The HOAX about giving Facebook a notice declaring rights over all personal data, drawings, paintings, photos, texts etc… and telling Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, etc… has again resurfaced and became viral.

The said notice that people have been sharing on their timelines cites Articles L.111, 112 and 113 of the “code of intellectual property,” but code of which country? The said provisions may be referring to the Intellectual Property Code of France (http://www.legifrance.gouv.fr/…/…/version/3/file/Code_35.pdf), so how can such a domestic French statute protect you? It also invokes UCC 1 1-308 – 308 1 – 103, which may be referring to the Uniform Commercial Code of the U.S., but said provisions of the UCC do not deal with intellectual property rights. You can check the wordings of the said provisions at www.law.cornell.edu/ucc/1. If the UCC refers to the Universal Copyright Convention, adopted in 1952, said Convention does not contain those article or provision numbers. You can check out the UCC at http://bit.ly/UNESCO_UCC.

Lastly, to scare the hell out of Mark Zuckerberg, the notice also cites the Rome Statute, which established the International Criminal Court. However, said statute only deals with the crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. Here is the full text of the Rome Statute http://www.icc-cpi.int/…/ea9aeff…/0/rome_statute_english.pdf.

I think the best way to protect the privacy and ownership of your personal data, photos, writings, etc. against Facebook is simply not to use Facebook. When one signs up for a Facebook account, you agree on its terms and conditions. In case you did not actually read them before clicking “I agree,” paragraph 2 of the Facebook Statement of Rights and Responsibilities states that: “You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.” However, paragraph 2.4 also adds that: “When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture), and as to ownership of your intellectual properties, paragraph 2.1 provides that: “For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

For the complete Facebook terms and conditions, please check outwww.facebook.com/legal/terms. If you think you may have mistakenly agreed with them, you simply have to delete your Facebook account to immediately terminate the IP License you’ve given Facebook over all the data, photos, videos, texts, and other information you have posted.

Posting the said notice, however, does nothing at all to protect your privacy rights and the ownership of the things you have posted on Facebook.

Presidential Proclamation No. 1017 was already lifted by Malacañang, yet I am still compelled to write this paper because it is capable of repetition and must still be fought on principles. In fact, the President’s strategy is obvious and this is not the first time she had done it. She would exercise functions that are not ordinarily within the powers of the Chief Executive and then would lift them before the Supreme Court could exercise its power of judicial review.

The first time was on May 1, 2001 on the day of the celebration of the Labor Day. She issued Proclamation No. 38 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion.”
Four petitions were immediately filed challenging the constitutionality of said proclamation and the general orders issued pursuant thereto. However, five days after the issuance of the said proclamation, it was lifted thus prompting the Supreme Court to take a prudential stand and dismiss the petitions on the ground of mootness. The Supreme Court had ruled that it was no longer feasible to look into the sufficiency of the factual basis of the exercise of her powers under the commander-in-chief clause, Proclamation No. 38 having been lifted. (Lacson, et al. v. Perez, et al., G.R. No. 147780, May 10, 2001)

The second one was during the Oakwood Mutiny on July 27, 2003, where she issued Proclamation No. 427 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights.”
This time around, however, the Supreme Court, smelling the President’s sinister strategy, had taken a more pro-active role pursuant to the symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985). The Supreme Court therefore ruled in SANLAKAS and Partido ng Manggagawa v. Executive Secretary, et al., G.R. No. 159085, February 3, 2004, that “to prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President’s calling out power, the mootness of the petitions notwithstanding.”
In Sanlakas, the Supreme Court held that the 1987 Constitution does not expressly prohibit the President from declaring a state of rebellion and that in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Finally, true to its mandate to probe only into the legal consequences of the declaration, the Supreme Court ruled that such a declaration was devoid of any legal significance and that it was deemed not written for all legal intents.

The wordings of Proclamation Nos. 38 and 427 are quite similar in that they simply confirm the existence of a state of rebellion and they both call out the Armed Forces pursuant to Article VII, Section 18 of the 1987 Constitution to suppress and quell the rebellion. It is notable that Proclamation No. 427 went on further to add a specific guarantee that there would be due regard to constitutional rights, even if it would just be a lip service.

Proclamation No. 1017 is therefore the third time for Gloria Macapagal-Arroyo to call out the Armed Forces pursuant to the commander-in-chief clause but this time, she used the term the term and style “state of emergency” instead of a state of rebellion.

A state of emergency takes its roots from the Roman law concept of justitium, which is equivalent to the declaration of a state of exception. It was usually declared following an emperor’s death and in cases of invasions where the sovereign claimed for himself the auctoritas (Latin word for “authority”) to augment his powers as may be necessary to the rule of law. Ironically, this is the same concept that is prevalent Fascist’s Duce and Nazi’s Führer doctrines. In Nazi theory, the Führer, when he exercises auctoritas has no use whatsoever of “written law”, as he is himself the incarnation of law.

A declaration of a state of emergency is not a mere characterization of the fact of the existence of an emergency which does not add anything to the powers of the President, as is claimed by the President’s loyal cohorts, like her new Chief Legal Counsel Eduardo Antonio Nachura, her Justice Secretary Raul Gonzalez and Chief of Staff Michael Defensor. They should know that declaring a state of emergency has a meaning in jurisprudence and history and carries with it some concrete legal implications. You don’t just declare a state of emergency in vacuo. A declaration of a state of emergency may suspend certain normal functions of government, may work to alert citizens to alter their normal behavior, may order government agencies to implement emergency measures, or worse, it may be used as a rationale to suspend civil liberties.

In other countries, however, the declaration of a state of emergency as well as the conferment of emergency powers to their respective Chief Executives is usually governed by law. Canada has passed the 1988 Emergencies Act. Egypt has the Emergency Law of 1958. France has the Emergency Law of 1955. The United Kingdom has the Civil Contingencies Act of 2004. In Hungarian Constitution, it is their Parliament that has the power to declare a state of emergency. Their common denominator is that the declaration of a state of emergency that justifies the conferment of powers not normally exercisable by their chief executives is governed by law. In the Philippines, we have no such law.

On February 24, 2006, Gloria Macapagal-Arroyo issued Proclamation No. 1017 stating in part that:

“NOW, THEREFORE, I Gloria Macapagal-Arroyo, x x x by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution x x x do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.”
Similar to Proclamation Nos. 38 and 427, Proclamation No. 1017 also invokes Section 18, Article VII of the 1987 Constitution. It also calls out the Armed Forces to prevent or suppress rebellion, and also all forms of lawless violence. The difference is that in Proclamation No. 38, we have seen on national television the angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into Malacañang – a clear case of lawless violence necessitating the use of the calling out powers of the President. In Proclamation No. 427, we have also seen on national television how some three hundred junior officers and enlisted men of the Armed Forces stormed into the Oakwood Premiere apartments in Makati City. But in Proclamation No. 1017, what we have seen on national television are only a bunch of people marching on the streets celebrating the 20th Anniversary of the 1986 People Power Revolt, a plain and peaceful exercise of freedom of speech and expression and the right of assembly. We have not seen any lawless violence, except the violent dispersals of those peaceful exercises of fundamental civil liberties.

