to be established under a constitution drafted
and ratified by the Filipino people, the
Introduction
♦ “Constitution” – a written instrument by which the
fundamental powers of government are established,
limited and defined, and by which these powers are
distributed among several departments, for their more
safe and useful exercise, for the benefit of the body
politic
♦ Fundamental purpose of a constitution: a grant and
a limitation of governmental authority
♦ The Constitution is the supreme written law of the land
♦ Classifications of the constitution: written and unwritten;
flexible and rigid
• Classification as to the extent to which
constitutions are observed as norms of
governmental action:
o Normative constitution – its norms
direct governmental action, and
government habitually adjusts its
actions to the norms  like a suit that
fits and is actually worn
o Nominal constitution – cannot yet be
fully operative because of existing
socio-economic conditions  like a suit
in storage waiting for the wearer to
grow to the proper size
o Semantic constitution – the primary
purpose of a constitution is to limit
power: this does the opposite. It is a
tool for the perpetuation of power in the
hands of power holders  not a suit,
but a disguise
♦ A constitutional document may be divided into 3
parts:
• Constitution of government – provisions that set
up the governmental structure
• Constitution of liberty – guarantee individual
fundamental liberties against governmental
abuse
• Constitution of sovereignty – outline the process
whereby the sovereign people may change the
constitution
♦ “Constitutional law” – body of rules resulting from the
interpretation by a high court of cases in which the
validity, in relation to the constitutional instrument of
some act of governmental power… has been challenged.
• “Judicial review” – involves the power and
duty on the part of the Court pronouncing void
any such act which does not square with its own
reading of the constitutional instrument. (power
and duty to make void acts which are not in
keeping with the Constitution)
♦ Constitutionalism dates back to the Treaty of Paris
transferring Spanish sovereignty over the Islands to the
U.S. Thereafter, Philippine constitutional law grew from
a series of organic documents enacted (stated below) by
the U.S. government.
• Pres. McKinley’s Instruction to the Second
Philippine Commission
• Philippine Bill of 1902
• Philippine Autonomy Act of 1916
♦ The 1935 Constitution
• Tydings-McDuffie Law – provided for the
establishment of a Commonwealth Government
Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 
Philippines already had a solid body of
constitutional jurisprudence on which to build.
o It was through the authority of this law
that a Constitutional Convention was
called (for the creation of the 1935
Constitution). It lasted from July 30,
1934 to February 8, 1935.
o March 3, 1935 – U.S. President
approved the draft
o May 14, 1935 – Filipino electorate
ratified the same by an overwhelming
majority vote.
o November 15, 1935 – Commonwealth
government established by the
Constitution became operative
o July 4, 1946 – Philippine
Independence!!! 
• Many felt a certain unease in
that the Philippines, already
independent at the time,
continued to operate under a
Constitution that had been
fashioned under colonial
auspices. Hence, the agitation
for a thorough overhaul of the
1935 Constitution arose.
♦ The 1973 Constitution
• March 16, 1967 – Phil. Congress, pursuant to
authority given to them by the 1935
Constitution, passed Resolution No. 2 (later
amended by Resolution No. 4 passed on June 17,
1969) called for a Convention to propose
amendments to the Constitution.
• November 20, 1970 – election of delegates to
the Convention
• June 1, 1971 – 1971 Constitutional Convention
(ConCon) began
• September 21, 1972 – martial law was declared.
Even though some delegates were placed under
detention, went into hiding or voluntary exile,
the ConCon continued its deliberations under an
atmosphere of fear and uncertainty.
• November 29, 1972 – ConCon approved its
Proposed constitution
• November 30, 1972 – the Pres. issued
Presidential Decree No. 73: submitting to the
Filipino people for ratification or rejection the
Constitution of the Republic of the Philippines
proposed by the 1971 ConCon and setting the
date of the plebiscite on January 15, 1973
• January 7, 1973 – General Order No. 20 was
issued by the President directing that the said
plebiscite be postponed until further notice.
• P.D. No. 86 – organized the “Citizen’s
Assemblies”. Said assembly was asked certain
questions, such as “Do you approve of the New
Constitution?”
