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Bluebook 21st ed.

Reynato S.; Maribojoc Puno, Josephine G., Editor. Equal Dignity & Respect: The
Substance of Equal Protection and Social Justice (2012).

ALWD 6th ed.

Puno, R. Equal Dignity & Respect: The Substance of Equal Protection and Social
Justice (2012).

APA 7th ed.

Puno, R. (2012). Equal Dignity & Respect: The Substance of Equal Protection and
Social Justice. Diliman, Quezon City, College of Law, University of the Philippines.

Chicago 7th ed.

Puno Reynato S.; Maribojoc, Josephine G., Editor. Equal Dignity & Respect: The
Substance of Equal Protection and Social Justice. Diliman, Quezon City, College of
Law, University of the Philippines.

McGill Guide 9th ed.

Reynato S.; Maribojoc Puno, Josephine G., Editor, Equal Dignity & Respect: The
Substance of Equal Protection and Social Justice (Diliman, Quezon City: College of
Law, University of the Philippines., 2012)

MLA 8th ed.

Puno, Reynato S., and Josephine G. Maribojoc, Editor. Equal Dignity & Respect: The
Substance of Equal Protection and Social Justice. Diliman, Quezon City, College of
Law, University of the Philippines. HeinOnline.

OSCOLA 4th ed.

Puno, Reynato S.; Maribojoc, Josephine G., Editor. Equal Dignity & Respect: The
Substance of Equal Protection and Social Justice. Diliman, Quezon City, College of
Law, University of the Philippines.

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 ChapterSeven

Origin and Adoption of the Equal Protection

Clause and the Social Justice and Equality
Provisions in the 1935 and 1973 Constitutions
-. [*-

C onstitutional
the history
Philippines
in the American tradition
did not exist in
before the Americans arrived in 1898. Spanish
authorities, which at that time ruled the country, did not extend to
Filipinos basic rights and guarantees against oppression by the state.
The zeal and yearning to enjoy these liberties urged Filipinos to fight
against Spanish government.' This chapter traces the development
of Philippine constitutional history - with focus on the right to
equality - starting from the struggle for rights and liberties against
the Spaniards up to the adoption of the 1973 Constitution.

7.1 PRIOR TO THE 1935 CONSTITUTION

The Filipinos' struggle for liberties against the Spanish government

gave rise to the Propaganda Movement whose campaign spanned
the middle of the nineteenth century until 1892. It was a peaceful
campaign made through revolutionary writing in the Philippines and
from Europe's cities by prominent writers headed by the national
hero, Jose Rizal, and other influential writers, such as Marcelo H. del
Pilar, Graciano Lopez-Jaena, and Mariano Ponce. The Movement
had a single goal: assimilation. They did not call for secession of the
Philippines from Spain, but for the extension to Filipinos of rights
which, under the Spanish Constitution, Spaniards enjoyed. 2 They
demanded a basic right to inviolability of person and property, in the
form of specific rights, viz.:

179
180 EQuAL PROTECuIONAND SocIALJUSTICE IN THE PHILIPPINES

[I]hey called for an end to arbitrary action by officialdom,

particularly by the much hated Guardia Civil, and an end to
arbitrary detention and banishment of citizens. They demanded
freedom of speech and of the press, freedom of association,
and the right to petition the government for redress of
grievances. They insisted on the right to liberty of conscience,
freedom of worship, freedom to choose a profession, and the
right to an opportunity for education. Finally, they clamored
for an end to the abuses of religious corporations. 3

The demands of the Propaganda Movement, which were

summarized, published and circulated among Filipinos were:

1. Expulsion of the friars and restitution to the townships

of lands which the friars appropriated, dividing the
incumbencies held by them, as well as the episcopal sees, equally
between peninsularand insularsecularpriests.
2. Spain must cede to us, as she has to Cuba, parliamentary
representation, freedom of the press, toleration of all religious
sects, laws common with hers and administrative and
economic autonomy.
3. Equality in treatment and pay between peninsular and
insular civil servants.
4. Restitution of all lands appropriated by the friars to the
townships, or to the original owners, or in default of finding
such owners, within the reach of all and payable within four
years, the same as the present state lands.
5. Abolition of the Government authorities' power to
banish citizens, as well as unjust measures against Filipinos;
legal equalityfor allpersons; whether peninsular or insular, under
the civil as well as the penal code.4

