Constitutionalism and Judicial Review 12 November 2005 In De la Llana v.

Alba,[1] the Court, speaking through Chief Justice Enrique Fernando, has held that “it is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence.” The Chief Justice likewise stated that “pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate case, the Court has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled „An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes.‟” In the same case, Chief Justice Fernando also held that “Philippine Constitutionalism proceeds upon the theory that a strong Supreme Court with power of judicial review is necessary to fulfill the essence of constitutionalism to ensure that all branches and instrumentalities of the government would not go beyond the limits of their powers or jurisdiction nor act with grave abuse of discretion. Again, Chief Justice Fernando in his concurring opinion in NFSW v. Ovejera[2] argues that if the decisive consideration only in deciding a case is the language of the applicable statutes, the decision of the Court can still stand the test of scrutiny based on sheer logic. That would not suffice, however, he adds and he explains that: “Such an approach, to my mind, is quite limited. The standard that should govern is the one supplied by the Constitution. That is the clear implication of constitutionalism. Anything less would deprive it of its quality as the fundamental law. It is my submission, therefore, that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution. There is this explicit affirmation in the recently decided case of De la Llana v. Alba sustaining the validity of Batas Pambansa Blg. 129 reorganizing the judiciary: „The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied.‟ x x x” The principle that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution requires an ultimate authority with power to construe and interpret the Constitution. In British Constitutionalism, this ultimate authority rests with the House of Lords, while in American Constitutionalism where Philippine Constitutionalism takes its roots, this authority rests with a separate and distinct Supreme Court. The criticism against having a separate and distinct Supreme Court was summarized by Alexander Hamilton in Federalist No. 81, viz.: “The arguments or rather suggestions, upon which this charge is founded are to this effect: „The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is unprecedented as it is dangerous. In Britain the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain,

and the legislatures of several States, can at any time rectify, by law, the exceptional decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.‟”[3] Hamilton considers this criticism as made up altogether of false reasoning upon misconceived fact. He explains: “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than what may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard for construction of the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but the general theory of limited Constitution; and as far as it is true is equally applicable to most if not to all the State governments.”[4] While Hamilton acknowledges that there is no direct constitutional grant of the power of judicial review to the Supreme Court of the United States, he sees, however, as a doctrine flowing from the general theory of limited Constitution, that the Constitution shall be the standard for the validity of all laws and that any law in opposition to it must vow to its mandate. Hamilton‟s dictum that “laws ought to give place to the Constitution,” that is, whenever there is an evident opposition, has been the very same basis used by Chief Justice John Marshall in Marbury v. Madison[5] when he secured for the Supreme Court of the United States the power of judicial review notwithstanding the lack of an express grant of such power in the Constitutional text. Marshall argues: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each. “So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the essence of judicial duty. “If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Constitutionalism cannot be divorced from judicial review. If the Constitution is to remain supreme, there has to be an effective mechanism by which the system itself could clean itself up of the excesses and ultra vires acts of government. In this sense, constitutionalism is dependent on the existence and the courageous exercise of the power of judicial review. Chief Justice Fernando expounds on this concept further in his concurring and dissenting opinion in the case of Peralta v. Comelec[6]: It is a reassuring feature of the martial law regime in the Philippines that this Court had repeatedly entertained suits challenging the validity of presidential decrees raised in appropriate legal proceedings. It is a role it had

never shunned. There is thus adherence to the path of constitutionalism, both in normal times and under crisis conditions. Even during this period of emergency, parties had come to this Tribunal whenever, in their opinion, the executive act assailed was tainted by the vice of nullity. They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional framework. Courts, in the language of Chief Justice Concepcion, „have, not only jurisdiction to pass upon [such questions] but also the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction.‟ Judicial review is thus the dominant constitutional concept to assure that the Constitution remains supreme. It is an awesome power, to be sure, but reasons of delicacy as well as the courtesy due a coordinate branch do not suffice to ward off judicial intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon it to vindicate the rights safeguarded by the Constitution. Guarding the exalted position of the Constitution as the supreme law is the essence of constitutionalism, and judicial review stands is its best safeguard. Justice Laurel champions this concept in the landmark case of Angara v. Electoral Commission:[7] “The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed „judicial supremacy‟ which properly is the power of judicial review under the Constitution.” INTRODUCTION PHILIPPINE CONSTITUTIONALISM, BIRTH PANGS AND TRAUMATIC GROWTH 1. Early Organic Acts. “A constitution, in the American sense of the word, is a written instrument by which the fundamental powers of government are es tablished, limited, and defi ned, and by which these powers are dis tributed among several departments, for their more safe and use ful exercise, for the benefi t of the body politic.”1 Justice Miller‟s oft-quoted defi nition of a constitution in the American sense also defi nes a constitution in the Philippine sense, for the Philippine concept of constitutionalism started as a transplant from American soil. In this defi nition, the fundamental purpose of a constitution is presented primarily as both a grant and a limitation of governmental authori ty. It is in fact the organic instrument to which government owes its being: “It is . . . to the departments of government, what law is to in dividuals — nay, it is that from which their existence fl ows, and by which the powers (or

portions of the right to govern), which may have been committed to them, are prescribed. It is their commission — nay, it is their creator.”2 It is “the written instrument agreed upon by the people . .. as the absolute rule of action and decision for all departments and offi cers of the government . . . and in opposition to which any act or rule of any department or offi cer of the government, or even of the people themselves, will be altogether void.”3 It is, in other words, the supreme written law of the land. Constitutions are usually classifi ed into written and unwrit ten, or fl exible and rigid constitu tions. These classifi cations are of general knowledge and are of very little usefulness for under standing contemporary constitu tions. Hence, the following classifi cation is suggested in stead. It is based not on the con tent or form of constitutions but on the extent to which constitu tions are observed as norms of governmental action.4 1Miller, LECTURES ON THE CONSTITUTION OF THE UNITED STATES 64 (1893); 1 SCHWARTZ, THE POWERS OF GOVERNMENT 1 (1963). 2Kamper v. Hawkins, 1 Va. Cas. 20, 24 (1793). 3COOLEY, CONSTITUTIONAL LIMITATIONS 3 (1868). 4See LOWENSTEIN, POLIT ICAL POWER AND GOVERN MENTAL PROCESS 147-153. 1. Normative constitution: its norms direct governmental ac tion, and government habitually adjusts its actions to the norms. It is like a suit that fi ts and is ac tually worn. 2. Nominal constitution: it is a constitution which cannot yet be fully operative because of existing socio-economic condi tions. Its principal value is edu cational. It points towards the mature state to which a fl edging polity must grow. It is like a suit that is in storage waiting for the wearer to grow to the proper size. 3. Semantic constitution: The primary purpose of a consti tution is to limit power. A se mantic constitution does just the opposite. 2 • CONSTITUTIONAL STRUCTURE AND POWERS OF GOVERNMENT It is a tool for the per petuation of power in the hands of power holders. It is not a suit at all but a disguise. It has cer tain unmistakable marks: “A state president can perpetuate himself in offi ce; he is empow ered to veto the actions of the legislature without ultimate re course to the

electorate; the rep resentative assembly is wholly or in its majority nominated; the confi rmation of policy decisions is left to plebiscites instead of to a freely elected parliament; elec tions are conducted on the single-party ticket.”5 A constitutional document may be divided into three parts: 1. Constitution of govern ment: those provisions which set up the governmental struc ture. 2. Constitution of liberty: the provisions which guarantee individual fundamental liberties against governmental abuse. 3. Constitution of sovereignty: the provisions which outline the process whereby the sovereign people may change the constitution. The subject of this volume is Philippine constitutional law. Constitutional law, as understood both in American and Philippine law, is not just the text of the constitution itself. It is “a body of rules resulting from the interpretation by a high court of cas es in which the validity, in relation to the constitutional instru ment, of some act of governmental power, . . . has been challenged. This function, conveniently labeled „Judicial Review,‟ involves the power and duty on the part of the Court of pronouncing void any such act which does not square with its own reading of the constitutional instrument . . .”6 Although we are under a constitution, the constitu tion, as Chief Justice Hughes once said, is what the judges say it is. The task of the student of constitutional law, therefore, cannot be re duced to mere exegesis of the constitutional text. He must plow through the thousands of pages of court decisions in order to fi nd the mass of “judge-made” laws that have grown from the text.7 5Id. at 150. 6CORWIN, CONSTITUTION OF THE UNITED STATES OF AMERICA 1 (1963). 7For a discussion of the various types of constitutions, written or unwritten, evolved or enacted, rigid or fl exible, see any standard textbook of political science. Constitutionalism in the Philippines, understood in the Ameri can sense, dates back to the ratifi cation of the Treaty of Paris transferring Spanish sovereignty over the Islands to the United

