Notes on Article II of the 1987 Constitution


ARTICLE II OF THE 1987 CONSTITUTION /forMJ
DECLARATION OF PRINCIPLES AND STATE POLICIES

PRINCIPLES

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

[1] This is self-executing.
[2] What is the manifestation that we are a democratic-republic State? We elect representatives who write laws. It is as if we write law ourselves.
[3] "Demo" means people. "Crat" means write. The people write their laws.
[4] Republican comes from "res publica" which means property of the people.
[5] "All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right to expression of the electorate during political contests no matter how seemingly benign will be tolerated." (Diocese of Bacolod vs. Comelec)
[6] The electoral process and our election laws are the enabling mechanisms of this provision.
[7] "A republic is a representative government, a government run by and for the people. It is not a pure democracy where the people govern themselves directly. The essence of republicanism is representation and renovation, the selection by the citizenry of a corps of public functionaries who derive their mandate from the people and act on their behalf, serving for a limited period only, after which they are replaced or retained, at the option of their principal. Obviously, a republican government is a responsible government whose officials hold and discharge their position as a public trust and shall, according to the Constitution, ‘at all times be accountable to the people’ they are sworn to serve. The purpose of a republican government it is almost needless to state, is the promotion of the common welfare according to the will of the people themselves." (Naval vs. Comelec)

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.

[1] This is also executing.
[2] Does the Philippines renounce all forms of war? No, it does not. It only stays away from offensive war. Defensive war is constitutional.
[3] Generally accepted principles of international law automatically form part of the law of the land without need of Senate concurrence. On the other hand, a treaty, to be valid and effective in the Philippines, must be concurred in by 2/3 of the Members of Senate.
[4] Article VI's Section 21: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."
[5] What is the difference between a treaty and an executive agreement? There are debates on this. Professor Gatdula thinks that there is no real difference between the two. However, the majority opinion is that a treaty has "permanence" and it affects "national policies."
[6] On the other hand, an executive agreement is one entered into by the President with another state within his power as granted by law. If law authorizes the President to enter into a certain transaction, there is no need for Senate concurrence.
[7] Generally accepted principles (GAP) of international law are those rules of conduct among states that most civilized nations observe or those rules from which no derogation can be made. GAP can be customary international laws or jus cogens norms.
[8] Treaties are always in written form. However, GAPs are generally not in written form.
[9] Nevertheless, this is not to say that treaties cannot attain the status of a GAP. This happens especially when a multilateral treaty attains near unanimity and most civilized nations agree that said treaty is binding upon them even if they are not signatories.
[10] In short, treaties must be concurred in by 2/3 of the Members of Senate but GAPs automatically become laws in the Philippines.
[11] Statutes and treaties are treated equally. One is not superior over the other. Hence, the principle of "lex posterior derogat priori" applies. In case of conflict between a treaty and a statute, whichever comes later prevails.
[12] However, in case of conflict between the Constitution and a treaty or law, the Constitution always prevails.
[13] Is the President the primary architect of foreign policy? Yes, according to the Supreme Court in Vinuya vs. Romulo. However, Professor Gatdula disagrees; he thinks that the Congress also is an equally-competent architect of foreign policy.

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

[1] What is the manifestation that civilian authority is always supreme over the military in the Philippines? The Chief of the Armed Forces, the President, is a civilian.
[2] The AFP is the protector of the people and the State's sovereignty and territory.
[3] Hence, the AFP, as a generally rule, takes part only in the maintenance of peace and order affecting the Philippine sovereignty or the national territory. Examples of this are international aggression, invasion or rebellion.
[4] As a general rule, the maintenance of peace and order within the country is the task of the Philippine National Police.
[5] Nevertheless, the calling-out power of the President may be used in order to mobilize the AFP to suppress, for example, lawless violence.
[6] Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. (Article VII)

Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

[1] This is self-executing.
[2] The general rule is that the Government's duty is to serve and protect the people. However, when the sovereignty and national territory of the State is at stake, the Government has the power to call upon the people to render mandatory personal, military or civil service.
[3] Note that Congress has the power to exercise this "calling-upon" power. In doing so, it may prescribe penalties for those who evade the (military) draft.
[4] Remember that the due process clause and the equal protection clause still operate in case people are called upon to render mandatory service. Hence, the law, as a rule, must apply to all people of the same class.
[5] However, an exception to this is the "conscientious objector rule."
[6] A famous case on conscientious objection is Mohammad Ali. He wanted to evade the military draft by invoking his religion, Islam. He said that his religion prohibits him to use violence. His objection was rejected because it was not "sincere" and "reasonable." The US Supreme Court said that, as a boxer, he cannot say that he is against violence.
[7] For more on the conscientious objector rule, please go to https://www.projectjurisprudence.com/2018/08/conscientious-objectors-freedom-of-religion.html.
[8] This "calling-upon" power does not always involve military service. It can also be civil service.
[9] Whether military or civil service, a person must render it "personally." He cannot pay or ask someone else to substitute him.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

[1] This has been dubbed as the "police power clause." This is not true because police power is an inherent power of the State. It inheres even without any constitutional grant or provision.