PROCLAMATION NO. 1017 IS VOID ON ITS FACE. By calling out the Armed Forces to enforce obedience to all decrees, orders and regulations promulgated by the President personally or upon her direction, Gloria Macapagal-Arroyo had clearly arrogated unto herself the exercise of emergency powers, including the power to issue decrees which will have the force and effect of law. This reminds us of Amendment No. 6 to the 1973 Constitution which has given the former Dictator Ferdinand Marcos to issue Presidential Decrees.

Emergency powers to issue decrees which will be enforceable as laws may only be exercised by the President pursuant to an express delegation that may only be made by Congress pursuant to Section 23(2), Article VI of the 1987 Constitution which states that:

“In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”

Even Section 17, Article XII of the Constitution that is cited in Proclamation No. 1017 is a specific provision that relies on the afore-quoted Congressional powers in times of emergency. It must also be noted that Section 17 of Article XII speaks of the State, not the President as Commander-in-Chief, temporarily taking over or directing the operation of “privately-owned public utility or business affected with public interest” “when the public interest so requires,” during the emergency and under reasonable terms prescribed by it – clearly referring to the “declared national policy” and “restrictions” that may be prescribed by Congress pursuant to Section 23(2) of Article VI.

Section 17 of Article XII of the 1987 Constitution speaks of the State and not the President. It does not expressly confer any power or authority on the President. The dictum therefore of Justice Oliver Wendell Holmes in Springer v. Government of the Philippine Islands, 277 U.S. 189, May 14, 1928, should apply, that since the said section does not expressly and specifically vests power on the President or on the Judiciary, it must therefore “fall into the indiscriminate residue of matters within legislative control.”

One of the decrees issued by Gloria Macapagal-Arroyo pursuant to Proclamation No. 1017 is General Order No. 5, stating in part that:

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution x x x, and pursuant to Proclamation No.1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police, to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.

GENERAL ORDER NO. 5 IS ALSO VOID ON ITS FACE.  It calls out the Armed Forces and the police force to prevent and repress acts of terrorism and to carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. However, General Order No. 5 does not specifically define what acts of terrorism are. Note further that we have not yet passed the Anti-Terror Bill into law. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law (Connally v. General Construction Co., 269 U.S. 385, cited by our own Supreme Court Ermita-Malate Hotel and Motel Operators Assn., Inc. v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967). Worse, General Order No. 5 gives the AFP and the PNP authority to carry out the necessary and appropriate actions and measures without however defining what these measures are. It confuses, confounds and misleads because overzealous members of the AFP and the police force, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens. Definitely, to borrow the words of Justice Isagani Cruz in Ynot v. IAC, G.R. No. 74457, March 20, 1987, there is here a “roving commission, a wide and sweeping authority that is not canalized within banks that keep it from overflowing, in short, a clearly profligate and therefore invalid delegation of legislative powers.”

A law or regulation is void for vagueness and overbreadth when it fails to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” (Smith v. Goguen, 415 U.S. 566, March 25, 1974) Where a statute’s literal scope, unaided by a narrowing interpretation, is capable of reaching the guarantees of free speech, of the press, and of expression, as in the case of Proclamation No. 1017 and General Order No. 5 in whose names, the Administration attempted to silence the media and the opposition, then it must fall heavily in the temple of constitutionality.

In issuing Proclamation No. 1017 and General Order No. 5, the President also had, in effect, amended Batas Pambansa Bilang 880, entitled “AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES” B.P. Blg. 880 delegates to local government officials the regulation of only the “time, place, and manner” of the exercise of free assembly to ensure public safety and convenience without the power to prohibit rallies. Therefore, for Gloria Macapagal-Arroyo to declare a “no-rally policy” pursuant to Proclamation No. 1017 is to contravene the clear language of B.P. Blg. 880, arrogate unto herself the prerogatives and powers of Congress, and impair the autonomy of local governments which are not subject to the “control powers” of the President.

PROCLAMATION NO. 1017 HAS PLACED THE COUNTRY UNDER A DE FACTO STATE OF MARTIAL LAW. In the name of Proclamation No. 1017, certain personalities have been arrested without judicial warrants, rally permits have been cancelled, all anti-government rallies have been prohibited, the Armed Forces have raided media establishments known to be critical of the Arroyo administration without search warrant and have stationed armed personnel to guard their premises. These acts glaringly show that the country has been effectively placed under a state of undeclared martial law by virtue of Proclamation No. 1017.

The issuance of Proclamation No. 1017 is a circumvention of the constitutional requirements for the imposition of martial law or suspension of the privilege of the writ of habeas corpus. If the President formally proclaims martial law or suspends the privilege of habeas corpus, she cannot avoid congressional and judicial scrutiny into the sufficiency of the factual and legal bases of such declarations. Under Section 18 of Article VII of the 1987 Constitution, such proclamation of martial law or suspension of the privilege of the writ cannot exceed sixty days, unless extended by Congress upon the initiative of the President. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
The Constitution further requires that there must be an invasion or rebellion and public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. While Proclamation No. 1017 simply declares a state of emergency, its implementation however clearly shows that it effectively imposed martial law without following the constitutional requirements for its imposition.

PROCLAMATION NO. 1017 VIOLATES THE CONSTITUTIONAL GUARANTEES OF FREEDOMS OF SPEECH, OF THE PRESS, AND OF ASSEMBLY. Proclamation No. 1017 has been invoked by the government in revoking all rally permits and prohibiting the exercise of the individual’s right to freedom of speech, of expression, and to peaceably assembly. It was also invoked by the authorities when they raided the publication office of the Daily Tribune. The Secretary of Justice and the President’s Chief of Staff had been making statements on national television asking people and the media not to make statements or not to publish things that fuels sentiments against the administration. They accuse the media of being irresponsible in its reporting and threaten it with charges of inciting to sedition.

While it is true that our 1932 Revised Penal Code punishes a crime of Inciting to Sedition, this is however of doubtful constitutionality when applied to a person who is exercising his constitutional rights to freedom of speech, of the press, and of expression. The enjoyment of these rights cannot be punished. They are the keystone of all democratic institutions and their preservation and full enjoyment provide the best assurance against the destruction of all freedom.

An examination of the jurisprudential developments in democratic countries shows that the trend is to give the constitutional guarantee of free press the broadest scope and the widest latitude. As Justice Douglas puts it, “a function of free speech and press under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” (Terminiello v. City of Chicago, 337 U.S. 1, May 16, 1949)

The press is considered as the “Fourth Estate” of our democratic institution and to borrow the immortal words of Congressman Pedro Lopez in his sponsorship speech of R.A. 1289, which amended Art. 360 of the Revised Penal Code on libel, “the press must be unshackled in fulfilling their mission as the eyes, ears, nose, voice and conscience of our people.”

Therefore, the press, as the eyes, ears, nose, voice and conscience of the people, will always invite dispute and stir people to anger.  This will always be the role of the press as the fourth estate of our democratic institution.  Indeed, the constitutional guarantee of free press can only have its true meaning if used by a press that asks questions rather than just reports, that makes inquiries rather than just accepts things, and that criticizes rather than just conforms.

