Constitutional Law 1 - Bernas

THE 1987
CONSTITUTION
OF THE
REPUBLIC OF THE PHILIPPINES
PREAMBL E
W E , 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.
1. Deliberations on the Committee Report.
The very first Committee Report to come out for deliberation by the 1986
Constitutional Commission was a draft of a preamble. The draft was a
1
modification of the Preamble of the 1973 Constitution and read thus:
W E , THE SOVEREIGN FlLIPINO PEOPLE, IMPLORING THE

GUIDANCE OF DlVINE PROVIDENCE, TO ESTABLISH A
GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND
ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND ENHANCE
OUR PATRIMONY, SECURE TO OURSELVES AND OUR POSTERITY THE
BLESSINGS OF PARTICIPATORY DEMOCRACY UNDER A RULE OF JUSTICE,
PEACE, FREEDOM, AND EQUALITY, DO ORDAIN AND
PROMULGATE THIS CONSTITUTION.
'Committee Report No. 1, Committee on Preamble, National

Territory, and Declaration of Principles, June 10,1986.1 RECORD OF THE
CONSTITUTIONAL COMMISSION 788 (1986), tetinafter cited as I RECORD.
1
2 THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES
In the course of the initial deliberations, there were those who

felt that the Preamble should be formulated only after the body of the Constitution had
been completed. Their contention was that, since the Preamble is a distillation of the
ideals and aspirations of the Filipino people, it should not be finalized until after those
ideals and aspirations had been hammered out especially after widespread consultation
in public hearings. Others, however, thought that, since the Commission ers
themselves were in a position to enumerate, at least tentatively, the ideals and
aspirations of the Filipino people, a Preamble formulated in advance could serve as a
guide for the rest of the work of the Commis sion. A compromise was reached
when it was agreed that the Preamble
would still be subject to modifications after the formulation of the body of the
document. It was a reasonable compromise, because a constitu tion essentially consists of
an enumeration of fundamental values and goals and of devices for achieving and
protecting these goals. An enu meration of the values and goals,
therefore, albeit tentative, could be a useful aid for future
deliberations. As it turned out, however, the Com mission did not go
back to the Preamble after the completion of the body of the document. 2
The Commission deliberations took up most of the plenary ses sion time on June
10 and ll . The Committee's
3
"guidance" gave way to "aid" as the more
all-embracing term. The word "enhance" yielded to the 1935's and 1973's
"conserve and develop." The addition of the more dynamic word "aspirations" to
the passive sounding "ideals" was accepted. But the modifier
"participatory," which the Committee said was meant to introduce the element of direct
democracy and "people power," was deleted as being tautological.
An attempt to restore the phrase "general welfare" in place of the Committee's

phrase "common good" was not accepted. The change from "general welfare" to
"common good" was intended to project the idea of a social order that enables every
citizen to attain his or her fullest development economically, politically, culturally and
spiritually. The rejection of the phrase "general welfare" was based on the apprehen
sion that the phrase could be interpreted as meaning "the greatest good for the greatest
number " even if what the greater number wants does
2
ld. at 93-97, 124-126.
'Journal No. 7 and 8, June 10 and 11, 1986; I RECORD 87-109, 116-140.
PREAMBLE
3
violence to human dignity, as for instance when the greater majority might want the
extermination of those who are considered as belong ing to an inferior race. It was
thought that the phrase "common good" would guarantee that mob rule would not
prevail and that the majority would not persecute the minority. 4
An attempt to substitute "Lord of History" or "God of History" for "Divine

Providence" was made on the reasoning that the suggested substitute connoted active
involvement of God in the affairs of men. But the suggestion was rejected when it was
pointed out that the phrase could be misunderstood as an acceptance of the Marxist
concept of his
tory as being the only God. Instead, the phrase "Almighty God" was chosen as being
more personal than "Divine Providence" and therefore more consonant with Filipino
religiosity.
Another change made by the body was the insertion of the phrase "a just and humane
society". The phrase added the notion that a con stitution not merely sets up a
government but is also an instrument for building the larger society of which
government is merely a part.
An attempt to substitute "equity" for "equality" was rejected as being subject to

the interpretation that the Commission was rejecting the enshrinement
of "equality" already made by the 1973 Constitution. The 1973 Preamble had
added "equality" to reflect the mounting wave of protests against basic social
inequalities which even at the time of the 1971 Constitutional Convention plagued
Philippine society.
The Committee's desire to substitute "rule" for "regime" was rejected. Instead, the
phrase "rule of law" was inserted and the con cluding litany was made to read "truth,
justice, freedom, love, equality and peace". The introduction of the word "love"
probably makes the Philippines the only nation to enshrine the word in its Constitution.
It serves as a monument to the love that prevented bloodshed in the Feb ruary
Revolution of 1986. Moreover, the insertion of "truth" is a protest against the
deception that characterized the Marcos regime. Finally, the enumeration
captures a stream in Catholic thought which sees peace as the fruit of the convergence
of truth, justice, freedom, and love.
The draft was approved on second reading on the eve of Indepen dence Day,
June 1 1, 1986.
HII RECORD 277.

4 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
2. Purpose and effect of the Preamble.

Constitutionally, however, a Preamble is not a source of power or right for any
department of government. But because it sets down the origin,
5
scope, and purpose of the Constitution, it is useful as an aid in

ascertaining the meaning of ambiguous provisions in the body of the
Constitution. In Aglipay v. Ruiz, for instance,
6
Justice
Laurel, in seeking the true meaning of separation of church and state in
Philippine juris prudence, had occasion to allude to the invocation of the "aid of Divine
Providence" found in the 1935 Preamble.
The Preamble, moreover, bears witness to the fact that the Consti
tution is the manifestation of the sovereign will of the Filipino people. This idea comes
out more clearly in the present text, as also in the 1973 text, which uses the first person
approach. The 1935 Preamble had used the third person approach: "The Filipino people,
imploring the aid, etc." The effect of the 1935 text was to suggest that some third
person, the United States, was making the announcement that the Filipino
people were finally being allowed to promulgate a constitution.
The identification of the Filipino people as the author of the con stitution also calls
attention to an important principle: that the document is not just the work of
representatives of the people but of the people themselves who put their mark of
approval by ratifying it in a plebiscite.
The 1935 text had also stated that one of the objects of the promul gation of
the constitution was "to secure to themselves and their poster ity the blessings of
independence." The text thus suggested that inde pendence was still
merely an aspiration (as indeed it was then) and not
yet a possession of the Filipino people. To remove this anachronistic suggestion, the
Preamble now, as also the 1973 Preamble, speaks of the "blessings of democracy" and
calls the Filipino people "sovereign."
ARTICLE I
THE NATIONAL TERRITORY
SECTION 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.
1. The Place of Territorial Delimitation in the 1935 Constitution.
The definition of national territory found in the Constitution went through three phases.
The first phase was during the 1934-1935 Con stitutional Convention. This
was followed by the deliberations of the
1972 Constitutional Convention and finally by the deliberations of the 1986
Constitutional Commission. Between 1972 and 1986, however, the
Philippines became party to the 1982 Convention on the Law of the Sea. In the
exposition of the law on national territory all these phases will be taken into
consideration.
A constitution is a municipal law. As such, it is binding only with in the

territorial limits of the sovereignty promulgating the constitution. For purposes of
actual exercise of sovereignty, it is important for the sovereign state to know the extent
of the territory over which it can legitimately exercise jurisdiction. For purposes of
settling international conflicts, however, a legal instrument purporting to set
out the territo
rial limits of the state must be supported by some recognized principle 5
THE PHILIPPINES
6 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF
of international law. Hence, the silence of a constitution regarding the territorial limits
of a sovereignty does not deprive such sovereignty of any portion of territory it is
entitled to under international law. Neither, however, does a constitutional definition
of territory have the effect of legitimizing a territorial claim not founded on some legal
right pro
tected by international law.
Philippine constitutionalism accepts the principle that it is not the Constitution

which definitely fixes the extent of Philippine territory. This principle ran through the
debates on the national territory during the 1935 Constitutional Convention.
The existence of a territorial defi
1
nition in Article I of the 1935 Constitution was not a denial of this prin ciple.
Rather, Article I reflected a historical purpose. The determinative factor which
persuaded the 1935 Convention to include an article on national territory was the intent of
the Convention to use the Constitu tion as an international document binding on the United
States. The possibility of transforming the Constitution, a municipal law, into an
international document arose from a provision of the Tydings-McDuffie Law which
prescribed that the effectivity of the Philippine constitu tion would depend partly on the
acceptance of its provisions by the United States Government. Delegate
2
Singson Encarnacion put the mat ter bluntly: "Es cosa necessaria para
nosotros. No debemos redactor nuestra Constitution,
como se ha repetido aqui muchas veces, imitando
simplemente la Constitution de otros paises; debemos
poner aqui lo que es necessario, a fin de que despues no se conviertan algunas
de nuestras islas en 'yoyo', o sea, que Estados Unidos
retire lo que hoy de buena gana nos concede." Answering the
3
question of Delegate Palma, Singson Encarnacion was even more blunt: "Como
sabe su senoria muy bien, en este mundo no rige el verdadero derecho
international basado en lajusticia estricta, sino la fundada en
fuerza de los canones, y claw esta, es mejor que fortalezcamos
desde ahora." 4
'V 1934-1935 CONSTITUTIONAL CONVENTION RECORD 318-

359, 389-447, 490- 528 (1967), hereinafter to be referred to as 1935 CONVENTION RECORD. 2
Sec. 3, Act, Mar. 24,1934, Ch. 84,48 Stat. 546.
V 1935 CONVENTION RECORD 342.
3
Id. at 347. After Singson Encarnacion's intervention, a vote was taken on a

motion to sup press the provision on national territory. The motion was defeated by a vote of 38 to
119. Id. at 354.
ART. I - THE NATIONAL TERRITORY
Sec. 1 7
2. National Territory under the 1935 Constitution. Article I,
Section 1 of the 1935 Constitution read:
States by the Treaty of Paris concluded between the United States

and Spain on the tenth day of December, eighteen hundred and ninety-
eight, the limits of which are set forth in Article III of said treaty, together
with all the islands in the treaty concluded at Washington, between the
United States and Spain on the seventh day of November, nineteen
hundred, and in the treaty concluded between the United States and Great
Britain on the second day of January, nineteen hundred and thirty, and all
territory over which the present Government of the Philippine Islands
exercises juris diction.
The article, thus gave four points of reference for the determina tion of Philippine
territory: (1) The Treaty of Paris on December 10, 1898; (2) The Treaty of
Washington on November 7, 1900; (3) The treaty between Great Britain and the United
States on January 2,1930; (4) "all territory over which the present Government
of the Philippine Islands exercises jurisdiction."
By Article III of the Treaty of Paris, Spain ceded to the United States "the archipelago
known as the Philippine Islands, and compre hending the islands lying within" the line
drawn by the technical de scription of the same article. The technical description
embodied in the Treaty of Paris, however, left some doubt about the inclusion
within the ceded territory of the Batanes Islands to the north and of the Islands of
Sibutu and Cagayan de Sulu to the south as well as of the Turtle and Mangsee
Islands. The Treaty of Washington of November 7, 1900 cor rected the
error with respect to the Islands of Sibutu and Cagayan de Sulu, and jurisdiction over
the Turtle and Mangsee Islands was clari fied by the convention concluded between
Great Britain and the United States of January 2, 1930.' The doubt with respect
to the Batanes Is lands, however, was left unclarified in spite of the fact that, from time
immemorial, these islands had undisputedly formed part of the Philip pine Islands.
Hence, to remove the doubt, the 1935 Constitution added
'Id. 319-320.
THE PHILIPPINES
OF THE REPUBLIC OF
the clause "all territory over which the present (1935) government of the
Philippine Islands exercises jurisdiction." 6
3. Why a Definition of Territory in the 1973 and 1987 Constitutions?

The 1971 Convention spent a considerable amount of time on Feb ruary 14
and 15, 1972 debating whether the new Constitution should contain a definition
of Philippine territory. This question had to be set tled before the Convention could
proceed to consider amendments to the draft report of the Committee on National
Territory.
The principal proponent of the motion to delete the entire article on National
Territory was the late Delegate Voltaire Garcia (Rizal). Garcia argued that
7
territorial definition was a subject of international law, not of municipal law, and that
Philippine territory was already de
fined by existing treaties. As for the Batanes Islands, Garcia pointed out that no state
ever questioned the continued exercise of Philippine sovereignty over these islands.
While the definition of Philippine ter ritory in the 1935 Constitution might
have been useful in 1935, Gar cia observed that its continued presence in the Constitution
had in fact embarrassed the Philippines in negotiations for territories not covered by the
constitutional definition. Hence, Garcia concluded that a consti tutional
definition of territory would not only be unnecessary but could even be prejudicial to the
interests of the Philippines. Answering the ac cusation that his
8
reasoning was tacit advocacy of expansionism, Garcia said that international law
recognized peaceful modes of acquiring new territory. Moreover, he retorted that the real
advocates of expansionism were those who positively wished to mandate the state to
pursue claims over areas not clearly within the Philippine territory. Garcia specifically
singled out the movement to claim the Marianas Islands, a trust territory which
the United Nations was then preparing for independence.
Delegates Amanio Sorongon (Iloilo 3rd district) and Magtanggol
G. Gunigundo (Bulacan 1st district) supplied the
"nationalistic" argu
Hd. 327; Committee Report No. 01, Committee on National Territory, 1971 Constitutional
Convention, Jan. 15, 1972; Committee Report No. 7, Committee on Territorial Delimitation 1935
Constitutional Convention, August 31, 1934; I AJIUEGO, THE FRAMING OF THE
PHILIPPINE CoNsrmi TION 117-119 (1936), hereinafter cited as AROUECO .
On the Batanes question, see also Speech of Delegate Villalva, Session of February 11,1972.
'Speeches, Sessions of February 14 and 15,1972.

'Infra, note 11.
Sec. 1 9
ments for deletion of the article on national territory. Sorongon found the
mention of the Treaty of Paris a repulsive reminder of the indig nity of our colonial
past.' Gunigundo, in utter disregard of the historic evolution of the Filipino
nation, claimed that the Philippines existed before Magellan ever came . More
plausibly, but only after a leap over four centuries of history, he recalled that Felipe
Agoncillo had protested Spain's cession of the Philippines to the United States,
first, because the Philippines had not been consulted, and second, because Spain had al
ready lost effective control over the Philippines. Hence, he argued
that to accept the territorial boundaries defined in the Treaty of Paris would be to lend
legitimacy to the illegal act of Spain and the United States. Finally, after some
irrelevant statements about the Catholic Church, Gunigundo concluded that the ancestral
home of the Filipino people might be larger than the Treaty of Paris would
allow. 10
The arguments for the inclusion of an article defining the national territory ran along two
levels. On one level was an attempt to dem onstrate the need for a clear definition of
Philippine territory. Thus, Delegate Raul Roco (Camarines Sur) argued that a territorial
definition was necessary for the preservation of our national wealth, for national
security, and as a manifestation of our solidarity as a people." Similarly,
'Speech, Session February 15,1972. Sorongon favored a process of selective recollection.

He said that if the charter must remind us of our past, let it remind us of our glorious past — Mac
tan, Tirad Pass, Bataan.
Gunigundo's speech is a rambling sort of oratory best suited for losing a good
10
cause. Session of February 15,1972.

A short-sighted argument for deletion was supplied by Delegate Manuel T. Molina (Cagayan).
He said that if Sabah were to be made part of Philippine territory, the Philippine government would
have to drop criminal cases of smuggling from Sabah. And if the President were to send an armed
battalion to Sabah, nobody could rightly call such an act an invasion. Session of February 15,1972.
Not very helpfully. Delegate Clemente Abundo

(Catanduanes) argued that the definition of our "ancestral home" has already been
"written in blood." Session of February 15, 1972. "Speech, Session of February 15, 1972. Delegate Roco
also said that to argue for deletion in order to allow for expansion is to give "dangerous obeisance to the
principle of expansionism." Moreover, he said that if some people find mention of the Treaty of Paris
offensive to their nationalist sensibilities, he would favor a mere mention of treaties without
specification. Delegate Juan Liwag (Nueva Ecija, 2nd district), speaking against the Committee report,
was opposed to its details. First, he said that the details were an unnecessary repetition of
provi sions of R.A. No. 3046 and R.A. No. 5446. Secondly, while the proposal claimed sovereignty over
territorial waters, it did not claim dominion or ownership over the same areas. Hence, he said that the
proposal did not make the territorial waters part of the Philippine public domain. This observation of
Liwag, however, did not get any reaction from the Convention. Speech, Session of
February 15,1972.
THE PHILIPPINES
OF THE REPUBLIC OF
Delegate Jose Nolledo (Palawan) expressed concern for the protection of

our national resources. 12
The arguments of Roco and Nolledo, however, did not prove that the
definition must be expressed in the Constitution. Along another level of argumentation
therefore, was an attempt to show that the defi nition of Philippine territory
must be expressed in the Constitution it self. In support of this proposition, Delegate
Eduardo Quintero (Leyte),
Chairman of the Committee on National Territory, made three points. First, he
said that the territorial assertions found in Republic Act 3046 were couched merely in
"Whereas " clauses. These clauses should be expressed in more authoritative fashion.
Second, he said that to delete the article entirely would again leave the status of the
Batanes Islands in doubt. Third, he expressed the need for curing the failure of the 1935
Constitution to express the possibility of future territorial acquisitions by the
Philippines. He said that this failure had caused the Philippine government some
embarrassment in two conferences over Sabah, first in London in 1963 and then in
Bangkok in 1968. 1
Delegate Nolledo added that the ratification of the
3
Constitution by the people should strengthen the Philippine territorial

position. Similarly, Delegate Ale
14
jandro Lichauco (Rizal) argued that such an important matter as ter ritorial
delimitation should not be left to subordinate agencies of the government such as the
legislature or the executive. 15
Admittedly, these arguments were valid for strengthening the force of our
territorial definition as municipal law. However, they did not prove that a constitutional
definition would strengthen Philippine legal position in international law. The
transposition of the provisions of R.A. No. 3046 to the Constitution would transform
such provisions into constitutional provisions, but the provisions would
remain munici
pal law, not international law. The deletion of the article on national territory would not
mean abandonment of the Batanes Islands or any portion of Philippine territory as long
as Philippine jurisdiction contin ued to be actually exercised over such
territories, as in fact it had always been exercised even before the curative clause of the
1935 Constitution.
"Speech, Session of February 15,1972.

