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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES PREAMBLE W E , THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY G O D , IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVE...

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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES PREAMBLE W E , THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY G O D , IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

1.

Deliberations on the Committee Report.

The very first Committee Report to come out for deliberation by the 1986 Constitutional Commission was a draft of a preamble. The draft was a modification of the Preamble of the 1973 Constitution and read thus: 1

W E , THE

SOVEREIGN

FlLIPINO

PEOPLE, IMPLORING

THE

GUIDANCE OF DlVINE PROVIDENCE, TO ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND ENHANCE OUR PATRIMONY, SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF PARTICIPATORY DEMOCRACY UNDER A RULE OF JUSTICE, PEACE, FREEDOM, AND EQUALITY, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

'Committee Report No. 1, Committee on Preamble, National Territory, and Declaration of Principles, June 10,1986.1 RECORD OF THE CONSTITUTIONAL COMMISSION 788 (1986), tetinafter cited as I RECORD. 1

2

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

In the course of the initial deliberations, there were those who felt that the Preamble should be formulated only after the body of the Constitution had been completed. Their contention was that, since the Preamble is a distillation of the ideals and aspirations of the Filipino people, it should not be finalized until after those ideals and aspirations had been hammered out especially after widespread consultation in public hearings. Others, however, thought that, since the Commissioners themselves were in a position to enumerate, at least tentatively, the ideals and aspirations of the Filipino people, a Preamble formulated in advance could serve as a guide for the rest of the work of the Commission. A compromise was reached when it was agreed that the Preamble would still be subject to modifications after the formulation of the body of the document. It was a reasonable compromise, because a constitution essentially consists of an enumeration of fundamental values and goals and of devices for achieving and protecting these goals. An enumeration of the values and goals, therefore, albeit tentative, could be a useful aid for future deliberations. As it turned out, however, the C o m mission did not go back to the Preamble after the completion of the body of the document. 2

The Commission deliberations took up most of the plenary session time on June 10 and l l . The C o m m i t t e e ' s " g u i d a n c e " gave way to "aid" as the more all-embracing term. T h e word "enhance" yielded to the 1935's and 1973's "conserve and develop." T h e addition of the more dynamic word "aspirations" to the passive sounding "ideals" was accepted. But the modifier "participatory," which the Committee said was meant to introduce the element of direct democracy and "people power," was deleted as being tautological. 3

An attempt to restore the phrase "general welfare" in place of the Committee's phrase " c o m m o n g o o d " was not accepted. The change from "general welfare" to " c o m m o n g o o d " was intended to project the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally and spiritually. T h e rejection of the phrase "general welfare" was based on the apprehension that the phrase could be interpreted as meaning "the greatest good for the greatest n u m b e r " even if what the greater n u m b e r wants does

2

ld. at 93-97, 124-126. 'Journal No. 7 and 8, June 10 and 11, 1986; I RECORD 87-109, 116-140.

PREAMBLE

3

violence to h u m a n dignity, as for instance when the greater majority might want the extermination of those who are considered as belonging to an inferior race. It was thought that the phrase "common good" would guarantee that m o b rule would not prevail and that the majority would not persecute the minority. 4

An attempt to substitute "Lord of History" or "God of History" for "Divine Providence" was m a d e on the reasoning that the suggested substitute connoted active involvement of G o d in the affairs of m e n . But the suggestion was rejected when it was pointed out that the phrase could be misunderstood as an acceptance of the Marxist concept of history as being the only G o d . Instead, the phrase "Almighty G o d " was chosen as being more personal than "Divine Providence" and therefore more consonant with Filipino religiosity. Another change m a d e by the body was the "a just and h u m a n e society". The phrase added stitution not merely sets up a government but is building the larger society of which government

insertion of the phrase the notion that a conalso an instrument for is merely a part.