The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. (Justice Hugo Black in New York Times v. United States, 403 U.S. 713, June 30, 1971)

The raid on the offices of the Daily Tribune by police and the Director General of the Philippine National Police’s declaration that they will shut down or take over media entities not complying with standard regulations promulgated by them, purportedly Proclamation No. 1017 and General Order No. 5 are serious attack on press freedom. They are types of prior restraint anathema to press freedom in a democratic society. Thus, they come to court with a heavy presumption against their constitutional validity. (Carroll v. Princess Anne, 393 U.S. 175, 181, November 19,. 1968, Bantam Books v. Sullivan, 372 U.S. 58, 70, February 18, 1963; Freedman v. Maryland, 380 U.S. 51, 57, March 1, 1965)

Gloria Macapagal-Arroyo should remember that she rose to the Presidency in 2001 because of the people’s exercise of their freedoms of speech and of assembly to petition the government for redress of grievances. In dismissing the legal challenge to her assumption of the Presidency in 2001, the Supreme Court has held:

“In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President.” (Estrada v. Arroyo, G.R. No. 146738, March 2, 2001)

MOOTNESS OF THE ISSUE SHOULD NOT BE AN OBSTACLE TO THE SUPREME COURT IN EXERCISING ITS SYMBOLIC FUNCTION OF JUDICIAL REVIEW. Even with the lifting of Proclamation No. 1017, the Supreme Court should still take cognizance of the matter and exercise its duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the President. It should still exercise its symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985)

But more importantly, this symbolic function should be used this time to educate the person occupying the highest executive office in the land and her cohorts so that they would be reminded to accord full respect to our fundamental civil liberties.

SHE MUST BE REMINDED THAT THE SURVIVAL OF GENUINE DEMOCRACY IS MADE DEPENDENT UPON THE NON-INTERVENTION OF THE GOVERNMENT IN THE MARKETPLACE OF IDEAS. The marketplace of free ideas should be forever free. They must be reminded of the of the immortal words of Oliver Wendell Holmes, Jr. Abrams v. U.S., 250 U.S. 616, November 10, 1919 that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

SHE MUST ALSO BE REMINDED THAT A PUBLIC STREET IS A PUBLIC FORUM. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. (Hague v. Committee for Industrial Organization, 307 U.S. 496, June 5, 1939)

FINALLY, SHE MUST ALSO BE REMINDED OF THE VALUE OF FREE SPEECH, FREE PRESS AND FREE ASSEMBLY, EVEN IN THE FACE OF THREATS FOR THE OVERTHROW OF HER ADMINISTRATION. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. (Chief Justice Charles Evans Hughes in De Jonge v. Oregon, 299 U.S. 353, January 4, 1937)

The term “constitutional fundamentalism” had found its way once in the records of the Supreme Court in the landmark case of Aquino v. Enrile[1] particularly in the concurring and dissenting opinion of Justice (later Chief Justice) Enrique Fernando. The said case involved the application for habeas corpus of Benigno S. Aquino, Jr., et al. and revolved around the issue of whether or not the Court may issue the same considering that martial law had been proclaimed by the President and which is ultimately dependent upon the main issue of whether the Court may inquire into the validity of the proclamation of martial law. The pertinent portion of the said opinion mentioning “constitutional fundamentalism” provides:

“4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions, but also because that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so deeply and firmly committed. 18 The fate of the individual petitioners hangs in the balance. That is of great concern. What is at stake, however, is more than that — much more. There is a paramount public interest involved The momentous question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference. to my mind, that martial law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its distinctive characteristic. x x x.”[2]
Modern constitutionalism is usually founded upon some organic acts of a fundamental character, whether embodied in a single instrument or set of instruments like the U.S. Constitution or scattered in various sources, such as statutes of a fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles like in what is regarded as the British Constitution.[3]
This means that constitutionalism does not presuppose or require a single document or an integrated set of documents to embody the fundamental law; otherwise there would be no such thing as British Constitutionalism. As Gregory Mahler elucidates:

“When we discuss constitutional governments, then, we are really not talking about whether there exists a single, specific document; rather, we are interested in a kind of political behavior, political culture, political tradition, or political history…. The forms may vary, but the behavioral results are the same: Limits are imposed upon what governments may do.”[4]
While the British Constitution had been called an “unwritten constitution,” it is however in fact contained in various written instruments. Lord Bolingbroke described the British Constitution in this wise:
“By constitution we mean … that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”[5]
However, since most of the constitutions in the world today have been patterned after the American model of having a single document of set of documents to embody their fundamental law, this inquiry will be confined to this American concept of constitutionalism.
A distinctive character of this concept of American Constitutionalism is its adherence to principles that have been objectively embodied in positive form and in a single instrument or set of instrument. In a formal sense American Constitutionalism consisted in the stipulation of principles, institutions, and rules of government by the people or their representatives.[6]
Hence, the written document or the Constitution becomes the supreme and fundamental law of the land. It becomes the touchstone of the validity of all governmental acts and some even refer to it as “the God of all man-made laws.” Hence, to fundamentalists, the Constitution has become a sacred scripture and adherence to its text constitution worship. This is the essence of Constitutional Fundamentalism.
Constitutional Fundamentalism regards the documentary text as an instantiation, a sign or symbol, of fundamental law. It expresses in modern form the view of classical philosophy that the “endurance of ‘writings’ provides the possibility of meeting the variability of human things by preserving wisdom in however diluted a form beyond the demise of the wise founder.”[7]
The problem with Constitutional Fundamentalism, however, inherent in its strict allegiance to the Constitutional or organic text, is the difficulty in discovering the original intent, whether the latter could really be discovered and even if discovered whether it should really be adhered to, especially after some radical and fundamental changes in circumstances have taken place since its ratification or adoption.
It also gives rise to the issue of what does original intent consist in. Is it simply the embodiment of the intent of the framers, the actual drafters of the Constitutional text? Are the speeches of the individual members of a constitutional convention to be held as reflective of the general intent of the entire convention? Or, are we to take the intent of the people as the controlling intent, as the latter are the theoretical authors of the Constitutional text following republican representative traditions?
Discovering the intent of the people or their original understanding at the time they ratified the Constitutional text poses a bigger challenge. This is never manifested in written form that is empirically or positively verifiable.
Moreover, the Constitution, as a document of founding or refounding, amounts to a comprehensive picture of a people only at a given time[8] and like any living law, Isagani Cruz holds the thesis that the Constitution must move with the moving society it is supposed to govern and a law that has ceased to grow has ceased to be, and he maintains that this is true especially of the supreme and fundamental law.[9]
Isagani Cruz further observes that “the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third.” This being so, he suggests that, the Constitution must be able to adjust to the change, conforming itself to the needs of society that must be dynamic if it is to progress and endure.[10]
What could keep Constitutional Fundamentalism at bay is an active judiciary that regards the Constitution as a living document. This is best explained in the exposition of Justice Jose Vitug in his concurring opinion in the landmark case of Estrada v. Arroyo[11] where the Supreme Court was faced with the issue of the legitimacy of President Arroyo’s assumption of the Presidency:
“More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. Behind its conciseness is its inclusiveness and its aperture overridingly lie, not fragmented bur integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not to be confined to the conditions and outlook which prevail at the time of its adoption; instead, it must be given flexibility to bring it in accord with the vicissitudes of changing and advancing affairs of men.”[12]
However, this in itself must also be tempered by strict parameters lest it be brought to the extreme and the judiciary assumes a role of a continuing constitutional convention.
Constitutional principles should then be divided into “movable” and “non-movable principles”. Movable principles, like the due process clause, may move with the times and may be given a contemporary meaning. Non-movable principles, however, like the structure or form of government cannot change, except by another act of an organic character that amends or revises the same.

