Philippine Bill of 1902

The US Congress now in control of the Philippines, ratified all the organic acts of the

President, in order to prevent disruption of government, and on 1 July 1900, passed the

Philippine Bill of 1902, which was to be organic act of the Philippines from 1902 to 1906. The organic act
introduced significant provisions to constitutional history.

The Philippine Commission was the upper house. It was under the Governor-General who retained all the
executive power, including the power to suspend the writ of habeas corpus upon recommendation of the
Philippine Commission.

It established an elective lower house called the Philippine Assembly, composed entirely

of Filipinos. It called for the first election in the Philippines to fill up, the membership in the

lower house, as soon as the Philippine insurrection stopped and there was a condition of general

peace, except in the Moro and Non-Christian provinces.

A census was taken and completed on 28 March 1903 and with a certification of peace

and of Filipino acceptance of the US government made by the Philippine Commission on 29

March 1907, the election for the Philippine Assembly was conducted on 10 July 1907, with

Osmena as speaker.

The Bill also defined for the first time who the citizens of the Philippines were. They

were all the inhabitants of the Philippine islands who were subjects of Spain as of 11 April

1899, who continued to reside therein, and all the children born subsequent thereto. This

definition is still good law today.

Jones Law

On 29 August 1916, the US Congress passed the Jones Law, otherwise known as the

Philippine Autonomy Act.

It established a tripartite government with real separation of powers; this was the

prototype of our present set-up. The executive power was in the hands of an American

Governor-General, who was independent of the Legislature, and who was given the power to

suspend the writ of habeas corpus and impose martial law without the recommendation of the

Legislature. The Legislature was composed of the Senate and the House of Representatives, all

composed of Filipinos. The judiciary continued to be made up of the Supreme Court, the CFIs

and Justice of Peace Courts.

Under this set-up, while the Filipinos has all the legislative power, the Americans had all

the executive power and thus, also the control of the government. Thus, in the Board of Control

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(National Coal Corporation) cases, the US Supreme Court ruled, despite the dissent of Holmes

and Brandeis, that the President of the Senate and the Speaker of the House could not vote the

stocks of the NCC and elect its directors because this was a political function. Only the

Governor-General could vote the government shares, said the court.

The definition of who were citizens of the Philippines first enunciated in the Philippine

Bill of 1902, was carried over by the Jones Law.

Tydings-McDuffie Law

Although this was not an organic act, it is important in the constitutional history of the

Philippines because it was to be the enabling statute, providing the mechanism whereby the

constitution of an independent Philippines could be adopted. The law, upon its acceptance by

the Senate and House of Representatives of the Philippines, provided for (i) the calling of a

Constitutional Convention to draft a Constitution for the Philippines, (ii) the adoption of a

Constitution that established a republican government, with a Bill of Rights, and a separation of

church and state, (iii) the submission of the draft to the US President for certification that the

Constitution was in conformity with the conditions set by the Tydings-McDuffie Law, and (iv)

its ratification by the people in a plebiscite. Complete independence was to take place ten (10)

years after its effectivity.

1935 Constitution

Accordingly, on 30 July 1934, an election was held to choose the delegates to the

Constitutional Convention. Claro M. Recto was elected President of the Convention. On 8

February 1935, the Concon approved the draft. On 23 March 1935, the draft was certified by the

President, Franklin Delano Roosevelt as conforming to the Tydings-McDuffie Law. On 14 May

1935, it was ratified by the people in a plebiscite, with the provisions on the qualifications of the
President, Vice-President and members of Congress taking effect upon ratification. In September

1935, the first election under the 1935 Constitution was conducted with Manuel Luis Quezon as

President and Sergio Osmena as Vice- President.

On 15 November 1935, upon the inauguration of the Commonwealth, the 1935

Constitution took effect. This Constitution was to serve as the charter of the Commonwealth,

and upon withdrawal of US sovereignty, of the Republic.