An attempt to substitute "equity" for "equality" was rejected as being subject to the interpretation that the Commission was rejecting the enshrinement of "equality" already m a d e by the 1973 Constitution. The 1973 Preamble had added "equality" to reflect the mounting wave of protests against basic social inequalities which even at the time of the 1971 Constitutional Convention plagued Philippine society. The Committee's desire to substitute "rule" for "regime" was rejected. Instead, the phrase "rule of l a w " w a s inserted and the concluding litany was made to read "truth, justice, freedom, love, equality and peace". The introduction of the word "love" probably makes the Philippines the only nation to enshrine the word in its Constitution. It serves as a monument to the love that prevented bloodshed in the February Revolution of 1986. Moreover, the insertion of "truth" is a protest against the deception that characterized the Marcos regime. Finally, the enumeration captures a stream in Catholic thought which sees peace as the fruit of the convergence of truth, justice, freedom, and love. The draft was approved on second reading on the eve of Independence Day, June 11, 1986. HII RECORD 277.

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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

2.

Purpose and effect of the Preamble.

Constitutionally, however, a Preamble is not a source of power or right for any department of government. But because it sets down the origin, scope, and purpose of the Constitution, it is useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the Constitution. In Aglipay v. Ruiz, for instance, Justice Laurel, in seeking the true meaning of separation of church and state in Philippine jurisprudence, had occasion to allude to the invocation of the "aid of Divine Providence" found in the 1935 Preamble. 5

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The Preamble, moreover, bears witness to the fact that the Constitution is the manifestation of the sovereign will of the Filipino people. This idea comes out more clearly in the present text, as also in the 1973 text, which uses the first person approach. The 1935 Preamble had used the third person approach: "The Filipino people, imploring the aid, etc." The effect of the 1935 text was to suggest that some third person, the United States, was making the announcement that the Filipino people were finally being allowed to promulgate a constitution. The identification of the Filipino people as the author of the constitution also calls attention to an important principle: that the document is not just the work of representatives of the people but of the people themselves who put their mark of approval by ratifying it in a plebiscite. The 1935 text had also stated that one of the objects of the promulgation of the constitution was "to secure to themselves and their posterity the blessings of independence." T h e text thus suggested that independence was still merely an aspiration (as indeed it w a s then) and not yet a possession of the Filipino people. To remove this anachronistic suggestion, the Preamble now, as also the 1973 Preamble, speaks of the "blessings of d e m o c r a c y " and calls the Filipino people "sovereign."

ARTICLE I THE NATIONAL TERRITORY SECTION

1.

THE

NATIONAL

TERRITORY

COMPRISES

THE

PHILIPPINE ARCHIPELAGO, WITH ALL THE ISLANDS AND WATERS EMBRACED THEREIN, AND ALL OTHER TERRITORIES OVER WHICH THE PHILIPPINES HAS SOVEREIGNTY OR JURISDICTION, CONSISTING OF ITS TERRESTRIAL, FLUVIAL, AND AERIAL DOMAINS, INCLUDING ITS TERRITORIAL SEA, THE SEABED, THE SUBSOIL, THE INSULAR SHELVES, AND OTHER SUBMARINE AREAS. THE WATERS AROUND, BETWEEN, AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS OF THEIR BREADTH AND DIMENSIONS, FORM PART OF THE INTERNAL WATERS OF THE PHILIPPINES.

1. The Constitution.

Place

of Territorial

Delimitation

in

the

1935

The definition of national territory found in the Constitution went through three phases. The first phase was during the 1934-1935 Constitutional Convention. This was followed by the deliberations of the 1972 Constitutional Convention and finally by the deliberations of the 1986 Constitutional Commission. Between 1972 and 1986, however, the Philippines became party to the 1982 Convention on the Law of the Sea. In the exposition of the law on national territory all these phases will be taken into consideration. A constitution is a municipal law. As such, it is binding only within the territorial limits of the sovereignty promulgating the constitution. For purposes of actual exercise of sovereignty, it is important for the sovereign state to know the extent of the territory over which it can legitimately exercise jurisdiction. For purposes of settling international conflicts, however, a legal instrument purporting to set out the territorial limits of the state must be supported by some recognized principle 5

