THE BACKGROUND OF THE PRESENT CONSTITUTION

Historical Background of the 1987 Constitution

The history of the 1987 Constitution began on 11 April 1899, the date when the Treaty of Paris
between the United and Spain of 10 December 1898 became effective upon the exchange of instruments
of ratification of both countries. But the sources of the 1987 Constitution are (i) McKinley's Instructions
to the Second Philippine Commission; (ii) Spooner Amendment; (iii) Philippine Bill of 1902; (iv) Jones
Law of 1916, otherwise known as the Philippine Autonomy Act; (v) 1935 Constitution; (vi) 1973 Constitution and (vi) Freedom Constitution of 1986 and its implementing orders.
Treaty of Paris
Under the Treaty of Paris, the Philippines was ceded by Spain to the United States. Spain
relinquished its sovereignty over the Philippine Islands, and with this, all laws of a political nature were
automatically abrogated.
The Treaty provided that the civil and political status of all inhabitants of the islands was to be
determined by the US Congress.
The Philippines in turn, was not given the status of an "incorporated territory" (as to make it a
candidate for statehood) and so ex proprio vigore, the US Constitution did not apply to the Philippines
unless the US Congress expressly enacted its provisions.
McKinley's Instructions
President McKinley, legislating as Commander-in-Chief, issued on 7 April 1900 his "Letter of
Instruction to the Second Philippine Commission " under Taft.
It set up a "divided civil and military government" with the existing Military governor as the
Executive, and a Philippine Commission, created on 1 September 1900, as the Legislative, both
representing the US President as Commander-in-Chief.
It also extended to the Philippines all the rights in the Bill of Rights of the US Federal
Constitution, except the right to bear arms (because the country was in rebellion) and the right to a trial by
jury (because the Americans distrusted the Filipinos capacity to be a just judge of his peers). The right to
jury trial of an American charged with a crime in the Philippines was denied by the courts in US v Dorr,
2 Phil 332 (1903) by virtue of the Letter of Instruction.
This was the first Organic Act (a law which establishes the structure and limitations of the
government) of the Philippines. What it lacked, as a constitution, were the ratification by the people, and
the right of amendment (which was reserved solely to the US President).
The judiciary was subsequently established on 11 June 1901, with a Supreme Court, Courts of
First Instance, and Justice of Peace Courts.
Spooner Amendment
On 4 July 1901, the Spooner Amendment, which was actually a rider to the "Army and Navy
Appropriations Act," changed the then "divided, military and civil government" into a fully civil
government, under the US Congress. All acts of the Philippine Commission would now begin: "Be it
enacted by the authority of the US government," and no longer by authority of the US President.

Philippine Bill of 1902

The US Congress now in control of the Philippines, ratified all the organic acts of the President,
in order to prevent disruption of government, and on 1 July 1900, passed the Philippine Bill of 1902,
which was to be organic act of the Philippines from 1902 to 1906. The organic act introduced significant
provisions to constitutional history.
The Philippine Commission was the upper house. It was under the Governor-General who
retained all the executive power, including the power to suspend the writ of habeas corpus upon
recommendation of the Philippine Commission.
It established an elective lower house called the Philippine Assembly, composed entirely of
Filipinos. It called for the first election in the Philippines to fill up, the membership in the lower house, as
soon as the Philippine insurrection stopped and there was a condition of general peace, except in the Moro
and Non-Christian provinces.
A census was taken and completed on 28 March 1903 and with a certification of peace and of
Filipino acceptance of the US government made by the Philippine Commission on 29 March 1907, the
election for the Philippine Assembly was conducted on 10 July 1907, with Osmena as speaker.
The Bill also defined for the first time who the citizens of the Philippines were. They were all
the inhabitants of the Philippine islands who were subjects of Spain as of 11 April 1899, who continued
to reside therein, and all the children born subsequent thereto. This definition is still good law today.
Jones Law
On 29 August 1916, the US Congress passed the Jones Law, otherwise known as the Philippine
Autonomy Act.
It established a tripartite government with real separation of powers; this was the prototype of our
present set-up. The executive power was in the hands of an American Governor-General, who was
independent of the Legislature, and who was given the power to suspend the writ of habeas corpus and
impose martial law without the recommendation of the Legislature. The Legislature was composed of the
Senate and the House of Representatives, all composed of Filipinos. The judiciary continued to be made
up of the Supreme Court, the CFIs and Justice of Peace Courts.
Under this set-up, while the Filipinos has all the legislative power, the Americans had all the
executive power and thus, also the control of the government. Thus, in the Board of Control (National
Coal Corporation) cases, the US Supreme Court ruled, despite the dissent of Holmes and Brandeis, that
the President of the Senate and the Speaker of the House could not vote the stocks of the NCC and elect
its directors because this was a political function. Only the Governor-General could vote the government
shares, said the court.
The definition of who were citizens of the Philippines first enunciated in the Philippine Bill of
1902, was carried over by the Jones Law.
Tydings-McDuffie Law
Although this was not an organic act, it is important in the constitutional history of the
Philippines because it was to be the enabling statute, providing the mechanism whereby the constitution