546. Many felt a certain unease. at 1056. 39 Stat. 1900. 2. 1935. these constitutional documents were transplants from American constitutionalism. 11Act Mar. the Filipino electorate ratifi ed the same by an overwhelming majority vote. Hence. Thereafter. the Philippines already had a solid body of constitutional jurisprudence on which to build. 1935.10 In language and in spirit. 1935. 1011 Public Laws [of the Philippines] 237. February 2. Philippine constitutional law grew from a series of organic documents enacted by the United States government. Act July 1. 1369. 1916. in that. the agitation . when the United States Congress enacted the Tydings-McDuffi e Law. INTRODUCTION • 3 der colonial auspices. 1946. an independent repub lic should continue to operate under a Constitution that had been fashioned un81 Public Laws [of the Philippines] lxiii. 545.12 Gradually. These were: (1) President McKinley‟s Instruction to the Second Philippine Commission. Philippine Independence came on July 4.States. ch. a Constitutional Convention was called. 29. 1934.9 (3) the Philippine Autonomy Act of 1916. the Commonwealth Government established by the Constitution became operative. 32 Stat. 24. By 1934. ch. 1934. 691.8 (2) the Philippine Bill of 1902. in the process of interpreting these documents and applying them to Philippine po litical and governmental process. Philippine courts relied on the authoritative teachings of American jurisprudence. Act Aug. and held its fi nal ses sion February 8. 48 Stat. 1902. On November 15. ch. By authority of the Tydings-McDuffi e Law.11 which provided for the establishment of a Commonwealth Govern ment to be established under a constitution drafted and ratifi ed by the Filipino people. It met on July 30. 84. 1935. 416. the President of the Un ited States approved the draft of the Constitution and on May 14. 9Id. The Philippine Republic continued to operate under the Constitution formulated in 1934-1935. The 1935 Constitution. On March 3.

on January 17. passed Resolution No. the Convention approved its Proposed Constitution of the Republic of the Philippines. 1973. the Constitutional Convention continued its deliberations under an atmosphere of fear and uncer tainty. 1967. 73. 1971. organized by Presiden tial Decree No. and the 1971 Constitutional Convention began on June 1. 1972. Before the Constitutional Convention could fi nish its work. On March 16. the President. however. 1970. 1973. 3. On January 7. Even as some delegates were placed under detention and others went into hiding or voluntary exile. pursuant to the au thority given to it by the 1935 Constitution. suddenly. Election of Delegates to the Convention were held on November 20. the Philippine Congress. 4 passed on June 17. 1102. . At any rate. the Citizen‟s Assemblies. while the Supreme Court was hearing arguments on petitions to enjoin the holding of a plebiscite. To what extent and how martial law conditions affected the fi nal outcome of the convention has not yet been assessed. The 1973 Constitution. be postponed until further notice. On November 30. 1973. among which was: “Do you approve of the New Constitution?” Then. the President issued Presidential Decree No. “DOES THE PHILIPPINE REPUBLIC HAVE A CONSTITUTION?” 16 ATENEO L. 86.for a thorough overhaul of the 1935 Constitution gathered momentum. announced 12See BERNAS. 132 (1967). 2 (later amended by Resolution No. were being asked to answer certain questions. the President issued General Order No. “submitting to the Filipino people for ratifi cation or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention” and setting the date of the plebiscite on January 15. on November 29. 1972.J.” Meanwhile. martial law was imposed on the entire Philippines on September 21. 1972. 1973. by Proclamation No. 20 directing “that the plebiscite scheduled to be held on Jan uary 15. 1969) calling a Convention to propose amendments to the Constitution.

1973. ordinary mortals lived and found their fortunes (and misfortunes) under the new Constitution. 141 (1973). believers and infi dels alike cowered through the most diffi cult parts of the Marcos regime. four facts cannot be denied: (1) the Supreme Court ruled “that there [was] no further judicial obstacle to the new Constitution being considered in force and effect”. Executive Secretary is a great case. a divided Supreme Court ruled that “there is no further judicial obstacle to the new Constitution being consid ered in force and effect. the Constitu tion was amended to give birth to the interim Batasang 13Javellana v.”13 The import of the Supreme Court decision has been examined elsewhere. But the script underwent some change. the principal dramatis personae did not change. Whether Javellana v. proceeded to im plement it. But to judge by the splintering of the Supreme Court justices who col lectively wrote the longest set of opinions yet in the history of the Philippine Supreme Court — a total of 338 pages — it was a hard case.that the pro posed Constitution had been ratifi ed by an overwhelming vote of the members of the Citizens Assemblies.”16 Nevertheless. PHILIPPINE CONSTITUTIONAL LAW 803-819 (1984). Some asked the Supreme Court to say that it was not so. 14Bernas. (3) the Legislative Department was nowhere to be found to object. (2) the Executive Department. Many could not and would not believe the news. Executive Secretary made good or bad law. 50 SCRA 30.”15 History will judge whether Javellana v. with vigor and with all the resources at its command.14 Suffi ce it here to recall the oft-quoted observation of Holmes that “Great cases like hard cases make bad law. For over a decade. One need not agree with Justice Antonio‟s opiate that at bottom of the divergent views in the Javellana case was “the degree of one’s faith — in the nation‟s leadership and in the maturity of judgment of our people. . On March 31. (4) meanwhile. In 1976. Executive Secretary.

Pefia rebuts these criticisms by establishing that people power is a constitutional right which furthers. has attracted much criticism from both Filipino and foreign commentators. Part II focu~es on the relationship between these two concepts. v. Part IV tackles the ostensible incongruity between people power on the one hand. derived its name from its supposed similarities with the first bloodless revolution which dethroned President Ferdinand Marcos from his dictatorial regime in 1986. United States. 1650 SCRA at 376. 193 U. as a mode of removal of the Chief Executive. and (2) that people power furthers the ideals of constitutionalism and the rule of law. 400 (1904). Ms. EDSA II.S. was said to have adversely affected rule of law and undermined constitutionalism in the countty. 197. Pena's paper demonstrates that the Philippines is under a constitutionalist regime and the rule of law. and constitutionalism and the rule of law on the other. however. the movement which ousted President Joseph Ejercito Estrada from office.15Northern Securities Co. italics added PEOPLE POWER IN A REGIME OF CoNSTITUTIONALISM AND THE RULE OF LAW EDSA II. Mani Thess Q. Part III analyzes the concept of people power in the context of the three manifestations of People Power in the countty's history. the constitutionalist framework of Philippine society and the rule of law. rather than undermines. Part I of Ms. People power. Part V concludes the paper by tying up these concepts based on two arguments: (1) that people power is a right implicit in a constitutional framework. .PEOPLE POWER IN A REGIME OF CONSTITUTIONALISM AND THE RULE OF LAw * When the Filipinos staged a bloodless people power revolution in 1986.

not a conclusion of law.B. unlike its predecessor. 2 This is merely an opinion of the author.! people from all over the world hailed the country as a bastion of democracy and freedom. Fifteen years after. LJ. to topple constitutional authoritarianism. However. IThis refers to the philosophy of government of former President Marcos after the imposition of martial law in 1972. • This paper was submitted to the Philippine Law Joumal2001-2002 Editorial Examinations .dubbed as EDSA I. conquered EDSA to demonstrate their own version of people power . J While a number of the population gathered in EDSA.. that is. EDSA II drew criticism from certain sectors of society3 and even from foreign commentators.. •• 0Jairpersm. The RJJe if L4w and the JM:me.m in the Philippines.ll. BA Political Science. 4 A few months later. University of the Philippines College of Law. University of the Philippines-Manila. 59 Plm. Majority of these Estrada supporters were believed to have come from the marginalized sectors . Third Year. See Peter Payoyo. the forces vanquished by EDSA II. a considerable number of supporters of the ousted President Estrada convened in Mendiola to oppose the public clamor for the latter to step down from the presidency. the Filipinos once more gathered in the revered EDSA shrine. the supporters of former President Joseph Estrada.Making Poar:r if the Prr:sident Sane R4/eaims on the Crisis if Caistitutialdl AutJxmtariani. this time to oust a corrupt 2 president. Philippine Law Joumal2001-2002. 152 (1984). while most Filipinos were toying with the idea of having an unprecedented EDSA III.

the Philippines made a name for herself in history as a consequence of three people powers in a span of 15 years. Plm.Y INQUIRER. However. 4 Anthony spaeth's essay in Time. as equiwknt to the supremacy of the Constitution. for example.. DAn. at A7.e.Y INQUIRER. In the words of former Sen. the repercussions in the country's legal system are much deeper. The demonstration of the will of the people through people power was a departure from the regime of constitutionalism and law that characterizes the Philippines. Edsa II uorries Westem mrJia.PHiL.' Filipinos had the mechanisms-i. concluded that "people power has become an acceptable term for a troubling phenomenon: one that used to be known as mob rule.Jan. Arturo Tolentino: The rule of law has been considered. It is general1y recognized that the Constitution sets the limits on the powers of government. 28. which method portends a 'troubling future for democracy.· See Rigoberto Tiglao.. wealthy political and business elite to power.On a superficial level. 2001.of the society. 31. The law is vh# the SC . Amando Doronilla summed up the main points of criticism by the commentators and reporters of the liberal Westem media of People Power IT as follows: "The ouster of President Joseph EstraeJa was 'a defeat for due process' and has 'left the notion of constitutional democracy in tatters. DAn." Amando Doronilla.raysit is.' Edsa IT was a 'rich people's power' that ejected an elected President in order to return the old. in a government like ours. atA9. impeaclrment--to legally change their head of state. but they chose popular uprising. it prevents arbitrary .Jan. 2001.