"Speech, Session of February 15,1972. Quintero was a member of the
Philippine delega to both the London and Bangkok conferences. See
infra, note 25.
"Supra, note 12.
"Interpellating Delegate V. Garcia, Session of February 14,1972.
Sec. 1 11
Nor could the argument of estoppel, used by the British government both in London in
1963 and in Bangkok in 1968, be answered by a 1973 unilateral assertion of jurisdiction
over Sabah.
4. The 1973 Provision on National Territory.
Article I of the 1987 Constitution cannot be fully understood with out

reference to Article I of the 1973 Constitution. Although the 1986 Constitutional
Commission spent a considerable amount of time on Ar ticle I, in the end the provision
that emerged was in substance a copy of its 1973 Counterpart.
Article I of the 1973 Constitution said:

The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other ter ritories belonging
to the Philippines by historic right or legal title, including the territorial sea,
the air space, the subsoil, the sea-bed, the insular shelves, and the other
submarine areas over which the Philippines has sovereignty or jurisdiction.
The waters around, be tween and connecting the islands of the archipelago,
irrespective of their breadth and dimensions, form part of the
internal waters of the Philippines.
Briefly, and for purposes of analysis, Philippine national territory

under the 1973 Constitution may roughly be divided into three groups: (1) the
Philippine archipelago; (2) other territories belonging to the Philippines; and (3)
Philippine waters, air-space, and submarine areas. The territory thus has a horizontal
reach consisting of land and waters, an upward reach consisting of air-space
over the land and waters, and a downward reach consisting of submarine areas.
Moreover, the last sentence of the provisions makes an important assertion of adherence
to the "archipelagic principle."
a. The Philippine Archipelago

What or where is the Philippine archipelago? The answer given by Article I of
the 1973 Constitution simply made reference to "all the islands and waters embraced
therein." The Article, however, gave no point of reference that
could delineate the exact location of these islands and waters. On its face,
therefore, the Article did not serve as a defini
tion of national territory. To understand its meaning, one must look into the
evolution of the Article from its first draft to its final form.
12 THE 1987 CONSTITUTION OF THE
Sec. 1
Section 1 of the first draft submitted by the Committee on Na tional Territory almost
literally reproduced Article I of the 1935 Con stitution which, as shown above,
embodied four points of references. Unlike the 1935
version, however, the draft designated the Philippines not simply as the Philippines but
as "the Philippine archipelago." In response to the criticism that the
16
definition was colonial in tone in that it gave no indication that the Filipinos had a
native land even prior to the arrival of the Spaniards, the second draft further
designated the Phil ippine archipelago, as "the historic home of the Filipino people from
its beginning." This drew the comment from Delegate Voltaire Garcia
17
that the home of our ancestors once formed part of the Madjapahit Em
pire and that it would be ridiculous to suppose that we were claiming the vast expanse
of the former Madjapahit Empire as the ancestral home of the Filipino
people.
After debates on February 14 and 15, 1972, the Committee re paired back to
the drawing board and fumigated the draft of all co lonial vermin by dropping all
reference to prior treaties. On February 17, 1972, the Committee reported out a
final draft, more aseptically patriotic than clear, which became the initially approved
version: "The national territory consists of the Philippine archipelago, which is the
ancestral home of the Filipino people, and which is composed of all the islands
and waters embraced therein . .. "
What was the intent behind the designation of the Philippines as an "archipelago"?
An archipelago may be defined, depending on one's utilitarian preference,
either as a cluster of islands forming a territorial unity, or as a unit of water studded with
islands. In the first definition, the waters are considered adjuncts to the land area and
their extent is determined by reference to the land area. In the second definition, the land
area is everything that comes within the water area. The Committee preference was for
the second definition. Asked by Delegate Roseller Lim (Zamboanga)
1 8
where this archipelago was, Committee Chairman Quintero

answered that it was the area delineated in the Treaty of Paris. He said that
objections to the colonial implication of mentioning the
"Report No. 01 of the Committee on National Territory.

"Report No. 02 of the Committee on National Territory, January 31,1972.
Delegate Quin tero singled out Ambassador Leon Ma. Guerrero as the principal source
of the criticism. Session of February 14, 1972.
"Session of February 14,1972.
Sec. 1 13
Treaty of Paris was responsible for the omission of the express mention of the Treaty of
Paris."
Report No. 01 of the Committee on National Territory had in fact been explicit in
its delineation of the expanse of this archipelago. It said:
Now if we plot on a map the boundaries of this archipelago as set

forth in the Treaty of Paris, a huge or giant rectangle will emerge,
measuring about 600 miles in width, and over 1,200 miles in
length. Inside this giant rectangle are the 7,100 islands compris
ing the Philippine Islands. From the east coast of Luzon to the eastern
boundary of this huge rectangle in the Pacific Ocean, there is a
distance of over 300 miles. From the west coast of Luzon to the
western boundary of this giant rectangle in the China Sea, there is
a distance of over 150 miles.
When the United States Government enacted the Jones Law, the
Hare-Hawes-Cutting Law and the Tydings-
McDuffie Law, it in reality announced to the whole
world that it was turning over to the Government of
the Philippine Islands an archipelago (that is, a big body of water
studded with islands) the boundaries of which archipelago are set forth in
Article III of the Treaty of Paris. It also announced to the whole
world that the waters inside the giant rectangle belong to the Philippines —
that they are not part of the high seas.
When Spain signed the Treaty of Paris, in effect she an nounced to

the whole world that she was ceding to the United States the Philippine
archipelago which she had been occupying for over four hundred years,
that this archipelago was bounded by lines specified in the treaty, and that
the archipelago consisted of the huge body of water inside the boundaries
and the islands inside said boundaries.
The delineation of the extent of the Philippine archipelago must be understood in

the context of the modifications made both by the Treaty of Washington of November
7, 1900, and of the Convention of January 2,1930, in order to include the
Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands.
However, although the
20
"To which Lim replied that the text should be clear even at the risk of sounding colonial.
Session of February 17,1972.
"Supra, note 5.
Sec. 1
evident intent of the Convention was to secure the inclusion of the Batanes group, the
definition of the archipelago did not include the Batanes group. Even the map
distributed by the Cornmittee on National Territory placed the Batanes
Islands outside the boundaries of the Philippine archipelago as set forth in the Treaty of
Paris. In literal terms, therefore, the Batanes islands would come not
under the Philippine archipelago but under the phrase "all other territories belonging to
the Philippines." It is submitted, however, since both geographically and historically
these islands form a unity with the Philippine archipelago of the Treaty of Paris,
they should be considered part of the Philippine archipelago for purposes of the 1973
Constitution. 21
The conclusion that emerges from this discussion is that the "Phil ippine archipelago" of
the 1973 Constitution corresponds with the ter ritory defined in Article I of the 1935
Constitution. Thus must the 1973 definition be understood if it is to be a useful
definition at all and not
just a piece of patriotic assertion of national history dating back to an cestral Madjapahit
rulers. In other words, try as we might to forget our colonial past by erasing colonial
traces from our Constitution, remem bering history also serves our national
purpose.
b. ".. . all other territories belonging to the Philippines by historic right or

legal title."
Under the 1973 Constitution, aside from the Philippine archipel ago,
Philippine territory also includes "all other territories belonging to the Philippines by
historic right or legal title." What are these other territories?
The history of this provision goes back to the last clause of Article I of the
1935 Constitution which included "all territory over which the present Government of
the Philippine Islands exercises jurisdiction." Section I of the first draft
of the 1973 version updated the 1935 version to read: "All the territory over which
the Government of the Philippines was exercising jurisdiction on July 4, 1946 as well as
territory which
2l
The importance of including the Batanes islands within the Philippine archipelago will
become apparent when the "internal waters of the Philippines," as described in the second para graph of
the article, are discussed. Quintero said: "The correct definition of archipelago is, it is a sea studded with
islands. In other words, an archipelago means sea plus islands. The sea seems to be more important than
the islands."
Sec. 1 15
said government has acquired or over which it has a right." The second draft simplified
22
the modification thus: "All other territories over which the government of the
Philippines has been exercising jurisdiction or over which it has a right." The final 2 3
1973 version was the draft re

ported out on February 17,1972.
It will be recalled that the last clause of Article I of the 1935 Con stitution was
intended to ensure the inclusion of the Batanes Islands within Philippine territory. In his
sponsorship speech delivered on Feb ruary 1 1,1972, Delegate Custodio
Villalva of Batanes said that the first portion of Section 1 of the second draft saying "all
other territories over which the government of the Philippines has been exercising
jurisdic tion" was a carry-over from the 1935 Constitution "expressed in the imperfect or
durative tense and intended to place the ten small islands of the province of Batanes
under the sovereignty of the Philippines." Committee Report No . 01
24
also said that the phrase found in the first draft which referred to "territory which said
government has acquired or over which it has a right" was "intended to cover the claim
to Sabah which has been filed by the Republic of the Philippines, and the pos sible claim
to Freedom Land and the Marianas Islands." This comment of Committee
Report No . 01 is also applicable to the clause in the sec ond draft which referred to all
territory "over which (the Philippines) has a right." Thus, both the first and the second
draft contained a clause intended to cover the Batanes Islands, which certainly formed
part of Philippine territory, and all other territories over which the Philippines might
have a claim both then and in the future. The clause was inserted in answer to the clamor
to protect and ensure Philippine claim to terri tories not covered by prior
treaties. The intent was to avoid forfeiture of these claims by their omission from the
constitutional definition.
The same intent was carried over into the final draft which said "all the other territories
belonging to the Philippines by historic right or legal title." Committee Chairman
Quintero said that the word "belong ing" was used both in the present and future sense:
"now or later may belong." By "historic right," Quintero said, Batanes belonged to the
"Session of February 14,1972.

"Villalva, besides going into some detail on the history of Batanes, also makes the
claim that mere retention of Article I of the 1935 Constitution would have the effect of
excluding Batanes from Philippine territory. This writer did not check whether Villalva's history is as
bad as his law.
THE 1987 CONSTITUTION REPUBLIC OF THE PHILIPPINES
16 OF THE
Sec. 1
Philippines because in all its history Batanes had always been a part of the
Philippines. By "historic right." he said, the Marianas Islands might also belong to the
Philippines depending on historical evidence. As for Sabah, Quintero said that
Philippine jurisdiction was based on "legal title" perfected in 1962." "Legal
title" was used to mean all accepted legal modes of acquiring territory. 26
Briefly, then, the phrase "all other territories" was a catch-all used to cover areas
linked to the Philippines with varying degrees of certainty and firmness. It
covered Batanes, which undisputedly belonged to the Philippines. It covered
Sabah, over which the Philippines had filed a formal claim. It covered the Marianas
Islands and Freedom Land, claim over which was under investigation.
It covered any other territory which the Philippines might acquire in the future through
accepted international modes of acquisition. The clause therefore was nothing more
than an insurance clause which could be meaningful only if supported by title
extraneous to the Constitution.
c. The territorial sea.
The territorial sea of a state, as distinct from its inland and internal waters,
consists of a marginal belt of maritime waters adjacent to the base lines extending twelve
nautical miles outward. Outside the territo rial sea are the high seas. A state
exercises sovereignty over its territo rial sea subject to the right of innocent passage by
other states. Innocent passage is understood as passage not prejudicial to the interests of
the coastal state nor contrary to recognized principles of international law. The
traditional length of the territorial waters measured seawards, ac cording to
the cannon-shot rule formulated in 1702, was three miles, the effective range of
18th century defensive shore batteries. Modern law, however, now recognizes
twelve nautical miles.
"Session of February 17, 1972. Delegates Quintero and JaJ Anni (Sulu) give the
history of the Sabah claim in Session of February 12, 1972. Delegate Amado S. Tolentino, Jr.
(Oriental Mindoro) expounds on the findings on the Marianas Islands and Delegate Geronimo
M. Cabal (Batanes) on the findings on Freedom Land in Session of February 14, 1972.
Committee Report No. 01 contains substantially the same material.
Immediate adverse reaction to the Convention claim over the Marianas Islands was sup
plied by a visiting Guamanian senator. Sen. George M.
Bamba, The Philippines Herald, February 21,1972,p.l.
"Under the 1935 Constitution, the Philippines may lawfully acquire territory not
covered by Article 1.1 ARUEGO 124-126.
Sec. 1
ART. I - THE NATIONAL TERRITORY 17
Two methods are used for fixing the starting point or baseline from which the
territorial belt is measured seawards: "1) the normal base line method, under which
the breadth of the territorial sea is measured from the low water-line, following the
indentations of the coast; 2) the straight baseline method, under which instead of the
baseline follow
ing the sinuosities of the coast, it is drawn as straight lines connecting appropriate points
on the coast, without departing to any appreciable extent from the general direction of
the coast." 27
Both the first and second draft of the 1973 article on national ter ritory contained
the following provision: "All the waters beyond the outermost islands of the archipelago
within the boundaries set forth in the treaties and convention mentioned in Section 1
hereof comprise the territorial sea of the Philippines." The treaties and convention
referred to were those found in Article I of the 1935 Constitution.
This proposed provision represented the official position espoused by the Philippines in
international conventions and it is found in Republic Act No. 3046 (1961) and Republic
Act No. 5446 (1968).
What, then, was the extent of the territorial waters claimed by the 1973
Constitution which antedated the 1982 Law of the Sea? The final draft, unlike the first
two drafts, simply claimed jurisdiction over "the territorial waters," without
making explicit the extent of the area claimed. It must also be pointed out that the
Convention was aware that this claim, which extended Philippine territorial waters
beyond the old three mile rule, was something which had yet to be accepted in inter
national circles. In his sponsorship speech delivered on February 11, 1972,
Delegate Quintero reminded the delegates that no accord had yet been reached on the
breadth of the territorial sea and that the Philip pine government was preparing for an
international conference on the law of the sea in 1973 where "every effort will be
exerted to get accord on the breadth of the territorial sea." The hope, however,
28
was also
"SALONC A AN D YAP , PUBLIC INTERNATIONAL LAW 158- 9 (1966), R.A. No. 304 6
and R.A. No.544 6 draw straight baselines around the Philippines.
"Quintero added that the average breadth of territorial sea claimed by Republic Act
304 6 is only 115 miles. "The Republic of the Philippines believes that this is reasonable
considering that South American countries have declared their territorial seas to be 20 0 miles. ... And
the United States which wants the adoption of the territorial seas only six miles wide has
established in the Pacific Ocean the so-called safety identification zone. They have sectored 1,400 miles
and they can stop any traffic." They can control these aircrafts to identify itself and be
subject to penalty if it does not [sic]." Speech, Session of February 11,1972 .
THE 1987
18 CONSTITUTION Sec. 1 OF THE REPUBLIC OF THE PHILIPPINES
partly strengthened by the decision of the World Court in the Anglo Norwegian
Fisheries Case" which upheld the straight baseline method of fixing the
territorial sea as unilaterally adopted by Norway. So indeed the LOS would do in
1982.
Internal waters; the Archipelagic Principle

Both the first and the second draft of the 1973 article on national territory contained the
following provision: "All the waters around, between and connecting the various islands
of the Philippine archi pelago, irrespective of their widths and dimensions,
are necessary ap purtenances of the land territory, forming part of the
inland or internal waters of the Philippines." An abbreviated version
appeared in the final draft: "The waters around, between and connecting the islands of
the archipelago, irrespective of their breadth and dimensions,
form part of the internal waters of the Philippines." This
assertion, together with the "straight base line method," form the
"Archipelagic Principle."
The significance of this assertion lies in the meaning of "internal

waters." Internal or inland waters consist of all parts of the sea land wards from the
baseline as well as inland rivers and lakes. All of them are subject to the
sovereignty of the state to the same extent that the land domain is. Unlike territorial
waters, they are not subject to the right of innocent passage by other
states.
This assertion over internal waters was a statement of an aspect of the archipelagic
principle which the Philippines, along with Indonesia, had been espousing in
international conferences. As early as 1955, the Philippines
projected this concept in a note verbale to the Secretary General of the United Nations in
the following language:
All waters around, between and connecting different islands

belonging to the Philippine archipelago, irrespective of their width or
dimension, are necessary appurtenances of the land territory, forming an
integral part of the national or inland waters, subject to the
exclusive sovereignty of the Philippines.
This concept, on June 17, 1961, was embodied in Republic Act No. 3046
whence it found its way into the 1973 Constitution in the
"I.C J. Reports (1951) 130. The argument from this case is by

analogy and, therefore, only as strong as the analogy. See Committee Report No. 01 and Speech of
Delegate Lageui, Session of February 14, 1972.
Sec. 1 19
hope that it would eventually gain international acceptance. Commit

tee Report No . 01 of 1973 said: "The inclusion in the new Constitution of a
provision spelling out the archipelagic principle of the Philippine Government will
certainly strengthen our historical position and will help us in sustaining our archipelagic
theory in the Convention on the Law of the Sea in 1973 and in any case that may
possibly be ventilated before the World Court in the future."
The significance of this assertion on the extent of internal wa ters is that large
bodies of water connecting the islands of the archi pelago — the Sibuyan Sea, the
Mindanao Sea, the Sulu Sea — would be considered by the Philippines in the same light
as rivers and lakes found within the islands themselves. It should be
noted, however, that this assertion was envisioned to apply only to the waters connecting
the islands of the archipelago proper. It was not meant to apply to the waters between the
archipelago and "other territories belonging to the Philippines." 30
". . . the air space, the sub-soil, the sea-bed, the insular shelves and the
other submarine areas."
The first draft of the 1973 article contained the following provi sions:
Section 5. The sovereignty of the Philippines also extends to the

air space over its land territory and its territorial sea as well as to its bed
and sub-soil.
Section 6. The extent of the control that the Philippines ex ercises in
the contiguous zone and the superjacent waters of the continental shelf
shall be determined by law.
The second draft came out thus:
Section 4. The sovereignty of the Philippines . .. also extends

over the air space above its land areas, its internal waters and ter
ritorial seas as well as to its sea-bed and sub-soil.
"See exchange between Delegate Quintero and Delegate Felixberto Serrano