The Constitution provides for a tripartite government, with the executive lodged in the

President who had a six-year term, the legislative in a unicameral National Assembly, and the

judiciary in a Supreme Court, CFIs and Justice of Peace Courts as before.

In 1940, it was amended to provide for (a) a bicameral Congress with a Senate and a

House of Representatives; (b) a term of four years for the President, but with re-election and (c)

the establishment of an independent constitutional body known as the Commission on Elections.

War ensued, and the Philippines was so devastated that the declaration of its

independence, due 15 November 1945 had to be postponed. At any rate, on 23 April 1946, the

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election of the first officials of the Philippine Republic was held, and on 4 July 1946, the

Republic was inaugurated and the Philippines became "politically" independent of the US.

Theoretically, to an extent that sovereignty is never granted to a people but is earned by

them as they assert their political will, then it is a misnomer to say that 4 July 1946 was the day

US granted independence to the Philippines. More appropriately, it was the day when the US

withdrew its sovereignty over the Philippines, thus giving the Filipino people an occasion to

assert their own independence.

But not "economically". On 30 April 1946, one week after the election, the US Congress

passed the Bell Trade Act which would grant Philippine prime exports entry to the US free of

customs duties from 1946 to 1954, and a gradual increase in duties from 1954 to 1974 (LaurelLangley

agreement), provided that the Philippines would grant US citizens and corporations the
same privileges, and in addition, the right to explore natural resources of the Philippines in parity

with the Filipinos, and to operate public utilities. This must be accepted by Congress, embodied

in an Executive Agreement, and reflected as an amendment in the Constitution.

The Senate approval of this bill gave rise to the case of Vera v Avelino, 77 Phil 192

(1946). The Senate then had 11 Nacionalistas and 13 Liberals. Three Nacionalista Senatorselect

(Vera, Diokno and Romero), known to be against the Bell Trade Act, were prevented by the

rest of the Senate, in what is known as "exclusion proceedings," on grounds that their elections

were marred with fraud. The political motivation was clear but the SC was conned into lifting

the injunction it issued for the withholding of the suspension, because of the unfulfilled promise

that the Senate would not carry out the suspension. With the balance of power offset, the Bell

Trade Act was passed. Subsequently, the SC had to dismiss the petition on the ground that the

principle of separation of powers, it could not order a co-equal branch to reinstate a member.

The Senate authorized President Roxas to enter into an Executive Agreement, which he

did on 3 July 1946, the eve of the declaration of Philippine Independence.

Then came the amendment of the Constitution in order to include the Parity Rights

Agreement, which gave rise to the case of Mabanag v Lopez Vito, 78 Phil 1 (1947). Under the

Amendatory Provisions of the 1935 Constitution, Congress, acting as constituent body, needed

3/4 vote to propose an amendment to the Constitution. But with the three Senators still

suspended, only the 21 remaining were used as the basis for computing the 3/4 requirement.

When this was raised in court, it begged off from ruling on the ground that it was a political

question. It also used the Enrolled Bill Theory.

So with the amendment proposed, it was subsequently ratified on 5 March 1947.

The third time the Constitution was amended (1940, 1947) was in 1967. A Resolution of

both houses provided for (a) the amendment of the Constitution by a Convention, (b) the increase

of seats in the House of Representatives to make the Concon sufficiently representative, and (c)

allowing members of the House as delegates without forfeiting their seats. The first was

approved, the second and third were rejected. This became the subject matter of Gonzales v

COMELEC.

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Election of delegates to the Concon took place on 10 November 1970. Then the ConCon

met on 1 June 1971. Before it finished its work, it came up with a resolution calling for an

amendment to the 1935 Constitution reducing the voting age from 21 to 18, so that a wider base

could vote in the ratification of the Constitution then being drafted. A plebiscite was set by the

COMELEC for 8 November 1971 but this was enjoined by the SC in the case of Tolentino v

COMELEC, the court ruling that a piece-meal amendment was not allowed by the 1935

Constitution since it provided that the amendments were to be ratified at "an election" which

meant only one election. The Court upheld its jurisdiction over the ConCon by arguing that

since the Concon derived its power from the Constitution, it was thus limited by the Constitution.

