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to be established under a constitution drafted

and ratified by the Filipino people, the


Philippines already had a solid body of
Introduction constitutional jurisprudence on which to build.
o It was through the authority of this law
♦ “Constitution” – a written instrument by which the that a Constitutional Convention was
fundamental powers of government are established, called (for the creation of the 1935
limited and defined, and by which these powers are Constitution). It lasted from July 30,
distributed among several departments, for their more 1934 to February 8, 1935.
safe and useful exercise, for the benefit of the body o March 3, 1935 – U.S. President
politic approved the draft
o May 14, 1935 – Filipino electorate
ratified the same by an overwhelming
♦ Fundamental purpose of a constitution: a grant and majority vote.
a limitation of governmental authority o November 15, 1935 – Commonwealth
♦ The Constitution is the supreme written law of the land government established by the
♦ Classifications of the constitution: written and unwritten; Constitution became operative
flexible and rigid o July 4, 1946 – Philippine
• Classification as to the extent to which
Independence!!! 
constitutions are observed as norms of
governmental action: • Many felt a certain unease in
that the Philippines, already
o Normative constitution – its norms independent at the time,
direct governmental action, and continued to operate under a
government habitually adjusts its Constitution that had been
actions to the norms  like a suit that fashioned under colonial
fits and is actually worn auspices. Hence, the agitation
o Nominal constitution – cannot yet be for a thorough overhaul of the
fully operative because of existing 1935 Constitution arose.
socio-economic conditions  like a suit
in storage waiting for the wearer to ♦ The 1973 Constitution
grow to the proper size • March 16, 1967 – Phil. Congress, pursuant to
authority given to them by the 1935
o Semantic constitution – the primary Constitution, passed Resolution No. 2 (later
purpose of a constitution is to limit amended by Resolution No. 4 passed on June 17,
power: this does the opposite. It is a 1969) called for a Convention to propose
tool for the perpetuation of power in the amendments to the Constitution.
hands of power holders  not a suit, • November 20, 1970 – election of delegates to
but a disguise the Convention
♦ A constitutional document may be divided into 3 • June 1, 1971 – 1971 Constitutional Convention
parts: (ConCon) began
• September 21, 1972 – martial law was declared.
• Constitution of government – provisions that set Even though some delegates were placed under
up the governmental structure detention, went into hiding or voluntary exile,
• Constitution of liberty – guarantee individual the ConCon continued its deliberations under an
fundamental liberties against governmental atmosphere of fear and uncertainty.
abuse • November 29, 1972 – ConCon approved its
Proposed constitution
• Constitution of sovereignty – outline the process • November 30, 1972 – the Pres. issued
whereby the sovereign people may change the Presidential Decree No. 73: submitting to the
constitution Filipino people for ratification or rejection the
♦ “Constitutional law” – body of rules resulting from the Constitution of the Republic of the Philippines
interpretation by a high court of cases in which the proposed by the 1971 ConCon and setting the
validity, in relation to the constitutional instrument of date of the plebiscite on January 15, 1973
some act of governmental power… has been challenged. • January 7, 1973 – General Order No. 20 was
issued by the President directing that the said
• “Judicial review” – involves the power and plebiscite be postponed until further notice.
duty on the part of the Court pronouncing void • P.D. No. 86 – organized the “Citizen’s
any such act which does not square with its own Assemblies”. Said assembly was asked certain
reading of the constitutional instrument. (power questions, such as “Do you approve of the New
and duty to make void acts which are not in Constitution?”
keeping with the Constitution) • January 17, 1973 – the Supreme Court was still
♦ Constitutionalism dates back to the Treaty of Paris hearing arguments to enjoin the holding of the
transferring Spanish sovereignty over the Islands to the plebiscite, however, Proclamation No. 1102 was
U.S. Thereafter, Philippine constitutional law grew from made by the President, announcing that the
a series of organic documents enacted (stated below) by proposed Constitution had been ratified by an
the U.S. government. overwhelming vote of the members of the
• Pres. McKinley’s Instruction to the Second Citizen’s Assemblies
Philippine Commission • March 31, 1973 – a divided SC ruled that “there
• Philippine Bill of 1902 is no further judicial obstacle to the new
• Philippine Autonomy Act of 1916 Constitution being considered in force and
effect”
♦ The 1935 Constitution • The Executive Dept., with vigor and all the
• Tydings-McDuffie Law – provided for the
resources at its command, proceeded to
implement the new Constitution
establishment of a Commonwealth Government