(Batangas), Session of February 17,1972. Serrano said that if the internal waters include
the "waters around" the islands "irrespective of their breadth and dimensions", these waters would
extend outward indefinitely in all directions. Quintero answered that reference is merely to connecting
waters. The imperfection of the text, however, lends validity to Serrano's reading, ridiculous though it
may be.
define the control that the Philippines will
OF THE REPUBLIC OF THE PHILIPPINES exercise in the contiguous zone and in the
superjacent waters of the continental
Section 5. The National Assembly shall shelf.
Sec. 1
Commenting on Section 4 of the second draft, Committee Report No. 02 said

that the provision on airspace was based on the provisions of Articles 1 and 2 of the
Convention on International Civil Aviation adopted in Chicago in 1944. The
Convention entered into force in 1974. Thus, the present regime on air
navigation has developed from the Chi cago Convention on International Civil Aviation
(1944) which entered
into force in 1974. Articles 1 to 4 of the Convention set down the gov erning
principles:
Article 1. Sovereignty
The contracting States recognize that every State has com plete and
exclusive sovereignty over the airspace above its terri tory.
Article 2. Territory
For the purposes of this Convention the territory of a State shall be
deemed to be the land areas and territorial waters adjacent thereto under
the sovereignty, suzerainty, protection or mandate of such State.
The assertion under air space law was that sovereignty extended to an unlimited
extent, usque ad coelum. The development of the law on outer space modified
this assertion. Sovereignty over air space extends only until where outer
space begins. But where is that?
There is as yet no definite answer to that question. The answer will eventually
come from technological capabilities of conventional aircraft to reach greater
heights. Different numbers ranging from fifty to one hundred miles from the earth have
been mentioned.
The provisions on the sea-bed and sub-soil were based on Article 2, Section 1 of
the Convention on the Territorial Sea and Contiguous Zone adopted in Geneva in 1958.
Commenting on Section 5, Committee Report No . 02 said:
The Convention on the Territorial Sea and the Contiguous Zone

adopted by the Geneva Conference of 1958 allows a coastal
Sec. 1 21
state to exercise some control over the contiguous zone, which is a part of
the high seas. The Convention on the Continental Shelf adopted by
the Geneva Conference in 1958 allows a coastal state to exercise over the
continental shelf sovereign rights for certain purposes. The
control which the Philippines should exercise in the contiguous
zone and in the superjacent waters of the continental shelf is
the subject of study by the technical bureaus of the Phil ippine
Government. Under the circumstances, the
Committee on National Territory believes that the matter of the extent of
the con
trol the Philippine Government should have in the
contiguous zone and in the continental shelf may be left to the National
Assembly for future decision.
It will be noted therefore that, while sovereignty is claimed over the air space,
sub-soil, sea-bed, the insular or continental shelves and other submarine areas,
the physical extent of these areas and the degree of control claimed over these areas were
left undefined. This indeter
minate stance was preserved in the final 1973 version which simply claimed "the air
space, the sub-soil, the sea-bed, the insular shelves other submarine areas" as part of
Philippine territory. Determination, in other words, was left to other
modes than by constitutional precept. 31
5. 1982 Convention on the Law of the Sea (LOS) 32
The 1987 Constitution was formulated while the Philippines was already a party
to the 1982 Convention on the Law of the Sea. The dis cussion of the 1982
Convention was not very thorough. However, since the Convention has substantial
provisions which help in the understand ing of the constitutional text, it is best to treat
these before going on to the 1987 version. Some important concepts found in
the Convention are archipelago, archipelagic state, archipelagic
wears, baseline,
"Delegate Justiniano Hermoso (Bulacan, 2nd district) has a

long disquisition on air space in international law and on the continental shelf. Session of
February 12, 1972. See also the ex changes on the continental shelf between Delegates Azcuna and
Quintero, Session of February 14, 1972, and on air space between Delegates Hermoso and Rebeck
Espiritu (Nueva Ecija), Session of February 17, 1972. The all embracing character of "other
submarine areas" is discussed in the exchange among Delegates Serrano, Quintero, and Emmanuel
Santos (Nueva Ecija), Session of February 17,1972.
"Done at Montego Bay, Jamaica, December 10, 1982. Sixty parties are necessary for the
Convention to come into force. As of November 1990, forty-four had become
parties.
22 THE 1987 CONSTITUTION OF THE Archipelago, archipelagic state
REPUBLIC OF THE PHILIPPINES Sec. 1
The Convention contains a definition of an archipelagic state, which the

Philippines is, and an archipelago. Article 46 says:
For the purpose of this Convention:

(a) "Archipelagic State" means a State constituted whol
ly by one or more archipelagos and may include other islands;
(b) "Archipelago" means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so
closely interrelated that such islands, waters and oth er natural features
form an intrinsic geographical, economic and political
entity, or which historically have been regarded as such.
It may be noted that under the above definition of an archipelago Batanes should
be considered part of the archipelago and not just of other territories outside the
archipelago. This conclusion has implica tions for the application of the archipelagic
principle with reference to the waters between Batanes and other islands of the territory
which will be discussed below.
The territorial sea.

The territorial sea of a state, as distinct from its inland and internal waters,
consists of a marginal belt of maritime waters adjacent to the base lines extending twelve
nautical miles outward. Outside the territo rial sea are the high seas.
The traditional length of the territorial waters measured seawards,

according to the cannon-shot rule formulated in 1702, was three miles, the
effective range of 18th century defensive shore batteries. The three mile
rule has now been discarded in favor of the twelve-mile rule now found in Article 3 of
the 1982 Convention on the Law of the Sea.
Where, however, the application of the twelve-mile rule to neigh boring littoral
states would result in overlapping, the rule now estab lished is that the dividing line is a
median line equidistant from the op posite baselines. But the equidistance
rule does not apply where historic
title or other special circumstances require a different measurement.
" "Article 15,1982 LOS.
Baselines
To understand the extent of the territorial sea one must begin with an
understanding of baselines. The baseline is "the low-water line along the coast as marked
on large scale charts officially recognized by the coastal Sate." The width of
3 4
the territorial sea is measured from the baseline.
There are two ways of drawing the baseline. The "normal" base line is one
drawn following "the low-water line along the coast as marked on large-scale charts
officially recognized by the coastal State." This line follows the sinuosities of
35
the coast and therefore would normally not consist of straight lines. There is no
fixed norm for determining the "low water mark" but the Anglo-Norwegian Fisheries
Case suggested that "for the purpose of measuring the breadth of the territorial
36
sea, it is the low-water mark as opposed to the high-water

mark, or the mean between the two tides, which has generally been adopted in the
practice of States. This criterion is the most favorable to the coastal State and clearly
shows the character of territorial waters as appurtenant to the land
territory." 37
Archipelagic States, however, instead of drawing "normal base lines,"

have drawn "straight baselines." Instead of following the sinu osities of the
coast, straight lines are drawn connecting selected points on the coast without
appreciable departure from the general shape of the coast. This method of drawing lines
was first upheld in the Anglo Norwegian Fisheries Case. The case upheld the
validity of the straight baseline unilaterally adopted by Norway. Likewise,
R.A. No. 3046 and R.A. No. 5446 have drawn "straight baselines" around the
Philippines.
The decision in the Fisheries Case upholding the "straight base line
method" eventually became part of convention law. through Article 7(1) of the
Convention on the Law of the Sea. The rule now is that in localities where the coastline
is deeply indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the meth
od of straight baselines joining appropriate points may be employed
" Section 5,182 LOS

"Article 5, Law of the Sea.
"U.K. v. Norway ICJ 1951.
"1951 ICJ 116,128.
2 4 THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
Sec. 1
in drawing the baseline from which the breadth of the territorial sea is
measured. 38
The provision on baselines found in Article 47 of the 1982 Con vention are the
following:
1. An archipelagic State may draw straight archipelagic baselines

joining the outermost points of the outermost islands and drying reefs of
the archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the area
of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nauti cal
miles, except that up to 3 per cent of the total number of base
lines enclosing any archipelago may exceed that length, up to a maximum
length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipela go.
4. Such baselines shall not be drawn to and from low tide elevations,
unless lighthouses or similar installations which are
permanently above sea level have been built on them or where a low-tide
elevation is situated wholly or partially at a distance not exceeding the
breadth of the territorial sea of another State.
5. The system of such baselines shall not be applied to an

archipelagic State in such a manner as to cut-off from the high seas or the
exclusive economic zone the territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic State lies

between two parts of an immediately adjacent neighbor ing State, existing
rights and all other legitimate interests which the latter State has
traditionally exercised in such waters and all rights stipulated by agreement
between those States shall continue and be respected.
7. For the purpose of computing the ratio of water to land under

paragraph 1, land areas may include waters lying within the fringing reefs
of islands and atolls, including that part of a steep sided oceanic plateau
which is enclosed or nearly enclosed by a
'See also 1958 Territorial Sea Convention.

Sec. 1 25
chain of limestone islands and drying reefs lying on the perimeter of the
plateau.
8. The baselines drawn in accordance with this article shall be shown on
charts of a scale or scales adequate for ascertain ing their position.
Alternatively, lists of geographical co-ordinates of
points, specifying the geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such charts or
lists of geographical co-ordinates and shall deposit a copy of each such
chart or list with the Secretary-General of the United Nations.
Article 47 is both a solution and a problem. Two observations intimately

interconnected need to be made. First, paragraph 1 affirms the use of "straight baselines"
as practiced by the Philippines. How ever, paragraph 2 prescribes that "straight baselines"
may not exceed a maximum of 125 nautical miles. Some of the lines drawn
by Republic Act No. 3046 and Republic Act No. 5446 extend beyond 125
nautical miles. 39
At the time of the publication of this edition of the Commentary, Congress was in the
process of re-drafting the baselines in order to con form to the requirement of the
Convention on the Law of the Sea and to deal with the territorial disputes over areas
claimed by the Philippines.
Sovereignty over territorial waters
A state exercises sovereignty over its territorial sea subject to the right of
innocent passage by other States. Innocent passage is under stood as passage not
prejudicial to the interests of the coastal state nor contrary to recognized principles of
international law. Article 19(2) enumerates acts that are not considered innocent
passage thus:
2. Passage of a foreign ship shall be considered to be prejudicial to

the peace, good order or security of the coastal State if in the territorial
sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, ter
ritorial integrity or political independence of the coastal State, or
"See COQUIA , DEVELOPMENT OF THE ARCHIPELAGIC DOCTRINE AS A
RECOGNIZED PRINCIPLE OF INTERNATIONAL LAV/, 58 PHIL. LJ. 13,26 (1983).
26 THE 1987 CONSTTTUTION

the preju dice of the defense or security of the
coastal State;
OF THE REPUBLIC OF THE PHILIPPINES (d) any act of propaganda aimed at
affecting the defense or security of the
in any other manner in violation of the coastal State;
principles of international law embodied in
the Charter of the United Nations; (e) the launching, landing or taking on board
(b) any exercise or practice with weapons of of any air craft;
any kind; (f) the launching, landing or taking on board
(c) any act aimed at collecting information to of any mili tary device;
Sec. 1
(g) the loading or unloading of any commodity, currency or person

contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this
Convention;
(i) any fishing activities;
0) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of com munication
or any other facilities or installations of the coastal State;
(1) any other activity not having a direct bearing on pas sage.
Coastal states have the unilateral right to verify the innocent char acter of
passage, and it may take the necessary steps to prevent passage that it
determines to be not innocent.
Archipelagic waters
Article I of the 1973 Constitution said: "The waters around, between and
connecting the islands of the archipelago, irrespective of their breadth and dimensions,
form part of the internal waters of the Philippines." This assertion,
together with the "straight base line method," form the "Archipelagic
Principle." This now also found in the 1987 Constitution.
The significance of this assertion lies in the meaning of "internal

waters." Internal or inland waters consist of all parts of the sea land-
Sec. 1 27
wards from the baseline as well as inland rivers and lakes. All of them are subject to the
sovereignty of the state to the same extent that the land domain is. Unlike territorial
waters, they are not subject to the right of innocent passage by other states.
Article 8(2) the 1982 Convention, however, says: "Where the es tablishment of a
straight baseline in accordance with the method set forth in Article 7 has the effect of
enclosing as internal waters areas which had not previously been considered as such, a
right of innocent passage as provided in this Convention shall exist in those
waters." Ar ticle 53 of the Convention refers to this type of internal water as "ar
chipelagic waters" and says that "[a]n archipelagic State may designate sea lanes
and air routes thereabove, suitable for the continuous and ex peditious passage of foreign
ships and aircraft through or over its archi pelagic waters and the adjacent territorial sea."
In effect, therefore, the Law of the Sea provision establishes a right of innocent passage
over waters which the Philippine Constitution considers as internal.
Aware of this possible conflict, the Philippine government, in sign ing the Law of
the Sea Convention, made the following reservation: 40
1. The signing of the Convention by the Government

of the Republic of the Philippines shall not in any manner
impair or prejudice the sovereign rights of the Republic of the Philippines
under and arising from the Constitution of the Philippines;
2. Such signing shall not in any manner affect the sover eign
rights of the Republic of the Philippines as successor to the United States
of America, under and arising out of the Treaty of Paris between Spain
and the United States of America of Decem ber 10, 1988, and the Treaty of
Washington between the United States of America and Great Britain of
January 2, 1930;
3. Such signing shall not diminish or in any manner af
fect the rights and obligations of the Contracting Parties under the Mutual
Defense Treaty between the Philippines and the United States of America
of August 30,1951, and its related interpretative instruments;
nor those under any pertinent bilateral or multilateral treaty or agreement
to which the Philippines is a party;
"U.N Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin. Special
Issue 1, March 1987, Annex II, p. 6, quoted in SWEENEY, OLIVER, LEECH, THE INTERNATIONAL
SrsrEU 193 (3rd Ed. 1988).
28 THE 1987 CONSTITUTION sea lanes and do not deprive it of authority to
OF THE REPUBLIC OF THE PHILIPPINES enact legislation to protect its sover eignty,
independence, and security;
XXX XXX xxx
7. The concept of archipelagic waters is
6. The provisions of the Convention on similar to the concept of internal
archipelagic pas sage through sea lanes do waters under the Constitution of the Philip
not nullify or impair the sovereignty of the pines, and removes straits connecting
Philippines as an archipelagic State over the these waters with the eco
Sec. 1
nomic zone or high sea from the rights of foreign vessels to transit
passage for international navigation;
The reservation, however, may be seen as merely ad cautelam. The claim

made in the Constitution took effect in 1973 before the 1982 Law of the Sea
Convention was formulated. Article 8(2) of the Conven tion itself says that the new rule
on archipelagic waters applies only to "areas which had not previously been considered as
" internal waters.
Insular shelf
The continental shelf, archipelagic or insular shelf for archipela gos, refers to
(a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside
the territorial sea, to a depth of two hun dred meters or, beyond that limit, to where the
depth allows exploitation, and (b) the seabed and subsoil of areas adjacent to islands.
The coastal state has the right to explore and exploit its natural resources,
to erect installations needed, and to erect a safety zone over its installations
with a radius of 500 meters. The right does not affect the right of navigation of
others. Moreover, the right does not extend to non-resource material in the shelf
area such as wrecked ship and their cargoes.
6. National Territory in the 1987 Constitution.
On June 26, 1986, The Committee on Preamble, National Ter ritory and
Declaration of Principles presented the following draft on National Territory:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other ter ritories belonging to
the Philippines by historic right or legal tide, including the territorial
sea, the air space, the subsoil, the sea-bed,
Sec. 1 29
the insular shelves, and the other submarine areas over which the
Philippines has sovereignty or jurisdiction. The waters
around, be tween and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters of the
Philippines.
Sovereignty or jurisdiction of the Philippines shall also ex tend to
straits connecting these waters with the economic zone pro vided for in the
Convention on the Law of the Sea.
It will be noted that the first paragraph was an exact reproduction of the
1973 text. The second paragraph was new and made reference to the 1982
Convention of the Law of the Sea.
The concept and territorial space embodied in the phrase "Phil ippine
Archipelago" has been left untouched by the 1987 text. The deliberations of the 1986
Constitutional Commission focused on: (1) whether to have a provision on national
territory; (2) what posture to take relative to Sabah as covered by the clause "all other
territories be long to the Philippines by historic right or legal title"; and (3) how the
definition of territory would relate to the 1982 Convention on the Law of the Sea.
The first issue, which came almost as a side issue, was resolved easily enough.
Much of the 1972 debate on whether to have an article on national territory at all was
repeated in the 1986 Constitutional Com mission. In the end there was
recognition of the fact that such an article would have an educational value and there
was apprehension that it would be difficult to explain why after the 1935 and
1973 provisions on national territory the new Constitution should fail to provide
for one. 41
The second issue was debated per longum et latum with a certain
degree of warmth even if it was not always clear what individual dele gates,
including the sponsor, wanted. The second was not so thoroughly discussed, and
nothing conclusive was put down in writing. Both of these, however, need some
discussion.
«'I RECORD 306-312; Journal of July 2,1986.

Sec. 1
a. "all other territories over which the Philippines has sover eignty or
jurisdiction."
In the 1986 Constitution, 1973's "all other territories belonging to the
Philippines by historic right or legal title" gave way to "all other territories over which
the Philippines has sovereignty or jurisdiction." The debates on the subject were
prolonged and emotionally intense but easily summarized. Those4 2
who proposed to retain the 1973 phraseol ogy basically wanted to avoid the
impression of constitutional abandon
ment of the Philippine claim to Sabah. Those who espoused the new phraseology,
however, contended that as worded the new phraseology, while prescinding from any
international claim, did not mean abandon ment of any claim which might be
justifiable under generally accepted principles of international law to which the nation
subscribes.
The original phraseology proposed as substitute for the 1974 ver sion read
thus: ".. . and all other territories over which the government exercises sovereign
jurisdiction." After much debate and explaining that the phrase was not an abandonment
of any unsettled Philippine claim, the proposal was approved on second reading by a
nominal vote margin of 24-9. When the matter came up for third reading,
however, on the night of July 9, 1986, the resulting vote was 22-11, short of the
required majority of all the members of the Commission.
The principal stumbling block to final approval, articulated by Commissioner Roberto

Concepcion, was the phrase "exercises sover eign jurisdiction." It was
argued that the phrase could easily be read to mean that territory not under the effective
control of the Philippines, such as Sabah, would not be part of the Philippines. Because
of this argument, and with the help of the suspension of rules, the matter was reopened
on July 10, 1986, for the sole purpose of returning to sec ond reading situation in order to
introduce a very specific rephrasing. Father Joaquin Bernas,
formulator and sponsor of the original amend ment, introduced the new
phraseology: "and all other territories over which the Philippines has sovereignty or
jurisdiction." It was explained that the word "has " was of broader scope
than "exercises" so that it clearly allowed juridical retention of a territory even when it
was physi cally wrested by a stronger force. The phrase was explained to import
"See Journals of July 3,7,9 , and 10,1986; I RECORD