[1] G.R. No. L-35546, September 17, 1974
[2] Concurring and Dissenting Opinion of Justice Fernando in Aquino v. Enrile, supra.
[3] Isagani A. Cruz, Constitutional Law, 2003 Ed. (Central Lawbook Publishing), pp. 4-5
[4] Gregory Mahler, Comparative Politics: An Institutional and Cross-National Approach, Upper Saddle River, New Jersey: Prentice Hall, 2000, p. 28
[5] Cited in Constitutionalism: Ancient and Modern, by Charles H. McIlwain, Cambridge, 1958, p. 3 and in Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, Chapter 1, http://www.constitution.org/cmt/belz/lcfl.htm
[6] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective, supra
[7] Herman Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective citing Paul Stern, The Rule of Wisdom and the Rule of Law in Plato’s States man, American Political Science Review, Vol. 91 (1997), p. 271
[8] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988, p. 3
[9] Isagani A. Cruz, Philippine Political Law, 1991 Ed., Central Lawbook Publishing, p. 342
[10] Ibid.
[11] G.R. No. 146738, March 2, 2001
[12] Justice Jose Vitug, Concurring Opinion in Estrada v. Arroyo, G.R. No. 146738, March 2, 2001

In De la Llana v. Alba,[1] the Court, speaking through Chief Justice Enrique Fernando, has held that “it is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence.” The Chief Justice likewise stated that “pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate case, the Court has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled ‘An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes.’”

In the same case, Chief Justice Fernando also held that “Philippine Constitutionalism proceeds upon the theory that a strong Supreme Court with power of judicial review is necessary to fulfill the essence of constitutionalism to ensure that all branches and instrumentalities of the government would not go beyond the limits of their powers or jurisdiction nor act with grave abuse of discretion.

Again, Chief Justice Fernando in his concurring opinion in NFSW v. Ovejera[2] argues that if the decisive consideration only in deciding a case is the language of the applicable statutes, the decision of the Court can still stand the test of scrutiny based on sheer logic. That would not suffice, however, he adds and he explains that:

“Such an approach, to my mind, is quite limited. The standard that should govern is the one supplied by the Constitution. That is the clear implication of constitutionalism. Anything less would deprive it of its quality as the fundamental law. It is my submission, therefore, that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution. There is this explicit affirmation in the recently decided case of De la Llana v. Alba sustaining the validity of Batas Pambansa Blg. 129 reorganizing the judiciary: ‘The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied.’ x x x”

The principle that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution requires an ultimate authority with power to construe and interpret the Constitution.

In British Constitutionalism, this ultimate authority rests with the House of Lords, while in American Constitutionalism where Philippine Constitutionalism takes its roots, this authority rests with a separate and distinct Supreme Court.

The criticism against having a separate and distinct Supreme Court was summarized by Alexander Hamilton in Federalist No. 81, viz.:

“The arguments or rather suggestions, upon which this charge is founded are to this effect: ‘The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is unprecedented as it is dangerous. In Britain the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of several States, can at any time rectify, by law, the exceptional decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.’”[3]

Hamilton considers this criticism as made up altogether of false reasoning upon misconceived fact. He explains:

“In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than what may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard for construction of the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but the general theory of limited Constitution; and as far as it is true is equally applicable to most if not to all the State governments.”[4]

While Hamilton acknowledges that there is no direct constitutional grant of the power of judicial review to the Supreme Court of the United States, he sees, however, as a doctrine flowing from the general theory of limited Constitution, that the Constitution shall be the standard for the validity of all laws and that any law in opposition to it must vow to its mandate.

Hamilton’s dictum that “laws ought to give place to the Constitution,” that is, whenever there is an evident opposition, has been the very same basis used by Chief Justice John Marshall in Marbury v. Madison[5] when he secured for the Supreme Court of the United States the power of judicial review notwithstanding the lack of an express grant of such power in the Constitutional text. Marshall argues:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each.

“So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the essence of judicial duty.

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Constitutionalism cannot be divorced from judicial review. If the Constitution is to remain supreme, there has to be an effective mechanism by which the system itself could clean itself up of the excesses and ultra vires acts of government. In this sense, constitutionalism is dependent on the existence and the courageous exercise of the power of judicial review.

Chief Justice Fernando expounds on this concept further in his concurring and dissenting opinion in the case of Peralta v. Comelec[6]:

It is a reassuring feature of the martial law regime in the Philippines that this Court had repeatedly entertained suits challenging the validity of presidential decrees raised in appropriate legal proceedings. It is a role it had never shunned. There is thus adherence to the path of constitutionalism, both in normal times and under crisis conditions. Even during this period of emergency, parties had come to this Tribunal whenever, in their opinion, the executive act assailed was tainted by the vice of nullity. They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional framework. Courts, in the language of Chief Justice Concepcion, ‘have, not only jurisdiction to pass upon [such questions] but also the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction.’ Judicial review is thus the dominant constitutional concept to assure that the Constitution remains supreme. It is an awesome power, to be sure, but reasons of delicacy as well as the courtesy due a coordinate branch do not suffice to ward off judicial intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon it to vindicate the rights safeguarded by the Constitution.

Guarding the exalted position of the Constitution as the supreme law is the essence of constitutionalism, and judicial review stands is its best safeguard. Justice Laurel champions this concept in the landmark case of Angara v. Electoral Commission:[7]

“The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed ‘judicial supremacy’ which properly is the power of judicial review under the Constitution.”

[1] G.R. No. 57883, March 12, 1982
[2] G.R. No. L-59743, May 31, 1982
[3] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 450
[4] Ibid.
[5] 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
[6] G.R. No. L-47771, March 11, 1978
[7] 63 Phil. 139 (1936)

In Marcos v. Manglapus,[1] the Supreme Court speaking through Justice Cortes categorically opined that “the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good.”

The Social Contract Theory is nearly as old as philosophy itself. In general, it is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement between them to form society.[2] As a modern political theory, it has taken its full shape in the writings of the three main social contract theorists: Thomas Hobbes, John Locke and Jean-Jacques Rousseau. In the twentieth century, it gained revival in the works of John Rawls.

In laying down the foundation and basis for this paper, a brief summary of the different versions of the social contract theory is in order, and for this purpose, I reproduce the summaries made by the Internet Encyclopedia of Philosophy’s article on the Social Contract Theory[3] with very slight modifications, viz.:
Thomas Hobbes’ Version
According to Thomas Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests. Hobbes argues for this by imagining men in their natural state, or in other words, the State of Nature. In the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and exclusively self-interested, they are more or less equal to one another, there are limited resources, and yet there is no power able to force men to cooperate.

Given these conditions in the State of Nature, Hobbes concludes that the State of Nature would be unbearably brutal and he concludes that the State of Nature is the worst possible situation in which men can find themselves. It is the state of perpetual and unavoidable war. The situation is not, however, hopeless. Because men are reasonable, they can see their way out of such a state by recognizing the laws of nature, which show them the means by which to escape the State of Nature and create a civil society.

