The Constitution and its Legitimacy

The Constitution is said to be the supreme law of the land. It is considered as the “god of all man-made laws”.[1] This is the Doctrine of Constitutional Supremacy. Isagani A. Cruz captures the essence of this great doctrine in this wise:

“The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of the law by the pretenders to illegitimate power.”[2]

The Constitution is the basis of the validity of all laws and governmental acts. It is the basis of the legitimacy of the very existence of government. It is the basis of the legitimacy of the exercise by government of powers that interfere with personal autonomy and liberty. It is the anchorage of all legitimacy.

The Constitution does not become legitimate just because it is a constitution and while it cannot be unconstitutional, it can however be illegitimate. Constitutionality therefore is one thing and legitimacy is another. Constitutionality is an attribute of governmental acts and laws that do not contravene the Constitution; legitimacy is an attribute of governmental acts and laws, including the Constitution, that makes them at the least, juridically right, acceptable, and necessary.

As the anchorage of all legitimacy, the Constitution must itself be legitimate. Its legitimacy cannot rests on mere conjectures or shaky theories. It cannot simply be assumed. It must rest on solid ground if it is to the basis of the legitimacy of all governmental acts and laws that depend on it for their own legitimacy.

What does legitimacy of the Constitution consist in? Is it in the positive consent of the majority of the people who ordained it as expressed in the process of its ratification? Is it the mere acquiescence of the people it seeks to govern?

In the landmark case of Javellana v. Executive Secretary[3] where the legitimacy of the 1973 Philippine Constitution was put in question, five questions were agreed upon as reflecting the basic issues involved, to wit:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The second, third and fifth questions are important to our present inquiry because they give us an insight on how the Philippine Supreme Court understands and regards the legitimacy of the Constitution.

The second question deals with the validity of the ratification of the Constitution. It is simply a question of whether the applicable procedure for ratification was followed. Chief Justice Teehankee expresses the view that “the act of ratification is the act of voting by the people,” [4] that is, on whether or not they approve a proposed constitution.

Ratification is important in the life of a constitution because it is usually the reckoning point of its effectivity. Most modern constitutions contain a provision that says that they take effect upon their ratification. The procedure for ratification may differ from country to country. In the case of the U.S. Constitution, it provides that “the Ratification of the Convention of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the Same.”[5] In other countries, however, including the Philippines, ratification is usually done by the direct popular vote.

With respect to the 1973 Constitution, there are two ways of looking at its ratification: First, if the 1973 Constitution is to be regarded as a distinctly new Constitution, not a mere amendment to the 1935 Philippine Constitution, then it must be ratified upon its own terms, that is, based upon its own provision for ratification found in Section 16 of its Article XVII that says: “This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose x x x.” Second, if the 1973 Constitution is to be regarded as an amendment to the 1935 Constitution, then the procedure for ratification of amendments found in Article XV, Section 1 of the 1935 Constitution should be complied with. The said article provides that “amendments shall be valid as part of this Constitution (1935) when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.”

The Javellana Court regarded the question of validity of the ratification as dealing with whether or not the 1973 Constitution was validly ratified in accordance with Article XV, Section 1 of the 1935 Constitution. Six (6) members of the Court[6] held that the 1973 Constitution was not validly ratified; three (3) members[7] held that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification; and the last member, Justice Barredo, cast a qualified vote, explaining that:

“x x x I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”

While the majority had voted that there has been no valid ratification, the third question probes into the issue of whether or not the 1973 Constitution was acquiesced in (with or without valid ratification) by the people. In the view of the Javellana Court, the acquiescence by the people can be a sufficient basis of the effectivity of the Constitution. Acquiescence can substitute for the requirement of valid ratification.

On this third question of acquiescence by the people, no majority vote has been reached by the Court. Four of its members[8] held that the people have already accepted the 1973 Constitution; two members[9] held that there can be no free expression, and there has been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the 1973 Constitution; and the other three members[10] expressed lack of knowledge and/or competence to rule on the question.

With a majority saying on the second question that there was no valid ratification, and there being no majority vote reached on the third question with regard to the acquiescence by the people, the 1973 Constitution apparently had no basis for its effectivity. Surprisingly, however, the Javellana Court proceeded to a fifth question on whether the 1973 Constitution was already in force. Surprising, because this fifth question cannot in substance be separated from the second and third questions. Theoretically, the issue of whether the Constitution should be considered to be “in force” or not should just be an outcome of either the validity of its ratification or the acquiescence by the people. If it is neither validly ratified nor acquiesced in by the people, then it cannot be “in force.”