Sec. 1

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

6

of international law. Hence, the silence of a constitution regarding the territorial limits of a sovereignty does not deprive such sovereignty of any portion of territory it is entitled to under international law. Neither, however, does a constitutional definition of territory have the effect of legitimizing a territorial claim not founded on some legal right protected by international law. Philippine constitutionalism accepts the principle that it is not the Constitution which definitely fixes the extent of Philippine territory. This principle ran through the debates on the national territory during the 1935 Constitutional Convention. The existence of a territorial definition in Article I of the 1935 Constitution was not a denial of this principle. Rather, Article I reflected a historical purpose. The determinative factor which persuaded the 1935 Convention to include an article on national territory was the intent of the Convention to use the Constitution as an international document binding on the United States. The possibility of transforming the Constitution, a municipal law, into an international document arose from a provision of the Tydings-McDuffie Law which prescribed that the effectivity of the Philippine constitution would depend partly on the acceptance of its provisions by the United States Government. Delegate Singson Encarnacion put the matter bluntly: "Es cosa necessaria para nosotros. No debemos redactor nuestra Constitution, como se ha repetido aqui muchas veces, imitando simplemente la Constitution de otros paises; debemos poner aqui lo que es necessario, a fin de que despues no se conviertan algunas de nuestras islas en 'yoyo', o sea, que Estados Unidos retire lo que hoy de buena gana nos concede." Answering the question of Delegate Palma, Singson Encarnacion was even m o r e blunt: "Como sabe su senoria muy bien, en este mundo no rige el verdadero derecho international basado en lajusticia estricta, sino la fundada en fuerza de los canones, y claw esta, es mejor que fortalezcamos desde ahora." 1

2

3

4

'V 1934-1935 CONSTITUTIONAL CONVENTION RECORD 318-359, 389-447, 490528 (1967), hereinafter to be referred to as 1935 CONVENTION RECORD. Sec. 3, Act, Mar. 24,1934, Ch. 84,48 Stat. 546. V 1935 CONVENTION RECORD 342. Id. at 347. After Singson Encarnacion's intervention, a vote was taken on a motion to suppress the provision on national territory. The motion was defeated by a vote of 38 to 119. Id. at 354. 2

3

ART. I - THE NATIONAL TERRITORY

Sec. 1

2.

7

National Territory under the 1935 Constitution.

Article I, Section 1 of the 1935 Constitution read: States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction. T h e article, thus gave four points of reference for the determination of Philippine territory: (1) T h e Treaty of Paris on December 10, 1898; (2) T h e Treaty of Washington on N o v e m b e r 7, 1900; (3) The treaty between Great Britain and the United States on January 2 , 1 9 3 0 ; (4) "all territory over which the present Government of the Philippine Islands exercises jurisdiction." By Article III of the Treaty of Paris, Spain ceded to the United States "the archipelago known as the Philippine Islands, and comprehending the islands lying within" the line drawn by the technical description of the same article. The technical description embodied in the Treaty of Paris, however, left some doubt about the inclusion within the ceded territory of the Batanes Islands to the north and of the Islands of Sibutu and Cagayan de Sulu to the south as well as of the Turtle and Mangsee Islands. The Treaty of Washington of November 7, 1900 corrected the error with respect to the Islands of Sibutu and Cagayan de Sulu, and jurisdiction over the Turtle and Mangsee Islands was clarified by the convention concluded between Great Britain and the United States of January 2, 1930.' The doubt with respect to the Batanes Islands, however, was left unclarified in spite of the fact that, from time immemorial, these islands had undisputedly formed part of the Philippine Islands. Hence, to remove the doubt, the 1935 Constitution added

'Id. 319-320.