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• The Legislative Dept. was nowhere to be found participation in the formulation of the
to object New Constitution.
• Ordinary mortals lived and found their fortunes o Sec. 4: The plenary sessions of the
(and misfortunes) under the new Constitution Commission shall be public and fully
• In 1976, the Constitution was amended to give recorded.
birth to the interim Batasang Pambansa (a o Sec. 5: The new Constitution shall be
legislative body which functioned no better than presented by the Commission to the
as a rubber stamp for the will of the President President who shall fix the date for
which found a new authoritarian vehicle in the holding of a plebiscite. It shall
Amendment 6). Later on, the interim BP gave become valid and effective upon
way to a regular BP. ratification by a majority of the
• In 1981, the Constitution was amended again to votes cast in such which shall be held
depart from the parliamentary to the within a period of 60 days following
presidential form. its submission to the President.
• Plebiscite was held on
♦ The FREEDOM Constitution February 2, 1987
• February 15, 1986 – the BP, in the exercise of
powers given by the 1973 Constitution,
proclaimed Marcos as the president, amidst PREAMBLE
widespread protest.
• February 22, 1986 – Minister of National Defense
Enrile and Vice Chief of Staff General Ramos
“We, the sovereign Filipino people,
initiated a revolt against Marcos imploring the aid of Almighty God, in order
o The civilian support given to the to build a just and humane society and
outnumbered Ramos-Enrile forces establish a Government that shall embody
caused other military elements to
switch their support to Pres. Aquino
our ideals and aspirations, promote the
• February 24, 1986 – after the Air Force started to common good, conserve and develop our
support Aquino, it was deemed over for Marcos patrimony, and secure to ourselves and our
and his allies posterity the blessings of independence and
• February 25, 1986 – in defiance of the provisions democracy under the rule of law and a
of the 1973 Constitution and without the
sanction of the BP, Aquino was proclaimed regime of truth, justice, freedom, love,
president at the Club Filipino and was equality, and peace, do ordain and
immediately sworn into office by Senior promulgate this Constitution.”
Associate Justice of the SC Claudio Teehankee
o At the same time, Marcos was being
sworn into office by Chief Justice Ramon The Preamble
Aquino at Malacañang. The same night, Should the Preamble be written before or after the
he and his family and supporters went completion of the Constitution?
into exile. 1. Preamble should be formulated after the completion
• Pres. Aquino chose to turn her back on the 1973 of the Constitution:
Constitution whose officials had denied her the • Preamble – a distillation of the ideals and
presidency. She chose instead to govern under a aspirations of the Filipino people
Provisional Constitution, which was Proclamation • Since it is a distillation of the ideals and
No. 3 or the Freedom Constitution aspirations, it should not be finalized until after
those ideals and aspirations had been
♦ The 1987 Constitution hammered out.
• 1986 ConCon: June 1, 1986 to October 15, 1986
• Article 6 of the Freedom Constitution: 2. Preamble can be formulated even before the
o Sec. 1: Within 60 days from date of completion of the Constitution:
this Proclamation, a Commission shall • Commissioners themselves were in a position to
be appointed by the President to draft a enumerate the ideals and aspirations of the
New Constitution. The Commission shall Filipino people, a Preamble formulated in
be composed of not less than 30 and advance could serve as a guide for the rest of
not more than 50 natural-born the work of the Commission.
citizens of the Philippines, of • Commission agreed that the Preamble would still
recognized probity known for their be subject to modifications after the formulation
independence, nationalism and of the body of the document.
patriotism. They shall be chosen by • But the commission did not go back to the
the President after consultation Preamble after the completion of the body of
with various sectors of society. document.
o Sec. 2: The Commission shall complete Purpose and effect of the Preamble
its work within as short a period as may
be consistent with the need both to • It is not a source of power or right for any
hasten the return of normal department of government.
constitutional gov’t and to draft a • It sets down the origin, scope, and purpose of the
document truly reflective of the ideals Constitution and is thus useful as an aid in
and aspirations of the Filipino people. ascertaining the meaning of ambiguous provisions in
o Sec. 3: The Commission shall conduct the body of the constitution.
public hearings to insure that the • The Preamble bears witness to the fact that the
people will have adequate Constitution is the manifestation of the sovereign will
of the Filipino people.

