MODULE 1

CONSTITUTION: SCOPE, NATURE AND CONCEPTS

Learning Outcomes:

At the end of this module, the students will be able to:

1. Define Constitution
2. Discuss the concepts and characteristics of constitution
3. Appreciate the Importance Constitution

Definition of Constitution

Comprehensive Definition: That body of rules and maxims in accordance with which the
powers of sovereignty are habitually exercised.5 (Cooley)

American sense: A constitution is a written instrument by which the fundamental powers

of government are established, limited, and defined and by which these powers are distributed
among several departments, for their more safe and useful exercise, for the benefit of the body
politic. (Justice Miller quoted by Bernas)

With particular reference to the Philippine Constitution: That written instrument enacted by
direct action of the people by which the fundamental powers of the government are established,
limited and defined, and by which those powers are distributed among several departments for
their safe and useful exercise for the benefit of the body politic. (Malcolm, Phil. Consitutional Law
p6).
In other words, it is the supreme law of the land.

Philosophical view of the Constitution

The Constitution is a social contract. (Marcos v. Manglapus). Viewed in the light of the
Social Contract Theories, the Constitution may be considered as the Social Contract itself in the
sense that it 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.

The Constitution as a political document 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.

According to Dean Bautista, “the Constitution is a social contract between the government
and the people, the governing and the governed.”7 (ASM: I don’t necessarily agree with this
statement. As a social contract, the Constitution, I think is a contract between and among the
people themselves and not between the government and the people. The government is only an
“effect” or consequence of the social contract of the people. In other words, the government is
only a creature of the Constitution. Hence, the government cannot be a party to a contract that
creates it. In the 1987 Philippine Constitution, it reads, “We the sovereign Filipino people…in order
to build a …society and establish a government… ordain and promulgate this Constitution.”
 The purpose of the constitution is to prescribe the permanent framework of a system of
government, to assign to the several departments their respective powers and duties, and to
establish certain first principles on which the government is founded. (11 Am. Jur. 606 cited in
Cruz).

A constitution is a municipal law. As such, it is binding only within the territorial limits of
the sovereignty promulgating the constitution.

Classification of Constitution

Rigid constitution is one that can be amended only by a formal and usually difficult
process; while a flexible constitution is one that can be changed by ordinary legislation. (Cruz,
Constitutional Law p 5).

A written constitution is one whose precepts are embodied in one document or set of
documents; while an unwritten constitution consists of rules which have not been integrated into
a single, concrete form but are scattered in various sources, such as statues of a fundamental
character, judicial decisions, commentaries of publicists, customs and traditions, and certain
common law principles. (Cruz, Constitutional Law pp.45)

An enacted or conventional constitution is enacted, formally struck off at a definitive time

and place following a conscious or deliberate effort taken by a constituent body or ruler; while a
cumulative or evolved is the result of political evolution, not inaugurated at any specific time but
changing by accretion rather than by systematic method. (Cruz, Constitutional Law p 5).

Qualities of a Good Written Constitution

Broad. Because it provides for the organization of the entire government and covers all
persons and things within the territory of the State and also because it must be comprehensive
enough to provide for every contingency. (Cruz, Constitutional Law pp 5-6).

Brief. It must confine itself to basic principles to be implemented with legislative details
more adjustable to change and easier to amend. (Cruz, Constitutional Law pp 4-5).

Definite. To prevent ambiguity in its provisions which could result in confusion and
divisiveness among the people. (Cruz, Constitutional Law pp 4-5)

Essential Parts of a Good Written Constitution

Constitution of Government. The series of provisions outlining the organization of the

government, enumerating its powers, laying down certain rules relative to its administration and
defining the electorate. (ex. Art VI, VII, VIII and IX).

Constitution of Liberty. The series of proscriptions setting forth the fundamental civil and
political rights of the citizens and imposing limitations on the powers of government as a means
of securing the enjoyment of those rights. (Ex. Article III).
 Constitution of Sovereignty. The provisions pointing out the mode or procedure in
accordance with which formal changes in the fundamental law may be brought about. (Ex. Art
XVII).

Basic Concepts

Constitutionalism refers to the position or practice that government be limited by a

constitution. The doctrine or system of government in which the governing power is limited by
enforceable rules of law, and concentration of power is limited by various checks and balances
so that the basic rights of individuals and groups are protected.

Constitutionalism in the Philippines, understood in the American sense, dates back to the
ratification of Treaty of Paris. Then it grew from a series of organic documents. These are: (1)
Pres. Mc Kinleys’ Instruction to the Second Phil. Commission, (2) Phil. Bill of 1902, (3) Phil.
Autonomy Act of 1916. (Bernas, Commentary xxxviii)

The essence of republicanism is representation and renovation, the selection by the

citizenry of a corps of public functionaries who derive their mandate from the people and act on
their behalf, serving for a limited period only, after which they are replaced or retained at the option
of their principal.

The Separation of Powers

Separation of powers became the pith and core of the American system of government
largely through the influence of the French political writer Montesquieu. By the establishment of
the American sovereignty in the Philippines, the principle was introduced as an inseparable
feature of the governmental system organized by the United States in this country.

Separation of powers means that legislation belongs to Congress, execution to the

executive, settlement of legal controversies to the judiciary. Each is prevented from invading the
domain of others. (Bernas, Commentary 656, 2003 ed.)

Division and Assignment. Its starting point is the assumption of the division of the functions
of the government into three distinct classes—the executive, the legislative and the judicial. Its
essence consists in the assignment of each class of functions to one of the three organs of
government.

The theory is that “a power definitely assigned by the Constitution to one department can
neither be surrendered nor delegated by that department, nor vested by statute in another
department or agency.

The underlying reason of this principle is the assumption that arbitrary rule and abuse of
authority would inevitably result from the concentration of the three powers of government in the
same person, body of persons or organ.

System of Check and Balance

The Constitution fixes certain limits on the independence of each department. In order that
these limits may be observed, the Constitution gives each department certain powers by which it
may definitely restrain the other from exceeding their authority. A system of checks and balances
is thus formed.
To carry out the system of checks and balances, the Constitution provides:

• The acts of the legislative department have to be presented to the executive for
approval or disapproval.
• The executive department may veto the acts of the legislature if in its judgment
they are not in conformity with the Constitution or are detrimental to the interests
of the people.
• The courts are authorized to determine the validity of legislative measures or
executive acts.
• Through its pardoning power, the executive may modify or set aside the judgments
of the courts.
• The legislature may pass laws that in effect amend or completely revoke decisions
of the courts if in its judgment they are not in harmony with its intention or policy
which is not contrary to the Constitution.
• President must obtain the concurrence of Congress to complete certain significant
acts.
• Money can be released from the treasury only by authority of Congress.

EXERCISES:
1. Discuss the classification of the 1987 Philippine Constitution.
2. Discuss the system of check and balance.
3. Make a summary of the constitutional development in the Philippines
4. Is the 1987 Philippine Constitution meet the standards of a good written constitution?
Explain.
Read the following cases:
1. Manila Prince Hotel v. GSIS (G.R. No. 122156) February 3, 1997
2. Marcos v. Manglapus (G.R. No. 88211) September 15, 1989

References:
Constitutional Law Reviewer, Ateneo De Manila University School of Law
Textbook on Phil. Constitution, Hector De Leon