Noticeably, equal treatment figured prominently in the demands of

the Propaganda Movement as their goal was not secession, but
enjoyment of equal rights among Spaniards and Filipinos.
Assimilation and extension of equal rights to Filipinos did not
come to pass. The Filipinos' desire to claim their rights and liberties
continued to burn, thus sparking the secessionist movement. In
1892, Andres Bonifacio set up the secret society of the Katipunan, the
 EqualProtecdion and SocialJustice in the 1935 and 1973 Constitutions 181

military arm of the movement. The vision was to establish an

independent Filipino nation through armed revolution.5 On May 31,
1897, a republican government was established in Biak-na-Bato,
Bulacan. After six months, the Constitution of Biak-na-Bato - the
provisional constitution that endeavored to embody the aspirations
of the Filipinos - was unanimously adopted by representatives of
the movement on November 1, 1897. It was mostly copied from the
Cuban Constitution of Jimaguayu, except for the Bill of Rights
which was added by lawyers Felix Ferrer and Isabelo Artacho. 6 The
Bill of Rights consisted of four articles, viz.:

Article XXII. - Religious liberty, the right of association,

the freedom of education, the freedom of the press, as well as
the freedom in the exercise of all classes of professions, arts,
trades, and industries are established.
Article XXIII. - Every Filipino shall have the right to
direct petitions or present remonstrances of any import
whatsoever, in person or through his representative, to the
Council of Government of the Republic.
Article XXIV. - No person, whatever may be his
nationality, shall be imprisoned or held except by virtue of an
order issued by a competent court, provided that this shall not
apply to crimes which concern the Revolution, the government
or the Army.
Article XXV. - Neither can any individual be deprived of
his property or his domicile, except by virtue of judgment
passed by a court of competent authority.7

The Bill of Rights of the Biak-na-Bato Constitution, unlike the

manifesto of demands of the Propaganda Movement, did not
contain a guarantee of equality.
The provisional constitution was intended to be in force for two
years before the formulation of a final constitution. However, its life
was cut short as only two months after its adoption, a temporary
reconciliation was struck between the revolutionaries and the
Spanish government. Consequently, the Pact of Biak-na-Bato was
signed, forging an agreement that Filipino military leaders would
desist from fighting the Spaniards and ensure peace for at least three
years, and in return, the Spaniards would extend monetary indemnity
182 EQuAL PROTECTION AND SOCIALJUSTICE IN THE PHILPPINES

for Filipino men in arms and deliver promised reforms. General

Emilio Aguinaldo, who succeeded Bonifacio as military leader upon
the latter's death, also agreed to leave the Philippines along with
other Filipino leaders. In December 1897, Aguinaldo's group went
to Hongkong. Fate played out differently, however, as the Spanish-
American War broke out after a few months in April 1898.8
Aguinaldo, encouraged by American officials, returned to the
Philippines and established a temporary dictatorial government, with
him at the helm. In June 1898, the dictatorship ended and Aguinaldo
assumed the presidency of the Revolutionary Government.9 On
June 12, 1898, the Filipino revolutionary elements declared
sovereignty of the country with the Declaration of Independence.
Three months later, the Revolutionary Congress was inaugurated in
Malolos to formulate and promulgate a constitution. 10 The product
of their labor, the Malolos Constitution, was principally drafted by
Felipe Calderon, regarded as the father of the Malolos
Constitution." Its provisions on the organization of government
were heavily based on the constitutions of the South American
republics,1 2 while its Bill of Rights was largely copied from the
Spanish Constitution. 3 The guarantee of rights included the
following:

[F]reedom of religion; freedom from arbitrary arrests and

imprisonment, supported by an equivalent of a right to a writ
of habeas corpus; security of the domicile and of papers and
effects against arbitrary searches and seizures; inviolability of
correspondence; freedom to choose one's domicile; due
process in criminal prosecutions; security of property, with the
reservation of the government's right to eminent domain;
prohibition of the collection of taxes not lawfully prescribed;
free exercise of civil and political rights; freedom of expression;
freedom of association; right of peaceful petition for the
redress of grievances; free popular education; freedom to
establish schools; guarantee against banishment; prohibition of
trial under special laws; prohibition of the establishment of
rights of primogeniture; prohibition of the entailment of
property; prohibition of the acceptance of foreign honors,
decorations, or titles of nobility, and of the granting of such
honors by the Republic.14
 EqualProtection and SodalJustice in the 1935 and 1973 Constitutions 183