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• The document is not just the work of representatives a. Jurisdiction over Turtle and Mangsee Islands
of the people but of the people themselves who put were clarified by the convention concluded
their mark of approval by ratifying it in a plebiscite. between Great Britain and US
• Source of Light: Useful as an aid in ascertaining the b. The doubt over Batanes was not clarified.
meaning of ambiguous provisions in the body of the However, from time immemorial, these
Constitution islands had undisputedly formed part of the
Philippines.
4. “all territory over which the present Government of
• Aglipay v. Ruiz – Justice Laurel, in seeking the true the Philippine Island exercise jurisdiction”
meaning of separation of church and state in the a. To remove the doubts over Batanes.
Philippine jurisprudence, had occasion to allude to
the invocation of the “aid of Divine Providence” 3. Why the definition of territory in the 1973 and
found on the 1935 Preamble. 1987 Constitutions?
• Voltaire Garcia (Rizal) – delete the entire article on
National Territory
ARTICLE 1: o Why? Because territorial definition was a
National Territory subject of international law, not municipal
law, and the Philippine territory is already
The national territory comprises the defined by existing treaties
o Batanes – no state ever questioned the
Philippine archipelago, with all the islands
continued exercise of Philippine jurisdiction
and waters embraced therein, and all other over it
territories over which the Philippines has o Prejudicial to the interest of the Philippines
sovereignty or jurisdiction, consisting of its o Amanio Sorsogon and Magtanggol
terrestrial, fluvial and aerial domains, Gunigundo supplied the “nationalistic”
arguments for the deletion of the article on
including its territorial sea, the seabed, the territory
subsoil, the insular shelves, and other  Sorsogon: Treaty of Paris a
submarine areas. The waters around, repulsive reminder of the indignity
between, and connecting the islands of the of our colonial past
 Gunigundo: To accept the territorial
archipelago, regardless of their breadth and
boundaries defined in the Treaty of
dimensions, form part of the internal waters Paris would be to lend legitimacy to
of the Philippines. the illegal act of Spain and the US
• Raul Roco (Camarines Sur) – territorial definition is
A Constitution is a municipal law. As such, it is binding only necessary for the preservation of our national wealth,
within the territorial limits of the sovereignty promulgating the for national security, and as a manifestation of our
constitution. It is important for the sovereign state to know solidarity as a people
the extent of the territory over which it can legitimately • Eduardo Quintero (Leyte) on why a territorial article
exercise jurisdiction. is needed:
o Territorial assertions found in RA 3046 are
merely “whereas” clauses. These clauses
1. The Place of Territorial delimitation in the 1935 should be expressed in more authoritative
Constitution fashion.
Definition of territory underwent three phases: o To delete the article would leave the status
• 1934-1935 Constitutional Convention of Batanes Island in doubt.
• 1972 Constitutional Convention o Failure of the 1935 constitution to express
• 1986 Constitutional Commission the possibility of future territorial
• The factor which persuaded the 1935 Convention to acquisitions by the Philippines
include an article on national territory was the intent
of the Convention to use the Constitution as an 4. The 1973 Provision on National Territory
international document binding on the US. • Philippine Territory under the 1973 Constitution can
• This possibility of transforming the Constitution (a be divided into three groups:
municipal law) into an international document arose 1. The Philippine archipelago
from the provision of the Tydings-McDuffie law. 2. Other territories belonging to the Philippines
• Tydings-McDuffie law: the effectivity of the Philippine 3. Philippine waters, air-space, and submarine
constitution would depend partly on the acceptance areas
of its provision by the US Government.  Horizontal reach consisting of lands
and waters
2. National territory under the 1935 Constitution  An upward reach consisting of air-
Four Points of Reference for determination of the space over the land and waters
Philippine territory in the 1935 Constitution  A downward reach consisting of
1. The Treaty of Paris (December 10, 1989) submarine areas
a. Article III – Spain has ceded to the US “the  Adherence to the “archipelagic
archipelago known as the Philippine Islands, principle”
and comprehending the islands lying within”
b. Doubts whether the Batanes Islands to the The Philippine Archipelago
north and the Island of Sibutu and Cagayan  1973 Consti: “all the islands and waters
de Sulu to the south as well as the Turtle embraced therein”
and Mangsee Island were included  Archipelago: a cluster of islands forming a
2. The Treaty of Washington (November 7, 1900) territorial unity
a. Corrected the error with respect to the o Waters are considered adjuncts to
Islands of Sibutu and Cagayan de Sulu the land area and their extent is
3. The treaty between Great Britain and the United determined by reference to the
States (January 2, 1930) land area

