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A Study Guide for Consti 2 - Nature and Concept of the Constitution

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CONSTITUTIONAL LAW II - FOUNDATIONAL CONCEPTS

Comprehensive Study Guide

Bukidnon State University College of Law
JD 302: Constitutional Law II
Week 2 Review Material

NATURE AND CONCEPT OF THE CONSTITUTION

A. Definition of Constitution

Cruz Definition: A constitution, according to Cooley, is "that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised." This definition is comprehensive enough to cover both written and unwritten constitutions.

Bernas Observation: For purposes of Philippine constitutional law, Justice Malcolm's definition is more appropriate: "the written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic."

B. Purposes of the Constitution

Cruz Commentary: Cruz identifies three primary purposes:

  1. To prescribe the permanent framework of a system of government
  2. To assign to several departments their respective powers and duties
  3. To establish certain fixed principles on which government is founded

Critical Understanding: The Constitution does not create fundamental rights such as religious freedom. Rather, it recognizes and protects pre-existing rights. As Cruz notes, "The Constitution is not the origin of private rights; it is not the fountain of law nor the incipient state of government; it is not the cause but the consequence of personal and political freedom."

C. Supremacy of the Constitution

Fundamental Principle: The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials, must defer.

Cruz Commentary: Cruz emphasizes: "No act shall be valid, however noble its intentions, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude."

Practical Application: Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people, lest its disregard result in usurpation of the majesty of law by pretenders to illegitimate power.

PART II: CLASSIFICATION OF CONSTITUTIONS

A. Written vs. Unwritten Constitution

Written Constitution: One whose precepts are embodied in one document or set of documents.

Unwritten Constitution: Consists of rules not integrated into a single concrete form but scattered in various sources:

Philippine Constitution: Written, conventional, and rigid.

B. Conventional (Enacted) vs. Cumulative (Evolved) Constitution

Conventional Constitution: An enacted constitution, formally "struck off" at a definite time and place following conscious or deliberate effort by a constituent body or ruler.

Cumulative Constitution: Result of political evolution, "not inaugurated at any specific time but changing by accretion rather than by any systematic method."

Philippine Constitution: Conventional (enacted).

C. Rigid vs. Flexible Constitution

Rigid Constitution: One that can be amended only by a formal and usually difficult process.

Flexible Constitution: One that can be changed by ordinary legislation.

Philippine Constitution: Rigid.

Bernas Commentary: Bernas notes that the distinction between amendment and revision becomes critical under the 1987 Constitution. "An amendment envisages an alteration of one or a few specific and separable provisions... In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document."

PART III: ESSENTIAL QUALITIES OF A WRITTEN CONSTITUTION

Cruz Commentary: Cruz identifies three essential qualities that a good written constitution must possess:

A. Broad

Rationale: Must be comprehensive enough to provide for every contingency. It should:

Cruz's Observation: "The constitution is not only the imprisonment of the past but the unfolding of the future," to which may be added that it is also the fulfillment of the present.

B. Brief

Rationale: Must confine itself to basic principles to be implemented with legislative details more adjustable to change and easier to amend.

Cruz Commentary: "Otherwise, the constitution would be a prolix and voluminous codification inaccessible to the understanding or even only the interest of the people and unable to adapt readily to changing conditions because of the difficulty of its amendment."

C. Definite/Clear

Rationale: Ambiguity in constitutional provisions results in confusion and divisiveness among the people, and perhaps even physical conflict.

Exception: Deliberately vague provisions like the due process clause are made malleable to judicial interpretation in light of new conditions and circumstances.

PART IV: ESSENTIAL PARTS OF A WRITTEN CONSTITUTION

Cruz Commentary: A good written constitution contains three essential substantive parts:

A. Constitution of Liberty

Content: Series of prescriptions setting forth fundamental civil and political rights of citizens and imposing limitations on government powers.

Found in: Principally Article III (Bill of Rights), and also in Articles II, IV, V, and XII of the 1987 Constitution.

B. Constitution of Government

Content: Series of provisions outlining:

Found in: Articles VI to XI of the 1987 Constitution.

C. Constitution of Sovereignty

Content: Provisions pointing out the mode or procedure for formal changes in the fundamental law.

Found in: Article XVII of the 1987 Constitution.

Bernas Commentary: Bernas explains that amendatory provisions are called the "constitution of sovereignty" because "it is through these provisions that the sovereign people have allowed the expression of their sovereign will through this constitution to be canalized."