not a revolution as in EDSA 1. instead of government by will. which is tyranny based on naked force.6 EDSA IT. the country rewted to the constitutional regime that existed prior to the declaration of martial law. However. 41 (1985).why isit that people power failed to destroy the constitutional fabric of the society? 5 Arturo Tolentino. 6 TEODORO AGONCllLO. 7beRJJeiflAwtmdourCmstitHtim. on the other hand.] The conundrum that people power has created in the legal system arises from the presumption that the will of the people must be expressed in the mechanisms provided under the law and the constitution. L REv. 36 U. but three incidents of people power in Philippine history? More succinctly. EDSA ill. it was expected that the Philippines would be in disarray. culminating in the ratification of the present 1987 Constitution on February 7. Indeed. was suppressed by the government after President Gloria Macapagal-Arroyo declared a state of rebellion and commandeered the armed forces. under different circumstances. Arrt extra-constitutional manifestation of this will. it insures government by law. 1987. HIsTORY OF 1HE FILIPINO PEOPLE 586 (8 th .T. why then has there been not only one. at least those not sanctioned by the constitution.S [Italics supplied. although stability was initially elusive. After EDSA I. One such apparently extra-constitutional expression of VCK populi is people power.S. was adjudged by the Supreme Court7 as a mere case of presidential succession provided under the 1987 Constitution. if people power jeopardizes the constitutional regime and the rule of law.rule and despotism. is frowned upon by reason of the dangers they pose to the stability of the constitutional system.

G.TIlls paper seeks to address these questions in order to clarify the status of people power in the Philippines. As a matter of fact. As this author wi» attempt to show. 146710-15. Richard Hooker (1155?-1600)and John Locke (1632-1704)floated the idea of restricting the authority of the government. Macapagal. Part III will analyze the concept of people power. and constitutionalism and the rule of law. 1990). this paper will attempt to tie up these concepts based on two arguments: (1) that people power is a right implicit in a constitutional framework. on the other hand Finally. Constitutionalism fIrst developed in the West. It is entirely possible to reconcile these notions.. the Philippines has been able to preserve its traditions of constitutionalism and the rule of law despite its turbulent history. in the context of the three phenomenal and historical events. 7 Estrada v.R. Estrada v. on the one hand. 8 Coke believed that "[n]either the King nor the Parliament was superior to . No.2 March 2001. as may be proven by examining the country's political history. Nos.ed. 2 March 2001.Anyoyo. G. the variance of the concept of people power vis-a-visthe concepts of constitutionalism and the rule of law is merely apparent. James Harrington (1611-1677). Desierto. Part IV will dwell on the ostensible incongruity between people power. 146738. in Part V. when British thinkers such as Sir Edward Coke (1552-1634). Part I of the paper will demonstrate that the Philippines is under a constitutionalist regime and the rule of law.R. and (2) that people power furthers the ideals of constitutionalism and the rule of law. The relationship between these concepts will be expounded in Part II.

"[t]he king's power was based on and limited by law."12 One of the more popular liberals. but is bound to dispense justice and to decide the rights of the subject by promulgated."lO He likewise argued that a system of checks and balances is necessary to prevent a single party from monopolizing power. arbitrary decrees. [It] cannot transfer the power of making laws to any other hands. for his part. 8 1 MICHAELCURns. at 358. Locke identified the legislative power as the supreme power in the commonwealth."13 In The Second Treatise of Civil Government. These devices included "a written constitution. suggested that constitutional devices be put in place to prevent absolute government. property rights.. the secret ballot. invoked the theory of the social contract to bolster his claim that the "ruler must act in the public interest. an agrarian law to limit the amount of landed wealth a subject might possess. 10Id. and the authority of the 'whole entire body' of the community. rotation in public offIce.Hooker.. and known authorized judges. and.. and observe law. but restricted its authority such that: It is not. Locke. standing laws. the inalienable rights of men. nor can possibly be. THEGREATPoUTICAL THEORIES 357-360 (1981)."9 He postulated that the law should control the acts of the Parliament and invalidate them if proper. Harrington. 9Id... on the other hand.. proposed that the power of the majority should be restrained "to prevent violation of laws of nature. [It] cannot assume to itself a power to rule by extemporary. absolutely arbitrary over the lives and fortunes of the people .the law. for it being a ."l1 According to him. or anything in the fundamental compact.

as in the case of a "constitutional" monarchy. was initially conceived to set limitations on the authority and acts of the government."I6 11 !d. the term "constitutional" bears a negative connotation. According to McIlwain. 14 Constitutionalism. ''but in every case it is a law that puts bounds to arbitrary will. not a positive characteristic. therefore. depends on the law defining it. they who have it cannot pass it over to others .delegated power from the people. constitutionalism continues to be a theory of limited government. 12 fd.%at the government may not do.."17 Giovanni Sartori enumerated the following fundamental attributes of liberal constitutionalism: . It implies a restriction. In its modern sense. CONSTITUTIONALISM AND ruE CHANGING WORLD: COLLECTED PAPERS 244 (1939). We think first of all of what the monarchy may not do. at 382-3. McIlwain posits. 15 CHJ\RLES HmVAJU) MCILW. a characteristic common among the various definitions ascribed to it by . 16 fd. " fd.IS "The characteristic that distinguishes this kind of monarchy from others for us is a negative. contemporary writers. at 360.\IN. " fd. not of what he mqy dO. The law may be written or unwritten.. which is usually perceived as a "limited" monarchy. at 359.

1 PERSPECTIVES. in A Didionary rif Political Ana!Jsis. stable legal order which prevents the arbitrary exercise of political power and subjects both the governed and the governors to 'one law for all men. usually through a supermajority voting mechanism) can supersede and change the supreme law.1s [A] system of political arrangements in which there is a supreme law (generally called 'constitution').K. in which changes can only be made infrequendy due to the difficulty of garnering the requisite popular support. there is due process of law.19 In simpler terms. in which only the people's will (as defined through some pre-specified institutional procedure. and (5) There is a binding procedure establishing the method of lawmaking which remains an effective brake on the bare-will conception of law. and in which there are separation of power. (2) There is judicial review."'20 G. constitutionalism is "a determinate. in which all (particularly the entire system of government) is governed by the supreme law. analyzed constitutionalism from two perspectives: as a practice and as the positive valuation of that practice. either written or unwritten. at http://www. (4) Possibly. What if ConJtitutionaIiJm?.21 17 Id.(1) There is a higher law. (3) There is an independent judiciary comprised of independent judges dedicated to legal reasoning. Roberts. 18 Bo . called constitution. checks and balances and an independent judiciary dedicated to legal reasoning to safeguard the supremacy of the constitution.

THE THEORY OF DEMOCRACYREVISITED309 (1987). DUNNER. As McIlwain observed: [I]n all its successive phases. constitutionalism "refers to the ideas of those who wish to preserve or introduce the political supremacy of a constitution within a particular state. 19 Id. the concept of constitutionalism has not changed over time."24 It should be noted."25 Nevertheless. is deemed an essential element of constitutionalism. constitutionalism has one essential quality: It ISa . W Irene Cortes.As a practice. 338 (1984) (quoting J. constitutionalism "is the ordering of political processes and institutions on the basis of a constitution. written or unwritten.6_063000/what _is_constitutionalism. CoftJtitutionali.1.23 To fulfill these tasks. which lays down the pattem of formal political institutions and embodies the basic political norms of a society. especially where these do not exist already in satisfactory form.htm (June in the PhilippineJ-A View from Academia. a constitution. 2000) quoting GIOVANNI SARTORI. DICTIONARYOF POLITICALSCIENCE120 (1964)). however. In ftne. 59 PHIL."22 The role of the constitution is not merely to regulate relations of the branches and organs of government with one another but also to limit the discretionary powers of the government. at 11. that constitutionalism is not synonymous with nor identical to constitution. to act as protector of the citizen from arbitrary government and as a statement of political relationships. which is basically "[a] charter of government deriving its whole authority from the govemed. LJ. As a term of valuation. the constitution itself should provide mechanisms for arbitration and enforcement. • 21 Id.

