . 1. Status of treaties and intemational agreements... 1385 ities aaa ae Be ee ed ection 5 es 1386 eee a 1. Team of President Corazon C. AQUIMO scanner 1386 ee . ‘22° Synchronization of elections. us 1387 Section 24 ... Section 6 — : 1388 1. Private armies 1-1, President Aguin’sepsative power 1388 Section 25. : section 7 1388 1. Foign niin bes, oops 1396 The Visiting Fores Agreement. 1. Sectoral representatives: 1388 tus ad eae uae _ Section 26 ss 01 Section 8 Z seen severe 1389 Seq 1. Sequestron orders 1402 J+ Metropolion Aatity 2 2. Subsequent jurisprudence on Sequestration. 1406 Section ~ 1389 Section 27. se ee) 1, , Sub-provinces . 1389 1. Date of effectivity of the 1987 Cons saver 1409 Section 10. 1390 Section 11 1390 1 Security of fenre of juges.. or) Section 12 1390 ; Section 13. 1330 Section 14 = 1390 "4. ases fled before the effect Constitutior ~ 1391 Section 15. 1391 1. Ten cay. over Commissions 1391 et xTHE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES. PREAMBLE We, tir sovensicn FILurino PEOPLE, IMPLORING THE AID OF AumoHrY Gon, 1 ORDER TO HUILD A JUST AND HUMANE SOCIETY ‘xD ESTABLISH 4 GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE. THE COMMON GOOD, CONSERVE AND DEVELOP ‘OUR PATRIMONY, AND SECURE 10 OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE. AND DEMOCRACY (DER THE RULE OF {LAW AAD A RICHIE OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY AND PEACE; DO ORDAIK AND PEOMULGATE THIS CONSTITUTION. 1. Deliberations on the Committee Report. The very first Committee Report to come out for deliberation by 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: We, ‘nie SovEREIGN Finiryo Pore, marLonnc THE ‘cumance oF Divine PROVIDENCE, TO ESTABLISH «| GOVERNMENT {TAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE. THE ‘COMMON GOOD, CONSERVE AND ENHANCE OUR PATRIMONY, SECURE ‘TO OURSELVES AND OUR POSTHRETY THE BLESSINGS OF PARTICIPATORY DEMOCRACY UNDER A RULE OF JUSTICE, PEACE, FREEDOM, ‘AND "EQUALITY, BO ORDAIN AND PROMULGATE THIS CONSTITUTION. "Ganiee Report No. , Commitee ca Preamble, Naonl Teor, and Delton of ‘niles, fe 10196, RECORD OF THE CONSTTUTIONAL COMMISSION 74 (1986, ering das RECORD,2 “THE 1967 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 positon to enumerate, a leat tentatively, the ideals and aspirations ofthe 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 ofthe 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- eration of the values and goals, therefore, albeit tentative, could be a useful aid for future deliberations. As it turned out, however, the Com mission, did not go back to the Preamble after the completion of the body of the document? ‘The Commission deliberations took up most of the plenary ses- sion time on June 10 and 11,? The Committee's “guidance” gave way to“aid” as the more all-embracing term. The word “enhance” yielded to the 1935's and 1973's “conserve and develop.” The addition ofthe ‘more dynamic word “aspirations” tothe 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. Anattempt to restore the phrase “general welfare” in place of the ‘Committee's phrase “common good” was not accepted. The change ‘from “general welfare” to “common good” 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. The 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 number” even if what the greater number wants does Treas at 2s, Soma No.7 48, Jone 1 and 11986, RECORD 67-109, 16-140. PREAMBLE, 5 violence to human 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 mob rule would not prevail and that the majority would not persecute the minority: ‘An sttempt to substitte “Lord of History” or “God of History” for ‘Divire Providence” was made on the reasoning thatthe suggested substitute connoted active involvement of God in the affairs of men. But the suggestion was rejected when it was pointed out thatthe phrase could be raisunderstood as an acceptance of the Marxist concept of his- tory as being the only God. Instead, the phrase “Almighty God” was ‘chosen as being more personal than “Divine Providence” and therefore ‘more consonant with Filipino religiosity ___ Another change made by the body was the insertion ofthe phrase ‘a just and hurnane 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 thet the Commission was rejecting the enshrinement of “equality” already made by the 1973 Constitution ‘The 1973 Preamble had added “equality” to reflect the mounting wave of protests against basic social inequalities which even atthe time ofthe 1971 Constitutional Convention plagued Philippine society. ‘The Committee's desire to substitute “rule” for “ rejected. Instead, the phrase “rule of law” was inserted and the cou: 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 a8 a monument to the love that prevented bloodshed in the Feb: ruary Revolution of 1986. Moreover, the insertion of “truth” i 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. “TRECORD 2,4 ‘THE 19¢7 CONSTITUTION (OP THE REPUBLIC OF THE PHILIPPINES 2,; - Purpose and effeet of the Preamble. Goistinitinally, however, a Preamble is nota source of power or right for any départment of government * But because it sets down the ‘origin Sipe, and purpose of the Constitution, i ascertaining the nieaning of ambiguous provisions in the body of the 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 inthe 1935 Preamble, ‘Thé Preamble, moreover, bears witness tothe fact that the Consti- tution is thé manifestation of the sovereign will of the Filipino people. ‘This ide 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 cffect 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 itn 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.” The text thus suggested that inde- pendence was still merely an aspiration (as indeed it was 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 democracy” and calls the Filipino people “sovereign.” acobaon Masochsers, 197 US.2 (1905) 64 Phi 201,206 193, Arricte I Tue NATIONAL TERRITORY StCrION 1, THE NATIONAL TERRITORY COMPRISES Tilt PaurrINe ARCINPELAGO, WOTH ALL THE LANDS AND WATERS [EMDRACED “THEREIN, AND ALL OTMER TERRITORIES. OVER WHICH ‘TwE PIOLIFPHges WAS SOVEREIGNTY OR JURISDICTION, CONSISTING (OF TS TERRESTRIAL, FLUVIAL, AND AERIAL. DOMAINS, INCLUDING TTS [TERRITOR’AL SKA, THE SEABED, THE SUBSOML, THE INSULAR FUELVES, AND OTHER SUSMIARINE AREAS. THE WATERS. AROUND, BETWEEN, [AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS (OF THEIR oREADT AKD DIMENSIONS, FORM PART OF THE INTERNAL \WareRs OF Tie PHOLsrPrNEs. 