of an independent Philippines could be adopted. The law, upon its acceptance by the Senate and House of
Representatives of the Philippines, provided for (i) the calling of a Constitutional Convention to draft a
Constitution for the Philippines, (ii) the adoption of a Constitution that established a republican government, with a Bill of Rights, and a separation of church and state, (iii) the submission of the draft to the US
President for certification that the Constitution was in conformity with the conditions set by the TydingsMcDuffie Law, and (iv) its ratification by the people in a plebiscite. Complete independence was to take
place ten (10) years after its effectivity.

1935 Constitution
Accordingly, on 30 July 1934, an election was held to choose the delegates to the Constitutional
Convention. Claro M. Recto was elected President of the Convention. On 8 February 1935, the Concon
approved the draft. On 23 March 1935, the draft was certified by the President, Franklin Delano
Roosevelt as conforming to the Tydings-McDuffie Law. On 14 May 1935, it was ratified by the people
in a plebiscite, with the provisions on the qualifications of the President, Vice-President and members of
Congress taking effect upon ratification. In September 1935, the first election under the 1935
Constitution was conducted with Manuel Luis Quezon as President and Sergio Osmena as VicePresident.
On 15 November 1935, upon the inauguration of the Commonwealth, the 1935 Constitution took
effect. This Constitution was to serve as the charter of the Commonwealth, and upon withdrawal of US
sovereignty, of the Republic.
The Constitution provides for a tripartite government, with the executive lodged in the President
who had a six-year term, the legislative in a unicameral National Assembly, and the judiciary in a
Supreme Court, CFIs and Justice of Peace Courts as before.
In 1940, it was amended to provide for (a) a bicameral Congress with a Senate and a House of
Representatives; (b) a term of four years for the President, but with re-election and (c) the establishment
of an independent constitutional body known as the Commission on Elections.
War ensued, and the Philippines was so devastated that the declaration of its independence, due
15 November 1945 had to be postponed. At any rate, on 23 April 1946, the election of the first officials
of the Philippine Republic was held, and on 4 July 1946, the Republic was inaugurated and the
Philippines became "politically" independent of the US.
Theoretically, to an extent that sovereignty is never granted to a people but is earned by them as
they assert their political will, then it is a misnomer to say that 4 July 1946 was the day US granted
independence to the Philippines. More appropriately, it was the day when the US withdrew its
sovereignty over the Philippines, thus giving the Filipino people an occasion to assert their own
independence.
But not "economically". On 30 April 1946, one week after the election, the US Congress passed
the Bell Trade Act which would grant Philippine prime exports entry to the US free of customs duties
from 1946 to 1954, and a gradual increase in duties from 1954 to 1974 (Laurel-Langley agreement),
provided that the Philippines would grant US citizens and corporations the same privileges, and in
addition, the right to explore natural resources of the Philippines in parity with the Filipinos, and to
operate public utilities. This must be accepted by Congress, embodied in an Executive Agreement, and
reflected as an amendment in the Constitution.