Being reasonable, and recognizing the rationality of this basic precept of reason, men can be expected to construct a Social Contract that will afford them a life other than that available to them in the State of Nature. This contract is constituted by two distinguishable contracts. First, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature. Second, they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract.
After these contracts are established, then society becomes possible, and people can be expected to keep their promises, cooperate with one another, and so on. The Social Contract is the most fundamental source of all that is good and that which we depend upon to live well. Our choice is either to abide by the terms of the contract, or return to the State of Nature, which Hobbes argues no reasonable person could possibly prefer.
John Locke’s Version
In contrast to Hobbes’ concept of the hypothetical State of Nature, Locke considers the State of Nature as a state of perfect and complete liberty to conduct one’s life as one best sees fit, free from the interference of others. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference, and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.
However, since in the State of Nature there is no civil power to whom men can appeal, and since the Law of Nature allows them to defend their own lives, they may then kill those who would bring force against them. Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is one of the strongest reasons that men have to abandon the State of Nature by contracting together to form civil government.
Jean-Jacques Rousseau’s Version

Rousseau for his part, begins with the most oft-quoted line “Man was born free, and he is everywhere in chains”. He argues that humans are essentially free, and were free in the State of Nature, but the “progress” of civilization has substituted subservience to others for that freedom, through dependence, economic and social inequalities, and the extent to which we judge ourselves through comparisons with others. Since a return to the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom to us, thereby reconciling who we truly and essentially are with how we live together.[4]
The most basic covenant, the social pact, is the agreement to come together and form a people, a collectivity, which by definition is more than and different from a mere aggregation of individual interests and wills. This act, where individual persons become a people is “the real foundation of society”.[5]
John Rawls’ Version
Like Hobbes, Locke, Rousseau and Kant, Rawls belongs to the social contract tradition. However, Rawls’ social contract takes a slightly different form from that of previous thinkers. Specifically, Rawls posits that a just social contract is that which we would agree upon if we did not know in advance where we ourselves would end up in the society that we are agreeing to. This condition of ignorance is known as the “Original Position”. In the original position, “no-one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like”.[6]
Rawls argues that any rational person inhabiting the original position and placing him or herself behind the veil of ignorance can discover the two principles of justice, Rawls has constructed what is perhaps the most abstract version of a social contract theory. It is highly abstract because rather than demonstrating that we would or even have signed to a contract to establish society, it instead shows us what we must be willing to accept as rational persons in order to be constrained by justice and therefore capable of living in a well ordered society. The principles of justice are more fundamental than the social contract as it has traditionally been conceived. Rather, the principles of justice constrain that contract, and set out the limits of how we can construct society in the first place.[7]
Next in this inquiry is the concept of a Constitution. A Constitution, in the modern sense of the term, may be understood in the light of the British Parliamentary tradition that had no notion that a single document could serve as a Constitution and it may, in contrast, be understood in the light of the American Constitutional tradition that has its foundation in a single codified text, which they aptly named as the Constitution of the United States of America.
Britain has taught America the core tradition of constitutionalism. The ancient Greek notion of politeia, a plan for a way of life, and the Roman concept of constitutio stand as the distant progenitors of the modern construction of the term.[8]
Donald S. Lutz in his book “The Origins of American Constitutionalism”[9] reasons that while the U.S. Constitution stands at the apex of American tradition, it remains simply another political document unless the people choose to use it in a certain way, as the summary of the political commitments and as the standard by which to assess, develop, and run the political system.[10] He regards the Constitution as a document of political founding or refounding and proceeds to discuss that the term “constitution” has to do with making or establishing something, giving it legal status, describing the mode or organization, locating sovereignty, establishing limits, and describing fundamental principles.[11]
Viewed in the light of the Social Contract Theories, the Constitution may be considered as the Social Contract itself in the sense that is the very basis of the decision to constitute a civil society or State, breathing life to its juridical existence, laying down the framework by which it is to be governed, enumerating and limiting its powers, and declaring certain fundamental rights and principles to be inviolable.
On the other hand, the Constitution, as a political document, whether embodied in a single code or scattered in numerous fundamental or organic acts, may be considered as the concrete manifestation or expression of the Social Contract or the decision to abandon the state of nature and organize and found a civil society or State.
However, one clarification is in order to avoid confusion or inaccuracy. A common denominator to all the above treatises on the Social Contract is that the social contract to form a civil society is a contract that is theoretically entered into between and among the people themselves. It does not include the State per se as a party. The social contract precedes the very existence of the State and the government. Having preceded the existence of the State and the government, the social contract could not have had the State or the Government as a party. It is therefore inaccurate or even a mistake to regard the State or the Government as a party to the social contract.
Therefore, the dictum in Marcos v. Manglapus[12] that “the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good” should not be understood as a social contract between the people and the State or the Government. If it is to be consistent to the original thoughts and conceptions of the great social contract theorists, it must be understood as a social contract between and among the people themselves whereby they have agreed to form a State and surrendered certain powers to the State for the common good.

[1] G.R. No. 88211, September 15, 1989
[2] The Social Contract Theory (Internet Encyclopedia of Philosophy)
http://www.iep.utm.edu/s/soc-cont.htm
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] John Rawls, A Theory of Justice, Wikipedia article,
http://en.wikipedia.org/wiki/A_Theory_of_Justice
[7] The Social Contract Theory (Internet Encyclopedia of Philosophy)
http://www.iep.utm.edu/s/soc-cont.htm
[8] Charles H. McIlwain, Constitutionalism: Ancient and Modern, Cambridge, England, 1958, cited in Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988, p. 9
[9] Louisiana State University Press, 1988
[10] Ibid., p. 3
[11] Ibid., p. 21
[12] G.R. No. 88211, September 15, 1989

If you are asked to avoid committing “unjust vexation” in the same way as you should avoid committing theft, murder, rape or any other crime, would you know what to avoid? Would you be in a position to know exactly what particular acts or omissions you should avoid? I guess you wouldn’t! Unlike the crimes of theft, murder and rape that are specifically defined in the Revised Penal Code, one may search for the definition of the crime of unjust vexation but it is conspicuously absent. How can you therefore expect a person to avoid something that is not even defined by our criminal statutes?

Unjust vexation is punished under the 2nd paragraph of Article 287 of the Revised Penal Code that says:

“Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both.”

Professors of Criminal Law justify this apparent lack of definition saying that unjust vexation is a catch-all crime that applies whenever the act or omission complained of does not specifically fall under any other provision of the Revised Penal Code. But we do not even allow common-law crimes, so how could we countenance the existence of having catch-all crimes in the face of the due process guaranty?catch-all crime that applies whenever the act or omission complained of does not specifically fall under any other provision of the Revised Penal Code. But we do not even allow common-law crimes, so how could we countenance the existence of having catch-all crimes in the face of the due process guaranty?