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- stitusional 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 Philippiues 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. ‘Acconsiitution is @ municipal law, As such, itis binding only with- in the territorial limits of the sovereignty promulgating the constitution For purposes of actual exercise of sovereignty, itis important forthe sovereign state to know the extent of the territory over which it can legitimately exercise jurisdiction. For purposes of setling international conflicts, Kowever, a legal instrument purporting to set out the terto: rial limits of the state must be supported by some recognized principle 56 “THE 1967 CONSTITUTION feet (OFTHE 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 Jegitimiziig a territorial claim not founded on some legal right pro- tected by international law. Ptilippine constitutionalism accepts the principle that itis not the Constitution which defintely fixes the extent of Philippine territory This principle ran through the debates on the national teritory daring the 1935 Constitutional Convention.’ The existence of a territorial def nition in Article [of the 1935 Constitution was not & denial ofthis 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 possiblity of transforming the Constitution, a municipal law, into an international document arose from a provision ofthe Tydings-MeDuflie Law which prescribed that the effectivity of the Philippine constitu tion, would depend party on the acceptance of its provisions by the United States Government? Delegate Singson Encarnacion put the mat- ter bluntly: “Es cosa necessaria para nosotros. No deberios redactar nuestra Constitucion, como se ha repetido aqui muchas veces, imitando simplemente la Consttucion de otros paises; debemos poner aqui lo ae exncesario afin de gut despts no 30 coneron aguas de ruestrasislas en ‘yoyo’, 0 sea, que Estados Unidos retire fo que hoy de ‘buena gana nos concede.” Answering the question of Delegate Palma, Singson Encaracion was even more blunt: “Como sabe su senoria muy bien, én este mundo no rige el verdadero derecho internacional basado en la justicia estricta sino a fundada en fuerza de los canones, -y claro esta, ¢s mejor que fortalezcamos desde ahora.”* TV 19841935 CONSTITUTIONAL CONVENTION RECORD 318389, 389-447, 490, 528 1967 erlnafierto be ore toa 135 CONVENTION RECORD, "Seq, 3, Act. M24, 1934, Ch 84 48 Sea S46. “WIG3S CONVENTION RECORD 22, “1d.m 347. Aer Singson Encarnacion’ intervention 8 vtewas ken on 2 motion s69- reste provision on onl eran The mation wt defeated vate 80 119,14 386 Set 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 Tresty of Paris concluded between the Uaited States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article I bf suid treaty, gether with all the islands inthe treaty concluded at ‘Washington, between the United States and Spain on the seventh’ day of November, nineteen hundred, and in the treat concluded ‘between the United States and Great Britain onthe second day of January, nineteen hundred and thirty, and all teritnry over which the present Government ofthe Philippine Islands exercises juris- diction, ‘The article, thus gave four points of reference for the deteiminae tion of Philippine territory: (1) The Treaty of Paris on December 10, 1898; (2) The Treaty of Washington on November 7, 1900; (3) The treaty between Great Britain and the United States on January 2, 1930; (4) “all territory over which the present Government of the Philippine Islands exercises jurisdicto By Aticle lof the Treaty of Paris, Spain ceded to the United States “the archipelago fenown as the Philippine Islands, and compre ‘hending the islands lying within” the line drawn by the technical de- scription ofthe same article. The technical description embodied in the ‘Treaty of Paris, however, left some doubt about the inclusion within the ceded ‘erritory of the Batanes Islands to the north and of the Islands of Sibutu and C-zayan de Sulu to the south as well as of the Turtle aad Mangsee Islands. The Treaty of Washington of November 7, 1900 cor- rected the error with respect fo 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 Janvary 2, 1930 The doubt with respect to the Batanes Is- lands, however, was left unclarified in spite ofthe fact that, from time immemoril, these islands had undisputedly formed part ofthe Philip. pine Islands. Hence, to remove the doubt, the 1935 Constitution added a88 "THE 1967 CONSTITUTION eet (OF THE REPUBLIC OF THE PHILIPPINES the clause.“all territory over which the present (1935) government of 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 on National Territory wis the late Delegate Voltaire Garcia (Rizal).” Garcia argued that fetorial definition was a subject of international Jaw, not of municipal law, and that Philippine territory was already de- fined by existing treaties. As for the Batanes Islands, Garcia pointed ‘ot, that no state ever questioned the continued exercise of Philippine SGyereignty over these islands. While the definition of Philippine ter- ritory in the 1935 Constitution might have been useful in 1935, Gar- cia Gbserved that its continied presence in the Constitution had in fact «embarrassed the Philippines in negotiations for territories not covered by, the constitutional definition, Hence, Garcia concluded that a cons tutional defnition of territory would not only be unnecessary but could even be prejudicial tothe interests ofthe Philippines. Answering th: ac- "that his reasoning was tacit advocacy of expansionism, Garcia said that international law recognized peaceful modes 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 single out the movement to claim the Marianas Islands, a trust territory which the United Nations was then repering for independence. Delegates Amanio Sorongon (loilo 3rd district) and Magtanggol G. Gunigundo (Bulacan Ist district) supplied the “nationalistic” argu- 327; Coninee Report No,01, Commitee on Naina Testor, 1971 Consitatonn Convention, Jan 15,1972; Commie Report No.7, Conant en Terral Delian 1938 Consist Convention, Angst 31,193; I Atoco. Tix Pac ore Piurne CO ‘now 17-19 (1990), ringer