MINDANAO STATE UNIVERSITY

College of Arts And Science

Social Science Department

Subject: POS102 (Introduction to Philippine Politics and Governance)

Section: PS-1

A. CONCEPT OF THE CONSTITUTION

Defining CONSTITUTION

• In its broad sense, it refers to that “body of rules and principles in accordance with which the powers of
sovereignty are regularly exercised.” It covers both written and unwritten constitutions.

• Judge Cooley defines "constitution" in the following curt terms: "That body of rules and maxims in accordance
with which the. powers of sovereignty are habitually exercised."

• George A. Malcolm defined constitution with reference to the Philippine settings is the written instrument enacted
by direct action of the people by which the fundamental powers of the government are established, limited, and
defined by which these powers are distributed among the several departments or branches for their safe and
useful exercise for the benefit of the people.”

Purpose and characteristics of the Philippine Constitution

1. Serves as the supreme or fundamental law. – constitution is the charter creating the government. It is the
supreme or fundamental law as it speaks for the entire people.
The 1987 Constitutions is the highest law in the hierarchy of laws in the PH legal system. The primary source of
social order.

2. Establishes basic framework and underlying principles. – the constitution also referred as to the organic or basic
law being or relating to the law by virtue of which the government exist as such.
The basic and most important law of the land for it defines the skeletal system not only of the government but
also the entire legal system of the state itself. All Philippine law must find their conformity with the constitution
otherwise, they will be considered as invalid legislations. It serves as the foundation of almost all the legal
institutions inside the state and outlines the criteria for legislation

3. Designed to protect the basic rights of the people. – it sets forth the basic rights of the people which the
government must observe, respects, and protect.

❖ Doctrine of constitutional supremacy.

Manila Prince Hotel vs. GSIS

A constitution is a system of fundamental laws for the governance and administration of nation. It is supreme,
imperious, absolute, and unalterable except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government,

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 assigns to the different departments their respective powers and duties, and establishes a certain fixed principles
on which the government is founded. The fundamental conception, in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be determined and all
public authority administered. Under this doctrine of constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and void and without any force and effect. Thus,
since the Constitution is the fundamental, a paramount and supreme law of the nation, it is deemed written in
every statute and contract.”

→ In simple terms, the constitution, being the highest law, holds authority over congressional declarations and
decisions such as statutes and resolutions, as well as executive orders issued by the President.

→ In the PH jurisdiction, the constitution is at the top of everything including the entirety of the government and its
instrumentalities. Every assertion of the government and even private individual must conform to the standards
and principles stated in the constitution, otherwise all of them will be declared invalid and hence will not be given
effect.

Statutes vs Constitution

▪ Statute
− Statute is enacted by the Congress and can be enacted without much of a difficulty. Generally, the statute can
be easily change, alter, or modify any existing statute.

▪ Constitution
- The PH Congress cannot simply amend or revise the Constitution without following strict rules provided by the
constitution under Article 17 and without ratification by the people. It is the mandate of the Filipino people.

SELF-EXECUTING AND NON-SELF-EXECUTING PROVISIONS

▪ Self-Executing Provisions
− These are the parts of the Constitution that can be enforced without the need for an enabling law. They are
complete in themselves and become operative without the aid of supplementary or enabling legislation.

− A constitutional provision is self-executing if the nature and extent of the right conferred and the liability
imposed are fixed by the constitution itself. Unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing.

▪ Non-Self-Executing Provisions
− non-self-executing provisions require an enabling law to be enforceable. These provisions command the
legislature to enact laws and carry out the purposes of the framers. Without an implementing statute, non-
self-executing provisions cannot be fully applied as a legal foundation. For example, Section 6, Article XIV of
the Philippine Constitution is a non-self-executing provision.

− The general rule in the construction of the Constitution is that its provisions are self-executing. However, by
jurisprudence, the Supreme Court defined which of the provisions are self-executing and which are not.

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 − In case of doubt, the Constitution should be considered self-executing rather than non-self-executing. This is
because if the constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the fundamental law.

➢ As defined, "a constitutional provision is self-executing if the nature and extent of the right conferred and the liability
imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of
its terms, and there is no language indicating that the subject is referred to the legislature for action."

➢ In Manila Prince Hotel v. Government Service Insurance System, it was ruled that all provisions of the Constitution are
presumed self-executing, because to treat them as requiring legislation would result in giving the legislature "the
power to ignore and practically nullify the mandate of the fundamental law." And this could result in a cataclysm. This
pronouncement notwithstanding, however, the Court has, in several cases, had occasion to already declare several
Constitutional provisions as not self-executory.