On the fifth question of whether the new Constitution of 1973 is in force, four members of the Court[11] held that it is in force by virtue of the people’s acceptance thereof; another four members[12] cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and two members[13] voted that the 1973 Constitution is not in force, with the result that there were not enough votes to declare that the 1973 Constitution was not in force.[14]

Hence, the 1973 Constitution took effect not by virtue of a valid ratification or by the acceptance of, or acquiescence by, the people, but by the sheer technicality of failure to muster the required two-thirds vote to strike it down and declare it as not in force. Therefore, one would search for the legitimacy of the 1973 Constitution and would find it empty.

Fortunately for the 1987 Philippine Constitution, there is no question as to the validity of its ratification; hence, there is no need to discuss the Filipino People’s acceptance or acquiescence independently of the validity of its ratification.

Now, back to the main inquiry on the legitimacy of the Constitution, is the validity of the ratification sufficient to endow the Constitution with legitimacy? What about people’s acquiescence independently of the validity of its ratification? Is the vote of a bare majority in a plebiscite sufficient to bring legitimacy to the Constitution and make it binding on the whole citizenry? If so, and being a document of founding or refounding of a polity, how can the Constitution be legitimately binding on the minority who have not given their positive consent to its mandate? Does the legitimacy of the Constitution depends merely on the empirically discoverable consent of the governed or is there something more to it like the need for the intrinsic validity of the principles and rules that it embodies?

Richard H. Fallon, Jr. in his article “Legitimacy and the Constitution”[15] argues that the term legitimacy invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy – legal, sociological, and moral. He writes:

“When legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms. As measured by sociological criteria, the Constitution or a claim of legal authority is legitimate insofar as it is accepted (as a matter of fact) as deserving of respect or obedience – or, in a weaker usage that I shall explain below, insofar as it is otherwise acquiesced in. A final set of criteria is moral. Pursuant to a moral concept, legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”[16]

Modern constitution-making is seen by the Federalists as a matter of “reflection and choice.” Alexander Hamilton writes in Federalist No. 1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are capable or not of establishing good government by reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”[17]

Federalism scholar Daniel J. Elazar considers constitutional choice as an art and to bring the constituency to endow the constitution with legitimacy is even a greater art because legitimacy is a commitment that cannot be coerced. He explains:

“Constitutional legitimacy involves consent. It is not a commitment which can be coerced – however much people can be coerced into obedience to a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. The very fact that, while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent, is another demonstration that constitution-making is the preeminent political act.”[18]

The U.S. Constitution provides that “the ratification of the Convention of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”[19] The 1987 Philippine Constitution in turn provides that “this Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitution.”[20]

In modern consitutions, this act of ratification as a way of expressing the “consent of the governed” is regarded as the core of the Constitution’s legitimacy. This consensus that is manifested during ratification gives life and meaning to the phrase “We, the People” that usually begins preambles of modern constitutions. “We, the People” operates to endow the Constitution with legitimacy by announcing from the very start that the Constitution is the handywork of the people, that they are the author, and they are the ones that have breathed life into that foundational document.

[1] Angel Aguirre, Jr. & Ramsey Domingo Pichay, Postulates in Constitutional Law, Revised Edition 1992, Lex Scripta Suprema Publishers, Inc., p. 3
[2] Isagani A. Cruz, Philippine Political Law, Central Lawbook Publishing, Co., Inc. 1991 Ed., p. 11
[3] G.R. No. L-36142, March 31, 1973
[4] Chief Justice Teehankee, Concurring Opinion in De Leon v. Esguerra, G.R. No. 78059, August 31, 1987
[5] Article VII, Constitution of the United States of America
[6] Chief Justice Concepcion and Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
[7] Justices Makasiar, Antonio, and Esguerra
[8] Justices Barredo, Makasiar, Antonio, and Esguerra
[9] Chief Justice Concepcion and Justice Zaldivar
[10] Justices Makalintal, Castro, and Teehankee
[11] Justices Barredo, Makasiar, Antonio, and Esguerra
[12] Justices Makalintal, Castro, Fernando, and Teehankee
[13] Chief Justice Concepcion and Justice Zaldivar
[14] Article VIII, Section 10 of the 1935 Constitution provides that “no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court.”
[15] Richard H. Fallon Jr., Legitimacy and the Constitution, Harvard Law Review, Volume 118 Number 6, April 2005, p. 1787
[16] Ibid., at pp. 1790-1791
[17] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 1
[18] Daniel J. Elazar, Constitution-Making: The Pre-eminently Political Act, Constitutionalism: The Israeli and American Experiences – Chapter 1, http://www.jcpa.org/dje/articles3/constisramer.htm
[19] Article VII, U.S. Constitution
[20] Article XVIII, Section 27, 1987 Philippine Constitution