But it was subsequently overtaken by Martial Law. On 30 November 1972, the

Convention submitted its "draft" to the President, who called on a plebiscite to ratify the

Constitution. This was questioned in the case of Planas v COMELEC, 49 SCRA 105 (1973) on

the ground that there can be no freedom of expression under Martial Law. But the case was

rendered moot and academic when the President cancelled the plebiscite and instead held a

citizens' assembly on 10 to 15 January, 1973. On 17 January 1973, the President came up with a

proclamation that the Constitution had come to full force and effect after its overwhelming

ratification by the people in a viva voce vote.

1973 Constitution

The validity of the ratification process was questioned in the case of Javellana v

Executive Secretary, 50 SCRA 30 (1973) but the failure of the SC to come up with the necessary

votes to declare the act as unconstitutional forced it into the conclusion that "there are no further

obstacles to considering the constitution in force and effect."

The 1973 Constitution was amended four times.

The first, in 1976, gave the President, legislative powers even if the Interim Batasang

Pambansa was already operating.

The second, in 1980 was not significant. It merely raised the retirement of justices of the
SC from 65 to 70 as to keep Fernando for five more years.

The third, in 1980 changed the form of government from Parliamentary to Presidential.

The fourth, in 1984, responded to the succession problem by providing for a VicePresident.

The start of the end of the Marcos years, of course, could be treated as early as 21

August 1983. But its immediate precursor was the Snap Election which the President was forced

to call and set on 7 February 1986 to respond to the clamor for popular mandate.

The validity of the "Snap Election Law" called by the Batasang Pambansa was raised in

the case of Philippine Bar Association v COMELEC, 140 SCRA 455 (1985). The issue was

raised because of the conditional letter of resignation sent by Mr. Marcos to the Batasan, making

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his resignation effective only upon (i) the holding of a Presidential election, (ii) the proclamation

of a winner, (iii) the assumption into office by the winning candidate. It was contended that a

conditional resignation was not allowed under the 1973 Constitution, for it did not create a

vacancy, and without a vacancy, there was no reason to call for an election. But the SC failed to

issue a preliminary injunction to enjoin the COMELEC from preparing for the election, thus

making "the initially legal question into a political one." In the meantime, the political parties

have started campaigning and the people were so involved in the election that to stop it on legal

grounds would frustrate their very will. And so, failing to come up with the majority to hold the

Snap Election Law unconstitutional, the SC could not issue the injunction prayed for. The

election went ahead.

The rest is history. The results of the election were proclaimed by the Batasan, naming

Marcos and Tolentino as the winners. But the February 2 to 25, 1986, EDSA revolution took

place. On 25 February, Marcos was proclaimed in Malacanang by Makasiar, while Aquino was

proclaimed in Club Filipino by Teehankee. Later that evening, Marcos fled to Hawaii.

A. The February 1986 Revolution and the Proclamation of Provisional Constitution.

Freedom Constitution
What was the basis of the Aquino government? Did it assume power pursuant to the

1973 Constitution, or was it a revolutionary government?

Proclamation No. 1, 25 February 1986 (Provisional government).-- But Proclamation

No. 3 which announced the Provisional Constitution, seemed to suggest that it was a

revolutionary government, since in one of its whereases it announced that the "new government

was installed, through a direct exercise of the power of the Filipino people assisted by units of

the New Armed Forces," referring to the EDSA revolution.

The better view is the latter view. The Aquino government was not an offshoot of the

1973 Constitution for under that Constitution, a procedure was given for the election of the

President --- proclamation by the Batasan --- and the candidate Batasan proclaimed was Marcos.