• January 17, 1973 – the Supreme Court was still
hearing arguments to enjoin the holding of the
plebiscite, however, Proclamation No. 1102 was
made by the President, announcing that the
proposed Constitution had been ratified by an
overwhelming vote of the members of the
Citizen’s Assemblies
• March 31, 1973 – a divided SC ruled that “there
is no further judicial obstacle to the new
Constitution being considered in force and
effect”
• The Executive Dept., with vigor and all the
resources at its command, proceeded to
implement the new Constitution
1
 • The Legislative Dept. was nowhere to be found
to object
• Ordinary mortals lived and found their fortunes
(and misfortunes) under the new Constitution
• In 1976, the Constitution was amended to give
birth to the interim Batasang Pambansa (a
legislative body which functioned no better than
as a rubber stamp for the will of the President
which found a new authoritarian vehicle in
Amendment 6). Later on, the interim BP gave
way to a regular BP.
• In 1981, the Constitution was amended again to
depart from the parliamentary to the
presidential form.
♦ The FREEDOM Constitution
• February 15, 1986 – the BP, in the exercise of
powers given by the 1973 Constitution,
proclaimed Marcos as the president, amidst
widespread protest.
• February 22, 1986 – Minister of National Defense
Enrile and Vice Chief of Staff General Ramos
initiated a revolt against Marcos
o The civilian support given to the
outnumbered Ramos-Enrile forces
caused other military elements to
switch their support to Pres. Aquino
• February 24, 1986 – after the Air Force started to
support Aquino, it was deemed over for Marcos
and his allies
• February 25, 1986 – in defiance of the provisions
of the 1973 Constitution and without the
sanction of the BP, Aquino was proclaimed
president at the Club Filipino and was
immediately sworn into office by Senior
Associate Justice of the SC Claudio Teehankee
o At the same time, Marcos was being
sworn into office by Chief Justice Ramon
Aquino at Malacañang. The same night,
he and his family and supporters went
into exile.
• Pres. Aquino chose to turn her back on the 1973
Constitution whose officials had denied her the
presidency. She chose instead to govern under a
Provisional Constitution, which was Proclamation
No. 3 or the Freedom Constitution
♦ The 1987 Constitution
• 1986 ConCon: June 1, 1986 to October 15, 1986
• Article 6 of the Freedom Constitution:
o Sec. 1: Within 60 days from date of
this Proclamation, a Commission shall
be appointed by the President to draft a
New Constitution. The Commission shall
be composed of not less than 30 and
not more than 50 natural-born
citizens of the Philippines, of
recognized probity known for their
independence, nationalism and
patriotism. They shall be chosen by
the President after consultation
with various sectors of society.
o Sec. 2: The Commission shall complete
its work within as short a period as may
be consistent with the need both to
hasten the return of normal
constitutional gov’t and to draft a
document truly reflective of the ideals
and aspirations of the Filipino people.
o Sec. 3: The Commission shall conduct
public hearings to insure that the
people will have adequate
Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 
participation in the formulation of the
New Constitution.
o Sec. 4: The plenary sessions of the
Commission shall be public and fully
recorded.
o Sec. 5: The new Constitution shall be
presented by the Commission to the
President who shall fix the date for
the holding of a plebiscite. It shall
become valid and effective upon
ratification by a majority of the
votes cast in such which shall be held
within a period of 60 days following
its submission to the President.
• Plebiscite was held on
February 2, 1987
PREAMBLE
“We, the sovereign Filipino people,
imploring the aid of Almighty God, 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.”
The Preamble
Should the Preamble be written before or after the
completion of the Constitution?
1. Preamble should be formulated after the completion
of the Constitution:
• Preamble – a distillation of the ideals and
aspirations of the Filipino people
• Since it is a distillation of the ideals and
aspirations, it should not be finalized until after
those ideals and aspirations had been
hammered out.
2. Preamble can be formulated even before the
completion of the Constitution:
• Commissioners themselves were in a position to
enumerate 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.
• Commission agreed that the Preamble would still
be subject to modifications after the formulation
of the body of the document.
• But the commission did not go back to the
Preamble after the completion of the body of
document.
Purpose and effect of the Preamble
• It is not a source of power or right for any
department of government.
• It sets down the origin, scope, and purpose of the
Constitution and is thus useful as an aid in
ascertaining the meaning of ambiguous provisions in
the body of the constitution.
• The Preamble bears witness to the fact that the
Constitution is the manifestation of the sovereign will
of the Filipino people.
