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A community of Persons
HISTORY, POLITICS, GOVERNMENT, AND the CONSTITUTION of THE PHILIPPINES
A SOCIOLOGICAL-JURIDICAL APPROACH
VIVENCIO O. BALLANO, Ph.D.
ABOUT THE AUTHOR
Dr. Vivencio (Ven) O. Ballano is a Special Lecturer of the Graduate School (MBA Program) of Polytechnic University of the Philippines (PUP) and Associate Professor of Sociology and Law at St. Paul University, Quezon City, Philippines. His specialized areas of teaching and research include Sociology of Law, Love, Business Management, Religion, Optical Media Law, Constitutional Law, Disaster Management Law and Copyright Infringement. He obtained his master's degree in Theology (MA) and doctoral degree (PhD) in Sociology from the Ateneo de Manila University in 2011 and was chosen as a 2012 Post-Doctoral Research Fellow of the Southeast Asian Studies Research Exchange Program (SEASREP). He has read papers in local and international conferences and published articles in journals, mostly in the area of copyright piracy and disaster management. He has also published a textbook for his course on Politics, Government, and the Philippine Constitution. He is a founding Board Member of the Philippine Association for the Sociology of Religion (PASR) and a member of the Philippine Sociological Society (PSS). In 2013, St. Paul University recognised his research work by awarding him the Best Researcher Award for that year. He is the author of "Sociological Perspectives on Media Piracy in the Philippines and Vietnam" (Springer Singapore 2016).
Follow him on Twitter @detectivebogart, [email protected] Dr. Vivencio (Ven) Ballano, [email protected], Facebook @Ven Ballano [email protected], [email protected] Ballano and other social media sites. Visit his blog site @ wordpress.com/vballano. View his profile @about.me/vballano.
ALL RIGHTS RESERVED
Copyright 2016 by Vivencio O. Ballano
All rights reserved. No part of this book may be reproduced, copied, stored or transmitted in any form or by any means – graphic, electronic or mechanical, including photocopying, recording, or information storage and retrieval systems – without permission of the author, except in the case of brief quotations embodied in critical reviews and other noncommercial uses permitted by copyright law. For permission requests, contact the author at [email protected]
Cover Design: "A beach in Samar" (Image courtesy of the author)
TABLE OF CONTENTS
I. THE WHAT, HOW AND WHY OF HISTORY
What is history?
Why do we study history?
How do we study history?
II. THE GOVERNMENT SYSTEM IN THE PHILIPPINES DURING THE SPANISH PERIOD
The Executive Branch
The Legislative Branch
The Judicial Branch
III. STUDYING POLITICS, POWER AND LAW IN THE PHILIPPINES
Studying Politics, Power, and Authority
Approaches to Studying Power and Politics in the Philippines
Disciplines Studying Politics in Society
Understanding Law in Society
Law and Morality: Is it always Moral to be Legal?
IV. THE STATE AND GOVERNMENT
Two Approaches in Defining the State
The Inherent Powers of the State
The Difference between the State, Government and Nation
The Importance of Government
The Difference between Presidential and Parliamentary
Forms of Government
V. THE PHILIPPINE CONSTITUTION
The Nature of a Constitution
Constitution and Statute
Methods of Changing the Constitution
Constitutions in Philippine History
The Basic Principles in the 1987 Constitution
Some Basic Constitutional Principles
The Three Branches of the Philippine Government
VI. THE BILL OF RIGHTS
The Nature of Human Rights
Types of Human Rights
Human Rights under the Bill of Rights
VII. LAW AND LEGISLATIVE POWER IN THE PHILIPPINES
Constitution Distinguished from Statute
National and District Legislators
Sessions of Congress
How Congress Makes Laws or Statutes
VIII. THE EXECUTIVE BRANCH
The Nature of Executive Power
The Qualifications of the President and Vice President
Powers of the President
Causes of Removal of the President
IX. JUDICIAL POWER AND THE JUDICIARY
Composition of the Supreme Court
Powers of the Supreme Court
Problems in Philippine Courts
Membership in the Judiciary
The Judicial and Bar Council (JBC)
This book aims to orient readers who are interested to know some basic concepts and principles on Philippine politics, law, government, constitution, and spirituality of social transformation. These topics are indeed broad and one book for this would surely be not enough to discuss them comprehensively. Therefore, this book is only introductory in nature and selects only important political matters which are deemed necessary, especially for lay people or college students who are not majoring in Political Science, to become familiar with politics, law and general operations of our government.
Unlike many books on Philippine politics and government, this book attempts to combine the normative or the juridical approach of jurisprudence used by lawyers and judges and the empirical or descriptive approach of the social sciences, particularly that of sociology. Normative approaches, on the one hand, usually have ideal norms or a set of values to judge reality. They evaluate social reality using these norms to judge whether a social practice deviates from these standards or not, or whether it is right or wrong. The judgment of a normative approach is value-laden or is often influenced by the value system of the observer. The reality is, therefore, judged not "as it is" but "as it should be" in accordance with a certain set of values or laws in looking at the world. Empirical approaches of the social sciences, on the other hand, merely judge reality "as it is" based on the methods of science. They aim to know the facts based on scientific observation and not on the opinionated views about facts based on the observer's values or norms. Thus empirical judgment aims to be value-free and to be detached as much as possible from the personal views and biases of the observer. A trained political scientist usually brackets his personal biases and values when assessing facts in order to understand the real dynamics of politics and power in society.
The predominant normative approach used by many books on politics, government, and constitution can be attributed to the fact that most of their writers are lawyers. It is no surprise then that the content focuses more on the laws prescribed by legal codes and cases decided by the Supreme Court. There is nothing wrong with this approach. The only problem we can encounter is that we cannot fully appreciate how these legal prescriptions operate in actual situations without some kind of social science research which aims to understand the social and cultural underpinnings of these laws and cases. Sociology which aims to understand the dynamics of society is of great help to provide the social and cultural contexts of these legal prescriptions.
This book is composed of eight (9) chapters corresponding to the eight topics on political history, law, politics, government, and the Philippine Constitution. Some of the topics are placed in tabular forms or contingency tables in order that readers can see differences and similarities. For college students, a separate manual which contains a set of objectives, keywords, review questions and exercises of each chapter is provided to allow them to apply the important concepts and principles of the book.
This book could not have been made possible with the assistance of some people in St. Paul University Quezon City (SPUQC). First, I would like to thank the administrators of the university led by Sister Nilda Masirag, SPC, President and Sister Fidelisa Portillo, SPC, Vice-President for Academics, for approving the use of this CD learning material in the classroom for college students. I would like also to thank Dr. Ronel de la Cruz, Head of the Research and Publication Center for his encouragement and support for this project. I am indebted to Dr. Consuelo Paz, Research Director of the Research and Publication Center, and to Dr. Cecille Medina, SPUQC Faculty Research Coordinator for the CASE faculty, for their generous support for the completion of this book, particularly in accepting, reviewing, and editing the manuscript despite the time constraint. Finally, I am grateful to my colleagues in the General Education Department as well as to all people who have extended their help for their support and assistance in actualizing this textbook. May our Good Lord through the intercession of Mama Mary and St. Paul bless all your endeavors. May the Charity of Christ urge us on!
THE WHAT, HOW AND WHY OF HISTORY
What is history? How do we do history? Why do we need to study history, particularly Philippine history? Why this textbook on Philippine history? These are the questions this short introduction aims to elaborate modestly in a simplified manner.
What is history?
Like any other academic disciples, there are as many definitions as there many theories on history. What is common, however, is the idea that the study of history is a systematic study of the past. One cannot do history in the future or if the event has not yet being unfolded by historical actors. Nevertheless, history is not merely the record of past events: it is "the record of what one age finds worthy of note in another". Another historian understands it as "a science whose business is to study events not accessible to our observation, and to study these events inferentially, arguing to them from something else which is accessible to our observation, and which the historian calls 'evidence for the events in which he is interested" (Philippine Encyclopedia of the Social Sciences 1993: 1).
Ambeth Ocampo's description of history is interesting. He proposes a working definition of history as kasaysayan or history as narrative (which be written, visual, oral or a combination of all these) about past events that has meaning to a certain group of people in a given time and place. For him, the two components of kasaysayan—salaysay and saysay are inseparable. Without both, one cannot have true history. He rejected the Western words for history which can mean a mere narrative of past events. For him, history or kasaysayan is not just a narrative or salaysay—it MUST have saysay or meaning. If one finds meaning in history, he said, it will gain power to change people's lives (Ocampo 2001: x).
Whatever definition or description one has on history, the fact remains that the process of writing history is problematic and subject to different interpretation. It depends on what theory or framework the historian is viewing the historical event. Its objectivity is always being tainted by the personal biases and theoretical orientation of the historian.
Can there be an objective historical writing then? This question is part of a greater debate in social sciences, particularly in ethnographic writing in anthropology, whether it is possible to attain objectivity in writing. Postmodernists have long challenged the assumption that the mind can attain an objective description of reality: there is no such thing as objectivity but only shared subjectivity, that is, there is no fixed norm of what is objective but only a consensus of people in a community on what is considered objective. For them, there are limits of what the mind can describe and write. When one describes and writes an event, the writer can only capture a portion of what s/he has seen using his/her sense of sight, other data which can be attained through the other senses such as the smell, the sound, touch, and taste are obviously missed out. Words cannot capture the totality of even for just one event or action. Moreover, historian as a writer can only choose one perspective or point of view on how to describe the event. The post-structuralists such as Jacques Derrida, the father of deconstruction theory, Michel Foucault and others have warned us that a written text can have various levels of interpretation. In the field of Hermeneutics, the act of thinking itself is already an act of interpretation. Thus, the reconstruction and description of a historical event is an interpretation of the historian of the interpretation of the writer of his/her source. If s/he uses a primary source or document, his/her piece of writing is already a second level of interpretation. The author of that source is the first interpretation. And s/he uses a secondary source, the historian's view is third level of interpretation. The reader of the historian's account is also another interpreter who can understand the historical writing different from the historian's intention, and so on. That is why Derrida and others declare that everything is text and interpretation. The diversity of Filipino historians' interpretation of certain historical events can attest to the contentious nature of historical writing. Take for instance, the authenticity of Jose Rizal's retraction before his execution. Historians are divided and their interpretation of the documents and other evidence differ from one another. Though they can be grouped together generally as anti-retractionists and pro-retractionists, still there are variations of interpretations within the grouping. There is no uniformity of views even with those who hold similar position to a historical issue.
Are there given facts? Even though there is diversity of opinion and interpretation of historians to historical events, there are certain things which many historians agree as "historical facts" which cannot be subjected to debate. Thus, some historical figures, dates and places are generally considered as historical facts by historians. These conventions of particular history which practitioners recognized as given or assumed to be true. Church historians, for instance, agree that the Patronato Real de las Indias is responsible for the Christianization of the natives in the Philippines, or that the Royal Audiencia served as the "Supreme Court" during the Spanish period.
Why do we need to study history?
According to Carr (1970), history is a study of human achievement. The past is intelligent to us only in the light of the present and the present can be fully understood only in the light of the past. To enable us to understand society of the past and to increase our mastery over the society of the present is the dual function of history (Carr 1970: 102). In short, we cannot fully understand the present situation in Philippine society unless we have a firm grasp of the past. This past whether during the Pre-Spanish, Spanish, American or any other period can only be understood in the light of the present situation. Thus, one can only understand fully, for instance, why People Power II occurred in such an organized manner to remove Joseph Estrada from the Presidency if one fully appreciates what actually happened during EDSA People Power I which deposed President Marcos from the presidency. Or one can only understand the present economic crisis of the country if one learns the whole story of the interference of the United States in the Philippine economy since its occupation of the country after the Spanish rule, particularly the adoption of the parity rights provision in the constitution, free trade policy and the removal of the protectionist policy of the economy by Philippine presidents loyal to America. History sharpens our understanding of the present and compels us to look back what happened in the past to grasp fully the our present social ills.
Says Ocampo: "The point to remember is that history does not repeat itself. We repeat history" (Ocampo 2001:xviii). Thus, to avoid repeating the same mistakes and errors in the past that plague the nation, it is imperative that young people, especially students who are future leaders of this country, must study history and learn from its lessons.
How do we study history?
Though contemporary approaches in history use artifacts and testimonies, the writing of history remains dependent upon the availability of primary sources of evidence, particularly documentary sources. The axiom "No documents, no history" still lingers to the mind of many historians. To construct history is to narrate it based primarily on reliable documents. The historian constructs narratives, that is the telling of a succession of related episodes. His primary work is to bring these episodes to light, to show the relations existing between events, and in relating to explain them. Thus, history appears to be the expository narration of the course of human societies in the past (PES: 3-4). The historian first proceeds to decide what people want to know about, and then to go in search of statements about it, oral and written, purporting to be made by the actors in the events themselves or the eyewitnesses have told them, or have told their informants, or those who informed their informants, and so on.
Like any other social science like sociology and anthropology, history needs a find blend of theory and historical data in reconstructing the past. Theory and data are inseparable components in historicizing. The theory serves as a framework to interpret historical data, while historical data determines the appropriate choice of historical theory. A good historian starts doing history with an open mind and evaluates historical data critically in order to reconstruct the actual event. S/he does not tailor historical data to fit them into his favorite theory or theoretical bias. Of course, a historian can do inductive or deductive type of historicizing. In deductive approach, the historian begins with a theory and search for historical data to confirm it. In inductive approach, s/he begins with appreciation of historical data and proceeds to formulate his/her theory. In either way, the historian as a scientist must assume an objective stance and must avoid making value judgment. For Max Weber, a true scientist must be value-free in his/her judgment. S/he must bracket his personal values or biases while making assessment on research data. In the same manner, the historian must be value-free and neutral in his/her judgment in evaluating historical facts in order to attain objectivity. Exaggerating or underestimating facts to accommodate one's theoretical bias, or choosing a historical theory that fits to one's taste and twisting facts to validate it, is not a sound and scientific way of doing history.
The problem with the so-called critical history especially the Marxist approach is that the historians tend to manipulate the facts in order to fit them into their preferred theoretical framework. The historian Renato Constantino falls into this trap of twisting some facts to suit one's theoretical taste. Because of his a conflict theorist and historian, his interpretation of historical facts tend to be twisted in order to suit to his critical-Marxist interpretation of Philippine history. For this reason, Constantino has been criticized for not being empirical enough or balanced in his treatment of Philippine history. Says May (1987):
In evaluating previous scholarship, Constantino applies a curious yardstick—whether or not the writer criticizes the former colonial masters. He is not interested in balanced history. In his view, the Spaniards and the Americans were simply bad rulers, and the aim of the historian should be to expose their abuses. If a scholar writes a word in their defense—or if he attempts to be objective—he too is bad, or at least misguided. Constantino only exhibits disdain for objectivity… (May 1987: 5).
Aside from "tailoring" historical facts to suit the historian's theoretical preference, the danger of exaggerating facts to highlight only the glorious past and to inspire the next generation is also another trap that the historian must avoid. This what Prof. Randy David characterized as monumental history where the historian includes only in his/her writings the glorious or positive side of history and excludes its negative or dark side in order to impress people about the achievements of a nation and its heroes. Like the critical-Marxist approach, this type of history lacks objectivity and balanced view of the past. In monumental history, the historian becomes too selective in his/her choice of historical facts and abandons his responsibility to choose an appropriate theory to interpret all historical data at hand in order impress others.
A more balanced exposition of history requires neutrality and impartiality of the historian in choosing theory and historical data. Whether the approach is inductive or deductive, s/he should pursue his/her historical methodology with rigor and scientific discipline. S/he must allow the data to speak for themselves and choose a theory that best interpret them, without precondition or bias.
THE GOVERNMENT SYSTEM OF THE PHILIPPINES
DURING THE SPANISH PERIOD
I. The Branches of Government
The most popular way of understanding our Philippine government is by dividing it into three branches and by describing each branch according to its overall function. Under the present set-sup of our government, the three branches are as follows: the executive, legislative and judicial. The executive branch simply implements or enforces the law, the legislative branch enacts, modify or abolish the law, and the judicial branch generally interprets the law and settle cases. Though there is a big difference, of course, between our government today and the Spanish government in the colony during the Spanish era. Nevertheless, we can still identify these three branches during the Spanish period. After all, our government today was a product of the Spanish colonization. Using this three-fold function of the government as a basic framework in identifying the colonial government, we can now describe these branches which were introduced by Legazpi and his predecessors to establish the colonial state in our country.
A. The Executive Branch
The Spanish King and the Royal and Supreme Council of the Indies
Overall, the Spanish king, being the sovereign of Spain and its colonies, was the source of all executive powers of subordinate officials governing the Indies and the Philippines. Because of the vast territory controlled by Spain, the king delegated some of his executive powers to officials directly responsible in running the affairs of the archipelago. From 1565 to 1821, the Philippines was administered by the king of Spain through the viceroyalty of Nueva Espana or Mexico. During this period, our country was a satellite or extension of the province of Mexico where the governing body of all colonies of Spain called the Real y Supremo Consejo de las Indias (Royal and Supreme Council of the Indies) was located. This council was established by Charles V of Spain to assist the Spanish king in managing the affairs of the colonies abroad. It received its executive power from the king and possessed discretionary powers on how to implement the royal decrees and the collection of laws of the Indies (Recopilacion de leyes de los reynos de las Indias) in the colonies. By May 1863, this council was replaced by another governing body for the Indies—the Ministerio de Ultramar or the Ministry of Colonies (Agoncillo 1990: 75)
1. The Governor-General as the Chief Executive
Today, the chief executive or the highest public official of the land that implements the law under the 1987 Constitution is the President. During the Spanish period, however, the chief executive was the Governor General. He was appointed by the King of Spain and as the latter's representative in the colony, he was also called as the vice-royal patron. The governor-general enforced the king's royal decrees and all other laws of the colony and Spain. His executive powers include the following (Zaide 1999 104):
Commander-in-chief of the armed forces in the colony (Captain-General)
Appointing officer of colonial officials with powers to remove them, except those appointed directly by the king.
Chief justice/president of the Royal Audiencia (Supreme Court)
Vice-royal patron or king's representative with power to:
4.1) recommend priests as parish priests and to intervene in religious
4.2) declare war or peace with neighboring countries in the Orient.
4.3) appoint to and receive ambassadors from these countries.
Administrator of the Marianas, the Carolines and the Palaus as part of the
Philippines during the Spanish times.
There were times, however, during the Spanish period that the chief executive of the archipelago was not the Governor-General but the institution called the Royal Audiencia. The Royal Audiencia (its establishment and main functions will be discussed in the legislative and judicial branches below) acted governed the country for six times, 1606-08, 1616-18, 1632-33, 1677-79, 1689-90 and 1715-17, when the governorship was vacant due to the death or incapacity of the incumbent governor general.
2. Local Officials
Some aspects of the government structure of the Philippine government today are inherited from the Spanish colonial government. This is particularly true to local officials or public officers below the chief executive who enforce the law. These are the officials who work in the provincial, city, municipal and barangay levels of the executive branch of government. For clarity, let us identifying and briefly describe their functions according to this hierarchical order. Despite the changes in political structure during the long years of Spanish occupation, their main features remained.
1) Provincial Officials
For administrative purposes, the Philippines was divided into provinces and special districts. The provinces were called alcadias or provinces and the special districts were called corregimientos or districts. The alcadia or the provincial government is headed by the provincial governor who is known as alcalde mayor who while district or corregidor is usually headed by an army officer.
The Municipal Officials
2.1 The Qualification and Election of the Gobernadorcillo
Each province was divided into pueblos. The pueblo or town was the unit of local government during the Spanish period. This was headed by a local official called gobernadorcillo (little governor), popularly called capitan (his wife was called capitana). He was assisted by four lieutenants: (1) teniente mayor (chief lieutenant), (2) teniente de policia (lieutenant of police), (3) teniente de sementeras (lieutenant of the fields), and (4) teniente de ganados (lieutenant of the cattle) (Zaide 1970: 82). The position of gobenadorcillo was the highest government position a native or Chinese mestizo can occupy. If he was 25 years of age, literate in oral and written Spanish, and who had been a cabeza de barangay for four years, he can be elected as a gobernadoricallo (Agoncillo 1970: 77). We have to remember that the elective position during this period was limited only to the election of the gobernadorcillo. During the early years of Spanish rule, the gobernadorcillo was elected annually by all married men in the town. Later, this system was changed. He was elected annually by a board of 13 electors: the outgoing gobernadorcillo, 12 electors selected by lot, 6 incumbent cabezas de barangay (barangay captains) and 6 among former gobernadorcillos and cabezas (Ibid). The parish priest and the provincial governor or representative presided over this type of election (Zaide 1970: 82).
2.2 Administrative Duties of the Gobernadorcillo
The gobernadorcillo intervened in administrative cases involving lands, justice, finance, and the armed forces. In particular, some of his many administrative include the following: (1) preparation of the pardon (tribute list), (2) recruitment and distribution of men for the draft labor, (3) communal public work (such as construction and repair of minor bridges) and the quinto (military conscription) (4) postal clerk, and (5) and judge in civil suits involving P44.00 or less (Agoncillo 1970: 77).
2.3 Cabeza de Barangay
For administrative purposes, the pueblo was divided into barangays, each consisting of about 50 families. King Philip II of Spain conferred upon barangay head the title of cabezas de barangay to "show them good treatment and entrust them, in our name, with the government of the Indians, of whom they were formerly the lords" (Agoncillo 1970: 80). The barangay (from the word "balanghai" or 'boat) was retained as the basic political unit during the Spanish period. This was headed by a cabeza de barangay (his wife cabizana). To qualify, he must have a good moral character and owned properties.
Like the gobernadorciallo, the cabeza de barangay was responsible for the peace and order of his jurisdiction and for the recruitment of polistas or workers for communal public works. His main role, however, was being the tax and contributions collector for the gobernadorcillo. In lieu of these duties, the cabeza de barangay enjoyed some privileges which included non-payment of tax, and if he has served for 25 years, he was exempted from forced labor (Agoncillo 1970: 78).
2.4 Limited Powers for Gobernadorcillo and Cabezas
Both the gobernadorcillo and cabeza de barangay did not receive salary from the government. They were honorary positions. However, they were both exempted from forced labor or polo and tribute or tributo. Because they usually came from the principalia or higher social class in the pueblo, they were looked up to with respect by the working class.
Because of the policy of the union of Church and State prevailing during the Spanish period, the real and authority power in the pueblo did not emanate from the gobernadorcillo and cabeza de barangay but from the parish priest. Being a representative of the Church and a salaried public official, his word was said to be the law in the pueblo. "His recommendations on all matters affecting the town were heeded by the Spanish authority in Manila" (Zaide 1970: 83).
Big towns or pueblos in the Philippines during the Spanish period were created into cities and were governed by special charters or laws. Each city had an ayuntamiento or cabildo or city council. For instance, the City of Cebu which was established by Miguel Lopez de Legazpi in 1569 had a council consisting of 2 alcaldes ordinaries (equivalent to mayor and vice-mayor), 8 regidores (councilors), 1 secretary and 2 alguaciles (sheriffs). In the City of Manila in 1571, the council consisted of 2 alcades ordinaries, 12 regidores, 1 aguacil mayor (chief constable), 1 royal standard-bearer, and 1 secretary. By the year 1889, there were 8 cities in the Philippines: Manila, Naga, Vigan, Albay, Batangas, Iloilo and Jaro (Zaide 1970: 83).
B. The Legislative Branch
Legislative power as defined by our present 1987 Constitution is the power to enact, amend, or abolish the law. Today, lawmaking in the country is done by hierarchical legislative bodies depending on coverage of the laws created: Philippine Congress (Senate and House of Representatives) for national laws, Provincial Board for provincial laws, city, municipal and barangay councils for local laws or ordinances.
During the Spanish period, the sources of laws for the Philippines came from different lawmaking bodies, councils and individuals outside and inside the archipelago:
The Spanish King
When the Philippines was colonized in the 16th Century, Spain--including other countries of Europe during this period--was under a form of government called monarchy. Under this government, the ruling monarch or king possesses executive, judicial and legislative powers. With regard to laws, the king has lawmaking powers. He can issue royal decrees which are expected to be followed by all his subjects within his territorial jurisdiction. For Spain in the 16th Century, the enforcement of these royal decrees extended beyond its European borders and extended up to all its colonies abroad. In the Philippines, the governor-general who represented the Spanish king in the colony received these royal decrees and enforced them to parts of the country controlled by the colonizers. He, however, possessed discretionary powers in implementing these decrees. Because of his veto power called cumplase, the governor general could choose not to implement the entire or some provisions of the royal decree (Cf. Zaide 1999: 104).
The Spanish Cortes
The Spanish Cortes was the highest lawmaking body in Spain assisting the king in crafting laws the homeland Spain and for its colonies abroad. Its legislative powers underwent various changes. There was a time where it was dissolved and reestablished by the Spanish king. As well, there were moments in its history when its lawmaking powers were clipped by royal decrees.
The legislative of the Spanish Cortes had significant effect to the inhabitants of the Philippines. For instance, a law approved in November 8, 1820 prescribed new regulations governing Spain's trade with the East now open to Spanish nationals. It provided certain privileges to the country. Of interest to the Philippines was the fact that products and goods produced or manufactured in the Philippines were considered "national." This meant that they were entitled to the privileges and immunities which, by law, were accorded to Spanish products. Another law approved in June 29, 1821, also affected directly the Philippines. This law established direct mail service between Spain and the Philippines. By this legislation, the communication between the Philippines and Spain became more intimate (Zafra 1967: 122).
All the lawmakers in the Spanish Cortes were of course Spaniards. In the earlier period of its existence, no natives or inhabitants were appointed to represent the interest of the Philippines in lawmaking. It was only in the 19th Century when the king's rule was weakened and the Supreme Council of the Regency ruled Spain and its colonies in 1810 that the Philippines was allowed to send a representative. After the Regency laid down the regulations for the election of delegates in the Cortes, Ventura de los Reyes, a wealthy merchant of Manila, was elected as the Philippine representative from 1810 to 1813 (Zafra 1967: 118). Three more representatives followed him. However, this practice was stopped when the Cortes approved a new constitution for Spain in 1837—establishing the parliamentary system of government replacing the monarchial system. This signaled the end of Philippine representation in the process of making laws in Spain that promoted the interests of the natives and inhabitants in the archipelago (Ibid: 123).
The Council of the Indies
The Council of the Indies which was established by the king of Spain in 1524 did not only powers executive powers to enforce the royal decrees and the laws of the Indies. It also possessed legislative or lawmaking powers in its duty to implement properly the orders of the king to the colony.
The Governor General
The legislative powers of the governor general pertained to the promulgation of executive decrees (bandos) which had the force of law. As mentioned above, he exercised the veto power, called cumplase, in which he could suspend the enforcement of any royal decree or law from the king (Zaide 1970: 75). Though these executive decrees, he specified his new policy to be enforced in the colony including what part of the new royal decree he was enforcing or vetoing.
The Royal Audiencia
The Royal Audiencia which was known as the Supreme Court during the Spanish time also performed legislative functions. Established in Manila on May 5, 1583 by virtue of a royal decree, this judicial body which was composed of one president and five members, was empowered to promulgate laws for the colony. "These laws were called autos acordados (acts agreed upon) because they were enacted upon the agreement between the governor general and the members of the Royal Audiencia" (Zaide 1999: 105). Examples of this type of laws included restricting Chinese immigration to the colony and fixing the prices of prime commodities and ordering the people to comply with their religious duties (Ibid).
C. The Judicial Branch
The basic function of the judicial branch or the courts is to interpret the law and to settle disputes or cases. Our present judicial system is largely influenced by the Spanish legal system. However, the judicial branch during the Spanish system was not as clearly delineated with other two branches. The Union of Church and State during this era had even made the separation of religious and secular functions difficult to identify.
1) Council of the Indies as an Appellate Court
In addition to the executive and legislative powers it possessed to assist the king in governing the colonies, the Council of the Indies also exercised judicial functions. "It consisted of a president, four councilors who were either lawyers or clergymen, a secretary, a fiscal (crown attorney), a treasurer, a historian, cosmographer, a professor of mathematics and an usher" (Zaide 1999: 103). Its first president was a friar, Fray Garcia Jofre de Loaisa, the Father General of the Dominican Order and Archbishop of Seville (Ibid.).
Criminal and civil cases from the Royal Audiencia (Supreme Court) in Manila can be appealed to this court. Assuming that he or she has the financial resources, a losing party in an appeal case in the Supreme Court can elevate his or her case to the Council of the Indies for judicial review. And if he or she was still unsatisfied, he or she could still elevate it to the king of Spain for final decision.
2) The Governor General as the Chief Justice
As Chief justice of the Supreme Court in the colony, the governor-general enjoyed judicial powers. He presided over the trials of the Royal Audiencia. He could pardon persons convicted of crimes and grant amnesty (Zaide 1970:75).
3) The Royal Audiencia as the Supreme Court
The highest court of the land or the Supreme Court during the Spanish period was the Royal Audiencia. It began to function in 1584 with Govenor-General Santiago de Vera as it first president or chief justice (Zaide 1970: 77). As a judicial body, it was composed of the one president or the chief justice and five members called oidores as associate justices. The chief justice was normally the governor-general who was also the chief executive.
The Because of conflicts between its president and members, the Royal Audiencia was abolished in 1590. But it was later re-established and continued until the end of the Spanish rule in the Philippines.
The Royal Audiencia tried all kinds of criminal and civil cases appealed to it by losing parties from the lower courts (Zaide 1999: 105) or courts headed by the alcalde mayor in the provinces and gobernadorciallo in the towns. Criminal cases involved violation of criminal laws and usually punishable by imprisonment while civil cases involved disputes between private parties such as ownership of land, contracts, and so on and usually resolved by payment damages.
4) The Provincial Governor as the Regional Judge
Though his primary duty was to enforce locally the directives and laws from Manila, Alcade Mayor or provincial governor also performed judicial functions. He was the regional judge during the Spanish period who heard cases within his provincial territory involving more than 200 pesos. He heard appeal cases of losing parties which had been judged by the gobernadorcillo on the town level or pueblo (Cushner 1971: 175-176). "Since the salary of an alcalde was only 300 pesos a year, graft was a commonplace" (Ibid: 176). Oftentimes, there was conflict of interest. Since the alcalde was given the power to control trade in the province, there were instances where was the defendant and the judge of the case at the same time.
5) The Gobernadorcillo as the Municipal Judge
In addition to his administrative functions, the gobernadorcillo also acted as the municipal judge. He administered justice in the town or pueblo. He handled both criminal and civil cases. In civil cases, only cases that involved P44.00 pesos or less were under his jurisdiction. Otherwise, the regional judge or the alcalde mayor had the power to hear the case.
STUDYING POLITICS, POWER, AND LAW IN THE PHILIPPINES
The basic aim of this chapter is to enlighten readers about the true nature of politics and law using the empirical approaches of the social sciences. It is divided into two main parts. The first part deals with understanding the study of politics, power and authority in the Philippines, while the second part explains the nature of law from the point of view of social science. In the Philippines, the law is often understood from the normative or prescriptive view. Its actual operation in society is often overlooked. The distinction between legality and morality is also misunderstood by many Filipinos. What is legal may not necessarily moral. Thus, this chapter attempts to understand the law and legality realistically based on the descriptive view of the social sciences, particularly from the sociology of law, and to distinguish it from Christian morality.
STUDYING POLITICS, POWER AND AUTHORITY
The Nature of Politics
Politics merits serious study because it is about "who gets what, when and how" (Lasswell 1950). This definition is a correct assessment why politics matters but does not directly address the nature of politics (Goodin 2009: 4).