The Malolos Constitution, similar to the Biak-na-Bato Constitution

and the June 12, 1898 Declaration of Independence, did not provide
for a general guarantee of equality, but provided for religious
equality, viz.:

Title III
Of religion

ARTICLE 5

The state recognizes the freedom and equality of religious

worships, as well as the separation of the church and the
state.' 5

The Malolos Constitution took effect in January 1899, but like

the Biak-na-Bato Constitution, it had a short lifespan. With the turn
of world events, sovereignty over the Philippines was transferred to
the United States under the Treaty of Paris, which was signed in
December 1898 and entered into force in April 1899. Within a
month after the Malolos Constitution was promulgated, war broke
out between Filipinos and Americans, and Aguinaldo's government
survived for only ten months. In March 1901, Aguinaldo was
captured by the Americans. The following week, he pledged
6
allegiance to the United States.'
Earlier in the Filipino-American war, U.S. President William
McKinley sent the First Philippine Commission headed by Jason
Gould Schurman to survey the Philippine situation. In its report, the
Commission relayed to the President that what the Filipinos desired
most was a guarantee of the rights which "Americans hold to be the
natural and inalienable birthright of the individual but which under
Spanish domination in the Philippines had been shamefully invaded
and ruthlessly trampled upon."' 7 President McKinley responded
with the issuance of his Instruction of April 7, 190018 to the Second
Philippine Commission headed by William Howard Taft. The
Instruction of 1900 provided authorization and guidelines for the
organization of a civil government in the Philippines and directed
that "[u]pon every division and branch of the government of the
Philippines . .. must be imposed these inviolable rules... . ."19 The
"inviolable rules" were almost exact copies of the Bill of Rights of
184 EQUAL PROTECTONAND SOCIAL JUSTICE IN THE PHILTPPINES

the U.S. Constitution, plus the prohibition of bills of attainder and

20
expostfacto laws in Article 1, Section 9 of the American charter.
The guarantees constituting the inviolable rules included the
following:

That no person shall be deprived of life, liberty, or

property without due process of law; that private property shall
not be taken for public use without just compensation; that in
all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, to be informed of the nature and cause
of the accusation, to be confronted with the witnesses against
him, to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense;
that excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unjust punishment inflicted; that no
person shall be twice put in jeopardy for the same offense or
be compelled in any criminal case to be a witness against
himself; that the right to be secure against unreasonable
searches and seizures shall not be violated; that neither slavery
nor involuntary servitude shall exist except as a punishment for
crime; that no bill of attainder or ex post facto law shall be
passed; that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for a redress
of grievances; that no law shall be made respecting an
establishment of religion or prohibiting the free exercise
thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference
shall forever be allowed ... .21

Although there were significantly more guarantees in the Instruction

of 1900 compared to the Malolos Constitution, they similarly did not
provide for a general guarantee of equality, and only provided for
religious equality.
In the 1904 case of Kepner v. UnitedStates, 22 the U.S. Supreme
Court declared that the "inviolable rules" of the Instruction of 1900
were principles that did not originate from Spanish law, but from the
American Constitution. The Court emphasized that the rules
embodied "almost verbatim the safeguards of that instrument for
 Equal Protectionand SocialJustice in the 1935 and 1973 Constitutions 185

the protection of life and liberty," 23 and so they should be

understood according to the "sense . . . placed upon them in
construing the instrument from which they were taken." 24
The "inviolable rules" were re-enacted in subsequent organic
laws: 2 5 the Philippine Bill of 190226 and the Philippine Autonomy
Act of 1916 or Jones Law. 27 Significantly, however, an important
right was added to the due process guarantee carried over from the
"inviolable rules" in the Philippine Bill of 1902. Its provision on due
process of law and the additional right read:

Sec. 5. That no law shall be enacted in said Islands which

shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equalprotection
of the laws.28

