CONSTI NOTE 1 – PREAMBLE

By: Rusell Alen V. Fernandez, JD-1

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.
Function of Preamble:

• The Preamble is not a source of right or of obligation. (Jacobson v.

Massachusetts, 197 U.S. 11, 22 (1905)
• It sets down the ORIGIN, SCOPE, and PURPOSE of the Constitution.
• It is useful as AID in asserting the meaning of AMBIGUOUS PROVISIONS in the
body of the Constitution.
Origin, Scope and Purpose of the Constitution:
• Origin or authorship – is the will of the SOVERIEGN FILIPINO PEOPLE.
• Scope and purpose – “to build a just and human society” and “to establish a
government”
Significance of First Person – “WE”:
• First person “WE” – stresses the active and sovereign role of the Filipino
people.
• Third person “The Filipino people” – suggesting that another power was merely
announcing that the Filipinos were finally being allowed to promulgate a
constitution.
Why use “Almighty God” instead of “Divine Providence”:
• “Almighty God” – is more personal and more in agreement with personalist
Filipino religiosity.
Why use “common good” instead of “general welfare”:
• “common good” – projects the idea of a social order that enables every citizen
to attain his or her fullest development (For everyone)
• “general welfare” – avoided because could be interpreted as “the greatest
good for the great numer” (For greater number or majority only)
Significance of Equality:
• Deals with the major problem in the Phils society – prevalence of gross
economic and political inequalities.
Significant addition to the NEW Preamble:
• Adds the final phrase – “under the rule of law and a regime of truth, justice,
freedom, love, equality and peace”
• Context:
❖ Love – a monument to the love that prevented the bloodshed in the
February Revolution.
❖ Truth – protest against the deception which characterized the Marcos
regime.
❖ Peace – the fruit of the convergence (meeting/joining) of truth, justice,
freedom, and love.
Importance of “rule of law”:
• This expresses the concept that government officials have only the authority
given to them by law and defined by law.

CONSTI NOTE 2 – THE NATIONAL TERRITORY

By: Rusell Alen V. Fernandez, JD-1
The National Territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines.
Assertion of territorial claim:
• A constitution is municipal law – it binds only the nation promulgating
(disseminating) it.
• Hence, national territory in the constitution will bind internationally only if it
is supported by proof that can stand in international law.
Reason of definition of National Territory (NT)
• 1935 Constitution there was still some fear that United States government
might dismember Philippine territory, hence had to be accepted by the
president of US.
• 1973 Constitution, definition of NT should be placed for the preservation of
national wealth, for national security, and as a manifestation of our solidarity
as a people.
Scope of National Territory defined in Article 1, Section 1, includes:
• The Philippine archipelago
• All other territories over which the Philippines has sovereignty or jurisdiction.
• The territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas.
• Consisting of its terrestrial, fluvial, and aerial domains.
Archipelago
• Is a body of water studded (scattered) with islands.
Philippine archipelago

• The Philippine archipelago is a body of water studded (scattered) with islands.

• Delineated in the Treaty of Paris (December 10, 1898)
• Modified by the Treaty of Washington (November 7, 1900)
• Modified by the Treaty with Great Britain (January 2, 1930)
Why treaties are not mentioned in the 1973 constitution?
• To erase every possible trace of our colonial history.
Meaning of, “all other territories over which the Philippines has sovereignty or
jurisdiction”
• Presently belongs or might in the future belong to the Philippines through any
of the internationally accepted modes of acquiring territory.
• According to 1973 Constitution, “belonging to the Philippines by historic right
or legal title”
Philippine claim to Sabah – dropping the line “belonging to the Philippines by historic
right or legal title”
• “over which the Philippines has sovereignty or jurisdiction” – adopted so not
offensive to Malaysia
• Unilateral assertions in a constitution, which is municipal law, by themselves
do not establish an international right to a territory.
Extent of Phils claims to its aerial domains, territorial sea, etc.:
• The Philippines lays claim to them to the extend recognized by international
law.
• Rights to these areas are provided for in customary and conventional
international law.
• Claims stated in Convention on the Law of the Sea and Chicago Convention on
International Civil Aviation of 1944.
Meaning of “waters around, between, and connecting the islands of the
archipelago…”
• Phils claims them as part of its “internal waters”, which is now recognized by
Convention on the Law of the Sea.
Elements of Archipelagic principle
• Straight baseline method of delineating the territorial sea.
• Straight lines connecting appropriate points on the coasts without departing to
any appreciable extend from the general direction of the coast.
• Baselines divide the internal waters from the territorial waters of an
archipelago.
Does 1982 Convention on the Law of the Sea accepts Phils position on the archipelagic
waters
• Not really, “archipelagic waters” subject to the right of innocent passage.
• Phils designated sea lanes for foreign vessels.
What are baselines?

• Lines drawn long the low water mark (low tide) of an island or group of islands
which mark the end of the internal waters.
Baseline law
• R.A. 9522 – this law provides one baseline around the archipelago and separate
baselines for the “regime of islands” outside the archipelago.

“regime of islands” – 12 nautical miles

Archipelagic principle
1. Internal waters
2. Straight baseline method (delineating the territorial sea)

Factors to consider:
1. UN convention of the Law of the Sea (1973-1982)
2. Right of innocent passage – not prejudicial to the peace and order.
3. Archipelagic state – one or more archipelago including other islands.