ALro amilable at http://www."27 Signed on November 1. but die most ancient. the Biyak-na-Bato constitution established a republican government. txt. the most persistent. the Cuban constitution of Jimaguayu. its opposite is despotic government. established the Central Executive Committee. which . supra note 18 quoting BLACK'S LAW DICTIONARY. 26 CHARLES HOWARD crntl mcilw I mcilw. are beyond doubt the most ancient. Francisco Makabulos of Tarlac. under the leadership of a Supreme Council. the limitation of government by law. and the most lasting of the essentials of true constitutionalism still remains what it has been almost from the beginning. it is the antithesis of arbitrary rule. the revolutionaries. CONSTITUTIONALISM: ANCIENT AND MODERN 21-22 (1947).legal limitation on government.26 22 Id 23Id 24Id 25 Li. The earliest constitution drafted was the provisional constitution of the Biyak-na-Bato Republic.That constitutionalism has deep roots in the history of the Philippines is best evidenced by the various constitutions adopted by the Filipinos since the time of Spanish colonization." if not the most important part of our constitutionalism. In modern times the growth of political responsibility has been added t~ this through the winning of the initiative in the discretionary matters of national policy by the people's representatives.constitution. led by Gen. almost word for word. "prepared by Felix Ferrer and Isabelo Artacho. who copied. and of that more anon. "Constitutional limitations. the government of will instead of law. 1897.28 When the truce of Biyak-na-Bato failed.

Marcos maintained constitutionalism. "[t]he Malolos Constitution is the fIrst important Filipino document ever produced by the people's representatives. "32 During the Commonwealth period. It was patterned after the American charter in terms of structure and formal appearance. . representative and responsible" and "with three distinct branches.33 More importandy. 1898. Cavite on June 12. it embodied the fundamentals of constitutionalism. while writing the draft. the 1935 Constitution incorporated the American political concepts of democracy and government. Felipe Calderon. supra note 6. Costa Rica.was governed by the constitution of Makabulos. at 183. 34 Under martial law. at 185. 28 Id. another Constitution was drafted and overwhelmingly ratifIed by the people: the 1935 Constitution. which would later be called the Malolos Constitution. Belgium. Guatemala. '" Id. 31 Id."31 True enough. Brazil and France.3DAccording to Agoncillo.29 After the proclamation of independence in Kawit. through the 27 AGONCILW. by providing for a government which was "popular. '2 Id 33 Id at 351. 29 Id. at 206. at 207. albeit as an instrument to perpetuate himself in power. drew inspiration from the constitutions of Mexico. except that it provided for a unicameral legislature and a unitary system of government. a committee was created to draft a constitution. by submitting to the people.

however. is lacking in ancient Greek democracy. Aristotle in particular. For instance. Executive Secretary. the Western idea of the rule of law. Whereas government based on law cannot be perfectly just. Then President Corazon Aquino established a revolutionary government by virtue of a Freedom Constitution.37 This constitution was subsequently replaced by the 1987 Constitution. Idcitizens assemblies. ratified on February 7. during the medieval era. a proposed draft of a new constitution. be it short-term pas~ion or long-term rationality. i. which remains as the fundamental law of the land until today."39 The perception on what was the rule of law differed as time progressed. 1987. While the concept of constitutionalism is relatively new. it is at least the lesser evil.. when contrasted with the arbitrariness and passion inherent in government based on the rule of men. Aristotle contrasted the rule of law and the rule of men. and that magistrates should regulate only matters on which the law is silent. would always become law if the demos so wished. In Politics. he nevertheless stressed that '''the rule of law is preferable to that of any individual'. "[T]here were no limits to the (democratic) governments of ancient Greece. was terminated by the people power revolution in 1986.e.J6 The tenure of Marcos. limitation. is essentially Roman. announcing the ratification by the Filipino people of the 1973 Constitution. Thereafter. when the belief on the divine right of kings .."38 However.35 The validity of the "ratification" of the new Constitution was upheld by the Supreme Court in Javellana v. as people now know it. 1102.. This is so because one of the key aspects of the rule of law. the concept of the rule of law owes its origin from the Greek philosophers. and the popular will. he signed Proclamation No. Although he admitted that man-made law can never attain perfect justice. while the notion of the rule of law originated from the Greeks.

prevailed. the rule of law was formulated thus: "[T]he king ought not to be subject to man.oycf. THE CONSTITUTIONALLAWOF GREAT BRITAIN AND TIlE COMMONWEALTII27 (1952). but subject to God and the law. at 157 quoting PI-llLUPS. John Adams' writings were instrumental in transforming the rule of law "into a social conviction about the virtues of a constitution that acknowledged separation of powers."41 The Age of Enlightenment brought about a change in the understanding of the rule of law."44 Summers enumerated eighteen (18)45such principles of the rule of law.R. "subject to such changes as king or parliament might make from time to time. 39 Bo Li. 36 G.htm (April 30. 2000). supra note 1. and that it generally be prospective. 50 SCRA 30 (1973). As a case in point. because the law makes him king. 38 WILUAMEBENSTEIN. the rule of law is based on principles placing "restrictions on how government is permitted to operate and how political power may be exercised. at http://www. the rule of law was conceived as the supremacy of the common law.. 2000). at 585. 37 AGONCILLO.Thereafter. at 575. 40 Peter Payoyo."40 35 !d.supra note 6. . What is the &lie r. No.f Law?. L-36142. that it be public."43 One theory suggests that the rule of law operates on principles which include the recognized requirements "that law be rule-like so far as appropriate."42 As it is currently formulated.GREAT POLITICALTHINKERS: PLATOTO mE PRESENT 83 (6 th 5_043000/what _is_rule_oUaw. that it be clear. 1 PERSPECTIVES.

once made and put into effect. and include criteria for the resolution of any conflicts between otherwise valid forms of law. 45 The principles of the rule of law consist of the following: (1) that all forms of law be duly authorized. (6) that law. so far as feasible and appropriate. take the perceptive form of general and deftnite rules applicable to classes of persons. and also be applicable to offtcials and citizens alike. (2) that the accepted criteria for determining the validity of law generally be clear and readily applicable. circumstances. and changes in law. 42 Id. 1691 (1999).41 Id. (8) that the law on a subject. REv. as appropriate. at 160. 44 Robert Summers. acts. at 158 allng PHILUPS. ARGUING ABOUT LAW 3 (1997). and be promulgated. (7) that the behavioral requirements of a law be within the capacity of its addressees to comply. Propter Honoris &spedum: The Prindples of the RHIe olLow. (4) that all forms of law be appropriately clear and determinate in meaning. THE CONSTITUTIONAL LAw OF GREAT BRITAIN AND TIIE COMMONWEAL1H 28 (1952). (5) that state-made law. and thus conform to established criteria of validity. etc. generally be prospective rather than retroactive. not be changed so frequendy . published. 43 ANDREW ALTMAN. and other law as appropriate. (3) that state-made law on a given subject be uniform within state boundaries. be in some written form. 74 NOTRE DAME L. or otherwise be made accessible to its addressees. and.

a politically independent and impartial system of courts and administrative tribunals exist and have power. (9) that purported changes in the law be made by duly authorized institutions. or that long term planning cannot be feasible. courts or tribunals shall have only quite limited and exceptional power thus to modifY or othe'l"ise depart . uniform (for that type of law). itself a methodology duly respectful of the expressional form and content or that type of law. offtcials. (10) that a form of law be interpreted or otherwise applied in accord with an appropriate. (2) Government should maintain civil order and peace mainly through a system of general and authoritative rules. or other adverse consequence of failure to comply with a form of law be known or knowable in advance of the relevant occasions for action or decision under that law. (12) that in cases of dispute. all in accord with relevant procedural and substantive law. and determinate interpretive or other relevant applicational methodology.(1) Government must not act or operate above the law. (b) to resolve issues of fact. (a) to determine the validity of the law in dispute. specifying whatever sanctions are to be imposed for violations.46 (11) that any possible remedy. or persons. (13) that when an interpretive or other application methodology does not authorize an outcome under antecedent law. nullification.that its addressees cannot readily conform their conduct to it. yet a court or a tribunal is urged (sometimes in the guise of such methodology) to modifY or otherwise depart from law to achieve such an outcome. sanction. and (c) to apply the valid law in accord with an appropriate interpretive or other applicational methodology. and in accordance with known procedures as appropriate.

generally remain peremptory for the law's addressees. (14) that any exceptional power of courts or other tribunals to modifY or depart from antecedent law at point of application be a power that. or of other alleged legal wrong shall be entitled to instigate criminal prosecution insofar as appropriate (with any required official concurrence) or to seek other appropriate redress. precedent. or tort. or other adverse legal consequences shall be imposed on a party. without that party having advance notice thereof and a fair opportunity to contest the legality and the factual basis of any such projected adverse effect before an independent and impartial court or other similar tribunal . (16) that. including courts and other tribunals. before an independent and impartial court or other tribunal with power to compel the alleged wrongdoer or official to answer for such wrong. duly interpreted or applied. is itself explicitly specified and duly circumscribed in rules. or administrative wrong. for an alleged crime. or regulatory violation. no significant sanction. except for minor matters. or of wrongful administrative action. or of a regulatory violation. so that the legal conclusions and any reasons for action or decision on the part of the law's addressees which would otherwise arise under valid law. so that this is a power the exercise of which is itself lawgoverned. or any other alleged legal wrong. remedy. against his or her will. (15) that a party who is the victim of a crime.from antecedent statute. or breach of contract. or of a tort. or of a wrongful denial of a public benefit. or other law. or of a breach of contract. so far as feasible.

