philippine constitution source: de leon hector

8/10/2019 Philippine Constitution SOURCE: de Leon Hector

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INTRODUCTION

A. STUDY OF POLITICAL SCIENCE

Meaning of Political ScienceReduced to its simplest terms, political science is the systematic study of the

state 1 and government. The word political is derived from the Greek word polis ,meaning city, or what today would be the equivalent of a sovereign state. The wordscience comes from the Latin word scire , to know.

(1) The science of politics 2, therefore, has, as its formal object, a basicknowledge and understanding of the state and of the principles and ideals whichunderlie its organization and activities.

(2) It is primarily concerned with the association of human beings into a bodypolitic, or a political community (one organized under government and law).

(3) As such, it deals with those relations among men and groups which aresubject to control by the state, with the relations of men and groups to the stateitself, and with the relations of the state to other states. 3

Scope of Political Science

Political Science is a very comprehensive field. Its curriculum is almost certain toinclude courses in political theory, public law, and public administration as well as invarious more specialized subjects. 4

(1) Political theory. The entire body of doctrine relating to the origin, form,behavior, and purposes of the state are dealt with in the study of this subject.

(2) Public law. The (a) organizations of governments, (b) the limitations upongovernment authority, (c) the powers and duties of governmental offices andofficers, and (d) the obligations of one state to another are handled in the study ofpublic law. In contradistinction to the rules of private law, which governs therelations among individuals, public law is so specialized that separate courses areoffered in each of its subdivisions constitutional law (a,b) ,administrative law (c),and international law (d).

(3) Public administration . In the study of public administration, attention isfocused upon the methods and techniques used in the actual management of stateaffairs by executive, legislative, and judicial branches of government. As the

complexity of government activities grows, the traditional distinctions among thepowers of these branches become even less clear-cut 5. Today, legislative bodieshave been forced to delegate greater discretion to executive officers responsible forthe conduct of government policies and powers. Thus, we find many administrativeagencies exercising quasi-legislative and quasi-judicial powers, i.e. , powers whichare legislative (see Art. VI, Sec. 1) and judicial (see Art. VIII, Sec. 1) in nature.

Administrative law, already referred to, also falls within the scope of any broadstudy of public administration. 6


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Interrelationship with other branches of learning.

No precise and definitive boundaries can be placed around a subject ascomprehensive as political science. It shares many points of common interest withother social disciplines.

(1) History . The bond between the political scientist and the historian isobvious in the observation that history is past politics and politics present history .The political scientist frequently adopts a historical approach and employs theknowledge of the past when he seeks to interpret present and probabledevelopments in political phenomena.

(2) Economics . Until late in the 19 th century, political science and economics(the study of the production, distribution, and conservation, and consumption ofwealth) were coupled inter the name political economy. 7 Today, these fields are

jointly concerned with the fact that economic conditions affect the organization,development, and activities of states, which in turn modify or even prescribe

economic conditions. The political scientist regularly adopts an economicapproach when seeking to interpret such matters as public financial policies andgovernment regulation of business.

(3) Geography . Geopolitics (a science concerned with the study of theinfluences of physical factors such as population pressures, sources of rawmaterials, geography, etc., upon domestic and foreign politics) indicates oneapproach which a political scientist frequently must adopt to help explain suchphenomena as the early growth of democracy in Great Britain and the United Statesand its retarded growth in certain Continental Europe, and the rise of authoritariangovernments in developing countries.

(4) Sociology and anthropology . The political scientist, the sociologist (whospecializes in the study of society as a whole), and the anthropologist (who studiesmankind in relation to physical, social, and cultural development) are all deeplyconcerned with the origins and nature of social control and governmental authority,with the abiding influences of race and culture upon society, and with the patternsof collective human behavior.

(5) Psychology . The political scientist as well as the psychologist promotesstudies of the mental and emotional processes motivating the political behavior ofindividuals and groups. One of the many topics which the political scientist handlesfrom a psychological approach is that of public opinion, pressure groups, andpropaganda.

(6) Philosophy . The concepts and doctrines of Plato, Aristotle and Locke (andother universal thinkers about the state) are important to the specialist in academicphilosophy and also to the political scientist. These concepts are the underlyingforces in the framing of constitutions and laws. The political scientist considers thebranch of philosophy called ethics , too, when he contemplates the moralbackground of proposed changes in social legislation.

