Manila Standard columnist Fr. Ranhilio Callangan Aquino begins today a primer on the draft federal constitution proposed by the consultative committee.
Congress, which will revise the Constitution through the constituent assembly, is free to accept or reject the proposals made in the draft.
Aquino is a member of the 22-member consultative committee.
The series will identify the highlights of the draft charter and provide answers to commonly asked questions.
Q: What is a preamble?
A: In a Constitution, a preamble is an introductory declaration. While it is not an operative part of the Constitution in the sense that it creates neither rights nor duties, offices nor positions, neither branches, agencies nor instrumentalities of government, it declares the intent of the framers of the Fundamental Law and announces the core values underlying the Charter.
Q: How does the Con-Com’s proposed preamble differ from that of the 1987 Constitution?
A: There are more similarities than there are differences. There are adjectives added to describe the society that is desired: “United and progressive,” for example. In fact, these are rhetorical flourishes but they do contribute to an articulation of our vision of society.
Q: Is there any significance to the conjunction of “rule of law” with the vision of “truth, justice, freedom, love, equality, and peace?”
A: Yes, while this was virtually taken over from the 1987 Constitution, it is the salutary reminder that law alone does not bring about a desirable society. Law should rather serve the ends of truth, justice, love, equality, and peace. In this respect, the preamble establishes its connection with the sublime ideals of the French Revolution: Equality, fraternity, and liberty.
Q: God has not been expunged. Why not?
A: Why should he be? While the Constitution guarantees the freedom of atheists and agnostics to keep a safe distance from God, the sentiment of most Filipinos is to recognize the sway of Almighty God over all. We remain a nation that honors God and looks to him. This should make it clear that although our political society is often characterized as “secular” in contrast to “theocratic,” it is neither an atheist nor an agnostic society.
Q: What is the most significant juridical effect of a preamble?
A: It is, in fact, the written expression of an underlying “social contract” among members of Philippine society to abide by a constitution. No constitution provides its own force. It is the consent of the people to be bound by it that lends it currency, and that is exactly what a preamble articulates.
Article I: National Territory
Q: How does the definition of national territory in Con-Com’s draft differ from Article 1 of the 1987 Constitution?
A: The Con-Com, that gave me the assignment of writing the first draft, endeavored to rewrite Article I in a manner more consistent with international law. So sovereignty now extends to the territory and to the waters encompassed by our archipelagic baselines.
Q: What are archipelagic baselines?
A: Take a look at the map of the North American and you will see that from Canada down to the southern tip of the US, the coast is continuous. The baseline, in this case, is continuous. Not so with the Philippines that is an archipelago. Even Luzon is a problem because Batanes is a group of islands far up north. It becomes very confusing when one reaches the Visayas and remains so with Mindanao because you have the Sulu Archipelago. The solution of international law is to draw artificial straight lines connecting the outer-most points of the Archipelago, and these straight-lines, provided that they do not digress beyond 100 nautical miles, are the baselines.
Q: So, in regard to sovereignty, is there no difference between land and water?
A: It all depends: In respect to land and inland rivers, lakes, and similar bodies of water, the exercise of sovereignty is identical. In respect, however, to the massive expanses of water covered by the archipelagic baselines, the UN Convention on the Law of the Sea classifies them as “archipelagic waters,” and while the Philippines does exercise sovereignty over them—they are within our baselines—ships have a right of “innocent passage” over them.
Q: Why do we have one section more than in the previous Constitution?
A: Because we must assert our sovereign rights. Over the Exclusive Economic Zone and the continental shelf (that will include the Benham Rise), we enjoy “sovereign rights”: Exclusive rights over marine resources, minerals and sedentary species.
Q: Did the Con-Com consider the arbitral judgment in favor of the Philippines?
A: Yes, precisely because of that arbitral judgment there is express mention of rights reserved to the Philippines by international law. In this respect then, what we won by the Arbitral Judgment has been “constitutionalized” and no President or Congress is free to disregard this.
Q: What about the Kalayaan Islands?
A: While the Arbitral Tribunal could not rule on our sovereignty claims over the Kalayaan Islands, the rewritten section on sovereignty expressly lays claim to “islands and features outside its archipelagic baselines pursuant to the laws of the Federal Republic, the law of nations, and the judgments of competent international courts and tribunals.” So, even if the Kalayaan Island group is outside our archipelagic baselines, it is, nonetheless, by Philippine law, governed by the “Regime of Islands”—and this too has been “constitutionalized” since that is also in accord with the UN Convention on the Law of the sea.
Q: Why was the phrase “historic right or legal title” that had been excised from the 1987 Constitution restored?
A: On the insistence of the great nationalist, Former Senate President Aquilino “Nene” Pimentel, who was one of our guiding lights at the Con-Com, it was necessary for us not to give up on our claim to North Borneo.
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