An examination of the annals of our jurisprudence would show that Art. 287, par. 2 of the Revised Penal Code has been used to punish a great variety of different acts:

• In People v. Reyes, 60 Phil. 369, August 23, 1934, Art. 287, par. 2 of the Revised Penal Code was used to punish the defendants for unjust vexation for the act of disturbing or interrupting a ceremony of a religious character;

• In Lino v. Fugoso, 77 Phil. 983, January 30, 1947, it was used to prosecute the accused of unjust vexation committed by stopping the jeep driven by the complainant in a threatening attitude and without any just cause therefor and telling him to stop driving for the City of Manila while the strike of city laborers was still going on;

• In People v. Reyes, 98 Phil. 646, March 23, 1956, it was held that the act of seizing, taking and holding possession of passenger jeep belonging to complainant, without the knowledge and consent of the latter, for the purpose of answering for the debt of the said owner, constitutes unjust vexation;

• In People v. Yanga, 100 Phil. 385, November 28, 1956, accused was convicted of unjust vexation for the act of compelling the complainant to do something against his will, by holding the latter around the neck and dragging him from the latter’s residence to the police outpost;

• In People v. Abuy, G.R. No. L-17616, May 30, 1962, the accused was prosecuted for unjust vexation for the act of embracing and taking hold of the wrist of the complainant;

• In People v. Carreon, G.R. No. L-17920, May 30, 1962, accused was convicted of unjust vexation for the act of threatening the complainant by holding and pushing his shoulder and uttering to the latter in a threatening tone the following words: “What inspection did you make to my sister in the mountain when you are not connected with the Bureau of Education?”;

• In People v. Gilo, G.R. No. L-18202, April 30, 1964, the Court held that the absence of an allegation of “lewd design” in a complaint for acts of lasciviousness converts the act into unjust vexation;

• In Andal v. People of the Philippines, G.R. No. L-29814, March 28, 1969, accused were found guilty of unjust vexation under an information charging them with the offense of offending religious feelings, by the performance of acts notoriously offensive to the feelings of the faithful;

• In People v. Maravilla, G.R. No. L-47646, September 19, 1988, a accused was convicted of unjust vexation for the act of grabbing the left breast of the complainant against her will;

• Kwan v. Court of Appeals, G.R. No. 113006, November 23, 2000, the act of abruptly cutting off the electric, water pipe and telephone lines of a business establishment causing interruption of its business operations during peak hours was held as unjust vexation.

The aforementioned cases decided by the Philippine Supreme Court readily show that Art. 287, Par. 2 of the Revised Penal Code has not been used to prosecute a well-defined or specific criminal act. Instead, it was used as a “catch-all” provision to prosecute acts which are not expressly made criminal by any other provision of the Revised Penal Code. Isn’t this anathema to criminal due process that requires notice of what specific act or omission is punished by law?

It will not burn too much brain cells to realize that Article 287, paragraph 2 of the Revised Penal Code that punishes “unjust vexation” suffers from congenital defects and should be declared unconstitutional for the following reasons:

• Article 287, paragraph 2 of the Revised Penal Code condemns no specific or definite act or omission thus failing to define any crime or felony;

• Said penal provision is so indefinite, vague and overbroad as not to enable it to be known what act is forbidden;

• Such vagueness and overbreadth result to violation of the due process clause and the right to be informed of the nature of the offense charged; and

• Such vagueness and overbreadth likewise amount to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable.

A CRIMINAL OR PENAL LEGISLATION MUST CLEARLY DEFINE OR SPECIFY THE PARTICULAR ACT OR ACTS PUNISHED.

It is a well-established doctrine that a criminal or penal legislation must clearly define or specify the particular acts or omissions punished. As early as 1916, in the case of UNITED STATES VS. LULING, 34 Phil. 725, the Supreme Court had the occasion to hold that:

“In some of the States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.” (cited in the fairly recent case of Dizon-Pamintuan v. People of the Philippines, G.R. No. 111426, July 11, 1994) (emphasis and underscoring supplied)

Two years later, this was followed by a scholarly exposition by Justice Johnson in the case of In re: R. MCCULLOCH DICK, 38 Phil. 41, April 16, 1918, where he stated that:

“In the Philippine Islands no act is a crime unless it is made so by law. The law must specify the particular act or acts constituting the crime. If that were not so, the inhabitants could not know when they would be liable to be arrested, tried and punished. Otherwise the mandatory provisions of the law, that all criminal laws shall be prescribed, would prove to be a pitfall and a snare. The inhabitants of the Philippine Islands, whether citizens, denizens or friendly aliens, have a right to know, in advance of arrest, trial and punishment, the particular acts for which they may be so tried. They cannot be arrested and tried, and then be informed for the first time that their acts have been subsequently made a crime, and be punished therefor. x x x” (emphasis and underscoring supplied)

Justice (later Chief Justice) Fernando in his concurring opinion in PEOPLE v. CABURAL, G.R. No. L-34105, February 4, 1983, also made a similar observation, stating that:

“The maxim Nullum crimen nulla poena sine lege has its roots in history. It is in accordance with both centuries of civil law and common law tradition. Moreover, it is an indispensable corollary to a regime of liberty enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there must be a clear definition of the punishable offense as well as the penalty that may be imposed – a penalty, to repeat, that can be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its stress on jurisdictio rather than guvernaculum. The judiciary as the dispenser of justice through law must be aware of the limitation on its own power.” (emphasis and underscoring supplied)

The rationale of the doctrine that a criminal or penal legislation must clearly define or specify the particular act or acts punished is ably explained by the United Stated Supreme Court in the case of LANZETTA v. STATE OF NEW JERSEY, 306 U.S. 451, where it held that:

“It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. x x x No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. x x x” (emphasis and underscoring supplied)

ARTICLE 287, PAR. 2 OF THE REVISED PENAL CODE CONDEMNS NO SPECIFIC ACT OR OMISSION! THEREFORE, IT DOES NOT DEFINE ANY CRIME OR FELONY.

Paragraph 2 of Article 287 of the Revised Penal Code does not define, much less specify, the acts constituting or deemed included in the term “unjust vexations” resulting to making the said provision a sort of a “catch-all” provision patently offensive to the due process clause.

The right to define and punish crimes is an attribute of sovereignty. Each State has the authority, under its police power, to define and punish crimes and to lay down the rules of criminal procedure. Pursuant to this power to define and punish crimes, the State may not punish an act as a crime unless it is first defined in a criminal statute so that the people will be forewarned as to what act is punishable. The people cannot be left guessing at the meaning of criminal statutes.

Article 3 of the Revised Penal Code defines FELONIES (delitos) as “acts or omissions” punishable by law. Article 287, Par. 2 of the Revised Penal Code condemns no specific act or omission! THEREFORE, IT DOES NOT DEFINE ANY CRIME OR FELONY! Instead, any and all kind of acts that are not specifically covered by any other provision of the Revised Penal Code and which may cause annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed may be punished as unjust vexation.

ART. 287, PAR. 2 OF THE REVISED PENAL CODE SUFFERS FROM A CONGENITAL DEFECT OF VAGUENESS AND MUST BE STRUCK DOWN AS UNCONSTITUTIONAL.

The term “unjust vexation” is a highly imprecise and relative term that has no common law meaning or settled definition by prior judicial or administrative precedents. Thus, for its vagueness and overbreadth, said provision violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.