Lawyers League v Aquino (GR Nos. 73748, 73972 & 73990, May 22, 1986).-- This

view was affirmed in Lawyers League v Aquino where the legitimacy of the Aquino government

is questioned on the ground that it was not established pursuant to the 1973 Constitution. The SC

ruled that petitioners had no personality to sue and their petition states no cause of action. "For

the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of

politics where only the people of the Philippines are the judge. And the people have made the

judgment; they have accepted the government of President Aquino which is in effective control

of the entire country so that it is not merely a de facto government but in fact and law a de jure

government. Moreover, the community of nations has recognized the legitimacy of the present

government. All the eleven members of this Court as reorganized, have sworn to uphold the

fundamental law of the Republic under her government."

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The Aquino government was a result of a "direct state action." It was not as if a small

group revolted and succeeded in wresting power in the end. Rather, the entire state revolted and

overthrew the government, so that right from the beginning, the installation was already lawful

and the government was at all times de jure.

In this regard, it must be noted that there is no such thing as a constitutional right of

revolution. A revolution, from the point of view of a State, is always lawful since a State can

never go wrong; it can change its government in whatever way the sovereign sees fit. But this

right of revolution, inherent in sovereignty, cannot be recognized in a Constitution, for this

would be self-destructive. The nature of a Constitution is to set-up a government and provide for

an orderly way to change this government. A revolution contradicts this nature.

Proclamation No. 3, March 25, 1986 (Provisional Constitution).-- At any rate, the

Provisional Constitution or Freedom Constitution was adopted on 25 March 1986 through

Proclamation No. 3. It abrogated the legislative provisions of the 1973 Constitution, modified

the provisions regarding the executive department, and totally reorganized the government. (Its

use of the 1973 Constitution, however, is not be to construed that it was a continuation thereof.)

Then it provided for the calling of a Constitutional Commission, composed of 30 to 50 members

appointed by the President within 60 days. (In our history, all major constitutions --- Malolos,

1935, 1971 --- were drafted by elected delegates.)

The President appointed 48 Commissioners, who worked on the Constitution from 1

June to 15 October 1986. The draft was submitted to the people in a referendum on 2 February

1987. On 11 February 1987, the President, through Proclamation No. 58, announced its

overwhelming ratification by the people and that, therefore, it had come into force and effect.

In Re: Saturnino Bermudez (145 SCRA 160)(1960).-- In the case of In Re: Saturnino

Bermudez , the SC held, quoting the previous case of Lawyers League v Aquino, that:

[T]he legitimacy of the Aquino government is not a justiciable matter. It belongs

to the realm of politics where only the people of the Philippines are the judge. And the

people have made the judgment; they have accepted the government of President Aquino

which is in effective control of the entire country so that it is not merely a de facto

government but in fact and law a de jure government. Moreover, the community of

nations has recognized the legitimacy of the present government. All the eleven members

of this Court as reorganized, have sworn to uphold the fundamental law of the Republic

under her government.

B. Adoption and Effectivity of the present Constitution

Provisional Constitution, Art. V.

ARTICLE V

ADOPTION OF A NEW CONSTITUTION

Section 1. Within sixty days from the date of this Proclamation, a Commission shall be

appointed by the President to draft a New Constitution. The Commission shall be composed of not

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less than thirty nor more than fifty natural born citizens of the Philippines, of recognized probity,

known for their independence, nationalism and patriotism. They shall be chosen by the President

after consultation with various sectors of society.

Section 2. The Commission shall complete its work within as short a period as may be

consistent with the need both to hasten the return of normal constitutional government and to drat a

document truly reflective of the ideals and aspirations of the Filipino people.

Section 3. The Commission shall conduct public hearings to insure that the people will have

adequate participation in the formulation of the New Constitution.

Section 4. The plenary sessions of the Commission shall be public and recorded.