(7) Statistics and logic . The political theorist must possess a broad scientificbackground and knowledge of current political problems, and he must employ


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scientific methods in gathering and evaluating data and in drawing conclusions.These involve a proper application of statistical procedures for the quantitativemeasurement of social phenomena and of logical procedures for the analysis ofreasoning. 8

(8) Jurisprudence . This branch of public law is concerned with the analysis of

existing legal systems and also with the ethical, historical, sociological, andpsychological foundations of law. 9 A comprehension of the nature of law) whetherthe natural law or the divine law) and of statues enacted by legislatures isindispensable to the political theorist. 10

Law and state are inseparable. All states proclaim laws, effective within their jurisdictions, and enforce them through a system of penalties or sanctions. Tomaintain a full understanding of the facts of political life, the political scientist has tocombine the legal with the extra-legal viewpoints. 11

Function and importance of political science.

(1) The function of political science is to discover the principles that should beadhered to in public affairs and to study the operations of government in order todemonstrate what is good, to criticize what bad or inefficient, and to suggestimprovements.

(2) Its findings and conclusions may be of immense practical use toconstitution-markers, legislators, executives, and judges who need models or normsthat can be applied to immediate situations. Again, they may be of immensepractical use to individuals who seek to understand that state in which they live.

(3) The study of political science deals also with problems of social welfare,governmental economic programs, international cooperation, and a wide range of

other matters that are urgent concern to public officials and to private citizens.12

Goal in study of political science courses.

Why should the university or college student study political science? What goodwill it do him or her, in later life? Will it help in getting a job in getting ahead?Are political science courses practical ( i.e. , vocational)?

(1) Education for citizenship . In answer, it should be made clear that theprimary objective of the political science curriculum is education for citizenship. Thepreparation of students for careers in politics, law, teaching, the civil service, andthe Foreign Service (though vitally important) is secondary to the task of equippingthem to discharge the obligations of democratic citizenship, which grows constantlyheavier in the modern world.

(2) Essential parts of liberal education . Most political science courses shouldbe viewed as essential parts of liberal education, bearing no materialistic price tagand promising no job security. Such shop- worn adjectives as practical andcultural have no relevance here. Intelligent, responsible citizenship can savedemocracy; ignorance and negligence can lose it.


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Democracy has practical advantages which no one can appraise in monetaryterms. Just how much is freedom worth? The oft-repeated but seldomcomprehended quotation,eternal vigilance is the price of liberty, requiresamendment. Study, information, and understanding of the complexities of moderngovernment and politics are necessary as eternal vigilance.

(3) Knowledge as understanding of government . Political science seeks togather and impart this knowledge and understanding. The good citizen whobehaves himself and votes regularly is no longer enough. He must know how hisgovernment really operates, what interests and forces are behind particular policies,what the results of such policies are likely to be, what his rights and obligations are,who his elected representatives are, what they stand for. 13

B. CONCEPTS OF STATE AND GOVERNMENT

Meaning of state.

A state is a community of persons more or less numerous, permanentlyoccupying a definite portion of territory, having a government of their own to whichthe great body of inhabitants render obedience, and enjoying freedom fromexternal control. 14

The Philippines is a state.

Elements of state.

The modern state has four (4) essential elements. They are:

(1) People . This refers to the inhabitants living within the state. Withoutpeople there can be no functionaries to govern and no subjects to be governed.There is no requirement as to the number of people that should compose a state.Ideally, it should be neither too small nor too large: small enough to be well-governed and large enough to be self-sufficing. 15

Reputedly the smallest state in point of population is the Vatican. Its estimated900 citizens, mainly clerics and some Swiss guards, are ruled by Pope. 16 The islandRepublic of Nauru 17 has a total population of only about 9,000. China is the largestin point of population placed at 1,314,480,000 at the end of 2006 according toChinas National Bureau of Statistics.