PART V: PERMANENCE AND ADAPTABILITY OF THE CONSTITUTION

A. Advantage of Permanence

Cruz Commentary: One advantage of the written, conventional, and rigid constitution is its permanence—its capacity to resist capricious or whimsical change dictated not by legitimate needs but by passing fancies.

Principle: "A Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves." (Vanhorne v. Dorrance)

B. Disadvantage of Rigidity

Cruz Commentary: The very virtue of permanence may become a disadvantage where the written constitution is unable to adjust to the need for change justified by new conditions.

Warning: "Where this happens, the people may have to resort to a violation of the provisions of the permanent constitution; and if they cannot make a new constitution, they will have to make a revolution."

PART VI: THE PHILIPPINE CONSTITUTION - HISTORICAL DEVELOPMENT

A. Pre-1935: Colonial Period

Context: Philippines under Spanish rule (1565-1898), then American occupation (1898-1946).

Bernas Commentary: Bernas notes that "The gift of the American conqueror, after having suppressed the Filipino republic established by the revolution, was the implantation of a system that promised the achievement of balance between power and freedom."

B. The 1935 Constitution (Commonwealth Constitution)

Adoption: November 15, 1935

Nature: Written, conventional, rigid constitution modeled after the U.S. Constitution.

Key Features:

Historical Context: Created pursuant to the Tydings-McDuffie Law, which required that the constitution be "republican in form."

Duration: Continued to govern after independence on July 4, 1946, until 1973.

Amendment Provision (Article XV, Section 1):

"Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

C. The 1973 Constitution (Marcos Constitution)

Adoption: January 17, 1973

Context: Proclaimed during martial law period under President Ferdinand Marcos.

Nature: Complete overhaul of the 1935 Constitution.

Bernas Commentary: "Certainly, measured by quantitative norms, the 1973 Constitution was not merely an amendment of the 1935 charter. The clear intent of the 1971 Constitutional Convention from the moment it met was a thorough overhaul of the 1935 Constitution."

Ratification Controversy: The Supreme Court in Javellana v. Executive Secretary (1973) was sharply divided on whether the 1973 Constitution was validly ratified according to Article XV of the 1935 Constitution.

Chief Justice Concepcion's View: Six Justices (including the Chief Justice) held that "the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution."

Revolutionary Character: Seven Justices ultimately concluded that while the 1935 procedural requirements were not followed, the 1973 Constitution had become effective through extra-constitutional means.

Key Changes from 1935:

D. The Freedom Constitution (1986)

Context: Promulgated by President Corazon C. Aquino on March 25, 1986, following the EDSA People Power Revolution that deposed President Marcos.

Nature: Provisional constitution pending adoption of a permanent charter.

Purpose: To correct shortcomings of previous constitutions and eliminate vestiges of the Marcos regime.

Legal Character: Revolutionary constitution - came into being through extra-constitutional means via popular sovereignty, not through amendment/revision procedures.

E. The 1987 Constitution (Present Constitution)

Adoption Process:

  1. President Aquino issued Proclamation No. 9 creating a Constitutional Commission
  2. Commission worked from June to October 1986
  3. Final draft approved October 15, 1986
  4. Plebiscite held February 2, 1987
  5. Ratified by the people
  6. Took effect February 2, 1987

Constitutional Commission: 48 members appointed by President Aquino, representing various sectors, chaired by Justice Cecilia Muñoz-Palma.

Nature: Written, conventional, rigid constitution.

Key Features:

Major Innovations from 1973:

Amendment/Revision Provisions (Article XVII):

PART VII: BASIC PRINCIPLES UNDERLYING THE PHILIPPINE CONSTITUTION

A. Republican and Democratic State

Article II, Section 1: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."

Bernas Commentary: "A republican form of government is understood as 'one constructed on this principle, that the supreme power resides in the body of the people.'"

Purpose: Guarantee against two extremes:

B. Renunciation of War and Adherence to International Law

Article II, Section 2: "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."

Incorporation vs. Transformation:

Bernas Commentary: "Under the incorporation clause, these principles form part of the law of the land. And, by mere constitutional declaration, international law is deemed to have the force of domestic law."

C. Separation of Powers

Implicit Principle: While not explicitly stated in a single provision, the Constitution establishes three separate and co-equal branches:

Purpose: Prevent concentration of power and provide system of checks and balances.

Bernas Commentary: The structural approach to constitutional interpretation "draws inferences from the architecture of the three-cornered power relationships that are found in the constitutional arrangement."

