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Chapter 1
INTRODUCTION
CONSTITUTIONAL LAW is the study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guar anteed by the Bill of Rights. It is error to suppose that this subject suggests the unjustified ascendancy of authority over liberty as this might result in tyranny or the unwar ranted primacy of liberty over authority as this would result in anarchy. The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights. It is
best that the student appreciate this at the threshold,
before he enters the fascinating world of Constitutional Law. The fundamental powers of the State are the police power, the power of eminent domain, and the power of taxation. Among the safeguards in the Bill of Rights are the right to due process and equal protection, the prohibi tion against unreasonable searches and seizures, freedom of expression, the impairment clause, and the guarantees against injustice to the accused. These powers and rights countercheck but are not necessarily hostile to each other. They have a common objective: co-existence. Their ulti mate goal is the same: a well-ordered society based on the inviolability of rights which, although they may not be curtailed arbitrarily, may nevertheless be regulated for the common good.
CONSTITUTIONAL LAW
This work will deal first with each of the three inher
ent powers. This is fitting as the recognition of authorityis
a condition sine qua non for the proper enjoyment; of lib
erty, with the common weal as the criterion. Then it will
proceed to the examination of the different provisions in
Article III of the Constitution, more commonly known as
the Bill of Rights. Once authority is established, it is nec
essary to define and limit its reach, lest regulation become
encroachment and the pristine purity of rights is debased
by naked power.
Before everything else, however, a short background
study on the basic principles governing constitutions in
general, their nature, classification, amendment or revi
sion, and interpretation shall be presented. The adoption
of the present Constitution of the Philippines in 1987,
together with the recent pertinent decisions of the Su
preme Court, shall also be reviewed.
CONSTITUTIONAL LAW
It should be stressed that when it comes to certain
basic individual rights, such as religious freedom, it is not
the Constitution that creates or confers them. The correct
view is that the Constitution merely recognizes and pro
tects these rights and does not bring them into existence.
The Constitution is not "the originofprivate rights; it is not the fountain of law nor the incipient state of gov
ernment; it is not the cause but the consequence of per
sonal and political freedom."
Supremacy of the Constitution
The Constitution is the basic and paramount law to
which all other laws must conform and to which all per
sons, including the highest officialsof the land, must defer.
No act shall be valid, however noble its intentions, if it
conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude. Right or wrong,
the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of law by the pretenders to
illegitimate power.
Classification
Constitutions are classified into written or unwritten,
evolved or enacted, and rigid or flexible.
A written constitution is one whose precepts are em
bodied in one document or set of documents. An unwritten constitution, on the other hand, consists of rules which
have not been integrated into a single, concrete form but
4Watson, 108. 8 Cruz, Phil. Pol. Law, 1987, p. 11.
THE NATURE OF THE CONSTITUTION 5
are scattered in various sources, such as statutes of a fun damental character, judicial decisions, commentaries of
publicists, customs and traditions, and certain common
law principles. A conventional constitution is an enacted constitu
tion, formally "struck off' at a definite time and place fol
lowing a conscious or deliberate efforttaken by a constitu
ent bodyor ruler. A cumulative constitution, by contrast, is
the result of political evolution, "not inaugurated at any
specific time but changing by accretion rather than by any
systematic method."
A rigid constitution is one that can be amended only
by a formal and usually difficult process whereas a flexible
constitution is one that can be changed by ordinary legisla
tion.
The Constitution of the Philippines is written, con
ventional and rigid.
Essential Qualities of the Written Constitution
A good written constitution must be broad, brief and definite.
It must be broad not only because it provides for the
organization of the entire government and covers all per sons and things within the territory of the State but more
so because it is supposed to embody the past, to reflect the
present and to anticipate the future. The constitution must be comprehensive enough to provide for every con tingency. It has been said that the constitution is "not only
the imprisonment of the past but the unfolding of the fu
ture," to which it may be added that it is also the fulfill ment of the present.
16CJS21.
THE NATURE OF THE CONSTITUTION
tion, and defining the electorate.9 These are found in Arti cles VI to XI of our Constitution.
