The 1987 Constitution of the Philippines is the third Constitution of the Republic since the recognition of its independence in 1946. It was drafted by a Constitutional Commission created under Article V of Proclamation No. 3 issued on March 25, 1986 which promulgated the Provisional Constitution or “Freedom Constitution” following the installation of a revolutionary government “through a direct exercise of the power of the Filipino people”.
The 1987 Constitution provides provision that provides framework on how our foreign policy is to be conducted.
ARTICLE I Section 1.
“The national territory comprises of the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimension form part of the internal waters of the Philippines.”
In Article I Section of the 1987 Constitution which provides for the National Territory of the country. It already carries foreign policy implication, because of the dropping of the phrase “and all other territories belonging to the Philippines by historic right or legal title” in the 1973 Constitution. The dropping of the phrase has spawned arguments that the Philippines had legally and formally surrendered its claims over territories which legally and historically belong to the Philippines. But the 1986 Constitutional Commission explains that the addition of the phrase “all other territories over which the Philippines has sovereignty and jurisdiction” did in fact keep the intent of the 1973 Constitution of what Philippine territory consist of. (Domingo, 1993)
I. TWO MOST RELEVANT PROVISIONS OF THE 1987 CONSTITUTION RELATED TO FOREIGN POLICY
ARTICLE II Section 7
“The Philippines shall pursue an independent foreign policy. In its relation with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self determination.”
Foreign policy is the basic direction underlying the conduct by a State of its affairs vis-à-vis those of the other States. It is a set of guidelines followed by the government to promote its national interest through the conduct of its relation with other country.
Foreign policy is the reflection and an instrument of domestic policy, the sole weapon of a State for the promotion of national interest in international affairs. Foreign policy and domestic policy are not only mutually consistent but complementary.
The Constitution mandates the State to pursue an independent foreign policy. An independent foreign policy simply means one that is not subordinate or subject to nor dependent upon the support of another government. Realistically, foreign policy must have a global outlook in view of the deleterious effect on the country’s relations with other countries of a foreign policy that revolves only on our relations with select members of the international community. Being a small developing nation, we must make no enemy if we can make friend.
Our basic foreign policy objective is to establish friendly relations with all countries of the world regardless of race, religion, ideology and social system and to promote as much beneficial relations with them particularly in economic and trade activities.
Independence in the making and conduct of its foreign policy is relative. The national interest will not be served by trying to deal with regional and international issues in absolute terms. Our must be a policy of flexibility and pragmatism guided only by the welfare of our people and the security of our Republic.
ARTICLE II Section 2
“The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.”
The renunciation of war as an instrument of national policy is in accordance with the principle in the United Nations Charter binding all members “to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. x x x.” The declaration refers only to the renunciation of the Philippines of aggressive war, not war in defense of her national honor and integrity. Men and nations cannot waive in advance the basic right of self-preservation.
The clause “Adoptions of generally accepted principles of international law as part of our law” binds the Philippines to enforce or observe within its jurisdiction, generally accepted principles of international law, whether customary or by treaty provision, as part of the law of the land. International Law refers to the body of rules and principles which governs the relations of nations and their respective peoples in their intercourse with one another.
In line with the objectives of United Nations, the Philippines seeks only peace and friendship with her neighbors and all other countries of the world, regardless of race, creed, ideology, and political system, on the basis of mutual trust respect, and cooperation. It supports the right of all nations, big and small, to equality, freedom, and justice in their relations with one another and the policy of non-interference and peaceful settlement of international disputes and opposes the use of force, or the threat of force, in the relations among nations.
The Constitution doesn’t imply, however, that the Philippines is duty bound to extend diplomatic recognition to all nations.
II. SECTIONS IN THE DECLARATION OF PRINCIPLES AND STATE POLICIES NOT INCLUDED IN THE 1935 AND 1973 CONSTITUTIONS
ARTICLE II Section 8
“The Philippines consistent with the national interest adopts and pursues a policy of freedom from nuclear weapons in its territory.”