Constitutional Fundamentalism

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

Constitutionalism and Judicial Review

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)

The Constitution as a Social Contract

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

An Unjustly Vexatious Law

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?

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 STRICKEN 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 stricken 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.

Jettison ERAP!

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!

Impeachment and Reasonable Doubt

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.

Impeachment: Democracy at its Best


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.

Federalism as the Key to Peace

In their desire to find the ultimate solution to the Mindanao problem, some policy makers have accidentally chanced upon the idea of federalism. Senators Pimentel, Osmeña, Tatad and Santiago are saying that the “adoption of the federal form of government may be the ultimate solution to the centuries-old Bangsamoro uprising in Mindanao.” As Senator Pimentel said “Federalism would respond positively to their demands, prevent the dismemberment and keep the republic intact, and establish just and lasting peace in Mindanao.”

The Mindanao problem did not come by mere chance or by accident; and to say that the problem is only about a group of bandits or terrorists or that it is a mere hostage drama are big understatements. The Bangsamoro struggle has been with us for the last 4 centuries, and it drives to me to think that our political system has something to do with it.

Total war would not solve the problem because in war there are no victors. It is like the improper administration of antibiotics, which would only lead to the mutation of the virus and the development of new strains. First, we had the MNLF, then the MILF, now the ASG and there would be no end to it.

Now is the time for us to reexamine the ties that bind us as a nation. Is it a tie founded on genuine equality for all its component elements or just a sheer demographic arrangement supposedly based on some historical accidents? Why do many people in Muslim Mindanao feel neglected by the so-called imperialist Manila? There would be no end to the Bangsa Moro uprising until our Muslim brothers feel that they are being treated as equals and until they are ridded off of this feeling of being neglected. Under the federal set-up, our Muslim brothers would no longer have the reason to ask whether or not they are being neglected by Manila because all that will be left to ask is one and only one question, true of every federal component and that is “Are we neglecting ourselves?”

Federalism will give local communities the ability and power to chart their own destinies, to realize their own aspirations, and to determine their own laws, according to their own unique culture and traditions. Federalism will promote political and economic dynamism of the regions or the different nations that make up the Philippine Republic. It will bring power back to where it really belongs – the people.

It is only through federalism where we will realize the true concept of autonomy characterized by decentralization both of power and administration, unlike in our present structure where there is only decentralization of administration and not of power with the result that our cities and provinces become the mere administrative agents of our country’s capital.

Let us throw away the myth that only through a centralized, unitary government, with concentration of powers in a single center, could the republic be maintained. Coerced or forced unity, instead of keeping the nation intact, will divide it in the long run. Experience of other countries as well as ours would bear me out if I say that the unitary system is not appropriate for a heterogeneous country like ours. After all, whether the Manila admits it or not, we are still a country of many nations, many cultures, many languages, and many religions. Shall we therefore allow our provinces or regions to be the mere peripheries of the center? Shall we continue to allow our cities to be miserably dependent on Manila, or as others put it, “mere colonies of Manila”?

In 1986, 48 persons from different sectors and persuasions convened to draft a Constitution that would prevent the rise of another dictator or the concentration of power or authority in one man. Today, I believe the time has come to elevate that Constitution further to greater heights so that it will not only prevent the concentration of power in one man but will also put a stop to the centralization of power or authority in only one city or province.

It is not differences that break up nations. It is not differences that divide republics. It is not differences that lead people to war. But it is indifference, intolerance, and failure to accommodate and understand differences. Federalism with its characteristic tolerance and accommodation for cultural, lingual, and religious diversity will ultimately be the key to peace not just to Muslim Mindanao but also and more importantly to the entire republic.