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

8

Sec. 1

the clause "all territory over which the present (1935) government of the Philippine Islands exercises jurisdiction." 6

3. Why a Definition of Territory in the 1973 and 1987 Constitutions? The 1971 Convention spent a considerable amount of time on February 14 and 15, 1972 debating whether the new Constitution should contain a definition of Philippine territory. This question had to be settled before the Convention could proceed to consider amendments to the draft report of the Committee on National Territory. The principal proponent of the motion to delete the entire article on National Territory was the late Delegate Voltaire Garcia (Rizal). Garcia argued that territorial definition was a subject of international law, not of municipal law, and that Philippine territory was already defined by existing treaties. As for the Batanes Islands, Garcia pointed out that no state ever questioned the continued exercise of Philippine sovereignty over these islands. While the definition of Philippine territory in the 1935 Constitution might have been useful in 1935, Garcia observed that its continued presence in the Constitution had in fact embarrassed the Philippines in negotiations for territories not covered by the constitutional definition. H e n c e , Garcia concluded that a constitutional definition of territory would not only be unnecessary but could even be prejudicial to the interests of the Philippines. Answering the accusation that his reasoning was tacit advocacy of expansionism, Garcia said that international law recognized peaceful m o d e s of acquiring new territory. Moreover, he retorted that the real advocates of expansionism were those who positively wished to mandate the state to pursue claims over areas not clearly within the Philippine territory. Garcia specifically singled out the movement to claim the Marianas Islands, a trust territory which the United Nations was then preparing for independence. 7

8

Delegates A m a n i o Sorongon (Iloilo 3rd district) and Magtanggol G. Gunigundo (Bulacan 1st district) supplied the "nationalistic" arguHd. 327; Committee Report No. 01, Committee on National Territory, 1971 Constitutional Convention, Jan. 15, 1972; Committee Report No. 7, Committee on Territorial Delimitation 1935 Constitutional Convention, August 31, 1934; I A J I U E G O , THE FRAMING OF THE PHILIPPINE CoNsrmiTION 117-119 (1936), hereinafter cited as A R O U E C O . On the Batanes question, see also Speech of Delegate Villalva, Session of February 11,1972. 'Speeches, Sessions of February 14 and 15,1972. 'Infra, note 11.

Sec. 1

ART. I - THE NATIONAL TERRITORY

9

ments for deletion of the article on national territory. Sorongon found the mention of the Treaty of Paris a repulsive reminder of the indignity of our colonial past.' G u n i g u n d o , in utter disregard of the historic evolution of the Filipino nation, claimed that the Philippines existed before Magellan ever c a m e . M o r e plausibly, but only after a leap over four centuries of history, he recalled that Felipe Agoncillo had protested Spain's cession of the Philippines to the United States, first, because the Philippines had not been consulted, and second, because Spain had already lost effective control over the Philippines. Hence, he argued that to accept the territorial boundaries defined in the Treaty of Paris would be to lend legitimacy to the illegal act of Spain and the United States. Finally, after some irrelevant statements about the Catholic Church, Gunigundo concluded that the ancestral h o m e of the Filipino people might be larger than the Treaty of Paris would allow. 10

T h e arguments for the inclusion of an article defining the national territory ran along t w o levels. On one level was an attempt to demonstrate the need for a clear definition of Philippine territory. Thus, Delegate Raul R o c o (Camarines Sur) argued that a territorial definition was necessary for the preservation of our national wealth, for national security, and as a manifestation of our solidarity as a people." Similarly,

'Speech, Session February 15,1972. Sorongon favored a process of selective recollection. He said that if the charter must remind us of our past, let it remind us of our glorious past — Mac tan, Tirad Pass, Bataan. Gunigundo's speech is a rambling sort of oratory best suited for losing a good cause. Session of February 15,1972. A short-sighted argument for deletion was supplied by Delegate Manuel T. Molina (Cagayan). He said that if Sabah were to be made part of Philippine territory, the Philippine government would have to drop criminal cases of smuggling from Sabah. And if the President were to send an armed battalion to Sabah, nobody could rightly call such an act an invasion. Session o...