The meaning of the term "politics" is usually understood in two senses. In its general sense, politics can be understood in terms of the dynamics of power in society. Individuals, groups and organizations in society compete to control resources for their own ends and interests. Thus Kerkvliet (1995) defined politics broadly as comprising "the activities in which people, groups, and organizations engage in order to control, allocate, and use resources; politics also include the values and ideas underlying those activities." Goodin (2009) views politics in terms of power relations and defines it as "the constrained use of social power". And the study of politics, whether by academics or practical politicians, might be characterized in turn, as—the study of the nature and source of those constraints and the techniques for the use of social power within those constraints (Goodin & Klingemann (Eds.)1996: 7).
In its strict sense, the term "politics" is often understood as "partisan politics", that is, engaging in the formation and promotion of political parties and actively campaigning for candidates during elections to gain control of political positions in a given body politic.
What is common to both senses is the use of power in society to achieve one's personal and/or group political interests. Politics is therefore associated with power and authority in society. One cannot engage in politics without the use of the technologies of power in order to allocate and control resources in society. Authority, as a special form of power, is also used by power players or elite groups to utilize government resources for their own personal and corporate interests. Thus, one cannot disregard power and authority in the study of politics in society. But what is power? How is power different from authority?
Power and Authority
Sociologists usually understand power as the ability to impose one's will on others despite resistance. Frances Fox Piven (2008), for instance, defines power as "the ability of an actor to sway the actions of another actor or actors, even against resistance" (Piven 2008: 3). The classical definition of power comes from the German sociologist of Max Weber, who defines power as an "opportunity existing within a social relationship which permits one to carry out one's own will, even against resistance (Max Weber 1968: 212). It is the ability of an actor to realize his or her will in a social action, even against the will of other actors.
For Max Weber, the modern sources of power are social class and social status. Social class refers to the position of the person in the economic ladder of society--upper, middle or lower class--as shown in his/her amount of wealth and income. Social status basically refers to one's life chances or position in the market as indicated by one's credentials, level of education and prestige earned in society.
The classical view of power sees it as a possession. If one has wealth, social influence, one is powerful. A rich man is said to be powerful because he has many resources at his disposal to impose his will against any poor person. Thus it has always been assumed that the rich and influential people usually prevail in terms of economic and political decisions over the poor and the weak.
The post-structuralist French philosopher Michelle Foucault (1977) challenged this popular view on power in his power analytics. For Foucault, power is seen more as a personal exercise, something that is achieved by the actor's effective use of strategies and manipulations to advance his/her own interest. A rich person is not powerful against a poor man if /she doesn't know how to use effectively his/her the resources at hand. Possessing wealth and status do not immediately translate into domination over another if the person is poor in strategies and tactics in influencing the other.
Authority is a legitimate form of power. It refers to the probability that the contents of a particular kind of command will be obeyed. In other words, to have authority in a particular domain means that one's directives will be followed. It is a type of power given by the people to the power holder. It is also understood as the right to rule. On the one hand, a person or group may possess power but not authority as in the case of a dictator or military junta who grabbed political power outside the constitutional means. Thus, a military dictator can impose his/her will on the people but his/her rule is illegitimate as it has not been sanctioned by the majority. On the other hand, a person or group may acquire authority but may choose not to exercise power over the people as in a case of a lame-duck president who opted not to rule on certain situations for some reasons.
In most cases, a legitimate person or group can exercise both power and authority. As long as the leader does not go beyond his mandate or authority under the law—assuming that this secular law is just—exercising power over the people can be upheld as legitimate and morally binding. Thus, a duly elected mayor, for instance, is exercising the legitimate power and authority of his office as the local executive if s/he governs within the bounds of the law establishing his public position.
Sources of Authority in Society
Max Weber identified three ideal types of legitimacy upon which authority may rest: (1) charisma, (2) tradition and (3) rational-legal. In any actual society or institution, power may be exercised on the basis of a mixture of these types.
Charismatic authority is founded on the personal traits and gifts of the leader. The more authentic these personal traits are perceived by the people, the higher is the legitimacy of the leader. People obey the leader not primarily because of certain laws or traditions, but because of his/her personal talents. Because it is a personalized form of authority, charisma tends to be unstable. It does not normally survive the death of the original leader, and it often abandons the leader while he or she is alive. Charismatic leaders in history include Jesus Christ, Mahatma Gandhi, Martin Luther King, St. Francis of Asisi, Mother Teresa of Calcutta, etc.
Traditional authority is one that is based on some sort of tradition handed down from the past. The leader is obeyed by the people as legitimate because of an informal norm handed down by elders in society. It is a kind of authority in which the legitimacy of the authority figure is based on custom. This type of authority is that which the traditional rights of a powerful and dominant individual or group are accepted, or at least not challenged, by the subordinate individuals.
The ordination of a priest by a bishop is an example of traditional authority. The new priest received his power and authority by way of tradition and people obey him as a legitimate spiritual pastor of the Church. Succession in monarchy is also done through traditional authority. Tradition dictates that only persons with royal blood can ascend to the throne.
Rational-legal authority is the most common feature in modern and contemporary society. This authority is based on a set of rules, and the belief in the legitimacy of the process of rule creation and enforcement. This form of domination is routinized through bureaucracy. The leader assumes the right to exercise power over the people because the law says so.
Authority is held by legally established impersonal orders and extends to people only by virtue of the offices they hold. The power of government officials, for instance, is determined by the offices to which they are appointed or elected because of their individual qualifications. As long as individuals hold these offices, they have a certain amount of power, but once they leave office, their rational-legal authority is lost. Thus, the presidential candidate who garnered the highest vote in a national election in the Philippines acquires authority to rule/lead the people for six years without reelection as mandated by the 1987 Constitution. The authority to rule expires as the term of office expires. A priest who qualifies under the Canon law of the Church, after a rigid screening, can become a bishop and assumes authority to rule in his diocese. Though personal traits also count in the selection process, a fixed law becomes the primary legitimizer of the leader's capacity to exercise authority. His authority expires when he retires or becomes incapacitated as stipulated by law.
Power Distribution in the Philippines
Power distribution in Philippine society is said to be concentrated on a few elite families. McCoy (1994) characterizes Philippine politics as "anarchy of families" in which very wealthy families compete with one another to control the resources of the country. Power, like wealth, is concentrated in the hands of a few in the Philippines—the influential in society (politicians, big businessmen, and the military). External forces such as the multinationals and political superpowers support this concentration of power and tend to intervene in order to maintain the structure (PCP II, p.279). IBON foundation describes the income gap between the rich and the poor in the Philippines:
The income gap in the latest 2006 government data shows that the share of the top 10% families in the income pie was even higher at 36% than the 35% share of the bottom 70% families. In 2010 according to the Forbes Asia list, the net worth of just the 20 richest Filipinos– including Lucio Tan, Enrique Razon, Jr., Eduardo Cojuangco, Enrique Aboitiz and others– reached $20.4 billion, which is likely equivalent to the combined income of around 12 million families.
The rich have gotten richer in recent years, the research group said. For instance, Enrique Razon Jr., a known close ally of former Pres. Gloria Arroyo, is worth $975 million in 2010 from $285 million in 2009, highlighting his rapid accumulation of wealth in the past years. The net income of the Top 1,000 corporations in the country rose from P116.4 billion in 2001 to average P416.7 billion annually in the period 2002-2008. On the other hand, workers have seen the smallest increase in their real wages; the minimum wage in NCR increased just P5 in real terms over the almost decade-long Arroyo term.
Widening poverty is also a pressing issue that requires comprehensive solutions beyond the 'good governance' approach. Using the approximate Php86 a day for the assumed international standard for moderate poverty would show that 79 out of 100 Filipinos were poor in 2006, and half of the population actually struggled on Php18-54 a day. This would have likely increased in the last four years especially with the fuel crisis in 2008, food crisis in 2009, and the climate disasters last year (IBON Media Release 15 July 2010 accessed from http://ibon.org/ibon_articles.php?id=92).
The main economic problem in the Philippines is income and wealth distribution. There is inequality in wealth distribution between the rich and the poor. This translates into inequality to the access of political power and positions in the country. The rich and their protégés control elections and political positions in the country. They enact laws that tend to protect and promote their economic interests, while the majority who live below the poverty line remain unrepresented in the political processes and thus remain marginalized in the distribution of the country's wealth and resources. To understand this inequality in power and politics in the Philippines, political scientists use various approaches, analogies, or images as shown below:
APPROACHES TO STUDYING POWER AND POLITICS IN THE PHILIPPINES
Patron-Client Relationship or Clientelism
Its argument, in brief, is that Philippine politics revolves around interpersonal relationships—especially familial and patron-client ones—and factions composed of personal alliances. The relationship between a rich haciendero or landowner and the poor landless tenant is a classic example of this relationship. The haciendero is the patron who provides medicines, credit, burial expenses, food and other assistance while the client is usually a landless tenant. In exchange of the patron's generosity, the dependent farmer client and his relatives are expected to render services and to deliver votes for the patron or whoever he or she endorses during elections. The politics of utang-na-loob (indebtedness) often operates under this relationship of clientelism.
Patron-client relationship and clientelism as a basis for organizing thrives in conditions that are still pronounced in the Philippines. Such conditions as: great inequality, absence of impersonal guarantees for physical and economic security, and the need for personal linkages beyond immediate kin as part of the effort to have more security "(Kerkvliet 1995).
Personal networks, while vital for stitching factions together, are insufficient and inefficient for winning offices in large electorates. For that reason, "political machines" became apparent in the 1950s-1960s, fell on hard times during the Marcos years when his machine was the only game in the country, but have been resuscitated since the mid-1980s.
Sensing that the social relations in a patron-client relationship is not sufficient to win elections, political experts began to realize the importance of money politics to build a huge political machinery to win elections. Political machine politics have brought out more clearly the importance of money in Philippine politics, especially during elections.
The "elite democracy" approach says we must also understand the role of violence, coercion, intimidation, monetary inducements, and the considerable autonomy elites have to manipulate formal democratic procedures to their liking. The politics of "guns, goons and gold" is associated with this type of democracy. Warlords both in the national and local levels use personal and illegal money as well as their private armies equipped with high-powered firearms to corrupt the electoral system and to force voters to vote for them or their protégés.
This approach contends that the political system is essentially one in which elites use connections, wealth, and physical force to control the country's resources. Public offices are sources for personal fortune. The higher the office, the more lucrative the returns for one's family and allies, though officials in prosperous provinces and cities can also do very well. Consequently, elections are devices for political elites to sort out who will feast on the public larder for a term or two, and a way to make the masses feel a part of something from which they are actually shut out.
One underside of the close family ties of Filipinos in the Philippines is patrimonialism. Patrimonialism is a political phenomenon in which the politically influenced families feel that other members have the right to public office just because one of its family members or close relatives are elected in public office. If the father is a senator, the wife aspires to be a mayor or the son a congressman. Influential politicians use all means to allow themselves and their relatives to stay in power and exclude non-relatives from public office (Zialcita in Diokno ed. 1997:46) Patrimonialism treats public office like a private ownership where politicians can transmit to their heirs their political positions. An interesting anthropological theory called the transitory private ownership of public space by Richard Stone in his studies of police corruption in the Philippine in the 1970s indicated that when Filipinos occupy public space and public office, they treat it as private property. As long as they are presently occupying the public office or space, they feel they have the right to deal privately. Thus, it is difficult for the government to drive away squatters or informal settlers because the latter think they have the right over the land as they are occupying it at present. Mayors, governors and other public officials once they elected in the city or municipal they feel that they "own" the office and transmit it to their heirs and relatives.
Patrimonialism is a product of extreme familism or strong family ties which exclude non-relatives or kin to access public position or office in the political structure. It establishes elitism and political dynasty in the country.
DISCIPLINES STUDYING POLITICS IN SOCIETY
The study of power, politics, law and government is not a monopoly of political science. Other branches of social sciences also study these things. The only difference is probably their approach to understanding political issues and problems. Politics and political behavior, for instance, can be understood in terms of motivations and personality structure of the actors that affect political action in the field of psychology. Economics can view such action in terms of distribution of material rewards or Sociology in terms of the influence of social structure and culture on political decisions. Thus, it is important to understand the various branches of social sciences and how they can contribute to the study of politics and government.
The branch of social science that is largely associated with the study of politics, law and government is political science. Political science comes from two Greek words: polis for "city-state", and scire, which means, "to know". The French philosopher Jean Bodin coined the term in the 16th century. And another French philosopher Montesquieu (1689-1755) first formally defined it a century after when he categorized the functions of government into legislation, execution, interpretation and adjudication of laws (Dannug & Campanilla 2004: 55-56).
With the birth of social sciences in the 19th century, political science has gradually been divorced from philosophy and assumed a more empirical character in its study of politics. Political science began adopting research strategies and techniques from other social science disciplines in explaining political behavior. Serious quantitative political analyses began in the 19th and early 20th centuries (Gow 1985). The use of quantitative analysis went hand-in-hand with the post-World War II "behavioral revolution" in political science with the adoption of sophisticated methodology imported from other disciplines such as sociology and economics (Dahl 1961).
Although political science can trace its origin to ancient Greek political thinkers such as Socrates, Plato and Aristotle, as an academic discipline, political science is much newer than other social sciences (Grigsby 1999: 7). The self-definition of political science as a science goes back only a century or so (with a convenient date being the founding of a "scientific" department at Columbia University in 1880 (Beck 2000). At the turn of the last century, probably no more than a couple of hundred people in the United States (US) consider themselves as political scientists (Grigsby 1999: 7). From its humble beginnings in the US, political science started to expand around the world and developed into different subfields (areas of specialization) and research methods.
The American Political Science Association defines Political Science as "the study of governments, public policies and political processes, systems, and political behavior" The Political Science Department of the University of Victoria defines "Political Science" as "the study of power, authority and governance in human affairs".
Political science as a discipline is substantively, not methodologically, defined. Political scientists use a variety of methods to attack questions related to political institutions and behavior. Some political scientists focus on studying normative issues (issues involving value judgments and ethics), while others concentrate on empirical (observable, factual) investigations, and still others study both (Grigsby 1999:7). Although the methodological issues are defined by political questions, political scientists freely use whatever methodological solutions are available (Grigsby 1999). Thus, it is important to understand the other branches of social sciences and how they can possibly contribute to political science's study of political behavior.
Study of Political Science Presupposes a State Society
With its etymology, the study of political science presupposes an existence of a more advanced and complex type of society like a state, a society with large populations, social classes, private ownership and centralized authority or bureaucracy that assist the sovereign head in governing it. One cannot indulge in the study of political science in a primitive, rural or non-state society where the population is very low, politics is minimal and government structure is simple. That is why this discipline started to flourish in the 19th century when societies in Europe became a modern and independent nation-states. Leaders of state and complex societies need the expertise of political scientists to understand the actual dynamics of power, law and politics in society. Political scientists study the origin, development, and operation of political systems. They research political ideas and analyse the structure and operation of governments, policies, political trends, and related issues.
Sociology comes from two Latin words: socius which means "partner" and logos which means study. Literally, it means "study of partners". In its scientific definition, sociology as a social science is the study of social behavior, relation and processes. It studies group-related behavior and tries to understand how societal forces such as culture, social class, status and institutions affect individual behavior.
Broadly, sociology is understood as the study of modern and contemporary society. By modern, we mean those societies in the 19th centuries which became nation-states after gaining their independence from their colonizers and monarchs, starting with France which became a republican nation state after the French revolution. These are countries which became independent after the industrial revolution in Europe. By contemporary, we mean societies or post-industrial states which exist in today's information age. The French philosopher first coined the word "sociology" and the French sociologist Emile Durkheim was said to be the father of modern sociology. Together with the German sociologist Max Weber, and the German Philosopher Karl Marx, Durkheim envisioned a social science that aims to study the dynamics and structure of society empirically applying the scientific methods used by natural sciences.
Parts of sociology and political science merge. Political science starts by looking at society to see "who thinks what" about politics. To demonstrate how political views vary among social classes, regions, religions, genders, and age group, sociology provides an empirical basis to political culture, public opinion and electoral studies. In fact, some of the renowned political scientists are sociologists. Sociologist Seymour Martin Lipset, for instance, is a well-known political scientist who first demonstrated the close connection between democracy and the level of wealth (Roskin et al 2008: 4).
Like sociology, anthropology also studies the social behavior, social structure and social relations in society using scientific methods. The major difference is the preferred type of societies being examined by both disciplines. Anthropologists usually study preliterate or primitive and non-state societies of exotic tribes while sociologists, as mentioned, focus on modern and contemporary state societies.
Anthropologists also study politics, power, authority and government primarily in non- state societies. They classify the political organizations of societies into as band, tribe, chiefdom and state. Some do research studies on government and governance, law and the legal system, power and authority using anthropological theories and social science methodologies. Others examine the politics behind elections, political party systems, development projects, and bureaucratic corruptions. The descriptive and interviewing techniques of anthropology are often adopted by political scientists. Moreover, the subfield of political culture could be viewed as a branch of anthropology (Roskin et al 2008: 4).
Economics studies the production, distribution and consumption of goods in society. Economics is the subject matter of politics. Many political quarrels are economic: Who gets what? Sufficient may be the basis for democracy, but a declining economy may doom democracy and political instability (Roskin 2008).
Moreover, political scientists can examine the economic costs and rewards behind political transactions. They can also investigate the political economy of politics or how political power affects economic policies in society. In some cases, the economic theories of economics can guide the political analysts to measure the economic impact of political decisions of politicians in society.
Psychology studies inner forces within the individual that shape his/her behavior. It studies the 'how' the mind and mental processes and personality affect individual behavior.
With the help of psychological theory and methodology, particularly that of social psychology, political scientists can study the motivation and mental processes behind every political action. They can do research, for instance, on the motivation of politicians why they switch political parties during elections. They can also describe the personalities of people attracted to politics, why and under what circumstances people obey authority figures, and how people form national, group and voting attachments. Psychological theories can greatly help the political scientists in understanding the state of mind of people engaging in politics.
History as an academic discipline is often defined as a systematic study of the past. The study of the past is important. According to E. H. Carr (1970), history is a study of human achievement. The past is intelligent only to us in the light of the present and the present can be fully understood only in the light of the past. To enable us to understand society of the past and to increase our mastery over the society of the present is the dual function of history (Carr 1970: 102).
History is significant to the political scientists as "history is past politics and politics present history" (De Leon 1997: 2). Historical perspectives can enable them to see patterns on how certain political phenomena appear and recur in societies at particular periods of time. It can also provide the analyst with comparisons, how political phenomena differ from one another. Thus, using history, he or she can see the difference between EDSA People Power I, II and III.
Human geography studies how locations affect human behavior or vice-versa. The territorial component of human behavior—borders, ethnic areas, trade flows, centralization of power and regions—have great political ramifications. Although human geography has been neglected in recent decades in the study of politics, contemporary political scientists have started to use geography to explain differences in political behavior. The French political scientist Andre Siegfried pioneered the use of maps to explain regional political variations, a technique of today's electoral studies (Roskin et al 2008: 3).
UNDERSTANDING LAW IN SOCIETY
In the Philippines, when we talk about the law, we cannot avoid thinking of legal codes, lawyers and judges. As a country dominated by lawyers, the study of law is often relegated to the discipline being studied in law schools—jurisprudence. Jurisprudence is "the science of law; the particular science of giving a wise interpretation of the law and making a just application of them to all cases as they arise. In an untechnical sense, the term means sometimes Case Law" (Moreno 1972: 334). It is a comprehensive study of the law, particularly those statutes which are enacted by legislatures, compiled in legal codes, and applied by courts to actual cases. There is nothing wrong in relying on jurisprudence in understanding the law. Everyone is expected to know the law. The only problem lies in its approach. Jurisprudence understands the law in the normative sense, "as it ought to be" rather than "as it is" or as it actually operates in actual social practice.
What jurisprudence lacks can be supplied by the empirical or descriptive approach of the social sciences, particularly by the subfield of sociology called sociology of law. Sociologists of law understand law in society in relation to the social structure, culture and power dynamics in society. They employ scientific methodology to measure or document the actual operation of law in the courtroom or in any legal arena.
The Social Scientist and Law
To understand the full legality of the law does not only require the expertise of the lawyer but also the expertise of the social scientist who knows the social dynamics and structures of society where a particular law is applied. By training, the lawyer is trained in law schools in understanding the substantive and procedural laws but they are not trained in empirical research and social theory to understand the actual socio-cultural forces behind the application of the law. In one case, an American lawyer of a Filipino accused of murdering a native of Hawaii solicited the expertise of a Filipino anthropologist on Philippine culture in order to prepare a good defense, probably to argue that there are cultural forces that influenced the accused in killing the victim.
The main aim of the legal profession is basically practical in nature. The lawyer's main concern is not documenting and understanding empirically the dynamics of culture and society but to win his/her case in court. But in order to win it, s/he needs the empirical knowledge of the social sciences to argue and win his/her case. The social scientist provides the necessary knowledge and empirical foundation to understand the sociological underpinnings of law as applied in actual social practice.
The Importance of Research in Understanding Law
Scientific research is necessary to understand the actual operation of law in order to judge whether it is a good one or not. On paper, the law may be just and impartial but in practice, the opposite may happen. The sociologist Max Weber reminds us that the unintended consequences can always happen in social life. Even though the objective of the law and the intention of the lawmakers is for the promotion of the public good, the unintended or opposite effect can always happen. The Oil Deregulation law, for instance, was enacted by the Philippine Congress with the intended effect of encouraging competition among oil companies in order to reduce the price of gasoline and other petroleum products, but the unintended and unforeseen effect seems to be eclipsing its intended effect. Since the government cannot intervene directly in regulating the oil industry— especially in the pricing of petroleum products—as stipulated in the Oil Deregulation law, the unintended effect seems to be monopoly or the cartelization of the oil business led by the Big Three (Shell, Chevron and Petron) and the unabated overpricing of petroleum products.
In a nutshell, the law is not what legal provision says it is but what people behind it—legal authorities--say it is. It is the people who interpret and enforce the law that determines its nature and application in actual social practice. It is ultimately the police, prosecutors, judges or justices, jail officials and other officers in the judicial department of the government who determine, by a personal appreciation of evidence and legal provisions, what the law is in concrete cases.
The Role of Social Scientists in the Internationalization of Economic Laws
Another reason why the social scientists, like sociologists of law, play an important role in understanding the actual effects of law in today's society is that contemporary law has become more and more complex and internationalized. With the dominance of multilateral institutions, like the World Bank, the International Monetary Bank, or the World Trade Organization, laws, especially economic ones, are no longer created by the country's legislature. These multilateral agreements--often dictated by rich and industrialized countries—become the framework on which economic laws of developing or poor countries are based. If the developing country is a signatory of these multilateral agreements, its lawmaking body has less freedom to craft its own independent economic laws. The laws on intellectual property rights, for instance, are enshrined in the treaty of the multilateral agreement of General Agreement on Tariffs and Trade (GATT) called the Trade-Related Intellectual Property Rights (TRIPs) signed by more than 100 countries around the world, including the Philippines. Each of these countries can no longer create their own intellectual property legislation that may be contrary to TRIPs. On the contrary, they are required by TRIPs to pass local laws which implement the multilateral agreement. The Optical Media Law of 2003 in the Philippines, for example, is the result of the pressure from the multilateral institutions to enact laws to combat piracy as prescribed by TRIPs.
As a result of this internationalization of law, local customs and culture are sometimes disregarded in lawmaking. The laws which then created by the country's legislature are no longer bound to the local needs and culture but adjusted to suit international legal standards often dominated by American or European culture. With this phenomenon, academic training of lawyers may not be sufficient for them to know the current underpinnings of the law. Again, the assistance of the social scientists with their social theories and research tools is necessary in lawmaking and socio-legal analysis in order to understand the actual operation of law in various cultural contexts of developing countries.
LAW AND MORALITY: IS IT ALWAYS MORAL TO BE LEGAL?
The distinction between legality and morality or between "what is moral" and "what is legal" does not seem to be clear to Filipino Catholics. Many seem to equate the two, that is, if something is legal, then it is also moral or acceptable in the eyes of God or of the Church. Teachers of religion in Catholic colleges are often disappointed upon knowing that the students do not seem to know the difference between a civil and a Church marriage. Many students assume that civil marriage by a judge is moral because it is legally and socially acceptable. They thought that couples who are civilly married and cohabiting are not living in sin and therefore they can receive holy communion in the Holy Eucharist worthily and without committing a serious sin. They reasoned out that since their marriage are legally recognized by the state and by Philippine society, then these couples are presumed to be morally married in the eyes of the Catholic Church.
This indicates a confusion in the difference between morality and legality. Technically speaking, civil marriage has long been considered by the Church as legal but immoral and thus couples cannot receive Holy Communion worthily. This marriage is legal in a sense that the State allows couples to be married by a judge as long as they comply with the requirements of the Family Code. This is however, is considered immoral, in a sense that the union is not sacramental, meaning, the couple is not blessed and solemnized by the Church and witnessed by the priest, the representative of the Church by virtue of his ordination. Thus, they are considered by the Church as "living in" or cohabiting without the necessary blessing of God. And if they engage in a sexual union, they can be considered to have committed the sin of fornication and thus ineligible to receive holy communion worthily. Legally married couples can still live a life of grace, if they opt not to stay together pending their Church wedding. This case therefore illustrates the fact that what is legal is not necessarily moral. So what then is the difference between these two?
The Relationship between Legality and Morality?
"The relationship between law and morality is both complicated and subtle. This is true even in a situation where a society is very homogenous and where one might find a large degree of consensus about moral behavior" (Duster in Kelly (ed) 1993: 29). Ideally, laws created by the State through legislation must be based on divine law. And there lots of state laws that reflect the divine laws. The 1987 Philippine Constitution, the fundamental law of the land, for instance, acknowledges that state laws must be consistent with the laws of God. They must not contradict the commandments of God. The divine law must prevail over state law in case they collide. The root cause of this inevitable clash between state law which defines legality and divine law which defines morality is the vested interests of people who create state laws. More often, lawmakers in the Philippines who come from the elite or from social classes with business interests, file bills or proposed laws in Congress to promote or protect their vested interests rather than to promote the common good or the social welfare of the poor as taught by the Bible and by the Church. For example, a lawmaker who is a son of a rich landowner in Mindanao filed a bill in Congress on alternative fuel like the bio-diesel. However, this seems to be a conflict of interest, critics alleged, for his family and allied landowners would most likely benefit from it if the bill becomes a law. His landowner parents, according to them, intend to utilize their vast idle lands by planting jathropa or other plants for biodiesel production. Legislation in this case was intended to benefit the lawmaker and his/her social networks in the guise of genuine concern for consumers. For critical theorists of law, this is inevitable as law in society is never neutral. It "bends" in favor of the lawmaker instead of its subjects (Ballano 2007: 12).
The laws passed by the Philippine Congress seem similar to that of Peru, a developing country which Hernando de Soto (1989) calls in his book The Other Path as redistributive laws. A country remains poor because the laws created are meant to redistribute wealth rather than creating it. "From this standpoint, the law is essentially a mechanism for sharing a fixed stock of wealth among different interest groups that demand it" (De Soto 1989: 189).
A redistributive legal system neither benefits the rich nor the poor but only those best organized to establish ties with people in power. "It ensures that the businesses that remain in the market are those which are most efficient politically, not economically" (De Soto 1989:191). Laws are then meant to maintain the level of social inequality at status quo and not to democratize wealth. Conflict theorists of law understand the law as an instrument of domination of the powerful over the weak. The law is not ideologically neutral. Law is a discourse which interprets and conveys meaning, but it is a discourse with force behind it. Its impact goes beyond the realm of meaning. Law is a key vehicle for the spread and enforcement of the ruling ideologies, a vehicle of ideological domination (Moore in Lazarus-Black and Hirsch 1994).
The Nature of Legality and the Two General Types of Laws
Legality can be understood as a process of knowing whether an act is legal or illegal based on a legal norm or on a written and official law. It can also refer to a social order based on law. Laws are created and promulgated by the state or by any competent authority in a formal organization or institution. Before we can clearly understand what makes an act illegal or not, we first have to differentiate two general types of legal norms that judge whether something is illegal or not. Legality and its outcome depend on the type of law people invoke to pursue their case.
Sociologists of law distinguish two kinds of law used by society to measure legality: the substantive law and procedural law. The substantive law refers more to the substance or the content of the law itself as written in a legal code like the powers of President as written in the 1987 Constitution or the grounds for civil annulment of marriage in the 1987 Family Code, the law on libel and intriguing against honor in the Revised Penal Code, or even the rules on proper conduct contained in the student handbook of the school. In the Philippines, the sources of the moral popular and general types of substance laws are found in legal codes and set of laws such as the 1987 Constitution, the New Civil Code in the Philippines, the Revised Penal Code, the Tax Code, Special Penal laws, Commercial laws or E-Commerce law, Intellectual Property Code in the Philippines, the Code on Judicial Conduct, etc. In the Catholic Church, the main source of substantive laws (and also procedural law) is the Code of Canon Law. The word "canon" in Greek literally means " a measuring stick". Thus, the laws of the Catholic Church are called canons. This Code is a compilation of all laws in the Church throughout the centuries on how a Catholic Christian should live his or her life as a member of the institutional Church.
The procedural or sometimes called remedial laws are those laws that deal with steps or procedures on how to process legal cases in court or any administrative body This includes procedures on how to file a case, to make an appeal, to present evidence, how to make and present a legal pleading and the like. This is the type of law that lawyers make a living since these are the court technicalities that they know and are paid for by their clients. In the Philippines, the popular source of this type of law is the Revised Rules of Court in the Philippines, a handbook of court procedures which is created and constantly modified by the highest court of the land, the Supreme Court. Procedural rules can also be found in legal manuals of schools, organizations, institutions or administrative or investigating bodies. In the Catholic Church, laws are found mainly in the Code of Canon Law and in the pastoral directives by the Pope, Sacred Congregations of the Roman Curia or bishops that deal mainly with Church discipline.
When an act becomes illegal or against a human law, we have to qualify then which type of law is violated: is it substantive or procedural? Violating the substantive law is generally considered more serious than violating procedural law. After all, the spirit of the law is more important than the letter of the law. The merit of the case has more value as it involves violation of human rights rather than technicalities of legal procedures. The former is an actual transgression of social or moral value if proven by the court but the latter consists only of lapses in procedural matters--though very often lawyers consider legal procedures as very vital to a successful prosecution or defense of a legal case. Many prisoners in Bilibid Prisons, for instance, claim that they are convicted not because they are guilty but because they are poor who cannot afford to hire good lawyers with shrewd knowledge and expertise with regard to technicalities in court who can acquit them.
The Basis of Legality
The foundation or basis of legality is actually the human law or the laws created by men or women, with the exception in the Catholic Church where legality in the Code of Canon Law is generally equated with morality. The 1987 Family Code of the Philippines, for instance, was created by a group of people, a commission formed by the state, and was presented to Congress for review and approval and finally to the President for approval as law. Nothing is spiritual or ecclesial in the process—of course one can presume that these people prayed to God for guidance and consider the common good in creating and approving this Code.