320-332,412-419,424429.
Sec. 1 31
a durative sense, that is, it included any territory over which the Philip pines
then had sovereignty or jurisdiction, even if such territory should temporarily be
controlled by an invading force, and any other territory over which the
Philippines might establish sovereignty or jurisdiction in the future. It clearly therefore
did not abandon any claim to Sabah or to any other territory but left all such matters to
determination through international processes. The intent was to more effectively allay
the fears of those who saw the abandonment of the 1973 language as an abandonment of
the Sabah claim since the Philippines did not actually exercise jurisdiction over Sabah.
The 1973 phraseology had acquired a historic meaning as embodying a claim to
Sabah which, while harming diplomatic relations with Malaysia, did not add any more
force to the Philippine claim. The new phraseology had the advantage of avoiding a
phraseology which was offensive to Malaysia while not foreclosing any claim to Sabah.
Moreover, it was meant to take care of a situation where an invading force might take
away from the Philippines tempo rary control over all or a portion of its territory.
Even with such explanations, however, there were some firm hold-
outs. When the change was put to a vote, the result was 38 in favor and 2
against. 43
c. ".. . its terrestrial, fluvial, and aerial domains, including the territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas thereof."
This rephrasing was authored by Commissioner Adolfo Azcuna in order to

introduce a logical sequencing and a summary of the elements that make up the
Philippine territory. It was not meant to and does not add anything to the substance of
what was already contained in the 1973 definition. Azcuna elaborated on it
thus: 44
The terrestrial domain includes all surfaces of land above the sea
that belong to the Philippines. These are the ones included
within the base lines of the archipelago.
"On subsequent second reading, the vote was 39-3, and on third reading 39-4.1
RECORD 428429.
"See Journal of July 2,1986; I RECORD 305.
3 2 THE1987 CONSTITUTION our land territory and our water territory
OF THE REPUBLIC OF THE PHILIPPINES belongs to us, all the way up to outer space
where there is no more air. . .. The aerial
The fluvial domain includes the inland domain extends up to where outer space
waters: bays and riv ers, streams, as well as begins, directly over our land and
internal waters or the waters of the sea, water territories.
landwards from the baselines.
Then we specify that our national territory
The aerial domain of the Philippines includes
includes the ter ritorial sea, the seabed, the
the air directly above its terrestrial and
subsoil — again we rearranged the se
fluvial domains. All the air that lies above Sec. 1
quence here, the territorial sea comes first — this is the margin or belt of
maritime waters adjacent to our base lines up to the extent of 12 nautical
miles. It is a belt surrounding our base lines sea ward. Whether we
like it or not, international law imposes a ter ritorial sea in
every country that has waters. Under the territorial sea is the
seabed, which also belongs to us. And then the insular shelves or the
continental shelf, meaning the submarine area that is directly under
the water beyond the territorial sea, up to the edge of the continental
margin, regardless of the depth of the superja cent waters. Under
international law, the continental shelf; namely, the seabed and subsoil of
the submarine area, belongs to us. This includes not only the continental
shelf of individual islands but [also] the archipelagic shelves and the other
submarine areas over which the Philippines has sovereignty or jurisdiction
— this is true in the old provision. This was intended to cover any other
areas that also belong to us, such as the continental slope or the conti
nental margin, over which we have jurisdiction or
sovereignty....
It will be noted that the explanation made by Commissioner Az cuna follows

closely the terms of the 1982 Convention on the Law of the Sea. To begin with,
Article 2 of the Convention says:
1. The sovereignty of a coastal State extends, beyond its

land territory and internal waters and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea, described as the
territorial sea.
2. This sovereignty extends to the air space over the ter ritorial sea
as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.
Sec. 1 33
7. Summary and Conclusion.
Like the 1934-1935 Convention, the 1971 Convention did not claim that a
constitutional provision standing by itself is binding in ternational law. During the 1973
debates on the provision on national territory, the local newspapers played up the intent
of the Convention to secure the claim to Sabah and the possible claim to the Marianas
Islands and Freedom Land. The impression was easily given that, by a unilateral act, the
Convention was attempting to add new territory to what was defined in the 1935
Constitution. It is clear from a study of Convention records, however, that
there was no such attempt. But the 1973 language tended to admit such an interpretation.
The 1987 lan guage attempts to remedy the
misimpression.
The only clear claim made by the 1971 Convention of the power unilaterally
to delimit territorial boundaries was with respect to inland and territorial waters. But
even in this, the Convention was merely pur suing the Republic's existing official policy
of pushing for international acceptance of the archipelagic principle. It was a
claim therefore which the Convention realized must be submitted to determination by
interna tional convention.
Is the Philippine territory bigger because of the new article on national territory?
Not really. The Treaty of Paris is the 1935 Consti tution's principal point of reference for
the delineation of Philippine territory. Although the 1973 and 1987 Constitutions make
no mention of the Treaty of Paris or any other treaty, the Philippine archipelago of the
new Constitution is, according to the sponsors of the provision, also the
archipelago of the Treaty of Paris. If the present provision ac
complishes anything at all, its omission of any mention of the Treaty of Paris in the
new Constitution only succeeds in putting the Philippines in an ambiguous if not
embarrassing position. On the one hand, it wishes to be washed clean of the
colonial taint of the treaty; on the other hand, it claims the longitude and latitude lines
of the treaty as the rightful boundaries of the archipelago and of its territorial
waters.
The 1973 Constitution affirmed Philippine title to the Batanes Is lands by "historic
right." But this too was adequately covered by the last clause of Article I of the 1935
Constitution. Under the 1987 Consti tution, it
certainly is covered by the clause "other territories over which the Philippines has
sovereignty or jurisdiction." Moreover, under the
THE PHILIPPINES
OF THE REPUBLIC OF
definition of an archipelago in Article 46 of the 1982 Convention on

the Law of the Sea, the Batanes Islands can be considered part of the archipelago.
The 1973 Constitution ensured the possibility of claiming other territories on the
basis of "historic right or legal title." In this, it merely affirmed what the
Republic had been doing under the 1935 Constitu tion. The 1987 version
prescinds from the question and relies on gen erally accepted principles of international
law which recognizes legal modes of establishing legal claim to territory. If Sabah, the
Marianas, and Freedom Land should eventually be recognized by the world
as annexed to the Philippines, it will be in virtue of "historic right or legal title"
independent of the 1973 or 1987 Constitution.
The extent and degree of control over territorial waters, internal waters, air-
space, sea-bed, sub-soil, insular shelves and other submarine areas cannot, in our
modern world, be determined with finality by a uni lateral fiat. Of this the 1971
Convention was well aware when it enacted the new provision. So was the 1986
Constitutional Commission. How ever, to the extent that the provisions of Article 47 of
the 1982 Conven tion on the Law of the Sea might conflict with Philippine
constitutional law and rights based on treaties, such provisions are repudiated.
What then did the 1973 provision gain for the Philippines? A se curity blanket, a
rhetorical assertion of historic identity, "decolonializa tion" on paper,
and an embarrassing muddling of Philippine position towards the Treaty of Paris.
As to the 1987 version, it merely removed language possibly of fensive to an

ASEAN neighbor and achieved a more logical sequencing of the elements that make up
the territory but preserved everything else found in the 1973 Constitution.
ARTICLE II
DECLARATION OF PRINCIPLES AND

STATE POLICIES
PRINCIPLES
SECTION 1. THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN

STATE. SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT
AUTHORITY EMANATES FROM THEM.
1. Title of the Article.
The counterpart of this article in the 1935 Constitution was sim ply entitled
"Declaration of Principles." Its place in the constitutional scheme was described by
Vicente Sinco thus:'
This portion of the Constitution might be called the basic political

creed of the nation. It lays down the policies that the gov ernment
is bound to observe. With the exception of Section 2
[now Section 4,1987 Constitution], which refers to the duty of the
citi zen to serve the State, these provisions prescribe the fundamen tal
obligations of the government, particularly the legislative
and executive departments as its policy determining organs. It is in
cumbent on the people to demand fulfillment of these government
duties through the exercise of the right of suffrage.
But indirectly some of these principles may aid the courts in determining
the va lidity of statutes or executive acts in justiciable cases.
'SINCO, PHILIPPINE POLITICAL LAW 116 (11th Ed., 1962).
35
COF TH E PHILIPPINES
3 6 T H E 1987 CONSTITUTIO N O F TH E REPUBLI
Sec. 1
In general, therefore, the 1935 provisions were not intended to be self-executing

principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legis lature. If the executive and the legislature
failed to heed the directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the failure of the execu
tive and the legislature through the language of the ballot.
This is not to say, however, that the provisions did not have their usefulness in
litigation. They also obligated the judiciary to be guided by the provisions in
the exercise of the power of judicial review. Thus, for instance, the principle of "social
justice" enunciated in Section 5 of the 1935 Declaration of Principles
revolutionized judicial attitude to the right of property and to the powers of government
in relation to the regulation of property. And the same principle has had and
2
continues to have a profound and pervasive impact on the developing jurisprudence on

property rights and social and welfare legislation.
The 1973 Constitution changed the title of the article to "Declara tion of
Principles and State Policies." The change in the title, however, did not
effect an intent different from that of the Declaration of Prin ciples of the 1935
Constitution. As the Committee on Declaration of Principles and Ideologies reported:
3
There are inherent limits to constitution making, however, that we

accept. For a new constitution does not mean an instant and reformed social
order. The unity between thought and action, between principles
and programs, between goals and implementa
tion will be ascertained by time, the commitment of the Filipino people and
the responsiveness both of the government structure and the men in
positions of power in the next two decades.
Nonetheless, we can never under-estimate the
power of ideas to institute change.
2
The earlier cases on this subject are discussed in BERNAS , A HISTORICAL AND JURIDICAL
STUDY OF THE PHILIPPINE BILL OF RIGHTS 46-8,103-5 (1971).
'Committee on Declaration of Principles and Ideologies, Report No. 1, as

Amended. The Report originally entitled the article "Directive Principles and State Policies"
apparently in imita tion, among others, of the Indian Constitution.
The Indian Constitution's "Directive Principles of State Policy,"
Articles 36-51, in turn has been borrowed from the Irish and the Spanish
Constitutions. J Jsf. PANDEY , CONSTITUTIONAL LAW OF
INDIA 225.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES Principles
The directives are therefore a source of rights in the same way the
present declaration of principles are [sic]. But such rights will
depend on the circumstances and questions involved in each case.
The Declaration of Principles and State Policies of the 1987 Con stitution
ballooned from the five sections of 1935 and the ten sections of 1973 to
twenty-eight sections. The 1987 provisions were written in the same spirit as their
counterparts in the 1935 and 1973 Constitutions; but there was an attempt to
distinguish "principles" from "policies." The "principles" are binding rules which must
be observed in the conduct of government whereas "policies" are guidelines for the
orientation of the state. In fact, however, the distinction is of little significance be
4
cause not all of the six "principles" are self-executory and some of the "policies" already
anchor justiciable rights. Kilosbayan v. Morato,
5
for instance, read
6
Sections 5,12,1 3 and 17 as mere "guidelines" which do not yet confer

rights enforceable by the courts but recognized Section 16 as a righ conferring
provision because it speaks of "the right of the people."
In Tanada v. Angara, a case involving possible conflict of the

7
General Agreement on Tariff and Trade with the natonalistic provisions of Article II, the
Supreme Court made this statement:
By its very title, Article II of the Constitution is a "declara tion

of principles and state policies." The counterpart of this article
in the 1935 Constitution is called the "basic political creed of the
nation" by Dean Vicente Sinco. These principles in Article II are
not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as
aids or as guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan vs. Morato, the principles and state policies
enumer
ated in Article II and some sections of Article XII are not "self-ex ecuting
provisions, the disregard of which can give rise to a cause of action in the
courts. They do not embody judicially enforceable constitutional
rights but guidelines for legislation."
4
See IV RECORD OF THE CONSTITUTIONAL COMMISSION 768 and
580. 5
See e.g., the right to ecological balance in Section 15, infra.
"G.R. No. 118910, November 16, 1935, on reconsideration.
7
G.R.No. 118295, May 2,1997.
Sec. 1
The statement, however, is less than exact when applied to the 1987 version. Whether
or not a provision in it is self-executing depends on the way it is formulated.
For instance, as already seen, the right to a healthful
environment asserted in Section 16 was deemed by the Court to be an enforceable
right without need for further legislation. But Time and again, the Court
8
has ruled that the social justice provisions of the Constitution are not
self-executing principles ready for enforce ment through the courts. They are
merely statements of principles and policies. To give them effect, legislative
enactment is required. They do not embody judicially enforceable
constitutional rights but guidelines
for legislation. 9
2. Definition and elements of "state."
The Philippines is a state and all that being a state means in the international
scene: 10
The states are the repositories of legitimated authority over peoples

and territories. It is only in terms of state powers,
preroga tives, jurisdictional limits and law-making capabilities that territo
rial limits and jurisdiction, responsibility for official actions, and a host of
other questions of co-existence between nations can be de termined. It is by
virtue of their law-making power and monopoly that states enter into
bilateral and multilateral compacts, that wars can be started or
terminated, that individuals can be punished or extradited.
States come in various shapes and sizes and vary immensely in their cultures,
forms of government, natural resources, language and a host of
other attributes. But custom has come to recognize the essen tial attributes
which make an entity a state, whatever its shape or size or the color of its inhabitants
might be . These were summed up in the Montevideo Convention of 1933 which said
in Article I: "The state as a person of international law should possess the following
qualifications: a) a permanent population; b) a defined territory; c) government; and d)
capacity to enter into relations with other states." Or, as the Restatement
"Oposa v. Factoran, Jr., 224 SCRA 792 (1993).

"BFAR Employees v.COA.G.R.No. 169815, August 13,2008.
'"FRIEDMAN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 213-
214 (1964), in HENKIN , SCHACHTE R & SMIT, INTERNATIONAL LAW: CASES AND MATERIALS 229 ( 1987, 2nd
Ed.).
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles
(Third) on the Foreign Relations Law of the United States enumerates them: "(a)
sovereignty over its territory and general authority over its nationals; (b) status as a legal
person, with capacity to own, acquire and transfer property, to make contracts and enter
into international agree
ments, to become a member of international organizations, and
to pur sue, and be subject to, legal remedies; (c) capacity to join with other states to
make international law, as customary law or by international
agreement." 11
Hence, the definition of the concept "state" which has found cur rency
among Philippine writers is this: it is a community of persons more or less numerous,
permanently occupying a definite portion of territory, independent of external control,
and possessing an organized government to which the great body of inhabitants
render habitual obe dience. Commentators, following the Montevideo Convention of
1933, break down the concept into four elements: people, territory,
sovereign ty, government.
Commentators are also in the habit of distinguishing "state" from "nation" and it
is pointed out that the state is a legal concept while a nation is a racial or ethnic concept.
While the distinction may be useful for purposes of political sociology, it is of little
consequence for pur
poses of constitutional law. The 1935 and 1973 Preambles themselves spoke of the
"patrimony of our nation" and it is not to be supposed that "nation" in this context
should be limited to one racial or ethnic group. Likewise, the President under the 1935
Constitution had the duty of giving Congress information on the "state of the Nation."
Indeed, it would have been awkward for the Constitution to have said "state of the
State"; but if it had so stated, the sense would have been the same. Similarly, the word
"national" appears in the 1987 Constitution, as it did in the 1973, in a
context that does not limit the word to an ethnic concept. The legislature,
under the original 1973 Constitution, was the National Assembly.
Article XII is entitled "National Economy and Pat
rimony." For purposes of the Constitution, therefore, the word state is interchangeable
with nation. In fact, a decision of the Supreme Court, discussing what makes a foreign
country a state in the legal sense, used nation and state interchangeably. The Supreme
Court said:'2
"Restatement §206.
'^Collector of Internal Revenue v. Campos Rueda, 42 SCRA 23,28-9
(1971).
40 THE 1987 CONSTITUTION within its territory, acting through a
OF THE REPUBLIC OF THE PHILIPPINES government func tioning under a regime of
law. It is thus a sovereign person with the
It does not admit of doubt that if a foreign people composing it viewed as an organized
country is to be identified with a state, it is corporate society under a government with
required in line with Pound's formula tion the legal competence to exact obedience to
that it be a politically organized sovereign its commands. It has been
community inde pendent of outside control referred to as a body-politic organized
bound by ties of nationhood, legally supreme Sec. 1
by common consent for mutual defense and mutual safety and to promote
the general welfare. Correctly, it has been described by Esmein
as "the juridical personification of the nation." This is to view it in
the light of its historical development. The stress is on its
being a nation, its people occupying a definite territory, politically
organized, exercising by means of its government its
sovereign will over the individuals within it and maintaining its separate in
ternational personality. Laski could speak of it then as a
territo rial society divided into government and subject, claiming over its
allotted area a supremacy over all other institutions. Mclver
similarly would point to the power entrusted to its government to maintain
within its territory the conditions of a legal order and to enter into
international relations. With the latter requisite satisfied, international law
does not exact independence as a condition of statehood. So Hyde did
opine.
3. Id.; "People."
As an element of a state, "people" simply means a community of persons
sufficient in number and capable of maintaining the continued existence of the
community and held together by a common bond of law. It is of no legal consequence if
they possess diverse racial, cultural, or economic interests.
The word "people" appears several times in the Constitution.