eed ws Axouso. On he Baars son, set sea Sesh of Delegate ie, Serio of Febrary 1,172 "Speeches, Sess of Ferny 10a 15,1972, “fra, set ART. — THE NATIONAL TERRITORY ° iments for deletion of the article on national territory. Sorongon fouind the mention of the Treaty of Paris a repulsive reminder of the indig> nity of our colonial past? Gunigundo, in utter disregard ofthe hjstorie evolution of the Filipino nation, claimed that the Philippines existed before Magellan ever came. More plausibly, but only after a leap over fout centuries of history, le recalled that Felipe Agoncillo had protested Spain's cession ofthe Pailippines to the United States, frst, because the Philippines had not been consulted, and second, because Spain bad a, ready lost effective control over the Philippines. Hence, he argued that to accept the territorial boundaries defined inthe 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 home of the Filipino people might be larger than the Treaty of Paris would allow." — ‘The arguments forthe inclusion of an article defining the ational territory rar aloug two levels. On one level was an attempt to dem onstrate the need for a clear definition of Philippine territory: Thus} Delegate Raul Roco (Camarines Sut) argued that a territorial definition ‘was necessary for the preservation of our national wealth, for ritional security, and as a manifestation of our solidarity as a people." Siniliry, a ian Jen eatton Sch Selim Feta 151972. Srp frre procs el 7 eid hat cnr ot emnd oo oP in fo xi = asain Ps, Baan 7 “NeGunig do's speech is a rambling sort of oratory best suited for losing » good cause, Session of Ferny 15,1972 "A Ronaphal oyament for deson was spt by Dele Manel . Malina (Costin. esd bf Saban wee We mde prof Philpott te Fp Cerra wl ee fo op ea casero soeelig fo Sth, Ab he Preset Seca sedan Ss nt cod hy el schon =a von Sonn fata 15,1972 a ‘Nesey pity Deu Clee Abdo (Cts) lee. coc -messFone ha dey een no Sesion oF 15197 “Sp Son af ry 592 Ds Ro a itt re i nore aot npn ins federico te pple enpatony Noe heat at ite peopled enon a he Tay of Par af ei sei ves in io ein htc Jon iva Ste Er dnd Gti) pesing abut i Coma eo ss opel nid Pts ea a he en ee manent etn of ron SERSUTA. No s086 at RA Ho, Sts, Sern, while Oe pop ned sore ‘Str wt lam amino ip eee Hee usr opi eat nr erp Piiine pa onal, he seeines Sheol gran acto he Cane, Spec, Sesion Rebaan 15,1072'o THE 1597 consTTUTION see (OF THE REPUBLIC OF THE PHILIPPINES Delegate Jose Nolledo (Palawan) expressed concer for the protection of our national resources." ‘The arguments of Raco and Nolfedo, 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 def 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 thret points. First! he said that the territorial assertions found in Republic Act 3046 were couched merely in “Whereas” clauses. These clauses should be expresséd 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 ofthe 1935 Constitution to express the possibility of future territorial acquisitions by the Philippines. He said that this failure had caused the Philippine ‘goverment some embarrassment in two conferences over Sabah, fist in Londonjin 1963 and then in Bangkok in 1968. Delegate Nolledo added thatthe ratification of the Constitution by the people should strengthen the Philippine teritorial position." Similarly, Delegate Ale- Jjandro Lichauco (Rizal) argued that such an important matter as ter- Fitorial delimitation should not be left to subordinate agencies of the govemment 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. The transposition of the provisions of R.A. No. 3046 to the Constitution would transform such provisions {nto constitutional provisions, but the provisions would remain munici pal law, not international law. The deletion of the article on national territory would not mean abandonment of the Batanes Islands or ény portion of Philippine teritory as long as Philippine jurisdiction contin- ued to be actually exercised over such teritories, as in fact ithad always, ‘been exercised even before the curative clause of the 1935 Constitution, Speech, Sesion of Febreay 15,1972 speech, Setson of etry 15,1972, Quer wat ameter ofthe Philp ee tepating Deg V. Garcia, Sesion of Foray 14,1972 Set ART. ~ Ta NATIONAL TERRITORY " Nor could she argument of estoppel, used by the British government both in Londen 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 Cotistitution cariot be fully understood with- ut reference to Article T of the’ 1973 Constitution. Although thé’ 1986 Constitutional Commission spent a considerable amount of tite on Ai- ticle I, inthe end the provision that emerged was in substance a'copy of its 1973 Counterpart ‘ ‘Article ofthe 1973 Constittion said: “The national tenitory Gomprises the Pilprine rcipeag with alle islands and waters embraced therein, a al thet f=" ‘ores belonging tothe Philipines by historic ight ot legate, Jncling the territorial sa, the ar spce th sbsol the ea-bed, the insular selves, and the oer submarine areas over hich he Philipines has sovereignty or jrsicion. The wae around; be- tweet and conectng the islinds of he archipelago respective Of tei breedih and dimensions, form pat ofthe intemal Waters ofthe Philipines. " 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, ahd 1 downward reach consisting of submarine areas. Moreover, the last sentence of the provisions makes an important assertion of adhererice to the “archipelagic principle.” ‘a. The Philippine Archipelago ‘What o where is the Philippine archipelago? The answer given by Article Iof the 1973 Constitution simply made reference to “all the islands and waters embraced therein.” The Article, however, gave no point of reference *at could delineate the exact location ofthese islands and waters. On its face, therefore, the Article did not serve as a defni- tion of national territory. To understand its meaning, one must look into the evolution of the Article from it fist draft to its final form.2 “THE 1987 CONSTITUTION set (OF THE REPUBLIC OF THE PHILIPPINES Section i of'the sirst draft submitted by the Committee on Ns- tional:Teritory almost tterally 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 not simply as the Philippines bat ds-“the Philippine archipelago." In response tothe criticism thatthe definition was colonial intone 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 che Phil- §ppine archipelago, as “the historic home of the Filipino people from 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 asthe ancestral home ‘of the Filipino people, Afléf debated dn February 14 and 15, 1972, the Committee re- paired back t6 the drawing board and fumigated the draft of all co- lonial yermin by dropping all reference to prior treaties. On February 17, 1972, the Committee reported out a final draft, more aseptically patriotic then clear, which,became the initially approved version: “The national territory consists of the Philippine archipelago, which is the ancestral home of the Filipino people, and which is composed ofall the islands and waters embraced thercte ‘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 clrter of islands forming a territorial unity, or a8 a unit of water studded with islanci. 