Unlike Church laws where the norms and directives of the Scriptures, Church teachings and Tradition are strictly and seriously taken into consideration, human laws are generally created through human reason based on prevailing cultural norms and values which are not necessarily aligned with the divine teaching. One sociological theory about the law states that laws are formal formulation of existing practices and customs. When informal sanctions such as ostracism, shaming, or gossiping are no longer effective in upholding an existing practice, then competent authority usually passes a law to formalize this custom to ensure effective enforcement. The law then, in this sense, becomes a legitimizer of an existing value or practice. The problem, however, in this process is that not all existing practices or values in society are permeated with religious values. More often, values, particularly political values, are shaped and manipulated by the elite or by those who hold power in society. Thus, it is probable that legal authority like the Philippine Congress can legislate an "immoral" or "sinful" social system or practice.
Illustrations Where Law is Legal but Immoral or Unjust
A classic example of an immoral law is the law that proclaimed Martial Law under the former President Marcos-Proclamation No. 1081 (September 21, 1972). The Catholic Church led by the late Jaime Cardinal Sin always considered this law as immoral, though legal. Immoral in a sense that there was no clear moral ground for the declaration of Martial on September 21, 1972. This proclamation is said to be based on a dubious factual basis staged by the regime and that the approval by Congress of the declaration of Martial Law was said to be tainted by bribery and corruption. Martial law has created a litany of human rights abuses led by the military. This was one reason why the late Senator Benigno Aquino vigorously opposed this Law. Another law related to the Marcos regime which was legal but highly immoral was the passage of Amendment number 6 of the 1973 Constitution by the Batasang Pambansa, the Philippine Congress at that time, giving the then President Marcos the legislative power to create laws or presidential decrees which labeled him as a dictator.
Another illustration of a law that is legal but immoral is the highly biased law against women—the law on adultery and concubinage in the Revised Penal Code, a law that is basically crafted by male legislators. This is immoral because this law violates the virtue of justice which requires to give one's due in the spirit of Christian love. In particular, its definition and enforcement is highly unequal and unjust against married women. There are three areas where this law is bias against women. First is the label of the crime. Both adultery and concubinage refer to one offense of marital infidelity committed by a spouse legally married by having sexual intercourse with other partners not their wife or husband. But the law labels and defines this same offense separately by gender. The more popular and culturally strong label of "adultery" is assigned to Filipino wives who generally and culturally are expected to be chaste and faithful, while the less known and repulsive term of concubinage is given to Filipino husbands. Why two unequal labels for one offense of marital infidelity? Moreover, the legal prescriptions on how this crime is committed also vary and make the wife more vulnerable to prosecution by the husband. In adultery, a wife can be guilty by having carnal knowledge or sexual intercourse with another man not her husband under any circumstance. But in concubinage, a husband can only be guilty of the crime if he had sexual intercourse with another woman not his wife only under the following three circumstances: by having sexual intercourse with the mistress in the conjugal home; by cohabitation, that is, it has been established that the husband had and lived together with the mistress, acting like husband and wife in front of the community; and by having a sexual intercourse in a scandalous way! Under this definition, a wife can easily commit one count of adultery for every act of sexual intercourse with her lover in any place and circumstance. But for the husband, this is not the case. He is not guilty if he did not cohabit with a mistress, if he only brings the mistress to a hotel secretly or he maintains his mistress in an apartment and goes home after having sexual relations. Cohabitation as legally defined and required by law is what makes concubinage difficult to establish in court against the husband.
The second area of injustice is the minimum type of evidence acceptable to the court for prosecution. In adultery, indirect evidence such as love letters, emails, text messages, pictures showing intimate moments and the like are accepted in court. In concubinage, only direct evidence such videos, incriminating pictures, testimonies of people who had personal knowledge of the affair, are accepted.
Finally, the third area of inequality is in the punishment. On the one hand, adultery is punishable by prision correctional from its medium to maximum terms. The medium period of the penalty for adultery is from 2 years, 4 months and 1 day to 4 years and 2 months imprisonment. The maximum period is from to 4 years, 2 months and 1 day to 6 year imprisonment. Simply stated, the longest time a wife will be imprisoned is 6 years. On the other hand, concubinage against the husband only carries a penalty of prision correctional in its minimum to medium terms. The minimum period is imprisonment from six months and one day and medium period is from 2 years, 4 months and one day to 4 years and one day. Simply stated, the longest time that a husband will be imprisoned is 4 years and one day. In one decided case, the court justified this difference of punishment by saying that it would be highly unjust for the husband to support a probable illegitimate child not his own! This law is indeed unjust and biased against women and must therefore be repealed by Philippine Congress.
The more recent law that is considered legal but immoral by Catholic bishops in the Philippines is the Mining Law of 1995. Enacted in 1995, this law allows mining companies, mostly foreign, to extract minerals from Philippine soil. The main problem of this legislation which is upheld by the Supreme Court as constitutional is that most of the mineral-rich land for mining are found in what are called ancestral domains or land in the hinterlands, occupied by many indigenous or tribal people in the Philippines in the hinterlands. Allowing miners to exploit their land would drive them away from their land they occupied since time immemorial, depriving them of their livelihood and destroying their rich cultural heritage. This is highly immoral since the law violates the basic rights of indigenous people to life, property and other related rights. The Catholic Church always upholds human rights and the dignity of people, created in the image and likeness of God. Economic development can only be moral if these basic rights are safeguarded by the state.
What is Morality?
Probably the vast majority of people think of morality as law, but in fact it can be considered in a variety of ways". There are different models to choose from in thinking about morality (Fagan 1997: 34). In fact, various academic disciplines vary on how morality should be defined or described. Despite this diversity of formulating its meaning, they all agree that morality has to do with doing what is right and avoiding what is wrong in accordance to one's adopted moral standards of behavior. The most popular view of morality is the legal model. This model defines morality, in a normative or legal sense, as the process of knowing what is right and what is wrong based on given moral standards or norms.
Anthropologists have alerted us that sense that there is a diversity of culture, religion, and moral standards around the world. There cannot be one set of doing what is right and what is wrong. Thus, there are different types of morality existing throughout the world. And Christian morality is only one—though popular and dominant in the Christian world--of the many moralities adopted by people in different societies. So we can talk of Hindu morality, Muslim morality, Buddhist morality, Ifugao morality, Manobo morality , so on and so forth.
When we speak of Christian morality, following the legal perspective, we are simply referring to that type morality that uses the Christian moral standards in evaluating and judging whether an act of a person is right or wrong, moral or immoral, or good or sinful. And Christian morality can have variations since there is not one Christian religion existing around the world. There are Protestant Christians under different churches, Catholics, Fundamentalist Christians, and other Christian denominations and sects. Each Christian church can be different in content and emphasis in its moral standards compared to others, depending on its doctrines and teachings. In the Roman Catholic Church, Christian morality refers to the process of knowing what is right or wrong based on the moral standards set by the Scriptures and Tradition, the two inseparable sources of Catholic faith. In the Scriptures, the major sources of moral imperatives can be the Ten Commandments in the Old Testament and the Beatitudes in the Gospels. In Tradition, the teaching office of the Catholic Church called the Magisterium, can be a major source of the official moral teachings and norms.
Politics can be understood in the general sense as the dynamics of power in society and in a specific sense of organizing and promoting political parties and participation in elections. It is rooted in power and authority in society. On the one hand, power is the ability to influence others to act against their interests. On the other hand, authority is a legitimate form of power or the right to rule. This can be based on the personal traits of the leader in charismatic authority, on a particular tradition in traditional authority, or on impersonal laws in modern rational legal-authority. The distribution of power and authority in the Philippines is highly unequal reflecting the prevailing economic inequality among social classes in society. The few elite still controls the political and electoral processes in the Philippines. With strong familism and privatized view of public office, political power are still in the hands of a few political families constituting political dynasties in the country. This grip on political power by the elite in the Philippines can be best understood in political concepts such the patron-client relationship, elite democracy, political machine and patrominialism.
Politics, power and authority in modern state societies are primarily studied in Political Science, a social science which can be defined as the study of power, authority and governance in human affairs. Other branches social sciences such as anthropology, economics, history, psychology, sociology, or human geography also study politics using their respective methodologies and theories.
The law can be understood and studied using the normative approach of Jurisprudence and the empirical approach of Sociology of law. Jurisprudence, as both used by judges and lawyers, understands law as "it should be" or according to legal norms. Sociology of law studies the law as "it is" in actual social practice. To understand the law in contemporary times requires scientific research and a sufficient understanding of the operations of law in culture and society.
Finally, law and morality are two important social norms in society. Their foundations and bases are, however, different. The law is basically based on human positive law, while morality is based on divine law as embodied in the Bible, Church's teachings and Tradition. Ideally, both must not be in conflict, since human law is ought to be based on divine law. But conflicts are unavoidable. Thus what is legal may not necessarily moral or vice-versa. For Christians, the dictates of one's conscience must always be obeyed and thus the norms of morality must always be followed even if it conflicts with the human law and must be ready to take the consequences of their actions.
THE STATE AND GOVERNMENT
Despite the inclusion of subjects such as history, law, social studies and political science in the curricula of our educational system in the Philippines, many Filipinos continue to have a vague understanding of the state. For some people, the term "state" is oftentimes considered synonymous with the term "government". For others, especially the lawyers, the state is considered a juridical entity, a "community of persons" with the four elements of territory, people, sovereignty and government. The true meaning of the term "state" continues to elude many Filipinos as they consider this entity as distant "other", unrelated to their social networks of family, relatives and friends. Sociological studies on the Filipino sense of community and social capital (e.g. Abad 2006, Zialcita 1997) reveal that Filipinos can only relate to their network of relatives and friends or to their primary group of family, peer group, the neighborhood or small organizations as their "community" and not the "state" which consists of distant and unrelated others that comprise its citizens.
To appreciate the nature of the state as a society, it is necessary to understand the various types of societies around the world. Not all societies in the world are state societies. Some are primitive, others are more complex and advanced in development like the state. Political sociologists and anthropologists recognize the evolution of societies from a simple to a more complex society. Table 1 below shows the various types of societies based on subsistence or food-procurement system:
Table 1. Types of Societies based on Subsistence System and Political Structure
Type of Society
1. Hunting and Gathering or Foraging society
1. Consists of 20-30 families;
2. Nomadic, constantly moving from one place to another by walking in search for food;
3. Egalitarian, no private ownership;
4. Practices infanticide to control population;
Hunting wild animals, gathering fruits and vegetables.
A band is a small kin-based group (all members of the group are related to each other by kinship or marriage ties)
Characteristics of a band:
Impermanent, formed seasonally, no differential authority or power;
Lack formal law, no social control and dispute settlement;
Leaders like headmen and shaman (part-time religious specialists) have little power;
Band leaders are leaders in name only, first among equals, can give advice or make decisions but no means of enforcing them;
Personal relationships linked families and bands.
E.g. Yanomami, native Americans in southern Venezuela and Brazil
1. Population is higher than a band, temporary houses are built around the garden;
2. Semi-nomadic, tribe transfers to another area of the forest to build new garden after every harvest;
3. No land ownership
1.Swidden or "slush and burn" agriculture (kaingin)
2. Tribe members clear the forest by burning, create a temporary garden planted with root crops and build homes around the area.
A tribe is a village or descent group (a permanent social unit whose members claim common ancestry like a lineage or clan) which lacks a formal government and social classes. It has no reliable means of enforcing political decisions.
The leader is a Village Head (always a man) or a "Big Man".
E.g. Iranian pastoral nomads—the Basseri & Qashqai
1. Higher in population than a horticultural society;
2. Private ownership to limited to animals or cattle and slaves;
Raising cattle, sheep and other animals
A chiefdom is a form of sociopolitical organization which is in- between the tribe and the state, is kin-based, but it has differential access to resources (some people have wealth, prestige, and power than others) and a permanent political structure.
4. Agricultural Society
1. Population is large with classification of people based on wealth (social classes) and prestige (social status).
2. There is private ownership including land;
3. Social inequality between the rich the poor emerged.
1. Sedentary agriculture: livelihood is primarily fixed farming using the plow and beast of burden like cows or carabaos;
2. There is food surplus: farmers produce goods not just for personal consumption but for exchange in the market
A state is a form of sociopolitical organization based on a formal government structure and socioeconomic stratification.
5. Industrial Society
1. Densely populated;
2. Migration of people from rural to urban centers;
3. Urbanization: formation of cities and urban zones;
Social inequality may be intensified;
Machinery like tractor is used for mass production of goods and agriculture;
Sale of goods and services;
Manufacturing sector emerged;
Source: Some of the content above are taken from Kottak (1997) Pp. 238-263.
TWO APPROACHES IN DEFINING THE STATE
There are two perspectives or disciplines vying to explain the meaning and nature of the state: the normative approach of law or political science and the descriptive or empirical approach of sociology or anthropology. The normative approach judges reality "as it should be", that is, it usually judges a social reality or phenomenon using a set of fixed norms or ideal standards, thus it judges a certain society whether it is a state or not using some form of fixed norms. For lawyers, trained in law and political science, for instance, a state must have the basic elements of people, territory, government and sovereignty, otherwise it can only classify as a non-state society or nation. There is nothing wrong with looking at the state in this normative sense, the only difficulty in adopting this view is that a state is a complex society, and various states around the world, whether ancient or modern, manifest different characteristics which cannot be simplified by these four elements. The Vatican, which is considered the smallest state in the world, for instance, can be considered a state in this normative sense but can hardly qualify as one under the theories and empirical methodologies of the social sciences. The normative definition of the state, as we shall see below is also identified with the juridical definition and understanding of the state.
The sociological-anthropological or the descriptive definition and understanding of the state is research-based and relates to the various theories or methodologies in the social sciences. The descriptive approach often classifies societies into state and non-state societies based on some indicators established by ethnographic research studies.
One important empirical definition of the state is the definition offered by the German sociologist Max Weber. For him, a state is "a compulsory association with territorial basis having the monopoly of the legitimate use of force" (Weber in Ferkis 1974).
The Normative Approach
Among lawyers, law students and students of political science, the state is commonly defined as:
[A] community of persons more or less, permanently occupying a definite portion of territory, having a government of their own to which the great body of inhabitants render obedience, and enjoying freedom from external control (De Leon 1997: 5).
The word "persons" in the juridical or legal parlance has specific meaning commonly known by lawyers. As defined by Philippine law, a "person" can either be natural (individuals with human rights) or artificial or juridical (such as corporations and companies). An artificial person is a legal entity through which the law allows a group of natural persons to act as if it were a single individual for certain purposes such as filing lawsuits (to sue and be sued), property ownership, and entering contracts.
Thus, under this definition, a state is composed of both natural and artificial persons "more or less" numerous, residing is a fixed territory with government and sovereignty.
Based on this definition, the state has four essential elements:
This refers to the population of people whether young or old, male or female, or "natural or artificial" residing within the state. In the normative sense, there seems to be no requirement as to the number of people that should compose a state. But is should be neither too small nor too large: small enough to be well governed and large enough to be self-sufficing.
In the descriptive or sociological definition a society cannot qualify as a state unless the population is large enough to form social classes of people such as upper, middle or lower class. A group, tribe or secondary group cannot form a state under this approach.
The territory of the state includes the land, inland waters such as rivers, lakes, brooks, area of the sea (and its underwater marine life and sea bed) which abuts upon its coasts and air space above it. Normally the territory of the state is classified into four (4) important domains or areas: the terrestrial (all land within the state), aerial (all air space above the land and sea), fluvial (all inland waters or bodies of water within the terrestrial domain) and maritime (the territorial sea and marine life and sea bed).
The Philippines is an archipelagic state. It consists of clusters of islands and islets totaling to 7, 107. It is found in Southeast Asia in the Western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam. The Sulu Sea to the southwest lies between the country and the island of Borneo, and to the south the Celebes Sea separates it from the other islands of Indonesia. It is bounded on the east by the Philippine Sea. The Philippines has a total land area of about 115, 707 square miles or 299,681 square kilometers (De Leon 1997: 6).
In actual social practice, the question may be asked, How important is the territory to the people residing in the state? Aside from asserting identity as one independent nation-state in the international community, a fixed territory delineates the parameters or jurisdiction of Philippines laws, especially public laws like criminal or penal laws. One essential characteristic of penal laws is territoriality. All citizens or aliens who reside or visit the Philippine territory are subject to criminal laws under the Revised Penal Code and Special Penal Laws. If they commit a crime within the Philippine territory, whether terrestrial, aerial, fluvial or maritime domain, they can be charged, prosecuted and imprisoned in the country, unless they are exempted by an international treaty that says otherwise. For instance, under the Visiting Forces Agreement (VFA) between the Philippines and United States, an American soldier who commits a crime in the Philippines can be charged in Philippine courts, but the custody of the accused while waiting for final judgment by the Philippine Supreme Court remains under the Americans and thus can be detained in the American Embassy as in the case of Lance Corporal Daniel Smith who was detained in the US embassy after conviction in a Makati Regional Trail Court while his case was on appeal. Unfortunately, the case was dismissed when the Court of Appeals ruled in Smith's favor after the rape victim withdrew from the case and entered an amicable settlement with the US.
Sociologically speaking, every type of society has some kind of leadership or authority structure which provides direction to a nomadic group, tribe, chiefdom or state. But not all societies have a centralized authority, bureaucracy or machinery of officials which run complex societies like the modern state. Some governments are less complex in structure compared to others, depending on the level of population, technology advancement and subsistence system of the society. The most primitive form of society like hunting and gathering tribe for instance, has no fixed government. Since there is no private ownership and social class, everything is held in common. Leadership in the group, especially for a hunting expedition is assigned on a daily basis by the nomadic group.
When we talk of government as an element of the state, we are referring not to pre-modern or non-state forms of government, but the government of a modern nation-state with a centralized authority structure consisting of bureaucratic officials who assist the sovereign or chief ruler in running the state. Thus, a government can be defined as:
The totality of authorities which rule a society by prescribing and carrying out fundamental rules which regulate the freedom of its members. It is a whole class of officeholders upon whom devolve the executive, legislative, judicial and administrative functions of the State (Dannug & Campanilla 2004: 136-137).
Sovereignty is an abstract concept which is basically connected to state power. A state cannot exist if it cannot exercise social control over its citizens which can result in anarchy, chaos and the proliferation of private armies. Thus, sovereignty is defined as "the supreme, absolute, uncontrollable power by which an independent state is governed" (Suarez 1999: 56). Sovereignty is the paramount control of the constitution and frame of government and its administration (Dannug & Campanilla 2004).
The source of this sovereign power of the state is the people themselves. That is why sovereignty is said to reside in the people. Under a republican or indirect form of government and social contract theory, it is the people or citizens who agreed to form the state as expressed in the constitution. Thus sovereign power emanates from the citizens and public officials are only delegated with this power by the former to govern the state.
Table 2. Two Types of Sovereignty
This refers to the power of the state to rule itself. It is the power to control and direct the internal affairs of a country such as the authority to enact, execute and interpret the laws.
This refers to freedom of the state to run its own affairs with the interference of other states. It is often called as the independence of the state from other states. This sovereignty is lost during an invasion or colonization by a powerful state over a weak state. Iraq, for instance, has lost its external sovereignty when the United States invaded it to depose Saddam Hussein.
An independent nation-state must both possess internal and external sovereignty. It cannot administer its own affairs and when often interfered with other states, it loses its own independence and is reduced to a mere colony or part of another superior power or state.
Table 3. Anthropological Theories on State Formation
Causes of State Formation
The need to regulate hydraulic (water-based) agricultural societies.
The state emerged in some arid areas to manage systems of irrigation, drainage and flood control; water control increases population in arid lands like Egypt and Mesopotamia; irrigated agriculture fuels population growth; political systems may arise to regulate interpersonal relationships and conflicts and the means of production.
The need to regulate the production and exchange of products between zones
Ecological diversity; interzonal regulation and ecological diversity strengthen state organization for unity.
Long-Distance Trade Routes
The need to create centers of trade, exchange or supply between long trade routes
State develops at strategic locations in regional trade networks, including crossroads of caravan routes, and places that threaten or halt trade between centers.
State formation is not just caused by one factor or variable but by many factors or causes.
Wherever and whenever environmental circumscription (or resource concentration), increasing population and warfare exist, state formation will begin.
Source: Condrad Phillip Kottak (1997) Pp. 264-265.
Table 4. Philosophical-Juridical Theories on the State
Cause of State Formation
God gave monarchs or kings and queens the right to rule the people as in the case of Moses in the Old Testament
Necessity or Force
Consolidation of small tribes and territories into a state by great warriors in History like Alexander the Great, Napoleon the Great, etc.
The state is formed as a result of annexation of small societies or tribes into a state society. This caused by conquest by great warriors in history like Alexander the Great.
Expansion of a family into a lineage, clan and ultimately into a state
The state is allegedly the product of a gradual increase of population starting with one family.
Voluntary agreement of the people to create a state
A state is formed when people enter into a covenant or social contract as in a modern constitution and determine the type of society and government for their own common good.
Source: Hector de Leon (1997) Pp.6-7.
THE INHERENT POWERS OF THE STATE
Police power is one of the most coercive powers of the state. Under the Constitution, it can limit the exercise of human rights under the constitution when public welfare requires it. This is the power of the state to restrain and regulate the individual use of liberty and property to promote public welfare. In a comprehensive sense, police power;
embraces its whole system of internal regulations, by which the State seeks not only to preserve public order and to prevent an offense against the State but also to establish, for the intercourse of citizens with citizens, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and insure to each the uninterrupted enjoyment of his won so far as it is reasonably consistent with a like enjoyment of rights of others (Moreno 1972: 465).
Police power regulates freedoms and property rights of citizens for the promotion of (1) public safety, (2) health and (3) morals or the promotion of (4) public convenience and (5) general prosperity. This is justified under maxims that the "welfare of the people is the supreme law" (salus populi est suprema lex) and that "one should not use his/her own property in such a manner as not to injure that of another" (sic utre tuo ut alienum non laedas) (Dannug & Campanilla 2004: 281). To achieve this end, the state may enact laws to protect the general welfare of the people as a valid exercise of police power. In practical terms, police power can be applied in the following areas as shown in the following table.
Table 4. The Scope of Police Power
To protect public safety, the state punishes all forms of crimes such as murder, homicide, rape, physical injury, assault, hazing, etc.
To protect public health, the state through police check point can deny people to enter a place infected with deadly or contagious disease. It can also ban smoking in public places.
To protect public morals, the state can criminalize prostitution, pornography, scandal and other indecent acts.
To promote public convenience, the Metro Manila Development Authority (MMDA) or Land Transportation Office (LTO) can issues traffic rules and regulations to motorists.
To promote prosperity, the state can enact laws punishing economic crimes such swindling, syndicated estafa, theft, bouncing checks, etc.
Source: Dannug & Campanilla (2004) p. 281.
POWER OF TAXATION
The power of the state to impose taxes is premised on the fact that no government, whether democratic or despotic, can exist without the resources to finance its operations. A government exists by necessity, a state cannot exist without it. But a government cannot likewise exist without any funds to run the state. Thus it has to raise revenues or taxes to defray the necessary expenses of the state (Gonzalo et al 1999: 6).
There are several similar definitions of taxes and taxation. Taxation may be defined as the power of the sovereign to impose burdens or charges upon persons, property or property rights for the use and support of government in order to enable it to discharge its appropriate functions (Gonzalo et al 1999: 3-4). Tax is defined as the burden or charge imposed by the legislative power on persons, property or services to raise money for public purposes. The power to tax may thus be said to refer to the power of the sovereign to make a levy upon persons or property for the raising of revenue to defray the necessary expenses of government (Gonzalo et al 1999).
The power of taxation is both inherent and legislative in character because only the legislature can make tax laws. It exercised this power as a body of direct representatives of the people with authority to impose compulsory levies on persons, property objects, services and transactions to raise government revenues for the purpose of resource allocation, income redistribution, or economic stability (Gonzalo et al 1999: 4-6). For this reason, the 1987 Philippine Constitution requires that any proposed legislation that would create new taxes or increase existing taxes in the country must emanate or originate from the House of Representatives. The Senate cannot initiate tax bills. Only members of the Lower House who represent the various districts and sectors throughout the country are authorized to file tax bills.
Since taxes are the lifeblood of the state, the power of taxation is coercive in nature. Every citizen possessing taxable income, property and property rights must pay taxes correctly and honestly otherwise s/he can be held liable under the law. For unpaid taxes, s/he can either pay unpaid taxes with penalties and interests and/or face imprisonment. The Commissioners of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) are authorized by law to assess and collect taxes and impose penalties on tax evaders under the tax code.
The power of eminent domain refers to the right of a government to take and appropriate private property for public use, whenever public exigency requires it and this can be done only on condition of providing a reasonable compensation for it (U.S. vs. Toribio, 15 Phil 93; Moreno 1972: 205).
It is exercised by the state through national or local governments, private persons or corporations authorized to exercise functions of public character. A law is usually passed by the legislature authorizing the expropriation of a private property for public use. It can be Congress, the Provincial Board, or the City or Municipal Council which can determine it. But the Supreme Court has repeatedly ruled that the exercise of eminent domain is valid if there is just payment or compensation to the owner of the property based on fair market value.
The most common expressions of the exercise of eminent domain can be seen in the widening of roads where the owners of land and houses affected by the project have no choice but sell their property to the government at a fair market value. The construction of the expressway SC-TEX in Tarlac where the owners of Hacienda Luisita were paid by the government for the private agricultural land affected by the opening of this new road is an example. The relocation of the historic Santa Clara Church and monastery is another example of a valid exercise of eminent domain. The Catholic Church and contemplative nuns had to give up their property and be transferred to another site, upon just payment, to give way to the government's LRT project on Katipunan Avenue, Quezon City.
THE DIFFERENCE BETWEEN THE STATE, GOVERNMENT AND NATION
Ordinary people tend to equate the word "state" and "government" as if they refer to the same reality. They use the words interchangeably. But a closer look at these two terms reveal a technical difference. A state is an advanced and complex type of society with the government as one of its four (4) essential elements. Thus a state cannot exist without a government. As already mentioned, the government is only a part and an agency of the state which provides economic and political directions to its society. Therefore the word "state" is larger in scope than "government".
A government can exist even without a state as in the case of non-state societies. A chiefdom in a barangay of old, for instance, was a political organization with the datu as the chief ruler assisted by a council of elders or relatives, had a government that it is not necessarily a state. In a modern nation-state, a government is a political machinery composed of public official who run the affairs of the state using rational-legal authority.
Based on anthropological studies, the following are the most common types of government of non-state and state societies:
The word "nation" is also different from the "state" or "government". H. De Leon (1997) suggests that "state" is a political concept while "nation" is an ethnic concept. The word "nation" is technically synonymous to "people" in the state. It is defined as "a group of people bound together by certain characteristics such as common social origin, language, customs and traditions, and who believe that they are one and distinct from others (De Leon 1997:7).
The idea of nationhood is of European origin, particularly from France, the first independent nation-state in Europe after the French Revolution. Dr. Jose Rizal first introduced this idea through his writings in the 19th century to mean one identity of all people who are born and residing in the Philippines during the Spanish period as "Filipinos" whether they are Spaniards, mestizos or natives (Indios). Before Rizal, one must remember that only those with Spanish blood like the peninsulares (Spaniards who were born in the peninsula or Spain and residing in the colony), insulares (Spaniards who were born and residing in the Philippines) and mestizos (those of blood mixed, Spanish, Chinese or other foreigners) were considered "Filipinos" and as consisting the "Filipino nation" during the Spanish period. The natives were not called "Filipinos" by the Spaniards but were looked down upon as "Indios" or savage "Indians" who generally were uneducated and considered uncivilized.
People consisting of one identity as a nation do not necessarily come from the same ethnicity or cultural background whose language they speak is one. The Philippines, for instance, is a multi-ethnic nation. Filipinos come from different ethnic backgrounds and speak different languages: some are Ilokanos, Warays, Bicolanos, Cebuanos, Maranaos, Tausugs, Maguindanaos, Ilonggo, Tagalogs, etc. There are more than a hundred ethno-linguistic groups in the Philippines and yet they are all Filipinos and belong to one nation—the Philippines. "Filipino" as the national language of our country is actually a social construct which uses the Tagalog language as its basic structure with borrowings from other Philippine languages. It is the lingua franca or the language which is not as yet mastered with equal competence by all these ethnic groups in the Philippines. Of course, the national language "Filipino" is taught in schools and can easily be learned by Filipinos from various ethnic origin because of a common core.
THE IMPORTANCE OF GOVERNMENT
One of the most important elements of the state is the government. A state must have some organizing hold over its citizenry; otherwise, it would crumble and its territory would soon split apart or be conquered or absorbed by other nations. In the absence of government, anarchy and chaos reigns and the state soon disintegrates.
Humanity has witnessed various forms of government being instituted by societies and states round the world. Below are some of the most prominent and popular types:
Table 5. General Types of Government in the World
Head of State
(possesses ceremonial or nominal powers)
(possesses actual governmental powers)
Country with this Type of Government
I. As to the number of persons exercising sovereign powers
A government in which the supreme and final authority is in the hands of the reigning monarch (king and/or queen).
Monarch rules by divine right with absolute governmental powers
Saudi Arabia, Brunei, Swaziland
2. Limited or Constitutional
Monarch rules in accordance with a constitution and with limited governmental powers
England, Japan, Spain
A system of government where the people exercise governmental powers either directly or through their representatives.
People directly exercise governmental powers. All citizens speak & vote in assemblies to decide government matters.
Ancient city-states of Greece and Rome
Prime Minister (parliamentary government) or
President (for presidential government)
Philippines, United States, Malaysia
This is a system of government in which the political power is exercised by a few rich and power class or elite known as oligarchy or aristocracy.
II. As to the extent of centralization of power
One in which the control of national and local governance is exercised by the national government.
Philippines, Vietnam, Taiwan
One in which the powers of government is divided into two sets, one for national affairs (federal government) and the other for local affairs (state government)
III. As to the extent of state ownership of the economy and distribution of the nation's
wealth to poorer sectors of society
The government owns little or no industry and redistributes little in the form of welfare programs. This is based on the assumption that private enterprise and individual initiative make a nation both free and prosperous. E.g. United States, the Philippines.
The government owns little or no industry but does redistribute wealth to aid the poor. This is also known as "social democracy". The welfare state offers "cradle-to-grave" benefits in the form of health insurance, child care, job training, and retirement funds. To pay for this, it charges the world's highest taxes—in Sweden and Denmark more than 50 percent of the country's GDP. Industry, though is private and oriented to moneymaking.
This is the old system which predated laissez-faire and originated when the French kings became powerful in Europe. The government becomes the number one capitalist, owning and running much of major industry, but is not interested in providing welfare benefits. Small and medium business is left in private hands. Some European and Latin American countries: France, Brazil and Mexico were caught by statism and are now reforming to improve their systems.
Sources: De Leon, Hector (1997) Pp.8-9; Roskin et al (2008). P.7
Which Type of Government a better fit for the Philippines: Presidential or Parliamentary?
One of the most controversial issues facing the Philippines in recent years revolved around the choice of the form of republican government to be adopted in the country. The 1987 Constitution has expressly indicated that the government must be presidential with the President as the head of the state and government. But debates often surfaced with regard to the advantages and disadvantages of adopting the presidential form of government. Some preferred the parliamentary over the presidential form of government because it was said to be easier to remove the head of government, if s/he was corrupt, with just a mere vote of confidence of the members of parliament compared to the tedious process of impeachment. Others pointed out the simplicity and lesser cost in the process of making laws in a parliamentary form of government. Thus the government can save more money in the treasury. In Parliamentary form, only one lawmaking body and set of lawmakers would be debating to pass a bill into law, compared to the two houses or two groups of lawmakers in the presidential type. This would certainly shorten the duration in making important laws of the land.