The Senate approval of this bill gave rise to the case of Vera v Avelino, 77 Phil 192 (1946). The
Senate then had 11 Nacionalistas and 13 Liberals. Three Nacionalista Senators-elect (Vera, Diokno and
Romero), known to be against the Bell Trade Act, were prevented by the rest of the Senate, in what is
known as "exclusion proceedings," on grounds that their elections were marred with fraud. The political
motivation was clear but the SC was conned into lifting the injunction it issued for the withholding of the
suspension, because of the unfulfilled promise that the Senate would not carry out the suspension. With
the balance of power offset, the Bell Trade Act was passed. Subsequently, the SC had to dismiss the
petition on the ground that the principle of separation of powers, it could not order a co-equal branch to
reinstate a member.
The Senate authorized President Roxas to enter into an Executive Agreement, which he did on 3
July 1946, the eve of the declaration of Philippine Independence.
Then came the amendment of the Constitution in order to include the Parity Rights Agreement,
which gave rise to the case of Mabanag v Lopez Vito, 78 Phil 1 (1947). Under the Amendatory
Provisions of the 1935 Constitution, Congress, acting as constituent body, needed 3/4 vote to propose an
amendment to the Constitution. But with the three Senators still suspended, only the 21 remaining were
used as the basis for computing the 3/4 requirement. When this was raised in court, it begged off from
ruling on the ground that it was a political question. It also used the Enrolled Bill Theory.
So with the amendment proposed, it was subsequently ratified on 5 March 1947.
The third time the Constitution was amended (1940, 1947) was in 1967. A Resolution of both
houses provided for (a) the amendment of the Constitution by a Convention, (b) the increase of seats in
the House of Representatives to make the Concon sufficiently representative, and (c) allowing members
of the House as delegates without forfeiting their seats. The first was approved, the second and third were
rejected. This became the subject matter of Gonzales v COMELEC.
Election of delegates to the Concon took place on 10 November 1970. Then the ConCon met on
1 June 1971. Before it finished its work, it came up with a resolution calling for an amendment to the
1935 Constitution reducing the voting age from 21 to 18, so that a wider base could vote in the
ratification of the Constitution then being drafted. A plebiscite was set by the COMELEC for 8
November 1971 but this was enjoined by the SC in the case of Tolentino v COMELEC, the court ruling
that a piece-meal amendment was not allowed by the 1935 Constitution since it provided that the
amendments were to be ratified at "an election" which meant only one election. The Court upheld its
jurisdiction over the ConCon by arguing that since the Concon derived its power from the Constitution, it
was thus limited by the Constitution.
But it was subsequently overtaken by Martial Law. On 30 November 1972, the Convention
submitted its "draft" to the President, who called on a plebiscite to ratify the Constitution. This was
questioned in the case of Planas v COMELEC, 49 SCRA 105 (1973) on the ground that there can be no
freedom of expression under Martial Law. But the case was rendered moot and academic when the
President cancelled the plebiscite and instead held a citizens' assembly on 10 to 15 January, 1973. On 17
January 1973, the President came up with a proclamation that the Constitution had come to full force and
effect after its overwhelming ratification by the people in a viva voce vote.

1973 Constitution

The validity of the ratification process was questioned in the case of Javellana v Executive
Secretary, 50 SCRA 30 (1973) but the failure of the SC to come up with the necessary votes to declare the
act as unconstitutional forced it into the conclusion that "there are no further obstacles to considering the
constitution in force and effect."
The 1973 Constitution was amended four times.
The first, in 1976, gave the President, legislative powers even if the Interim Batasang Pambansa
was already operating.
The second, in 1980 was not significant. It merely raised the retirement of justices of the SC
from 65 to 70 as to keep Fernando for five more years.
The third, in 1980 changed the form of government from Parliamentary to Presidential.
The fourth, in 1984, responded to the succession problem by providing for a Vice-President.
The start of the end of the Marcos years, of course, could be treated as early as 21 August 1983.
But its immediate precursor was the Snap Election which the President was forced to call and set on 7
February 1986 to respond to the clamor for popular mandate.
The validity of the "Snap Election Law" called by the Batasang Pambansa was raised in the case
of Philippine Bar Association v COMELEC, 140 SCRA 455 (1985). The issue was raised because of the
conditional letter of resignation sent by Mr. Marcos to the Batasan, making his resignation effective only
upon (i) the holding of a Presidential election, (ii) the proclamation of a winner, (iii) the assumption into
office by the winning candidate. It was contended that a conditional resignation was not allowed under
the 1973 Constitution, for it did not create a vacancy, and without a vacancy, there was no reason to call
for an election. But the SC failed to issue a preliminary injunction to enjoin the COMELEC from
preparing for the election, thus making "the initially legal question into a political one." In the meantime,
the political parties have started campaigning and the people were so involved in the election that to stop
it on legal grounds would frustrate their very will. And so, failing to come up with the majority to hold
the Snap Election Law unconstitutional, the SC could not issue the injunction prayed for. The election
went ahead.
The rest is history. The results of the election were proclaimed by the Batasan, naming Marcos
and Tolentino as the winners. But the February 2 to 25, 1986, EDSA revolution took place. On 25
February, Marcos was proclaimed in Malacanang by Makasiar, while Aquino was proclaimed in Club
Filipino by Teehankee. Later that evening, Marcos fled to Hawaii.