➢ In Tanada v. Angara, it was settled that the sections found under Article II of the 1987 Philippine Constitution are not
self-executing provisions. In fact, in the cases of Basco, Kilosbayan, Inc. v. Morato, and Tondo Medical Center Employees
Association v. Court of Appeals, the Court categorically ruled that Sections 11, 12, 13, 17 and 18 of Article II, Section
13 of Article XIII, and Section 2 of Article XIV, of the 1987 Philippine Constitution, respectively, are non-self-executing.
The very terms of these provisions show that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. And the failure of the legislature to pursue the policies embodied therein does not give rise
to a cause of action in the courts.

➢ In specific application to the present petitions, in Tolentino v. Secretary of Finance, the Court also ruled that Section 1,
Article XIV on the right of all citizens to quality education is also not self-executory. The provision "for the promotion of
the right to 'quality education' x x x [was] put in the Constitution as moral incentives to legislation, not as judicially
enforceable rights." Further, Section 6, Article XIV on the use of the Filipino language as a medium of instruction is also
not self-executory.

❖ Classification of a constitution.
→ It can be classified into different categories. It can be as classified as to its form, origin, and amendments.
▪ As to its form
1. Written – a written constitution is kind of constitution that has its dictums embodied in a single document or
set of documents. It is constitutions that is codified into a particular document.

2. Unwritten – an unwritten constitution that has its precepts scattered into several documents and there is no
single concrete document that embodies its principles.

▪ As to its manner of creation

1. Enacted or Conventional – it is one that was created through a systematic and strict method and mostly
deliberate. A body or commission is usually tasked to draft and enact a conventional constitution. It was
created on particular time and place.

2. Evolved or Cumulative – it arises from a political and legal evolution and not from a deliberate intent to frame
a constitution. There is no specific and detailed time or place on which the constitution was created.

▪As to its manner of amendment

1. Rigid or Inflexible – can be amended only through a rigorous and strict process. It is a kind of constitution that
is difficult to change.
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 2. Elastic or Flexible – one that can be amended merely through a congressional legislation. In short, it is kind of
constitution that is easy to change.

→ The PH Constitution can be classified as written, enacted, and rigid. It is written because the 1987 Constitution is
codified into a single document. It is enacted because there was deliberate intent to create it through compliance
of strict rules. And lastly, it is considered as rigid constitution because it can only be amended or revised by going
through an arduous set of rules that the constitution itself provides.

Vital parts of a sound written constitution.

→ The indispensable parts of a good written constitution are constitution of liberty, constitution of government, and
constitution of sovereignty.

1. Constitution of Liberty – it can be found in Arts. II, III, VI, V, and XII of the 1987 PH Constitution. They are provisions
concerning the civil and political rights of the citizens of the state. It also provides the safeguard for the continuous
enjoyment of these rights by the people.

2. Constitution of Government – It can be found in Arts. VI, VII, VIII, IX, X, XI of the 1987 Constitution. This outlines
the basic structure of the government. It provides the manner of election and selection of government official
across the edifice of the national government. It includes the power and functions of government with their
limitations.

3. Constitution of Sovereignty – Article XVII embraces the provisions. It outlines the strict rules that need to be
satisfied in order for a change in the constitution to be allowed. It contains provision that involve the people in the
ratification of the constitution.

THE CONSTITUTION AND THE COURT OF JUSTICE.

• JUDICIAL INQUIRY
➢ Courts cannot simply assert themselves and solve a particular Constitutional question or controversy. The
courts can only act when their jurisdiction is invoked. (Justice Cruz, 2007)

➢ However, before the court can truly acquire jurisdiction over a particular case, there must be compliance first
with the requisites of judicial inquiry, to wit:
1. There must be an actual case or controversy
2. The question of constitutionality must be raised by the proper party
3. The constitutional must be raised at the earliest possible time.
4. The decision of the constitutional question must be necessary to the determination of the case itself.

❖ Interpretation of the Constitution

→ The court in interpreting the constitution must search for the real intention of the framers of the constitution so
as to give effect to its true intendment. The constitution must also be interpreted in light of it becoming adaptive
to the changes in time.

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Note:
General rule, if the law is clear, interpretation is not proper. However, if there really exist an ambiguous then the
primary rule that needs to be applied is that the intention of the framers of the constitution must be followed.