Despite these advantages of adopting a parliamentary form of government, moves by the incumbent top officials to change the charter or constitution (or CHACHA for Charter Change) were opposed vehemently by those who were pro-presidential form. There was a general perception that the change of government was just a pretext to extend the term of the President and other officials rather than a quest for a more efficient government. Thus, when the former President Gloria Macapagal Arroyo and her allies in Congress pushed for charter change to adopt a parliamentary government, many people rejected it and preferred to maintain the presidential form.
Before analyzing the costs and benefits of adopting the presidential or parliamentary form of government, it is important to understand the main difference of these republican or indirect forms of democratic governments.
THE DIFFERENCE BETWEEN THE PRESIDENTIAL AND PARLIAMENTARY FORMS OF GOVERNMENT
The republican government or representative democracy became the popular model when nation-states arose and became popular in the 19th century. It has two forms: the parliamentary and the presidential. The parliamentary form originated in England, the "Mother of Parliaments" and spread to some parts of Europe, to New Zealand, India and Malaysia. It became the most popular form of democratic government with over 100 states operating under the parliamentary form. The presidential form originated in the United States when it gained independence from England in 1776. Since then, this type of government was adopted by other countries in the world like Switzerland, Mexico, Indonesia and some Latin American republics (Zaide 1996:56).
THE DIFFERENCE IN THE HEAD OF STATE AND GOVERNMENT
On the one hand, the head or chief of state generally possesses titular or nominal powers. He or she largely performs ceremonial functions in the government and often represents the country abroad but does not possess political powers to directly run the government. The head of government, on the other hand, is the true chief executive of the country, who directly administers the laws of the land and manages the affairs of state.
In a presidential form, the function of the head of the state and the head of government are usually performed by one person—the president— who is elected nationwide by highest vote. In this case, the people or the electorate can directly choose their leader. His/her term is fixed by law and can only be removed involuntarily by impeachment. In the Philippines, the President serves for six (6) years without re-election.
In a parliamentary form, which is can be classified into two—the traditional type and the French type—the head of state of the traditional type is the President while in the French type it is the Prime Minister. Both of them are appointed and can be removed by the Parliament by majority vote of its members—the MPs or Members of the Parliament. The head of the government of the traditional type is the Prime Minister who is elected by the majority members of the Parliament or MPs as in the case of Malaysia, Indonesia or Singapore. Usually s/he comes from the ruling party who controls the number of MPs in the Parliament. The term of the Prime Minister is indefinite, as long as the majority of the MPs have confidence in his/her leadership. S/he can, however, be removed by a vote of non-confidence by the majority members of the Parliament.
For the French type which is the case in France today, the head of government is the President who is chosen by highest vote in a national election with a fixed term and with re-election. The Prime Minister in France exercises minimal policy-making powers and performs more ceremonial functions. The President runs the government and serves two terms. In the 2012 national election, the French President Nicolas Sarkoshy was defeated by Francois Hollade after his first term.
A STRONGER LEGISLATIVE BRANCH IN PARLIAMENTARY GOVERNMENT
The main difference between the presidential and parliamentary forms of government lies in the allocation of powers between the executive and legislative branch. In the presidential form, the executive branch's power is running the country and is separate and independent from the legislative branch. The President appoints the members of his/her cabinet who is usually non- members of the legislature. There are only a few cases when a senator or congressman is appointed by the President as a cabinet member—in such a case the appointed legislator has to resign from his elected post. In the parliamentary form, the legislative and executive are fused or merged, because the members of the cabinet are also members of the legislature and the ruling party. The cabinet members who run the major departments of the government are first elected as members of the parliament (MPs), the party with the highest number of seats in the parliament elects the Prime Minister and cabinet members among themselves. Usually, the leader of the ruling party which gained majority seats in the parliament is elected as the Prime Minister, who has no fixed term and may continue to exercise power as long as s/he continues to enjoy the confidence of the majority members of the parliament. If the Prime Minister loses the vote of confidence in parliament, the cabinet members are obliged to resign. The parliament is dissolved and a new parliamentary election is held. Those who aspire to become Prime Minister does not have to run in a national election, all s/he has to do is to win the votes of his/her district and constituency and when elected as a member of the parliament must win the vote of the other members to be elected as the Prime Minister (Zaide 1996:55).
BICAMERAL LEGISLATION FOR PARLIAMENTARY GOVERNMENT
The presidential form has a bicameral legislation like in the case of the Philippines. It has two houses which make laws or statutes: the Senate composed of 24 senators as the Upper House and the House of Representatives, the Lower House, composed of more than 250 districts and party-list congressmen/women. A bill or proposed law undergoes a long and tedious process passing through these two houses before it is signed by the President as a law. In the parliamentary form, lawmaking seems less complex as only one house and set of legislators are assigned to tackle the bill before being signed into law by the Prime Minister in the traditional parliamentary form or by the President in the French form.
The table below will summarize the main difference between a presidential and parliamentary forms of a republican government:
Table 6. A Comparison between the Presidential and Parliamentary Forms of Government
Form of Government
(Most common type)
(Adopted by France)
A. Head of Government
1. Selection Process
Elected by majority vote by Members of Parliament (MPs), mostly from the Majority Party
2. Removal Process
Vote of Non-Confidence by majority of the MPs
Vote of confidence by Parliament or National Assembly
3. Term of Office
Indefinite, depending on confidence of MPs
Fixed Term (5 years with reelection)
B. Head of State
1. Selection Process
Appointed by the Parliament
Nominated by majority party of National Assembly and appointed by the President
2. Removal Process
Vote of Confidence by MPs
Vote of confidence by MPs
3. Term of Office
C. Selection of Cabinet Members
Usually non-members of Congress are appointed by the President as Cabinet members
Members of Ruling party in Parliament elects Cabinet members
Chosen by the Prime Minister with the approval of the President
D. Type of Legislation
(Meaning: 2 Houses)
-Two lawmaking bodies make laws
-Only one house or one lawmaking body makes laws
-The Senate and National Assembly as the Lower House
1. Legislative body
Philippine Congress consisting of:
(Upper House) &
2) House of Representatives
The French Parliament
24 Senators; 250+ congressmen/women
Depending on the country's constitution
National Assembly: 577 seats; Senate: 348 seats.
Source: Sonia Zaide (1996) Pp.55-58; http://www.rogerdarlington.me.uk/Frenchpoliticalsystem.
html, "A Short Guide to French Political System"
Table 7. Advantages and Disadvantages between the Presidential and Parliamentary
Stability of Government
Unstable as there is no fixed tenure of office for executive officials (prime minister & cabinet members can be removed by vote of confidence of MPs) & parliament can be dissolved any time with the removal of the prime minister.
Stable as the executive branch led by President & cabinet members are separate from legislature and thus can rule the country unhampered by party considerations and excessive dependence on legislative power.
Flexible as elections can be called any time to replace the parliament, the prime minister and the cabinet members.
Inflexible as the President and members of Congress have fixed tenures. Cabinet members serve at the pleasure of the President and thus can be replaced any time during the President's term.
Harmony in Government
Fosters harmony in government as the executive and legislative branches are fused. The executive officers and legislators work together for the success and failure of their government.
The President is sometimes at odds with Congress and can be threatened by impeachment if majority of the legislators do not belong to the President's party.
Level of Complexity in Lawmaking
Lawmaking tends to be less complex as there is only one house and set of legislators who will make the laws.
Lawmaking can be complex as the bill or proposed law undergoes various processes in the two houses of Congress: the Senate and House of Representatives. This can encourage red tape and corruption to expedite lawmaking.
This chapter orients the reader to the basic nature of the state, nation and government. It views the state into two major approaches. The first is the normative approach. It defined the state as a community of persons more or less, permanently occupying a definite portion of territory, having a government of their own to which the great body of inhabitants renders obedience, and enjoying freedom from external control. The second is the empirical approach of sociology and anthropology. It defined the state as a compulsory association with territorial basis having the monopoly of the legitimate use of force. Sociologists distinguish state societies from non-state societies. A state is a more advanced society which requires a large population, private ownership, formation of social classes and a more advanced subsistence system.
A state is not synonymous with government. A state cannot exist without a government as it is one of its major elements. But a government can exist without a state. Non-state or primitive societies have governments but they do not qualify as states as they lack the necessary anthropological requirements. A state is also different from a nation. The former is a political concept while the latter is an ethnic concept. The word nation is technically synonymous to "people" living in the state.
There are different types of government around the world as to the number of persons exercising sovereign power (monarchy, democracy or aristocracy), as to the extent of centralization of powers (unitary or federal), state ownership of the economy and distribution of the nation's wealth to poorer sectors of society (laissez-faire, welfare or statism). The two most popular types of indirect or representative democracies are the presidential and parliamentary forms of government. Each type has its own advantages and disadvantages. In the Philippines, the debate continues as to which of these types is a better fit for the country.
THE PHILIPPINE CONSTITUTION
THE NATURE OF A CONSTITUTION
In its broad sense, the term constitution refers to "that body of rules and principles in accordance with which the powers of sovereignty are regularly exercised"(Cooley in Suarez 1999: 12).
With reference to our Philippine Constitution, this term may be defined as "that written instrument by which the fundamental powers of the government are established, limited, and defined and by which these powers are distributed among the several departments or branches for their safe and useful exercise for the benefit of the people" (Malcom & Laurel in De Leon 1997: 18).
The constitution is popularly known as the fundamental law of the land and the basis of government. It is established by the people, in their original sovereign capacity, to promote their own happiness, and permanently to secure their rights, property, independence, and common welfare (Moreno 1972: 128). The constitution is also called a charter in the sense it is the framework of the type of government the people want to establish. That is why when one wants to change the form of government, the charter or the constitution must first be changed; thus, the term charter change or ChaCha became a popular acronym in the Philippines for those who wanted to change the government from presidential to parliamentary form.
Though there are different kinds of constitutions, the most popular or common classification as to their form is that of written or unwritten:
This constitution, as the term denotes, is one has definite written form at a particular time, usually written by a group of lawmakers tasked to frame the constitution such as the case of a constitutional convention.
Most of the constitutions in the modern and post-modern world are written. If constitutional laws are written, they become rigid, fixed and are not subject to constant change and whimsical interpretation of top public officials.
This type of constitution is not entirely unwritten as the name denotes. Unwritten constitution simply means that some parts of it are written and others are unwritten or handed down from one generation to another through customs and traditions. This constitution is usually "a product of political evolution, consisting largely of a mass of customs, usages and judicial decisions together with a smaller body of statutory enactments of a fundamental character, usually bearing different dates."
The English Constitution is unwritten only in the sense that it is not codified into one single document. Part of it is written such the Acts of Parliament and judicial decisions of the courts.
CONSTITUTION AND STATUTE
The constitution is considered as the highest law of the land. It is drafted indirectly by the people through their representatives in a constitutional convention, especially in the case of revision, and approved directly by them through votes in a process called a plebiscite. In a plebiscite, registered voters go to the voting precincts and cast their votes "Yes" or "No" to the amendment or revision of the constitution. In the case of a specific modification of the constitution through people's initiative, as we shall see below, the people themselves introduce the amendment directly in a nationwide signature drive.
In creating, amending and revising the constitution, the people themselves, in theory, exercise their sovereign power—the source or repository of all political authority in the country. This makes the constitution the fundamental law or the highest form of law in the land, making it the framework or the guiding principles the legislature follows in creating specific laws or statutes for the public.
A statute is also part of the law of the land. Technically, a statute is a type of law enacted or created by a lawmaking body like the Philippine Congress. It has various names. During the Commonwealth period, statutes were called Commonwealth Acts (CAs), during the Marcos era or the 1973 Constitution, they were called Batas Pambansa (BPs) and at present under the 1987 Constitution, they are called Republic Acts (RAs). A statue is not created or enacted directly by the people but by their representatives such as senators or congressmen/women. It is usually more specific in content than a constitutional law and addresses specific problem in the public order. B.P. 22, for instance, punishes any person who issues a check without sufficient funds in the bank or R.A. 7279 or Urban Development and Act provides guidelines with regard to urban land reform and squatting. Since the constitution is the highest law of the land, it cannot be contradicted or undermined by a statute. In case of conflict, the constitution must prevail and the statute or any portion thereof can be declared by the Supreme Court upon a valid petition, as unconstitutional and illegal and must therefore stricken from the legal code.
METHODS OF CHANGING THE CONSTITUTION
In the Philippines, constitutional changes can be done in two ways: (1) by amendment and (2) by revision. It is an amendment if the change is isolated or piecemeal only like a mere change in the term of the President from six years to four years. But there is revision if the change is substantial which requires a revamp or rewriting of the whole instrument. Changing the form of government, for instance, from presidential to parliamentary form is substantial and thus can be considered a revision. The present 1987 Philippine Constitution may be considered a revision of the 1973 Marcos Constitution in a sense; the provisions which restored the presidential system of government from the modified parliamentary form of the Marcos Constitution, when he made himself the President and Cesar Virata as the Prime Minister.
Two Steps in the Amendment or Revision of the Constitution
The process to change the constitution begins with a proposal from a legislative body like our Philippine Congress or directly by the people to amend or revise it. Thus there are three (3) methods with which a proposal can be made for change, contained in the 1987 Philippine Constitution:
By a Constitutional Convention (ConCon) called for the purpose;
By Congress, as a Constituent Assembly (ConAss), upon a vote of three-fourths of all its members, voting separately;
By the people directly, through initiative upon petition of the required number of voters.
Table 8. Philippine Constitutional Change
A law passed signed by at least 2/3 of all members of Congress calling for a constitutional convention
A law signed by at least 3/4 of all members of Congress allowing Congress to directly make the proposal
A petition to directly amend the Constitution signed by at least 12 percent of total registered voters, with every legislative district represented by at least 3 percent of registered voters therein.
People who will make the proposal
Delegates are elected by legislative district throughout the country in a special election
Incumbent member of Congress automatically become the drafters
Directly done by registered voters signing the petition, COMELEC verifies the authenticity of the signatures
Source: Suarez 1999
Ratification of the constitutional changes is done by the direct approval by the people, i.e., by registered voters, of the amendment or revision of the constitution. Except by the people's initiative, the final change in the constitution is done by delegates or drafters—whether by a constitutional convention or constituent assembly. It remains a draft and proposal without the approval of the electorate. This power of ratification is in the hands of the people, particularly the registered voters, where sovereignty or the supreme power of the state resides (1987 Constitution Art. II, Sec.1). In practice, this means that the registered voters would go their respective voting precincts on the day of the plebiscite and cast their vote "Yes" or "No" when ask in the ballot whether they would approve or not the draft of the new Constitution. If the majority vote is "Yes" than the new Constitution is deemed ratified.
CONSTITUTIONS IN PHILIPPINE HISTORY
The 19th century is marked by the birth of nation-states in the world coinciding with the birth of the modern world. Territories which gained independence from their colonial masters started to build their own republics and to write their own constitutions or charters describing what kind of government they want to establish. The Philippines too through its revolutionary leaders during the twilight of the Spanish rule, during the late 19th century, started to make moves to establish an independent state. General Emilio Aguinaldo, the dictatorial President of the Biak-na-Bato Republic in 1897, was the first to draft a constitution in the country with the aim of making the Philippines separate from the Spanish monarchy and an independent nation. He wrote the first known constitution in the country while hiding in the caves of Bulacan—the Biak-na-Bato Constitution. This constitution created the Biak-na-Bato Republic on November 1, 1987. It had no lasting political impact as its operation lasted only up to December 15, 1897 with the dissolution of the republic. Its significance lies more in the attempt to create an independent republic separate from Spanish rule.
The Malolos Constitution
The first formal Philippine Constitution which had a significant impact on the creation of the Philippine state is the Malolos Constitution which established the revolutionary government of General Emilio Aguinaldo in 1899. This constitution was created by a revolutionary Congress by virtue of presidential proclamations of Emilio Aguinaldo who declared himself as the new president of the First Philippine Republic. It made the Philippines as the first democratic country in Asia and the West Pacific.
This revolutionary government, however, did not last long as Aguinaldo was captured during the Spanish-American war by the Americans in April 1901. The Philippines was annexed to the United States as a colony and thus the Malolos constitution ceased to operate when the American military rule was established in April 14, 1898.
It took more than thirty years before the Philippines under the Commonwealth came up with a new constitution. The Americans took control of the archipelago under military and civil rule. During this period, steps were taken by the United States Congress to prepare the Philippines to enact a new constitution and gain independence. Of particular importance is the passage of the Tydings-McDuffie Law by the US Congress on March 24, 1934. This law primarily provided a transition of ten years during which the Philippine Commonwealth would operate and at the expiration of said period on July 4, 1946, the Philippines would be granted independence. Moreover, it authorized the calling of a constitutional convention by the Philippine Legislature for the enactment of the new constitution. As a result, on March 23, 1935, President Roosevelt approved the draft and was submitted for approval by the Filipino people. With a vote of 1,213,046 in favor and 44, 963 against, the 1935 Constitution was ratified overwhelmingly.
The 1935 constitution was heavily influenced by the American constitution. It subscribed to a bicameral legislature consisting of a Senate and House of Representatives. Like the US president, the Philippine President and Vice-President has a term of 4 years with reelection. The form of government was presidential republican democracy with the President as the head of State and government.
The 1935 Constitution has been praised by lawyers for its brevity and clarity. But it has also been criticized for being pro-American. Its most controversial provision was the so-called Parity Amendment which allowed American citizen equal right in the exploitation of Philippine natural resources and the operation of public utilities.
C. 1973 Constitution
The most controversial constitution ever made in Philippine history is the 1973 Constitution or what is commonly referred to as the Marcos Constitution. The irregularity of this constitution lies in its ratification. This charter was presented for people's approval not through secret balloting by qualified voters in a plebiscite. Instead it was submitted to hastily-arranged "citizen's assemblies" composed of groups of people in various barangays (including youth 15 years or below) who were asked to ratify by viva voce or show of hands. The Supreme Court decided that it had not been legally ratified. But, the Court was cut short of declaring it null and void provoking Chief Justice Roberto Conception to resign (Zaide 1996:43).
This constitution has been amended many times in 1976, 1980, 1981 and 1984 making it different from what was originally drafted in 1973. After 38 amendments in 13 years, the 1973 Constitution is said to be the most-amended written constitution in the world (Zaide 1996). One controversial amendment was the introduction of the parliamentary form of government following the French type in the constitution. Because of this amendment, Marcos became the regular President and his Finance Minister Cesar Virata was appointed by him as his Prime Minister. Another amendment that stood out as the most controversial of all is Amendment No. 6. This amendment gave President Marcos law-making powers which are ordinarily reserved for the legislature. It enabled him to write and enforce presidential decrees (P.D.s) outside Congress. It virtually made Marcos a very strong Philippine President possessing both executive and legislative powers. Obviously, all these maneuvers of Marcos were meant to extend his term and to accumulate more powers to himself and his cronies. Marcos could no longer run for a second reelection; thus he needed to manipulate the constitution and change the form of government to prolong his stay in power.
Marcos dictatorship began to crumble when he called a snap election in 1986 and the widow of the slain senator Benigno Corazon "Cory" Aquino took the challenge. Because of the massive manipulation of the election results by Marcos people became restless. This was aggravated by the fact that the cousin of Marcos, General Fidel Ramos together with the Secretary of Defense Juan Ponce Enrile and the Reform Armed Forces Movement (RAM) in the military withdrew their support and loyalty to the former President. To rescue Enrile and Ramos from arrest and to prevent a bloody revolution, the late Jaime Cardinal Sin called on the people in Radio Veritas to go to EDSA with prayers and rosaries. This resulted in the peaceful revolution called EDSA People Power I. Marcos and his family were forced to flee to Hawaii with the help of the US and seek asylum in the United States and Corazon "Cory" Aquino was installed as the new president of the republic.
After EDSA People Power I, the 1973 constitution of Marcos ceased to operate. President Corazon Aquino declared a revolutionary government and eventually became a revolutionary dictator. Under the transitory Freedom Constitution, President Aquino could make laws until the convening of the legislative body (Congress) under the new constitution. Owing to her desire to expedite the restoration of democracy and to give up her vast powers as a revolutionary leader, Aquino appointed a Constitutional Commission composed of 50 people to draft the new constitution. After 133 days of work and with a vote of 42-2, the Constitutional Commission approved the proposed new constitution (De Leon 1997: 26). In a plebiscite, the new 1987 Constitution was ratified by the Filipino people on February 2, 1987.
The 1987 Constitution was a reaction to the abuses of Marcos under the 1973 Constitution. This constitution basically restored democracy in the country and remove dictatorial provisions of the Marcos constitution. It rejected the parliamentary experiment and restored the old presidential system with certain modification especially to the term of the President which was shortened from 4 years with reelection under the 1935 Constitution to 6 years without reelection.
Table 9. The Philippine Constitutions and their Characteristics
(People Power Constitution)
Mode of Creation
Constitutional Convention (1935)
Constitutional Convention (1971)
Constitutional Commission (1986)
Manner How Delegates or Drafters of the Constitution were chosen
Appointed among members of Revolutionary Congress
Elected by district
Elected by district
Appointed by President Corazon Aquino
President/Head of Drafters/delegates
Claro M. Recto
Justice Cecilia Munoz-Palma
Decrees of June 18 & 23, 1898 promulgated by Emilio Aguinaldo
Tydings-McDuffie Law (1934)
Resolution of Both Houses No. 2 (1967), as amended by Resolution No.4 (1969)
Article V of Proclamation No.3 (March 25, 9186) and Proclamation No. 9, known as the Law Governing the Constitutional Commission of 1986" promulgated by Pres. Corazon Aquino on April 23, 1986)
Nature of the Law
Convoked the members of the Philippine Revolutionary Congress & authorized the appointment of constitutional committee
Enacted by US Congress & approved by Pres. Franklin Roosevelt authorizing Philippine legislature to call for Constitutional Convention
Authorized the holding of constitutional convention in 1971
Authorized the President to appoint 50 national, regional and sectoral representatives to draft the constitution
1898 to 1901
1942 to 1945, 1946 to 1972
1973 to 1986
1987 up to the present
Source/s of Content/inspiration of the New Constitution
Constitutions of Mexico, Belgium, Guatemala, Costa Rica, Brazil and France
U.S. Constitution, with minor influence from Malolos constitution, Instruction of Pres.William McKinley (1900),Phil. Bill (1902), and Jones Law (1916)
1935 Constitution with references from Malolos Constitution
Malolos Constitution & 1935 Constitution
Date of People's Approval of the New Constitution (Ratification)
January 21, 1899
May 14, 1935
January 17, 1973
February 2, 1987
Manner of ratification
Inaugurated by members of Congress & promulgated by Aguinaldo
Plebiscite: 1,213,046 in favor; 44,963 against
Vote by Citizens assemblies: 14,976,561 in favor; 743,869 against
in favor; 5,058,714 against
Type of Government Established
First Philippine Republic
Commonwealth of the Philippines, which later became Republic of the Philippines after gaining independence in July 4, 1946.
(1) Dictatorial government, with Marcos given legislative powers, and (2) a modified parliamentary form of government after lifting of Martial law in 1981
Republican government replacing the dictatorial government of Marcos and the revolutionary government of Pres. Corazon Aquino after EDSA People Power I.
Sources: De Leon, Hector (1997). Pp. 22-26; "The Philippine Revolution, the Malolos
THE BASIC PRINCIPLES IN THE 1987 CONSTITUTION
The following provisions can provide students with an overview of the basic principles underlying the 1987 Constitution. It is recommended that they read and examine the sections and principles below to appreciate these principles. They are based on certain fundamental philosophies or principles of government which become part of our democratic heritage as a people (Munoz & Gonzales-Munoz 2002: 23).
Table 10. Overview of the Principles Underlying the 1987 Constitution
SOURCE IN 1987 CONSTITUTION
The aid of Almighty God in the life of the nation is expressly recognized.
The Preamble is a collective prayer. In imploring the aid of God Almighty, we declare our belief in God's existence and believe in His power to guide our destinies.
Preamble or introduction of the constitution
The People are Sovereign.
All political powers in government emanate from the people.
War as an instrument of national policy is renounced.
Only defensive war is allowed by law; invasion or offensive war against another country is unconstitutional.
Civilian authority is supreme over the military.
The supremacy of civilian authority over the military led by the President must always be observed in governance to prevent military rule or takeover.
Separation of Church and State
The domain of the state is purely on political matters while the Church is purely on religious and moral matters. The relationship must be of cooperation and not of hostility.
Importance of the family as a basic social institution
The State recognizes the sanctity of family life as a basic social institution as well as protect the life of the mother and the unborn from the moment of conception.
Human Rights are guaranteed.
The constitution recognizes that each has intrinsic human dignity and rights which must respected and protected against violations by the state, individuals or groups. The Bill of Rights is an enumeration of a person's rights under the constitution and a limitation upon the power of the State.
III, Secs.1-22, XIII, Secs. 17-19
Government Officials are elected.
The right to suffrage or to elect government officials is an obligation of qualified voters.
Separation of Powers with checks and balances
Executive, legislative and judicial branches of government must be separate and independent to provide for a system of checks and balances against possible abuse of power.
The local governments such as that of the provinces, cities, towns or barangays are given more power and autonomy from the national government under a local government code. It also espouses autonomous regions of the Cordilleras and Muslim Mindanao.
The courts enjoy independence, i.e., autonomous in performing their functions without interference from the executive or legislative branch of the government. The judiciary enjoys fiscal autonomy and the Supreme Court has administrative supervision over all the courts.
Government of Laws
It means that no person in this country is above or beyond the law. The government is governed by rational-legal rules and not by self-interested individuals or groups.
The majority rule is the unwritten law of democratic governance. It simply means that the wishes of the majority prevails over those of the minority. Governance is generally determined by the rule of majority. Those who received majority votes in an election, for instance, are usually given the authority to decide or rule.
Non-suability of the State
In general it means that the government of the Republic of the Philippines cannot be sued in court without its consent. Without this principle, the state will lose much time and public resources just to entertain barrage of cases filed against the government in court. Thus cases filed against the government can only prosper in court depending on the nature of the lawsuit and consent of the State.
Guarantee of social justice
The State is mandated to promote social justice in all phases of national development giving preference to the poor and underprivileged.
Nationalization of natural resources
The natural resources and national economy must be effectively owned and controlled by Filipinos.
Accountability of public officers
Public office is a public trust. All government officials, whether they be the highest in the land or lowliest public servants shall at all times be answerable to the people for their misconduct to the people.
Source: (Munoz & Gonzales-Munoz 2002: 23)
SOME BASIC CONSTITUTIONAL PRINCIPLES
The Philippines is a democratic and republican state (Art. II, Section 1)
The 1987 Constitution explicitly subscribes to an indirect, representative or republican form of democratic government. This means that our country is ruled by representatives of the people chosen through democratic elections. Public officers such as the President, Vice-President, Senators, congressmen, governors, mayors and so on, exercise power delegated by the people who remain the ultimate source of political power and authority. Hence, Section 1 of Article II of the Constitution states that the "sovereignty resides in the people and all government authority emanates from them". Technically, only registered voters or the electorate has the power to exercise and delegate this sovereign power in an election, plebiscite or referendum.
The 1987 Constitution embodies some features of a pure democracy in which the people can directly by their sovereign power, rule the country. This is manifested in the provisions on referendum and people's initiative in amending the constitution (see Art. VI, Sec. 32) (De Leon 1997: 43).
Renunciation of War as a State Policy (Art. II, Section 2)
Under this section, the Philippines subscribes to the United Nations Charter binding all members to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…." (De Leon 1997: 45). This means that Congress cannot authorize the President to invade another country or annex any territory of another state just like what Iraq did when Saddam Hussein invaded Kuwait during the Gulf war. The Philippines "adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations" (Section 2). But if the Philippines is attacked or invaded by another country, the Constitution allows Congress to declare an existence of a state of war and authorize the President to command the Armed Forces to defend our territorial integrity. This requires the concurrence of two-thirds of all the members of Congress voting separately (Section 23 (1), Article VI). In short, the constitution allows the President and Congress to engage in defensive war against an invading country, as an act of self-defense but prohibits aggressive war that attacks another state, as this is contrary to the country's policy of peace and friendship with other nations.
Civilian Supremacy and the Role of the Armed Forces as Protector of the People (Art. II, Section 3).
The principle of civilian supremacy simply requires that the armed forces of the Philippines are always subordinate to civilian authority. This was included in the constitution to prevent the rise of military dictatorship or junta that grabs political power illegally. A clear expression of this principle is that the President as commander-in-chief of the Armed Forces must be a civilian and not an active general or member of the Armed Forces of the Philippines. President Fidel Ramos is a military general but he was only elected President of our country after he had retired from military service. Another manifestation of this principle is that civilian authority remains superior over the military even during martial law, suspension of the writ of habeas corpus or war (see Art. III, Sec. 15; Art. VII, Sec. 18). Lastly, the President together with Congress, determines the military budget and defines the national policy on defense and security (De Leon 1997: 47).
Separation of Church and State (Art. II, Section 6)
The doctrine of separation of Church and State simply means that each institution has a specific sphere or duty to perform in society: the Church on purely matters of religion and morals and the State on purely political matters or temporal aspects of people's life. Ideally, each institution should not interfere with the other's sphere in order to avoid conflict. But in some cases, the Church criticizes some public officials and lobbies for a change in public policies claiming that morality covers public service especially corruption in government. This was seen when some Philippine presidents and top public officials tried to influence the Catholic bishops or the Iglesia ni Cristo to support some of their government policies. Thus the dividing line between the respective domains of the Church and State has always been the subject of disagreement. Ideally, the relationship must be that of cooperation and mutual support but questionable, corrupt, and immoral government action or policy often invites Church interference and thus leads to hostility between these two powerful institutions in Philippine society.
The important principles of the doctrine of Separation of Church and State is shown in the following table.
Table 11. Principles of the Separation of Church and State
The State has no official religion.
Although predominantly a Catholic country, the Philippines has different religions. The word "religion" includes all faiths, or all churches, sects, denominations, sectarian institution or system of beliefs. The state assumes an attitude of neutrality with regard to all religions and is not allowed by the constitution to enact a law making a particular religion or church as the state religion.
The State cannot set-up a church, whether or not supported with public funds; nor aid one or all religions (see Art. VI, Sec. 29 ), or prefer one religion over another;
The government cannot initiate the building of a church, chapel or any religious structure nor sponsor religious activities favoring a particular religion, whether funds being used come from the government or private sector. It cannot also pass laws aiding one or all religions or prefer one religion over another. In some cases the government may spend money for the Pope's visit in the Philippines not as the head of the Catholic Church but as the Head of the independent state of the Vatican.
Every person is free to profess belief or disbelief in any religion;
Any person has the right to choose or not choose a particular religion without duress or punishment from the state. In communist countries like China, for instance, Catholics are pressured to join the Patriotic Church of China loyal to the government and not to the underground Catholic Church loyal to the Pope.
Every religious minister is free to practice his calling; and
This respects the vocation of those who wish to become a priest, religious, imam, pastor, minister of any religious calling.
The State cannot punish a person for entertaining or professing religious beliefs or disbeliefs.
The right to believe and not to believe in God is covered by this constitutional doctrine. A person who believes in Satanism or rejects God's existence cannot just be arrested by the State unless he or she performs illegal or criminal acts in relation to such belief.
Source: Article II, Section 6 of the 1987 Constitution cited in De Leon (1997)
The doctrine of separation of Church and State does not mean hostility between these two powerful institutions in the country. After all, both serve the same people as their constituents or believers. To illustrate, the constitution has allowed some concessions to the Church as these can provide beneficial results to the citizens in the long run:
(1) Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (Art.VI, Sec 28 (3).);
(2) Optional, religious instruction is allowed in public elementary and high schools (Art. XIV, Sec. 3).