D. Civilian Supremacy Over Military

Article II, Section 3: "Civilian authority is, at all times, supreme over the military."

Purpose: Ensure democratic governance and prevent military rule.

E. Rule of Law

Bernas Commentary: "This is the meaning of the rule of law: a government of laws and not of men."

Implication: All government actions must have legal basis; no one, not even the highest officials, is above the law.

F. Social Justice

Article II, Section 10: "The State shall promote social justice in all phases of national development."

Bernas Commentary: The principle of social justice "revolutionized judicial attitude to the right of property and to the powers of government in relation to the regulation of property."

Application: Guides interpretation of constitutional provisions, particularly those involving labor, agrarian reform, and economic rights.

PART VIII: CONSTITUTIONAL INTERPRETATION AND CONSTRUCTION

A. General Principles of Interpretation

Cruz Commentary: The constitution, like statutory enactments, should be read in accordance with usual rules of interpretation and construction.

Chief Canon: Constitution should be interpreted to give effect to the intendment of the framers.

Sources of Intention:

  1. The document itself
  2. Extrinsic aids (records of constitutional convention/commission)

B. Progressive vs. Petrified Interpretation

Central Question: Should the constitution be interpreted only in light of conditions at adoption or according to changes in nation's history?

Cruz Commentary: The answer is obvious: "The constitution must change with the changing times lest it impede the progress of the people with antiquated rules grown ineffective in a modern age."

Justice Winslow's Eloquence: "The political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third. The race moves forward constantly, and no Canute can stay its progress."

Bernas Commentary: Bernas notes that "the Constitution must change with the changing times" while maintaining fidelity to constitutional text and structure.

C. Rules of Doubt

Cruz Commentary: In case of doubt, the constitution should be considered:

  1. Self-executing rather than non-self-executing
  2. Mandatory rather than directory
  3. Prospective rather than retrospective

D. Self-Executing vs. Non-Self-Executing Provisions

Self-Executing Provision: A rule that by itself is directly or indirectly applicable without need of statutory implementation.

Cruz Commentary: "Examples are the provisions found in the Bill of Rights, which may be invoked by proper parties independently of or even against legislative enactment."

Landmark Case - Collector of Customs v. Villaluz: The Supreme Court held that judges derive directly from Article III, Section 2, of the Constitution the authority to conduct preliminary investigations for search/arrest warrants, which power may not be withdrawn by the legislature.

Another Example: President's power of control over all departments (Article VII, Section 17) is self-executing and directly conferred by the Constitution.

PART IX: MODALITIES OF CONSTITUTIONAL INTERPRETATION

Bernas Commentary: Bernas identifies six possible approaches a Justice might take to a constitutional problem. These approaches help explain differences in concurrences and dissents.

A. Historical Approach

Method: Analyzing the intention of the framers and circumstances of ratification.

Application: Much of the Bill of Rights is traceable to ideological assertions in America, Great Britain, and Europe during the American Revolution.

Tool: Records of 1934 Constitutional Convention and 1986 Constitutional Commission play important roles.

Limitation: Should not be resorted to when contrary to plain meaning of text.

B. Textual Approach

Method: Reading constitutional language as the "man on the street" would understand it.

Rationale: The people who ratified the Constitution are its ultimate authors.

Challenge: Words or phrases don't always yield "plain meaning" (e.g., "due process of law").

Bernas Commentary: "To take text as primary, and as ultimately authoritative whenever it speaks to a proposition, is not necessarily to take text as exclusive, and as filling up the available space for constitutional authority."

C. Structural Approach

Method: Drawing inferences from the architecture of three-cornered power relationships in constitutional arrangement.

Bernas Commentary: "Structure is what the text shows but does not say."

Examples:

D. Doctrinal Approach

Method: Relying on established precedents.

Rationale: Growing volume of Supreme Court decisions are "a second set of constitutional texts."

Recognition: Direction of decisions sometimes changes, reflecting growth in constitutional understanding through actual controversies.

E. Ethical Approach

Method: Interpreting Filipino moral commitments embedded in constitutional document.

Bernas Commentary: "The Constitution, after all, as the Preamble says, is meant to be an embodiment of 'our ideals and aspirations.'"

Examples of Commitments:

F. Prudential Approach

Method: Weighing and comparing costs and benefits in conflicting rules.

Application: Used when constitutional rules are not written in clear black and white.