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 Archipelago: as a unit of water studded with measured seawards according to the cannon-
islands shot rule formulated in 1702, has now been
o The land area is everything that discarded.
comes within the water area • When the Twelve (12) mile rule application
o The committee preferred this overlaps to neighboring littoral states, the
definition over the first one rule established is that the dividing line is a
Archipelagic principle median line equidistant from the opposite
o principle that the Philippine baselines.
Constitution adheres to; Legal &
Political basis for considering the 3. Baselines
7,107 islands as one political unit • “the low water line along the coast as
o Committee Report No. 01 of 1973: marked on large scale charts officially
“the inclusion in the new recognized by the coastal State”
Constitution of a provision spelling • Two (2) ways to draw the baseline:
out the archipelagic principle of the a. “Normal” baseline is one drawn
Philippine government will certainly following “the low water line along
strengthen our historical position the coast as marked on large scale
and will help us in sustaining our charts officially recognized by the
archipelagic theory in the coastal State”. This would normally
Convention on the Law of the Sea not consist of straight lines.
in 1973 and in any case that may b. “Straight” baselines are drawn
possibly be ventilated before the connecting selected points on the
World Court in the future” coast without appreciable
“..all other territories belonging to the departure from the general shape
Philippines by historic right or legal title” of the coast. This method was first
 Inclusion of Batanes Islands upheld in the Anglo-Norwegian
 Committee Report No. 1: intended to cover Fisheries Case. Likewise, R.A. No.
the claim to Sabah which has been filed by 3046 and R.A. No. 5446 have
the Philippines and the possible claim to drawn “straight baselines” around
Freedom Land and the Marianas Islands the Philippines.
 The intent was to avoid forfeiture of these • The rule now is that in localities where the
claims by their omission from the coastlines is deeply indented and cut into, or
constitutional definition if there is a fringe of islands along the coast
 Historic right: Batanes belongs to the in its immediate vicinity, the method of
Philippine because in all its history, Batanes straight baselines joining appropriate points
had always been part of our country. may be employed.
 Sabah: our claim is based on a “legal title” • BASELINE provisions are found in Article 47
perfected in 1962 of the 1982 Convention. It is both a solution
and a problem.
5. 1982 Convention on the Law of the Sea (LOS)
• 1987 Constitution was formulated while the 4. Sovereignty over territorial waters
Philippines was already a party to the 1982 • A state exercises sovereignty over its
Convention on the Law of the Sea. territorial sea subject to the right of innocent
passage by other States. Innocent passage is
Substantial provisions found in LOS which helps in the understood as passage not prejudicial to the
understanding of the constitutional text: interests of the coastal state nor contrary to
recognized principles of international law.
1. Archipelago, archipelagic state • Acts that are not considered innocent
• Article 46 of the Convention passage under Article 19(2)
(a) “Archipelagic State” a. any threat or use of force
means a State constituted wholly against the sovereignty, territorial
by one or more archipelagos and integrity or political independence
may include other islands of the coastal State, or in any other
(b) “Archipelago” means a manner in violation of the
group of islands, including parts of principles of international law
islands, interconnecting waters and embodied in the Charter of the
other natural features which are so united Nations
closely interrelated that such b. any exercise or practice
islands, waters and other natural with weapons of any kind
features form an intrinsic c. any act aimed at
geographical, economic and collecting information to the
political entity, or which historically prejudice of the defense or security
have been regarded as such. of the coastal State
- Under this definition, d. any act of propaganda
Batanes should be considered part aimed at affecting the defense or
of the archipelago and not just of security of the coastal State
territories outside the archipelago. e. the launching, landing or
taking on board of any aircraft
2. The territorial sea f. the launching, landing or
• As distinct from the state’s inland and taking on board of any military
internal waters, the territorial sea consists of device
a marginal belt of maritime waters adjacent g. the loading or unloading
to the baselines extending 12 nautical miles of any commodity, currency or
outward. Outside these are the high seas. person contrary to the customs,
fiscal, immigration or sanitary laws
• The Three (3) mile rule, which was the
and regulations of the coastal State
traditional length of the territorial waters

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h. any act of wilful and would have an educational
serious pollution contrary to this value and there was
Convention apprehension that it would be
i. any fishing activity difficult to explain why after
j. the carrying out of 1935 and 1973 provisions on
research or survey activities national territory the new
k. any act aimed at Constitution should fail to
interfering with any system of provide for one.
communication or any other (2) What posture to take
facilities or installations of the relative to Sabah as covered by the
coastal State clause “all other territories belong
l. any other activity not to the Philippines by historic right
having a direct bearing on passage or legal title”.