(3) Holy Thursday and Good Friday of the Holy Week, Christmas Day and Sundays and Ramadan are made legal holidays as their observance can promote public morals.
(4) Public money may be used when a priest or preacher or dignitary as such is assigned and worked as chaplain or any position in the armed forces, penal institution, government orphanage or leprosarium (Art. VI, Sec. 29); and
(5) The punishment of bigamy, polygamy, and certain crimes against public worship is another expression of the State's concern for the moral welfare of the citizens.
Equal Access to Opportunities to Public Service and Prohibition of Political Dynasty (Art. II, Sec. 26).
Ideally, what the 1987 Constitution wants is to give every qualified Filipino an opportunity to serve the government. In fact, the basic educational attainment for the President, Vice-President, Senator and Congressman has been reduced to "able to read and write" presumably to provide all Filipinos the opportunity to serve our government. Moreover, the law provides limitations of term of office for elective and appointive positions to enhance access of people to public service. Thus, the President serves only for 6 years without reelection, or the senator can serve for 6 years with reelection but no consecutive 3 terms. The criteria for selection must be based on merit and qualification and not by political connections, expediency, and kinship ties.
Unfortunately, this criteria as envisioned by the constitution is only partially fulfilled with this limitation of terms. But the major problem of political dynasty has not been properly addressed by Congress. At present, no law against political dynasty has been passed by Congress.
The limitation of terms of office for public officials is not a sufficient guarantee to prevent political dynasty. It is a common practice among politicians to allow their wives, sons, daughters or a close relatives to replace them soon after their last term ends. In other cases, incumbent officials like senators, congressmen, governors, or mayors can influence Congress to pass new laws creating another district, city or municipality just to provide them new positions to continue to stay in public office. This common pattern of political behavior in the Philippines that treats public office as private ownership is often called as patrimonialism in which politically influential families feel that other members of their family have the right to public office just because one member assumed public office (Zialcita in Diokno (ed) 1997: 46).The more popular political dynasties include the Osmenas of Cebu, the Josons of Nueva Ecija, the Albanos of Isabela and Binays of Makati to name a few.
Developing a self-reliant and independent national economy effectively controlled by
Filipinos (Art. II, Section 19)
To prevent foreign control of the local economy, the 1987 Constitution prohibits foreigners to own real properties in the country. With regard to ownership of foreign investment, it requires that at least 60 percent of the capital is owned by Filipinos and a maximum of 40 percent for foreign investors.
Developing a self-reliant and independent national economy controlled by Filipinos has long been an issue in our country. The Philippine economy during the American period could not be said to be independent of foreign control. For instance, the parity amendment in the 1935 Constitution which provided Americans equal rights with Filipinos to own and control natural resources in the country revealed the lack of independence of our economy. Moreover, some analysts cited foreign American aid and loans extended by the World Bank and International Monetary Fund for reconstruction after World War II as a means to further control the economy. With the conditions attached to these loans, the Philippines, they say, became more and more controlled by the US. The US required the adoption of a free trade policy for borrowers like the Philippines in order to open their local economies to American products. The US experienced an overproduction of goods after the World War II and was searching for new markets abroad as countries ravaged by war tended to adopt protectionist policies and disallowed imports from other countries. Foreign aid and loans with their attached conditions from multilateral institutions such as the World Bank (WB) and the International Monetary Fund (IMF) to the Philippines became an instrument of the US to make the local economy a ready market for US goods. As a result, the Philippine economy became dependent on US imports and was discouraged to establish an industrialized economy free from foreign control.
With the advent of globalization and liberalization of world trade as a result of the multilateral agreement signed by more than a hundred countries including the Philippines called the General Agreement on Tariffs and Trade (GATT) and the creation of its enforcing institution called the World Trade Organization (WTO), this constitutional provision of developing a self-reliant and independent economy controlled by Filipinos would be difficult to realize. The Philippines could have started the establishment of the fundamentals of an industrialized economy after the war, if it had not been manipulated by the US to make our country dependent on American imports and thus enabled us to compete against developed countries in today's free trade.
Citizenship (Art. IV)
One important principle under the 1987 Constitution is that on citizenship. Before we try to understand good citizenship, we must first determine what is citizenship, who is a citizen and who is considered a Filipino citizen.
Firstly, citizenship is a "term denoting membership of a citizen in a political society" and a citizen is "a member of a democratic community who enjoys full civil and political rights, and is accorded protection inside and outside the territory of the State" (De Leon 1997: 122). A person who is not a citizen is either called a "stateless person" or an "alien". A stateless person, on one hand, is a foreigner in another country whose state has been dissolved due to anarchy or revolution. The movie "Terminal" illustrates this case. Tom Hanks visited the United States. But after arriving at the airport, a revolution occurred in his country Liberia. The US and other countries did not recognize the chaotic leadership of his country and thus his passport was not honored. He became a "stateless person" and is at the mercy of the US authorities whether to allow him to enter the US or not. An alien, on the other hand, "is a citizen of a country who is residing in or passing through another country" (De Leon 1997: 123). Both a stateless person and an alien are subject to our laws. A stateless person, unlike an alien, is not protected by his/her own country and has no legal rights and no embassy to turn to in case of legal problems in the sense that he has no country or has no diplomatic ties with the country s/he is residing in.
Two Principles of Citizenship by Birth
Persons who are born in a particular country are not automatically citizens of the land. They are not automatically considered natural-born citizens. It still depends on the principle of citizenship by birth adopted of the country where they are born. Some countries choose to adopt one of the following 2 principles, others prefer to follow a combination of these principles:
Jus sanguinis (from Latin words "jus" which means "law" and "sanguinis" which means
Literally, the term means the "law of the blood". Under this principle, the blood of the
parents is the basis for the acquisition of citizenship and not the territory or the country
where the baby was born. The children follow the citizenship of both or one of the
parents. The Philippines is following this principle (Art. IV, Sec 1) in determining the
citizenship of persons born in the country. Thus, if one or both parents of the person who
is born in the Philippines are Filipinos, then his or her citizenship is automatically
Filipino. But it his or her parents are both aliens or foreigners, then his/her citizenship
would follow that of his/her parents whatever that be.
Jus Soli or Jus Loci (Law of the soil or law of the place).
Under this principle, the law of the soil or the place of birth determines the
citizenship of the child regardless of the citizenship or blood of one or both parents.
Thus, when a child is born in any part of the territory of the country be it in aerial,
terrestrial, or maritime domain, he or she automatically becomes a citizen of that country.
This principle is followed by the United States and France. A pregnant Filipino mother,
for instance, who gave birth in a commercial place which had entered US airspace is,
under this rule, the child is already considered an American citizen even though the
mother is an alien.
To be a Filipino citizen, a person must belong to any of the following types of citizens as determined by the constitution and laws:
Naturalize-born citizens are "those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship" (Art.
IV, Sec. 2). Thus a child who is born in the Philippines of Filipino parents, or a Filipino
mother or father after the ratification of the 1987 Constitution on February 2, 1987 is a
Citizens through election
This refers to those who are born of Filipino mother before January 17, 1973 and
who upon reaching the age of majority or 18 years old after the ratification of the 1973
Constitution (even prior to the effectivity of the new Constitution on February 2, 1987)
chose or elected Philippine citizenship are considered natural born-citizens. Those who
failed to make such election are considered aliens.
Citizens at the time of the adoption of 1987 Constitution
Those who are considered citizens of the Philippines under the 1987 Constitution at
the time of the adoption of the new constitution on February 2, 1987 are also natural-
Naturalized citizens are citizens by operation of law. These are aliens or foreigners
who acquired Filipino citizenship by applying and complying with all requirements
provided in the Philippine naturalization law. Naturalization is defined as an 'act of
formality adopting a foreigner into the political body of the state and clothing him or
her with rights and privilege of citizenship" (De Leon 1997: 126). A person may be
naturalized in two ways: 1) by judgment of the court, after foreigner-applicant had
complied with all the conditions prescribed by law, or 2) by direct act of Congress, in
which a foreigner is conferred citizenship by a law enacted by Congress. The Jesuit
American historian Fr. John Schumacher, S.J. became a naturalized Filipino by direct act
of Congress because of his great contribution to Philippine History.
5) Dual citizens
Under a new law passed by Congress a Filipino can still retain his/her citizenship
despite the fact that s/he has acquired a foreign citizenship. Thus, a person can
still be a Filipino citizen even if s/he has become a green card holder or has become
Suffrage (Art. V)
Since the country is under a republican presidential system, elections abound. We witnessed many elections in the past and expect more to come in the future. Therefore it is proper for citizens to know their basic rights with regard to suffrage under our present constitution. Suffrage is "the right and obligation to vote for qualified citizens in the election of certain national and local officers of the government and in the decision of public questions submitted to the people" (De Leon 1997: 135). Under the 1987 Constitution (Art. V, Sec. 1), suffrage may be exercised by all citizens of the Philippines who are not disqualified by law and who are:
(1) at least 18 years old, and
(2) who have resided in the Philippines for at least 1 year, and
(3) who are in the place wherein they propose to vote for at least 6 months before the
The Scope of Suffrage
Suffrage is a broad term that includes various types of electoral processes. Registered voters exercise suffrage in any of the following cases:
Election is the process by which the voters choose their officials for definite and fixed terms as their duly chosen representatives in exercising their sovereign power in the government. The Commission on Elections (COMELEC) is the constitutional commission tasked by the constitution to conduct and supervise elections. To save money for the government, the national election of the president and vice-president every 6 years is usually synchronized with the elections of members of Congress and local public officials. This is done on the second Monday of May.
A plebiscite is the process by which the people express their choice for or against a proposed law or enactment submitted to them. It is also a form of election where voters go to election precincts to cast their votes whether they approve or ratify any proposed amendment to, or revision of the Constitution (Art. XVII, Sec.2). Any proposed changes affecting local government units also requires the approval of the people by plebiscite (Art. X, Secs. 10, 11, 18).
This is a process by which a law or part thereof passed by Congress or local legislative body is presented to the voters for their ratification or rejection (see Art. VI, Sec. 32).
This is a process by which the people directly propose and enact new laws. This requires a petition containing the proposed law or amendment of the constitution and the required number of verified signatures of petitioners. Congress has been tasked by the Constitution to provide this system of initiative and referendum. Amendments to the Constitution can also be directly proposed by the people through their initiative.
Recall is the process by which an elected official is removed from office during his/her tenure by a vote of the people after registration of a petition signed by a required percentage of the qualified voters. The former governor of Pampanga, Fr. Ed Panlilio underwent this process. He was removed by his political enemies but he won in a recall election thereafter.
Forces Influencing Philippine Suffrage
Since suffrage implies positioning people in the political system that determines control of our country's resources, foreign forces, various institutions, including political parties, groups and individuals compete to field their own set of candidates, making our electoral system subject to external and internal control. From the outside, many Philippine elections appear to be democratic and peaceful. But from the inside, especially if one examines the system empirically, various schemes of cheating and manipulations devised by external and internal forces can be observed.
An important external force that determines our election especially with regard to the presidency is the American interference. Political analysts often observe that no can win the presidency without the endorsement and the blessing of the United States. The US has so much to lose in their economic and military interests if a new Philippine president is an anti-American. The Central Intelligence Agency (CIA) of the US, for instance, is said to be behind the election of President Ramon Magsaysay because the Americans feared the growing influence of communism in the Far East which threatened their capitalist interest. The US wants a Philippine President who is friendly to America in order to protect their multinational corporations in the country and to a maintain military presence in the Asia-Pacific.
In addition to the American interference in our elections is the influence of powerful institutions in the country like the military, the Church and the media. Some politicized members of the military such as the Reform Armed Forces Movement (RAM) or the organization of retired generals have their own preferred candidates and mobilize their own connections and resources to win elections. The churches too, led by the Catholic Church and Iglesia ni Cristo, play a crucial role in elections. The Iglesia ni Cristo, for instance, engages in bloc voting and thus politicians often court its endorsement. The mass media led by the big TV networks also have their preferred candidates. In fact, some top politicians in the country like Senator Loren Legarda and Vice-President Noli de Castro are former broadcasters of ABS-CBN. Despite the declaration of media of being neutral and impartial in reporting, one can still notice a bias in the manner and frequency of covering the campaign of certain candidates.
The underworld also influence our elections. Drug lords as well as "Jueteng" and gambling lords invest money in elections to insure that the winners can become protectors of their illegal trade. Political parties also determine elections. That is why politicians called "political butterflies change party very often to corner funds for their candidacy. In particular, the administration party, supported by the incumbent president, is often seen as using illegal or public funds without qualms of conscience just to make sure that their candidates sweep the election. Big businessmen also contribute to the campaign funds of politicians to insure that the new government would be friendly to their economic interests. Warlords in the provinces also influencing elections. It is alleged that the Ampatuans in Maguindanao, for instance, were able to deliver votes allegedly through cheating, violence and intimidation to the former president Gloria Arroyo and her senatorial candidates during the last 2004 elections. The Dimaporos of Lanao were said to be helping Marcos to get more votes in Mindanao during his incumbency.
Suffrage as a Privilege and Political Rights
Suffrage is both a privilege and a political right granted by the constitution. It is not a natural right but a privilege. Thus one may or may not exercise this right. Therefore a voter who boycotts an election because he or she feels that the election is a farce or an exercise in futility because all the candidates are unfit or the entire electoral process seems manipulated, he or she cannot be punished by law. During the snap election called by Marcos in 1986, the left or the communists and other concerned sectors chose to boycott and not to participate in a farce election allegedly manipulated by the former dictator. With political dynasties existing in the country and the culture of cheating in Philippine elections, one wonders if the principles of suffrage in our constitution can effect meaningful change in our political system. With a high level of social inequality prevailing in the country, one cannot expect elections to be democratic: the few powerful elite remain in control of elections and public service while the poor who live below the poverty line remains the victims of manipulation and vote buying and abuse.
THE THREE BRANCHES OF PHILIPPINE GOVERNMENT
The Philippines is a republican and presidential form of government. This means that the Philippines is governed through the representatives of the people, who are either elected and appointed, with the President of the republic as the chief executive of the land. As such, governance is performed mainly by three major branches of government. Articles VI (Section 1), VII (Section 1), VIII (Section (Section 1) of the 1987 Constitution provides that the Philippine government is structured into three principal branches the representing major powers of government, namely: the legislative, executive and judicial. The legislative branch enacts, modifies, and abolishes the law. This is vested in the Philippine Congress which consists of two legislative houses: the Upper House (Senate) and the Lower House (House of Representatives). The executive branch administers or enforces the law. This is vested in the Philippine President. Finally, the judicial branch interprets the law and settle legal cases in the courts. This is vested by the Constitution in the one Supreme Court and in lower courts established by law. A further discussion on these branches of government are found in chapters V, VI, VII of this book.
Separation of Powers
Political scientists and sociologists agree that abuse of power in governance occurs if there is a lack or absence of social control or checks and balance system in the government structure. Too much concentration of power in one branch of government without the necessary mechanism to review its administrative acts and to hold it accountable for abusive acts or policies by another branch can lead to dictatorship and death of democratic processes. This is allegedly what happened, for instance, during the Marcos regime. President Marcos ruled the country with executive and legislative powers (with law-making powers under amendment 6 of the 1973 Constitution) under a predominantly Marcos-appointed justices of the Supreme Court. Thus to avoid it, the major powers of the government are delegated to three different branches of government. The 1987 Constitution adopted the principle of Separation of Powers to prevent concentration of power in one person or department of the government and thus weakens the checks and balances system which can result to corruption and abuse of power. "Under the system of checks and balances system, one department is given certain powers by which it may definitely restrain the others from exceeding constitutional authority" (Suarez 1999: 97). For instance, the legislative branch or Congress can create new laws, but they are subject to approval by the President of the executive branch. A proposed law or bill cannot become a law without the President's signature. Exercising his or her veto power, the President can disapprove the entire bill or some portions of it s/he wants it. But to ensure that this power will not be abused, Congress is also vested by the Constitution to overrule this veto power of the President. By a vote two-thirds of all members of the two Houses of Congress voting separately, the bill can still become a law and disregard the President's veto.
On paper, the separation of the three branches of government a deterrent against possible abuse of power by one branch over another. In practice, however, the executive branch led by the President seems to dominate the other branches of Philippine President. For one, the release of the budget of the legislature and the judicial branch is controlled by the Department of Budget and Management (DBM) which under the executive branch and the President. For instance, the release of the pork barrel or the Countryside Development Fund (CDF) of the senators and congressmen intended for their various projects need the go signal of the President. That is why it is highly probable that the executive branch can pressure Congress to accommodate the wishes of the President such in the cases of impeachment. Moreover, the politics of "utang-na-loob" often affects the independence of those appointed by the President. The Chief Justice and associate justices of the Supreme Court, for instance, are appointed by the President. Despite the rhetoric of judicial independence, one cannot deny that in the past, there are some protégé justices of Malacanang in the high court voted in favor of the cases of the administration. Although justices and judges promised to be neutral and stay away from parties and social functions that may compromise their neutrality and independence, there is no monitoring system available at the moment in order that the citizens can track down backdoor negotiations which are enemical to public interest. Moreover, it is highly probable the use of information and communication technologies such as the telephones, cellphones and the Internet can be used to facilitate backdoor negotiations between these three branches of government. Despite denials by Malacanang, one cannot erase the perception of the public that the full weight of the presidency has been used to ensure the impeachment of former Chief Justice Renato Corona. Probably, it is about time to evaluate the distribution of powers in the government. The Philippine constitution has created a very strong Presidency which can the jeopardize the autonomy of the other branches of the government.
This chapter orients the readers to the nature, types, basic principles and processes in amending or revising of the constitution as the fundamental law of the land. The constitution is defined as that body of rules and principles in accordance with which the powers of sovereignty are regularly exercised. With reference to our Philippine Constitution, it is defined as "that written instrument by which the fundamental powers of the government are established, limited, and defined and by which these powers are distributed among the several departments or branches for their safe and useful exercise for the benefit of the people. A constitution can be written or unwritten. It is different from statute in the legislature as it is directly created and ratified by the people. It can be changed by following the two major steps, namely: proposal and ratification. If the change is substantial or revision, the appropriate method of changing it is either by constitutional convention or constituent assembly. If the change is a mere amendment, the appropriate method is a people's initiative as stipulated in the 1987 Constitution.
There are four formal constitutions in Philippine history, namely: the Malolos Constitution, the 1935 Constitution during the Commonwealth period, the 1973 Constitution during the Marcos regime, and the present 1987 Constitution. Each of these constitutions has unique characteristics which were responsive to the needs of the time.
The 1987 Constitution was created by a constitutional committee appointed by the former president Corazon Aquino. Some of its basic principles include republican character of the Philippine government, renunciation of war as a national policy, civilian supremacy, separation of Church and State, equal access to political opportunities, developing a self-reliant economy, citizenship and suffrage to name a few. To provide checks and balances system in the government, it adopted the principle of separation of powers of the three branches of government: the executive, legislative and judicial.
THE BILL OF RIGHTS
THE NATURE OF HUMAN RIGHTS
The idea of human rights is not universal. Even if human rights are considered to be inalienable, a moral attribute of persons that the state cannot violate, rights still have to be identified – that is constructed – by human being and codified in the legal system (Donnelly 1999: 71-102). Human right is a socially constructed concept which was gradually accepted by modern nations through the United Nations Charter and declarations. Conversely, not all societies around the world recognize the fundamental rights of each individual in society. In ancient societies and states ruled by absolute monarchs, kings or emperors, for instance, individuals especially the commoners had no power to assert their basic human rights. The word of the king becomes the law of the land. Even our pre-colonial barangays with the datu ruling as the chief executive assisted by his close relatives and allies, the idea of human rights was non-existent.
Although in theory, the idea of people having God-given and inalienable rights have long been discussed by earlier philosophers and theologians, its codification and application to modern societies is a recent development in legal history. It was the American and French revolutions of the eighteenth century that started to create national policies based on broadly shared human rights. Despite the rhetoric of universality, the adoption and implementation of human rights still depend on the political will of each country.
With the birth of nation-states in the 19th century and the establishment of the United Nations, the idea of human rights gradually became universalized by its members. In particular, the Bill of Rights became more and more integrated in constitutions and legal codes of countries after the United Nations enacted a global international law called the Universal Declaration of Human Rights in 1945. This was adopted by the General Assembly or member-countries of the United Nations on December 10, 1948 (Forsythe 2006: 3-5).
TYPES OF HUMAN RIGHTS
In general, human rights can be classified into three types as shown below: natural, constitutional, and statutory. Of all these rights, natural rights are the highest form because they are God-given and inherent in a person's human dignity as created in the image and likeness of God (Genesis 1). Constitutional rights are granted by the country's constitution to all its citizens. They presumed to respect the natural rights given by God. The statutory rights are created by the legislature and approved by the President. These rights must be based on the constitutional provisions on human rights; otherwise, they can be abolished by the Supreme Court as illegal and unconstitutional. These rights are expected also to respect the natural rights of the human person.
Table 12. General Types of Human Rights
God-given right, inherent and inalienable
Right to life, to love, to marry, to raise a family
Conferred and guaranteed by the Constitution
Rights in the Bill of Rights such right to due process, equal protection, warrant of arrest, etc.
Conferred or given by the legislature like Philippine Congress
Right to minimum wage, to inherit property
Constitutional rights are further divided into three types below, namely: political, civil, social and economic, and the rights of the accused.
Table 13. Types of Constitutional Rights
Rights which give citizens to participate directly or indirectly in the establishing and administering the government.
Right to citizenship, suffrage, information of public concern, etc.
Rights given to private individuals for the purpose of securing the enjoyment of their means of happiness.
Rights against involuntary servitude, imprisonment against non-payment of debt or poll tax, liberty of abode, etc.
Social and Economic
Rights intended to secure the well-being and economic security of individuals.
Right to property, rights dealing with social justice (Art. XIII), promotion of education, science & technology, arts & culture (Art. XIV), etc.
Rights of the Accused
Rights intended to protect a person accused of any crime.
Right to a speedy, impartial and public trial, right to a lawyer of his/her own choice, right to remain silent, etc.
In the Philippines, the incorporation of human rights in the constitution started with the Malolos Constitution in 1899 and was continued in the 1935, 1973 and 1987 Constitutions. In the 1987 Constitution, the list of human rights is contained in the Bill of Rights, Article III, Sections 1 to 22 of the charter. A Bill of Rights is defined as a "declaration and enumeration of a person's rights and privileges which the Constitution is designed to protect against violations by the government, or by individual or groups of individuals" (De Leon 1997: 67).
The Bill of Rights in the Constitution is a basic characteristic in any democratic and republican society. It is based on a belief that each person has an intrinsic worth and human dignity, being created in the image and likeness of God. This human dignity provides the person some inalienable and God-given rights which must respected in all democratic processes. By enumerating the basic rights of people in the Bill of Rights, the Constitution limits the vast and enormous powers of the State. The Bill of Rights is a charter of liberties and at the same time a limitation upon the powers of the government.
HUMAN RIGHTS UNDER THE BILL OF RIGHTS
1. RIGHT TO DUE PROCESS & EQUAL
PROTECTION OF THE LAWS
SEC.1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the law.
Under this section, a person has two important constitutional rights, namely: 1) the right to due process, especially with regard to his or her right to life, liberty and property, and 2) the right to equal protection of the law.
The Nature of Due Process
The most popular term in legal cases and arguments is "due process". This term has no strict definition. But it is a very important aspect in the acquisition of justice in the courtroom. It has various descriptions in cases decided by the courts. Due process can refer to:
1. " A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial" (Darmouth College vs. Woodward, 4 Wheaton 518).
2. "Responsiveness to the supremacy of reason, obedience to the dictates of justice" (Ermita-Malate Hotel & Motel Operators Association vs. City of Manila, 20 SCRA 849).
Two Types of Due Process
In the court of law, two types of due process must be followed in order to attain true justice.
1. Substantive due process
This due process refers to the content or the letter of the law itself. It requires that the law itself is reasonable, just and enacted in good faith and according to legislative rules. An unjust law cannot be used by the State to charge a person for committing a crime or illegality. Thus, a person who is charged in court for violating a law or stature that limits the number of children of couple to one child, such as the one-child policy in China, is deprived of substantive due process if the court convicts him. This law obviously violates the natural and God-given right of married couples to procreation.
2. Procedural due process
This type of due process simply requires that the rules or procedures in processing a legal case must be observed judiciously by the court. The Supreme Court of the Philippines as mandated by the constitution promulgates rules in processing legal cases in court. This legal code is called the Revised Rules of Court in the Philippines. It contains all the rules in dealing with criminal, civil and administrative cases such as the rules on appeals, rules of evidence, criminal and civil procedures, and so on.
As a whole, "due process" simply means that a person's case in court should be treated justly, which means that his/her case must be judged based a just law and according to the rules of legal procedures prescribed by the judicial system.
Due process in Relation to the Right to Life, Liberty and Property
The right to life, liberty and property are three fundamental rights of a person in society. They are so sacred and inalienable that the Bill of Rights in the constitution stipulates that they are protected by due process of law. With regard to the right to life, due process prohibits deprivation of life of one's person as in the case of murder or homicide as well as injury to his/ her limbs or faculties as in the crime of physical injury, mutilation, or direct assault. With regard to liberty, due process disallows illegal physical restraint or imprisonment as well as restraint in the use of the person's God-given faculties such speech or artistic expression. Finally, due process protects the right of the person over his real or personal property. This includes the right to own, use, transmit, and even destroy one's property subject to the right of the State and other persons.
Equal Protection of the Laws
The expression which states that "everybody is equal in the eyes of the law" does not mean that the law does not consider the person's social class, age, gender and social status in society. People in society are stratified into certain categories. Equal protection signifies that "all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed. What is prohibited under right is a class legislation which discriminates against some and favors others when both are similarly situated or circumstanced (Cooley in De Leon 1997: 73). Thus, if Congress passed a tax law, for instance, that requires lawyers in Metro Manila to pay P2,000 and lawyers in Luzon to pay P1,000 this is discriminatory and a violation of the equal protection of the law.
2. (1) THE RIGHT TO SEARCH WARRANT
FOR UNREASONABLE SEARCHES
(2) THE RIGHT TO WARRANT OF
ARREST AGAINST ILLEGAL ARRESTS
SEC.2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature… no search warrant or warrant of arrest shall be issued except upon probable cause to be determined personally by the judge….
The Scope of Protection
Section 2 of Article III of the Constitution protects:
1. Persons: all persons whether accused of a crime or not, whether citizens or aliens and
whether individuals or corporations are protected by this right against illegal
2. Houses: all dwelling places, garage, warehouses, shops, store, office or even a safety
deposit vault. But open spaces and fields are excluded.
3. Papers and personal effects: include all sealed letters and packages in the mail which
can be opened and examined only by a search warrant.
Meaning of Search Warrant and Warrant of Arrest
1. Search Warrant: an order in writing, issued in the name of the People of the
Philippines, signed by the judge and directed to a peace officer
commanding him/her to search for certain personal property
and bring it before the court.
2. Warrant of Arrest: an order in writing, issued in the name of the People of the
Philippines, signed by the judge and directed to a peace officer,
commanding him to arrest a person in order that he/she can answer
for the commission of an offense.
Requisites for a valid Search Warrant
1. It must be issued upon probable cause. By probable cause it meant that facts and
circumstances antecedent to the issuance of a warrant are sufficient in themselves to
induce a cautious man or woman to rely upon them and act in pursuance thereof.
2. The determination of the existence of probable cause must be made after
examination of the judge of the complainant and the witnesses he or she may
3. It must particularly describe the place to be searched, and the persons or things
to be seized.
Warrantless or Citizen's Arrest
Not all cases of arrest against suspects are done with search warrants. Under Rule 113 and Rule 115 of the Rules of Court, an arrest without warrant is lawful when, in the presence of arresting officer or individual, the person to be arrested 1) HAS COMMITTED, 2) IS ACTUALLY COMMITTING, or 3) IS ATTEMPTING TO COMMIT the crime. This is called under the law as in flagrante delicto (caught in the act). This is best exemplified in a "buy-bust" operation by law enforcers against drug pushers. Government agents pose as buyers of illegal drugs in order to arrest the pushers right then and there selling prohibited substances.
Another instance when the offense has in fact been committed and the arresting officer or individual has probable cause to believe, based on personal knowledge of the facts and circumstances, that the person to be arrested has committed it. In this case the arresting person did not see the actual commission of the crime but he or she has a probable cause to believe based on personal knowledge of the facts and circumstances that the person to be arrested has committed it. This is commonly understood among law enforcers as called the "doctrine of hot pursuit" which requires no warrant.
The third instance is when the person to be arrested is a prisoner who has escaped from prison or a place where he or she is serving final judgment or temporarily confined while his/her case is pending, or has escaped while being transferred from one jail to another. No warrant is required to arrest this prisoner as long as the arresting person is certain of the identity of the prisoner.
In all instances, the arresting officer or individual who makes a warrantless arrest must first inform the person before arresting him/her why he or she is arrested and what criminal offense has he or she committed.
3. THE RIGHT TO PRIVACY
SEC. 3 (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
The Meaning and Purpose of the Provision
The right to privacy means the right to be alone, to be free from unwarranted publicity and to live without unwarranted interference by the State on matters which do not concern the public. Although people are social beings, they are also entitled to privacy on personal and group matters that do not affect the rights others.
The Constitution recognizes the right of the individual to communicate and correspond through letters, emails, and messages with others without the State having the right to know the content of these communications, except on matters that affect national security, public order or safety which require a lawful court order. Any evidence illegally obtained in violation of this right to privacy is inadmissible in court (Sec.3 ).
4. THE RIGHT TO (1) FREEDOM OF SPEECH, (2) EXPRESSION, (3) OF THE PRESS, (4) THE RIGHT TO ASSEMBLY AND (5) PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES.
SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
A. The Scope of this Provision
Section 4 of the Bill of Rights of our Constitution five (5) human rights which the State must protect by not passing any law in the legislature or Philippine Congress that curtails these rights:
1. The Right to Freedom of Speech: Every person has the right to speak what s/he wants
to say privately or publicly as long as he or she does not offend or violate the rights of
others and of the State. The freedom of speech is a hallmark of democracy. In a
totalitarian government, the right to speech especially if critical to the government is
is curtailed. The most common violation of this right is oral defamation in which a
person destroys the reputation of others by verbal attacks or malicious gossiping.
Sedition is another crime which can be committed by individuals or groups against the
State by uttering words which promote hatred against a public official or against the
2. Right to Freedom of Expression: Expression includes oral utterances, actions or
artistic performances in state, video or film. Every person or group has the right
to express their mind as long as the right of others or the State are not violated.
Pornography, public scandal or libel are the more common violations of this right
in our society.
3. Right to Freedom of the Press: The term press includes every kind of publications:
newspapers, periodicals, journals, magazines, handbills, leaflets, etc. and all
instruments of mass media: radio, television, film, video, etc. Libel or malicious
defamation of another person is using published materials in the press to destroy
reputation of other people.
4. Right to Freedom of Assembly: This refers to the right on the part of citizens to meet
peacefully for consultation in respect to public affairs. Rallies, demonstrations, and
protests are protected by our Constitution as long they do not disrupt public order and
jeopardize the national security of the State. Permits for rallies are usually approved or
rejected by the city or municipal mayor. Every rejection must be accompanied with an
explanation and petitioners can appeal to the courts.