The Philippines is estimated to have a population of about 88,574,614 as ofAugust 1, 2007, 18 composed mostly of Malays and Chinese;

Different meanings as used in the 1987 Constitution : Inhabitants (sec. 2, Art III; sec. 1, Art. XIII); Citizens (secs. 1 & 4, Art II; sec 7, art. III); Electors (sec. 4, Art. VII)


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Citizenship vs. Nationality

Citizenship

Legal or juristic Can be changed or taken-back

Nationality

Ethnic or racial Absolute, Innate

(2) Territory . It includes not only the fixed portion of land over which the jurisdiction of the state extends (territorial domain), but also the rivers and lakestherein, a certain area of the sea which abuts upon its coasts (fluvial and maritimedomain), and the air space above the land and the waters. (Aerial domain). Thusthe domain of the state may be described as terrestrial, fluvial, maritime, and aerial.

Terrestrial = land, Fluvial = internal waters, Aerial domains = aerospace

Marine = external waters both surface and sub-aquatic

The smallest state in point of territory is Vatican, located just outside thewestern boundary of Rome with an area of only 0.17 square mile or 0.44 squarekilometer. It would fit in Rizal Park in Manila. It is the smallest independent nation inthe world. The Republic of Nauru has an area of about 8 square miles or 21 squarekilometers. The former Soviet Union 19 was the largest state in point or territory withits total land area of about 8,599,610 square miles or 22,273,674 square kilometers.Canada has an area of about 3,849,674 square miles or about 9,970,610 squarekilometers 20 which covers a surface nearly as large as Europe.

The Philippines has a total land area of about 115,813 square miles or about299,955 square kilometers;

The National TerritorySec. 1, Art. I: The national territory comprises the Philippine archipelago, with all

the islands and waters embraced therein, and all other territories over which thePhilippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial andaerial domains, including its territorial sea, the seabed, the subsoil, the insular

shelves, and other submarine areas.

(3) Government . It refers to the agency through which the will of the state isformulated, expressed and carried out. The word is sometimes used to refer to theperson or aggregate of those persons in whose hands are placed for the time being

the function of political control. This body of men is usually spoken of asadministration. The ordinary citizens of a country are a part o f the state., but arenot part of the government; and

Section 1, Art II. The Philippines is a democratic and republican State.Sovereignty resides in the people and all government authority emanates fromthem.REPUBLICAN


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It is one wherein all government authority emanates from the people and isexercised by representatives chosen by the people.

DEMOCRATIC This emphasizes that the Philippines has some aspects of direct democracy

such as initiative and referendum .

(4) Sovereignty . The term may be defined as the supreme power of the stateto command and enforce obedience to its will from people within its jurisdiction andcorollarily, to have freedom from foreign control. It has, therefore, twomanifestations:

(a) Internal or the power of the state to rule within its territory; and

(b) External or the freedom of the state to carry out its activities withoutsubjection to or control by other states. External sovereignty is often referred toas independence .

These internal and external aspects of sovereignty are not absolutely true inpractice because of the development of international relations and consequently, ofinternational law.

Origin of states.

There are several theories concerning the origin of states, among which are:

(1) Divine right theory . It holds that the state is of divine creation and theruler is ordained by God to govern the people. Reference has been made byadvocates of this theory to the laws which Moses received at Mount Sinai;

(2) Necessity or force theory . It maintains that states must have been createdthrough force, by some great warriors who imposed their will upon the weak;

(3) Paternalistic theory . It attributes the origin of states to the enlargement ofthe family which remained under the authority of the father or mother. By naturalstages, the family grew into a clan, then developed into a tribe which broadenedinto a nation, and the nation became a state; and

(4) Social contract theory . It asserts that the early states must have beenformed by deliberate and voluntary compact among the people to form a societyand organize government for their common good. This theory justifies the right ofthe people to revolt against a bad ruler.

It is not known exactly which of the above theories is the correct one. History,however, has shown that the elements of all the theories have played an importantpart in the formation and development of states.

States distinguished from nation.

Nation should not also be confused with state as they are not the same.