The Preamble attributes the authorship of the Constitution to "the
sovereign Filipino people." Article II mentions people several times. The Bill of
Rights also uses the word several times. The meaning of the word in each case
depends on the context where it is found.
The second sentence of Section 1 says that sovereignty "resides in the people
and all government authority emanates from them." The word "people" in this context
has reference to the segment of the political society wherein legal sovereignty lies.
Hence , as will be shown
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 41 Principles
later, it has reference to the electorate or to that segment of the political community
which can establish or alter the fundamental law.
4. Id.; "Territory."
A definite territory, consisting of land and waters and the air space above them
and the submarine areas below them, is another essential element of the modem state.
And as the Restatement (Third) on the Foreign Relations Law of the United States
explains: "An entity may satisfy the territorial requirement for statehood even if its
boundaries have not been finally settled, if one or more of its boundaries are dis
puted, or if some of its territory is claimed by another state. An entity does
not necessarily cease to be a state even if all its territory has been occupied by a foreign
power or if it has otherwise lost control of its ter ritory temporarily." 13
The extent of Philippine territory is defined in Article I of the Con stitution. The
character of the power which the Philippines has over its territory was the subject of
Reagan v. Commissioner of Internal Rev enue. Petitioner in this case disputed the
payment of the income tax assessed on him by the respondent on a sale of an automobile
transacted at the Clark Field Air Base at Pampanga. His contention was that the United
States Military Base was outside Philippine territory. The Court, rejecting his
claim, said: 14
Nothing is better settled than that the Philippines being independent

and sovereign, its authority may be exercised over its entire domain. There
is no portion thereof that is beyond its power. Within its limits, its decrees
are supreme, its commands paramount. Its laws govern
therein, and everyone to whom it ap
plies must submit to its terms. That is the extent of its
jurisdiction, both territorial and personal. Necessarily, likewise, it has to
be ex clusive. If it were not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent,

express or implied, submit to a restriction of its sovereign rights. There
may thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation,
| 201. U.S. courts generally view the

,3
Restatement as the most authoritative
scholarly statement of contemporary international law.
I4
30 SCRA 968,973-5 (1969). Footnotes have been omitted. The same doctrine
is reiter ated in People v. Gozo, 53 SCRA 476 (October 26,1973).
Sec
THE 1987 CONSTITUTION
which, in the succinct language of Jellinek, "is the property of a

state-force due to which it has the exclusive capacity of legal self
determination and self-restriction." A state then, if
it chooses to, may refrain from the exercise of what otherwise is
illimitable com petence.
Its laws may as to some persons found within its territory no
longer control. Nor does the matter end there. It is not
precluded from allowing another power to participate in the exercise of ju
risdictional right over certain portions of its territory. If it does so, it by
no means follows that such areas become impressed with an alien
character. They retain their status as native soil. They are still subject to its
authority. Its jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to the American armed forces
by virtue of the military bases agreement of 1947. They are not and
cannot be foreign territory.
Decisions coming from petitioner's native land, penned by jurists of
repute, speak to that effect with impressive unanimity. We start with the
citation from Chief Justice Marshall, announced in the leading case of
Schooner Exchange v. M'Faddon, an 1812 decision:
"The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limita
tion not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sover eignty to the
extent of the restriction, and an investment of that sovereignty to the same
extent in that power which could impose such restriction." After which
came this paragraph: "All excep tions, therefore, to the full
and complete power of a nation within its own territories, must
be traced up to the consent of the nation itself. They can flow from no other
legitimate source."
Chief Justice Taney, in an 1857 decision, affirmed the fun

damental principle of everyone within the territorial domain of a state being
subject to its commands: "For undoubtedly every per son who is found
within the limits of a government, whether for temporary purposes or as a
resident, is bound by its laws." It is no exaggeration then for Justice Brewer
to stress that the Unit ed States government "is one having jurisdiction over
every foot of soil within territory, and acting directly upon each [individual
found therein]; x x x."
Not too long ago, there was a reiteration of such a view, this time
from the pen of Justice Van Devanter. Thus, "It now is
settled in the United States and recognized elsewhere that the territory
subject to its jurisdiction includes the land areas under its dominion and
control the ports, harbors, bays, and other enclosed
arms of the sea along its coast, and a marginal belt of the sea extending
from the coast line outward a marine league, or 3 geographic
miles." He could cite moreover, in addition to many American decisions,
such eminent treatise writers as Kent, Moore, Hyde, Wilson,
Westlake, Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in his three-

volume work on International Law, as interpreted and ap
plied by the United States, made clear that not even the embassy premises
of a foreign power are to be considered outside the ter ritorial domain of the
host state. Thus: "The ground occupied by an embassy is not in fact the
territory of the foreign State to which the premises belong through
possession or ownership. The law fulness or unlawfulness of acts there
committed is determined by the territorial sovereign. If an
attache commits an offense within the precincts of an embassy, his
immunity from prosecution is not because he has not violated the local law,
but rather for the reason that the individual is exempt from prosecution. If a
person not so exempt, or whose immunity is waived, similarly commits a
crime therein, the territorial sovereign, if it secures custody of the of
fender, may subject him to prosecution, even though its criminal code
normally does not contemplate the punishment of one who commits an
offense outside the national domain. It is not believed, therefore,
that an ambassador himself possesses the right to exer cise jurisdiction,
contrary to the will of the State of his sojourn, even within his
embassy with respect to acts there committed. Nor is there
apparent at the present time any tendency on the part of States to acquiesce
in his exercise of it."
5. Id.; "government"; definitions and functions.

Government, as an element of a state, is defined as "that institu tion or aggregate
of institutions by which an independent society makes and carries out those rules of
action which are necessary to enable men to live in a social state, or which are
imposed upon the people forming that society by those who possess the power or
authority of prescribing them." Section 2 of the Revised Administrative
1 5
Code (1917) defined the "Government of the Republic of the Philippines" thus: 1
,5
U.S. v. Dorr, 2 Phil. 332, cited in Bacani v. NACOCO, 100 Phil. 468,471
(1956). "Bacani v. NACOCO, 100 Phil, at 471.
44 THE 1987 CONSTITUTION Philippine Islands, including, save as the

OF THE REPUBLIC OF contrary appears from the context, the
THE PHILIPPINES
various arms through which political
The Government of the Philippine Islands is authority is made effec
a term which refers to the tive in said Islands, whether pertaining to the
corporate governmental central Government or to the provincial or
entity through which the functions of municipal branches or other form of local
government are exercised throughout the government.
Sec. 1
On the national scale, therefore, the term "government of the Phil ippines" refers
to the three great departments — legislative, executive, and judicial — mandated by the
Constitution, and on the local level, it means the regional,
provincial, city, municipal and barrio governments. It does
not include government entities which are given a corporate per sonality separate and
distinct from the government and which are gov erned by the corporation law.
17
Moreover, for purposes of international law, it is the national government that
has legal personality and it is the national government that is internationally responsible
for the actions of other agencies and instrumentalities of the state.
The concept of government should be distinguished from admin istration.

Government is the institution through which the state exercis es power;
administration, on the other hand, consists of the set of peo ple currently running the
institution. Administrations change without
a change in either state or government. The transitions from the 1935 Constitution to the
1973 Constitution to the 1987 Constitution involved changes of government but
not of state The transition from President Estrada to President Arroyo did not involve a
change of government but only of administration.
The functions of government may be classified into constituent and ministrant

functions. The former are the compulsory functions which constitute the
very bonds of society. President Wilson's enumer ation of the constituent function of
government was adopted in Bacani v. NACOCO. " They1
are: "
(1) The keeping of order and providing for the protection of persons
and property from violence and robbery.
"Id. at 474.
"Id.
"Id. at 472.
Principles
(2) The fixing of the legal relations between man and wife and
between parents and children.
(3) The regulation of the holding, transmission, and inter change of

property, and the determination of its liabilities for debt or for crime.
(4) The determination of contract rights between individ uals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.

(7) The determination of the political duties, privileges, and
relations of citizens.
(8) Dealings of the state with foreign powers: the preser vation of the
state from external danger or encroachment and the advancement of its
international interest.
Ministrant functions are the optional functions of government in

tended for achieving a better life for the community. "The principles for determining
whether or not a government shall exercise certain of these optional functions are:
(1) that a government should do for the public welfare those things which private capital
would not naturally undertake, and (2) that a government should do those
things which by its very nature it is better equipped to administer for the public welfare
than is any private individual or group of individuals." 20
For the purpose of the decision in Bacani, the disquisition on the functions of
government was really of little moment. The issue in the case was whether NACOCO
was part of "government" or not. And since NACOCO was a corporation with
personality distinct from the government, it was clearly not part of the government and
could not therefore claim the privileges which flow from sovereignty. When, however,
government chooses to operate not through a government
owned corporation but through an unincorporated agency, the distinc tion between
constituent and ministrant functions can be useful. The concepts, however, seem to
belong more to the field of political science than to law. Law prefers to use
the term governmental and proprietary.
"Id. The whole discussion on functions of government in Bacani was lifted from MAL
COLM, THE GOVERNMENT OF THE PHILIPPINE ISLANDS 19-20.

Sec. 1
Whether one, however, uses the terms constituent and ministrant or

governmental and proprietary, what is important to remember is that the enumeration
of specific government functions under these headings cannot be static. This was
emphasized in the case of ACCFA v. CUG
CO. ' At issue was the characterization of the functions of a government agency
2
charged with the implementation of the land reform program. The function, the Court
said, may not strictly be "constituent" in the sense of Bacani, but the compelling
urgency with which the Constitu
tion speaks of social justice does not leave any doubt that land reform is not an optional
but a compulsory function of sovereignty. In the language of Justice
2 2
Makalintal: 23
The growing complexities of modem society, however,

have rendered this traditional classification of the functions of govern ment
quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the gov ernment was
called upon to enter optionally, and only "because it was better equipped to
administer for the public welfare than is any private individual or group of
individuals," continue to lose their well-defined boundaries and to be
absorbed within activities that the government must undertake in its
sovereign capacity if it is to meet the increasing social challenges of the
times. Here as almost everywhere else the tendency is undoubtedly towards
a greater socialization of economic forces. Here of course this de
velopment was envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning the promotion
of social justice.
Among more recent decisions, housing has been found to be a governmental

function since housing is considered an essential ser vice. But undertaking to
24
supply water for a price, as does the govern ment corporation National Irrigation
Authority, is considered a trade and not a governmental activity. 25
2I
30 SCRA 649 (1969).
2
Uat661 .
2
"Id. at 662 (1969).

"PHHC v. Court of Industrial Relations, 150 SCRA 296,310 (1987).
"Spouses Fontanilla v. Hon. Maliaman, GJ*. Nos. 55963 and
61045, February 27,1991.
6. Id.; government de jure and de facto.

On the basis of legitimacy, governments are classified into de jure governments and
those which are de facto merely. "It is a legal truism in political and international law
that all acts and proceedings of the legis lative, executive, and
judicial departments of a de facto government are good and valid." This26
principle coupled with the fact that the Philip pines had just emerged from military
occupation by the Imperial Forces of Japan made the concept of a government merely de
facto of great importance in Philippine Law of the late forties. Since then,
however, the concept has merely been of academic importance. But the
concept and some of its various ramifications have been thoroughly discussed in
Philippine jurisprudence and they are there ready for exhumation should it become
necessary once more to use them. For the purpose of this commentary, however, suffice
it to recite the classification of gov ernments merely de facto in Co Kim Chan v. Valdez
Tan Keh? 1
There are several kinds of de facto governments. The first, or

government de facto in a proper legal sense, is that
government that gets possession and control of, or
usurps, by force or by the voice of the majority, the rightful legal
government and maintains itself against the will of the latter,
such as the government of Eng
land under the Commonwealth, first by Parliament and later by Cromwell
as Protector. The second is that which is established and maintained by
military forces who invade and occupy a territory of the enemy in the
course of war, and which is denominated a government of paramount
force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and of Tampico, Mexico, occupied
during the war with Mexico, by the troops of the United States. And the
third is that established as an independent government by the
inhabitants of a country who rise in insurrection against the parent
state, such as the government of the Southern Confederacy in
revolt against the Union during the war of secession. 28
7. Government under the 1986 Freedom Constitution.
The first question that must be asked in studying a fundamental law is: By what
authority is the Constitution promulgated? Both the
"Co Kim Chan v. Valdez Tan Keh, 75 Phil. 113,122 (1945).

"Id.
a
ld.
4 8 THE 1987 CONSTITUTION THE PHILIPPINES
OF THE REPUBLIC OF Sec. 1
1935 Constitution and the 1973 Constitution stated the source of their authority
in their Preamble. The Provisional Constitution of 1986 did not
contain a Preamble. What it had were the introductory "Whereases" and the
concluding paragraphs of Proclamation No. 4. The following preceded the text of the
Provisional Constitution:
PROCLAMATION NO. 3
DECLARING A NATIONAL POLICY TO IMPLEMENT THE
REFORMS MANDATED BY THE PEOPLE, PROTECT ING THEIR
BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION,
AND PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CON STITUTION.
WHEREAS, the new government under President
Corazon C. Aquino was installed through a direct exercise of the power
of the Filipino people assisted by units of the New Armed Forces of the
Philippines;
WHEREAS, the heroic action of the people was done
in de fiance of the provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as
manifested by their extraordinary action demands the complete
reorganization of the government, restoration of democracy,
protection of basic rights, rebuilding of confidence in the entire
governmental system, eradication of graft and corruption,
restoration of peace and order and the supremacy of civilian authority over
the military, the tran sition to a government under a New
Constitution in the shortest time possible;
WHEREAS, during the period of transition to a New Consti tution it

must be guaranteed that the government will respect basic human rights
and fundamental freedoms;
WHEREFORE, I, CORAZON C. AQUINO, President of the

Philippines, by virtue of the powers vested in me by the sov ereign mandate
of the people, do hereby promulgate the following Provisional
Constitution:
DONE in the City of Manila, this 24th day of March in the year of
Our Lord nineteen hundred and eighty-six.
CORAZON C. AQUINO
President of the Philippines
Principles
In essence therefore President Aquino anchored her assumption of power on "the

direct mandate of the people" when she "was installed through a direct exercise of [their]
power " and "in defiance of the provi sions of the 1973 Constitution."
Both Corazon Aquino and Ferdinand Marcos had run for the pres idency under the
provisions of the 1973 Constitution. On February 15, 1986, the Batasan
Pambansa, in the exercise of powers given by the 1973 Constitution, proclaimed
Ferdinand Marcos president amid wide spread protest. Subsequently, starting on the
afternoon of February 22, 1986, Minister of National Defense Juan Ponce
Enrile and Vice Chief of Staff General Fidel Ramos initiated a revolt against
Ferdinand Mar
cos. Ramos and Enrile placed their support instead behind Corazon C. Aquino.
Completely outnumbered by the Marcos forces and confined to Camp Crame

and Camp Aguinaldo, the Enrile-Ramos forces could have
easily been crushed by the Marcos forces. But hordes of unarmed civilians came
to their rescue by surrounding the two military camps with masses of human
bodies. They dared tanks and armored vehicles to come at them. The civilian support
given to the outnumbered Enrile
Ramos forces caused other military elements to switch their support to Corazon Aquino.
By the morning of February 24, 1986, after ele ments of the Air Force switched, it
was all over for Mr. Marcos and all those who had connived to proclaim him President
under the 1973 Constitution. Finally, on the morning of February 25, 1986,
Corazon C. Aquino, in defiance of the provisions of the 1973 Constitution and
without the sanction of the Batasan Pambansa which had chosen to give the presidency
to Mr. Marcos, was proclaimed first woman President of the Philippines in simple rites
held at the Club Filipino and was im
mediately sworn in by Senior Associate Justice of the Supreme Court Claudio
Teehankee.
Meanwhile, at almost the same time and in virtue of the Batasan proclamation of
February 15,1986, Mr. Marcos was sworn in by Chief Justice Ramon
Aquino at Malacaiiang. The night of the same day, Mr. Marcos,
accompanied by a large entourage of family and supporters, went into exile.
President Aquino could have made herself subject to the provi sions of the 1973
Constitution by allowing herself to be proclaimed by the Batasan. She, however,
chose not to allow the Batasan members
5 0 THE 1987 CONSTITUTION Sec. 1 OF THE REPUBLIC OF THE PHILIPPINES
to undo their perfidy. She hoped thereby to be able to more effectively respond to the
extraordinary challenge thrown at her by a heroic nation which had stood against a
long reigning dictator. She turned her back on the 1973 Constitution whose
officials had denied her the presidency. Barred by the processes of the 1973
Constitution, she chose instead to govern under a Provisional Constitution designed to
enable her to meet the people's challenge.
Was the government she set up, therefore, revolutionary?
It was revolutionary in the sense that it came into existence in defiance of the existing
legal processes. She did not win her victory through a protest lodged
29
either before the Batasan or before a Presiden tial Electoral Tribunal. She
won it through the extra-legal action taken
by the people.
Was it revolutionary in the sense that it was despotic? Since the Provisional
Constitution contained a Bill of Rights which also bound the President and all officials
of government, and since the actions of the President were subject to judicial review,
theoretically at least it was not despotic. But since the Provisional
Constitution also conferred ex traordinary powers on the President, it can be said that the
government had the potential for being despotic. In the end, therefore, the answer to the
question would depend on how President Aquino comported her
self, on how courageously the Supreme Court exercised its powers to check abuse, and
on the vigilance and activism of the people who chose to install her President.
Was it revolutionary in the sense that it was militaristic? The prin ciple of civilian
supremacy was enshrined in the Provisional Consti tution. The military leaders who
initiated the February upheaval pur ported to act in support of a civilian Commander-in-
Chief. The military
establishment recognized a civilian Commander-in-Chief,
and a wom an at that! However, in the end, the military or non-military character of a
regime is shown not so much in words but in actual behaviour: in the behaviour of
military as well as of civilian leaders.
Was it revolutionary in the sense of being temporary? That cer tainly is what the
text of the Provisional Constitution said. Admittedly,
"This position was adapted by Justice Padilla in In re Letter of Associate Justice Puno,
210 SCRA 589,598 (1992). There were dissenting opinions in the case but not on this point.
Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND
STATE POLICIES 51 Principles
however, temporary arrangements are rarely free from the temptation

to prolongation. Fortunately, one of the first things the President did was to appoint a
Constitutional Commission to draft a Constitution for presentation to the people for
ratification or rejection.
Was the government a de facto or a de jure one?
In answering the question whether a government is merely de facto or de jure, one must
state whether the question is being raised in a local law context or in an international law
context. In local law, until a government is ousted, it is not too important to ask the
question. For as long as the government is in possession, it is the law and it is
legal
within the context of its structures. Once a government is ousted, how ever,
for the purpose of determining the validity of the actions taken by the ousted
government, it becomes necessary to ask whether it was merely de facto or de jure.
Thus, for instance, the question could not be asked relative to the nature of the
Japanese occupation government for as long as Japan held sway in the Philippines. It
was only after the defeat of Japan that the question could usefully be asked. Similarly, it
was premature to ask soon after the February Revolution whether President Aquino's
government, which to all indications was in firm possession, was de jure
or merely de facto. If Mr. Marcos, however, had successfully reestablished the
government under the 1973 Constitution, the question could have
been asked relative to the nature of the Aquino government.
The status of a government in international law depends on the recognition it

receives or does not receive from the community of na tions. It is clear now that nations
accept the government of President Aquino as the legitimate government of the
Philippines.
In the light of what has been said it is not surprising that, when the government
under the Freedom Constitution was challenged, the Supreme Court, in an en banc
minute resolution did not consider the challenge a justiciable matter and dismissed the
challenge saying that the people had accepted the Aquino government and the
community of nations had recognized its legitimacy. 30
"Lawyers' League for a Better Philippines, et al. v. President Aquino, GJt. No. 73748,
People's Crusade for the Supremacy of the Constitution v. Aquino, G.R. No. 73972; Ganay
v. Aquino, GJt. No. 73990, May 22,1986.
52 THE 1987 CONSTITUTION 8. The government under Gloria

OF THE REPUBLIC OF THE PHILIPPINES Macapagal-Arroyo.
Sec. 1
Gloria Macapagal-Airoyo succeeded Joseph Estrada in

January 2001 in the wake of what came to be known as EDS A II. The
legiti macy of her presidency was challenged by Estrada and his supporters. The
resolution of these challenges will be discussed under Article VII, Section 8,
infra.
9. Presidential and parliamentary government. 31
There is a bewildering variety of forms of modem constitutional democracy.

These forms present various ways of allocating the pow ers that emanate from the
people. For the purpose of this commentary, however, which is not meant to be
a treatise in political science, only the highlights of the presidential and parliamentary
form of government will be treated, and these only schematically.
The presidential form of government first adopted under the 1935

Constitution and borrowed from the American system is familiar to the contemporary
Filipino. Its principal identifying feature is what is called the "separation of
powers." Legislative power is given to the Legisla ture whose members hold
office for a fixed term; executive power is
given to a separate Executive who also holds office for a fixed term; and judicial power
is held by an independent Judiciary. The system is founded on the belief that, by
establishing equilibrium among the three power holders, harmony will result, power will
not be concentrated, and thus tyranny will be avoided. Because of the prominent position,
however, which the system gives to the President as chief executive, it is designated as a
presidential form of government.
The original 1973 Constitution adopted a still-born parliamentary system.