5. Right to Petition the Government for Redress of Grievances: This means that
every citizen or group has right to apply, without fear of penalty, to the appropriate
branch or office of the government for redress of grievances. Thus, a citizen or group
may request an internal investigation of a complaint of misconduct against a public
official in a government agency or demand an explanation for an inaction of a certain
petition or application filed in a government office.
5. THE RIGHT TO RELIGIOUS
SEC. 5. No law shall be made respecting an establishment of religion, or prohibiting the free expression thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference…No religious test shall be required for the exercise of civil or political rights.
The Meaning and Scope of the Provision
The right to religious freedom has to three aspects: the right to religious belief and worship, the right to religious profession and the right against religious tests in the exercise of civil or political rights:
1. Right to Religious Belief and Worship: Our constitution protects the right of
individuals to worship God and to entertain views according to their conscience
without interference or dictation by any person or power, civil or ecclesiastical.
Under the doctrine of Separation of the Church and State, the right of the individual
not to believe and worship God is also protected by the Constitution and thus
included under this right.
2. Right to Religious Profession: Our Constitution also protects the right of
individuals who wish to enter religious life or follow a religious vocation in
accordance with his or her religion. The government cannot prevent people to
want to become priests, nuns, monks, imams, pastors, or ministers if they wish to.
3. Right against Religious Test: A religious test is one that demands the denial or
rejection of certain religious beliefs before the performance of any act. Thus, the
religion of citizens must not be included in the qualifications of candidates in public
office. It is prohibited to include in the qualification for President that s/he
should be a member of the Iglesia ni Cristo or of the Catholic religion. Moreover,
an employer cannot reject a job application on the basis of religion. One must not
reject a qualified applicant just because he or she belongs to the Born-again
6. THE RIGHT TO ABODE AND THE
RIGHT TO TRAVEL
SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.
The Meaning and Scope of the Provision
There are two human rights under this provision of the Constitution namely:
1. Right to Abode: The right to abode simply means that any citizen has the right to have
his home or residence in whatever place chosen by him and thereafter to change it at
will. As long as he or she does not squat on the land of others or of the government, he
or she has the freedom to choose where he or she wants to build his house or to transfer
it thereafter if he or she wants to.
2. Right to Travel: It means that every person has the right to go where he or she pleases
without interference from the government or other people. The only limitation of this right
is court order and the exercise of the police power of the state. In the interest of national
security, public safety, or public health, one may be prohibited by check-points to enter a
particular place like a special military installation, or the place is infected with a deadly
virus or contagious disease.
7. THE RIGHT TO INFORMATION ON
MATTERS OF PUBLIC CONCERN
SEC. 7. 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 government research data used as basis for public development, shall be afforded the citizens, subject to such limitations as may be provided by law.
The Meaning and Scope of the Provision
This provision has been inserted in our Constitution to provide the sovereign people who constitute the State the right of access to the records of their government which can affect their lives directly. In the spirit of transparency, public records, documents, decisions and transactions must be open for people for inspection and evaluation. This can prevent graft and corruption in the government. If government contracts and agreements are open for public scrutiny, any anomaly or malfeasance or misconduct by public officials involved in these contracts can easily be prosecuted by the Ombudsman. As of this writing, no law has been passed in Congress detailing the dynamics of this right in actual social practice. The Freedom of Information Bill is still pending and has not yet been acted upon by Congress.
The right to public records and information has limitations. Those documents that pertain to the national security of the State are not covered by this right. The income tax records of individuals in the Bureau of Internal Revenue (BIR) are also confidential. Accounts pertaining to banks under the Central Bank and to military intelligence are also excluded from public scrutiny.
8. THE RIGHT TO FORM ASSOCIATION, UNIONS OR SOCIETIES.
SEC. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for the purposes not contrary to law shall not be abridged.
The Meaning and Scope of the Provision
This provision of our Constitution recognizes the social nature of persons. People are social beings and as such they have the natural right to join or form associations not contrary to law. The sphere between the individual and the State is called "civil society." This includes social groups and organizations, people's organizations (POs) and non-government organizations (NGOs). These are intermediary groups which can assist the state in its development programs can serve as checks and balances to the affairs of the government. "The right to form an association is the freedom to organize or to be a member of any group or associations, union or society, and to adopt the rules which the members judge most appropriate to achieve their purpose (De Leon 1997: 89).
9. THE RIGHT TO A JUST
COMPENSATION IN EXPROPRIATION
SEC. 9. Private property shall not be taken for public use without just compensation.
The Meaning and Scope of the Provision
As already mentioned in the previous chapter on the State's inherent powers, any private property whether it may be a piece of land or house and lot may be taken by the government for public use after paying a just compensation or payment based on the property's market value under its power of eminent domain law (See Art. XII, Sec. 18). The most common instances involving expropriation is the opening of new roads or widening of existing streets or highways for public convenience and safety which affect the adjacent private property of private individuals.
10. THE RIGHT TO CONTRACT SHALL
NOT BE IMPAIRED BY THE STATE
SEC. 10. No law impairing the obligation of contracts shall be passed
The Nature and Scope of the Provision
A contract is the meeting of the minds or agreement between two parties with a consideration. Contracts have various types. A contract can involve property, money or service. For instance, a contract of loan between two persons, for instance, stipulates the amount of loan, terms of payment, interest, or penalties.
The obligation of a contract is the law or a duty which binds the parties to perform their agreement according to its terms or intent. As long as the contract is not contrary to law, morals, good customs, public order, or public policy, the State cannot interfere with the agreement between private parties. A contract is impaired when its terms or conditions are changed by law or by a party without the consent of the other thereby weakening the position or rights of the latter (Edwards vs. Kearney, 96 US 607). Thus in a contract of loan where the original interest rate is low and a subsequent statute or law passed by Congress which requires existing contracts to double their interest rates is an example of this as the debtor would be prejudiced by this sudden change of interest caused by law.
11. (1) RIGHT TO FREE ACCESS TO THE COURTS AND QUASI-JUDICIAL COURTS & (2) THE RIGHT TO FREE LEGAL ASSISTANCE
SEC. 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.
The Meaning and Scope of the Provision
This provision gives all persons whether individuals or corporations, to go to regular courts and quasi-judicial courts to file criminal, civil or administrative cases if they feel that their rights are violated by others. If the offense is punishable by one year or less, the parties normally go first to the barangay and settle amicably their case before they are allowed to go to court. If the case is punishable by more than 1 year imprisonment, they may immediately go to the trial court if there is a legal basis for the case.
Quasi-judicial bodies are administrative or investigative bodies of the government which operate like regular courts such as the Securities and Exchange Commission, the Commission on Election (COMELEC), the Commission of Human Rights (CHR), etc. People can go to these quasi-judicial bodies if they feel their rights are offended.
The right to free legal assistance—especially in a criminal case where the right to life and liberty is at stake—is premised on the assumption that in a democratic government, poverty cannot be a hindrance to attaining justice in court. In the Philippines, more than seventy (70) percent of the population lives below the poverty line. Thus, obviously the poor cannot obviously afford the acceptance and appearance fees of private lawyers. It is expensive to use the legal system. It is often the rich who possess many properties and businesses are regular users of the judicial system. It is no wonder their familiarity with the system and available resources for litigation give them the edge to win legal cases rather than the poor.
To avoid the injustice to the poor, the Constitution requires the government to provide free legal assistance to them to be pauper litigants in court. It is usually the Public Attorney's Office (PAO) under the Department of Justice (DOJ), which provide free legal assistance to the poor or those who cannot afford to pay the services of private lawyers. The Integrated Bar of the Philippines with various chapters in the country, as well as some law schools, also provides free legal assistance or pro bono services to the poor.
12. (1) THE RIGHT TO REMAIN SILENT,
(2) THE RIGHT TO CHOOSE ONE'S
OWN COMPETENT AND
(3) THE RIGHT AGAINST TORTURE,
FORCE, VIOLENCE, THREAT,
OR OTHER ILLEGAL MEANS, &
(4) THE RIGHT AGAINST BEING HELD
IN SECRET, SOLITARY,
INCOMMUNICADO, OR OTHER
SIMILAR FORMS OF DETENTION.
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel of his own choice. If the person cannot afford the services of a counsel, he must be provided with one….
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
The Meaning and Scope of the Provision
This provision enumerates some of the basic rights of a person accused of a crime under a custodial investigation. A custodial investigation is a process by which the accused undergoes questioning by the police or law enforcers in connection of an alleged crime. This involves not just a mere general inquiry into an alleged crime, but also initiatives to focus on a particular suspect taken into custody by the police who carry out the interrogation. When under this type of investigation, the police is required by the Constitution to observe these rights of the accused. Otherwise any confession or admission obtained in violation of this or Section 17 shall be used as evidence against him/her. Thus, when an accused confesses his crime voluntarily without the presence of a lawyer of his or her own choice or involuntarily through torture, the confession would be illegal and cannot be admitted in court. If the accused is really sincere in confessing his/her crime voluntarily without a lawyer, s/he is usually required by the police to sign a waiver to this effect.
As a whole, section 12 can be seen as containing safeguards to secure the rights of the accused under arrest or custodial investigation. These rights are available the moment an accused is arrested, with or without warrant from the judge. The law enforcers are required to inform the accused of these rights during arrest.
13. THE RIGHT TO BAIL
SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
The Meaning and Scope of the Provision
Bail is defined as "the security required by a court and given for the provisional or temporary release of a person who is in the custody of the law conditioned upon his appearance before any court as required under the conditions specified" (De Leon 1997: 100). The right to bail is available to all persons arrested, detained or otherwise deprived of his liberty, whether or not a criminal information has been filed against him/her or not. However, there are two cases where bail may not be available to him or her: if (1) the crime is punishable by reclusion perpetua, death or life imprisonment or (2) when the evidence of guilt as determined by the judge is strong. Serious or heinous crimes such as murder, rape, plunder, syndicated estafa or qualified theft are generally non-bailable. But less serious offenses are all bailable.
The amount of bail is determined by the judge handling the case depending on the nature of the offense, the penalty, the probability of guilt, and the financial capacity of the accused.
14. (1) THE RIGHT TO DUE PROCESS,
(2) THE RIGHT TO PRESUMPTION OF INNOCENCE IN ALL CRIMINAL PROSECUTION,
(3) THE RIGHT TO BE HEARD BY HIMSELF AND COUNSEL, &
(4) THE RIGHT TO A SPEEDY, IMPARTIAL AND PUBLIC TRIAL,
SEC. 14. (2). In all criminal prosecution, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
Presumption of Innocence
This provision speaks of the rights of a person accused of committing a crime. The accused must be presumed innocent until proven otherwise in a court of law. He or she has also constitutional rights as an accused which includes the right to be heard by himself and counsel and the right to a speedy, impartial and public trial.
1. The Right to Due Process under this section pertains more to the procedural aspect. A
person who is accused of a crime must be:
(i) tried before a court which has jurisdiction of the case;
(ii) given a fair and impartial trail;
(iii) allowed to use all legal means and opportunity to defend himself; and
(iv) given a judgment must be based on a valid law.
2. The Right to Presumption of Innocence requires that the accused must be presumed
innocent in all stages of the criminal proceedings until a final verdict by a judge or
justices, in case appeals are made, are handed down with finality. Ideally, this may be
true, but in actual practice, one cannot prevent the mass media or the public to make
informal or psychological judgment against the accused even if the trial is not yet
finished. That is why "trial by publicity" must be prevented at all times to preserve this
right to presumption of innocence of the accused.
The burden of proof in a criminal prosecution is on the shoulders of the prosecution.
The prosecutor must convince the court by presenting evidence beyond reasonable doubt
that the accused is guilty as charged. Proof beyond reasonable doubt is the strictest form
of evidence in court used in criminal proceedings as the life and liberty of the accused is
3. The Right to be heard by himself and by counsel. Hearing is an indispensible in
criminal justice. The accused cannot just be punished upon a doubtful assumption. Lack
of notice of hearing violates due process. In all criminal prosecutions, the accused or
defendant shall be entitled to present and defend in person and by counsel at every
stage of the proceedings, from the arraignment to the promulgation of the judgment
In arraignment, the court reads the criminal charge against the accused and the
accused enters his plea in open court whether he or she pleads "guilty" or "not guilty" to
the charge. If the plea is "not guilty" the court will give the defendant time to prepare
(4) The Right to a speedy, impartial and public trial. A speedy trial is important in
criminal proceedings. Justice delayed is justice denied. The final decision of a criminal
case is important as the life and liberty of the accused is at stake. In many cases, the poor
accused who cannot afford to pay the bail languishes in jail while the case is still
There is really no fixed period when a criminal prosecution ends. It all depends on
the nature of the case, the availability of lawyers, witnesses and judges, and number of
motions filed in court. But a speedy trial means that the trial must be terminated as soon
as possible. Unreasonable and intentional delays especially postponements must not be
allowed in order to terminate the trial early.
The issue of impartial trial has always been the concern of people in criminal case.
The most important person who determines impartiality in court is the judge who
handles and decides the case. The social and political connections of the parties to the
judge as well as bribery or corruption must not influence the outcome of the trial.
The prevent impartiality and anomalies in court proceedings, trials are always
public in order that people can observe and check whether the trial is fair and neutral.
Closed-door trials are prohibited by our Constitution except in rape cases where the
victim is asked to testify in open court.
15. THE RIGHT TO WRIT OF HABEAS
SEC. 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when public safety requires it.
The Meaning and Scope of the Provision
This provision of our Constitution gives the right to the relatives or representatives of detained or missing persons to petition the court to compel the person/s detaining them illegally to release their bodies in a designated place and time set by the court.
A writ of habeas corpus is an order issued by a court of competent jurisdiction, directed to the person detaining another, commanding him or her to produce the body of the prisoner at a designated time and place, and to show sufficient cause for holding in custody the individual so detained" (De Leon 1997: 108).
This privilege may be suspended by the President (Art. VII, Sec. 18) only in cases of invasion or rebellion when public safety requires it. This suspension can enable the State to hold in preventive imprisonment, pending investigation and trial, persons who plot to destroy it or endanger its very existence.
16. THE RIGHT TO SPEEDY DISPOSITION OF ONE'S CASES.
SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative cases.
Speedy Disposition of Court Cases
The Constitution requires judges and presiding officers of judicial, quasi-judicial and administrative bodies to render decisions or judgments over pending cases as soon as possible as "Justice delayed is justice denied." The right to speedy disposition of cases can only be invoked by persons only after the trial or hearing of the case is terminated. This right only commences when the case is submitted for resolution or judgment of the judge or presiding officer.
The speedy disposition of cases is not only required before the courts or judicial bodies but also before quasi-judicial bodies (that is, executive agencies performing adjudicatory functions similar to those of the courts like the National Labor Relations Committee (NLRC), Securities and Exchange Commission (SEC), etc. and administrative bodies (executive agencies performing limited adjudicatory functions such as the bureaus under the different departments) (De Leon 1997: 110).
17. RIGHT AGAINST SELF-INCRIMINATION
SEC. 17. No person shall be compelled to be witness against himself.
This right to self-incrimination applies to all criminal, civil and administrative cases: The Constitution protects the person to say something or to act which may incriminate himself or herself to the case. "No person shall be compelled to be a witness against himself". This prohibition includes the following:
1. Forcing the accused to testify, extracting from his own lips against his or her will, an
admission of guilt;
2. Obliging the defendant to produce documents, chattels and other objects, compelling to
identify them expressly or impliedly;
3. Compelling the defendant to produce his or her own handwriting to implicate him or
her in the case.
18. (1) THE RIGHT AGAINST DETENTION
SOLELY BY REASON OF POLITICAL
BELIEFS AND ASPIRATIONS &
(2) THE RIGHT AGAINST
SEC. 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
The Meaning and Scope of the Provision
This provision of our Constitution protects the political beliefs of individuals against interference by the State as well as theirs rights against involuntary servitude.
1. The Right against Detention solely by Reason of political beliefs and aspirations.
Under the Bill of Rights the political beliefs of people whether they are pro-Marxists,
communists, socialists rightists or leftists cannot be a basis for arrest and detention. If
there are no overt acts which are illegal in nature in relation to their political beliefs, the
government cannot arrest and imprison them. This provision is highlighted in our
Constitution to protect political prisoners who are detained solely on the basis of their
political beliefs. Under Martial Law, President Marcos arrested and detained
political prisoners whose ideologies and political beliefs were critical of the status quo.
2. The Right against Involuntary Servitude. Involuntary servitude is forced labor or
compulsory service rendered by one person to another. Under our Bill of Rights, no
person can be forced to work for other persons or company if s/he does not want to.
A debt to an employee to his or her employer is not a sufficient ground for forcing
The employee to continue to work in the company. The indebted employee can always
provide a promissory note but he or she cannot be prevented to resign as this would be
tantamount to slavery.
19. (1) THE RIGHT AGAINST
EXCESSIVE FINES; &
(2) THE RIGHT AGAINST CRUEL,
DEGRADING OR INHUMAN
SEC. 19 (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted….
(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.
This provision prohibits the imposition of excessive fines for violation of law or ordinance. Considering the nature of the offense and financial capacity of the offender, fines must be reasonable. And the courts have the discretion how much fine the offender must pay.
The right against cruel, degrading or inhuman punishment can only be invoked after the accused is convicted in court. The Constitution is against any inhuman form of punishment and against disproportionality of punishment to the nature of the offense. In a civilized society, inhuman punishment which uses torture or lingering death is condemnable. Punishment is degrading if it lowers his dignity of a convicted person, brings shame and humiliation on him, or exposes him to public ridicule.
Punishment is also inhuman if the punishment is not proportionate to the nature of the crime. Thus the penalty of death and life imprisonment for physical injury or oral defamation can be considered inhuman; not for a criminal who is convicted of murder or rape because these crimes are much more serious in nature.
20. THE RIGHT AGAINST IMPRISONMENT FOR NON-PAYMENT OF DEBT OR POLL TAX
SEC. 20 No person shall be imprisoned for debt or non-payment of poll tax.
Non-Payment of Debt or Poll Tax
Our Constitution prevents the power of the State to force the payments of debts. The control of the creditor over the person of the debtor has been abolished in our Bill of Rights for humanitarian considerations. A person cannot be arrested and imprisoned by the government for non-payment of debt owing to misfortune and poverty. The word "debt" under this provision means any liability to pay money arising out of contract, express or implied. It refers to civil debt but not to debt arising from a criminal offense. Thus if a person borrows money from another and promises to pay on a certain date with interest but fails to do it because of unexpected bankruptcy cannot be ordered by a judge to be arrested and imprisoned after a criminal complaint is filed by the creditor. Nonpayment of civil debt cannot be a subject of a criminal case punishable by imprisonment. The filing of a civil case or collection of debt is the proper remedy where the properties of the debtor can be used as payment for the unpaid debt.
The non-payment of poll tax such as the community tax which was formerly called cedula or residence tax is not also punishable by imprisonment. A poll tax is a tax of a fixed amount imposed on residents within a specified territory such as a barangay, whether citizens or not, without regard to their property or the occupation in which they may be engaged (De Leon 1997: 117). However, other forms of taxes such as income tax are compulsory in nature. Any person who fails to pay these taxes can be charged, arrested and imprisoned by the Bureau of Internal Revenue (BIR) for tax evasion.
21. THE RIGHT AGAINST DOUBLE
SEC 21. No person shall be twice put in jeopardy of punishment for the same offense, if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
This constitutional provision protects a person from the danger of second punishment and trial for the same offense he or she has been charged and sentenced by a court. The right to double jeopardy means that when an accused is charged with an offense and the case is decided by the court either by acquittal or conviction, s/he cannot be charged again in another case with the same offense. For instance, Mr. Bogart was charged in a Manila trial court for raping Miss Charing in 2002. In 2004. He was acquitted by the court. Miss Charing was not satisfied with the judgment. In 2005, she filed the same case with another trial court. This second charge reviving the old case is an example of a case of double jeopardy and cannot be entertained by the court.
The issue of double jeopardy can arise in three different ways (Munoz & Gonzales-Munoz
(1) When the accused is charged with the same offense in two separate pending cases, in
one of which he has validly pleaded;
(2) When the accused is prosecuted anew for the same offense after he or she has previously
convicted or acquitted thereof or the charge therefore has been dismissed without his or
her consent; or
(3) When the prosecution makes a legally unauthorized appeal from a judgment in the same
22. THE RIGHT AGAINST EX POST FACTO LAW OR BILL OF ATTAINDER
SEC. 22. No ex post facto law or bill of attainder shall be enacted.
The Meaning and Scope of the Provision
This provision prohibits the legislature to pass laws which can prejudice the rights of the prisoner or the accused. Although Congress is vested by the Constitution to enact laws, it cannot legislate on matters that violate some basic rights of the citizens. It cannot pass the following type of bills or laws:
(1) Ex Post Facto Law is a law which is penal in nature, retroactive in effect and
prejudicial or disadvantageous to the accused. It is a legislation which:
(i) makes an act done before the passage of a law, innocent when done, criminal, and
punishes such act; or
(ii) aggravates a crime or makes it greater when it was committed; or
(iii) changes the punishment and inflicts a greater punishment than what the law
annexed to the crime, when committed; or
(iv) alters the legal rules of evidence and receives less testimony than or
testimony from what the law required at the time of the commission of the
offenses, in order to convict the offender (De Leon 1997).
(2) Bill of Attainder is a legislative act which inflicts punishment without a judicial trial.
This means that Congress cannot just pass a law and declare individuals or groups to be
guilty of an offense with judicial trial (De Leon 1997). In bill of attainder, it is the
legislature, not the courts, which determines the guilt of the accused and not by the
court. This is against due process since every charge in court the guilt of the accused
must first be established by evidence in a court proceeding. Thus if a law is passed in
Congress who states that members of the Communist Party in the Philippines are guilty
of rebellion and must all be imprisoned is a bill of attainder as the courts must first
determine who among them are directly involved in rebellion. The law cannot
generalize and impute guilt to all members of the communist party.
This chapter introduces the readers to the nature and types of human rights in the Philippine Constitution. The idea of human rights is not universal. It is a socially constructed concept which was gradually accepted by modern nations through the United Nations Charter and declarations in 1945. The foundation of human rights is based on the fundamental belief that each person has an intrinsic worth and human dignity, being created in the image and likeness of God. This human dignity provides the person's inalienable and God-given rights which must respected in all democratic processes. Rights are generally classified into natural, constitutional and statutory and constitutional rights are further classified into political, civil, social and economic rights and the rights of the accused in criminal cases.
A Bill of Rights is a declaration and enumeration of a person's rights and privileges which the Constitution is designed to protect against violations by the government, or by individual or groups of individuals. It is also called as the charter of liberties and at the same time a limitation upon the powers of the government. The 1987 Constitution (Article III, Sections 1-22) enumerates around 30 constitutional rights of the Filipino citizens. These include the right to search warrant and warrant of arrest, due process, abode, travel, privacy, peaceful assembly, religion to name a few.
LAW AND LEGISLATIVE POWER IN THE PHILIPPINES
In its general sense, legislative power refers to the power to enact or create laws which includes the power to alter or repeal them. It is essentially the authority, under our Constitution to make, amend or abolish the law. This power is vested in the Philippine Congress and it is reserved to the people in cases of initiative and referendum. Section 1, Article VI, of the 1987 Constitution states that:
. . .[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
The 1987 Constitution dissolved the unicameral or one-house legislature under the 1973 Marcos Constitution and restored the bicameral system of the 1935 Constitution. A presidential form of government like the Philippines is usually bicameral while a parliamentary form of government is unicameral or a one-house legislature. A bicameral legislature for the Philippines means that the legislature which is the Congress is made of two houses: the Upper House which is the Senate and the Lower House which is the House of Representatives. H. De Leon (1997) identified the advantages and disadvantages of a bicameral system as follows:
ADVANTAGES (For those in favor of bicameralism)
(1) A second chamber (Senate) is necessary to serve as a check to hasty and ill-
(2) It serves as a training ground for future leaders;
(3) It provides a representation for both regional and national interests;
(4) A bicameral legislature is less susceptible to bribery and control of big interests; and
(5) It is the traditional form of legislative body dating from ancient times; as such, it has
been tested and proven in the crucible of human experience.
DISADVANTAGES (For those who oppose bicameralism)
(1) The bicameral set-up has not worked out as an effective fiscalizing machinery;
(2) Although it affords a double consideration of bills, it is no assurance of better
considered and better deliberated legislation;
(3) It produces duplication of efforts and serious deadlocks in the enactment of important
measures with the Conference Committee of both Houses, derisively called the "third
chamber," practically arrogating unto itself the power to enact law under its authority
to thresh out differences;
(4) All things being equal, it is more expensive to maintain than a unicameral legislature;
(5) The prohibitive costs of senatorial elections have made it possible for only wealthy
individuals to make it to the Senate; and as to claim that a Senate is needed to
provide a training ground for future leaders, two of our Presidents became chief
executives even if their service was confined to the House of Representatives.
Functions and Powers of the Philippine Congress
In general, the Philippine Congress performs various legislative functions for the good of the country. These include the: (1) definition of the rights and duties of citizens, (2) imposition of taxes to defray expenses of government, (3) appropriation of public funds, (4) definition and punishment of crimes, (5) creations and abolition of government offices including the determination of their jurisdictions and functions, and (6) regulation of human conduct and the use of property for the promotion of the common good. Because of multilateral economic agreements and international treaties in this age of free trade under World Trade Organization where the country is a signatory, the Philippine Congress cannot, however, enact economic laws which do not conform to these multilateral agreements. Moreover, the Philippine legislature cannot also pass an ex post facto law and a bill of attainder as discussed in the previous chapter on human rights.
To fulfill its duty, the Constitution provides the Philippine Congress the following powers. Some of these are non-legislative in nature and implied as Congress cannot enact, modify or repeal laws without them:
General Legislative Power--Congress has the general powers to create laws which include the power to change or abolish the law.
Specific Legislative Powers---These are powers expressly conferred by the Constitution to Congress. These include the power of appropriation or determining the national budget of the government, the power of taxation or to enact tax laws, or the power of expropriation or to pass laws appropriating private property for public use upon payment of just compensation.
Non-Legislative Powers---These powers do not directly relate to enactment of laws but nevertheless are performed by Congress as part of its obligations under the Constitution. These include (1) the power to propose amendments to the constitution such as calling a Constitutional convention for the revision of the Charter; (2) the power to impeach impeachable officials such as the President, Vice-President, the Ombudsman, the Chief Justice and Commissioners of the constitutional bodies such as the COMELEC; (3) the power to canvas votes for the President and Vice-President; and (4) the power to declare the existence of a state of war when our country is invaded by another country.
Implied Powers---These are powers which are not expressly given by the Constitution to Congress but which are implied from those expressly granted. These include the power to (1) punish or declare a person in contempt during or in the course of legislative investigation, and (2) issue summons and notices in connection with legislative inquiry or investigation. Without these powers, Congress cannot punish people who disregard summons or notices or disrupt legislative inquiry or investigation in aid of legislation. Contempt powers include the power to imprison witnesses who directly and indirectly show disrespect for legislative proceedings of Congress.
Inherent Powers---These powers are inherent to the exercise of legislative powers by Congress. To be able to perform its functions orderly, Congress has the power to determine the rules of its proceedings. In case of impeachment proceedings, the House of Representatives and the Senate have enacted specific rules on how to investigate and decide on how to remove impeachable officials. The Constitution has expressly given Congress the power to determine its own internal rules.
Constitutional Prohibitions on the Powers of Congress
Although Congress is vested with legislative authority by the Constitution, its lawmaking power has limitations and restrictions. Congress cannot pass the following type of laws as imposed by the Constitution:
No ex post facto law shall be passed (Art. III, Sec. 22).
As mentioned in the previous chapter, an ex post facto law is a law which:
(i) makes an act done before the passage of the law; (ii) aggravates a crime or makes it greater when it was committed; (iii) changes the punishment & inflicts a greater punishment than what the law annexed to the crime when committed; (iv) alters rules of evidence.
This type of law is prohibited as this is prejudicial to the rights of the accused. If allowed, the accused suffers more punishment for a crime which becomes more serious than at the time it was committed, just because a subsequent ipso facto law altered the nature, punishment and rules evidence of the crime.
No bill of attainder shall be passed (Art. III, Sec. 23).
A bill of attainder is not allowed in Congress as it also prejudicial to the rights of the accused. A bill of attainder is a legislative act or law which inflicts punishment without a judicial trial.
No law impairing the obligation of contracts shall be passed (Art.III, Sec. 10).
Congress cannot interfere with private contracts entered into by private
individuals or groups. A contract is a meeting of minds between 2 parties and a law that
governs its agreement.
No law granting a title of royalty or nobility shall be passed (Art.VI, Sec. 31).
The Philippines is a republican and democratic government and not a monarchy. The conferment of royalty and nobility is only appropriate for absolute or constitutional monarchies but not for the Philippines. This prohibition prevents the creation of a privileged class who may transmit their status by inheritance to their children.
No law shall be passed increasing the appellate jurisdiction of the Supreme
Court as provided in the Constitution without its advice and concurrence
(Art. VI, Sec. 30).
Congress cannot reduce the original and appellate jurisdiction of the Supreme Court as the highest court of the land as enumerated in Article VIII, Section 5 (2). But it can increase its jurisdiction by assigning to it additional cases for adjudication.
No law granting any tax exemption shall be passed without the
concurrence of a majority of all members of Congress (Art.VI, Sec. 28  ).
Tax exemptions must be granted to taxpayers judiciously. Under the principle of uniformity in taxation, all taxable articles or properties of the same class shall be taxed at the same rate. It implies equality in burden, not equality in amount. The principle of equity in taxation requires that the apportionment of the tax burden be more or less just in the light of the taxpayer's ability to shoulder the tax. Congress must be able to balance these 2 principles when legislating tax exemptions to taxpayers, making sure that one group of tax payers is not prejudiced by the granting of exemptions to other groups.
CONSTITUTION DISTINGUISHED FROM STATUTE
A constitution is a fundamental law of the land which is directly enacted by the people. Thus, the legislative power of Congress cannot just amend or revise it without the consent of the former in a plebiscite. A statute is a type of law that is created by a lawmaking body like the Philippine Congress. A statute is an "inferior" type of law in the sense that this must conform and emanate from constitutional law. The Senate, the House of Representatives and the President cannot pass a bill into a law or statute if it is contrary or contradictory to the provisions of the constitution. The Supreme Court, upon a valid petition, can strike out this statute as illegal and unconstitutional.
Statutes in the country have various names in Philippine history. During the Commonwealth period under the Americans, statutes passed by the Philippine legislature are called Commonwealth Acts or C.A. During the Marcos era, statutes were called Batas Pambansa (BPs) like Batas Pambansa 22 (B.P. 22) or the anti-bouncing check law. At present, statutes enacted by the Philippine Congress are called Republic Acts (RAs) such as the Republic Acts 7279 or the Urban Housing and Development Act.
The local law-making bodies in the local governments such as the Provincial Board (Sangguniang Panlalawigan) and City (Sangguniang Panlungsod) and Municipal (Sangguniang Bayan) Councils, delegated as legislative bodies by Philippine Congress can also enact local laws or statutes called ordinances. Under the Local Government Code, these bodies can enact laws for their own locality such the enactment of local tax laws for the province, city or municipality.
Table 14. LEGISLATIVE OFFICERS IN THE PHILIPPINES BY TERRITORIAL
JURISDICTION AND RANK
Speaker of the House
TYPE OF CONGRESSMAN
LOCAL GOVERNMENT UNITS
Board Members (Sangguniang Panglalawigan)
City Councilors (Sangguniang Panglunsod)
Municipal Councilors (Sangguniang Bayan)
Barangay Councilors (Kagawads)
NATIONAL AND DISTRICT LEGISLATORS
Composition: The Senate is composed of twenty-four (24) Senators who are elected at
large by the qualified voters of the Philippines nationwide (Art. VI, Sec. 2).