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 defiaition, the land area is everything that comes within the water area. The Committee preference was for the second definition.'* Asked by Delegate Roseller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero answered that it was the area delineated in the Treaty of Pars. He said that objections to the colonial implication of mentioning the Teepe No.0 of te Cosmin om Katona Terry "eyo Ne02 of fe Commies on Nason! Trey. Sanary 31, 1972.DelesteQuin- ‘er sing out Ambar Leon Ma, Guerra he rina source ofthe em Sesion of Pbmay 14,1972 "Seen of Febevary 14,1972 set ART. THE NATIONAL TERRITORY B “Treaty of Paris was responsible for the omission of the express mention of the Treaty of Paris. Repos: No, 02 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 ona nap the boundaries ofthis archipelag 4 set fort in the Treaty of Pars,» huge or giant rectangle will emerge, measring about 600 miles in width, and over 1200 miles in length: Tnsde this giant rectangle are che 7,{00 island compris- ing the Philippe Islands. From the east coast of Luzon to the caster boundary ofthis huge rectangle in the Pacific Ocean, there {sa distance of over 300 miles. rom the Westcoast of Luzon othe ‘western boundary of thi gan rectangle nthe China Sea, thee is ance of over 150 miles." * ‘When thie Waited Stated Government enacted the Fone Law, the Hare-Hawes-Citting Law and the Tydiagy MeDusie Law ft fn realy amounced tothe whole world that it was tuning over to the Government ofthe Philippine Islands in archipelago (tht is) ‘body of water studded with islands) the boundazies of which ~~ auchipelag are set forth jo Article TT of the Treaty of Pais, Tt go announced othe whole world thatthe waters inside the gant rouge telog tothe Pipines — Wat ey ao pat of ie igh ens. When Spain signed the Treaty of Pais, in effect she an- ‘nounced 8s the whole word 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 cowisted of the noge body of water inside the boundaries andthe islands inside said boundaces, ‘The delineation of the extent of the Philippine archipelago must bbe 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, 1930, in order to include the Istands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands. However, although the Trip wih Lim led hh et hou be ltr even ae ko unin coli. Sees Fett 17,1972 Sapra te 5“ ‘Tig 1987 CONSTITUTION set (OF THE REPUBLIC OF THE PHILIPPINES evident intent ofthe Convention was to secure the inclusion of the Batanes group, the definition of the archipelago didnot include the Batane group. Even the map éistrbuted by the Commitee on National Territory placed the Batanes Islands outside the boundaries of the Philippine archipelag a et forth in the Treaty of Paris nitera terms therefore, the Batanes islands would come not under the Philiprine archipelago but under the phrase “ll other territories belonging (othe Philipines It s submited, however, since both geographically and historically these islands form # amity with the Philippine archipelago of the Treaty of Paris they shouldbe considered par ofthe Philippine archipetago for purposes ofthe 1973 Constitution” ____ The conclusion that emerges from this discussion is that the “Phil- ippine archipelago” of the 1973 Constitution corresponds with the tx- ritory defined in Article I of the 1935 Constitution. Thus must the 1973 efnion be understood if so bea usta esiniton at all nd not Just a'piete of patriotic assertion of national history dating back to an- ‘cestral Madjapahit rulers In other words, try ts we might to forget on colonial past by erasing colonial traces from our Constitution, remem bering history also serves our national purpose. , bis» “o. wait other territories belonging to the Philippines by historic right or legal ttle.” a Under the 1973 Constitution, aside from the Phil the 1973 , 1m the Philippine archipel- 80, Philippine tenitory also includes “all oher trios belonging tothe Philipines by historic ht or legal le.” What are these oer territories The history of this provision goes back tothe last clause of ofthe 1935 Canon wince "al ere oe whch present Government of the Philippine Islands exercises jurisdiction.” Section J of the first draft of the 1973 version updated the 1935 version to,read: “All the territory over which the Government ofthe Philippines was exercising jurisdiction on July 4, 1946 as well as territory which Fite porcine Bane ade wine Pipe aipetgy wi sezone spre hese eral ats fe Pipes Bsr in eon pr pap of earl are dscssed. Quatro si "Te oc aon of eciglagy is ‘sae mins nym sigs mes pd oo see ART. — THE NATIONAL TERRITORY 8 said government has acquired or over which it has a right."= The secorid draft simplified the modification thas: “All other territories over which the goverment of the Philippines has heen exercising jurisdiction or lover which it has a right.”