THW strictly adopt the theory of originalism in interpreting the 1987 Philippine

Constitution as opposed to the theory of living constitutionalism.

1. Interpretation based on living constitutionalism defeats the constitutional principle

of separation of powers as the Supreme Court usurps the legislative powers of
Congress. It also violates the constitutional principle of checks and balances.
a. The Philippines, under the 1987 Constitution, adopted a presidential form
of government which highlights the principle of separation of powers
among the three departments – executive, legislative, and judiciary. The
legislative has the duty of creating laws and these laws are enforced by
the executive and interpreted by the judiciary. The power of judicial review
vested in the judiciary does not include the power to amend the
Constitution when particular provisions do not correspond to the changing
circumstances and views of today. The Supreme Court should act as a
body of judges and not as a creator or ruler of the Constitution. The duty
of the courts is restricted to the mere application or interpretation of our
laws. Such power should not mean “judicial supremacy,” rather it should
mean “constitutional supremacy” because their duty is to interpret the laws
in accordance with the written Constitution. In the words of George
Washington, “[i]f in the opinion of the people the distribution or
modification of the constitutional powers be in any particular wrong, let it
be corrected by an amendment in the way which the Constitution
designates. But let there be no change by usurpation; for though this in
one instance may be the instrument of good, it is the customary weapon
by which free governments are destroyed.”1
b. “By liberal construction of statutes, courts from the language use, the
subject matter, and the purposes of those framing them are able to find
their true meaning. There is a sharp distinction, however, between
construction of this nature and the act of a court in engrafting upon a law
something that has been omitted which someone believes ought to have
been embraced. The former is liberal construction and is a legitimate
exercise of judicial power. The latter is judicial legislation forbidden by the
tripartite division of powers among the three departments of government,
the executive, the legislative, and the judicial.”2
c. The Preamble of the 1987 Constitution expressly provides, “…and secure
to ourselves and our posterity the blessings of independence and
democracy under the rule of law…”3 It means that government officials
have only the authority given them by law and defined by law. 4 Hence, the
rule of law should not be defined subject to the temper of the times. The
Constitution expressly provides for the powers of each department of the
government. Any usurpation by one department over the other is deemed
unconstitutional and lacking of jurisdiction.

2. Interpretation based on living constitutionalism also defeats the constitutional

mandate on the amendment or revision of its provisions.
a. The Constitution itself requires that any amendment to, or revision of, this
Constitution may be proposed by the Congress, upon a vote of three-
fourths of all its Members; or a constitutional convention.5 The significance
of this special article on amendment and revision indicates that the
Philippines has adopted a rigid type of Constitution in which it cannot be
changed by ordinary legislation but only by a more cumbersome process
1
George Washington, The Address of Gen. Washington to the People of America in His Declining the Presidency of
the United States (1796)
2
Tañada v. Yulo, G.R. No. L-43575, May 31, 1935
3
Preamble, The 1987 Constitution of the Philippines
4
Joaquin G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 2.
5
Article 17, The 1987 Constitution of the Philippines
 of change.6 The Constitution may not be changed without following the
process prescribed by it because by adopting the article on amendments
and revision, the people themselves have imposed on themselves a
constitutional limitation on their capacity to dispose of the Constitution.7
b. To allow the interpretation of our Constitution based on living
constitutionalism would defeat the purpose of this constitutional provision
for providing a more complicated process in changing the language and
meaning of its provisions. This way of interpreting the Constitution would,
per se, be unconstitutional because it renders Article 17 of the 1987
Constitution ineffective.

3. The theory of originalism preserves the original intent of the makers of the
Constitution.
a. The intent to be ascertained in an ambiguous provision of the Constitution
should not be according to the changing circumstances and views of
today, but should be according to the intention of the lawmakers then.
Since they were the ones who making the Constitution, their intent and
purpose in making it should always prevail whenever there is doubt as to
its provisions.
b. There are three well-settled principles of constitutional
construction: first, verba legis, that is, wherever possible, the words used
in the Constitution should be given their ordinary meaning except where
technical terms are employed; second, where there is ambiguity, ratio
legis est anima, meaning that the words of the Constitution should be
interpreted in accordance with the intent of its framers; and third, ut magis
valeat quam pereat, meaning that the Constitution is to be interpreted as a
whole.8 These cardinal rules prevail when the wordings of the Constitution
are subject to interpretation. It should always be interpreted according to
the intent given by its legislators to ascertain their rationale in drafting and
enacting the Constitution which continues to be binding and in force. In
doing so, we defer not to the “letter that killeth” but to the “spirit that
vivifieth,” to give effect to the lawmakers will.9
c. The Preamble serves as a useful aid in ascertaining the meaning of
ambiguous provisions in the body of the Constitution because it serves a
source of light for setting down the origin, scope and purpose of the
Constitution. Joaquin Bernas, S.J., who was a member of the 1986
Constitutional Commission, states that the word “love” in the Preamble is
a monument to the love that prevented bloodshed in the Februrary
Revolution; the mention of “truth” is a protest against the deception which
characterized the Marcos regime; and “peace” is mentioned last the fruit of
the convergence of truth, justice, freedom and love. 10 As one of the
lawmakers of the 1987 Constitution, such intent expressed by him should
always prevail because it shows their purpose in enacting the 1987
Constitution, and such intent should be preserved as to prevent changes
on mere sentiments or opinions of society.