Term of Office: The term of office of the senators is six (6) years and shall commence at
noon on the 30th of June following their election. They can be
reelected for another 6 years but they cannot serve for more than 2
consecutive terms (Art. VI, Sec. 3-4).
Voluntary renunciation of office for any length of time shall not be
considered an interruption in service for the full term for which he was
elected (Art. VI, Sec. 3-4).
Qualifications: The qualifications of a senator are the following (Art. VI, Sec.3):
(1) A natural-born citizen of the Philippines;
(2) at least 35 years of age on the day of the election;
(3) able to read and write;
(4) a registered voter; and
(5) a resident of the Philippines for not less than two (2) years immediately
preceding the day of elections.
Immunities: One of the privileges of senators is that they cannot be arrested on a
criminal charge punishable by 6 years imprisonment or less while
Congress is in session. They cannot also be charged with libel for their
privilege speeches delivered in the Senate. If thy are charged with
oral defamation, slander, slight physical injury, unjust vexation or any
minor crimes, the police cannot arrest them in Congress.
House of Representatives
Photo source: en.wikipedia.org
House of Representatives in plenary session
Composition: Under the 1987 Constitution the House of Representatives is
composed of 250 members elected from legislative districts and party-
list groups. This was, however, increased as of 2012 to 286 members:
230 district representatives and 56 party-list representatives. Since 1987,
more legislative districts were created by Congress and more party-list
groups were accredited by COMELEC and have won seats in Congress.
Thus, the total number of congressmen and women has increased. The
Constitution, however, limits the total number of party-list
representatives to only 20 percent of the number of representatives in
Congress. (Art. VI, Sec. 5).
A district representative is elected to Congress if he or she garnered the
highest vote in the district. A party-list congressman or woman is
elected in Congress if after being nominated by the party-list group
s/he got at least 3% of the total votes of all districts nationwide.
This can increase to 2 or 3 seats for the party-list if it gets more votes
throughout the country.
Term of Office: The term of office of House representatives is three (3) years. But they
cannot be elected for more than 3 consecutive terms. Thus, the
maximum number of years for a congressman or woman is 9 years.
After a break of one term or 3 years, they can be eligible again for
another 3 more terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he or she was
elected (Art. VI, Sec. 7). Thus, if a representative resigns two days
after being elected for a third term, his or her third term is deemed
completed and therefore ineligible to run for the next election.
Photo source: newsinfo.inquirer.net
The House of Representatives building (Batasang Pambansa in
Commonwealth Avenue, Quezon City
Qualifications: The qualifications of a representative in Congress are the following
(Art. VI, Sec. 6):
(1) a natural-born citizen of the Philippines;
(2) at least 25 years of age on the day of election;
(3) able to read and write;
(4) in case of a party-list representative, a registered voter in the
District in which he or she shall be elected (a registered voter
anywhere in the Philippines for party-list representative); and
(5) a resident thereof for a period of not less than one (1) year
preceding the day of the election.
Immunities: A representative in the House of Representatives whether district or party-
list she cannot be arrested on a criminal charge punishable by 6 years
imprisonment or less while Congress is in session. He or she cannot also be
charged with libel for his or her privilege speech delivered in the Senate. If
he or she is charged with oral defamation, slander, slight physical injury,
unjust vexation or any minor crimes, the police cannot arrest him or her in
Table 15. DISTINCTIONS BETWEEN SENATORS AND REPRESENTATIVES
Senate (GSIS building)
House of Representatives (Batasang Pambansa Building)
COMPOSITION (as of 2012, 15th Congress)
MANNER OF ELECTION
Within the top 12 candidates garnering the highest votes nationwide
Highest vote by district
At least 3% of nationwide votes to get one seat
TERM OF OFFICE
6 years per term with reelection, but limited to 2 consecutive terms
Limited to 3 years per term, but more than 3 consecutive terms
Limited to 3 consecutive terms
Able to Read & Write
Able to Read & Write
Able to Read & Write
35 years old on the day of election
25 years old on the day of election
25 years old on the day of election
A registered voter
A registered voter in district in which he shall be elected
A registered voter
At least 2 years immediately preceding the day of election
At least 1 year immediately preceding the day of election
At least 1 year immediately preceding the day of election
Cannot be arrested while Congress is in session if crime committed is punishable by 6 years or less
Cannot be arrested while Congress is in session if crime committed is punishable by 6 years or less
Cannot be arrested while Congress is in session if crime committed is punishable by 6 years or less
*Residence is "the place where one habitually resides and to which, when he is absent, he has the intention of returning" (Evangelista vs. Santos, 86 Phil. 837)
Table 16. OFFICERS OF BOTH HOUSES IN CONGRESS
HOUSE OF REPRESENTATIVES
Senate President pro tempore
Speaker pro tempore
Majority Floor Leader
Majority Floor Leader
Minority Floor Leader
Minority Floor Leader
Chairman of various standing committees
Chairman of various standing committees
Chairman of special committees
Chairman of special committees
*Not members of Congress but regular employees of the legislature
Source: (Suarez 1999: 177)
SESSIONS OF CONGRESS
To fulfill its lawmaking obligations, Congress convenes two kinds of sessions as stated in Art. VI, Sec. 15 of the Constitution: regular and special sessions. But for Congress to validly perform its function a quorum, as discussed below, is needed every time it holds a regular or special session.
Congress, i.e., the Senate and the House of Representatives convenes once a year on the 4th Monday in July for its regular session, unless a different date is fixed by law. Once it is convened, the session continues to fulfill its legislative obligations until 30 days before the opening of its next regular session, usually excluding Saturdays, Sundays and legal holidays. Congress is in session for the entire year as lawmaking is a full-time duty and legislators receive a fixed yearly salary. Article VI, Sec. 15 states:
SEC. 15. The Congress shall convene once every year on the fourth of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.
As stated in the last sentence of the above Sec. 15., the President of the Republic of the Philippines may ask Congress to call a special session at any time during the period that it is in recess. This usually takes place if the President feels that there is an urgent legislative agenda that Congress must undertake for the good of the country. The President may designate the subjects in his proclamation or special message calling such special session.
A quorum refers to the number of the membership of an assembly or collective body as is competent to transact its business. It is the number which gives a lawful body the power to pass a law or ordinance or do any other valid corporate act (De Leon 1997: 162).
The number of members whose presence is required at a meeting to constitute a quorum is usually the majority of the entire body, that is, one-half of all the members plus one (Suarez 1999: 178). Thus, if the total number of senators in the Senate is 24, the quorum would have at least 13 senators present in a session.
In the absence of a quorum, the session may be adjourned. During emergencies, absent members can be arrested by the minority to force them to attend sessions.
HOW CONGRESS MAKE LAWS OR STATUTES
Since the Constitution adopted a bicameral legislature which consists of a Senate and a House of Representatives, it is expected that the steps and processes would be more tedious and complex compared to a unicameral legislature. The major steps can be categorized into 3 phases: the Preliminary, Formal, and Final stages.
This is the initial stage of the lawmaking wherein the lawmaker, a senator or congressman/woman, attempts to understand the legal needs of the people or constituents by conducting public hearings and consultations. After identifying the legislative needs of the people, the lawmaker prepares a draft of the bill or proposed law and consults lawyers or experts before filing it with the Senate or House of Representatives as the case may be. When the draft becomes final, the lawmaker sponsors it alone or with other senators or congressmen/women as co-authors and files it in the Bill Section of the Senate/House of Representatives in order to be calendared for the First Reading in the next stage.
This is the longest stage of lawmaking as every bill undergoes 3 readings both in the Senate and in the House of Representatives as required in a bicameral legislature. These are the important steps during this stage:
The First Reading
The term "first reading" simply means that the bill is formally introduced in the session hall in the Senate/House of Representatives. What is read during this step is only the number and title of the bill and thereafter the Senate President or Speaker of the House, noting the nature and content of the bill, will refer it to the appropriate Senate/House Committee to investigate it further.
The controversial House Bill Number 4244, also known as the Reproductive
Health Bill or RH Bill.
This is the most important part of the bill. During this stage, the bill is examined, debated, or amended by members of the respective committees. If approved by a majority of its members, the bill is printed in its final form and copies are distributed to senators or congressmen/women at least 3 days before the third reading. If disapproved, the sponsor has to re-file it perhaps in a more acceptable way to committee members; otherwise, it is considered "dead".
Photo source: irri-news.blogspot.com
A House Committee hearing deliberating a bill.
Results of the voting of congressmen on the RH Bill
after Second Reading
At this stage, the bill is now presented to the members of the Senate/House of Representatives in a plenary session for approval. Legislators merely register their votes for the bill. They may explain their votes if the rules of the Senate or House would allow. If approved by the required votes, the bill is sent to the other chamber for the required readings. If the bill originates in the Senate, it is sent to the House of Representatives. If it comes from the House of Representatives, it is sent to the Senate.
Photo source: cbcpforlife.com
Third Reading and voting of the controversial RH Bill
Reconciliation of Two Bills
If the approved bills of the same nature or topic by the Senate and by the House of Representative are very different, a reconciliation process would be done by a selected group of senators and representatives called as the Bicameral Committee. This group is called as the "Third Chamber" as members are authorized by Congress to finalize the 2 bills and come out with a unified.
Enrollment of the Bill
A bill is considered enrolled when it is approved by both Houses, the Senate and the House of Representatives and sent to the President for consideration and signature.
This stage represents the final steps before an enrolled bill in Congress becomes an effective law. The most important steps include the signature or approval of the President for the bill and publication of the new law to make it effective and made known to the public.
Signature or Veto of the President
An enrolled bill automatically becomes a law or statute in any of the following manner:
(1) When the President signs it;
(2) When the veto or disapproval of the President is overridden by 2/3 votes of all
members of each House; or
(3) When the President does not act on the bill within 30 days after presentation.
Publication of the New Law
If the bill is signed by the President, it automatically becomes a new law or statute. However, it can only be effective if the people who are subject of the new law must know about it. Thus, the publication of the new law is required. It can be published in the Official Gazette, the official publication of government for new laws by the National Printing Office, or in newspapers of national circulation like the Philippine Daily Inquirer, Philippine Star or Manila Bulletin. A new law usually becomes enforceable 15 days after its publication date.
Legislative power is the power to enact, modify or abolish the law. This is vested in Philippine Congress which is composed of two legislative houses: the Senate and the House of Representatives. The Senate is composed of 24 senators elected nationwide, while the House of Representatives is composed of district and party-list congressmen/women who are elected by district or by a nationwide vote as in the case of party-list representatives. Local legislators such board members and councilors also exercise legislative powers to pass local laws or ordinances. They are elected as lawmakers in the province, city, municipal or barangay.
Both Houses of the legislature have a set of officers. To transact official business, they need a quorum, i.e., the required number of legislators which gives a lawful body the power to pass a law or ordinance or do any other valid corporate act. As part of their official function, they hold regular and special sessions to tackle legislative agenda and pass the important bills to be signed by the President. The 1987 Constitution provided Congress with general, specific, and implied legislative and non-legislative powers in order that its constitutional mandate is performed satisfactorily.
The primary duty of Congress is pass a bill or proposed law sponsored by any member of the Senate or House of Representatives in accordance with the Constitution. A bill undergoes a tedious process in the legislature before it is certified as an enrolled bill and ready to be signed by the President into law. It ordinarily undergoes three readings and other formalities in both chambers of Congress. It can become a law if the President signs it or fails to act upon it within 30 days. If approved by the President, the new law needs to be published in the Official Gazette or in any newspapers of national circulation. After fifteen days of publication, the new law is generally considered effective and the people affected by it are required to obey it.
THE EXECUTIVE BRANCH
THE NATURE OF EXECUTIVE POWER
In an indirect democratic or republican political system, the government is often divided into three (3) separate, independent but interdependent powers, namely: the executive, legislative and judicial. Executive power is generally defined as "the power to administer the laws, which means carrying them into practical operation and enforcing their due observance" (Cooley, 183). In another definition, executive power is the power to enforce or implement the laws of the land. For the German sociologist Max Weber, a law or rule cannot be considered a true standard for action unless there is somebody who is in-charge in enforcing it. Thus, in the Philippine, laws will be mere words and prescriptions that guide action if there are no law enforcers that implement them. Under the 1987 Constitution. The person who is vested with full executive powers to administer the laws of the republic is the President. Of course, s/he is not alone in doing this job. He is assisted by a whole group of public officers who share executive powers with him by virtue of delegation of powers. Those who join him in administering the laws are appointed and elected local officials such the governors, mayors, or barangay captains, cabinet members or secretaries of the different department of our government like the departments of Justice (DOJ), energy (DOE), health (DOH), finance (DOF), tourism (DOT), trade and industry (DTI), transportation and communication (DOTC), public works (DPWH), etc. The chairman of the Metro Manila Development Authority (MMDA) also belongs to the executive branch and carries the rank of a cabinet member.
The Constitution does not expressly provide the Vice-President as a specific executive position. This official is considered a "spare tire" in case the President dies, resigns or impeached. However, out of respect to his/her elected status, the Vice-President is usually given a cabinet post. Salvador "Doy" Laurel, the Vice-President of President Corazon Aquino was appointed Secretary of Foreign Affairs; Erap Estrada was appointed Crime Czar by President Ramos; and Vice-President Noli de Castro the Head of the Housing Program of the Arroyo administration. If the Vice-President is appointed in the Cabinet or any position in the government, the appointment does not require confirmation from the Commission on Appointments (CA), as any ordinary cabinet nominee of the President.
Table 17. MAJOR PUBLIC OFFICERS UNDER THE EXECUTIVE BRANCH
AND THE NATURE OF THEIR OCCUPATION OF THE POSITION
NATURE OF OCCUPATION
A. National Officials
By national election
By national election
Cabinet Member/Department Secretary
Appointment by the President
Bureau Chief (e.g. BIR, Bureau of Customs, excluding constitutional bodies like COMELEC)
Appointment by the President
B. Local officials
By election in the province
By election in the province
By election in the city
By election in the city
By election in the town or municipality
Vice Municipal Mayor
By election in the town or municipality
By election in the barangay
QUALIFICATIONS OF THE PRESIDENT AND VICE-PRESIDENT
The qualification of the President and Vice-President is the same under the Constitution. As summarized in the table below, the qualifications are as follows:
Both the President and the Vice-President must be natural-born citizen. A natural-born Filipino citizen as mentioned in Chapter III is a citizen of the Philippines from birth without having to perform an act to acquire or perfect his Philippine Citizenship.
A registered voter is one who is duly registered in the list of voters because he possesses the qualification for suffrage, as required by Article V, Section 1 which states:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen (18) years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
The Constitution does not provide a higher level of educational attainment for those who would want to be President or Vice-President. Presumably, the Constitution wants to widen the access to these positions to as many people as it can. It only requires candidates to be "able to read and write" to qualify. Many of the Philippine Presidents were highly educated. In fact, some were bar topnochers and brilliant lawyers like Marcos, Roxas and Macapagal. Joseph Estrada is the only President who was a college drop-out.
The presidential and vice-presidential candidates must be at least forty (40) years of age on the day of the election, not on the day of the filing of candidacy nor on the day of their proclamation.
The Constitution requires that those who would want to become President or Vice-President must be acquainted with the economic and political conditions of the country in order that they can gain insight on how to run the country in case they elected into office. Thus, it requires that both candidates must reside in the country at least 10 years immediately preceding the election.
Table 18. SUMMARY OF THE QUALIFICATIONS OF A PRESIDENT AND VICE-
PRESIDENT (Section 2, 4, Article VII, 1987 Constitution)
Able to read and write
At least 40 years on the day of election
At least 10 years immediately preceding the presidential election
The Canvassing and Proclamation
As provided in Article VII of the Constitution, the election for the President and Vice-President is set on the second Monday of May, six years thereafter. Unlike the senators whose Board of canvassers for the counting of votes is the COMELEC en banc, the votes for the President and Vice-President are canvassed by Congress consisting of senators and congressmen/women seating in joint public session. It is the same Congress who will proclaim the President-elect and the Vice-President elect. If there is a complaint questioning the canvassing or proclamation, the proper venue is not the COMELEC but the Supreme Court as provided by law.
Term of Office
Under the 1935 Constitution, the term of the President and Vice-President is four (4) years with reelection. But this has been changed by the 1987 Constitution owing to the Marcos dictatorship experience that allows a dictator to rule the country beyond what the Constitution requires. In the 1987 Constitution, the term of the President has been reduced to six (6) without reelection. It begins at the noon of the thirtieth day (30th) of June next following the day of the election (Art. VII, Sec. 4) and ends at noon of the same date six years thereafter.
The Vice-President, unlike the President, is eligible for reelection. But the Constitution disallows him or her to run for more than two (2) consecutive terms (Sec. 4, par.2, Art. VII), although eligible to run as President for his or her third election. Moreover, the Vice-President who has succeeded and served as President for more than four (4) years (even in an acting capacity) is also disqualified for election to the same office at any other time.
The voluntary renunciation of the office of the Vice-President for any length of time does not interrupt the continuity of the service for the full term of six years. Thus, if the Vice-President resigns on the second day in office, this is considered being served for full six years. So s/he is disqualified to run for the next election.
The President is disqualified for reelection, but is qualified to run for a lower position after finishing six years as President, as in the case of former President Arroyo who run as a congresswoman of Pampanga after finishing her term. The Vice-President too is qualified to run for a lower position after serving the maximum number of terms.
Table 19. SUMMARY: CANVASSING, PROCALAMATION AND TERM OF OFFICE
OF THE PRESIDENT AND VICE-PRESIDENT
DAY OF ELECTION
Second Monday of May
Second Monday of May
BOARD OF CANVASSERS
Congress in joint public session, with all senators & congressmen
Congress in joint public session, with all senators & congressmen
Congress in joint public session,
after canvassing of votes
Congress in joint public session,
after canvassing of votes
6 years, without re-election
6 years with re-election but 3 successive terms not allowed, an unfinished term is considered one full term
START & END OF TERM
12:00 Noon of the 30th of June next following the day of election & shall end at noon of the same date 6 years thereafter.
12:00 Noon of the 30th of June next following the day of election & shall end at noon of the same date 6 years thereafter.
POWERS OF THE PRESIDENT
The President has the power of control over the executive departments of the government and supervisory powers over all local government units (LGUs) such that of the province, city, municipality and barangay.
Powers of the President as Commander-in-Chief includes the power to:
(1) call out the armed forces to prevent or suppress lawless violence, invasion, or
(2) create military tribunals to try persons who violate military laws or commit crimes
against national security.
Power to suspend writ of habeas corpus under the following necessary conditions:
(1) There must be invasion or rebellion; and
(2) The public safety must require the suspension.
Power to declare Martial Law during invasion or rebellion.
Under Article VII, Section 19 of the 1987 Constitution, the President has the power to grant reprieves, commutations and pardons and remit fines and forfeitures, after conviction by final judgment. The pardoning powers of the President include the following:
Reprieve: it is the postponement of the execution of a death sentence to a certain date.
Suspension: this refers to the postponement of an execution of death to an indefinite
time. It can be performed on the next day, week or month depending on the
order of the President.
Commutation: this refers to the reduction of sentence imposed to a lesser punishment,
as from death penalty to life imprisonment. It can be granted without the
acceptance and even against the will of the prisoner.
Pardon: this is an act of grace proceeding from the power entrusted with the execution of
the laws which exempts the individual on whom it is bestowed, from the
punishment the law inflicts from a crime he has committed (De Leon vs.
Director of Prisons, 31 Phil. 60).
(1) Absolute: when pardon is not subject to any condition whatsoever. It becomes
effective when made.
(2) Conditional: when it is given subject to any condition or qualification the
President may see fit. It must be accepted by the prisoner to become
Pardon distinguished from Amnesty
Amnesty: it is an act of the sovereign power granting oblivion or a general pardon for
A past offense usually granted in favor of certain class of persons who have
committed crimes of a political character, such as treason, sedition or
rebellion. An Amnesty proclamation of the President needs approval of
Table 20. DISTINCTIONS BETWEEN AMNESTY AND PARDON
1. political offenses
1. infractions of peace
2. groups (classes) of persons
3. requires concurrence of Congress
3. does not
4. public act to which court may take judicial
4. private act which must be pleaded and
5. looks backward and puts to oblivion the
5. looks forward and relieves the pardonee of
the consequences of the offense
6. must acknowledge the commission of the
6. must have been convicted of the offense
Source: (Munoz & Gonzales-Munoz 2002: 98)
Parole: this is a process in which the prisoner is released from imprisonment, but
without full restoration of liberty as a parolee is still in the custody of the law.
Remission of fines and forfeitures: the president can remit fines and forfeitures for any
offenses after final conviction. This prevents collection of fines or the
confiscation of forfeited property of the convict.
Powers to contract and guarantee foreign loans on behalf of the Republic of the
Philippines (Art. VII, Sec.20).
The President can contract or guarantee loans with multilateral institutions like the World Bank and International Monetary Fund (IMF) or other regional banks. But this needs the concurrence of the Monetary Board of the Central Bank.
The President is authorized by the Constitution to prepare the budget of receipts and expenditures based on existing and proposed revenue measures and other resources of financing and to submit it to Congress within 30 days from the opening of each regular session. This can become the basis of the general appropriations act to be enacted by Congress for the next fiscal year.
Who succeeds the President in case of death, resignation, impeachment, disability or incapacity? What if the Vice-President is not qualified or incapacitated to the succeed the President? To prevent chaos and anarchy in case the President and/or the Vice-President cannot rule the country, the 1987 Constitution has prepared a set of rules for presidential succession and for a smooth transfer of power in government.
RULES WHEN VACANCY OCCURS BEFORE THE BEGINNING
OF THE TERM OF THE PRESIDENT (Article VII, Section 7)
SEC. 7. The President-elect and the Vice-President-elect shall assume office at the
beginning of their terms.
If the President-elect fails to qualify, the Vice-President-elect shall act as
President until the President-elect shall have qualified.
If a President shall not have been chosen, the Vice-President-elect shall act
as President until a President shall have been chosen and qualified.
If at the beginning of the term of the President, the President-elect shall have
died or shall have become permanently disabled, the Vice-President-elect shall
Where no President and Vice-President shall have been chosen or shall have
qualified, or where both shall have died or become permanently disabled, the President
of the Senate or, in case of inability, the Speaker of the House of Representatives shall
act as President until a President or a Vice-President shall have been chosen and
The Congress shall, by law, provide for the manner in which one who is to act
as President shall be selected until a President or a Vice-president shall have
qualified, in case of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
Table 21. SIMPLIFICATION OF SECTION 7:
WHEN VACANCY OCCURS BEFORE TERM OF PRESIDENT
IN CASE OF:
DEATH OR PERMANENT DISABILITY OF THE PRESIDENT
FAILURE TO ELECT THE PRESIDENT (i.e., Presidential election has not been held or non-completion of the canvass of Presidential elections)
NO PRESIDENT AND VICE-PRESIDENT SHALL HAVE BEEN CHOSEN & QUALIFIED, OR BOTH SHALL HAVE DIED OR BECOME PERMANENTLY DISABLED
The Vice-president elect shall become President
The Vice-President shall act as the President until the President shall have been chosen and qualified.
The Senate President, or in case of his inability, the Speaker of the House of Representatives shall act as president until a President or a Vice-President shall have been chosen and qualified.
If Senate President and Speaker is unable to act as President,
Congress shall by law provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified.
RULES IF VACANCY OCCURS DRUING THE INCUMBENCY OF THE PRESIDENT (SECTION 8, ARTICLE VII)
SEC. 8. In case of death, permanent disability, removal from office, or resignation
of the President, the Vice-President shall become the President to serve the
unexpired term. In case of death, disability, removal from office, or resignation of
both the President and Vice-President, the President of the Senate or, in case of
inability, the Speaker of the House of Representatives, shall then act as President
until the President or Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall serve
until the President or the Vice-President shall have been elected and qualified, and
be subject to the same restrictions of powers and disqualifications as the Acting
Table 22. SIMPLIFICATION OF SECTION 8:
SUCCESSORS IN CASE OF:
1) DEATH, 2) PERMANENT DISABILITY, 3) REMOVAL FROM OFFICE OR 4) RESIGNATION OF:
1) DEATH, 2) PERMANENT DISABILITY, REMOVAL FROM OFFICE, OR RESIGNATION OF:
BOTH THE PRESIDENT AND VICE-PRESIDENT
Vice-President shall become the President to serve the unexpired term.
The Senate President, or in case of his inability, the Speaker of the House of Representatives, shall act as President until the President or Vice-president shall have been elected and qualified.
CAUSES OF REMOVAL OF THE PRESIDENT
The President can be removed from office either voluntarily or involuntarily. Voluntarily, if the President resigns, died, suffers permanent disability and declares incapacity in his or her own volition. Involuntarily, if the President is forced to leave office because of impeachment or Congress decides that the President is incapable to perform in office, the President must relinquish his/her post.
The following are the causes of removal of the President from office:
1. DEATH: The President is removed by a natural cause. The Vice-President becomes the
President in case of death of the Chief Executive.
2. RESIGNATION: The President for some personal or political reasons voluntarily relinquish
His/her position, the Vice-President acts as the President.
3. PERMANENT DISABILITY: The President is replaced by the Vice-President for serious
physical conditions that incapacitates him/her to live up to his/her
4. INCAPACITY: The President writes to the Senate President and Speaker of the House of
Representatives informing them that s/he is no longer capable of
discharging his or her duties as President. But s/he can assume the
position as soon as the incapacity is removed.
: The majority of the cabinet members can write to the Senate President and
Speaker of the House informing them of the incapacity of the President. If
the President objects, Congress will determine whether such incapacity
5. IMPEACHMENT: The President is removed from office involuntarily. The House of
Representatives in a vote of at least one-third of all members can transmit
to the Senate the Articles of Impeachment charging the President for
culpable violation of the Constitution, betrayal of public trust, high
crimes, and graft and corruption.
The Senate sitting as an Impeachment Court holds a trial to determine
whether the Articles of Impeachment from the House have legal basis.
The senators will act as judges with the Chief Justice as the Presiding
officer. A vote of at least two-thirds or 16 of the senators is needed
to impeach the President. Thereafter, the Vice-President becomes the
SUMMARY OF THE LINE OF SUCCESSION IN CASE THE PRESIDENT IS REMOVED VOLUNTARILY OR INVOLUNTARILY
Speaker of the House of Representatives
Acting President elected by all members of Congress
Executive power is the power to administer or implement the law. Under the 1987 Constitution, this power is vested in the President of the Republic of the Philippines. S/he is assisted by national and local officials who are either elected or appointed.
The qualification of the President and Vice-President under the 1987 Constitution is the same. Both must be natural-born citizen, at least 40 years of age, able to read and write, a registered voter, and a resident in the country for at least 10 years immediately preceding the election. The canvassing of their votes and their proclamations are both done by Congress in joint public session. The term of office of the President is 6 years without reelection. The term of the Vice-President is also 6 years but s/he is eligible for reelection for not more that 2 consecutive terms.
As the head of the executive branch, the President exercises military, administrative, pardoning, diplomatic and budgetary powers. In cases of death, incapacity, disability, resignation or impeachment, the Constitution designates the following public officials as his/her successor in accordance with the rules of presidential succession: Vice President, Senate President, Speaker of the House, or whoever is elected among the members of Congress as the Acting President.
JUDICIAL POWER AND THE JUDICIARY
Generally speaking, judicial power refers to the power to interpret the law and to settle legal cases. In particular, judicial power has been described by the present 1987 Philippine Constitution as:
the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government (Sec. 1, Art. VIII).
Whereas executive power is vested in the President and legislative power in Philippine Congress consisting of the Senate and House of Representatives, the judicial power in the government is vested in the Supreme Court and in such lower courts as may established by law (Sec1, Art. VIII). The lower courts in the country, as shown in the table below, are created by virtue of a law enacted by Congress such as the Judicial Reorganization Act of 1980 and by Presidential Decree No. 1083 of President Marcos which created the Shariah courts for Filipino Muslims.
This grant of judicial power to the Supreme Court and all other courts under it is plenary and includes the power that is expressly conferred upon it, the power not otherwise withheld from it, and incidental powers needed to discharge its duties such as the right to cite people in contempt (Munoz & Gonzales-Munoz 2002: 102).
One may ask: Is there a new element added in this description of judicial power by the 1987 Constitution?
Expanded Meaning under the 1987 Constitution
Compared to the previous 1973 Constitution during the Marcos era, this definition of judicial power under the 1987 Constitution has a wider scope. Under the 1973 Constitution, the judicial power was vested in one Supreme Court and lower courts but its scope was only limited to interpreting laws and deciding legal disputes but not reviewing any decision done with grave abuse of discretion by any government agency or instrumentality. In practical terms, the old definition did not allow the courts, especially the Supreme Court, to directly entertain petitions for review or certiorari for a decision rendered by any government officer perceived by an aggrieved party to be biased or done with grave abuse of power. A certiorari is a writ issued to annul or modify the proceedings, as the law requires, of a tribunal, board, or officer exercising judicial functions, who has acted without or in excess of its jurisdiction, or with grave abuse of discretion, there being no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law" (Moreno 1972: 94).
What is new is the phrase "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government" (Sec. 1, Art. VIII). This is tantamount to giving the Supreme Court additional power and to interfere in any decision rendered by any government agency upon petition of the party's lawyer via certiorari. For instance, a losing party may not agree with the decision of the COMELEC regarding his election case, s/he may file a petition for review in the Supreme Court through his/her lawyer via certiorari and ask for a reversal of the decision or an issuance of a Temporary Restraining Order (TRO) or an injunction as this action may apply. A worker in a labor case who lost his case on appeal with the Commissioner of the National Labor and Regulatory Commission (NLRC), may go to the Supreme Court for review for grave abuse of discretion under this expanded definition of judicial power. Under the 1935 and 1973 Constitutions, this expanded power was not allowed. Some legal observers say this expanded power has given the Supreme Court a license to intervene in almost all decisions of the government, particularly in the executive and legislative branches which are supposed to be independent and co-equal.
R. Suarez (1999) raised (3) points which must be remembered in connection with this new concept of judicial power:
(1) The grave abuse of discretion, as alleged, must be grave enough which
amounts to lack or excess of jurisdiction.
(2) The alleged grave abuse of discretion will have yet to be determined by the
courts of justice, particularly the Supreme Court.
(3) That if indeed it is alleged that there exists a grave abuse of discretion
amounting to lack or excess of jurisdiction, our courts of justice, particularly
the Supreme Court, can check this including the Congress and the President
of the Republic of the Philippines, or even Constitutional bodies because they
fall within the phrase "any branch or instrumentality of the government."
COMPOSITION OF THE SUPREME COURT
Under our existing 1987 Constitution, the total members of the Supreme Court are fifteen (15), consisting of 1 Chief Justice and 14 Associate Justices. As shown in the comparative table below, there was an increase of Justices of the Supreme Court from 11 members to 15 members in 1935 to 1973. However, this total membership of the Supreme Court did not increase in the 1987. The total population of the country and legal cases filed in courts have increased significantly. This non-increase of the members of the Supreme Court can have a significant effect on the disposition of cases as shown in the statistics of cases filed and pending in the Supreme Court towards the end of this chapter.