It was thus in the Philippine Bill of 1902 that the seed of the Equal
Protection Clause was transplanted from the Fourteenth
Amendment of the U.S. Constitution to Philippine soil. The equal
protection guarantee was then reproduced verbatim in the Philippine
Autonomy Act of 1916.
Subsequently, the Philippine Independence Law,29 or Tydings-
McDuffie Law, was enacted in 1934 to guarantee independence to
the Philippines and authorize the drafting of a Philippine
Constitution. It required the inclusion of a Bill of Rights in the new
charter. 30 Thus, the 1935 Constitution came into being, the first
constitution drafted and ratified by Filipinos themselves. Nearly four
decades from its ratification, it was replaced by the 1973
Constitution, which took effect during martial rule. After the
dictatorship fell in 1986, the 1987 Constitution was drafted and was
overwhelmingly ratified by the Filipino people. The succeeding
sections will look into the provisions of the 1935 and 1973
Constitutions and the deliberations of their framers, focusing
particularly on the Equal Protection Clause and related provisions
on social justice and equality.
186 EQUAL PROTECTION AND SOCIALJUSTICE IN THE PHILIPPINES

7.2 THE 1935 CONSTITUTION

On July 30, 1934, the Constitutional Convention was opened. 3 1

The Convention's committee on the bill of rights initially
adopted the exact phraseology of the Equal Protection Clause in the
Philippine Bill of 1902 and Philippine Autonomy Act of 1916, viz.:

That no law shall be enacted in said Islands which shall

deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equalprotectionof the
laws. . .. (emphasis added).

The sub-committee of seven changed the phraseology, however, to

follow the wording of its counterpart in the U.S. Constitution. 32 As
afore-stated, the Fourteenth Amendment of the U.S Constitution
provides in relevant part that:

No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equalprotection of the laws (emphasis added).

The phraseology was changed to clarify that the guarantee of

equal protection was a proscription that encompassed not only the
legislature in its passage of laws, but also all branches and
instrumentalities of government. The Convention approved the sub-
committee's revised phraseology of the Equal Protection Clause,
which was how it finally appeared in Article III of the 1935
Constitution, 33 ViZ.:

Section 1. (1) No person shall be deprived of life, liberty,

or property without due process of law, nor shall any person be
denied the equal protection of the laws.

A strong opposition was raised against the approval of the Equal

Protection Clause during the deliberations of the 1934
Constitutional Convention largely in consideration of both
American and Philippine jurisprudence, which, on equal protection
 EqualProtectionand Sodaljusice in the 1935 and 1973 Constituions 187

grounds, struck down legislation intended primarily to protect

labor.34 In the 1924 case of People v. Pomar,35 the Philippine Supreme
Court acknowledged that the assailed statute requiring employers to
grant paid maternity leave benefits to pregnant laborers was passed
in the interest of social justice, but struck it down mainly on due
process grounds. The Court held paramount the employer's right to
liberty of contract over the interest of social justice and found that
the required maternity benefit constituted deprivation of liberty of
contract without due process of law. 36 In support of the employer's
liberty of contract, the Court made two pronouncements on equal
protection of the laws. First, it held that there is equality of right
between the right of employees to sell their labor and the right of
employers to purchase the labor and prescribe conditions for their
acceptance of the labor. Second, the Court pointed out that the
challenged law unjustifiably did not distinguish between regular
employment and employment under contract by the day or by the
piece. Consequently, even if pregnant laborers under the latter type
of employment did not render any service, the law would absurdly
37
require the employer to grant them maternity leaves.
Thus, to pave the way for enactment of social legislation similar
to those declared unconstitutional by American and Philippine
courts and of nationalistic laws in accord with the nationalistic spirit
of the first draft of the constitution, Delegate Salvador Araneta
proposed a substitute provision in the Bill of Rights, 38 ViZ.:

No law shall be enacted which unreasonably discriminates

against a class ofpersons.39

Delegates Araneta, Manuel Lim and Wenceslao Vinzons

zealously defended the proposed amendment. They emphasized that
the Equal Protection Clause in the Jones Law, incorporated in the
first draft of the Constitution, had served as a bastion of capitalism
which obstructed the passage of social legislation favorable to labor
and maternity. 40 Noticeably, while the draft provision patterned after
the American Equal Protection Clause was phrased as a protection
for the individual in that it states that "nor shall any person be denied
equal protection of the law," the proposed substitute provision was
intended and worded as a protection of a disadvantaged class or
social group, such as labor and women. The promotion of labor
188 EQUAL PROTECION AND SOCIAL JUSTICE IN THE PHILIPPINES

welfare was advocated in many speeches of the delegates and

identified as the goal of many precepts they introduced. 41
Apparently, as early as the debates of the 1934 Convention, the
conflict between the individual-focused anti-classification principle
and the group-focused anti-subordination principle had already
surfaced. The tension between the libertarian paradigm that allows
mimmum government interference in the economic market and the
Rawlsian liberal egalitarian conception of distributive equality that
calls for government intervention to enforce social justice was
evident in the debates in the Convention.
Delegate Jose Laurel opposed the Araneta-proposed
amendment and defended the Equal Protection Clause in the draft.
He argued that even under the said Clause, it would still be possible
for the legislature to enact statutes similar to those struck down by
the courts, such as laws protecting pregnant laborers and excluding
aliens from working in factories, as there were collateral provisions
in the Constitution which were designed to guarantee social justice
in the country. 42 Although opposed to the proposed amendment,
Delegate Laurel's response to it also showed support for the
"socializing" of the Bill of Rights, which he criticized as adhering
too much to natural law principles. 43 It will be recalled that the Bill
of Rights was based on the "inviolable rules" extended to the
Philippines from the U.S. Constitution, and these rules protect the
"natural and inalienable birthright of the individual."44
The following exchange - between Delegate Tomas Confessor
and Delegate Laurel on the Equal Protection Clause in relation to
protection of pregnant laborers - is relevant:

Delegate Confessor. - Supposing that a law would be enacted

to the effect that pregnant women working in factories, should
they become pregnant legitimately, be paid three months or
two months' salary after delivery. Would that be constitutional
under the present draft as submitted by the Committee?
Delegate Laurel. - I was, Mr. President, going to that point.
In this connection, I want to say that one criticism against the bill of
ghts ... is that we are adheringto the necessities of naturallaw when, as
a matter offact, we should give proper consideration to socialjustice and
to other rights of the state.
I want to say, however, as this draft is made, we have taken
care of that socialjusticepart of the Constitutionproviding in Article 13,
 EqualProtection and Socialjusticein the 1935 and 1973 Constitutions 189

sections 9 and 10, that it shall be the duty of the legislature to give special
protection and considerationto laborproblems, to child labor, to labor and
capital, to landlord and tenants. We are socializing and nationalizing
many things that are incorporatedhere; and I want to say that under
this Constitution, under this provision, in view of the collateral
provisions, that decision of the Supreme Court [regarding
pregnant women], I think, cannot any longer stand, because
under this draft it will be perfectly proper, even under due process of law
and equal protection of the laws, for the legislature to enact legislation
calculated to protect the interest of labor and solve the problems involving
lands and tenang and the like. . . .45

Delegate Laurel and Delegate Jose Perez also debated on the

constitutionality of legislation prohibiting employment of aliens in
factories in view of the Equal Protection Clause. Their debate
brought out the intent to transform the Philippine Equal Protection
Clause to suit the Philippine situation and not to adopt the meaning
of the clause in U.S. constitutional law lock, stock and barrel.

Delegatef. Pere.. - Would the law which would prohibit the

employment of aliens in any factory or establishment be valid
under the clause that no person shall be deprived ofthe equalprotection
of the law?
Delegate Laurel. - That might also be a subject of legislation.
Now, there are certain fundamental rights. You will observe,
Mr. Delegate, that the law refers to persons - no person shall
be deprived of his life, liberty, and property - because the right
to life, liberty, and property and other protection of our laws is
not aimed exclusively at our citizens, because, as I stated to
you, not only our citizens are protected, but the foreigners are
also protected in their rights.
Now, of course, right here in this draft, we are
discriminating on a certain fundamental question against
foreigners. And we are not doing that for the first time. We
have been doing that from the start. Foreigners cannot vote
because they lack political attachment. We discriminate right
now, even without that provision in this law. Foreigners
cannot own or purchase public lands. So that . . . we are
discriminating against foreigners in the exercise of political and
190 E UAL PROTECTION AND SOCIALJUSTICE IN THE PHILIPPINES