❖ Declaration of Unconstitutionality
→ There are two (2) views regarding the effect of unconstitutionality of the statute, the (1) orthodox view and (2) the
modern view.

1. Orthodox view – an unconstitutional statute is not a statute at all. It does not possess the binding force of law.
It can give no right and cannot impose any sanction or obligation.

2. Modern view – it is less demanding compared to the orthodox view. The modern view does not require the
courts to invalidate an unconstitutional statute. The court merely refuse to recognize the statute itself.

• Doctrine of operative fact

→ The Doctrine of Operative Fact is a principle in law that recognizes the existence of a law or an executive act
prior to the determination of its unconstitutionality as an operative fact that produced consequences that
cannot always be ignored.

➢ This doctrine applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional
law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences that cannot always be ignored.

− The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those
who have relied on the invalid law¹. Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a
municipality in reliance upon the law creating it.

Example.
o Suppose a government passes a law that increases the minimum wage. Based on this law, a company raises
the salaries of its employees. A few months later, the law is challenged in court and is declared unconstitutional
because it was passed without proper legislative procedures.

Here is where the Doctrine of Operative Fact comes into play:

➢ If the doctrine is applied, the salary increases that the employees received while the law was in effect
would not have to be returned, because the law was considered an "operative fact" before it was
declared unconstitutional.

➢ If the doctrine is not applied, the company could potentially ask the employees to return the extra
money they received due to the salary increase, arguing that the unconstitutional law should not have
been in effect.

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 B. BRIEF HISTORY OF THE PHILIPPINE CONSTITUTION

• THE MALOLOS CONSTITUTION

➢ The Philippines has had a total of six constitutions since the Proclamation of Independence on June
12, 1898. In 1899, the Malolos Constitution, the first Philippine Constitution was drafted and adopted
by the First Philippine Republic, which lasted from 1899 to 1901.

➢ The Malolos Constitution remains to be the ONLY Constitution purely drafted by Filipinos, taking its
name from the Capital of the Filipino Revolutionary Government, Malolos Bulacan. The Malolos
Constitution was the first of its kind in Asia. It was the first democratic constitution that breathed life
into the first republican government in Asia. The constitution was framed in the spirit of democracy
and republicanism. It recognized the will of the people is the origin sovereign power. It acknowledges
the rule of law and regime of constitutionalism.

➢ It established a democratic, republican government with three branches - the Executive, Legislative
and the Judicial branches. It called for the separation of church and state. The executive powers were
to be exercise by the president of the republic with the help of his cabinet. Judicial powers were given
to the Supreme Court and other lower courts to be created by law. The Chief justice of the Supreme
Court was to be elected by the legislature with the concurrence of the President and his Cabinet.

➢ The Constitution is anchored in democratic traditions that ultimately had their roots in American soil.
It created a Filipino state whose government was "popular, representative and responsible.” The
constitution specifically provided for safeguards against abuses, and enumerated the national and
individual rights not only of the Filipinos and of the aliens.

➢ It provided a parliamentary form of government that was based upon the principles of separation of
powers and checks and balances among the three great branches of the government. It is also a
constitution that values individual rights as opposed to the dictatorial propensities of the state.

• THE 1935 CONSTITUTION

➢ The 1935 constitution, drawn up under the terms of the Tydings-McDuffie Act, which created the Philippine
Commonwealth, also served as a basis for an independent Philippine government from 1946 until 1973. The
1935 constitution seemed to serve the nation well. It gave the Philippines twenty-six years of stable,
constitutional government during a period when a number of other Asian states were succumbing to military
dictatorship or communist revolution.

➢ At first, the new colonizers governed PH Islands through organic acts of the American congress. There was the
Spooner amendments which delineate the powers of American government in governing the PH. There was
also the Philippine Bill of 1902 which gave the Filipino people to have their own legislative representative.

➢ The 1935 constitution, drawn up under the terms of the Tydings-McDuffie Act, which created the Philippine
Commonwealth, also served as a basis for an independent Philippine government from 1946 until 1973. The
1935 constitution seemed to serve the nation well. It gave the Philippines twenty-six years of stable,
constitutional government during a period when a number of other Asian states were succumbing to military
dictatorship or communist revolution.

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 • THE 1973 CONSTITUTION
➢ After the second world war, it was decades past already and the 1935 Constitution was still the fundamental
law. The 1935 was designed for the commonwealth government, it was not designed to fit in the changing
times. And so, in 1967 PH Congress called for a charter change, proposing amendments to the 1935
Constitution.