Table 23. COMPARATIVE TABLE OF SUPREME COURT JUSTICES
One (1) Chief Justice
Ten (10) Associate Justices
(Art. VIII, Sec. 4)
One (1) Chief Justice
Fourteen (14) Associate Justices
(Art. X, Sec. 2 )
One (1) Chief Justice
Fourteen (14) Associate Justices
(Art. VIII, Sec. 4)
As a general rule, justices of the Supreme Court decide criminal, civil and administrative cases by divisions unless provided by the rules that they should decide as one collegiate body or in an en banc session. At present, 15 justices of the Supreme Court sit in 3 divisions with 5 members for each division. The First division is headed by the Chief Justice, the second division by the most senior associate justice, and third division by the second most senior justice.
More serious legal matters which have significant impact on the country are heard and decided by en banc such as:
A. All cases involving the constitutionality of a/an:
(2) International Agreement
(3) Executive Agreement
B. All other cases which under the Rules of Court are required to be heard en banc.
C. All cases involving the constitutionality, application or operation of:
(6) and other regulations
POWERS OF THE SUPREME COURT
Under Article VIII, Section 5 (1), the Supreme Court shall have the power to exercise original jurisdiction over (1) cases affecting ambassadors, other public ministers and consuls, and over (2) petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
Under Article VIII, Section 5 (2), the Supreme Court shall have the power to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or Rules of Court may provide, final judgments and orders of lower courts in:
(1) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(3) All cases in which the jurisdiction of any lower court is in issue.
(4) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(5) All cases in which only an error or question of law is involved.
Under Article VIII, Section 5 (3,4,5,6), the Supreme Court does not only interpret the law and decide cases, but it also exercises administrative powers to supervise all the courts of the land as well as the admission and practice of law by lawyers. Thus, the Supreme Court can:
(1) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of judge concerned.
(2) Order a change of venue or place of trial to avoid a miscarriage of justice.
(3) Appoint all officials and employee of the Judiciary in accordance with the Civil
(4) Promulgate rules concerning:
(i) the protection and enforcement of constitutional rights;
(ii) pleadings in courts;
(iii) the practice of law by lawyers;
(iv) procedure in all courts;
(v) the admission to the practice of law;
(vi) the integrated Bar; and
(viii) legal assistance to the underprivileged.
Table 24. SUMMARY—COURTS IN THE PHILIPPINES: FUNCTION, HEAD,
COMPOSITION AND JURISDICTION
The highest court of the land
14 Associate Justices with 1 Chief Justice;
3 divisions with 5 justices for each division
1. Reviews losing cases on appeal from CA, CTA, and Sandiganbayan;
2. Reviews all cases involving constitutionality of a treaty, international agreement, executive order, law, presidential decree, proclamation, instruction, ordinance and other regulations;
3. Reviews all cases under Rules of Court to be heard en banc or by all justices of the SC;
4. Promulgate rules concerning protection & enforcement of constitutional rights, pleading, practice, procedure in all courts, admission to the practice of law, Integrated Bar, and legal assistance ot the underprivileged.
Court of Appeals (CA)
General Appeals Court for regular criminal, administrative and civil cases
1 presiding justice & 50 associate justices;
17 divisions, with 3 justices for each division
Reviews cases on appeal decided by trial courts
Court of Tax Appeals (CTA)
Specialized Appeals Court on Taxation cases
Composed of justices sitting in divisions and headed by a Presiding justice.
1. Reviews cases on appeal which are previously decided by the BIR and Bureau of Customs Commissioners on taxation and customs duties;
2. Reviews decisions of provincial or city boards of assessment on taxation or real property & other matters arising under Assessment Law, now under the Local Government Code.
Trial and appellate court for criminal and graft and corruption cases committed by public officers
Composed of justices sitting in divisions of 3 members and headed by a Presiding justice
1. Tries cases involving graft and corruption by public official punishable by more than 6 years;
2. Reviews cases on appeal from RTC committed by public officials on graft or criminal cases punishable by 6 years or less.
Regional Trial Court (RTC)
Regular trial court for serious offences and civil breaches
720 RTCs and judges, distributed throughout the 12 judicial regions
in the country
Tries criminal, administrative and civil cases of serious nature;
Appellate court for decisions of municipal and metropolitan trial courts
Metropolitan Trial Court (MeTC)
Trial Court in big or chartered cities
Presiding Judge and court employees
Tries less serious criminal, administrative, and civil cases involving smaller amounts
Metropolitan Trial Circuit Courts
A group of small Metropolitan Trial courts under one judge
Presiding judge and court employees
Tries less serious criminal, administrative and civil cases
Municipal Trial Court (MTC)
Trial courts in municipalities
Presiding Judge and court employees
Tries less serious criminal, administrative and civil cases
Municipal circuit Trial Court (MCTC)
Consists of 2 or more small municipal courts under 1 judge
Presiding Judge for 2 or more small MTC courts
Tries less serious criminal, administrative and civil cases
COURT FOR MUSLIMS
Shariah District Court
Trial courts for Filipino Muslims
Presiding judge and court employees
Hears all cases involving children, inheritance and estate of deceased Muslims, petitions of declaration of absence & death & correction of entries, customary contracts, petitions for mandamus, injunction, certiorari, habeas corpus and other writs in aid of its appellate jurisdiction;
2. Concurrently with existing civil courts, it exercises jurisdiction over petition by Muslims or constitution of a family home, change of name & commitment of insane to any asylum and all other personal & real actions involving Muslims;
3. All special civil actions for interpleader or declaratory relief for Muslims.
Shariah Circuit Court
Trial courts for Filipino Muslims
Presiding judge and court employees
1. Tries all cases involving offenses under Muslim Code (P.D. No. 1083);
2. All civil cases between parties who are Muslims and married in accordance to the Muslim Code;
3. All cases involving disputes relative to communal rights.
PROBLEMS IN PHILIPPINE COURTS
Vacancy in the Judiciary
One of the major problems faced by Philippine courts is the lack of justices and judges who can resolve legal cases in the courts and administer justice in the country. Based on the 2010 Annual Report of the Supreme Court, the vacancy rate in the judiciary is 25.26% or 586 vacancies out of the 2,320 judicial positions. While there has been a huge volume of applications for judgeship positions, the Judicial and Bar Council (JBC) seemed slow in filling up these vacancies with competent applicants.
Vacancies in the Different Courts of the Philippines as of 2010:
This lack of judges in courts, especially in trial courts (RTC, MeTC, MTCC, MTC, MCTC, SDC, SCC) has a serious effect on delivering justice to the people. With the continuous increase of cases filed in court every day and lack of judges to resolve and dispose cases immediately has resulted in more pending cases and thus delay, the administration of justice. At the end of 2009, the Supreme Court noted that lower or trial courts had a total of 617, 704 pending cases. By December 31, 2010, the number of pending cases totaled 614, 888 with 324,726 new cases filed that year.
Table 25. SUPREME COURT'S CASE DISPOSAL AS OF DECEMBER 2010
% OF CASE DISPOSAL
SOURCE: SCAR 2010, p. 41.
The table above also shows delay in the disposal of cases even in the Supreme Court. As of December 2010, the disposal rate of cases in en banc and in divisions was between 50-68 percent. That is just around a little more than half of the total cases filed in the court. The main bulk of these cases were judicial matters or regular cases filed for decision or under review by the court. Except in en banc, administrative matters which deal with civil service and legal procedures in running the government constitute less than half compared to the judicial matters. In the first division, for instance, there are 4479 judicial cases but only1,342 administrative cases. As a whole, the disposal rate of the Supreme Court was only 62 % of all the cases filed for decision and review. May it is time to revise our Constitution and increase the number of justices in the Supreme Court to keep pace with increasing population and legal cases filed in all courts in the country which will most likely end up in the highest court of the land for review.
Table 26. MIDDLE LEVEL AND LOWER COURT'S CASE DISPOSAL AS OF
% OF CASE DISPOSAL
MIDDLE LEVEL COURT
(Court of Appeals)
(Court of Tax Appeals)
(Regional Trial Courts)
(Metropolitan Trial Courts)
(Metropolitan Trial Circuit Courts)
(Municipal Trial Courts)
(Municipal Circuit Trial Courts)
(Shariah District Courts)
(Shariah Circuit Courts)
Source: SCAR 2010, p.41. (Names of the courts are added to the original table)
Compared to the Supreme Court, the middle and lower courts move even slower in their disposition of cases. The middle courts which consist of the Court of Appeals (CA), the Sandiganbayan (SB) and Court of Tax Appeals (CTA) and lower courts which consist of all trial courts in the country have a similar disposal rate of cases of thirty-eight percent (38%). In the middle courts, it is noteworthy that the slowest court in disposing cases is the Sandiganbayan, a court that decides corruption cases in the government, with a dismal 10% disposal rate. As of December 2010, 2,405 cases filed in court, only 247 were decided, leaving more than two thousand cases pending. This is ironic since the Sandiganbayan, the graft court in the country, is expected to expedite prosecution of corruption cases to discourage public officials to steal from the government coffers. The Court of Appeals (CA) emerged as the highest disposal rate among the middle level courts. But this 40% disposal rate is still slower than that of the Supreme Court.
Among the trial courts, the Regional Trial Courts (RTCs), the largest number of trial courts in the country, manifest a low disposal rate of 33%, much lower compared to the Supreme Court and middle level courts. This is really a reflection of the slow justice system in the country as the main bulk of all cases in the country is pending in the RTCs. Of course, the lack of judges plays an important role of this delay. The complex and tedious rules of court and proceedings also contribute to this delay. Some lawyers deliberately delay cases in order to earn more appearance fees in court. Others delay the proceedings hoping that the case will end up settled amicably outside the court.
The municipal courts, especially the Metropolitan Trial Circuit Courts (MTCCs) with a 53 % disposal rate, Metropolitan Trial Courts (MeTCs) with 45%, and Municipal Trial Courts (MTCs) with 40% showed a relatively faster rate compared than the middle level courts. But the Municipal Circuit Trial Courts (MCTCs) were the slowest among the municipal and metropolitan courts with a 32% disposal rate. One must consider that this type of court is usually found in remote regions or provinces in the country and with more vacant positions for judges.
The Shariah courts for Muslims handle less cases compared to the regular courts. But the Shariah District Courts (SDCs) have the slowest disposal rate of 15% compared to all the courts in the country.
MEMBERSHIP IN THE JUDICIARY
Unlike the educational qualification of the President, Vice-President, Senators and Congressmen/women which requires only the ability to read and write, the members of the judicial branch must be licensed lawyers or members of the Integrated Bar of the Philippines.
Why is this so? Well, the judicial work of justices and judges requires litigation which is a specialized type of work. The work of members of the judiciary is very technical and thus requires a special education in law schools and passing the bar examinations. The President, Vice-president, senators or congressmen can always avail the services of a lawyer to perform the technical legal work for them. In the judiciary, the justices and judges must render their own personal decision or judgment on legal cases and thus he or she must be knowledgeable of the law. Although they can have a staff of legal researchers composed of lawyers as in the case of justices of the Supreme Court, judicial decision based on sound judgment of the facts of the case requires the personal expertise of the justice or judge.
Table 27. QUALIFICATIONS OF THE MEMBERS OF THE JUDICIARY (Section 7,
JUSTICES OF SUPREME COURT
JUSTICES OF LOWER COLLEGIATE COURTS (CA, CTA, Sandiganbayan)
JUDGES OF LOWER COURT (RTC, MeTC, MTC, MCTC)
SOURCE OF AUTHORITY DETERMINING QUALIFICATION
1987 Philippine Constitution
(Sec. 7, Art.VIII)
1987 Philippine Constitution
and by qualifications prescribed by Congress (Sec. 7, Art.VIII)
Natural-born Filipino citizen
Natural-born Filipino citizen or a Naturalized Filipino citizen
At least 40 years old
A Lawyer, a member of the Bar
A Lawyer, a member of the Bar
At least 15 years as practicing lawyer or judge
A person of proven competence, integrity, probity, and independence
A person of proven competence, integrity, probity, and independence
THE JUDICIAL AND BAR COUNCIL (JBC)
AND THE NOMINATION AND SELECTION OF JUSTICES AND JUDGES
In the 1935 and 1973 Constitutions, the selection and appointment of justices and judges were left entirely in the hands of the President. Political and social connections rather than qualifications oftentimes predominated in the selection process. As a result, some justice and judges who are incompetent and lack personal integrity, probity and independence are appointed to the judiciary. The framers of the 1987 Constitution were aware of this problem when they set the qualification and the selection process for the members of the judiciary. As an assurance that members of the judiciary were highly qualified and competent, they established a special body known as the Judicial and Bar Council (JBC) tasked to screen and nominate candidates to the President.
Normally, the JBC accepts applications for vacant positions in the judiciary whether for justices or judges. Then, they screen the applications by soliciting recommendations and interviewing the applicants. Out of the many applicants, the JBC comes up with a short list of 3 nominees which they send to the President for his choice of appointees. The JBC only screens and nominates candidates but it is the President who makes the final decision.
This new procedure is not always free from political influence coming from Malacanang. In some cases, the President can do maneuvering, influencing the members of the JBC to include in the short list his/her a preferred nominee. The President can refuse to choose from the list and can ask the JBC to give another list which might include his/her preferred candidate. The problem with this system is that it does not state that the President cannot reject the JBC list and ask for another list. This loophole can be exploited by presidents who want their favorite nominee appointed to the judiciary. A nominee who is close to Malacanang especially for a position in the Supreme Court can provide the President with an important connection in the highest court of the land. Pending government cases as well as cases which may be filed against the President when he leaves office can get additional support in the collegiate body of the Supreme Court. The more justices friendly to Malacanang, the more the President can control the supposedly independent and co-equal body in the government like the Supreme Court.
Table 28. THE FUNCTION AND COMPOSITION OF THE JUDICIAL AND BAR
COUNCIL (JBC) (SEC. 8, ART. VIII)
The Supreme Court of the Philippines
To recommend appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
Chief Justice of the Supreme Court
Clerk of Court of the Supreme Court
Secretary of Justice (DOJ) as Ex-officio member
Representative of Congress as Ex-officio member
Representative of the Integrated Bar (IBP)
A Professor of Law
A Retired Member of the Supreme Court
Representative of the Private Sector
SALARY OF ITS
May be determined by the Supreme Court, tasked by the constitution to provide in its annual budget the appropriations for the council.
Judicial power is the power to interpret the law and settle legal cases. Under the 1987 Constitution, this power is vested in one Supreme Court and other lower courts created by law. Its scope has been expanded by the present Constitution to include the power of the courts to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
The present Supreme Court is composed of 1 Chief Justice and 14 Associate justices. It exercises original and appellate jurisdictions over legal cases for review and resolution and administrative powers to manage and oversee the middle and lower courts of the country. Its main problem is the delay in the administration of justice owing to vacancies of judges and court officers in the lower courts and the backlog of pending cases.
The qualification of the members of the judiciary includes the minimum age of 40 years, natural-born citizen, a member of the Philippine bar, at least 15 years of experience as a judge or practicing lawyer, and a person of proven competence, integrity, probity, and independence. The Judicial and Bar Council (JBC) is tasked by the Constitution to screen the applicants to the judiciary. In the case of the justices of the Supreme Court, the JBC submits to the President a short list of qualified candidates. The President is the appointing officer for members of the judiciary.
Abad, Ricardo G (1995). "Filipino Religiosity, Some International Comparisons" Philippine
Studies vol. 43, no. 2 (1995): 195–212.
Abad, Ricardo G (1995). "Religion in the Philippines" Philippine Studies vol. 49, no. 3 (2001):
Abad, Ricardo G. (2005) "Social Capital in the Philippines: Results from a National
Survey". Philippine Sociological Review. January-December 2005.
Agoncillo, Teodoro A. (1990). History of the Filipino People. Quezon City: Garotech
Ballano, Vivencio O. (2007). "Law, Piracy and American Hegemony in Intellectual Property
Rights" SPUC Review, Vol. 1, No. 1. 2007, 9-23.
Beck, Nathaniel L (2000). "Political Methodology: A Welcoming Discipline." Journal of the
American Statistical Association 95.450 (2000): 651. Academic OneFile. Web. 10 May
Bruce, Steve. (2002). God is dead: Secularization in the West. Oxford, U.K.: Blackwell.
Carr, E.H. (1970). "What is History," in The Nature of Historical Inquiry, edited by Leonard M.
Marsak. New York: Holt, Rinehart and Winston.
Cruz, Isagani A (1999). Constitutional Law, 1998 Edition. Quezon City: Phoenix Publishing,
Dahl, R. (1961), "The Behavioral Approach in Political Science: Epitaph for a Monument to a
Successful Protest," American Political Science Review, 55, 763-772.
Dannug, Roman R. & Campanilla, Marlo B. (2004). Politics, Governance and Government with
Philippine Constitution, Second Edition. Quezon City: C & E Publishing, Inc.
De la Costa, Horacio (1965). Readings in Philippine History. Manila: Bookmark.
De Leon, Hector (1997). Textbook on the New Philippine Constitution. Manila: Rex Bookstore.
De Soto,Hernando (1989). The Other Path: The Economic Answer to Terrorism. New York:
Donnelly, Jack (1999) "The Social Construction of International Human Rights" in Tim Dunne
and Nicolas J. Wheeler, eds., Human Rights in Global Politics (Cambridge:
Cambridge University Press, 1999), 71-102.
Foucault, M. (1977) Discipline and Punish: The Birth of the Prison London: Penguin Press.
Fagan, Sean (1997) Does Morality Change?. Collegeville, Minn.: Michael Glazier Books.
Fenn, Richard K. 1972 "Toward a New Sociology of Religion." Journal for the Scientific Study
of Religion1 1( March): 16-32.
Forsyhe, David P. (2006). Human Rights in International Relations, Second Edition. Cambridge:
Cambridge University Press.
Goodin, Robert E (2009). "The State of the Discipline, the Discipline of the State" in Goodin,
Robert E. (ed) The Oxford Handbook of Political Science. New York: Oxford
Goodin, Robert E. & Klingemann, Hans-Dieter (eds) (1996). A New Handbook of
Political Science. New York: Oxford University Press.
Grigsby, Ellen (1999). Analyzing Politics. Belmont, CA: West/Wadsworth.
Gow, D. J. (1985), "Quantification and Statistics in the Early Years of American Political
Science, 1880-1922," Political Methodology, 11, 1-18.
Kottak, Conrad Philip (1997) Anthropology, the Exploration of Human Diversity. New York:
the McGraw-Hill Companies, Inc.
Kurzman, Charles. (2008) "Meaning-making in social movements." Anthropological Quarterly
81.1 (2008): 5+. Expanded Academic ASAP. Web. 21 May 2010.
Lacaba, Jose F. (1995). Boss, 5 Case Studies of Local Politics in the Philippines. Manila:
Philippine Center for Investigative Journalism & Institute for Popular Democracy.
Lazarus-Black, M. and S. F. Hirsch (eds.) (1994) Contested States, Law, Hegemony, and
Resistance. New York: Routledge.
Maguigad, Rogelio and Muhi, Estrellita (2001). Brief History of the Filipino People.
Manila: V. Valencia Enterprise
Mataragnon, Rita H. (1984). "God of the Rich, God of the Poor". Philippine Studies. vol. 32, no.
1(1984) 5–26. Retrieved from http://www.philippinestudies.net.
May, Glenn Anthony (1987). A Past Recovered. Quezon City: New Day Publishers.
McCoy, Alfred W. (1994). An Anarchy of Families, State and Family in the Philippines.
Quezon City: Ateneo de Manila University Press.
Medina, Belen T.G. (2001). The Filipino Family, Second Edition. Diliman, Quezon City:
University of the Philippines Press.
Moreno, Federico B (1972) Philippine Law Dictionary, Second Edition. Quezon City:
Muelder, Niels (2000). Filipino Images of the Public. Manila: La Solidaridad Press.
Munoz, Mauro Jr. R. & Gonzales_Munoz, Delilah (2002). Philippine Governance and
Constitution. Quezon City: Katha Publishing Co., Inc.
Ocampo, Ambeth R. (2001) Meaning and History, The Rizal Lectures. Pasig City: Anvil
Piven, Frances Fox (2008). "Can Power from Below Change the World?" in American
Sociological Review, 2008. Vol. 73 (February:1-14).
Romero, Ma. Corona ( 1978). Rizal and the Development of National Consciousness.
Quezon City: JMC Press, Inc.
Roskin, Michael G. et al (2008). Political Science, an Introduction, Tenth Edition. New Jersey:
Pearson, Prentice Hall.
Schumacher, John N. (1997). The Propaganda Movement 1880-1895. Quezon City: Ateneo
de Manila University Press.
Suarez, Rolando A. (1999). Principles, Comments and Cases in Constitutional Law I. Manila:
Rex Book Store.
Tria Kerkvliet, Benedict J. (1995) "Toward a more comprehensive analysis of Philippine
politics: beyond the patron-client, factional framework." Journal of Southeast Asian
Studies 26.2 (1995): 401+. Academic OneFile. Web. 9 May 2012.
________ . (1992). Acts and Decrees of the Second Plenary Council of the
Philippines. Pasay City: Pauline Publishing House.
_________(2004). Compedium of the Social Doctrine of the Church. Makati: Word & Life
_________ (2010) "Severe rich-poor income gap a cause for concern for Aquino gov't".
Accessed August 1, 2012 from http://ibon.org/ibon_articles.php?id=92
______________ (1993). Philippine Encyclopedia of the Social Sciences. Quezon City:
Philippine Social Science Council.
Wurfel, David (1988). Filipino Politics, Development and Decay. Quezon City: Ateneo de
Manila University Press.
Weber, Max (1968) Economy and Society: An Outline of Interpretive Sociology, New York,
Bedminster Press, 1968.
Zaide, Sonia M (1996). Political Science, Second Edition. Quezon City: All-Nations Publishing
Zialcita, Fernando N. (1997) in Diokno, Serena I (ed). Democracy & Citizenship in Filipino
Political Culture, Philippine Democracy Agenda: Volume 1.
Abode—a dwelling place, a home, or residence.
Adultery—a married having a carnal knowledge or sexual intercourse with another man not her
Anarchy— refers to a society without a publicly enforced government or violently enforced
Anthropology—a branch of social science that studies primitive or preliterate societies and
Appellate jurisdiction—refers to the power of the court to review the decisions on the lower
Authority—a legitimate form of power given by the people. It also refers to the right to rule.
Bail—the security required by a court and given for the provisional or temporary release of a
person who is in the custody of the law conditioned upon his appearance before any
court as required under the conditions specified.
Band— a small kin-based group with all its members are related to each other by kinship or
Bicameral—two legislative houses in lawmaking; this refers to the Senate as the Upper House
and the House of Representatives as the Lower House in a presidential form of
Bill of Attainder—a legislative act which inflicts punishment without a judicial trial.
Canon Law— Canon is a Latin word meaning "rule." A canon is an established rule, or body of
rules, for guidance. Canon law is the body of laws governing the Catholic
Certiorari— a writ issued to annul or modify the proceedings, as the law requires, of a tribunal,
board, or officer exercising judicial functions, who has acted without or in excess
of its jurisdiction, or with grave abuse of discretion, there being no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law.
Charter—another term for constitution.
Chiefdom—a form of sociopolitical organization which is in- between the tribe and the state, is
kin-based, but it has differential access to resources (some people have wealth,
prestige, and power than others) and a permanent political structure.
Clientelism—a political phenomenon where the poor landless tenants become dependent clients
on their rich landlords who act as their patrons for their material and social needs.
In return, the poor clients provide votes and support to ensure victory of the
patrons and their candidates in the polls.
Code on Judicial Conduct— a collection of rules governing the conduct of judges while they
serve in their professional capacity.
Concubinage—a married man having a carnal knowledge or sexual intercourse with another
woman not his wife.
Constitution—the fundamental law of the land, a written instrument by which the fundamental
powers of the government are established, limited, and defined and by which
these powers are distributed among the several departments or branches for their
safe and useful exercise for the benefit of the people.
Contract— an agreement entered into voluntarily by two parties or more with the intention of
creating a legal obligation, which can either be in writing or oral. The three
essential elements are: Proposal, acceptance and consideration.
Custodial investigation— refers to any questioning initiated on a crime by the police or any law
enforcement officer after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.
E-Commerce Law— a law that governs the use of electronic commercial and non-commercial
transactions and documents (Republic Act No. 8792).
Economics—a branch of social science which studies the production, distribution and
consumption of goods in society.
Enrolled bill—a bill or proposed law which has been approved by both Houses of Congress
and ready for the President's signature.
Eminent Domain—an inherent power of the state to take and appropriate private property for
public use, whenever public exigency requires it and this can be done only
on condition of providing a reasonable compensation for it.
Familism—an extreme attachment to one's own family.
Grievances— An actual or supposed circumstance regarded as just cause for complaint.
Illustrados—Spanish word for "erudite" or "learned, or "enlightened ones". It refers to the
Filipino educated class during the Spanish colonial period in the late 19th century.
Incommunicado—a solitary imprisonment without communication from the outside world.
Jathropa—(Jatropha curcas, locally called as tuba-tuba), is a drought-resistant
perennial shrub and a genus of flowering plants in the spurge family.
Its seeds can be used for biodiesel.
Jurisprudence— the science of law; the particular science of giving a wise
interpretation to the law and making a just application of them
to all cases as they arise.
History—a branch of social science which studies the past systematically.
Human Geography—a branch of social science which studies locations and how they affect
human behavior in society.
Ideology— a set of ideas that constitute one's goals, expectations, and actions; a comprehensive
vision or as a way of looking at things.
Immunities— legal exemptions from penalties or burdens that the law generally places upon
Integrated Bar of the Philippines (IBP)— the national organization of lawyers in the
Philippines. It is the mandatory bar association for Filipino lawyers. A lawyer
cannot practice law in the Philippines without being an active member of the IBP.
Intellectual Property Code of the Philippines—a set of laws that protect and secure the
exclusive rights of scientists, inventors, artists and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the people
International Monetary Fund (IMF) — is an international organization that was created on
July 22, 1944 at the Bretton Woods Conference. It is a multilateral organization of
188 countries, working to foster global monetary cooperation, secure financial
stability, facilitate international trade, promote high employment and sustainable
economic growth, and reduce poverty.
Magisterium—the official teaching office of the Catholic Church with its authority embodied in
the episcopacy of all bishops headed by the Pope.
Mining Act of 1995— the governing law that regulates mineral resources development in the
country (Republic Act No. 7942)
Multivariate— an analysis that comprises a set of techniques dedicated to the analysis of data
sets with more than one variable.
New Civil Code of the Philippines—a compilation of private laws in the Philippines; the
general law that governs family and property relations in the Philippines. It
was enacted in 1950, and remains in force to date despite some significant
NGO—refers to Non-governmental organization. It is an association that operates independently
of government and typically created for a specific purpose. NGOs for environmental for
instance, include protection, the popular NGOs are Haribon Foundation, Friends of the
Earth International, Phil., Environmental NGO Network Ecolink Philippines, etc.
Oil Deregulation Law—known as the Downstream Oil Deregulation Act (R.A.8479), a law
passed in Philippine Congress in 1998 to liberalize and deregulate the oil
industry to boost the petroleum's competitive market and promote the influx
of more new players in the industry. Prices of petroleum products are
determined by market forces and by the oil companies and are free from
Ombudsman— a constitutional body headed by an ombudsman, responsible for investigating
and prosecuting Philippine government officials accused of corruption and
other crimes. The Ombudsman is appointed by the President with a term of 7
years and can only removed from office by impeachment.
Patrimonialism—is a political phenomenon in which the politically influenced families feel that
other members have the right to public office just because one of its family members
or close relatives are elected in public office.
Personal effects—privately owned items, such as keys, an identification card, or a wallet or
Police Power—an inherent power of the state to restrain and regulate the individual use of
liberty and property to promote public welfare
Political Science— the study of governments, public policies and political processes,
systems, and political behavior
Politics – broadly defined as the activities in which people, groups, and organizations engage in
order to control, allocate, and use resources; politics also includes the values and ideas
underlying those activities.
Poll Tax—a community or residence tax, popularly called as cedula.
POs—refers to people's organizations. They are groups of people, which may be an association,
cooperative, federation, or other legal entity, established by the community to undertake
collective action to address community concerns and needs and mutually share the
benefits from the endeavor.
Power -- refers to the ability of an actor to sway the actions of another actor or actors, even
Prision correctional—an afflictive penalty from the Revised Penal Code of the Philippines
which imposes a minimum imprisonment of 6 years and 1 day and a
maximum of 12 years for certain serious crimes.
Privacy—the right of individuals to determine when, how and to what extent information
about them is communicated to others.
Psychology—a branch of social science which studies individual behavior, the mind, mental
processes and personalities.
Quasi-judicial bodies—administrative or investigative bodies of the government which operate
like regular courts such as the Securities and Exchange Commission,
the Commission on Election (COMELEC), the Commission of Human
Rights (CHR), etc.
Quorum— refers to the number of the membership of an assembly or collective body as is
competent to transact its business.
Redress— to compensate or set a situation right.
Reform Armed Forces Movement (RAM)—a reform movement within the Armed Forces in
the Philippines in the 70,s led by Defense Minister Juan Ponce Enrile and Col.
Gringo Honasan. The members turned rebel soldiers during EDSA People Power
Residency—the place where one habitually resides and to which, when he is absent, he has the
intention of returning.
Revised Penal Code of the Philippines—a compilation of criminal laws in the Philippines
(Act No. 3185) which took effect on 1 January 1932, revised and superseded the
old Penal Code
Revised Rules of Court in the Philippines—a set of procedural rules promulgated by the
Supreme Court of the Philippines that govern all aspects in processing legal cases
Roman Curia—the administrative apparatus of the Holy See and the central governing body of
the entire Catholic Church, headed by the Pope.
Social Class—a social classification of people in society based on their amount of wealth and
property they possess.
Social Movement—a loosely organized collectivity in support of a social goal, typically either
the implementation or the prevention of a change in society's structure or
values. Women's movement, Pro-Life, or Pro-Choice Movements are
examples of social movements.
Social Status—a social classification of people based on prestige, credentials and level of
Sociology—a branch of social science that studies modern and contemporary society. It also
studies social behavior, interaction and processes.
Sovereignty—the supreme, absolute, incontrollable power by which an independent state is
Special Penal Laws—penal laws passed by Philippine Congress which are not found in the
Revised Penal Code of the Philippines such as criminal laws against
hazing, illegal drugs, money laundering, etc.
State— is a form of sociopolitical organization based on a formal government structure and
Statute—a type of law enacted or created by a lawmaking body or legislature.
Taxation—an inherent power of the state to impose burdens or charges upon persons, property
or property rights for the use and support of government in order to enable it to
discharge its appropriate functions
Tribe—a village or descent group (a permanent social unit whose members claim common
ancestry like a lineage or clan) which lacks a formal government and social classes.
Tydings-McDuffie Law— a US federal law approved on March 24, 1934 which provided for
self-government of the Philippines and for Filipino independence from the US after a
period of ten years. It is officially called the Philippines Independence Act.
Visiting Forces Agreement (VFA)— a bilateral agreement between the Philippines and the
United States which govern the behavior of visiting US troops in the Philippines.
With regard to criminal offenses, the custody of American soldiers charged and
convicted in lower courts remains under the US until the Philippine Supreme Court
decided the case with finality.
World Bank (WB) — an international financial institution that provides loans to developing
countries for capital programs.
Writ of Habeas Corpus— an order issued by a court of competent jurisdiction, directed to the
person detaining another, commanding him or her to produce the
body of the prisoner at a designated time and place, and to show
sufficient cause for holding in custody the individual so detained.