The intent of this section is to forbid making, storing, manufacture or testing of nuclear weapons in our country as well as the use of our territory as dumping site for radioactive wastes and the transit within our territory of ships or planes with nuclear weapons. It does not however prohibit the use of nuclear energy for medicine, agriculture, and other peaceful or beneficial purposes.
ARTICLE II Section 19
“The state shall develop a self-reliant and independent national economy effectively controlled by Filipinos.”
Self-reliance simply means that the Philippines must have the ability to cope with its economic problems or to implement its development programs by the use of its own resources with a minimum of dependence from foreign governments, investors or financing institutions for loans, investments or aid.
The national economy must be free from undue foreign control or intervention. This is especially true in such vital or strategic industries as the development of natural resources and public utilities where foreign interference could cause incalculable harm to the nation.
The principal responsibility for development belongs to Filipino citizens. They must be the principal determinants as well as the chief beneficiaries of economic progress.
III. NEW CONCEPTS IN THE 1987 CONSTITUTION RELATED TO FOREIGN POLICY
ARTICLE XII Section 13
“The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.”
The Constitution makes it clear that the trade policy which it requires the State to promote must be one that serves the general welfare. Trade policy is a policy affecting imports and exports and domestic commerce to achieve specific goals.
It would be an advantage for the Philippines to seize every opportunity for expanding existing avenues for bilateral trade with other countries and exploring new ones, instead of relying on foreign aid. Trade conduces to self-reliance and independence, while aid encourages continued dependence on credit, not to, mention foreign interference.
ARTICLE XII Section 21
“Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.”
Rules with respect to foreign loans, seeks to prevent, once and for all the ill-advised contracting of foreign loans in the past on the sole initiative of the President, even against the advice of the Monetary Board of the Central Bank. Foreign loans, whether public or private, may only be acquired in accordance with law and the regulation of the monetary authority. Also, the contract or guarantee must be with the prior consensus of the Monetary Board. But approval of the Congress is not required.
As it is the people who will ultimately shoulder the payment of the country’s indebtedness, the Constitution also requires that information on foreign loans obtained (public loans) or guaranteed (private loans) by the government shall be made available to the people.
IV. TO PROMOTE THE COUNTRY’S CULTURAL POLICY
ARTICLE XIV Section 14
“The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate on free artistic creations.”
Nation building is not only confined to the acquisition or production of material things. Equally important in the overall objective of society is the promotion of desirable cultural values, the inculcation among its citizens of an appreciation for the finer things in life, such as music, literature, and the arts. Development in all aspects— political, economic, social, educational, and cultural—must be the goal of the nation.
The Filipino national culture must evolve under “a climate of free artistic and intellectual expression,” to insure the creation of a culture that will help the Filipino be aware of his rich heritage and lead to a justifiable pride in his being a Filipino— a true and distinctive Filipino culture that makes us uniquely Filipino.
ARTICLE XIV Section 15
“Arts and letters shall enjoy patronage of the State. The State shall conserve, promote and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations.”
Arts and letters shall enjoy the patronage of the State to foster the artistic and literary talents of the people. The State complies with this constitutional mandate by undertaking projects to develop native talents and by aiding or giving recognition or awards to person’s who have shown ability in the field. The State shall conserve, promote and popularize the nation’s historical heritage and resources as well as artistic creations to preserve them for future generations of Filipinos, for all the country’s artistic historical wealth constitutes the cultural treasure of the Filipinos as a people and as a nation.
V. ROLE OF THE EXECUTIVE, LEGISLATIVE AND JUDICIAL BRANCHES OF GOVERNMENT IN THE FORMULATION, EXECUTION AND REVIEW OF FOREIGN POLICY
ARTICLE VI Section 23
“The Congress, by a vote of 2/3 of both Houses in session assembled, voting separately, shall have the sole power to declare the existence of war.
The Constitution grants Congress the sole power to declare the existence of a state of war. The concurrence of two thirds of both Houses in joint session assembled, voting separately is required for the exercise of this power. Because war directly and vitally affects all the components of the entire nation, it is deemed essential that the responsibility to make such declaration should rest with the direct representatives of the people in Congress.