➢ Before the CONCON could finish its duty to draft the new constitution, Martial Law was declared by President
Marcos, Sr. on September 12, 1972. An environment hostile to liberalism was prevalent at that time, many
were arrested including some of the delegates to the CONCON who show discontent to the government.

➢ The ratification of the 1973 Cons proved to be problematic and controversial. The ratification date was set by
the President on Jan. 15, 1973 but was postponed until further notice. Probably for the reason that the
president knew the people will not ratify the constitution that will legitimize dictatorial regime. However, it
was still ratified.

➢ In Javellana v. Executive secretary, the SC finally settled all questions that besieged Filipinos regarding the
controversial ratification of the 1973 constitution. In that case, the SC agreed that there was no further judicial
obstacle to the new Constitution being considered in force and effect. The 1973 Constitution was then in full
force.

➢ There were several amendments made, but instead of creating stability, the regime of 1973 Cons was full of
unrest and volatility. This period of uneasiness forced President Marcos Sr. to order snap election, where
President Marcos Sr. was declared winner. This prompted Filipinos to start professing their anger and
frustration which escalated to EDSA Revolution.

• THE 1987 CONSTITUTION AND THE REVOLUTIONARY GOVERNMENT

➢ After Marcos Sr. was ousted, Corazon Aquino assumed presidency. She issued Proclamation No.3 promulgating
Freedom Constitution. It was actually provisional constitution, pending the making of the new constitution.

➢ On February 2, 1987, the 1987 was ratified by the Filipino people through a plebiscite held for that purpose.
The present Cons aims to protect the people from the arbitrary flexing of the government muscles. It serves
as a safeguard to libertarian rights of the Filipinos from which the sovereign powers flow.

➢ The 1987 Cons can be seen as a collection of rules, principles, and maxims that will make sure that the spirit
of democracy and republicanism shall always be preserved so that the future generations can still have a taste
of it.

C. AMENDMENDTS AND REVISIONS OF THE CONSTITUTION

Defining amendments and revisions

→ Under the 1935 and 1973 Constitutions, amendments and revisions were simply synonymous with each other.
However, that is no longer applicable under the present constitution.

➢ Justice Isagani Cruz defined “amendments as an isolated or piecemeal change only.” While, he defined “revision as a
revamp or rewriting of the whole instrument.”

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➢ An amendment envisages an alteration of one or few specific and separable provisions. (the guiding original intention
of an amendment is only to improve specific parts or provisions of the Constitution in order to meet the demands and
needs of modern times. Minor changes that will not affect the entirety of consti). Example, kind of change is an
amendment as to the term of office of a member of HOR

➢ In revision, the guiding original intention contemplates an entire revision or re-examination of the entire document or
of provisions of the constitution. (It refers to major changes in the constitution which will greatly affect the entirety of
the constitution.) Example, would be the change of the present presidential system to a parliamentary form of
government.

Lambino v. Comelec
→ The difference between an amendment and revision could be summarized into the following:
− An amendment refers to minor changes, while revision refers to major changes.
− An amendment entails changes in some specific provisions only, while revision involves a revamp that will
change the basic principles enshrined in the constitution.
− An amendment can be proposed by the Congress and by the People themselves, wile a revision can only be
proposed by congress.

THE AMENDATORY PROCESS.

Changing the fundamental law involves two steps or stages – (1) proposal stage; (2) ratification stage.

1. The proposal stage, demands how the constitutional change will be done. (It pertains to the manner by which the
FL will be modified) the draft of the proposed Constitutional changes will be made and later on, be submitted to
the people. Once the proposed changes are submitted to the people, the people must be given time to peruse the
document containing the draft. (usually done through publication in newspapers of general circulations.) After the
people have learned the proposed change, the people will now approved the new charter through the process of
ratification.

2. In ratification stage, the people are given the chance to elect or not elect the new constitution. The people has
still the final say when it comes to making a change in the FL.

ARTICLE XVII of the 1987 Constitution declares that:

Section 1.- Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

Section 2.- Amendments to this Constitution may likewise be directly proposed by the people through initiative upon
a 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 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 of the exercise of this right.

Section 3.- The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a
majority vote of all its Members, submit to the electorate the question of calling such a convention.

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 Section 4.- Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission
on Elections of the sufficiency of the petition.