The third consists of the provisions pointing out the
mode or procedure in accordance with which formal
changes in the fundamental law may be brought about.
These are found in Article XVII of our Constitution.
Permanence of the Constitution
One advantage of the written, conventional and rigid
constitution is its permanence, or its capacity to resist
capricious or whimsical change dictated not by legitimate
needs but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or person alities. "A Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves."11 Such a constitution is not likely to be easily tampered with to suit political expe
diency, personal ambitions or ill-advised agitation for
change. But the very virtue of permanence may at the same time be a disadvantage where the written constitution is unable to adjust to the need for change justified by new conditions and circumstances. The difficulty itself of the amending process may be responsible for the delay in ef fecting the needed change and thus cause irreparable in jury to the public interest.
In such a situation, the written constitution will be come an impediment rather than a spur to progress, a treadmill to the nation seeking to liberate itself from the shackles of obsolete rules no longer conformable to their
9 Id. 10 Id. 11 Vanhorne v. Dorrance, 1 L., ed. 391.
CONSTITUTIONAL LAW
needs and aspirations. Where this happens, the people
may have to resort to a violation of the provisions of the permanent constitution; and if they cannot make a new
constitution, they will have to make a revolution.
Interpretation
The constitution, like statutory enactments, should be read in accordance with the usual rules on interpretation and construction. Chief among these is the canon that it should be interpreted in such a way as to give effect to the intendment of the framers. This intention is discoverable either in the document itself or through the use of extrin sic aids, such as the records of the constitutional conven tion. One recurrent question in this regard is whether the constitution should be interpreted only in the light of con ditions obtaining at the time of its adoption or according to the changes inevitably transpiring in the history of the nation. Should the constitution be petrified or progressive? The answer is obvious: the constitution must change with
the changing times lest it impede the progress of the peo
ple with antiquated rules grown ineffective in a modern
age. As eloquently put by Justice Winslow, 'The political
or philosophical aphorism of one generation is doubted by
the next and entirely discarded by the third. The race
moves forward constantly, and no Canute can stay its progress. Of particular importance also is the rule that, in case of doubt, the constitution should be considered self-execut
ing rather than non-self-executing; mandatory rather than
directory; and prospective rather than retrospective.
12 Ex Parte Milligan, 4 Wall. 2. 13 Borgnis v. Falk Co., 147 Wis. 327.
10 CONSTITUTIONAL LAW
making body, which could make them entirely meaning less by simply refusing to pass the needed implementing statute.
Implementation may, however, be imposed as a duty upon the legislature by mandatory language of the consti
tution. For example, when Article X, Section 19, provides
that "the first Congress elected under this Constitution shall, within eighteen months from the time of the organi zation of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordil
leras," the legislature could not unduly delay creation of
the body. While it is doubtful if mandamus would have been available against it, public opinion, if anything else, compelled it to act. Again in the absence of a clear showing of a contrary intention, the provisions of the constitution should be re garded as mandatory. Otherwise, the fundamental law would have no more force and prestige than a set of direc tions which the government and the people would be free to disregard. "As a rule, therefore, whenever the language used in the Constitution is prohibitory, it is to be under stood as intended to be a positive and unequivocal nega tion; and whenever the language contains a grant of
power, it is intended as a mandate, not a mere direction."
Finally, it should be observed that the provisions of
the constitution should be given only a prospective appli
cation unless the contrary is clearly intended. Were the
rule otherwise, rights already acquired or vested might be
unduly disturbed or withdrawn even in the absence of an unmistakable intention to place them within the scope of the constitution.
15 Black, Constitutional Law, pp. 20-21.
THE NATURE OF THE CONSTITUTION H
Amendment or Revision
Change in the constitution may be effected by a mere
modification in its interpretation by the courts of justice.
Where the provisions of the constitution are ambiguously
worded—perhaps deliberately so—judges may read out of
them, in the light of altered conditions, meanings that at
an earlier time were considered heretical.