civil rights. Nobody has raised a question as regards the

constitutionality of such a provision enacted here by Congress
or by our own Legislature. And right here, as I have said, we
have provided for the conservation of our natural resources as
one of the fundamental philosophies of the draft of the
Constitution.
Delegate PereZ. - The gentleman, I think, has stated that
there is jurisdiction (sic) [jurisprudence] on this subject. Has he
not gone over In re Case 116 Pacific 1037; Blake v. McLung,
172 U.S. 239; Sully vs. American National Bank, 178 U.S. 289,
decided by the Supreme Court of the United States, declaring
that such a law would not be constitutional because it would be
a violation of the law which provides that no person shall be
denied the equal protection of the laws? If we incorporate it in
this Constitution, our Legislature cannot pass a law which
would prohibit the employment of aliens in factories and
establishments.
Delegate Laurel. - It will be a matter of interpretation, I
suppose, Mr. President, that we will not be necessarily bound
by the decisions of the state courts. (It) is a matter of policy for
the courts to be guided by the national policy which is outlined
and given by the Legislature. . . . That is to say our courts are not
supposed to interpret the law blindly; but they are supposed to be
necessariy obliged by the philosophy of this Constitution which we adopt.
And the legislature will, it is epected, enact laws in harmony with the
tendeng and with the philosophy of this Constitution....
Delegate PereZ. - Does the gentleman mean to say that, in
interpreting these laws which we have borrowed from the federal
constitution, we may destroy the jurisprudence in the United
States in cases of this nature?
Delegate Laurel. - Our Constitution may not only destroy, but it
may lay down doctrines which are adapted to the needs, traditions, and
idiosyncrades of our people. But notwithstanding the facts (sic) that we
have borrmwed these provisionsfrom the United States, we are not bound
necessar@l by the interpretationthat they have given.46

Delegate Laurel's statement that the Constitutional Convention

is not bound by the U.S. Supreme Court's interpretation of the
Equal Protection Clause despite its American origin is a far cry from
 Equal Protectionand SodalJustice in the 1935 and 1973 Constitutions 191

the admonition in Kepner that the "inviolable rules" should be given

the same meaning accorded to the American Bill of Rights.47
In the course of the debates, Delegate Ezequiel Santos also
interpellated Delegate Laurel with respect to the effect of the Equal
Protection Clause on labor legislation, viz.:

Delegate Santos. - For an information. Does the gentleman

believe that this provision [Equal Protection Clause] will not be
an obstacle to labor legislation or such laws intended for the
protection of labor?
Delegate Laurel. - It will not be an obstacle.48

The delegates of the Convention, relying on Delegate Laurel's

explanations, faithfully believed that notwithstanding the Equal
Protection Clause, the presence of collateral social justice provisions
on protection of women and minor laborers and nationalistic
provisions would allow legislature to pass social legislation declared
unconstitutional on equal protection grounds by American and
Philippine courts. With seventy votes, the Convention rejected the
Araneta-proposed amendment as against forty-eight votes in its
favor, thus retaining the Equal Protection Clause in the draft
constitution. 49
The Equal Protection Clause was among the provisions
intended to give teeth to the principle of promoting social justice
declared in the 1935 charter.50 The Declaration of Principles in
Article II of the 1935 Constitution provides:

Section 5. The promotion of social justice to insure the

well-being and economic security of all the people should be
the concern of the State.5

The paternity of the constitutional principle to promote social

justice can primarily be attributed to Delegate Jose Locsin. In the
deliberations of the Convention, he consistently championed the
need to ensure the promotion of social justice for the
underprivileged classes. The constitutional concept of social justice
was developed during the debates to mean "justice to the common
tao," the so-called "little man." 52 Social justice meant justice to the
common tao (person), his wife, and children in relation to their
192 EQUAL PROTECTION AND SOCIAL JUSTICE IN THE PHILIPPINES