❖ THE PROPOSAL STAGE

→ There are three (3) methods in order for charter change to be proper.
1) Constituent Assembly
2) Constitutional Convention
3) People’s Initiative
− The first two are called upon by the congress, and the last one is called upon by the people themselves.

1. CONSTITUENT ASSEMBLY
− The congress may upon a vote of three-fourth (3/4) of all its members can propose a constitutional change. This
mode of proposing ab amendment/ revision is generally called a constituent assembly.

− In this mode, the congress directly proposes a change in the constitution. It is also the same body that drafts the
proposal or the provisions or principles that will be change. This manner is more expeditious and cheaper
compared to the other modes of proposing a charter change, because there is no need to choose which will be
the persons that will constitute the commission or body that will draft the new constitution.

− The three-fourth (3/4) votes needed must come from Senate and the HOR voting separately. Nowhere in the
constitution can a provision be found that mentions about the two chambers voting separately. However, common
sense dictates that if the senate and the HOR will vote as one then it will result in an absurdity.

2. CONSTITUTIONAL CONVENTION
− A constitutional convention can be called by the PH Congress by 2/3 two-third votes of all its members, or by a
majority vote of all its members and submit to the electorate the question calling such a convention.

− There are at least two ways of calling a ConCon: the first one is to obtain a vote of 2/3 of ALL ITS MEMBERS, and
the second one is to obtain a majority vote in both Houses and then submit the question of calling ConCon to the
electorate.

− A ConCon is called by the congress but it is not the congress that will draft the proposed amendments. The ConCon
will be composed of delegates or representatives that will theoretically represents all the sectors in the society in
the drafting of the proposed changes in the constitution.

3. People’s Initiative

Article XVII, Section 2

“Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
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 under this

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 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 of the exercise of this right.”

− Amendments can be directly proposed by the people themselves through the so-called People’s Initiative. It is a
manner of amending the constitution through a direct act of the people themselves.

− It is a method under the 1987 Constitution that guarantees the participation of the people in proposing a
constitutional change. However, like other modes of proposing a change in the constitution the People’s Initiative
(PI) also has to go through a tough legal process for it to be effective. As constitution stated, these requirements
are:
1) A petition of at least 12% of the total number of voters
2) Of which every legislative district must be represented by at least 3% of registered voters within.

− It is important that the PI must be directly proposed by the people themselves. Theres is an element that need
to be followed, to wit:
1) The people themselves must be the ones who will author the petition and sign the entire proposal. No
agent or representative can sign on behalf of the people.
2) The full text of the proposed amendments must be embodied in the petition so that the people can
fully appreciate its content.

− Failure to satisfy these mandatory requirements is fatal to the legality of the PI. Reason is that, the people as the
author of the proposal must be able to fully appreciate it and know its contents. Without the documents containing
he proposal, the people will not be able to know what they are signing for. It could be a breeding ground for fraud
and deception.

Lambino Case:

A people’s initiative to change the constitution applies only to an amendment of the constitution and not to its
revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the
Constitution. Article XVII of the Constitution provides:

xxxxxxxxxxxxxxxxx

there can be no mistake about it. The framers of the constitution intended, and wrote, a clear distinction between
“amendments” and “revision” of the constitution. The framers intended, and wrote, that only Congress or a
Constitution Convention may propose revisions to the constitution. The framers intended, and wrote, that a
people’s initiative may propose only amendments to the Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to propose revisions to the constitutions, the people cannot
propose revisions even as they are empowered to propose amendments.”

❖ Ratifying the New Constitution

- This process renders a truism the maxim that the constitution is the mandate of the Filipino people. In this
stage, the people will be given the chance to elect the new constitution or not to elect it – this process is
called ratification.

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 - A plebiscite must be held in order to ratify the amendments of the constitution. As what the constitution
declared, a majority of the votes cast in the plebiscite that was held is needed to ratify the proposed changes
in the constitution.

o Plebiscite - is an electoral process by which an initiative on the Constitution is approved or rejected by

the people. It can be compared to an ordinary election, the only difference is that in plebiscite
changing the constitution is at stake, while ordinary elections public officials are being voted upon.

− The constitution provided a timeframe within which the plebiscite is to be held. It should not be earlier than
60 days so that the people will be given time to scrutinized the proposed amendments, and not later than 90
days so that it will not take too long, otherwise the defects of the constitution through which the goal of
amendment is aimed will not immediately cured and therefore defeat the purpose of the amendments.

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