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(1) The state is a political concept, while nation is an ethnic concept. A nation isa group of people bound together by certain characteristics such as common socialorigin, language, customs, and traditions, and who believe that they are one anddistinct from others. The term is more strictly synonymous with people;

(2) A state is not subject to external control while nation may or may not be

independent of external control; and(3) A single state may consist of one or more nations or peoples and conversely,

a single nation may be made up of several states. The United States is a melting potof several nationalities. On the other hand, the Arab nation is divided politically intoseveral sovereign states. Among them are: Egypt, Saudi Arabia, Jordan, Syria,Lebanon, and others. The Philippines is a state composed of one nation.

(4) In common usage, however, the two terms are often used synonymously.The Constitution uses them interchangeably.

State distinguished from government.

In common speech, they are usually regarded as identical. As ordinarily, the actsof the government (within the limits of the delegation of powers) are the acts of thestate, the former is meant when the latter is mentioned, and vice versa .

The government is only the agency through which the states articulate its will.The former is the agent, the latter is the principal. A state cannot exist without agovernment, but it is possible to have a government without a state. Thus, we hadvarious governments at different periods of our history, from pre-Spanish times tothe present. There was no Philippine state during those periods when we wereunder foreign domination.

A government may change, its form may change, but the state, as long as itselements are present, remains the same.

Purpose and necessity of government.

(1) Advancement of the public welfare. Government exists and shouldcontinue to exist for the benefit of the people governed. It is necessary for (a) theprotection of society and its members, the security of persons and property, theadministration of justice, the preservation of the state from external danger,dealings of the state with foreign powers ( constituent functions ) and (b) theadvancement of the physical, economic, social, and cultural well0being of thepeople. ( ministrant functions )

(2) Consequence of absence . Government exists to do these things which bytheir very nature, it is better equipped to administer for the public welfare than anyprivate individual or group of individuals. It is obvious that without an organizedstructure of government, anarchy and disorder, and a general feeling of fear andinsecurity will prevail in society, progress and development will not be possible, andvalues taken for granted in a free modern society such as truth, freedom, justice,equality, rule of law, and human dignity can never be enjoyed.


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The need for government is so apparent that even the most primitive societies,history shows, had some form of it.

Forms of government.

The principal forms are the following:(1) As to number of persons exercising sovereign powers:

(a) Monarchy or one in which the supreme and final authority is in thehands of a single person without regard to the source of his election of thenature or duration of his tenure. Monarchies are further classified into:

1) Absolute monarchy or one in which the ruler rules by divine right;and

2) Limited monarchy or one in which the ruler rules in accordance witha constitution;

(b) Aristocracy or one in which political power is exercised by a fewprivileged class which is known as an aristocracy or oligarchy; and

(c) Democracy or one in which political power is exercised by a majority ofthe people. 21 Democratic governments are further classified into:

1) Direct or pure democracy or one in which the will of the state isformulated or expressed directly and immediately through the people in amass meeting or primary assembly rather through the medium of delegatesor representatives chosen to act for them; 22 and

2) Indirect, representative, or republican democracy or one in whichthe will of the state is formulated and expressed through the agency of a

relatively small and select body of persons chosen by the people to act astheir representatives. 23

(2) As to extent of powers exercised by the central or national government:

(a) Unitary government or one in which the control of national and localaffairs is exercised by the central or national government; and

(b) Federal government or one in which the powers of government aredivided between two sets of organs, one for national affairs and the other localaffairs, each organ being supreme within its own sphere. The United States is afederal government.

(3) As to relationship between the executive and the legislative branches of thegovernment:

(a) Parliamentary government or one in which the state confers upon thelegislature the power to terminate the tenure of office of the real executive.Under this system, the Cabinet or ministry is immediately and legallyresponsible to the legislature and immediately or politically responsible to theelectorate, while the titular or nominal executive the Chief of State occupiesa position of irresponsibility; and


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(b) Presidential government or in one in which the state makes theexecutive constitutionally independent of the legislature as regards his tenureand to a large extent as regards his policies and acts, and furnishes him withsufficient powers to prevent the legislature from trenching upon the spheremarked out by the constitution as executive independence and prerogative.

Classification of the Philippine Government

On the basis of the above classifications of government, it can be said that thePhilippine government is a representative democracy, a unitary and presidentialgovernment with separation of powers. It also embodies some aspects of puredemocracy such as, for instance, the constitutional provision on initiative andreferendum. (see Art. VI, Sec.32.)