that is. (18) that the system and its institutions and processes be generally accessible. (b) reasonably clear in meaning. Id at 1693-1695. and to advocate causes before courts. shall have the opportunity to seek at least one level of appellate review. (e) applied in an impartial manner that is consistent wiili ilieir meaning. denies wrongdoing.(17) that a private party who fails to prevail before such court or tribunal pursuant to (15) and (16) above. and is without financial means to pay costs of defense. 46 Altman said that this second principle has two important corollaries: (1) No action can be regarded by government as a crime unless a specific law prohibits the action. and the punishment must be limited to that which is provided for by the law. (a) that there be a recognized. and independent legal profession legally empowered and willing to provide legal advice. and . other tribunals.(3) General and authoritative rules through which the government maintains order and peace should meet dle following conditions: (a) made public. (2) No individual can be legitimately punished by government unless they have committed a crime. in a court. organized. and other institutions as appropriate. such party shall be entitled to have defense provided by the state. (c) remain in force for a reasonable period of time. whether an alleged victim or an alleged wrongdoer. and (b) that at least where a party is accused of a significant crime or similar violation. (f) capable of being complied with. (d) applied prospectively. not retroactively. as a check against legal error.

mcpa. (5) law is transparent and accessible to all.48 The most famous definition of the rule of law was iliat given by Dicey.'XICON FOR POLICY MAKERS (2000).(g) enacted in accordance wiili preexisting legal rules.47 Hager conceptualized the rule of law as consisting of several core components: (1) constitutionalism.49 47 ALTMAN. (8) human and intellectual rights are protected. (4) Government must give all persons charged with violating the auilioritative rules a fair chance to defend iliemselves against ilie charges. '" BARRY IL~GER. equality before ilie law and formal or procedural justice. (4) law must be fairly and consistendy applied. .pdf. at 3-7. ""ai/able at http://www. who noted three elements: limitation on government arbitrariness and power abuse. RULE OF LAW A LE. (6) application of the law is efficient and timely. and (9) law can be changed by an established process which itself is transparent and accessible to all. (7) property and economic rights are protected. (2) law governs the governments. and (5) Sovereign people must act widlin ilie requirements of legality. (3) an independent rol/lexiconcom. Jupra note 43. including contracts.

50 As one Filipino politician wrote: "Rule of Law means that no one is above the law. as mentioned by Peter Payoyo. The American occupation afterwards further developed the principle of rule of law in the Philippines. It guards against deprivation of life and possessions without due process. supra note 1. Dicey. It mandates fair play. enumerated the elements of the rule of law as follows: (1) That no man is punishable or can lawfully be made to suffer in body and goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.In essence then. these ideas fermented the dissatisfaction of the Filipinos with the Spanish government and their longing for freedom. 52 The concept of the rule of law ftrst developed in the Philippines during the Age of Enlightenment (17 th and 18 th centuries) when men began to question the divine right to rule. leading to the eruption of the revolution.49 In particular."51 In the Philippines. the development of the rule of law coincided with the development of constitutionalism. It guarantees rights to citizens. that all must obey. Equality and Fraternity "began to penetrate the minds of the natives. not of men. the rule of law guarantees that a government is a government of laws. The perpetuation and institutionalization of the rule of law in the country was consummated through President McKinley's instructions of April . at 162.53 European liberalism and the modern ideas of Liberty."54 Eventually.

the Jones Law of 1916 and the Tydings-McDuffte Act were For more definitions of the rule of law.A CCMMENTARY20 (1988). in RUE OF LAw ANDDEMOCRACY INTIffi PHILIPPINES 12 (Beatrice Gorawantschy. 54 AGONCIlLO. Roya Moghaddam & Eduardo Pedrosa eds. Ruleif"LtzwtmdI. 50 JOAQUIN BERNAS.THE CONsTITuTION OF TIffi PHILIPPINES.what is a different thing. 1997). every man whatever be his rank or condition is subject to the ordinary law of the realm and amendable to the jurisdiction of ordinary tribunals. . in RUE OF LAWAND DEMOCRACYIN TIffi PHILIPPINES 15 (Beatrice Gorawantsehy. MaIaJm tmd the Rule if"Ltzw: A Strucb... 52 The relationship between constitutionalism and the rule of law will be explained in the latter part of the paper.7j 1900 to the Philippine Commission. and (3) That with us the law of the constitution. S8"! Carlo Carag. 169 (1981). and deflning.. Roya Moghaddam & Eduardo Pedrosa eds. at 119. 55 Based on these instructions. 1997). LJ. supra note 6.. the Philippine Bill of 1902. 56 PHll. 51 Teoflsto Guingona. 56 ''What remained constant throughout all of these signiftcant developments has been the concept of the Rule of Law as a fundamental. the law of a constitutional code are not the sources but the consequences of the rights of the individuals as defmed and enforced by the courts. 53 Andres Narvasa. principle of' democratic government.trrr1 R«rilatim. Rule if"Ltzw tmd Derrnracy in the Philippines."57 (2) That not only is no one man above the law but that.>uncaw:y: BritfHisturirAJ Examus.

Lee [1882). the principles of the rule of law gradually seeped into the Philippine legal system. supra note 53.55 Narvasa.58 the Supreme Court declared that the Government of the Philippine Islands is a government of laws. No official. 196. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. the executive. has seen fit to entrust to the Philippine Government. "The law. delivering the opinion of the Supreme Court of the United States. the legislative. the separation of powers. Madison. whereby "[n]o department of the Government of the Philippine Islands may legally exercise any of the powers conferred by the Organic Law upon any of the others." (U.S. "is the only supreme power in our system of government..220. Thus.106 U.62 In Angara ."61 Yet another basic principle adopted in the Philippines is the power of judicial review. the principal. at 13. was applied by the Supreme Court in Government v.vs." The Court emphasized the doctrine of non-encroachment.)59 One of the fundamental principles of the rule of law. no matter how high. and the judicial. and to observe the limitations which it imposes upon the exercise of the authority which it gives. are distributed among three coordinate departments. is above the law. SOld 57ldAs the principles of democracy and constitutionalism were infused into the workings of the government and the State.S. the agent. Lukban. the exercise of which was justified in Marbury v. In Villavicencio v." said Justice Miller. and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy. Springer6° where it held that "the powers which the Congress.

780 (1919). 59ld at 787.64 II. THE RELATIONSHIP BETWEEN CONSTITUTIONALISM AND THE RULE OF LAW Though the concepts of constitutionalism and the rule of law developed separately. it does not in reality nullify or invalidate an act of the legislature. Electoral Commission. 139 (1936). (1 Cranch) 137 (1803).S. Indeed. it is wholly reasonable to suppose that they are related to each other. 259 (1927). This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution.63 the Supreme Court explained the nature. most writers adhere to the belief that constitutionalism and the rule . 60 50 Phil. significance and necessity of judicial review in a constitutional system of government. Who is to determine the nature. And when the judiciary mediates to allocate constitutional boundaries. 6363 Phil. it does not assert any superiority over the other departments.controversy the rights which that instrument secures and guarantees to them. In the words of Justice Laurel: The Constitution is a definition of the powers of government.v. scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. 61 ld at 273. 625 U. but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual 58 39 Phil.

and is identical to. in the initial . for example. which confirms that it is supported by "we the people".65 [Italics supplied.] However. The significance of a constitution is that once it is ratified by a democratic process. of Constitutionalism. in turn. identical or synonymous. after surveying the history of constitutionalism and the rule of law. deduced that From the viewpoint that the concept of Rule of Law must be understood historically. constitutionalism. The essence of present-day Rule of Law. Hager. and at the least.of law are at most. In Western constitutions. the derived conclusion is that todqy's concept of &tIe of Law coincides with. that one is the component of the other. posited that constitutionalism is a core component of the rule of law. the other theory that constitutionalism is a component of the rule of law cannot be simply dismissed. Constitutionalism. 66 How the concept of constitutionalism fits into the model of the rule of law was apdy discussed by Hager in this wise: Constitutions then are meant to be the fundamental statement of what a group of people gathered together as citizens of a particular nation view as the basic rules and values which they share and to which they agree to bind themselves. human rights and constitutionally guaranteed individual rights are one and the same. for instance. has acquired its most recent and logical meaning as a principle of government that purposively aims to attain and fulfill Human Rights through the mechanism of separation of powers in government. Payoyo. is its advocacy of individual human rights by state adherence to internationally evolved standards of human dignity and decency.

on the other hand. Constitutionalism provides the necessary mechanisms to .. supra note 48. "70 Li. Constitution. at 158. 66 HAGER. He theorized that "constitutionalism implements the rule of law: it brings about predictability and security in tlle relations of individuals to the government by defming in advance the powers and limits of that government. postulated a four-fold connection between constitutionalism and the rule oflaw. 67 Dicey. He considered '''the universal rule or supremacy . 65 Payoyo.S. according to Li. The constitutional standard of validity is inherently that of respect for the consent of the governed."7! One of the core elements of the rule of law is limitation. "constitutionalism is a necessary foundation for the rule of law. of ordinary law' as one element of English constitutionalism. which means that the law has to limit the activities of the government and prescribe the conduct of its business. at 164.phrase of the U."68 In fact. for his part. viewed the relationship between the two concepts differently. it then serves both as an architectural blueprint for the organization of the institutions of that government and as the standard 64 lei. supra note which any subsequent actions of the government may be checked to ensure their validity.. First. he formulated his theory of the rule of law within the framework of 19th century constitutionalism. 69 Kay took a different position.