While the responsibility to make the declaration rests on Congress, the President, however, through his dealings with a foreign country, may bring about a state of affairs that Congress may be left with no alternative but to recognize and the declare the existence of a state of war. The President may find it necessary to engage in war without waiting for Congress to make a declaration of war.
ARTICLE VII Section 16
“The President shall nominate and, with the consent of the Commission on Appointments, appoint… ambassadors, other public ministers and consuls.
The power of appointment is intrinsically an executive prerogative. The legislative body creates the office, defines its powers, limits its duration, and provides the compensation. This done, its legislative power ceases. It has nothing to do with designating the man to fill the office.
The executive nature of the appointing power does not imply that no appointment by Congress and the courts can be made. They may also appoint those officers who are necessary to the exercise of their own functions.
ARTICLE VII Section 20
“The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the concurrence of the Monetary Board.”
The President may contract foreign loans on behalf of the Republic of the Philippines without the need of prior congressional approval. When obtained by private persons, natural or juridical, he may guarantee such loans. There is possibly no official better qualified to enter into such negotiation than the President. He is the official best supplied with information as well as with executive and legislative assistance to determine the advisability of obtaining loans as well as the country’s capacity for making good use of such credit.
The authority of the President is not absolute. The contract or guarantee must be with prior concurrence of the Monetary Board of the Central Bank now, Bangko Sentral ng Pilipinas (BSP), which is required to make a report to Congress containing the matters mentioned. The prior concurrence of the Monetary Board is required because, as the custodian of the foreign reserves of the country, it has expertise to determine the reasonableness of the contract or guarantee and whether the proposed foreign loan is within the capacity of the country to pay. The report will guide Congress in the enactment of whatever legislation it may deem necessary to protect the national interest.
ARTICLE VII Section 21
“No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of the Senate.”
Treaties and international agreement as being part of the law of the land and affect our international relations, being in the nature a contract between the parties must logically be concurred by 2/3 of all the members of the Senate.
ARTICLE VIII Section 4
“All cases involving the constitutionality of a treaty international or executive agreement, or law shall be heard by the Supreme Court en banc.”
The Supreme Court may sit en banc (one body) in all cases involving the constitutionality of a treaty or international or executive agreement. An executive agreement is traditionally recognized in the Philippines. It is well within the prerogative of the President to make without the concurrence of the Congress. To declare a treaty, international or executive agreement unconstitutional, the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon is required. When the necessary majority cannot be had, its constitutionality shall be deemed upheld.
The quorum of the Supreme Court when sitting en banc is eight. Hence, the votes of five are sufficient for rendering a decision on all cases required to be heard en banc provided they actually took part in the deliberations on the issues in the case.
ARTICLE VIII Section 5 (paragraph 1)
The Supreme Court shall have the following powers:
1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls…”
As a rule, ambassadors and other public ministers are exempt from the jurisdiction of tribunals of the country to which they are accredited. This is based on the principle of international law that they are considered extensions of the sovereignty of the states of which they represent. A consul, however, is not entitled in the privileges and immunities of an ambassador or a minister and is subject to the laws of the country to which he is accredited. A consul then is not exempt from criminal prosecution.
ARTICLE VIII Section 5 (paragraph 2)
The Supreme Court shall have the following powers:
2) Review, revise, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
The power of judicial review is the power of the courts, ultimately of the Supreme Court, to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the Constitution or the fundamental law.
Through such power, the judiciary, the Supreme Court particularly, enforces and upholds the rule of law and supremacy of the Constitution. It is because the courts are the official (but not necessarily the only) interpreters of the Constitution that a study of our Constitution is, in large measure, a study of judicial decisions and opinions on the meaning and applications of its provisions.
De Leon, Hector S. Textbook on the PHILIPPINE CONSTITUTION. Rex Printing Company Inc., Quezon City, 2005
Domingo, Benjamin B. The Re-Making of Filipino Foreign Policy. Asian Center, Quezon City, 1993