• Coastal states have the unilateral right to


• This was debated per
longum et latum with a certain
verify the innocent character of passage, and
degree of warmth even if it
it may take the necessary steps to prevent
was not always clear what
passage that it determines to be not
individual delegates, including
innocent.
sponsor wanted.
5. Archipelagic waters • This was not thoroughly
discussed, and nothing
• 1973 Constitution, Article I: “The waters
conclusive was put down in
around between and connecting the islands
writing.
of the archipelago, irrespective of their
(3) How the definition of
breadth and dimensions, form part of the
territory would relate to the 1982
internal waters of the Philippines.” This
Convention on the Law of the Sea.
assertion, together with the “straight
baseline method”, forms the “Archipelagic
a. “all other territories over which the Philippines has
Principle”, which is now found in the 1987
sovereignty or jurisdiction”
Constitution.
• 1973: “all other territories belonging to the
• “Internal Waters”: internal or inland waters
Philippines by historic right or legal title” was
consist of all parts of the sea landwards from
replaced by 1987: “all other territories over which
the baseline as well as inland rivers and
the Philippines has sovereignty or jurisdiction.”
lakes. All of them are subject to the
sovereignty of the state to the same extent • Those who espoused the 1973 basically wanted to
that the land domain is. Unlike territorial avoid the impression of constitutional abandonment
waters, they are not subject to the right of of the Philippine claim to Sabah. Those who espoused
innocent passage by other states. the new phraseology contended that theirs did not
mean abandonment of any claim which might be
6. Insular shelf justifiable under generally accepted principles of
international law.
• The continental shelf , archipelagic or
insular shelf for archipelagos, refers to: • The principal stumbling block was the phrase
A. the seabed and subsoil of “exercises sovereign jurisdiction”, which could easily
the submarine areas adjacent to be read to mean that territory not under the effective
the coastal state but outside the control of the Philippines, such as Sabah, would not
territorial sea, to a depth of two be part of it.
hundred meter or, beyond that • Fr. Joaquin Bernas SJ provided the solution by
limit, to where the depth allows introducing a new phraseology: “and all other
exploitation. territories over which the Philippines has sovereignty
B. the seabed and subsoil of or jurisdiction”, where “has” was of broader scope
areas adjacent to islands. than exercises so that it clearly allowed juridical
• The coastal state has the right to explore retention of a territory even when it was physically
and exploit its natural resources, to erect wrested by a stronger force.
installations needed, and to erect a safety
zone over its installations with a radius of c. “...its terrestrial, fluvial, and aerial domains, including the
500 meters. The right does not affect the territorial sea, the sea bed, the subsoil, the insular shelves,
right of navigation of others. Moreover, the and other submarine areas thereof.”
right does not extent to non-resource • This rephrasing was authored by Commissioner
material in the shelf area such as wrecked Adolfo Azcuna.
ship and their cargoes. • It was not meant to and does not add anything to the
substance of what was already contained in the 1973
6. National Territory in the 1987 Constitution definition.
• On June 26, 1986, the Committee draft of • Azcuna’s explanation follows closely the terms of the
the National Territory noted that the first 1982 Convention on the Law of the Sea. To begin
paragraph was an exact reproduction of the with, Article 2 of the Convention says:
1973 text. The second paragraph was new (1) The sovereignty of a coastal State extends,
and made reference to the 1982 Convention beyond its land territory and internal waters and,
of the Law of the Sea. in the case of an archipelagic State, its
• The deliberations of the 1986 Constitutional archipelagic waters, to an adjacent belt of sea,
Commission focused on: described as the territorial sea.
(1) Whether to have a (2) This sovereignty extends to the airspace over
provision on national territory. the territorial sea as well as to its bed and
• This was resolved easily. subsoil.
Much of the 1972 debate was (3) The sovereignty over the territorial sea is
repeated. In the end there was exercised subject to this Convention and to
recognition that such an article other rules of international law.

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7. Summary and Conclusion
• Like the 1934-35 Convention, the 1971 Convention
did not claim that a constitutional provision standing
by itself is binding international law. During the 1973
debates on the provisions on national territory, the
local newspapers gave the impression that, by
unilateral act, the Convention was attempting to add
new territory to what was defined in the 1935
Constitution. However, there was no such attempt.
The 1987 language 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.
• Is the Philippine territory bigger because of the new
article on national territory? Not really.
• The Treaty of Paris is the 1935 Constitution’s
principal point of reference for the delineation of
Philippine territory. The attempt of the present
provisions to omit 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 Islands by “historic right”
• The 1973 Constitution ensured the possibility of
claiming other territories on the basis of “historic
right or legal title”. The 1987 Constitution prescinds
from the question and reies on generally accepted
principles of international law which recognizes legal
modes of establishing legal claim to territory.
• What then did the 1973 provision gain for the
Philippines? A security blanket, a rhetorical assertion
of historic identity, “decolonization” on paper, and an
embarrassing muddling of Philippine position towards
the Treaty of Paris.
• As to the 1987 version, it merely removed language
possibly offensive to an ASEAN neighbour and
achieved a more logical sequencing of the elements
that make up the territory but preserved everything
else found in the 1973 Constitution.

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