What differentiates a parliamentary form of government from a presidential? The
difference lies in certain essential features which are found in all varieties of the
parliamentary form. They are the fol
lowing: (1) The members of the government or cabinet or the executive arm are, as a
rule, simultaneously members of the legislature. (2) The government or
cabinet, consisting of the political leaders of the major ity party or of a coalition who are
also members of the legislative, is in effect a committee of the legislature.
(3) The government or cabinet has
3l
See the excellent discussion in LO E WE N STEIN, POLITICAL POWERS AND THE GOVERNMENTAL
PROCESS 72-120 (1957).
Sec. 1 ART. D - DECLARATION OF PRINCIPLES AND STATE POLICIES Principles
a pyramidal structure at the apex of which is the Prime Minister or his equivalent. (4)
The government or cabinet remains in power only for as long as it enjoys the support of
the majority of the legislature. (5) Both government and legislature are
possessed of control devices with which each can demand of the other immediate
political responsibility. In the hands of the legislature is the vote of non-confidence
(censure) whereby government may be ousted. In the hands of government is the power
to dissolve the legislature and call for new elections.
Briefly, therefore, while the presidential system embodies inter dependence by

separation and coordination, parliamentarism embodies interdependence by integration.
The constitutional revision of 1981 reverted to a form of govern

ment which, although adopting features of parliamentarism, preserved the essence of
presidentialism. Free Telephone Workers Union v. Minis ter of Labor and
Employment put it thus:
32
The adoption of certain aspects of a parliamentary system in the

amended Constitution does not alter its essentially presidential character.
Article VII [1973 Constitution] on the presidency starts with this
provision: "The President shall be the head of state and chief executive of
the Republic of the Philippines." [Section 1] Its last section is an even
more emphatic affirmation that it is a presi
dential system that obtains in our government. Thus: "All powers vested in
the President of the Philippines under the 1935 Consti tution
and the laws of the land which are not herein provided for or conferred
upon any official shall be deemed and are hereby vested in the president
unless the Batasang Pambansa provides otherwise." [Section
16] There is a provision, of course, on the Prime Minister, but the
Constitution is explicit that while he shall be the head of the Cabinet, it is
the President who nominates him from among the members of the
Batasang Pambansa, thereafter being "elected by a majority of all the
members thereof." [Article IX, Section 1] He is primarily, therefore, a
Presidential choice. He need not even come from its elected
members. He is responsible, along with the Cabinet,
to the Batasang Pambansa for the program of government but as
"approved by the President." [Article IX, Section 2] His term of office as
Prime Minister "shall commence from the date of his election by the
Batasang Pambansa and shall end on the date that the nomination of his
successor is submitted
"108 SCRA 757,763-5 (October 30,1981).
1987
5 4 THE CONSTITUTION depends on the Presidential
OF THE REPUBLIC OF THE PHILIPPINES pleasure, not on legislative approval or lack
of it. During his incumbency, he exercises
by the President to the Batasang Pambansa. supervision over all ministries [Article IX,
Any other member of the Cabinet or the Section 10], a recognition of the important
Executive Committee may be removed at the role he plays in the implementa tion of the
discretion of the President." [Article IX, policy of the government, the
Section 4] Even the duration of his term then legislation duly enacted
Sec. 1
in pursuance thereof, and the decrees and orders of the President. To the
Prime Minister can thus be delegated the performance of administrative
functions of the President, who can then devote more time and energy in
the fulfillment of his exacting role as the national leader. As the only
one whose constituency is national it is the President who, by virtue of his
election by the entire elector ate, has an indisputable claim to speak for the
country as a whole.
Moreover, it is he who is explicitly granted the greater power of control of
such ministries . . .
With hardly any debate, the 1986 Constitutional Commission de cided to stay with
the familiar. Thus, the 1987 Constitution has brought back the country to
the presidential system of 1935 and has removed the parliamentary features of the 1973
Constitution but has imposed new limits on the powers of the
President.
10. "Sovereignty."
A final essential element of statehood according to the Montevi deo Convention is

capacity to conduct international relations. "An en tity is not a state unless it
has competence, within its own constitutional system, to conduct
international relations with other states, as well as the political, technical and
financial capabilities to do so. An entity that has the capacity to conduct foreign
relations does not cease to be a state because it voluntarily turns over to another state
control of its foreign relations, as in the 'protectorates' of the
period of colonialism, the case of Liechtenstein, or the
'associated states' of today. States do not cease to be states because they have
agreed not to engage in certain interna tional activities or have delegated authority to do
so to a 'supranational' entity, e.g., the European Communities. Clearly,
a state does not cease
to be a state if it joins a common market.""
33
* Restatement §201(e).
This capacity to conduct international relations is an aspect of sovereignty which

the Constitution asserts in Section 1, Article II. The assertion of sovereignty was
already made in the 1935 Constitution. But the Philippines did not begin to conduct its
foreign relations until after it became independent from the United States in 1946.
By way of excep
34
tion, however, the Philippines became signatory to the United Nations Charter in
1945 even before it became independent.
Section 1, Article II, says: "Sovereignty resides in the people and all government
authority emanates from them." Sovereignty in this sen tence
therefore can be understood as the source of ultimate legal author ity. Since the ultimate
law in the Philippine system is the constitution, sovereignty, understood as legal
sovereignty, means the power to adapt or alter a constitution. This power
resides in the "people" understood as those who have a direct hand in the formulation,
adoption, and amend ment or alteration of the Constitution.
Political writers distinguish between legal sovereignty and politi cal sovereignty.
The former is described as the supreme power to make laws and the latter as the sum
total of all the influences in a state, legal and non-legal, which determine
the course of law. 35
Sovereign authority, moreover, is not always directly exercised by the

people. It is normally delegated by the people to the government and to
the concrete persons in whose hands the powers of government
temporarily reside. The temptation to which government personnel are prone is
to forget that public office is a public trust, and an essentially temporary trust at that,
and to equate every attempt to wrest that trust from them, no matter by
what means, to criminal acts of subversion. It is a temptation not easily resisted
under any form of authoritarian rule.
Sovereignty of the people also includes the concept that govern ment
officials have only the authority given them by law and defined by law, and such
authority continues only with the consent of the people. 36
M
In terms of political reality, moreover, for as long as the United States maintained mili tary
bases in the Philippines, Philippine foreign relations affecting national security were dictated mostly by
American decisions.
3 5
TANAD A AN D CARREON , PouriCAL LAW OF THE PHILIPPINES at 18
(1961); SINCO, PHILIPPINE POLITICAL LAW at 17-26 (1962 Ed.) prefers not to
make the distinction and places legal sovereignty in the state itself considered as a juridical
person.
"IV RECOR D 660-661,663-664,732-734,767.
Sec. 1
This is the meaning of the rule of law: a government of laws and not of men.
The Constitutional Commission, however, did not consider it necessary to make
explicit the right of the people to oust an abusive and authoritarian government
through non-violent means.' 7
Finally, is recognition by other states a constitutive element of a state such that

even if it has all four elements of the Montevideo Con vention it is not a state if it has not
been recognized? In international law, there are two views on this. One view, the
constitutive theory, is that recognition "constitutes" a state, that is, it is what makes a
state a state and confers legal personality on the entity. The other view, the declaratory
theory, is that recognition is merely "declaratory" of the ex istence of the state and that
its being a state depends upon its possession of the required elements and not upon
recognition. A recognizing state merely accepts an already existing situation.
The weight of authority fa vors the "declaratory view." In practice, however,
whether to recognize or not is largely a political decision.
11. "Democratic and republican state."
Article IV, Section 4, of the United States Constitution imposes on the Federal
Government the duty to guarantee to every state "a Re publican Form of Government."
And a republican form of government is understood as "one
constructed on this principle, that the supreme power resides in the body of the
people." Its purpose therefore is to guarantee against two extremes: on the
38
one hand, against monarchy and oligarchy, and on the other, against pure democracy.
It is not clear, however, from the text of the Federal Constitution to which
department of the government belongs the duty of implement ing the guarantee. Ever
since the leading case of Luther v. Borden the constant holding of the
39
U.S. Supreme Court has been that the enforce ment of Article IV, Section 4, belongs
solely to the political departments and not to the courts.
One of the mandatory requirements of the Tydings-McDuffie

Law, the instrument by which the American government
authorized the
31
Id. al 959-969.
3
"Chisholm v. Georgia, 2 Dall. 419,457 (U.S. 1793).
''How. 1 (U.S. 1849).
Filipino people to draft a constitution in 1934, was that the "constitution
formulated and drafted shall be republican in form." 40
Section 1, when first formulated in 1934, was a response to that command.

It was not an unwilling response, however, because a repub lican
form of government was the form with which the Filipinos were most familiar. Its
meaning, as understood by the delegates at that time, was the one
expressed by James Madison: 41
We may define a republic to be a government which derives all its

power directly or indirectly from the great body of people; and is
administered by persons holding their offices during plea sure, for a
limited period, or during good behaviour. It is essential to such a
government that it be derived from the great body of the society, not from
an inconsiderable proportion, or a favorable class of it. It is sufficient for
such a government that the person admin istering it be
appointed either directly or indirectly, by the people; and that they hold
their appointments by either of the tenures just specified.
To paraphrase Section 1, therefore, a government republican in form is one

where sovereignty resides in the people and where all gov ernment authority emanates
from the people.
It should be noted, however, that the American constitution speaks of a
guarantee of a "Republican Form of Government" whereas, the Philippine constitution
provides for a "republican State." Constitution ally, the difference in
phraseology is insignificant. What the Philippine text declares is that
the Philippines is a state whose government is re publican in form, that is,
whose government is democratic in the sense of American
constitutionalism.
To the question whether matters arising from the constitutional guarantee of

republicanism are political questions within the exclusive domain of the political
departments, as they are in American constitu tional law, the Philippine Supreme Court
has not yet had occasion to give an express and categorical answer. In Maquera
v. Borra,* however, the Supreme Court treated a matter coming
2
under the guarantee as a jus-
"Section 2(a).
"'I ARUEGO, THE FRAMING OF THE PHILIPPINE
CONSTITUTION 132 (1936). "15 SCR A 7 (1965).
THE PHILIPPINES
OF THE REPUBLIC OF
ticiable question. At issue in the case was the validity of Republic Act No.
4421 which required a candidate to post a surety bond equivalent to
one year's salary of the position for which he is a candidate.
Th e Court declared the amount of the bond constitutionally objectionable for
be
ing equivalent to a property qualification "inconsistent with the nature
and essence of the Republican system ordained in our Constitution . .. [which] ...
implies necessarily that the right to vote and to be voted for
shall not be dependent upon the wealth of the individual." Justice J.R
43
Bengzon, in his concurring opinion added, that "our citizenry

have thus been given the supreme guaranty of a democratic way of life, with all
its freedom and limitations, all its rights and duties" and that Congress may "prescribe
the manner of exercising political rights so long as it does not run counter to the
Constitution." 44
Thus, there was no explicit statement that the
question was justiciable but the guarantee was used as a yardstick for determining
constitutionality. 45
In 1980, in Ceniza v. COMELEC, it was contended that to pro

46
hibit voters in a city from voting for elective provincial officials would subvert the
principle of republicanism as it would deprive a citizen of his right to participate in the
affairs of government. This contention was raised by residents of Mandaue
City, which under the law was clas sified as a highly urbanized city over which provincial
governments exercised no governmental supervision. Hence , it was
pointed out that residents of such city had no right to claim participation in provincial
government.
Martial law and the expanded powers of the President given by the Transitory Provisions
and Amendment 6 under the 1973 Constitu tion, which begot the form of
government called "constitutional author itarianism" also gave rise to the question
whether such concentration of governmental powers in the President was compatible
with a "Re - publican State." But the question is easily answered on the theoretical plain
if one remembers that a republican state is nothing more than a state where sovereignty
resides in the people and where all government authority emanates from them. Provided
therefore that the President is elected by the people and bases his assumption of
extraordinary powers
43
W. at 9.
"Id. at 10.
"The subject of "political questions" is treated under Article VIII.
"95 SCRA 763,774 (January 28,1980).
upon an empowerment given by a constitution ratified by the people, the

republican nature of the state, at least from a minimalist point of view, is not affected.
The report of the Committee on Declaration of Principles and Ide ologies

(1971) had recommended that the Philippines be designated a "national and
47
social democratic republic." The Convention, however, was not prepared

to accept a designation whose meaning and impli cations it did not fully comprehend.
Instead, it preferred to retain the formulation of
the 1935 Constitution and the meaning it embodied as understood by the 1935
Convention, 48
a meaning borrowed from Amer ican constitutional
theory.
The 1987 Constitution, formulated before the euphoria of the Feb ruary
Revolution of 1986 had died down, did what the earlier Consti tutional Convention
chose not to do and added a new word to describe the state: "democratic." The import of
this addition, a monument to "people power " which re-won democracy in EDSA
(Epifanio de los Santos Avenue), is that the Philippines under the new Constitution is
not just a representative government but also shares some aspects of direct democracy
such, for instance, as the "initiative and referendum" under Article VI, Section 32. As
Commissioner Nolledo said, the use of the word is a "justifiable redundancy."
49
SEC. 2. THE PHILIPPINES RENOUNCES WAR AS AN INSTRUMENT

OF NATIONAL POLICY, ADOPTS THE GENERALLY ACCEPTED PRINCIPLES
OF INTERNATIONAL LAW AS PART OF THE LAW OF THE LAND AND
ADHERES TO THE POLICY OF PEACE, EQUALITY, JUSTICE, FREEDOM,
COOPERATION, AND AMITY WITH ALL NATIONS.
1. Renunciation of war.
There are three parts to Section 2: (1) renunciation of war; (2) adoption of
the principles of international law; (3) adherence to a policy of peace, freedom, and
amity with all nations. The first two parts were copied by the 1973 Constitution
from Article II, Section 3, of the 1935 Constitution. The third part is an addition
made by the 1973 Constitu
tion. The present Section 2 is an exact copy of the 1973 provision.
"Supra, note 3.
"Sessions of November 24 and 27,1972.
*TV RECORD 683-684,735-737,752-
753,769.
Sec. 2
The inspiration of this provision on renunciation of war, when first adopted in

1935, was the Kellogg-Briand Pact of August
27,1928. The Pact renounced wars of aggression. And this is all that the
Constitution renounces, for the power to wage a defensive war is of the
very essence of sovereignty. For that matter, the Constitution makes defense of the
state a duty of government and of the people and gives to Congress the
5 0
power to declare a state of war. As one writer, however, has put it, the
5 1
provision is a political gesture of no significance and a pomp ous declaration that

impresses no one. By stating that the Philippines "renounces" war as an instrument of
national policy, the implication
is that at one time war was part of Philippine policy. "If the intention were to declare the
doctrine of anti-militarism, which apparently was what the moral and political
leadership of the country desired, better craftsmanship could have more accurately
expressed it by a statement that the Philippines condemns war as an instrument of
national policy or words to this effect." Apparently, however, this criticism,
52
valid as it is, impressed no one in the 1971 Convention nor in the

1986 Commis sion. Thus, the phraseology of the 1935 provision
has been retained.
It should be noted, however, that as a member of the United Na tions the

Philippines does not merely renounce war, which is a limited concept which does not
include some forms of force. As a signatory to the United Nations Charter the
Philippines adheres to Article 2(4) of the U.N. Charter which says: "All Members shall
refrain in their inter national relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."
2. Incorporation of international law.
Implicit in this provision is the acceptance of the dualist view of legal systems, namely
that domestic law is distinct from international law. Since dualism holds that
international law and municipal law be long to different spheres, international
law becomes part of municipal law only if it is incorporated into municipal law. What the
second part of Section 2 does is to make international law part of the law of the land.
In other jurisdictions, international law can become part of municipal
"Article II, Section 4.

''Article VI, Section 23(1).
"SINCO , supra, note 1 at 120.
Sec. 2 ART. II - DECLARATION OF PRINCIPLES AND STATE
POLICIES Principles
law only if it is transformed into domestic law through the appropri ate constitutional
machinery such as an act of Parliament. This follows what is called the doctrine of
transformation. Another theory is the doc trine of incorporation.
Blackstone expressed this in his Commentary when he said that:
[T]he law of nations, wherever any question arises which is

properly the object of its jurisdiction, is here adopted in its
full extent by the common law, and it is held to be part of the law of the
land.
The second part of Section 2 accepts the doctrine of incorporation. This

provision makes the Philippines one of the states which make a specific declaration that
international law has the force also of domes tic law." International law therefor
can be used by Philippine courts to settle domestic disputes in much the same way that
they would use the Civil Code or the Penal Code and other laws passed by Congress.
What elements of international law become part of Philippine law by

incorporation through Article II, Section 2? Since treaties become part of Philippine law
only by ratification, the principle of incorporation applies only to
customary law and to treaties which have become part of customary law. This
distinction, however, is sometimes blurred in some Philippine Supreme
Court decisions. 54
A problem, however, which the provision posses is the problem of determining

what these generally accepted principles of international law are which
the Philippines accepts. Ultimately, in the absence of the guiding direction of
treaties or statutes, the process of selecting what these accepted principles are will have
to be done by the courts. The Supreme Court as a matter of fact, has had occasion to
perform this function. In Mejojfv. Director of Prisons," an alien
of Russian descent who had been detained pending execution of the order of deportation
"Similar provisions are found in the Austrian Constitution, Article 9: "The generally
rec ognized rules of international law shall be considered as component parts of the Federal Law," and
in Article 25 of the Constitution of the Federal Republic of Germany: "The general rules of public
international law are an integral part of federal law."
"See ALOYSIUS LLAMZON , "The Generally Accepted Principles of
International Law as Philippine Law: Towards a Structurally Consistent Use of
Customary International Law in Philip pine Courts," a JD. Thesis presented to the College of Law,
Ateneo de Manila University, 2002. "90 Phil. 70 (1951).
Sec. 2
was ordered released on bail when after two years the deportation or der could not be
carried out because no ship or country would take the alien. The Court said in
part: 56
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines

"adopts the generally accepted principles of international law as part of
the law of the Nation." And in a resolution entitled "Uni versal
Declaration of Human Rights" and approved by the Gen eral Assembly of
the United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed. It
was there resolved that "All human beings are bom free and equal in degree
and rights" (Art. 1); that "Everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such
as race, color, sex, language, religion, political or other
opinion, national ity or social origin, property, birth, or other status" (Art.
2); that "Everyone has the right to an effective remedy by the competent
nationals for acts violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one shall be sub jected to arbitrary
arrest, detention or exile" (Art. 9); etc.
Earlier, in Kuroda v. Jalandoni, the Court had said that