This kind of challenge to the constitutionality of a penal statute on ground of vagueness and overbreadth is not entirely novel in our jurisdiction. In an en banc decision in the case of GONZALES v. COMELEC, G.R. No. L-27833, April 18, 1969, re: Constitutionality of Republic Act No. 4880, the Supreme Court ruled that the terms “election campaign” and “partisan political activity” which are punished in R.A. 4880 would have been void for their vagueness were it not for the express enumeration of the acts deemed included in the said terms. The Supreme Court held:

“The limitation on the period of “election campaign” or “partisan political activity” calls for a more intensive scrutiny. According to Republic Act No. 4880: “It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term ‘candidate’ refers to any person aspiring for or seeking an elective public office regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term ‘election campaign’ of ‘partisan political activity’ refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office . . .”

“If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. x x x”

x x x x x x x x x

“There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with “election campaign” or “partisan political activity” must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms “election campaign” or “partisan political activity.” (emphasis and underscoring supplied)

Article 287, par. 2 of the Revised Penal Code punishes “unjust vexations” and that is all there is to it! As such, applying the incontestable logic of the Supreme Court in said case of GONZALES v. COMELEC would lead us to the inescapable conclusion that said penal provision suffers from the fatal constitutional infirmity of vagueness and must be struck down as unconstitutional.

In the case of CONNALLY V. GENERAL CONSTRUCTION CO., 269 U.S. 385, cited by our own Supreme Court en banc in the case of Ermita-Malate Hotel and Motel Operators Assn., Inc. v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967), the United States Supreme Court ruled:

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (emphasis and underscoring supplied)

In fact, it is worst in the case of the 2nd Paragraph of Article 287 of the Revised Penal Code because it punishes “unjust vexations” without even defining or enumerating the acts constituting the said crime thus leaving men of common intelligence necessarily guessing at its meaning and differing as to its application in complete disregard of constitutional due process.

Our Supreme Court in the case of U.S. v. NAG TANG HO, 43 Phil. 1, held that one cannot be convicted of a violation of a law that fails to set up an ascertainable standard of guilt. Said ruling cites the landmark case of U.S. v. L. COHEN GROCERY CO., 255 U.S. 81, where the United States Supreme Court in striking down Section 4 of the Federal Food Control Act of August 10, 1917, as amended, as unconstitutional, declared that:

“The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question, that is, whether the words ‘that it is hereby made unlawful for any person willfully … to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,’ constituted a fixing by Congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion, so clearly results from their mere statement as to render elaboration on the subject wholly unnecessary. OBSERVE THAT THE SECTION FORBIDS NO SPECIFIC OR DEFINITE ACT. It confines the subject matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below in its opinion to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court x x x” (emphasis and underscoring supplied)

In COATES v. CITY OF CINCINNATI, 402 U.S. 611, the United States Supreme Court passed upon the issue of constitutionality of a Cincinnati, Ohio, ordinance that provides that:

“It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both.” Section 901-L6, Code of Ordinances of the City of Cincinnati. (emphasis and underscoring supplied)

In hammering down the constitutionality of the above-cited Cincinnati, Ohio ordinance in its landmark decision, the United States Supreme Court held that:

“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, “men of common intelligence must necessarily guess at its meaning.” Connally v. General Construction Co., 269 U.S. 385, 391

“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed. “ (emphasis and underscoring supplied)

Same thing can be said of Art. 287, par. 2 of the Revised Penal Code that punishes “unjust vexation.” As previously shown, the term “unjust vexation” is broad enough to encompass many types of acts or conduct. But while these acts of types of conduct are within the State’s police power to prohibit and punish, it cannot however constitutionally do so when its violation may entirely depend upon whether or not another is vexed or annoyed by said act or conduct and whether or not said act or conduct is unjust is the estimation of the court.

ARTICLE 287, PAR. 2 OF THE REVISED PENAL CODE IS AN INVALID DELEGATION OF THE LEGISLATIVE POWER TO DEFINE WHAT ACTS SHOULD BE HELD BE CRIMINAL AND PUNISHABLE

The failure of Art. 287, par. 2 of the Revised Penal Code to define or specify the act or omission that it punishes likewise amounts to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable. Potestas delegata non delegare potest. What has been delegated cannot be delegated. This doctrine is based on the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another (United States v. Barrias, 11 Phil. 327, 330).

Congress alone has power to define crimes. This power as an attribute of sovereignty may not be delegated to the courts. When a criminal legislation leaves the halls of Congress, it must be complete in itself in that it must clearly define and specify the acts or omissions deemed punishable; and when it reaches the courts, there must be nothing left for the latter to do, except to determine whether person or persons indicted are guilty of committing the said acts or omissions defined and made punishable by Congress. Otherwise, borrowing the immortal words of Justice Isagani Cruz in Ynot v. Intermediate Appellate Court (148 SCRA 659), the law becomes a “roving commission,” a wide and sweeping authority that is not “canalized within banks that keep it from overflowing,” in short a clearly profligate and therefore invalid delegation of legislative powers.

Art. 287, par. 2 of the Revised Penal Code fails to set an immutable and ascertainable standard of guilt, but leaves such standard to the variant and changing views and notions of different judges or courts which are called upon to enforce it. Instead of defining the specific acts or omissions punished, it leaves to the courts the power to determine what acts or types of conduct constitute “unjust vexation.” Moreover, liability under the said provision is also made dependent upon the varying degrees of sensibility and emotions of people. It depends upon whether or not another is vexed or annoyed by said act or conduct. As previously intimated, one cannot be convicted of a violation of a law that fails to set up an immutable and an ascertainable standard of guilt.

CONCLUSION

From the foregoing, it appears that the law that was intended to punish unjust vexation turns out to be an unjustly vexatious law. Art. 287, par. 2 of the Revised Penal Code that punishes “unjust vexations” is unconstitutional on its face for its fatal failure to forbid a specific or definite act or conduct. It suffers from congenital vagueness and overbreadth which are anathema to constitutional due process and the right of the accused to be informed of the nature of the offense charged.

Moreover, by leaving it to the judiciary to determine the “justness” or “unjustness” of an act or conduct that is not clearly defined or specified by law constitutes a fixing by Congress of an unascertainable standard of guilt and therefore an invalid delegation, if not an abdication, of legislative power.

As such, it is now high time that this unjustly vexatious law be declared unconstitutional and be wiped out from our statute books. Lawyers defending a client for “unjust vexation” should raise this constitutional challenge against this unjustly vexatious law and they are free to cite the arguments articulated herein.

Art. 287, par. 2 cannot be a basis of any criminal prosecution, much less conviction. An unspeakable injustice was therefore done to all those who were convicted under this unjustly vexatious law. If this law is not declared unconstitutional by our Supreme Court or is not immediately repealed by Congress, many persons would still fall prey to its snare unaware.

While the French Revolution is seen as the model of people’s revolt against oppressive government in the 18th century, the EDSA Revolution is considered as the model peaceful revolt against despotism and tyranny in the modern era. The EDSA revolution placed our country again in the map of the world; it gave us Filipinos a place in history that is worth remembering and emulating; and, it left an imprint, a powerful stimulus in the heart and soul of all freedom-loving people. Once again, it made us proud to proclaim, without fear or shame, that we are Filipinos.

Then came Eraption… and the entire nation came out laughing. It’s harmless… It’s only a joke! But now Eraption is no longer funny! It’s a horrendous nightmare! The simultaneous eruption of all of our country’s volcanoes would pale in comparison. It made us the laughing stock of the world! He is the Millennium Bug and he must be deleted, expelled, removed, impeached before it’s too late and while there is still some iota of dignity in being a Filipino. We owe it to the world and to posterity to cure the Philippines from this dreadful virus.