4. Interpretation based on living constitutionalism provides for more abuse since

there is no origin or source of interpretation once we abandon its original intent.
a. Optima statuli interpretatix est ipsum statutum. The best interpreter of the
statue is the statue itself. Hence, in the interpretation of statutes, what is of
prevailing importance is to discover the legislative intent why the law is

6
Joaquin G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 541.
7
Ibid., p. 542.
8
Francisco v. HRET, G.R. No. 160261, November 10, 2003
9
Cometa vs. Court of Appeals, 351 SCRA 294 (2001)
10
Joaquin G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 1.
 enacted. This intent is primarily determined from the language of the
statute.11 In the same way, the provisions of the Constitution, if doubtful,
should be interpreted according to the intent given by those who created
it. It should not resort to changing circumstances, but should resort to the
rationale achieved by the makers in enacting it.
b. Living constitutionalism does not provide a source of its interpretation
other than mere circumstances and views. It necessarily implies that since
there is no actual basis of interpretation, there is also no established point
or extent of such interpretation. There is danger in adopting this theory
because there is no assurance as to its origin and scope. Such changing
circumstances and views are not based on legislative enactments or
written codifications, but are merely based on opinions and sentiments. In
the words of Justice Scalia, an originalist, “if it’s a Constitution that
changes, you could give it whatever meaning you want and when future
necessity arises, you’d simply change the meaning.”12
c. Since there is no fixed basis for its interpretation, our interpreters will have
a difficult time in establishing its rationale as to their interpretation of the
Constitution. There is impossibility of achieving any consensus on what,
precisely, is to replace the original meaning once it is abandoned.13 We
must also consider that the Supreme Court is merely composed of human
beings susceptible of error, in the words of Justice Isagani Cruz, “…is not
an ivory tower occupied by demigods but not an infallible institution
composed of persons slightly higher than their fellowmen, perhaps, but
also showing their foibles and failings.”14

5. Interpretation based on living constitutionalism gives rise to uncertainty and

instability in our legal system.
a. “As any human production, our Constitution is of course lacking perfection
and perfectibility, but as much as it was within the power of our people,
acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific
limitations and restrictions provided in the said instrument.”15 These
specific limitations and restrictions expressed by the Constitution were to
keep the passions of the people in check and to limit the powers of the
State against tyranny. The Constitution provides for an objective meaning,
not a subjective one open to changes determined by mere circumstances
and opinions.
b. The doctrine of stare decisis is based on the principle that once a question
of law has been examined and decided, it should be deemed settled and
closed to further argument.16 It requires the court to decide cases with
similar facts and issues in the same way to provide certainty and stability
in our legal system. In the same way, the Constitution should be
interpreted, not according to changing circumstances, but according to its
written language to also provide certainty and stability. If we adopt the
theory of living constitutionalism, there would always be uncertainty
coming from unpredictable circumstances which would also be our basis
for interpretation.

11
Rolando Suarez, Statutory Construction (2015)
12
Antonin Scalia, Originalism: The Lesser Evil (1989)
13
Ibid.
14
Wen-Chen Chang, Constitutionalism in Asia: Cases and Materials (2014), pp. 524-525
15
Angara v. Electoral Commission, 63 Phil. 139
16
Castillo v. Sandiganbayan, 427 Phil. 785, 793 (2002)
 6. There is no need to adopt the theory of living constitutionalism because judicial
decisions which apply or interpret the Constitution or our laws already form part
of the legal system of the Philippines.
a. Judicial decisions applying the laws or the Constitution shall form part of
the legal system of the Philippines.17 Judicial decisions, though not laws,
are nonetheless evidence of what the laws mean, and it is for this reason
that they are part of the legal system of the Philippines. Judicial decisions
of the Supreme Court assume the same authority as the statute itself.18
These judicial decisions are precedence. Hence, such should not be
merely stricken off due to changing circumstances.
b. The Constitution and our laws are to be interpreted or construed in such a
way that would promote the welfare of the State and the people, and such
can be done through judicial decisions by the interpretations of the court. If
we allow interpretation based on living constitutionalism, we risk the
possibility that judges will mistake their own predilections for the law. “The
inevitable tendency of judges to think that the law is what they would like it
to be will…cause most errors.”19
c. Although it is true that the Constitution does not embrace everything that
is needed to be covered in order to embrace all the needs of our society,
we must also recognize the difficulty in interpreting based on changing
circumstances because of the variety of interpretations.

17
Article 8, Civil Code of the Philippines
18
Philippine Trading Corporation v. Commission on Audit, G.R. No. 205837, November 21, 2017
19
Antonin Scalia, Originalism: The Lesser Evil (1989)