1998). checks and balances.htm (Aug.oycf.independent judges dedicated to legal reasoning to see to it that well-established procedures are complied with. 72 !d. Con. checks and balances and independent judiciary is necessary for the effective and consistent implementation and enforcement of well-established . independent constitutional review and the existence of an independent judiciary. competitive and periodic elections and the guarantee of a free press. a constitutional government provides a minimum safeguard for the form of law to be just. 68 Li. there must be 67 ld at 29. ensure the just content of laws. A constitutional mandate and culture of rights protection is necessary for the establishment of fair and transparent procedures. among others. In 7_083100/ constitutionalisffi_and_the_rule_o. specific procedures have to be either written into statutes by legislators or articulated by independent judges in case law. Li explained that constitutional devices.operationalize these limitations. In order to have procedural justice. "constitutionalism provides a minimal guarantee of the justice of both the content and the form of law.. at http://www. 71 Li. At the same time. A constitutional structure of separation of powers. 31. supra note 68. " !d. through the principles of separation of powers. "9ld 70 CONSTITUTIONALISM:PHILOSOPHICALFOUNDATIONS4 (Larry Alexander ed. 2 Perspectives.rtitutionalism and the RHle 0/ Lzw."73 On this point.?2 Second. such as representative democracy. 2000).

the constitutional solution adopts rule by legislators." 78 According to Li. it is well to remind ourselves that the framers of liberal constitutions did not conceive of the state as being a machine a faire lois. the constitutional solution also sees to it that the rule of law is retained within the system. there can be no constitutionalism. but conceived of the role of the legislators as a complementary role according to which parliament was supposed to integrate.?7 Fourth and last. judicial law finding. there is no constitutionalism. not to replace. and one concerning the range of lawmaking. "constitutionalism strikes a proper balance between rule of law and rule of person. "constitutionalism is safeguarded by the rule of law. which is restricted by a higher law and thereby prevented from tampering with the fundamental rights affecting the liberty of the citizen.procedures. but with two limitations: one concerning the method of lawmaking. She justified this proposition by arguing that [I]f laws are exclusively the results of the "sheer will" of the legislators. On the other hand. On the one hand. the rule of law protects the integrity of a constitutionalist system. 74 Third. Liberal constitutionalism is the technique of retaining the advantages of [the rule of legislators and the rule of law] while lessening their respective shortcomings. For a constitutional structure of separation of . a lawmaking machine. Even though this latter component of the constitutional rule has been gradually displaced by the former. which is checked by a severe iter legis. 76 The proposed solution was the institutionalization of liberal constitutionalism."75 This theory proceeds from the assumption that either the rule of law or the rule of person per se is inadequate. Without the rule of law.

left unchecked. the product of independent legal reasoning by judges 79 In another sense. which is partially created by the constitution itself. titing GIOVANNI SARTORI. by itself. law is the product of judges' "legal reasoning". the rule of law can result in the tyranny of (unelected) judges.THE THEORY OF DEMOCRACYREVISITED 308 (1987). [i)n a representative democracy. by themselves. First. Under the rule of person in a representative democracy. 76 According to Li. and the notion that law is. enforce and safeguard the . In contrast. and finally. can be inadequate for three reasons.powers. at least in part. are neither enabling nor constraining.THE THEORYOF DEMOCRACYREVISITED308 (1987). there must be some limits on what the legislators can do. by itself. the rule of law can be too static. The rule of person. This limit is imposed by the rule of law and implemented through an independent judiciary. the rule of law. supra note 68. may not address the problem of political freedom. The letters of the constitution. law is the product of the "sheer will" of the legislators. under the rule of law. Id 77 Id. there must be an institutional and cultural For constitutional provisions to be meaningfully and effectively operative. presents the danger of tyranny. the rule of person means the rule of legislators. to implement. secondly. quoting GIOVANNI SARTORI. The rule of law. the process of judicial 74 Id 75 Id. checks and balances and rights protection to exist. 78 Li.

"people power". As it was previously known. 81 This. it will be very instructive to cull the elements of a "genuine" people power from the repository of definitions provided by various authors. independent constitutional review. is the simplest way to understand the phenomenon of people power. it is debatable whether. perhaps. People . and "community organizing and mobilization". "empowerment of people". See PATRlC1ALICUANAN. it existed long before the 1986 EDSA Revolution. and the notion of the supremacy of law all work together to ensure that the letter and spirit of the constitution are complied with in the working of a constitutional government.constitution. An independent judiciary. as a concept has attained a special meaning82 Hence. 83 79Id 8°Id "' Perhaps. For Filipinos. although history points to three distinct incidents of people power. as yet. Others call it revolution. 80 Some call it civil disobedience. however. Considering that there is. indeed. The Filipinos call it people power. people power was synonymous with concepts like "popular participation". In fact. The rule of law is one key component in the constitutionimplementing and safeguarding apparatus. the concept of people power is richer and more meaningful from a socialpsychological perspective than from a politico-legal point of view. no exact meaning of people power. there were three instances of EDSA people power.

while strictly speaking insufficient. 82 There is."84 The necessity of numbers stems from the fact that initially. in fact. 83 This author attempts to provide a set of elements of people power. though. "who cannot be hoodwinked by falsehood. these individuals were powerless.Power: A Sodal Psychological AnalyJis. no settled meaning of people power.People power involves numbers. However. though. "[I]ndividuals band together and achieve their strength in numbers and in groups rather than individual action. however.fficary of a &vohetionary Tool. people power will be assumed to take its definition from the politicolegal standpoint. Numbers must be built by the thinking constituency. in UNDERSTANDINGPEOPLE POWER 18 (1987) and LEOIVINA CARINO. that "people's power" and "people power" are nearly synonymous. For the purposes of this paper. It ."86 Perhaps. this is one of the reasons that some refused to consider EDSA III as true people power. Most of the definitions ascribed to people power consisted of a suggested enumeration of its elements or a description of what occurred in EDSA. but numbers are necessary for both objective strength and the subjective feeling of strength. hence they may consist of common elements. it is the opinion of this author that such understanding refers generally to "people's power". For the purposes of this paper. these definitions. compared to a President or any other government official with the backing of the entire State machinery. "The numbers vary. a concept different from "people power". It is admitted by this author."85 Numbers alone are not enough. People Power and Government: TowardJ the Long-Term E. will be adopted for the time being. What numbers are sufficient to stage people power is uncertain. in UNDERSTANDINGPEOPLE POWER 31 (1987).

at A8. Randy David . it did not constitute people power since most of them came from the "dumb" masa. exploitation. the 'dumb'mtSa.was largely believed that although the crowd that gathered in EDSA on April 2001 was massive. 22. PHIL. 2001."89 It must serve "justice and freedom" and must seek "to eliminate oppression. should be "directed at elaborating itself in the direction of justice and democracy.April 30. HuwaM!ditbzvebtmrmbnJe?. DAlLY. its members perhaps even more numerous than the supporters of EDSA II. in UNDERSTANDINGPEOPLE POWER 20 (1987). for the common good. in her empirical survey on the people power phenomenon. PHIL. DAlLYINQUIRER.Feb. just and noble cause and when the general welfare of all sectors of society is at stake.INQUIRER.ugioJ Analysis. people power.88 This leads to the third important element of people power: the individuals must be organized for a common causa.PeopleP= A Soci4J Psydxi. that is. In other words."91 84 PAlRJCIA LICUANAN. 87 Conrado De Quiros. 8S Id. Again. 87 A lot of people were convinced that the masa who participated in EDSA III were paid for their "attendance" and were led to believe that they were fighting a cause. 86 BelindaOIivares-Cunanan. 2001. atA9. to be legitimate. observed that "true people power is one that is resorted to when there is a right. 88 These opinions led to a misconception that people power is just middle-class power. Erlinda Henson."90 Dr. tyranny and other forces which prevent the full development of people and society.

labor and the urban poor.94 In general. Most of all. 2001. he wrote: "People Power is not so much of the middle class as the informed and critical sectors of the nation..Jan. In Fir:eQtestims en PeoplePuur!r 2. Most writers .92 Hence. Winifreda Evangelista & Edgardo Maranan eds. 90 LICUANAN. '1 ERuNDA HENSON. however. these are the basic components of people power. at A7. b) when there is a need to change leaders. at 21. PHIL. it is the power of the young and the hopeful generation. The same. when asked when and on what occasions people power could be used.93which was impelled by the desire of the masa to re-install a presidency already tainted with corruption and dishonesty. was not true with respect to EDSA III. DAlLY INQUIRER.8' PONCIANO BENNAGEN.).believes otherwise. in IsSUESIN SOQo-PoUTICAL 'TRANSFORMATIONIN AsIA AND 1HE PACIFIC: THE REcENT PHlLD'PINE POUTICAL EXPERIENCE 100 (Carolina Hemandez. People's Puur!r Towmi a Just and Durxx:ratic Society. THE "PEOPLE POWER.Specifically. It was fueled by a general dissatisfaction with the government. the collective action of the people was directed towards ousting a president perceived to be corrupt and incapable of governing the nation.PHENOMENON A SURVEY OF PARIlCIPANfS' PERCEPTIONS9 (n. the respondents' most frequent responses were: a) when there is a violation of human rights/ abuses of power / oppression/ injustice. in both EDSA I and EDSA II. 1987). however. 28. and d) incidents similar to the February revolution at EDSA.d. including the organized peasantty. c) when it involves collective action for a common goal.supra note 84.