® The final 1973 version was the draft re ported out on February 17, 1972. Te will be recalled thatthe last clause of Article Iof 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 11, 1972, Delegate Custodio Villalva of Batanes said thatthe first portion of Section 1 ofthe 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 cr durative tense and intended to place the ten small islands of the province of Batanes under the sovereignty of the Philippines." ‘Committee Report No. O1 also said that the phrase found in the first draft which referred to “territory which said government has acquired for 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 Freedom Lund and the Marianas Islands.” This comment Cf Committee Report No. 01 is also applicable tothe clause in the sec- ond draft which referred to all territory “over which (the Philippines) has a right." Thus, 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 right have a claim both then and in the future. The clause Was inserted jim 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 caried over into the final draft which said “all the other territories belonging to the Philippines by historic right or legal title.” Comittee Chairman Quintero said thatthe word “belong ing” was used both in the present and future sense: “now or later may belong.” By “historic sight,” Quintero said, Batanes Gelonged to the easion of Faron 14,1972. Pa, ‘Via ses going iat some dtl onthe hstry of Baas, sk makes he lin stetmereetasonot Ari 1a he 1935 Constnton wold have eet of excoing Bares {fom Pile terry Tis weer i ot heck whether Vila’ history 8s bad as is ev.6 ‘Tu 1987 CONSTITUTION Set (OF THE REPUBLIC OF THE PHILIPPINES Philippines because in all ts history Batanes had always been & 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 tile” perfected in 1962. “Legal title” was used to mean all accepted Jegal modes of acquiring territory Briefly, then, the phrase “all other territories” was a catch-all used tocover areas linked tothe 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 1 formal claim. It covered the Marianas Islands and Freedom Land, claim over which was under investigation. It covered any other teritory which the Philippines might acquire in the future through accepted interationsl modes of acquisition. The clause therefore was nothing rmore:than an insurance clause which could be meaningful only if supported by ttle extraneous to the Constitution, che territorial sea. “The territorial sea of a state, as distinct from its inland and internal water consists of a riarginal belt of maritime waters adjacent to the ‘base lie extending twelve nautical miles outward. Outside the terito- rial sea are the high seas. A state exercises sovereignty over its terito- rial sea subject to the right of innocent passage by other states. Innocent passage is understood as passage not prejudicial to the interests ofthe coastal state nor contrary to recognized principles of international law. ‘The traditional length of the territorial waters measured seawards, a:- cording to the cannon-shot rule formulated in 1702, was three miles, the effective range of 18th century defensive shore batteries. Modern lav, however, now recognizes twelve nautical miles. ‘Sesion of Febery 17,1972. Delegates Quintero and Jl Ana (Sus) give te History ofthe Saba cli In Senin of Febuary 12,1972. Deep Amado S.Tlenine (Oneal ‘Mindoro expounds on the Rings cs the Milam Isldy and Delegate Groino M. Cabal (Damtane) om the ndings on Freedom Landa Sesion of February 14, 1972. Comes Repo No. contains substi the ame materi. Immediate verse ection to the Convention chim oer he Marinas sands ws p= lin aviting Gaameian enter Sen Gore M. Bert, The Philipines Herald Friary 211972 pa Unde te 1938 Conon, the Pilptes may nny aque tito not covered by Anil Lanes 124125 se. |ART. I= THE NATIONAL TERRITORY. ” ‘Two methods are used for fixing the starting point or baseline from which the territorial belt is measured seawards: "the normat base- Jine method, under which the breadth of the territorial sea is medstired 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 sinuosiies of the coast, itis drawn as straight lines connecting appropriace points on the coast, without departing to any appreciable extent from the general direction of the coast.” oth the frst and second draft ofthe 1973 ancl on national er ritory contained the following provision “All the waters beyond the outermost islands of the archipelago within che Boundaries se forth in the reais and convention mentioned in Section | hereof compris tenitorial sea ofthe Philippines.” The tea to were those found in Article ofthe 1935 Const provision represented the official position espoused by the Philippines in inteational conventions and iti fund in Republic Act No. 3046 (1961) and Republic Act No. 5446 (1968). ‘What, then, was the extant of the territorial waters claimed by the 1973 Constitution which antedated the 1982 Law of the Sea? The final draft, unlike the fist two drafts, simply claimed jurisdiction over “the territorial waters,” without making explicit the extent of the area claimed. It must also be pointed out thatthe Convention was aware that this claira, which extended Philippine teritorial waters beyond the ol three mile rule, was something which had yet to be accepted in inter national circles. In lnis sponsorship speech delivered on February 1 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 ( law of the sea in 1973 where “every effort will be exerted to get accon' 6m the breadth of the territorial sea."™ The hope, however, was als "Srna ao Var Pea eno, Law 158-9 (1968), R.A. 3046 and R.A. S46 daw nrg borlines wound be Pipi. ‘SQvier aed tat average reso terol ea clined by Republic Act 46 inonty 15 miles, “The Repo he Pines elves tha is easonebe considering South American coun: have declared hi terri est be 200 mils. And the United Stes which wa the sdpton ofthe ternial es ony sx les wie Ds eid in be Pace Ocean he spelled tltyWentetion zone. They hae cored {400 mies md they an stg any nae" Tey ci conte ese raf to identify sel en be sojet 0 penalty ‘oes at "Speech, Session of Febery 11,197218 “THE 1987 CONSTITUTION Sent (OF THE REPUBLIC OF THE PHILIPPINES partly strengthened by the decision of the World Court in the Anglo- Norbegian Fisheries Case® which upheld the stright baseline meshod offing 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 inthe final drafi: “The waters around, between and connecting the islands of the afchipélago, respective oftheir breadth and dimensions, form part of the interhal waters of the Philippines.” Ths assertion, together withthe “straight base line method,” form the “Archipelagic Principle.” The significance of this assertion les inthe meaning of “internal waters” Internal or inland waters consist ofall parts ofthe sea land- wards from the baseline as well as iniand rivers and fakes. All of them sre subject othe sovereignty of