Bernas Commentary: All these approaches, "singly or in various combinations, come into play in the work of the Court—and, as would normally be expected with varying degrees of success, or, in varying degrees of controversiality. But this is what makes constitutional law and the Supreme Court both fascinating and sometimes exasperating."

PART X: HIERARCHY OF LAWS

A. Constitutional Hierarchy

1. Constitution (Supreme Law)

2. Statutes and Presidential Decrees

3. Executive Orders and Administrative Regulations

4. Municipal/Local Ordinances

B. International Law in Hierarchy

Article II, Section 2: Philippines adopts generally accepted principles of international law as part of law of the land.

Bernas Commentary: Under incorporation clause, these principles "form part of the law of the land... [but] the phrase 'as part of the law of the land' refers to the levels of legal rules below the Constitution."

Important Distinctions:

  1. Generally Accepted Principles of International Law: Automatically part of Philippine law through incorporation
  2. Treaties: Require Senate concurrence; become part of law through transformation

Hierarchy Position: International law principles and treaties rank below Constitution but may rank with or above statutes depending on specific provisions.

PART XI: JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION

A. Power of Judicial Review

Definition: Supreme Court's power to declare a treaty, law, decree, proclamation, order, instruction, ordinance, or regulation unconstitutional.

Article VIII, Section 5: Includes power to declare unconstitutional the "application or operation" of laws even if the legal basis itself is constitutional.

Bernas Commentary: "Judicial review is a power alien to English tradition. It is an invention of the American system whence the Philippine system came."

B. Requisites for Exercise of Judicial Review

1. Actual Case or Controversy

2. Standing

3. Question Must Be Raised at Earliest Opportunity

4. Issue of Constitutionality Must Be the Lis Mota

5. Majority Vote of Supreme Court En Banc Required

C. Judicial Review by Lower Courts

Bernas Commentary: "In international law tradition, the classification of public lands is an exclusive prerogative of the Executive Department."

Important Principle: While lower courts have jurisdiction over constitutional questions, "a becoming modesty of inferior courts demands conscious realization of the position they occupy in the interrelation and operation of the integrated judicial system."

Effect of Decisions:

D. Political Question Doctrine

Definition: Issues whose resolution is committed by Constitution to another branch of government.

Bernas Commentary: Courts will not interfere with legislative or executive discretion where Constitution vests discretion in those branches.

Exception: When alleged action involves grave abuse of discretion amounting to lack or excess of jurisdiction.

E. Effect of Declaration of Unconstitutionality

General Rule: Unconstitutional law is void ab initio (from the beginning).

Cruz Commentary: No act shall be valid, however noble its intentions, if it conflicts with the Constitution.

Exception: Operative fact doctrine—in some cases, law may be given effect for certain purposes before declaration of unconstitutionality.

PART XII: AMENDMENT VS. REVISION

A. Distinction Between Amendment and Revision

Bernas Commentary on Importance: "Under both the 1935 and 1973 Constitution, however, the procedure both for amending and for revising the Constitution was the same. Hence, the distinction between amendment and revision was not very important. Things have changed under the 1987 Constitution which has introduced 'initiative and referendum.' As will be shown later, initiative and referendum can be used for amendments but not for revision."

B. Amendment Defined

Bernas Commentary: "An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous."

Examples:

C. Revision Defined

Bernas Commentary: "In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered."

Examples:

Why These Are Revisions: Because of "over-all impact on the entire constitutional structure."

D. Methods of Proposing Amendments/Revisions (Article XVII)

Three Methods:

  1. Congress as Constituent Assembly

    • Upon vote of 3/4 of all its Members
    • May propose amendments or call constitutional convention
    • No provision for joint session (unlike 1935)

  2. Constitutional Convention

    • Called by Congress (2/3 vote) or by people through initiative
    • Delegates directly propose amendments/revision

  3. People's Initiative (Amendments only, not revision)

    • 12% of total registered voters (at least 3% per district)
    • Can propose amendments only
    • Cannot be used for revision

E. Ratification Requirements (Article XVII, Section 4)

For All Amendments/Revisions:

Critical Requirement: Actual plebiscite where people can freely vote, not mere "referendum" in citizen assemblies.

PART XIII: JUDICIAL REVIEW OF AMENDMENTS

Shift from Political to Justiciable Question:

Old Doctrine - Mabanag v. Lopez Vito: Question of whether Parity proposal was validly adopted was political in nature.

New Doctrine - Tafiada v. Cuenco & Sanidad v. COMELEC: Courts can inquire into whether prescribed procedure for amendment has been observed.