51
the pro vision "is not confined to the recognition of rules and principles of in ternational
law as contained in treaties to which our government may have been or shall be a
signatory." Thus, although the Philippines is not a signatory to the Hague Convention
and became a signatory to the Ge - neva Convention only in 1947, the Court held
that a Philippine Military Commission had jurisdiction over war crimes committed in
violation of the two conventions prior to 1947.
The doctrine of immunity from suit of a foreign state is likewise a principle of
international law whose acceptance in this jurisdiction has been established in a long line
of cases starting with Raquiza v. Bradford,'" and was summarized and
reaffirmed in Baer v. Tizon."
*Id. at 73-4.
"83 Phil. 171,178(1949).
58
75 Phil. 50 (1945).
w
5 7 SCRA 1,6-8 (1974). A long line of cases to the same effect have followed.
Principles
More recently, in Agustin v. Edu, a case involving a presic etter of

m
Instruction prescribing the use of early warning dev ) ), the Court said
that the constitutional provision "possesses :e." The Court pointed out that the
1968 Vienna Convention Signs and Signals had been ratified by the
Philippine governn
Presidential Decree No. 207. "It is not for this country to repi
commitment to which it had pledged its word. The concept pi
servanda stands in the way of such an attitude, which is, m< at
war with the principle of international morality." Likew 61
iternational duty of protecting foreign embassies was

recogni Reyes v. Bagatsing. 62
3. Adherence to policy of peace, freedom, amity.
The third part of Section 2 states that the Philippines "adhere slicy of
peace, equality, justice, freedom, cooperation, and an ill
nations." This is an abbreviated statement of Section 1 and 5
of an article on Foreign Relations approved by the 1971 Con\ m
second reading on June 2,1972 .
Section 1 of the article read:
The Philippines shall pursue a foreign policy aimed at the

fulfillment of the national interest in a world order based on equal ity,
peace, freedom, justice, and prosperity for all nations.
Thus, it is seen that the guiding principle of Philippine fore y will be , as

it is with all other nations, the national interest. 1 sh" policy,
however, is tempered with concern for "equality, pes om,
justice."
The last two items of the section — "cooperation, and amity vt itions"
— were more fully expressed by Section 2 of the ear. >ved
article which said:
In the national interest and of international peace and

coop eration, the Philippines may extend recognition,
exchange diplo matic relations and establish consular, trade,
and cultural relations with other nations irrespective of ideology.
w
8 8 SCRA 195.213 (February 2,1979).
"'Id.
"G.R. No. 65366, October 25,1983.
6 4 THE 1987 CONSTrrunON
PHILIPPINES
OF THE REPUBLIC OF THE Sec. 3
While the words "cooperation and amity with all nations" found in Section 2 do
not expressly manifest the intent to establish diplomatic and other relations with all
nations irrespective of ideology, the intent is nonetheless there. However,
constitutionally, the provision is without real significance; the decision whether to
establish or not to establish such relations remains, as in the 1935 Constitution, a
policy question addressed to the discretion of the political departments.
Finally, while the 1987 text preserves the 1973 counterpart, the 1986
Commission read into the word "amity" the concept "love" found in the
Preamble. 63
SEC. 3. CIVILIAN AUTHORITY IS, AT ALL TIMES, SUPREME

OVER THE MILITARY. THE ARMED FORCES OF THE PHILIPPINES IS THE
PROTECTOR OF THE PEOPLE AND THE STATE. ITS GOAL IS TO SECURE THE
SOVEREIGNTY OF THE STATE AND THE INTEGRITY OF THE NATIONAL
TERRITORY.
1. Civilian supremacy .
Under the 1935 Constitution civilian supremacy was implied from its
Article VII, Section 10(2) which made the President, a civilian and as civilian,
Commander-in-Chief. The 1973 Constitution made the prin ciple explicit. The first
sentence of the present Section 3, except for the two commas, is a copy of the
1973 provision. The comma s were added for emphasis on "at all
times." 64
Civilian supremacy came as a legacy of the American conquer ors. The process of
locally instilling the principle was so successful under American rule that, up until
the World War II and even beyond, there was no serious problem which arose
from military submission to civilian authority. As the nation developed, however, faith in
civilian supremacy began to wane. The waning of that faith began when civilian
officials started using military elements for furthering their ambitions and when military
officers began allowing themselves to be so used. The author of The Power Elite, put it
thus: "As politics gets into the army, the army gets into politics." Hence, when the
Filipinos drafted the 1973 Constitution it was thought necessary, just to emphasize the
point, to make the principle supremacy of civilian authority.
Sec. 3 ART. II - DECLARATION OF PRINCIPLES AND STATE
POLICIES Principles
2. Role of the armed forces.
The period of martial rule up until EDSA I was another phase in the constitutional
development. Military abuses were rampant then. Hence, the 1986 Constitutional
Commission thought it necessary to put down the positive role of the military in explicit
terms. "The Armed Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the national
territory." This is counterpoint.
The second and third sentences of Section 3 , originally discussed by the 1986
Constitutional Commission under the General Provisions, are meant
to express the philosophy that underlies the existence of armed forces. The original
formulation made by Commissioner Ople read: "The purpose of a military
establishment is to secure the sov
ereignty of the people and the integrity of the national territory and to serve the general
welfare." The provision was bom of a desire to express in positive terms
65
the Commission's disapproval of abuses com mitted by the military against civilians
during the period of authori tarian rule. The transposition of the two sentences
66
from the General Provisions to the Declaration of Principles and specifically as a continu
ation of the principle of civilian supremacy was meant to add emphasis on the
philosophy they express. 67
The phrase "protector of the people" was not meant to be an as sertion of the political
role of the military. But the temptation to read it that way against the background of the
EDSA I event is understandable. The intent of the phrase "protector
of the people" was rather to make it act as corrective to military abuses experienced
during martial rule.
Does this mean, however, that the military has no political role? It does not mean
that because the political role is found in the follow ing sentence. "Its goal is to secure
the sovereignty of the State and the integrity of the national territory." Thus,
there are two thoughts in the constitutional provision: disapproval of military abuses
and guardian ship of state sovereignty, which of course means sovereignty of the
people. The military exercise of political power can be justified as a last resort — when
civilian authority has lost its legitimacy.
"V RECORD 246.

"•See id. at 104-106.
"Id. at 298-299.
Sec. 4
The two sentences, therefore, also yield a meaning

which was not articulated during the Commission debates. When one reads them in
the light of the unsuccessful military coups of 1987 and the reasons given for them,
and especially in the light of the successful and civilian approved coup of February
1986 which became known as the Febru ary Revolution, one cannot escape the
conclusion that the armed forces
can be a legitimate instrument for the overthrow of a civilian govern ment that
has ceased to be a servant of the people. Such conclusion also finds support in the
principle, accepted by the Commission but not made explicit, that a long
standing tyranny can be legitimately over
thrown. Civilian supremacy, in other words, is, in the final analysis, not a
6 8
guaranteed supremacy of civilian officers who are in power but of supremacy of the
sovereign people. The Armed Forces, in this sense, "is the protector
of the people and the State."
SEC. 4. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE

AND PROTECT THE PEOPLE. THE GOVERNMENT MAY CALL UPON THE
PEOPLE TO DEFEND THE STATE AND, IN THE FULFILLMENT THEREOF, ALL
CITIZENS MAY BE REQUTRED, UNDER CONDITIONS PROVIDED BY LAW, TO
RENDER PERSONAL MILITARY OR CIVIL SERVICE.
1. Compulsory military and civil service; protection of peo ple and State.
The 1973 counterpart of this provision was Article II, Section 2 which read: "The
defense of the State is a prime duty of the government and the people, and in the
fulfillment of this duty all citizens may be re quired by law to render personal military or
civil service." It was almost a literal reproduction of Article II, Section 2 of the 1935
Constitution.
In the light of the recent experience with the Marcos regime which placed
inordinate emphasis on national security, it was understandable that the Commission
should opt for a provision more people-centered than national
security-centered. Thus the old provision was recast to read: "The prime duty of the
6 9
Government is to serve and protect the people." National defense is placed

merely as one of the modes of serv
ing and protecting the people.
"See supra, notes 34 and 35 and text.

See IV RECORD at 831-832. See speech of Commissioner Rama against the provision
depicting it as a remnant of the old spirit. Id. at 831.
The 1935 provision had been inspired by Section 37 of the Con stitution of the
Spanish Republic. The 1935 provision was thought necessary because of
70
the recognized inadequacy of a volunteer system both in terms of military effectiveness

and in terms of equality between the rich and the poor. The report of the Committee on
National Defense said in part: 71
The volunteer system is not suitable for a poor country which

cannot afford to pay the army well enough to attract well qualified, able-
bodied young men to the service. The volunteer system involves the
objectionable feature of entrusting the sacred mission of defending the
country to men lacking in capacity who have proved failures in other fields
of activity. The volunteer sys
tem is undemocratic, because the cannon fodder, with very
few exceptions, consists of proletarians. The sons of the wealthy can
evade the sacred duty of defending their country, though it is they who
enjoy the advantages obtained through the services rendered and blood
spilled by men to whom fortune has been unkind. A high
morale, which only a person fighting for an ideal can possess, is
very necessary in an army, and with mercenaries fighting for a pit
tance, such a morale cannot be attained.
While the inspiration of the 1935 provision came from the Span ish
Constitution, compulsory military service is not without precedent in
the American constitutional system to which the 1935 Constitution was heir. The right
of the state to exact compulsory military service of its citizens, as against the contention
that such an exaction would violate the prohibition of involuntary servitude found in the
Thirteenth Amendment, was definitively established in 1918. In the Selective Draft
Law Cases, the Supreme Court declared that the argument based on the Thirteenth
Amendment refuted itself: "We are unable to conceive upon what theory the
7 2
exaction by the government from the citizen of the performance of his supreme and
noble duty of contributing to the defense of the rights and honor of the nation,
as the result of a war de
clared by the great representative body of the people, can be said to be the
imposition of involuntary servitude." Moreover, the U.S. Supreme Court has
upheld laws passed in the exercise of this same state power
™I ARUECO, THE FRAMING OF THE PHILIPPINE CONSTITUTION at 135.
"W. at 136.
"245 U.S. 366,390 (1918).
Sec. 4
requiring compulsory civilian labor of those who are excused from mil itary
service. 75
The first Philippine case on the subject was People v. LagmanP*

The accused in this case, prosecuted for failure to register for military service
under the National Defense Act, assailed the validity of the Act. The Supreme Court
upheld the law on the basis of Section 2 [1935 Constitution] saying: 75
The National Defense Law, in so far as it establishes com pulsory

military service, does not go against this constitutional provision but is, on
the contrary, in faithful compliance therewith. The duty of the
Government to defend the State cannot be per formed except
through an army. To leave the organization of an army to the will of the
citizens would be to make this duty of the Government
excusable should there be no sufficient men who vol unteer to enlist
therein.
In the United States the courts have held in a series of deci sions that the
compulsory military service adopted by reason of the civil war and the
world war does not violate the Constitution, because the power to establish
it is derived from that granted to Congress to declare war and to organize
and maintain an army. This is so because the right of the Government to
require com pulsory military service is a consequence of its duty to defend
the State and is reciprocal with its duty to defend the life, liberty, and
property of the citizen. In the case of Jacobson v. Massachusetts
(197 (7.5., 11; 25 Sup. Ct. Rep., 385), it was said that, without
violating the Constitution; a person may be compelled by force, if need be,
against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place
in the ranks of the army of his country, and risk the chance of being shot
down in its defense. In the case of United States vs. Olson (253 Fed.,
233), it was also said that this is not deprivation of property without due
process of law, because, in its just sense, there is no right of property to an
office or employment. The circumstance that these decisions refer to laws
enacted by reason of the actual existence of war does not make our case any
different, inasmuch as, in the last analysis, what justifies
compulsory military service
"SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES.

PART III, RIGHTS OF THE PERSON 805 (1968).
74
66Phil. 13 (1938).
''Id. at 15-6.
Principles
is the defense of the State whether actual or whether in preparation to

make it more effective, in case of need.
The circumstance that the appellants have dependent fami lies to
support does not excuse them from their duty to present themselves before
the Acceptance Board because, if such circum stance exists,
they can ask for deferment in complying with their duty and, at all
events, they can obtain the proper pecuniary al lowance to these family
responsibilities (Sees. 65 and 69 of Com monwealth Act No. 1).
After the Second World War, the Supreme Court once mc had occasion to
appeal to Section 2 [1935 Constitution]. In People Manayao,
the Supreme Court said:
76
This constitutional provision covers both time of peace and time of

war, but it is brought more immediately and perempto rily into play when
the country is involved in war. During such a period of stress, under
a constitution enshrining such tenets, the citizen cannot be
considered free to cast off his loyalty and obliga tions toward the
Fatherland. And it cannot be supposed, without reflecting on the patriotism
and intelligence of the Legislature, that in promulgating
Commonwealth Act No. 63, under the aegis of our Constitution, it
intended (but did not declare) that the duties of the citizen solemnly
proclaimed in the above-quoted constitutional precept could be effectively
cast off by him even when his country is at war, by the simple expedient of
subscribing to an oath of al
legiance to support the constitution or laws of a foreign country, and an
enemy country at that, or by accepting a commission in the military, naval
or air service of such country, or by deserting from the Philippine Army,
Navy, or Air Corps.
It would shock the conscience of any enlightened citizenry to say
that this appellant, by the very fact of committing the trea sonous acts
charged against him, the doing of which under the cir cumstances of
record he does not deny, divested himself of his Philippine citizenship
and thereby placed himself beyond the arm of the law. For if this were so,
his very crime would be the shield that would protect him from
punishment.
76
78 Phil. 721, 727 (1947).
Sec. 5
The 1973 provision altered the 1935 version and declared national
defense to be a prime duty not just of the government but also of the people. The
addition of the words "and the people" was objected to on the ground that
national defense was the duty only of citizens and not of all the people,
citizens and aliens alike. Sponsors of the provision immediately explained that people
in this section meant citizens. Refer ence was made to Article V, Section 1
(1973), which said: "It shall be the duty of the citizens . .. to defend the state
. .." Moreover, reflecting
77
the preoccupation of the martial law period which overtook the Con vention, it was
pointed out that the citizen's duty was to defend the state against both external and
internal aggression. 78
As far as the constitutional doctrine on compulsory military and civil service is

concerned, the 1987 provision has preserved existing jurisprudence on the subject. One
alteration made on the text is the addition of the phrase "under conditions provided
by law." This was placed in lieu of "with due regard for objections of conscience" and
was intended to give to Congress a flexible guideline for dealing with conscientious
objectors; but no new doctrine was thereby formulated. 79
SEC. 5. THE MAINTENANCE OF PEACE AND ORDER, THE

PROTECTION OF LIFE, LIBERTY, AND PROPERTY, AND THE
PROMOTION OF THE GENERAL WELFARE ARE ESSENTIAL FOR THE
ENJOYMENT BY ALL THE PEOPLE OF THE BLESSINGS OF DEMOCRACY.
1. Peace and order, general welfare.

This provision has no counterpart either in the 1935 or in the 1973
Constitution. The mention of "maintenance of peace and order" pro voked the objection
that it could create the notion that peace and order must be promoted at all cost and even
at the expense of justice and could encourage the use of military solutions to what could
normally be treated as social, economic and political problems. But its author,
Commissioner Ambrosio Padilla, explained that the provision recog-
"Session of November 25, 1972. Later, however, on November 27, 1972,

Delegate de Guzman said that while aliens may not be compelled to render personal military or civil
service, all those enjoying the protection of the state may be required in some other manner to assist in the
defense of the state.
The 1987 Constitution no longer contains a separate article on duties and obligations of
citizens.
"Session of November 27,1972.
"See IV RECORD 666-667,681,691-692,742.
oiaie roiicies
a hierarchy of rights — first, life; second, liberty; and only th : rty. 80
SEC. 6. THE SEPARATION OF CHURCH AND STATE SHALL BE

INVIOLABLE.
1. Separation of Church and State.
This provision is discussed under the non-establishment claus ill of

Rights.
STAT E POLICIE S
SEC. 7. THE STATE SHALL PURSUE AN INDEPENDENT FOREIGN

POLICY. IN ITS RELATIONS WITH OTHER
STATES THE PARAMOUNT CONSIDERATION
SHALL BE NATIONAL SOVEREIGNTY, TERRITORIAL INTEGRITY, NATIONAL

INTEREST, AND THE RIGHT TO SELF
DETERMINATION.
1. An independent foreign policy.
Although Section 7 might read like a coldly detached staten rinciple,

it in fact is a by-product of the less than detached disc of the future
of the military bases in Clark and Subic. The w ions " covers the
whole gamut of treaties and international agi > and other
kinds of intercourse. The Section is the closest re: to military
bases that a dominant majority in the Constitutio
nission would allow in the body of the Constitution. Although
vhelming sentiment was that only American military bases co be allowed,
and under terms dictated in Article XVIII, Section
>me inexplicable logic the dominant majority refused to accept citation
of the general principle that "No foreign military bas s or facilities shall be
allowed in Philippine territory." ' 8
Section 7 states a principle which no one will dispute but fide! lich will
always be a matter of dispute. 82
""V RECORD 11-14.

"See IV RECORD 778-813 and discussions of Article XVID, Section 25. "The
issue of neutrality was discussed in connection with this provision but the
propos. neutrality as a policy was abandoned. See Id. at 583, 592-593, 613-
615,635-636,655-( 41-742,753-755.
OF FREEDOM FROM NUCLEAR WEAPONS IN
ITS TERRITORY.
SEC. 8. THE PHILIPPINES, 1. A policy of freedom from nuclear

CONSISTENT WITH THE NATIONAL weapons.
INTEREST, ADOPTS AND PURSUES A POLICY Sec. 8
The original formulation of this provision read thus: "The Philip pines is a nuclear-free
country. No portion of its territory shall be used for the purpose of storing or
stockpiling nuclear weapons, devices or parts thereof." Speaking for the
provision, Commissioner Azcuna said: 83
I do not have to elaborate, Madame President, the enormous

destructive capacity of nuclear weapons, particularly, because Asia
has had the distinct misfortune of being the only place in the
world where nuclear weapons were dropped and exploded during war. It
was not too long ago that Asia and the world commemorated that fateful
event. Since the dropping of atomic bombs in Japan towards the end of
World War II, the technology of nuclear weapons has multiplied
tremendously such that the weapons dropped in Japan are only used as
trigger devices for the weapons of today. Those bombs were merely atomic
bombs. The bombs of today are hydrogen bombs. Those bombs
merely used fission as a principle. The bombs of today use
fusion, the very power of the sun — fusion of nuclear particles, releasing
tremendous energy.
An explosion of a nuclear bomb, Madam President, is con sidered an

uncontrolled nuclear reaction. That is the definition of a nuclear
explosion. What we seek to prevent from happening with in our
land is the occurrence of an uncontrolled nuclear reaction. Why
put it in the Constitution? Why not leave it to the President, why not leave
it to the Senate, to deal with these matters? Madam President, we are here
framing a constitution. We are here in that part of the Constitution which
we call the Article on the Declara tion of Principles. We say that
the Constitution is a reflection of the aspirations and the ideals, and even
the fears, of our people. Then why be silent about this?
The provision, as it stands now, raises two questions. First, what are
banned by the provision? Second, how absolute is the ban?
Clearly, the ban is only on nuclear arms — that is, the use and stockpiling of
nuclear weapons, devices, and parts thereof. And this
"Id. at 587. See also Id. at 588-589,681, 815.