the stat tothe same extent that the land domain is. Unike territorial waters they are not subject tothe right of innocent passage by oer 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 tothe Philippine archipelago, irrespective of their width or dimension, are necessary appurtenances of the land territory, forming an integral pat ofthe national or inland waters, subject tp the exclusive sovereignty ofthe Philippines. ‘This concept, on June 17, 1961, was embodied in Republic Act No. 3046 whence it found its way into the 1973 Constitution in the "LCI, Repos (1951)190-The arma om hi cases by arly an, therefore 1 ong athe aaogy Set Commitee Rept No, Ol and Speech of Delegate Lagat, Sion ofFebnay 14,1972 see ART. [= THE NATIONAL TERRITORY » hope that it would eventually’ gain international acceptance. Commit tee Report No.1 of 197 said: “The inclusion in the new Constitution of a provision spelling out the archipelagic principle of the Philippine Government will certainly strengthen our historical postion and will help us in sustaining our archipelagic theory in the Conventidn on the Law of the Sea in 1973 and in any case that may possibly be ventilated before the World Court in the future.” ‘The 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 Mindanao Sea, the Sulu Sea — would bee considered by the Philippines in the same light as rivers and lakes found with. te islands themselves. It should be noted, however, that this assertion was envisioned to apply only to the waters connecting the islands ofthe archipeiago proper. It was not meant to apply to the ‘waters between the archipelago and “other territories belonging tothe 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 ofthe Philippines also extends to the aie space over its land territory and its territorial sea as well as, te its bed and sub-soi Section 6. The extent of the control thatthe Philippines ex- excises in the con iguous zone and the superjacent waters of the continental shelf shal! be determined by law. ‘The second draft came out thus: Section 4. The sovereignty ofthe Philippines... also extends lover the airspace above its iand area, its internal waters and ter- ritorial seas as wel a to its sea-bed and subsoil Sesion f Ferunry 17,1972, Sean sid tat fhe nen wer the inde “reaoctve of ther Heath td dinensonsy dive mates Weal extend outward ‘nine inal deco, aint answered at efeeace is meey wo conocig Water. Tht imperiecion of te tet however, end ality Sere’ reading ious oo maybe» "THE 1987 CONSTITUTION Set (OF THE REPUBLIC OF THE PHILIPPINES snes) Section 5, The National Assembly sal eine the conta tha he Philippines wil exercise in he contiguous zone ad inthe superacent waters ofthe connental shelf. Génkmening on Section 4 of the second drat, Commitee 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 ar navigation has developed from the Chi- ‘cago Cotivention on Intemational Civil Aviation (1944) which entered ‘into force irt 1974. Articles 1 to 4 of the Convention set down the gov- exning principles: “Artil 1. Sovercigty | The contracting States recognize that every State has com= plete and exclusive sovereignty over the airspace above its teri- tory. Allele 2. Teritory For the purposes of this Convention the territory of a State shall be deemed tobe the land areas and territorial waters adjacent ‘therdt6 uider 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. The development of the law on ‘outer space modified this assertion. Sovereignty over air space extends only until where outer space begins. But where is that? ‘There is as yet no definite answer to that question. The answer will eventually come from technological capabilities of conventional aircraft to reach greater heights. Different nurnbers 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, Committee Report No. 02 suid ‘The Convention on the Territorial Sea and the Contiguous Zone adopted by the Geneva Conference of 1958 allows a coastal set ART. 1 = THE NATIONAL TERRITORY a state o exercise some control over the contiguous zone, which is ‘part of the high seas. The Convention on the Continental Shelf adopted by the Geneva Conférence in 1958 allows a coastal state to exercise over the continenial 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 bureau of the Phil- ‘ppine Government, Under the circumstances, the Committee:on National Territory believes that the matter of the extent ofthe con ‘20 the Philippine Govemment should have in the contiguous zone ‘nd ia the continental shelf may be left to the National Assembly for futur~ decision. " r It will be noted therefore that, while sovereignty is claimed over the air space, sub-soi, sea-bed, the insular or continental shelves and other submarine areas, the physical extent ofthese areas and te degree of contol claimed over these areas were left undefined. Ths indeter- minate stance was preserved in the final 1973 version which simply claimied “the air space, the sub-Sol, the seabed, the insular shelves other subsnarine areas” as part of Philippine territory. Detehninstion, in other words, was lft to other modes than by constitutional precept." 5, 1982 Convention on the Law of the Sea (LOS)* ‘The 1987 Constitution was formulated while the Philippines was already a purty to the 1982 Convention on the Law of the Sea. The: ‘cussion of the 1982 Convention was not very thorough, However, since the Convention has substantial provisions which help in the understand- ing ofthe constitutional text, itis best to teat these before going on to the 1987 version. Some important concepts found inthe Convention are archipelago, archipelagic state, archipelagic wears, baseline, “pains Tanniano Henmogo (Bekcan, 2d avi) bs» ong dngubstion ona pce in imermtions lw ton the continental sel Sesion of Febery 12, 1972 Sev ale te ex ‘hanger on te connetl hel erwen Deleaes Aarne and Quiero, Session of Febeay 14 {97h and or ai spice between Delegate Heanor and Rebeck Eprta (Nueta Est). Sess tf Febmary 17,1972. The all embrcing cheracier of “her subarne was is iced in he ‘echangesnong Deeper Semane, Quintero, nd Emnomel Seis (Neva Fel), Seson etry 1.1972 "Done a Montego Bay, main, December 10, 1982. Sy pais e necessary fore ‘Convention cae it face. Ar of November 1980, fy four had cee PCS2 “THE 1987 CONSTITUTION set (OF THE REPUBLIC OF THE PHILIPPINES Archipelago, archipelagic