Cruz Commentary: "Thus, the judiciary may declare invalid a proposal adopted by less than three-fourths of the members of the Congress, or a call for a constitutional convention by less than two-thirds of the legislature, or a ratification made by less than a majority of the votes cast, or a plebiscite irregularly held."

Bernas Commentary: The Supreme Court, "by the exercise of judicial review, wields tremendous political power. Hence, each Justice bears a special burden—that of exercising great political power and still acting as a court."

PART XIV: KEY PRINCIPLES FOR BAR EXAMINATION

Essential Doctrines to Master:

  1. Constitutional Supremacy: All laws must conform to Constitution; no act valid if it conflicts with Constitution.

  2. Self-Executing Provisions: Bill of Rights provisions generally self-executing; may be invoked without implementing legislation.

  3. Progressive Interpretation: Constitution must be interpreted in light of changing times and conditions.

  4. Three Essential Parts: Constitution of Liberty (Bill of Rights), Constitution of Government (structure), Constitution of Sovereignty (amendment provisions).

  5. Hierarchy of Laws: Constitution > Statutes > Executive Orders > Local Ordinances.

  6. Amendment vs. Revision: Amendment = specific alterations; Revision = wholesale changes with over-all impact.

  7. Judicial Review: Power to declare laws unconstitutional; requires actual case, standing, proper timing, and constitutional issue as lis mota.

  8. Six Modalities of Interpretation: Historical, Textual, Structural, Doctrinal, Ethical, Prudential approaches.

  9. Philippine Constitutions: 1935 (Commonwealth), 1973 (Marcos), 1986 (Freedom), 1987 (Current).

  10. Ratification Requirement: All amendments must be approved by majority in actual plebiscite.

Common Bar Examination Questions:

Q: What are the essential qualities of a good written constitution? A: A good written constitution must be (1) broad enough to provide for every contingency; (2) brief to confine itself to basic principles; and (3) definite to avoid ambiguity, except where deliberately vague provisions (like due process) are made malleable to changing conditions.

Q: Distinguish between amendment and revision of the Constitution. A: Amendment envisages alteration of one or few specific provisions to improve parts or add provisions for new conditions. Revision contemplates re-examination of the entire document or provisions with over-all implications for the entire constitutional structure (e.g., presidential to parliamentary system). The distinction is critical because people's initiative can be used only for amendments, not revisions.

Q: Is the 1987 Constitution self-executing? A: The 1987 Constitution contains both self-executing and non-self-executing provisions. Generally, the Bill of Rights provisions are self-executing and may be invoked without implementing legislation. In case of doubt, provisions should be considered self-executing rather than non-self-executing.

Q: What is the hierarchy of laws in the Philippines? A: (1) Constitution (supreme law); (2) Statutes and Presidential Decrees; (3) Executive Orders and Administrative Regulations; (4) Municipal/Local Ordinances. Generally accepted principles of international law are incorporated as part of the law of the land but rank below the Constitution.

Q: What are the requisites for valid exercise of judicial review? A: (1) Actual case or controversy; (2) Proper party with standing; (3) Constitutional question raised at earliest opportunity; (4) Constitutionality is the lis mota; (5) Majority vote of Supreme Court en banc required to declare law unconstitutional.

Q: Briefly discuss the historical development of Philippine constitutions. A: The Philippines has had four fundamental charters: (1) 1935 Constitution (Commonwealth/Republic period until 1973); (2) 1973 Constitution (Marcos period, dubiously ratified during martial law); (3) 1986 Freedom Constitution (provisional, post-EDSA Revolution); (4) 1987 Constitution (current, ratified February 2, 1987). Each successive constitution attempted to correct deficiencies of its predecessor.

CONCLUSION

Constitutional Law represents the balance between governmental authority and individual liberty. The Philippine Constitution, through its various iterations, reflects the nation's ongoing struggle to achieve this balance while adapting to changing social, political, and economic conditions.

Cruz's Final Wisdom: "Constitutional Law is the study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights."

Bernas's Perspective: "The balancing of these two social values... is the story of governmental power and the constitutional limits on it found in the Bill of Rights."

Understanding these foundational concepts is essential not only for passing the bar examination but for appreciating how constitutional principles shape daily governance and protect fundamental rights in the Philippine legal system.

SUGGESTED READINGS

Primary Sources:

Secondary Sources:

Landmark Cases:

END OF STUDY GUIDE

Prepared for Constitutional Law II
Bukidnon State University College of Law
AY 2024-2025