Last Friday, it was the virus let loose once again. The scene – the FOCAP Annual Luncheon Meeting with the President which was televised live. FOCAP stands for “Foreign Correspondents Association of the Philippines.” Dramatis personae – no less than the Millennium Bug himself and a troop of foreign correspondents. It was the first time the President had been interrogated, interpellated and cross-examined about the Juetenggate Scandal.

Act I: Correspondent: “Mr. President, since you already knew during your mahjong sessions that Gov. Singson is connected with jueteng operations, why did you not prosecute him?” Erap: “That’s not my job! That’s the job of the police!”

Act II: Correspondent: “Mr. President, do you consider resigning?” Erap: “That is against the Constitution.”

Act III: Correspondent: “Mr. President, can you tell us how much have you won in your mahjong games with Gov. Singson, et al.?” Erap: “I leave it to you to guess.”

While watching the President answer questions from the media, I felt great shame for being a Filipino. Was this the guy whom the Filipino people had voted in ‘98. Was this the guy, who promised to free the poor from the chain of life’s miseries?

The boat is sinking indeed and it is pulling us down. And worse, it is not only the boat of the Erap administration that is sinking but the entire nation! At least, we know what makes the boat heavy, what is making it sink – it is the Millennium bug itself. Of course, as in all cases of shipwreck, before thinking of abandoning the ship, the first remedy is to cast off overboard the useless and heavy loads. As such, let’s jettison the President!! Anyway, as texters say, he is only half-Filipino because the other half is alcohol!

When we convened the NO-ERAP (Negros Occidental – Expel Remove Actor-President) Movement several weeks back, most people were pessimistic about the chances of an impeachment move against our actor President. They were saying that the same was hopeless, as it would not even pass the first base, which is the House of Representatives. Of course, such pessimism was not without any basis because our history books show that all previous attempts to impeach the President –Elpidio Quirino in 1949, Diosdado Macapagal in 1963, and Ferdinand Marcos in 1985– had failed to muster the required number of votes even just to place the President on trial in the Senate. Such pessimism was further reinforced by the fact that only a little over 40 Representatives signed the Complaint for Impeachment at the time of its filing in the House of Representatives which was way below the required one-third of all the members of the House.

Then came storm after storm… Yolanda Ricaforte gave testimony that collaborated that of Singson in many of its material points, the peso kept on falling, all economic indicators signaled the downfall of the economy, more and more people trooped in the streets calling for Erap’s ouster, and recently we witnessed the so-called LAMP Exodus. Now, what seemed to be hopeless a couple of weeks ago is almost within grasp. But this is no time for jubilation or passivity! The war is far from over albeit now in its next level – the Senate Trial!

Our Constitution provides that the President may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. It also provides that no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. Ultimately therefore, it will be a numbers game! The President can be removed from office upon the concurrence of 2/3 of all the members of the Senate.

But should the President be proven guilty beyond reasonable doubt in order to be convicted and removed from office? In this question, I would say no because an impeachment case is not a criminal proceeding. It does not result in the imposition of criminal punishment like imprisonment or fine. Its purpose is not punishment but the removal of an unfit President. Impeachment is an inquest into the conduct of public men. As such, to be convicted, guilt beyond peradventure of doubt is not necessary!

In fact, it can be said that as long as a prima facie case is made against the President, he has the burden of proving his innocence, failure in which he shall be convicted. Any doubt must be resolved strictly against the President! If there is some reasonable basis in the charges against the President but the same cannot be proved beyond reasonable doubt, does it make sense that he remains in office just because of some reasonable doubt? Acquittal on reasonable doubt is predicated on the classic principle that it is better to free a thousand criminals than to punish one innocent person. But when at stake is the salvation of a country from a President in whom the people have already lost confidence, acquittal on reasonable doubt in the impeachment case appears too rigid.

Ultimately, as I have previously intimated, it will be a numbers game, like the jueteng which started it all. Two-thirds of all the members of the Senate is the people’s lucky number. However, unlike jueteng which is left to chance, the people should not leave anything to chance if they want to strike a jackpot in the impeachment case. People should get involved and should closely follow every step and every movement in the impending impeachment trial.
Lastly, to our Senators, do not forget that you are acting as representatives of the people. When you vote in the impeachment trial, do not forget that it is not your personal decision that must prevail, but that of the people you are representing. Through you, the highest official of the land can be removed and through you the will of the people can be affirmed.

The ability to remove from office our highest official reflects the depth of our commitment to a government of laws, not men.

When 48 people sat down in 1986 to formulate our Fundamental Law, one of their primary goals was to institute a system of government that would prevent the rise of another Marcos. They took pains not to give the President too much power. They adopted measures to prevent him from becoming too powerful. The result was the weakening of the specific powers which were abused by dictator Marcos. The Commander-in-Chief powers that include the power to declare a state of martial law and to suspend the privilege of the writ of habeas corpus have been considerably reduced and put under the check of the other great branches.

However, they realized that all of the measures to keep the President within the constitutional bounds of his powers might not be enough. The framers felt that a constitutional mechanism for the peaceful removal of an oppressive or unfit President must be put in place. As such, we have this process called impeachment.

Impeachment is the process by which charges are brought against high government officials, which can result in their removal. It has been described as an inquiry into the conduct of public men. The word “impeach” is derived from the Middle English word “empechen,” meaning to impede or accuse, and the Latin “impedicare” which means to entangle or put in fetters.

Our Constitution provides that the President may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Therefore, to remove the President, there are two processes involved, he must be impeached and then convicted of the grounds aforementioned.

Impeachment is done by the House of Representatives upon the support of at least one-third of all its members, though this means only that the House brings the charges or indicts the President. It does not conduct the trial or vote to determine whether the President will be removed from office. Thus, we say that Pres. Clinton has been impeached although not removed from office because he was acquitted on both Articles of Impeachment against him. The same is true of Richard Nixon who was also impeached but who opted to resign instead of being convicted in the Senate. In the Philippines, however, no President has ever been impeached though there had been previous attempts against three: Elpidio Quirino in 1949, Diosdado Macapagal in 1963, and Ferdinand Marcos in 1985. All three attempts failed to muster the required number of votes to place the President on trial in the Senate.

Our Constitutional gives the Senate the sole power to try and decide all cases of impeachment and when the President is the one on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. Incidentally, the Senate votes separately on each charge or alleged ground for impeachment. If there is two-thirds vote to convict on any ground, the President is convicted and removed from office, even if he is acquitted of all other charges.

Impeachment is an expression and means of protecting our hard-earned and ever-precious liberty. It reminds the President of the elementary principle that a public office is a public trust; that the Presidency is not a license to commit wrongdoing; that the fixed term of six years does not give him security of tenure; and that he can be brought to heel if he abuses the trust the people place in him.

The removal of a President through the impeachment process will surely be a national tragedy and a national crisis, but nevertheless, it will be a display of democracy at its best. A president will be lost but a quintessential principle will be affirmed, that is “No man is above the law.” And the beauty in this is that this principle will be affirmed without bloodshed.