A. The February 1986 Revolution and the Proclamation of Provisional Constitution.

Freedom Constitution
What was the basis of the Aquino government? Did it assume power pursuant to the 1973
Constitution, or was it a revolutionary government?
Proclamation No. 1, 25 February 1986 (Provisional government).-- But Proclamation No. 3
which announced the Provisional Constitution, seemed to suggest that it was a revolutionary government,
since in one of its whereases it announced that the "new government was installed, through a direct

exercise of the power of the Filipino people assisted by units of the New Armed Forces," referring to the
EDSA revolution.
The better view is the latter view. The Aquino government was not an offshoot of the 1973
Constitution for under that Constitution, a procedure was given for the election of the President --proclamation by the Batasan --- and the candidate Batasan proclaimed was Marcos.
Lawyers League v Aquino (GR Nos. 73748, 73972 & 73990, May 22, 1986).-- This view was
affirmed in Lawyers League v Aquino where the legitimacy of the Aquino government is questioned on
the ground that it was not established pursuant to the 1973 Constitution. The SC ruled that petitioners had
no personality to sue and their petition states no cause of action. "For the legitimacy of the Aquino
government is not a justiciable matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they have accepted the government of
President Aquino which is in effective control of the entire country so that it is not merely a de facto
government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this Court as
reorganized, have sworn to uphold the fundamental law of the Republic under her government."
The Aquino government was a result of a "direct state action." It was not as if a small group
revolted and succeeded in wresting power in the end. Rather, the entire state revolted and overthrew the
government, so that right from the beginning, the installation was already lawful and the government was
at all times de jure.
In this regard, it must be noted that there is no such thing as a constitutional right of revolution.
A revolution, from the point of view of a State, is always lawful since a State can never go wrong; it can
change its government in whatever way the sovereign sees fit. But this right of revolution, inherent in
sovereignty, cannot be recognized in a Constitution, for this would be self-destructive. The nature of a
Constitution is to set-up a government and provide for an orderly way to change this government. A
revolution contradicts this nature.
Proclamation No. 3, March 25, 1986 (Provisional Constitution).-- At any rate, the Provisional
Constitution or Freedom Constitution was adopted on 25 March 1986 through Proclamation No. 3. It
abrogated the legislative provisions of the 1973 Constitution, modified the provisions regarding the
executive department, and totally reorganized the government. (Its use of the 1973 Constitution,
however, is not be to construed that it was a continuation thereof.) Then it provided for the calling of a
Constitutional Commission, composed of 30 to 50 members appointed by the President within 60 days.
(In our history, all major constitutions --- Malolos, 1935, 1971 --- were drafted by elected delegates.)
The President appointed 48 Commissioners, who worked on the Constitution from 1 June to 15
October 1986. The draft was submitted to the people in a referendum on 2 February 1987. On 11
February 1987, the President, through Proclamation No. 58, announced its overwhelming ratification by
the people and that, therefore, it had come into force and effect.
In Re: Saturnino Bermudez (145 SCRA 160)(1960).-- In the case of In Re: Saturnino Bermudez ,
the SC held, quoting the previous case of Lawyers League v Aquino, that:
[T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Aquino which is in effective
control of the entire country so that it is not merely a de facto government but in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the

present government. All the eleven members of this Court as reorganized, have sworn to uphold
the fundamental law of the Republic under her government.