charter change

[ANALYSIS] The Constitution and the duty of every generation

Vicente V. Mendoza

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[ANALYSIS] The Constitution and the duty of every generation
The task of changing the charter should not be given to those whose outlook is limited by parish or class, or whose motive is solely to prolong their stay in power

To a lesser degree other agencies of government, which are charged with administering or executing the Constitution and the laws, contribute to the clarification of the meaning of the Constitution. Their contemporaneous constructions of its provisions are given great weight by the courts. 

For example, in the early case of Krivenko v. Register of Deeds, which also involved an interpretation of the economic provisions of the1935 Constitution, reliance was likewise placed on the contemporaneous construction of land laws for its ruling that an alien cannot own a piece of residential land.Under that Constitution, public lands were classified into “agricultural, timber and mineral.” Those classified as “agricultural” can be conveyed to Filipinos and to corporations 60% of the capital of which is owned by them. With respect to private agricultural lands, the Constitution provided that they could be conveyed only to those qualified to own public lands. The only exception from the ban are foreigners claiming rights by hereditary succession.   

Relying on the construction by the Executive and Legislative Departments of the government of the term “agricultural land” as meaning land that is susceptible of cultivation for agricultural production and that is neither a “mineral” nor a “timber” land, the Supreme Court held that a piece of private residential land is an agricultural land and therefore cannot be conveyed to aliens. 

Mention may also be made of two recent efforts to liberalize the restrictions on foreign investments in the country. They illustrate the informal ways by which contemporaneous construction of the provisions of the Constitution by agencies of government contribute to our understanding of these provisions.

First is the initiative of the Department of Energy in allowing the exploration, development and utilization of renewable energy to foreign citizens and foreign-owned corporations. The move followed the issuance of an opinion by the Secretary of Justice that Art. XII, Sec. 2 of the Constitution, which declares all “natural resources” of the country as exclusively belonging to citizens of the Philippines, refer to those which are capable of being depleted. Sources of renewable energy are inexhaustible and therefore are not off limits to foreigners.

While the Constitution also mentions “forces of potential energy” as part of our natural resources, neither is renewable energy inalienable “potential energy” or “energy at rest.” Renewable energy is “kinetic energy” or “energy in motion,” derived from the sun, wind, and hydro and tidal currents. The Secretary of Justice explained: “If a ball is held up at head height, it has potential energy relative to floor due to gravity. But when the ball is released, its potential energy decreases and such is transformed into increasing kinetic energy until it hits the floor and stops.”  We can share with foreigners the exploration, development and utilization of renewable resources without fear of being left with nothing else afterward because these resources are inexhaustible.

The second initiative to liberalize the restrictions on foreign investments is the opening of public services to foreigners and foreign owned corporations. This has been accomplished by the amendment of the Public Service Act by defining what “public utilities” are and considering other public conveniences “public services.”

Public utilities are public conveniences which operate, manage or control for public use any of the following: (1) Distribution of electricity; (2) transmission of electricity; (3) petroleum and petroleum products pipeline transmission systems; (4) water pipeline distribution systems and waste water pipeline systems, including sewerage pipeline systems; (5) seaports; and (6) public utility vehicles.

On the other hand, public services are those which render (1)  transport services for carrying passengers and goods by air, road or water, (2) postal services, (3) telephone services, (4) power facilities, (5) lighting facilities, (6) water facilities, and (7) insurance service. Consequently, as the constitutional restriction refers only to the operation of public utilities, the operation of public services can be opened to foreigners and foreign corporations. 

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Why it endures

Thus, the Constitution is brought up to date not only by Congress as the principal department of the government for amending and revising the Constitution but also by the Supreme Court and by other agencies of the government which are charged with administering or executing its provisions. 

It’s not a denigration of a document intended to endure for ages to say that its meaning changes over time. That is precisely how and why it endures. In a sense, the Constitution does not change. Indeed, as the French writer Jean Baptiste Alphonse Karr put it, “the more things change, the more they stay the same.” Consider how technological advances have changed the meaning of the phrase “land and naval forces” in the provision of the Constitution of the United States enumerating the powers of the US Congress. Strictly construed the phrase would exclude the maintenance of an air force. Would anyone argue today that the organization of the U.S. Air Force is unconstitutional, because the U.S.  Constitution provides only for the organization of “land and naval forces”? 

It is the duty of every generation to keep the Constitution up to date. This task requires the utmost dedication of mind and spirit of those who would undertake this solemn and sacred duty. “He who would bring home the wealth of the Indies, must carry the wealth of the Indies with him,” as the Spanish proverb says. Not to him whose outlook is limited by parish or class, or whose motive is solely to prolong the stay in power of those in public office or to seek material gain or political advantage, should the task be entrusted. 

We are not likely to see a reduction of tension and other concerns in the future. We should be grateful we have decent, civilized procedures provided by our Constitution for adapting to change, as we strive to elevate to an art form our efforts to preserve our free way of life.

After witnessing the constitutional crisis of 1959, which was brought about by the refusal of then President Elpidio Quirino to give up the exercise of his emergency powers despite the fact that Congress had been able to meet in session after the war, Claro M. Recto, the president of the 1935 Constitutional Convention, spoke grimly of the future of the Constitution. “Perhaps,” he said, “we believe in the Constitution only because it is the thing to do, because we have learned its provisions by rote in school like arithmetic and spelling and the Lord’s prayer, and not because we sincerely and conscientiously it to be the best and surest guaranty of the way of life which we regard as the sole foundation of our present and future welfare.”  He concluded with the story of the Moorish king of Granada who was upbraided by his mother with these words: “Weep not like a woman for the loss of a kingdom you cannot defend like a man.” 

May the moral of that story not be lost on us. May it guide us in our efforts to establish in our land a government of the people, for the people, and by the people in our day and in the days we may not see. –

This is an excerpt from a lecture delivered by retired Justice Mendoza at the Magister Lecture Series, UP College of Law, on June 30, 2023. Read Part 1 here.

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