One illustration will suffice. In People v. Pomar,16 de
cided in 1924, our Supreme Court declared unconstitu
tional a law granting maternity leave privileges to female
employees on the ground that it impaired the obligation of
contracts. At present, however, although the impairment
clause has not undergone any change in language since
then, such privileges are a commonplace. Social legislation
has been sustained under the expanded concept of the
police power as a valid limitation of the freedom of con tract.
There are provisions of the Constitution, though,
which are not as malleable to judicial interpretation, what
Cooley calls the "iron rules," because they cannot be al
tered except by formal amendment. Examples are the provisions for the age qualifications of certain officers or for their term of office. The composition of the Commission on Audit, to take another illustration, cannot be reduced or increased by a mere court decision.
Modification of such provisions may be effected either by amendment or revision as provided in Article XVII.
Amendment means isolated or piecemeal change only, as distinguished from revision, which is a revamp or rewriting of the whole instrument.
46 Phil. 440.
THE NATURE OF THE CONSTITUTION 13
whether or not to call the constitutional convention shall be thrown by them to the people themselves, by at least a
majority vote.
This last alternative is a plainly absurd procedure that permits the members of the Congress to authorize the waste of public funds by calling on their constituents to decide a question that is essentially addressed to the legis lators themselves. In effect, they are allowed to "pass the buck" simply because they are unable to agree on the deci sion the people expect them to make.
At any rate, whatever the nature of the change con templated, the choice of the method of proposal is discre tionary upon the legislature, as held in Occena v. Commis sion on Elections.
Conformably to the ruling announced in Imbong v.
Commission on Elections,22 the Congress, acting as a con
stituent body, may with the concurrence of two-thirds of all its members call a constitutional convention in general terms only. Thereafter, the same Congress, acting this
time as a legislative body, may pass the necessary imple
menting law providing for the details of the constitutional
convention, such as the number, qualifications, and com pensation of its members. This statute may be enacted in accordance with the ordinary legislative process.
A third method of proposal is allowed by Section 2 of
Article XVII, which reads:
Amendments to this Constitution may likewise be directly proposed by the people through initiative upon petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment
"Ibid. 21104 SCRA 1. 22 35 SCRA 28.
14 CONSTITUTIONAL LAW
under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every
five years thereafter. The Congress shall provide for the implementation ofthe exercise of this right.
The attempt to use this method in 1997 was struck
down by the Supreme Court in Santiago v. Commission on
Elections2 for lack of the necessary implementing law.
The above-quoted provision, it held, was not self-executing,
and Rep. Act No. 6735 provided for a local initiative only
and not the national initiative required for proposing con
stitutional changes. This ruling was reiterated in PIRMA
v. Commission on Elections™ and definitely ended the
attempt to removethe term limits of the President and the
members of Congress in the present charter.
It should be noted that this method applies only to
amendments, not to a revision ofthe Constitution.
A. Position of the Constitutional Convention
There are three theories on the relative position ofthe
constitutional convention vis-a-vis the regular depart
ments of the government.
The first, as announced in Loomis v. Jackson,23 holds
that the constitutional convention is supreme over the
other departments of the government because the powers
it exercises are in the nature of sovereign powers. This is
called the Theory of Conventional Sovereignty.
The second, as announced in Wood's Appeal,24 consid
ers the constitutional convention inferior to the other de-
22a
24
270 SCRA 106.
22b G.R. No. 129754, Sept. 21,1997.
23 6W.Va.613. 79 Pa. 59.
16 CONSTITUTIONAL LAW
problems. If they are accepted only after a long delay, they may no longer serve the purposes for which they were made in the first place. Moreover, proposals should be voted upon at a time when interest in them is still rife and the electorate is still knowledgeable on the pros and cons of the issues submitted to them.
According to Judge Jameson, "an alteration of the
Constitution proposed today has relation to the sentiment
and felt needs of today and, if not ratified early while the sentiment may fairly be supposed to exist, it ought to be regarded as waived and not again to be voted upon unless
for a second time proposed."