Section 6. The separation of Church and State shall be inviolable.

[1] There are two views on the doctrine of church-state separation.
[2] The first view is the strict separationist approach which mandates that church and state shall always be separate. There is a crowbar separation.
[3] The second view is the benevolent neutrality approach which says that, as long as there is no compelling state interest prejudiced by a church doctrine or action, the government shall not interfere.
[4] In the case of Estrada vs. Escritor, the Supreme Court did not punish a court employee who lives as husband and wife with a married man who has long been separated de factor with his legal wife. This union was blessed by Jehovah's Witnesses.
[5] In Leus vs. St. Scholastica, the Supreme Court ruled that a female employee who gets pregnant out of wedlock and by her boyfriend cannot be dismissed for "immorality" because "morality" under the law is secular not religious.
STATE POLICIES

Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

[1] This is not self-executing.
[2] Whether or not the Philippines will truly pursue an independent foreign policy depends upon the President and Congress as architects of our foreign policy.
[3] In Vinuya vs. Romolu, Congress was not mentioned as a foreign policy architect, only the President. However, Professor Gatdula believes Congress, as the only yielding the power of the purse, also takes part in the formulation of foreign policies.

Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

[1] This is self-executing.
[2] Because of this, foreign military forces cannot bring nuclear weapons within Philippine territory despite military-exercise agreements with the Philippine government.

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

[1] This is not self-executing.
[2] Note that the State does not promote overseas employment but "full" employment.
[3] There are laws enabling this provision such as laws implemented by the DSWD.

Section 10. The State shall promote social justice in all phases of national development.

[1] Social justice is a concept founded on police power. The State gives more laws to those who have less in life.
[2] Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. (Calalang vs. Williams)
[3] However, social justice cannot be used to oppress those who have more in life. Remember that the exercise of police power must not be done arbitrarily. There must be reasonable means and reasonable purpose.

Section 11. The State values the dignity of every human person and guarantees full respect for human rights.

[1] This is discussed further under Article XIII.

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

[1] The first sentence is somewhat a self-executing provision. Because of it, any doubt regarding its validity shall be resolved in favor of marriage.
[2] The second sentence is also self-executing. Because of it, abortion is prohibited in the Philippines "from conception."
[3] In Imbong vs Ochoa, the Supreme Court said the promotion by the State of contraceptives is not a violation of this constitutional mandate. However, the government must make sure that pills are not abortifacient.
[4] There is nothing to protect if there is no "conception" yet. Hence, contraceptives that prevent conception cannot be deemed a violation of Section 12.
[5] The third paragraph is a source of debate. However, there have been decision of the US Supreme Court giving parents the right to decide whether their children should go to school.
[6] In the Philippines, "elementary education is compulsory for all children of school age." (Article XIV, Section 2)

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

[1] Not self-executing.

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

[1] Not self-executing.
[2] Regarding equality before the law of women and men, the best basis is the equal protection clause under Article III.

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

[1] Sections 15 and 16 are self-executing provisions. In fact, they are rights despite not being under Article III. (Oposa vs. Factoran)
[2] In Oposa vs. Factoran, children were allowed to sue the government despite their lack of capacity to sue. The Supreme Court ruled that environmental rights are an "intergenerational responsibility." Hence, children have the capacity to sue to represent the present generation and the generations yet unborn.
[3] In the same case, the Supreme Court said, "While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life."

Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

[1] Not self-executing.

Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

[1] Not self-executing. The enabling law is P.D. 442 otherwise known as the Labor Code of the Philippines.

Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

[1] Not self-executing. The self-executing counterpart of this is under Article XII regarding the Filipino first policy and other rules.

Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

[1] This is the opposite of Section 18. Section 18 protects workers while Section 20 protects employers.
[2] For more information, please read Section 3 of Article XIII.

Section 21. The State shall promote comprehensive rural development and agrarian reform.

[1] Not self-executing. The enabling law is the Comprehensive Agrarian Reform Law.

Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

[1] Not self-executing. The enabling law is the Indigenous Peoples Rights Act (IPRA).

Section 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

[1] Not self-executing.

Section 24. The State recognizes the vital role of communication and information in nation-building.

[1] Not self-executing.

Section 25. The State shall ensure the autonomy of local governments.

[1] Not self-executing. The self-executing counterpart of this is Article X.

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

[1] Not self-executing. So far, Congress has not yet defined political dynasties.
[2] Section 26 overrides the equal protection clause. Hence, in case Congress enacts a law defining political dynasties, the equal protection clause cannot be invoked. However, the definition must be reasonable.

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

[1] Not self-executing.

Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

[1] Self-executing even without a law prescribing conditions not because this provision is self-executing itself but because of Section 7 of Article III. (Legaspi vs. CSC)
[2] Section 8 of Article III: "The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis. for policy development, shall be afforded the citizen, subject to such stations as may be provided by law."
[3] The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies. The first category refers to any document that is part of the public records in the custody of government agencies or officials. The second category refers to documents and papers recording, evidencing, establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of government agencies or officials. The third category refers to research data, whether raw, collated or processed, owned by the government and used in formulating government policies. (Chavez vs. PEA

Popular Posts