It is a creation of the Filipinos' passion for democracy. People power is moved by hope. People may exchange their presence for nothing more meaningful than a meal or a fee. People power desires to move on and remake the world. however. This one imagines what life would have been if their patron had not been overthrown. the so-called 'Edsa III' is burdened by despair. The emotions are not purified so much as they are indulged. PHIL. there are a lot of differences between EDSA II and EDSA III. it suffices to say that people power is a concept that is entirely Filipino. . DAILY INQUIRER. its farcical version. But many join a crowd like this because it provides a venue for the discharge of accumulated resentment. people power remains an elusive concept.According to Randy David in The third time a. at A7: "Crowds like the one that has gathered at the Edsa Shrine following the arrest of the deposed president. This is not people power. What they get is not catharsis.rjarce. which are critical in staging a successful people power. However. like the intervention of the military. People power imagines what life can be if people placed their destiny in their hands. this is its parody. The concept of people power is best encapsulated by these words: 92Id 93 Indeed. Joseph Estrada. can in fact accommodate a variety of motives. justice and freedom. people resentment desires to dwell in the past and . Others may come out of genuine sympathy for a fallen idol. Indeed.would add more elements. Some may come for the entertainment.

" 94 Belief plays a very important role in determining the element of "for the common good".The first thing we must recognize about people power is that it is not easy to mount. The only thing they have in common is Edsa. who find strength in their solidarity and are determined to change the circumstances of their lives. EDSA III supporters may believe that an injustice was done to former President Estrada and their collective action was inspired by their desire to correct this injustice. Cynical politicians will always try to simulate it because they have this impression that people power is nothing more than just bringing large numbers of people to a designated place. Edsa is everywhere there are people who are moved by something bigger than themselves. The Edsa Shrine holds no meaning for the participants of "Edsa III. for it has a will of its own.display its wounds. The magic is not in the place but in the energy that people are able to summon from within their hearts when the memory of greatness moves them." They cannot clothe their resentment with the venerable symbolism of the Edsa Shrine and expect to derive any strength from it. the event makes the place. and furnishing them with slogans to shout and banners under which to march. Well. They think of people not as willful beings who can make decisions for themselves but as mobilizable masses that can be manipulated and ordered around. a legitimate goal that inures to the benefit of all. One cannot just summon it. we have . But the place does not make the event. liberally speaking. Justice is. They equate people power with crowds for hire.

While it fights tyrants and corrupt leaders. but it disdains power. It is angry at times. And herein lies its paradoxical strength: people power is a political weapon with political ends. only symbols. and not constrained by dogma. It stands up to power. yet it resolutely rejects political ambition. The power that installs colonels or generals in successful military coups is not people power. decent and responsible. but it also regards itself as the force of the new. People power is never sycophantic. but never aggressive. The world out there is its sole protection. self-willed and well informed. The crowds that are mobilized and prompted to sing praises for someone already in power do not constitute people power. Oppressive. political correctness or any party line. That is why it has no leaders. People power stays aboveground. It fu:mly opposes power. non-violent and highly disciplined. It draws its courage and determination from the power of its convictions. Indeed it is festive and celebratory. It is inventive and free.seen what happens to such crowds at the first sign of danger. It is militant but never sad. That is the power of tanks and armed troops. Its nakedness is the source of its power. Real people power is autonomous. It is moral protest elevated to an art. it studiously avoids being used for narrow personal ends. It is unarmed. but it creates its own arena of political engagement and its own modes of expression. the armed might of the state. It does not only claim the moral high ground. the vanguard of a hopeful future. morally bankrupt and conupt regimes are its principal targets. weapon for weapon. no further shield is . It clothes itself in the symbols of everything that is good. It is not awed by power. but it does so without attempting to match. So long as the media bear witness to its stmgglc.

The battle is waged not as a contest of arms but as a fight for legitimacy. the people chose to summon its power to oust Estrada. People Power is clearly the forbidden fruit of politics .necessary.In the name of institutional stability. To fail to do so would be to invite recurrent disorder and destructive con flict. Such terrain is unfamiliar to autocrats. are undoubtedly at odds with people power. which is essentially an organized and non-violent action in disregard of the mechanisms provided by the law and the Constitution.."98 For the sake of stability and democracy. in pursuit of the common good..95Constitutionalism and the rule of law. sporadic collective action that would endanger the constitutionally protected institutions is discouraged. way above the messy conflict of mortals .. understood as setting limitations not only on the acts of the government but also on the citizens. political reality is rejected. The contentious issue of the nature of people power Vls-a-vis constitutionalism and the rule of law was brought to the fore in the consolidated . In the context of the events prior to EDSA II. and mounted by the people consisting of the country's thinking constituency. ..% In the usual order of things.97 It is often observed that "the law may often seem as if it stands among the gods. it must develop stable institutions under a culture of law. What makes political theorists wary of its use is the belief that for collective life in the modern world to have any degree of security. instead of allowing the impeachment trial to continue. EDSA II drew flak from some sectors of the society because it showed the Filipinos' "propensity" for direct non-institutional action. generals and obsolete politicians. As a matter of fact. people power bows to the primacy of the law and the constitution.

'00 G. 99 G. March 2. thereby operationalizing the provisions on presidential succession under the 1987 Constitution. In essence. 200l. March 2. 146738.perceived to be an extra-constitutional act was declared by the Supreme Court to be an act within the Constitutional framework. which only affected the Office of the President. the Supreme Court upheld the legitimacy of the Arroyo presidency.R. DAILY INQUlIlliR. People power and the law. is a revolution. the legal distinction between EDSA People Power I and EDSA People Power II is clear. Desierto99 and Estrada II.2001. was considered by the Supreme Court as a mere exercise of the freedoms guaranteed by the Constitution. 2001.l00 In these cases. The Supreme Court held: In flne. of course. as what happened in EDSA 1.cases of Estrada v. No. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. not on the ground that the people revolted but on the ground that Estrada resigned. Macapagal-Anvyo. at A9. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review.R. Accordingly. Feb. what the Filipinos thought to be a People Power II. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances. 98 Randy David. what was % Id 'J7 An obvious exception to this. 146710-15. but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to . 11. PHIL. Nos. in the sense that it was understood in 1986.

so far as they have thought it needful to do so. consistent!J with the Constitution. it would be revolutionary in character. the Supreme Court justices adhered to the presumption that people power is incompatible with the institutions of constitutionalism and law. directed. acting in their sovereign capacity. As a case in point. They retain in their own hands.judicial review. But this control and direction must be exercised in the legitimate mode previous!J agreed upon. either constitutional or statutory. have been prescribed and pointed out for them I!J statute. an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law. to sanction people power is to court instability and anarchy because it allows the people to utilize a mode of chatJ. EDSA II involves legal questions."102 people power presents an alternative to effect changes in the government and its leadership by advocating popular mass action. The voice of the people. and if by any portion of the people. however large. EDSA I presented political questions. referendum and plebiscite. "while [t]he Constitution prescribes that the sovereign power of the people is to be expressed principally in the processes of election. a power to control the governments they create. can be of legal force on!J when expressed at the times and under the conditions which thry themselves have prescribed and pointed out I!J the Constitution. or which. changed or abolished by them. they have not thereby divested themselves of the sovereignty. To the minds of the justices. In the words of Cooley: Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments.gedifferent from that provided by the Constitution and the laws. 101 Apparently. and the three departments are responsible to and subject to be ordered. and must be resisted and .