Section 5. The New Constitution shall be presented by the Commission to the President who

shall fix the date for the holding of a plebiscite. It shall become valid and effective upon ratification

by a majority of the votes cast in such plebiscite which shall be held within a period of 60 days

following its submission to the President.

1987 Constitution, Art. XVIII, sec. 27.

Art. XVIII, Sec. 27. This Constitution shall take effect immediately upon its

ratification by a majority of the votes cast in a plebiscite held for the purpose and shall

supersede the all previous Constitutions.

The foregoing proposed Constitution of the Republic of the Philippines was

approved by the Constitutional Commission of 1986 on the twelfth day of October 1986,

and accordingly signed on the fifteenth day of October 1986 at the Plenary Hall, National
Government Center, Quezon City, by the Commissioners whose signatures are hereunder

affixed.

Proclamation No. 58 (Proclaiming the Ratification of the 1987 Constitution), February 11, 1987

De Leon v Esguerra, 153 SCRA 602 (1987.)

The 1987 Constitution took effect on 2 February 1987.

F: The case arose due to Art. III, Sec. 2 of Proclamation No. 3, which provided that: "All

elective and appointive officials and employees under the 1973 Constitution shall continue in office

until otherwise provided by proclamation or executive order or upon the designation or appointment

and qualification of their successors, if such appointment is made within a period of one year from 25

February 1986."

De Leon was a barrio captain in Taytay, Rizal. On 9 February 1987, he was replaced by the

MLG (DLG). So the question arose as to when the 1987 Constitution took effect. If it took effect on

2 February, the replacement was no longer valid, since Proclamation No. 3 would have been

superseded. But if it took effect on 11 February (the date of proclamation), the replacement would

have been valid.

The SC, consulting the proceedings of the Concom, ruled that the intent of the

framers of the Constitution was to make it effective on the date of its ratification. Art.

XVIII, Sec. 27 clearly provided that "this Constitution shall take effect immediately upon

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its ratification by a majority of the votes cast in the plebiscite." The 1987 Constitution was

ratified in a plebiscite on Feb. 2, 1987, superseding the Provisional Constitution.

Consequently, after that date, respondent OIC Governor could not designate respondents

to the elective positions occupied by petitioners. Petitioners must now be held to have

acquired security of tenure.

The dissenting opinion pointed out that by contemporaneous construction, the 1973

Constitution had a similar provision as the present one in issue (Art. XVII, Sec. 16, This
Constitution shall take effect immediately upon its ratification by a majority of the votes

cast in a plebiscite), and yet it took effect on the day of the proclamation. The 1981 and

1984 amendments contained similar provisions (valid when approved), and yet the practice

has always been to make the date of proclamation, the date of effectivity.

Furthermore, if the effectivity was 2 February, then the appointments made by the

President to CA posts after that date would be invalid for they were not submitted to the

Judicial

and Bar Council. On this point, however, Teehankee noted that the President issued the

appointments in the end of January.

A concurring opinion noted the debate between Davide (date of proclamation) and

Bernas (date of ratification), and Davide's comment that he was giving up due to tyranny

of numbers.

VV: The SC was correct for that was the clear intent of the framers. The ones to

be blamed are the framers themselves. Effectivity should really be the date of

proclamation.

One, how can one can be expected to comply with the provisions of the Constitution

when, prior to its proclamation, there is no way to determine if it has been ratified or not?

Should the Director of Prison continue the scheduled electrocution of a death row convict

on 3 February in view of the abolition of capital punishment in the 1987 Constitution; if he

does, he would technically be violating the constitution under the above holding. If he does

not, he would be in dereliction of duty, in case the constitution is not ratified.

Two, no analogy can be made between the election to office of a public officer who

is deemed elected on the day of election), and the effectivity of the constitution, because a

public officer, though deemed elected, does not assume office on the day of his election, not

even on the day of his proclamation.