state ‘The Convention contains @ definition of an archipelagic state, ‘which the Philippines is, and an archipelago. Article 46 says: vor the purpose of this Convention: ° (@) “Archipelagic State” means a State constituted whol Iy by doe or more archipelagos and may include ihe stands; vce ©) | “Archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features ‘Which are so closely interelated that such islands, waters and th- er natural festures form an intrinsic geographical, economic and politica entity or which historically have been regarded as such. "HL be nted that under the above definition of an archipelago Batanes should be considered part of the archipelago and not just of cihetiefioie§ outside the archipelago. This conclusion has implica- tiohs for the application ofthe archipelagic principle with reference to ti ter Between Batanes and othe islands ofthe ersitory which wll 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 terito- 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 rile rule has now been discarded in favor of the twelve-mile rule now found in Article 3 of the 1982 Convention on the Law of the Sea. Where, 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- pésite Baselines. But the equidistance rule does not apply where historic title or other special circumstances require a different measurement.” Arie 151982 LOS. Set ARG. — THE NATIONAL TERRITORY B Baselines ‘To understand the extent ofthe territorial sea one must begin with ‘an understanding ot baselines. The baseline is “the low-water line along, the coast as marked on large scale charts officially recognized by the coastal Sate." The width of the territorial sea is measured from the baseline. ‘There ar2 two ways of drawing the baseline. The “normal” base- line is one drawn following “the low-water line along the coasts marked on large-scale charts officially recognized by the coastal State.”* This Tine follows the sinuosties ofthe coast and therefore would normally not consist of straight lines, Tere is no fixed norm for determining the “low water mark” but the Anglo-Norwegian Fisheries Case™ suggested that “forthe 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 wo tides, which has generally been adopted inthe practice of States. Ths criterion is the most favorable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land terrtory."” Archipelagic States, however, instead of drawing “normal base- lines,” have drawn “straight baselines.” Instead of following the sinu- sities ofthe 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. The case upheld the validity ofthe straight baseline unilaterally adopted by Norway. Likewise, R.A. No, 3046 and. R.A. No. 5446 have drawn “straight baselines” around the Philippi ‘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 coastlize 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 Seaton 52.08 anil 5, Lew of th Se. SUK.» Norway ICI 1951 19 Cd 16,1284 “Te 1967 CONSTITUTION s (OF THE REPUBLIC OF THE PHILIPPINES: a jn drawing the baseline from which the breadth of the territ a is 1s in ich th of the territorial se The provision on baselines found in Article vention are:the following: ee i. Anarchipetagic Sn i i te may daw tight archiplagie _ Simson tron it theo dying eff the mchiplgo provided that win such bees 4 ele ean ns ta an tn whch eo 1¢ fea of, the water to the area of the land, ir " “tea ie wi the ind, fciding sol 2: Thelengiofsohbastn sl “ tne sal ot eed 100 na cgi excep of ea tr aa ns enlesing any achiplago may exced tht eg maximomength of 125 pal mies "8 "132" THe desing of such baselines shall of sch basctnes sl nt dpa 1 appnlahicexet oe general confgurton ote achge, re 4, Such bate shall tbe dawn 0 an fom lowe + tie levatns nes lightones or Sir insalatins ch "a permanently above rel have ban built nthe whee owe cevaion situate whlly paral aan oat trceeding the teat ofthe eral en fant State 5. Thesystemof such baselines shall not be niin lines shall not be applied to an schipeagl Sato sc manera ctf fom hehigh ses ive economic zone the territorial sea of another State. secant tafe feethinerosoe eae en ae 1." Witenes satin Simca ocd eae ae ae ae, "Sez alan 15% Territorial Sea Convention ART. —THENATIONAL TERRITORY % chain of limestone islands and drying refs lying onthe pesimeter ‘ofthe plateau. : 8, The baselines drawn in accordance with this ‘article shall be shown on charts ofa Scale or scales adequate for astertain- ing thee positon. Alteratively, lists of geographical co-ordinates of points, specifying the geoetic datum, maybe substituted, 9, Theatchipelagic State shall give due publicity to such charts fists of geographical co-ordinates and shall deposit copy ofeach such char or lst with the Seerelary-General ofthe United Nations. Amticle 47 is both a solution and a problem. Two observations intimately interconnected need to-be made. First, paragraph 1 affirms the use of “straight baselines" as practiced by the Philippines. How- fever, paragraph 2 prescribes that “straight baselines” may not exceed a maximum of 125 nautical miles. Some of the lines drawn by Republic ‘Act No. 3046 cnd Republic Act No. 5446 extend beyond 125 nautical miles” [At the tine 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 recuirement of the Convention on the Law ofthe Sea and to eal with the territorial disputes over ateas claimed by the Philippines Sovereigyty over territorial waters [A state exercises sovereignty over its territorial sea subject ro 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: 12. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State ifn the teritorial sea it engages in any of the following activities: (a) any threat oF ute of force against the sovereignty t= ritorial integrity or political independence of the coastal State, ot Wee Covwias Drveionvexr of rie Ancrreincc Dacre 46 « Recoowmem Pails oF Inpro Low 56 PAM. 3. 