2
 • 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

Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos.  3

  Archipelago: as a unit of water studded with
islands
o The land area is everything that
comes within the water area
o The committee preferred this
definition over the first one
Archipelagic principle
o principle that the Philippine
Constitution adheres to; Legal &
Political basis for considering the
7,107 islands as one political unit
o Committee Report No. 01 of 1973:
“the inclusion in the new
Constitution of a provision spelling
out the archipelagic principle of the
Philippine government will certainly
strengthen our historical position
and will help us in sustaining our
archipelagic theory in the
Convention on the Law of the Sea
in 1973 and in any case that may
possibly be ventilated before the
World Court in the future”
“..all other territories belonging to the
Philippines by historic right or legal title”
 Inclusion of Batanes Islands
 Committee Report No. 1: intended to cover
the claim to Sabah which has been filed by
the Philippines and the possible claim to
Freedom Land and the Marianas Islands
 The intent was to avoid forfeiture of these
claims by their omission from the
constitutional definition
 Historic right: Batanes belongs to the
Philippine because in all its history, Batanes
had always been part of our country.
 Sabah: our claim is based on a “legal title”
perfected in 1962
5. 1982 Convention on the Law of the Sea (LOS)
• 1987 Constitution was formulated while the
Philippines was already a party to the 1982
Convention on the Law of the Sea.
Substantial provisions found in LOS which helps in the
understanding of the constitutional text:
1. Archipelago, archipelagic state
• Article 46 of the Convention
(a) “Archipelagic State”
means a State constituted wholly
by one or more archipelagos and
may include other islands
(b) “Archipelago” means a
group of islands, including parts of
islands, interconnecting waters and
other natural features which are so
closely interrelated that such
islands, waters and other natural
features form an intrinsic
geographical, economic and
political entity, or which historically
have been regarded as such.
- Under this definition,
Batanes should be considered part
of the archipelago and not just of
territories outside the archipelago.
2. The territorial sea
• As distinct from the state’s inland and
internal waters, the territorial sea consists of
a marginal belt of maritime waters adjacent
to the baselines extending 12 nautical miles
outward. Outside these are the high seas.
• The Three (3) mile rule, which was the
traditional length of the territorial waters
Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 
measured seawards according to the cannon-
shot rule formulated in 1702, has now been
discarded.
• When the Twelve (12) mile rule application
overlaps to neighboring littoral states, the
rule established is that the dividing line is a
median line equidistant from the opposite
baselines.
3. Baselines
• “the low water line along the coast as
marked on large scale charts officially
recognized by the coastal State”
• Two (2) ways to draw the baseline:
a. “Normal” baseline is one drawn
following “the low water line along
the coast as marked on large scale
charts officially recognized by the
coastal State”. This would normally
not consist of straight lines.
b. “Straight” baselines are drawn
connecting selected points on the
coast without appreciable
departure from the general shape
of the coast. This method was first
upheld in the Anglo-Norwegian
Fisheries Case. Likewise, R.A. No.
3046 and R.A. No. 5446 have
drawn “straight baselines” around
the Philippines.
• The rule now is that in localities where the
coastlines is deeply indented and cut into, or
if there is a fringe of islands along the coast
in its immediate vicinity, the method of
straight baselines joining appropriate points
may be employed.
• BASELINE provisions are found in Article 47
of the 1982 Convention. It is both a solution
and a problem.
4. Sovereignty over territorial waters
• A state exercises sovereignty over its
territorial sea subject to the right of innocent
passage by other States. Innocent passage is
understood as passage not prejudicial to the
interests of the coastal state nor contrary to
recognized principles of international law.
• Acts that are not considered innocent
passage under Article 19(2)
a. any threat or use of force
against the sovereignty, territorial
integrity or political independence
of the coastal State, or in any other
manner in violation of the
principles of international law
embodied in the Charter of the
united Nations
b. any exercise or practice
with weapons of any kind
c. any act aimed at
collecting information to the
prejudice of the defense or security
of the coastal State
d. any act of propaganda
aimed at affecting the defense or
security of the coastal State
e. the launching, landing or
taking on board of any aircraft
f. the launching, landing or
taking on board of any military
device
g. the loading or unloading
of any commodity, currency or
person contrary to the customs,
fiscal, immigration or sanitary laws
and regulations of the coastal State
4
 h. any act of wilful and
serious pollution contrary to this
Convention
i. any fishing activity
j. the carrying out of
research or survey activities
k. any act aimed at
interfering with any system of
communication or any other
facilities or installations of the
coastal State
l. any other activity not
having a direct bearing on passage
• Coastal states have the unilateral right to
verify the innocent character of passage, and
it may take the necessary steps to prevent
passage that it determines to be not
innocent.