Sec. 8 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES State Policies
includes, according to Commissioner Azcuna, "not only possessing, controlling and

manufacturing nuclear weapons, but also nuclear tests in our territory, as well
as the use of our territory as dumping ground for radioactive wastes." 8 4
Moreover, the ban suggests that, in our relations with other states, there must be a
mechanism for the verification of the existence or non-existence of nuclear arms.
This will therefore affect the terms of any renewal the country might agree to of
8 5
existing military bases agreements with the United States. The provision must be read as
a mandate to the Philippine government to insist that the pursuit of a policy on nuclear
weapons is a controlling guideline if there should be any new negotiation with the United
States on the subject of military bases. 86
The provision, however, is not a ban on the peaceful uses of nucle ar

energy. 87
Nor is it a ban on all "nuclear-capable vessels." For a vessel to be
banned, it is not enough that it is capable of carrying nuclear arms; it must actually carry
nuclear arms. 88
The original formulation of the provision, cited above, might sug

gest that the ban on nuclear arms is absolute. But, as explained by Com
missioner Azcuna, that was never the intention: 89
In my sponsorship speech, I pointed out that this is a policy, albeit a basic

policy because it is stated in the Declaration of Prin ciples and State
Policies in the Constitution. Consequently, what we are seeking here is
primarily a statement of an orientation, a basic direction in the
Constitution, that as a matter of policy, we are against nuclear weapons in
our territory. As practiced by other states, that means prohibition not only
of possessing, con trolling and manufacturing nuclear
weapons, but also of nuclear tests in our territory, as well as the
use of our territory as a dump ing ground for radioactive wastes. This is
embraced in the policy against nuclear weapons in one's territory. As
practiced both in Latin America, under the Treaty of Tlatelolco, as well as
by the South Pacific countries that endorsed the Treaty of Rarotonga,
pas sage of ships, whether nuclear-powered or nuclear-arms-
bearing,
M
W.at818.
"Id. at 815.
"Id. at 816.
"Id. at 663,666,667-668
"Id. at 819. See also 828.
m
ld. at 818. See also Id. at 819-821.
74 THE 1987 CONSTITUTION one's territory. However, it has to be done in

OF THE REPUBLIC OF THE PHILIPPINES the light of policy.
There is a policy against the presence of
is left to the determination of every state on a
nuclear weapons and, therefore, the
case-to-case basis. It is not per se a
exceptions to that policy would have to be
violation of a nuclear weapons free zone to
strictly construed or justified. What we are
allow a ship that is nuclear-powered or
saying with the for
bearing nuclear weapons to pass or enter Sec. 8
mulation now is that it can be justified only on the basis or on the crucible
of the national interest. If it is consistent with the national interest, then
really there is the possibility of deviating from that policy but the policy is
there. The basic direction is there. There can be deviations now and then
because we said that this is not a 100 percent rule; this is not absolute. But
deviations must be justi fied on the basis and the crucible or test of national
interest.
Azcuna, however, did not explicate what the exception would be .
The exception first surfaced in the reformulation which was word ed thus: "The
Philippines shall, consistent with considerations solely of national interest, pursue a
policy of freedom from nuclear weapons in its territory." Explaining this reformulation,
Commissioner Monsod said that whether or not to allow nuclear
weapons would be decided on the basis of what is best for the "national interest" as this
might be defined by the executive and legislative departments. Later 90
the word "solely" was dropped in order not to suggest that the nation's commit ment to a
policy against nuclear arms was dictated solely by national interest; the opposition could
also be based, for example, on the desire for peace in the region. 91
But that was not to be the end of the discussion. Concerned about media reports
which tended to read the provision as a total and absolute ban on nuclear arms,
Commissioner Monsod wanted to be doubly sure of what the meaning was of the phrase
"consistent with the national interest" and so he wanted it rephrased to read "subject to
the national interest." Thus, he elicited from Commissioner Azcuna the explana
tion that "consistent with" means "subject to, " that is, "that both the
"Id. at
814.
"Id. at 816.
Sec. 9 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 75
State Policies
adoption and the pursuit of the policy, as well as any exception there from, must be
subject to the national interest." Still uneasy about the possibility of
92
misinterpretation, Commissioner Monsod asked for the approval of a clarificatory

resolution. Co-authored by several Commis sioners, the
resolution read: 93
Resolved that since it is the intent and sense of the Consti tutional
Commission that the phrase "consistent with the national interest" in
Section 7 [now Section 8] of the Article on Declaration of Principles
involving the policy on nuclear weapons in Philip pine territory also means
"subject to the national interest" as borne by the records of the
proceedings and the unanimous manifestation of the Members of the
Commission, the motion to reconsider and amend such provision filed by
28 Commissioners is deemed un necessary and withdrawn from further
consideration but is hereby incorporated in the records of the Commission.
No one objected to the resolution and the problem was deemed settled.
SEC. 9. THE STATE SHALL PROMOTE A JUST AND DYNAMIC

SOCIAL ORDER THAT WILL ENSURE THE PROSPERITY AND INDEPENDENCE
OF THE NATION AND FREE THE PEOPLE FROM POVERTY THROUGH
POLICIES THAT PROVIDE ADEQUATE SOCIAL SERVICES, PROMOTE FULL
EMPLOYMENT, A RISING STANDARD OF LIVING, AND AN IMPROVED
QUALITY OF LIFE FOR ALL.
1. Social order.
Perhaps the best commentary on this provision is the draft whence it came.
The original proposal said: "The prime concern of the State is the
promotion and establishment of a socio-political and economic sys tem that will ensure
the independence of the nation and aims to secure for the people the benefits of full
employment, a high standard of living, equality in economic opportunities,
security in old age, and other ba sic human rights." It reflects a
preoccupation with poverty as resulting from structures that mire the people in a life of
dependence. Hence the provision is closely linked with the provision on social justice
which follows.
n
ld. at
826.
,
3
W.at648.
Sec.10
SEC. 10 . THE STATE SHALL PROMOTE SOCIAL JUSTICE IN ALL

PHASES OF NATIONAL DEVELOPMENT.
1. Social Justice in the 1935 Constitution.
Constitutional law arrived in the Philippines long after "due pro cess" had
become recognized not just as a procedural restraint but also as a substantive restraint
upon governmental action. Although frequent ly invoked, however, as a protest
against arbitrariness in legislation, substantive due process was rarely invoked with
success. From the very beginning, the Supreme Court gave generous latitude to
legislation de signed to promote public health, public safety or public welfare-even
when legislation collided with the rights to life, liberty, or property. Of the
pre-1935 cases, however, one case stands out as deficient in social conscience: People
v. Pomar. * 9
At issue in Pomar was freedom of contract. The case dealt with a statute
prescribing a thirty- day vacation with pay both before and after confinement arising
from pregnancy. The Court said: "The rule in this jurisdiction is, that the contracting
parties may establish any agree
ments, terms, and conditions they may deem advisable,
provided they are not contrary to law, morals or public policy." Relying 9 5
chiefly on early American cases that still embodied the doctrine of laissez
9 6
faire, the Philippine Supreme Court struck down the statute as an invasion of
freedom of contract. The Court said that "the right to contract about one's
affairs is a part of the liberty of the individual guaranteed by this [due process] clause .
..'"" The Court also approved of the "equality of right" principle: "In all such
particulars the employer and the employee have equality of right, and any legislation that
disturbs that equality is an arbitrary interference with the liberty of contract, which no
govern
ment can legally justify in a free land . .." 9 8
Police power, the Court conceded,
is an expanding power; but it "cannot grow faster than the fundamental law
of the state. . .. If the people desire to have the police
M
4 6 Phil. 440 (1924).
n
Id. at 456, relying on Article 1255 of the (old) Civil code.
"Adkins v. Children's Hospital 261 U.S. 525 (1923); Adair v. U.S. 208 U.S. 161, 174
(1908); Coppage v. Kansas, 236 U.S. 1,14 (1915); Mugler v. Kansas, 123 U.S. 623 (1887).
"46 Phil, at 449.
"W. at 452.
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES State
Policies
power extended and applied to conditions and things prohibited by the organic law, they
must first amend that law." 99
When the Pomar decision came up for criticism in the Constitu tional
Convention of 1935, Delegate Laurel contended that the Pomar decision could no
longer stand because of the "social provisions" of the new (1935) constitution.
Chief among these provisions was Section 5 of Article II which said:
100
"The promotion of social justice to insure the well-being and economic security of all the
people should be the concern of the State."
In the course of the 1935 Convention, principally through

the ad vocacy of Delegate Locsin, the idea of social justice was developed to
mean: 101
[j]ustice to the common tao, the "little man" so-called. It

means justice to him, his wife, and children in relation to their
employers in the factories, in the farms, in the
mines, and in other employment's. It means justice to him
in the education of his chil
dren in the schools, in his dealings with the different offices of
government, including the courts of justice.
In other words, what the declaration of principles advocated was nothing less
than the idea echoed in the slogans used by many a can didate for delegate to the 1971
Constitutional Convention: Those who have less in life should have more in law.
The idea of social justice also came up during the debates on the contract clause.
Delegate Locsin again, strongly influenced by Roosevelt's New Deal Program and
expressing profound concern for the working-man bound to service by inequitable
contracts, advocated elimination of the contract clause. He considered existing
jurisprudence on police power an inadequate counterbalance to the unequivocal tenor
of the contract clause: "que peso tendria un enunciado abstracto sujeto a
pronunciamientos contradictorios para contravenir un dictum tan inequivocante
constitutional?" Locsin's proposal, however, was
m
m
ld. at 455-6 .
,00
3 JOURNA L OF TH E (1935 ) CONSTITUTIONA L CONVENTIO N 1073 (FRANCISCO ed.).
1
1 J.
01
ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 147 (1936).
"»3 JOURNA L 1179.
Sec. 10
rejected on the understanding that the interest of the working man was sufficiently
protected by police power as superior to the contract clause.' 03
The impact of the 1935 Constitution on Philippine jurisprudence first

appeared as a tentative probing made by Justice Laurel in one of the early decisions
under the 1935 Constitution: 104
. .. the legislation which [we] are now called upon to con
strue was enacted in pursuance of what appears to be the deliberate
embodiment of a new social policy, founded on the conception of a society
integrated not by independent individuals dealing at arm's length, but by
interdependent members of a consolidated whole whose interests must be
protected against mutual aggression and warfare among and between
diverse and diverse units which are impelled by countervailing and
opposite individual and group in terests. ... In the United States labor
legislation has undergone a long process of development too long to
narrate here . .. Scrutiny of legislation in that country and of
pronouncements made by its Supreme Court reveals a continuous
renovation and change made necessary by the impact of
changing needs and economic pres
sure brought about by the irresistible momentum of new social and
economic forces developed there. In the light of changes that have
occurred, it is doubted if the pronouncements made by the said Su preme
Court in 1905 or in 1908 ... — cases which are relied upon by
the petitioner in its printed memorandum — still retain their
virtuality at the present time. In the Philippines, social legislation has had a
similar development. . .. In the midst of changes that have taken
place, it may likewise be doubted if the pronouncement made by this court
in the case of People v. Pomar . .. — also relied upon by the petitioner in
its printed memorandum — still retains its virtuality as a living
principle. The policy of laissez faire has to some extent given way to the
assumption by the government of the right of intervention
even in contractual relations affected with public interests.
l03
/<z.at 1184-90.
l04
Antamok Goldfields Mining Co. v. Court of Industrial Relations, 70 Phil.
340, 359-60 (1940), quoting an unpublished portion of Laurel's opinion in
Ang Tibay v. Court of Agrarian Relations, 69 Phil. 635
(1940).
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES State
Policies
The foundation for this change had been laid by the Constitution: 101
It should be observed at the outset that our Constitution was adopted

in the midst of surging unrest and dissatisfaction result ing from economic
and social distress which was threatening the stability of governments the
world over. Alive to the social and economic forces at work, the
trainers of our Constitution boldly met the problems and difficulties which
faced them and endeav ored to crystallize, with more or less fidelity, the
political, social and economic propositions of their age, and this they did,
with the consciousness that the political and philosophical aphorism of their
generation will, in the language of a great jurist, "be doubted by the
next and perhaps entirely discarded by the third." Embody ing the spirit of
the present epoch, general provisions were inserted in the
Constitution which are intended to bring about the needed social and
economic equilibrium between component elements of society through the
application of what may be termed as the justitia communis
advocated by Grotius and Leibnitz many years ago to be secured through
the counterbalancing of economic and social forces and opportunities which
should be regulated, if not controlled, by the State or placed, as it were, in
custodia societa tis. "The promotion of social justice to insure the well-being
and economic security of all the people" was thus inserted as vital prin ciple
in our Constitution. . .. And in order that this declaration of principle
may not just be an empty medley of words, the Constitu tion in various
sections thereof has provided the means towards its realization.
For instance, Section 6 of Article XIII declares that the State
"shall afford protection to labor, especially to working women and minors,
and shall regulate the relations between land owner and tenant, and between
labor and capital in industry and in agriculture." The same
section also states that "the State may provide for compulsory
arbitration." In extraordinary cases men tioned in Section 16, Article VI,
of the Constitution, the President of the Philippines may be
authorized by law, for a limited period and subject to such restrictions as the
National Assembly may pre scribe, to "promulgate rules and
regulations to carry out a declared national policy."
Laurel's tentative probe eventually became a clear and definitive doctrine which
revolutionized jurisprudence on property. Government
,05
70 Phil. 356-7.
THE PHILIPPINES
80 THE 1987 CONSTrTUTION Sec.10
OF THE REPUBLIC OF
became clearly recognized as equipped with sufficient power to push

forward a land reform and labor program designed to ameliorate the conditions of the
masses. This minor revolution will be examined in some detail particularly in the
discussion of the right of property, the obligation of contracts, and the power of
eminent domain. 106
2. Social justice in the 1973 Constitution.
Many delegates to the 1971 Constitutional Convention were ap parently

unaware that existing jurisprudence had already formulated a very socially oriented
concept of property. Some of them spoke of changing the concept of property from an
"absolute concept" to one imbued with a social conscience. For instance, the Committee
on Dec laration of Principles and Ideologies, after stating that the concept
of property in the committee report "obliges all persons to use their prop erty to benefit
not only [the owners] but [also] society" added the ex planation that "The right to
property is changed in concept." 107
In truth, however, what the 1973
Constitution succeeded in doing was merely to preserve and codify what had already
been accomplished under the 1935 Constitution.
Section 6, Article II, of the 1973 Constitution said: "The State shall promote
social justice to ensure the dignity, welfare, and security of all the
people. Towards this end, the State shall regulate the acquisi tion, ownership, use,
enjoyment, and disposition of private property, and equitably diffuse property ownership
and profits."
The constitutional command was addressed to the legislative arm which creates policy, to
the executive arm which implements policy, and to the judicial arm which interprets
policy. Under the 1973 Con stitution, where the President was both executive and
legislator, the re sponse to the social justice command came principally from the Presi
dent. Presidential Decree No. 27 of October 21,1972 , which sought to
emancipate the tenants from the bondage of the soil, while antedating implementation of
the constitutional command by a few months, was the most dramatic attempt at an
executive-legislative response. It or dained that all tenant farmers "of private agricultural
lands devoted to
Article III, Sections 1,9 and 10, Article II, Section 21, and Article XIII, Sections 4
and 8. Section 6, Report No. 1, Committee on Declaration of Principles and Ideologies
(1971).

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THE 1987

W E , THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF

AND A REGIME OF TRUTH, JUSTICE,

1. Deliberations on the Committee Report.

modification of the Preamble of the 1973 Constitution and read thus:

W E , THE SOVEREIGN FlLIPINO PEOPLE, IMPLORING THE

'Committee Report No. 1, Committee on Preamble, National

In the course of the initial deliberations, there were those who

An attempt to restore the phrase "general welfare" in place of the Committee's

An attempt to substitute "Lord of History" or "God of History" for "Divine

An attempt to substitute "equity" for "equality" was rejected as being subject to

HII RECORD 277.

2. Purpose and effect of the Preamble.

scope, and purpose of the Constitution, it is useful as an aid in

SECTION 1. THE NATIONAL TERRITORY COMPRISES THE PHILIPPINE

1. The Place of Territorial Delimitation in the 1935 Constitution.

A constitution is a municipal law. As such, it is binding only with in the

Philippine constitutionalism accepts the principle that it is not the Constitution

'V 1934-1935 CONSTITUTIONAL CONVENTION RECORD 318-

Id. at 347. After Singson Encarnacion's intervention, a vote was taken on a

2. National Territory under the 1935 Constitution. Article I,

Section 1 of the 1935 Constitution read:

States by the Treaty of Paris concluded between the United States

3. Why a Definition of Territory in the 1973 and 1987 Constitutions?

'Speeches, Sessions of February 14 and 15,1972.

'Speech, Session February 15,1972. Sorongon favored a process of selective recollection.

cause. Session of February 15,1972.

Not very helpfully. Delegate Clemente Abundo

Delegate Jose Nolledo (Palawan) expressed concern for the protection of

Constitution by the people should strengthen the Philippine territorial

"Speech, Session of February 15,1972.

4. The 1973 Provision on National Territory.

Article I of the 1987 Constitution cannot be fully understood with out

Article I of the 1973 Constitution said:

Briefly, and for purposes of analysis, Philippine national territory

a. The Philippine Archipelago

where this archipelago was, Committee Chairman Quintero

"Report No. 01 of the Committee on National Territory.

Now if we plot on a map the boundaries of this archipelago as set

When Spain signed the Treaty of Paris, in effect she an nounced to

The delineation of the extent of the Philippine archipelago must be understood in

b. ".. . all other territories belonging to the Philippines by historic right or

1973 version was the draft re

"Session of February 14,1972.

c. The territorial sea.

Internal waters; the Archipelagic Principle

The significance of this assertion lies in the meaning of "internal

All waters around, between and connecting different islands

"I.C J. Reports (1951) 130. The argument from this case is by

hope that it would eventually gain international acceptance. Commit

Section 5. The sovereignty of the Philippines also extends to the

The second draft came out thus:

Section 4. The sovereignty of the Philippines . .. also extends

"See exchange between Delegate Quintero and Delegate Felixberto Serrano

Commenting on Section 4 of the second draft, Committee Report No. 02 said

Commenting on Section 5, Committee Report No . 02 said:

The Convention on the Territorial Sea and the Contiguous Zone

5. 1982 Convention on the Law of the Sea (LOS) 32

"Delegate Justiniano Hermoso (Bulacan, 2nd district) has a