13,28 0989).26 [THE 1987 CONSTITUTION Sat (OF THE REPUBLIC OF THE PHILIPPINES in any other manner in violation of the princes of international law embodied isthe Charter of the United Nations; (),, any exercise or practice with weapons of any kind; 1(@) any act aimed a colin infomation to the rejo- dice of the defense or security of the coastal State; ms (@)" any act of propiganda simed at affecting the defense cor security of the coastal State; Sea, Oe Mimi, mag or aking o Don of ays (the launching, landing or taking on board of any mi tary device; (2) . the loading or unloading of any commodity, currency ‘or person contrary 10 the customs, fiscal, immigration or sanitary laws and regulations of the cosstal State; + (h)” any act of willful and serious pollut pce pollution contrary to this (any fishing activities; @) tho canying ou of research or survey activites: ssi tine interering with any ees of com ikon or ny ie faites or instalation of he coun sage, TY OEY Raving a re Being ps Coastat 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 1 of the 1973 Constitution said: “The waters around, berneem and connecting the islands of the arch.pelago, irrespective of their breadth und dimensions, form part of the internal waters of the Pipes. This assertion, together with the “straight base line m th the “Archipelagic Principle.” This now rf 1987 Constitution. eee cciaiiiel ‘The significance of this assertion lies in the mé vee jes in the meaning of “internal raters.” Internal or inland waters consist of all parts of the sea land- sent ART {— THENATIONAL TERRITORY a wands from the baseline as well as inland tivers and lakes. All of them Ihre subject tothe sovereignty of the state to the same extent that the land domain is. Unlike territorial waters, they are not subject tothe 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 fonth in Article 7 has the effect of enclosing és intemal waters areas which had not previously béen conidered 8 such, aright of ihnocent pastage as provided in this Convention shall exist n those waters.” Ar Bele 33 of the Convention refers to this type of intemal water as “ar chipelagic waters” and says that “[alnarchipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and ex- peditious passage of foreign ships and airoraft trough or over itsarchiy Felagie waters and the adjacent teritoral sea"In effect, therefore, the Taw of the Sea provision establishes a right of innoceat passage. over ‘waters which the Philippine Constitution considers as internal. ., “Aware of this possible confit, the Philippine government, in sign- ing the Law of the Sea Convention, made the following reservation: 1. ‘The 'ning afte Convention by he Goverment of ‘the Repub’ic af the Philippines. ‘shall not in any mafiner impair or trajnde the sovereign rights A thé Republic of thé Philipines rer end arising fom the Constitution ofthe Philipines; 2. Such signing sal olin ny manner affect the sover- eign rghs of € « Republic ofthe Philippines as svecessor to the Tete Snes of America, ander and arising out ofthe Treaty of pars between Spin andthe United States of America of Deceen ‘ber 10, 1988, and the Treaty of Washington between the ‘United Sunes of Amica and Grest Brits of January 2, 1930, . 43. Such signing shall not diminish or in any manner af- {feet the rights end obligations of the'C« icting Parties under the Mutual Defense Treaty between the Philippines and the Usted ‘tes of Americ of Angost 30,1981, and its related interpretative instruments or those under any priaenc bfateral or muster tay or apreement to which the Philippines is «pay: “SUTN Office To Oceans Affe aid the Law of the Sen Lav af he Sea Bullen. Speciah sng L Meh 189. Anvek Tp quoted Sheer, Ouven, LR, Te earn SE 183 Ged Ba. 1988 ‘THE 1987 CONSTITUTION Set (OF THE REPUBLIC OF THE PHILIPPINES. ote en ux x .'""°"The' provisions of the Convention on archipelagic pas- "sage tronigh sea anes donot nlf or mpi the sovereignty of the Philippines as an archipeagic State oer the sea fanes and do not deprive it of authority to enact legislation to protect its over laity, Independene, and sec | sonude The eoncept of archipelagic waters is similar to the concept of intral ters under the Constinsion ofthe Philip- Sf, and removes sits connecting these waters with the eco- ‘ofc 2one oc high ea fom the rights of frcign vessels o tani astage for intemational navigation: ‘The édt¥ition, iowever, may be seen as merely a cautelam. ‘The tlaiin ida in the Constitution took effect in 1973 before the 1982 ‘Law bf the Séa\Cnvéhtion was formulated, Article 82) ofthe Conven- titel Says thatthe iew rule on arcipelagic waters applies only to “areas which Hh io reviosl ben onsdered as intel water, Insular shelf The continental shelf, archipelagic or insular shelf for archipele- 0s, refers to (a the seabed and subsoil ofthe submarine areas adjacent to the coastal state bur outside the ceritrial sea, toa depth of two hun- dred meters or, beyond tat limit, to where the depth allows exploitation, and (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 stallions needed, and to erecta safety Zone over its installations with a radius of $00 meters: The 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 Tecritory in the 1987 Constitution, On'Fune 26, 1986, The Committe on Preamble, National Ter- ritory. and Declaration’ of Principles presented the following draft on National Tettitory: ‘The national teritory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other ter- sljries belonging to the Philippines by historic right or egal tite, {cluding the teritoral sea, the airspace, the subsoil, the sea-bed, Seet ART. — THB NATIONAL TERRITORY » 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 ofthe archipelago, irespect of their breadth an! dimensions, form part of the intemal waters ‘of the Philippines. Soveieignty or jurisdiction of the Philippines shall also ex- tend to straits connecting these waters with the economic zone pro- vided for in the Convention of the Law of the Sea. It will be 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 concept and territorial space embodied in the phrase “Phil {ppine Archipelago” has been left untouched by the 1987 tekt. 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- Jong to the Philippines by historic right or legal title”; and (3) how the definition of territory world relate to the 1982 Convention on the Law of the Sea. Tre itst issue, which came almost asa side isstic, was resolved easily enough. Much 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 fac 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 national territory the new Constitution should fail to provide for one." ‘The second issue was debeted per fongum et fatum 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. “RECORD 306312 Soul of Fy 2, 1986.