5. Archipelagic waters
• 1973 Constitution, Article I: “The waters
around between and connecting the islands
of the archipelago, irrespective of their
breadth and dimensions, form part of the
internal waters of the Philippines.” This
assertion, together with the “straight
baseline method”, forms the “Archipelagic
Principle”, which is now found in the 1987
Constitution.
• “Internal Waters”: internal or inland waters
consist of all parts of the sea landwards from
the baseline as well as inland rivers and
lakes. All of them are subject to the
sovereignty of the state to the same extent
that the land domain is. Unlike territorial
waters, they are not subject to the right of
innocent passage by other states.
6. Insular shelf
• The continental shelf , archipelagic or
insular shelf for archipelagos, refers to:
A. the seabed and subsoil of
the submarine areas adjacent to
the coastal state but outside the
territorial sea, to a depth of two
hundred meter or, beyond that
limit, to where the depth allows
exploitation.
B. the seabed and subsoil of
areas adjacent to islands.
• The coastal state has the right to explore
and exploit its natural resources, to erect
installations needed, and to erect a safety
zone over its installations with a radius of
500 meters. The right does not affect the
right of navigation of others. Moreover, the
right does not extent to non-resource
material in the shelf area such as wrecked
ship and their cargoes.
6. National Territory in the 1987 Constitution
• On June 26, 1986, the Committee draft of
the National Territory noted that the first
paragraph was an exact reproduction of the
1973 text. The second paragraph was new
and made reference to the 1982 Convention
of the Law of the Sea.
• The deliberations of the 1986 Constitutional
Commission focused on:
(1) Whether to have a
provision on national territory.
• This was resolved easily.
Much of the 1972 debate was
repeated. In the end there was
recognition that such an article
Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos. 
would have an educational
value and there was
apprehension that it would be
difficult to explain why after
1935 and 1973 provisions on
national territory the new
Constitution should fail to
provide for one.
(2) What posture to take
relative to Sabah as covered by the
clause “all other territories belong
to the Philippines by historic right
or legal title”.
• This was debated per
longum et latum with a certain
degree of warmth even if it
was not always clear what
individual delegates, including
sponsor wanted.
• This was not thoroughly
discussed, and nothing
conclusive was put down in
writing.
(3) How the definition of
territory would relate to the 1982
Convention on the Law of the Sea.
a. “all other territories over which the Philippines has
sovereignty or jurisdiction”
• 1973: “all other territories belonging to the
Philippines by historic right or legal title” was
replaced by 1987: “all other territories over which
the Philippines has sovereignty or jurisdiction.”
• Those who espoused the 1973 basically wanted to
avoid the impression of constitutional abandonment
of the Philippine claim to Sabah. Those who espoused
the new phraseology contended that theirs did not
mean abandonment of any claim which might be
justifiable under generally accepted principles of
international law.
• The principal stumbling block was the phrase
“exercises sovereign jurisdiction”, which could easily
be read to mean that territory not under the effective
control of the Philippines, such as Sabah, would not
be part of it.
• Fr. Joaquin Bernas SJ provided the solution by
introducing a new phraseology: “and all other
territories over which the Philippines has sovereignty
or jurisdiction”, where “has” was of broader scope
than exercises so that it clearly allowed juridical
retention of a territory even when it was physically
wrested by a stronger force.
c. “...its terrestrial, fluvial, and aerial domains, including the
territorial sea, the sea bed, the subsoil, the insular shelves,
and other submarine areas thereof.”
• This rephrasing was authored by Commissioner
Adolfo Azcuna.
• It was not meant to and does not add anything to the
substance of what was already contained in the 1973
definition.
• Azcuna’s explanation follows closely the terms of the
1982 Convention on the Law of the Sea. To begin
with, Article 2 of the Convention says:
(1) The sovereignty of a coastal State extends,
beyond its land territory and internal waters and,
in the case of an archipelagic State, its
archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.
(2) This sovereignty extends to the airspace over
the territorial sea as well as to its bed and
subsoil.
(3) The sovereignty over the territorial sea is
exercised subject to this Convention and to
other rules of international law.
5
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.

Constitutional Law I: Block E 2014 Reviewer | Preamble – Article I | KSantos.  6