Macapagal-Arryoyo. represent legitimate govemment. RECONCILING PEOPLE POWER WITH CONSTITUTIONALISM AND THE RULE OF LAW By far. 2 March 2001. separate opinion). No. G. 22. 146738.103 [Italicssupplied. The situation should conform to the Constitution. the Court was able to preserve constitutionalism and the rule of law. The Supreme Court decision on the legitimacy of the presidency of Arroyo merely emphasized the foregone conclusion that the Filipinos . A healthy respect for constitutionalism calls for the interpretation of constitutional provisions according to their established and rational connotations. particularly by invoking the quintessential power of judicial review. it becomes logical for the Supreme Court to draw a fine distinction between two types of people power: an extra-constitutional people power and an intra-constitutional one. J. Estrada v.. at 4 (Kapunan.101 Estrada v.] To rule that EDSA II is of a similar character with EDSA I will only challenge the time-tested preeminence of constitutionalism and law in the Philippines. Justice Ynares-Santiago's separate opinion sums up the inevitable position of the Supreme Court on the matter: The Philippines adheres to the rule of law. 146710-15.repressed by the officers who. By making these distinctions.R. t02 Id. Seen in this light. it is accurate to say that the Philippines remains a steadfast constitutionalist regime. The Constitution should not be adjusted and made to conform to the situation. Nos.R. Desierto. March 2. G. 2001. for the time being. The Constitution fixes the parameters for the assumption to the highest office of the President and the exercise of its powers.104 IV.

this is referred to as the duty of civil disobedience. 104 lei. impose duties so compelling that they override any conflicting obligations. while Evils are sufferable.Cohen characterized this argument as a "higher-law justification of civil disobedience. at 6 (Kapunan. however. This does not mean. j. among others. 1927». that people power has no place in the Philippine legal system. at 6 (Ynares-Santiago.."107 The existence of this right and duty is explained in the Declaration of Independence of July 4. which states. that Prudence. than to right themselves by abolishing the Forms to which they are accustomed. Such laws.."106 In this type of reasoning. and accordingly ally Experience hath shewn. People power is a right.j. he may argue. separate opinion. an individual justifies his conduct "by appealing to a law higher than any man-made law-a 'divine' or 'natural' law whose authority is supreme. separate opinion). II CONSTITUTIONAL LIMIT AnONS 1349 (8 th ed. it is possible for people power to thrive in a system adherent to the constitution and the rule of law.. that Mankind are more disposed to suffer. indeed. of citizens in specific circumstances.are supposed to be bound by a commitment to constitutionalism and the rule of law. .M. and even a duty. 1776 of the American Congress. In theory. will dictate that Governments long established should not be changed for light and transient Causes. quoting T. As this author will argue. COOLEY. 105 People power and civil disobedience are used in this paper interchangeably. lOS 103 lei.

Desierto. No. CIVILDISOBEDIENCE: CONSCIENCE.] In turn. who. at 388. it is their Duty. in The Second Treatise of Civil Government. 2001. it is not to be wondered that they should then rouse themselves and endeavour to put the rule into such hands which m'!Y secure to them the ends for which government was at first erected.TACTICSAND1HE LAW105 (1971).] In affirming that constitutionalism itself breathes life to people power (or civil disobedience).supra note 8. 6 (Mendoza. Wheeler has this to say: 106 CARLCOHEN.But when a long Train of Abuses and Usurpations. As a matter of fact. G. G. 109 (Italics supplied. and to provide new Guards for their future Security.].. to throw off such Government. March 2. 109 1 CURTIS. 146738.R... a staunch advocate of constitutionalism. The right and duty of civil disobedience was an essential part of the philosophy of Locke and another liberal philospher. it is their Right. this declaration was based on the philosophy of Locke. Estrada v. evinces a Design to reduce them under absolute Despotism. prevarications. separate opinion). and they cannot but feel what they lie under and see whither they are going. pursuing invariably the same Object. they inspired the Philippine Revolution of 1896. and artifices. Macapagal-Arryoyo.R Nos. and without which ancient names and specious forms are so far from being better that they are much worse than the state of nature or pure anarchy . 146710-15. all tending the same way. lOB (Italics supplied. make the design visible to the people. According . 107 Id 108 Estrada v. declared: But if a long train of abuses. Rousseau.. 2 March 2001.

rnment (1689) posited that the social contract between the king. Constitutionalism requires that the capability for doing so must be protected 110 [Italics supplied.supra note 6. Locke in his Two Treatises on G01. The two often appear to be incompatible. constitutionalism unifies them. called the resistance theory. who did not exercise absolute powers.ilosophers of the Age of Reason left indelible marks on the Filipino intelligentsia of the nineteenth century: John Locke and Jean Jacques Rousseau.Constitutionalism combines two elements: the rule of law and democracy. gave a formula for the synthesis of the two in the form of a political equation: Constitutionalism is "the institutionalization of civil disobedience'~ Civil Disobedience is constitutional populism. the rule of law is constitutional order. and his subjects." AC. "111 . Popular demand sometimes conflicts with the rule of law. his subjects had the right to overthrow him. at 120. the great authority on constitutionalism. Rousseau re-echoed the same principle in The Social Contratt (1762). agreeing that if the government did not satisfy its subjects. McIlwain. In fact. they have all the reason to alter the government to whatever they thought best. "urges that the people have the right to resist a ruler who does not obey or direcdy disobeys the constitution. a modern theory of constitutionalism. Charles H.] It is evident that the constitutionalist framework itself allows the mechanism of people power in situations where there is abuse and Agoncillo: "Two ph. means that if the king failed to do his duty and did not respond to natural rights.ONCILLO. Civil Disobedience means that the people can nullify tyrannical governmental actions.

which asserted the concepts of divine right and sovereignty. 111 Rebecca Bichel. at http://www. at 301. Bodin himself provided the classic definition of sovereignty in The Six Books o/the &publi<' in 1579. According to Bodin. in disregard of the existence of sound constitutional mechanisms.constitution. is justified either because the people deemed it necessary to invoke their sovereign right or because the institutions are either insufficient or inadequate to resolve the grievances of the people or disrespected by the government itself.htm (2000). 115 Id at 44.It is proposed by this author that the right and duty of the citizens to make use of people power. to any person or body their ultimate right of self-government. "is the people. 114 EBENSTEIN. the latter being a mere temporary agent of the former."114 The sovereignty of the people is inalienable and ConstCivDisobed. although the people have . at 301. constituted as a political community through the social contract.supra note 8. the right and duty of civil disobedience arises from the people's right of sovereignty.The sovereign is distinct from the government. Rousseau meant that "the people cannot give away. By this. 1 CURTIS. . First."IIS 110 Harvey Wheeler.112"[s]overeignty was the absolute and perpetual power of commanding in a state. According to Rousseau. The Constitutionality of Civil note 8.html (1997). 113 1 CURTIS. Deconstructing Constitutionalism: The Case of Central Asia and Uzbekistan. or transfer. at http://www. 112 He was a member of the Politiqucs. of deciding their own destiny. at 448.icarp.I'upranote 38."113 The real sovereign. in Rousseau's theory. a group of French politicians and lawyers in the late 16th century.

as it is presently understood. ll7 Sovereignty. However. The 1987 Philippine Constitution itself recognizes this age-old principle. sovereignty is by no means unlimited. emphasizes the supremacy of the people's will over that of the governmental organs that they themselves created. which is the supreme authority in the state."118 The right of the people to "abolish" the government is only logical for the latter's "authority comes from the permission of the people. These institutions include the government apparatuses created by the Constitution. All the remedies provided by the Constitution and the law should be exhausted first before any resort to civil . it may be inevitably concluded that the people have a right to depose their leader or overthrow the government if they failed to discharge the responsibility of attaining the ends for which the society existed.121 In contemporary political thought. they have not given up their so-called legislative function.116 The theory of sovereignty remains an elementary principle of constitutional law up to this date."119 What the people have conferred upon the government may also be withdrawn by them. Bodin speaks of the limitations provided by natural law.120 Taking off from the principle that sovereignty resides in the people. a government acting for the common good remains "sovereign" and must be obeyed.delegated the exercise of their powers to the government. Indeed. but once its acts "cease to be for the public good as the people see it. nothing could prevent their abolishing an organ they have ceased to truSt. eternal law of God and fundamentallaws. sovereignty is restricted by the institutions that the people have set up to regulate their affairs. This means that the citizens may not avail of their right to civil disobedience until and unless they have initially taken advantage of their political institutions.

2001. Sovereignty resides in the people and all government authority emanates from them. . at 38.. for it belongs to the sovereign people. People power is justified if the constitutional 116 Id. II. 121 1 CURTIS. 31. 118 MCILWAIN. 120 To further bolster this point. A public office is a public trust-a privilege loaned to a few as long as they enjoy the trust and confidence of the people. at 302.. no dynasty has an absolute claim on it. at A9.disobedience or revolution or people power may be had. SJ. from the Institute on Church and Social Issues.Jan. it is worth quoting Nono Alfonso. 119 Id. 1 states: The Philippines is a democratic and republican State.rupra note 15. 111 Art.r on POllJllr. who wrote: "The government's hold on power is only incidental. No individual.ron. These principles provide the bases for the second justification of the right and duty of civil disobedience. no family. It is ncver anyone'. PHIL." Nono Alfonso.rupra notc 8.DAILYINQUIRER.r. propcrty. sec. SJ. Le.

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