Under our Constitution, executive power is vested in the President and theCabinet, legislative power with the Congress composed of a Senate and a House ofRepresentatives, and judicial power with the Supreme Court and the lower courts. 25

C. THE GOVERNMENT OF THE PHILIPPINES IN TRANSITION

The pre-Spanish government.

(1) Unit of government . Prior to the arrival of the Spaniards, the Philippineswas composed settlements or villages, each called barangay (consisting of more ofless 100 families), named after balangay , a Malayan word meaning boat (therebyconfirming the theory that the early Filipinos came to the Philippines in boats). 26

Every barangay was virtually a state, for it possessed four basic elements ofstatehood. At times, however, some barangays joined together as confederations

mainly, for the purpose of mutual protection against common enemies.(2) Datu . Each barangay was ruled by a chief called datu in some places, and

rajah , sultan or hadji in others. He was its chief executive, law-giver, chief judge, andmilitary head. In the performance of his duties, however, he was assisted usually bya council of elders ( maginoos ) which served as his advisers. One could be a datuchiefly by inheritance, wisdom, wealth, or physical prowess.

In form, the barangay was monarchy with the datu as the monarch.

(3) Social classes in barangay . The people of the barangay were divided intofour classes, namely: the nobility ( maharlika ), to which the datu belonged, thefreemen ( timawa ), the serfs ( aliping namamahay ), and the slaves (aliping sagigilid).

(4) Early laws . A legal system already existed in the Philippines even in pre-colonial times. The early Filipinos had both written and unwritten laws.

The written laws were promulgated by the datus. The two known written codesin the pre- Spanish era are the Maragtas Code which was said to have been w rittenabout 1250 A.D. by Datu Sumakwel of Panay, and the Kalantiaw Code, also ofPanay. The unwritten laws consisted of customs and traditions which had beenpassed down from generations to generation.


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(5) Comparison with older ancient governments . It can be said that the laws ofthe barangay were generally fair. The system of government, although defectivewas not so bad considering the conditions in other lands in the age during which itflourished. An eminent scholar has written: The Filipino people, e ven in theprehistoric times had already shown high intelligence and moral virtues; virtues andintelligence clearly manifested in their legislation, which, taking into considerationthe circumferences and the epoch in which it was framed, was clearly as wise, asprudent, and as humane, as that of the nations then at the head of civilization. 27

Government during the Spanish period.

(1) Spains title to the Philippines . It was based on the discovery 28 made byFerdinand Magellan 29 , in 1521, consummated by its conquest by Miguel Lopez deLegazpi 45 years later and long possession for almost 4 centuries, until it wasterminated in 1898, when by the Treaty of Paris, the Philippines was ceded by Spainto the United States.

(2) Spanish colonial government . From 1565 to 1821, the Philippines wasindirectly governed by the King of Spain through Mexico because of the distance ofthe Philippines from Spain. From 1821, when Mexico obtained her independencefrom Spain, to 1898, the Philippines was ruled directly from Spain. The council inSpain responsible for the administration of the Philippines was the Council of theIndie. In 1837, it was abolished and legislation for the Philippines was temporarilyperformed by the Council of Ministers. From 1863, the Ministry of Ultramar(colonies) exercised general powers of supervision over Philippine affairs.

Three times during the Spanish period (1810 1813, 1820 1823, and 1836 1837), the Philippines was given representation in the Spanish Cortes, the legislativebody of Spain. A basic principle introduced by Spain to the Philippines was the union

of the church and the state.(3) Government in the Philippines unitary . The government which Spain

established in the Philippines was centralized in structure and national in scope. Thebarangays were consolidated into towns ( pueblos ) each headed by agobernadorcillo (little governor), popularly called capitan , and the towns intoprovinces, each headed by a governor who represented the Governor General in theprovince. 30

(4)

DEVELOPMENT OF POLITICAL SCIENCE

Aristotle wrote Politics, the first systematic work on political affairs. Father of Political Science


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Niccolo Machiavelli wrote The Prince, a handbook for rulers in the art of government. Father of Modern Political Science

Prof. Francis Lieber

wrote Manual of Political Ethics; the first systematic treatise inpolitical science

philippine constitution source: de leon hector

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