One of the issues raised in Gonzales v. Commission
on Elections29 was the validity ofthe submission ofcertain proposed constitutional amendments at a plebiscite sched uled on the same day as the regular elections. Petitioners argued that this was unlawful as there would be no proper submission of the proposal to the people who would be
more interested in the issues involved in the election cam
paign. The Supreme Court, however, declared, in inter preting Article XV of the 1935 Constitution:
There is in this provision nothing to indicate that the
election therein referred to is a special, nota general election.
The circumstance that the previous amendment to the Consti
tution had been submitted to the people for ratification in spe
cial elections merely shows that Congress deemed it best to do
so under the circumstances then obtaining. It does not negate
its authority to submit proposed amendments for ratification in general elections.
Justice Sanchez, with whom Justice J.B.L. Reyes con curred, expressed a strong dissent. His argument was that, in order that the proposed amendments could be
™ Constitutional Limitations, 4th ed., Sec. 535.
"°^29 21 SCRA 774. See also Almario v. Alba, 127 SCRA 69.
THE NATURE OF THE CONSTITUTION 17
considered to have been properly submitted, "the people must be afforded opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their con science suggest, free from the incubus of extraneous or possibly insidious influence... There must be a fair sub mission, intelligent consent or rejection." Such fair sub mission, he believed, would be possible only if the plebi scite were scheduled on a special date. The majority view was affirmed in Occena v. Com
mission on Elections,30 where the Supreme Court sus
tained the simultaneous holding in 1980 of the local elec tions and the plebiscite on the proposal to restore the re tirement age of judges to seventy years.
Judicial Review of Amendments
From what has already been observed, it is clear that the question of the validity of the adoption of amendments to the Constitution is regarded now as subject to judicial
review. The view announced in Mabanag v. Lopez Vito31 to
the effect that the question of whether or not the Parity proposal had been validly adopted in Congress was politi cal in nature has been rejected, indeed as early as in the
case of Tanada v. Cuenco32 The present doctrine allows
the courts to inquire into whether or not the prescribed procedure for amendment has been observed. The Supreme Court assumed jurisdiction in Sanidad v. Commission on Elections33 over the Solicitor General's contention that the amendment of the Constitution was a
30 95 SCRA 755. 31 Supra. 32100 Phil. 1101. 33 73 SCRA 333.
THE NATURE OF THE CONSTITUTION 19
vious constitutions and specifically eliminating all the iniquitous vestiges of the past regime.
Toward this end, President Corazon C. Aquino, in Proclamation No. 9, created a Constitutional Commission
composed of fifty members to be appointed by her and
charged it to frame a new charter not later than Septem
ber 2, 1986. All but one of those appointed accepted and immediately undertook their mission under the Presi dency of Justice Cecilia Munoz-Palma, formerly of the Supreme Court. The members came from various sectors and represented diverse persuasions, which is probably one reason why they could not meet their deadline and were able to approve the final draft of their handiwork only on October 15, 1986. By resolution of the Commis sion, it was recommended to the President that the plebi scite on the proposed Constitution be scheduled, not within sixty days as originally provided, but within three months, to give the people more opportunity to study it. Accordingly, the plebiscite was scheduled and held on February 2,1987.
The campaign for the ratification of the proposed Constitution was led by the President herself, whose main argument was that it would restrict the powers of the Presidency as provided for in the Freedom Constitu tion. Opposition to the draft, while spirited, was largely disorganized and consequently ineffective. Many people, while doubtful about some of its provisions and espe cially of its length, which made it seem like a codifica tion, nevertheless approved the proposed Constitution
in the end because they felt it would provide the stabil
ity the country sorely needed at the time. When the votes were tallied, it appeared that 76.29% the elector ate had voted to ratify, with only 22.74% against.
20 CONSTITUTIONAL LAW
Suggested Reading:
Imbong v. Commission on Elections, 25 SCRA 28 Tolentino v. Commission on Elections, 41 SCRA 715 Almario v. Alba, 127 SCRA 69 ' Santiago v. Commission on Elections, 270 SCRA 106