powerfill employers in factories, farms, mines, and other

occupations. It signified justice to the "little man" in the education
of his children in schools, in his transactions with various offices of
government, including the courts of justice. In sum, it meant justice
to the common tao in relation to the more fortunate classes.53
Evidently, this conception of social justice is underpinned not by the
formal type of equality, but by the substantive kind that gives "extra
support" to disadvantaged groups in society. Notably, the notion is
concerned not with individual treatment and fairness, but with the
preferential treatment of disadvantaged groups vis-i-vis privileged
groups or classes.
The Convention delegates did not deem it necessary to
enumerate the forms that social justice would take, and instead
confined themselves to enunciating the general substance of social
justice as the improvement of the lot of the common tao, the
assurance of his well-being and economic security. 54 However, in his
book on the proceedings of the Convention, Delegate Jose Aruego
wrote that the Convention partly fleshed out the meaning of social
justice in various guarantees under the Bill of Rights and other
provisions in the 1935 Constitution,55 viz.:

ARTICLE IV
Bill of Rights

Section 1. (1) No person shall be deprived of life, liberty,

or property without due process of law, nor shall any person be
denied the equal protection of the laws.
Section 12. No person shall be imprisoned for . . . non-
payment of a poll tax.
Section 13. No involuntary servitude in any form shall exist
except as a punishment for crime whereof the party shall have
been duly convicted.
Section 15. No person shall be held to answer for a
criminal offense without due process of law.
Section 16.... Excessive bail shall not be required.
Section 19. Excessive fines shall not be imposed....
Section 21. Free access to the courts shall not be denied to
any person by reason of poverty.
 Equal Protection and SodalJustice in the 1935 and 1973 Constitutions 193

ARTICLE XII
Civil Service

Section 1.... Appointments in the Civil Service, except as

to those which are policy-determining, primarily confidential or
highly technical in nature, shall be made only according to
merit and fitness, to be determined as far as practicable by
competitive examination.

ARTICLE XIII
Conservation and Utilization of Natural Resources

Section 4. The National Assembly may authorize, upon

payment of just compensation, the expropriation of lands to be
subdivided into small lots and conveyed at cost to individuals.

ARTICLE XIV
General Provisions

Section 5.... The Government shall establish and maintain

a complete and adequate system of public education, and shall
provide at least free public primary instruction, and citizenship
training to adult citizens. . . . The State shall create scholarships
in arts, science, and letters for specially gifted citizens.
Section 6. The State shall afford protection to labor,
especially to working women, and minors, and shall regulate
the relations between the landowner and tenant, and between
labor and capital in industry and in agriculture. The State may
provide for compulsory arbitration.56

The 1935 Constitution contained other provisions in relation to

social justice and equality, viz.:

ARTICLE IV
Bill of Rights

Section 7. No law shall be made respecting an

establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious
194 EQUAL PROTECTION AND SOCILJUSTICE IN THE PHILIPPINES

profession and worship, without discrimination or preference,

shall forever be allowed....

ARTICLE XIII
Conservation and Utilization of Natural Resources

Section 1. All agricultural, timber, and mineral lands of the

public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines or to corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant,
lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall
not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five
years, renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which
cases, beneficial use may be the measure and limit of the grant.
Section 2. No private corporation or association may
acquire, lease, or hold public agricultural lands in excess of one
thousand and twenty four hectares, nor may any individual
acquire such lands by purchase in excess of one hundred and
forty four hectares, or by lease in excess of one thousand and
twenty four hectares, or by homestead in excess of twenty-four
hectares. Lands adapted to grazing, not exceeding two thousand
hectares, may be leased to an individual, private corporation, or
association.
Section 3. The Congress may determine by law the size of
private agricultural land which individuals, corporations, or
associations may acquire and hold, subject to rights existing
prior to the enactment of such law.
Section 5. Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to
 Equal Protectionand SodalJustice in the 1935 and 1973 Constitutions 195

individuals, corporations, or associations qualified to acquire or

hold lands of the public domain in the Philippines.

The main concerns - in the debates of the Convention on the

promotion of small private land holdings and expropriation of
landed estates under Article XIII, Sections 3 and 4, respectively

-
were the agrarian troubles and social unrest brought about by the
formation of huge landed estates as experienced in the Philippines
and other countries. Delegates supporting the adoption of the said
provisions pointed out that large estates with unduly powerful
landlords and helpless tenants had brought about the "caciquism"
system and the evils associated with it.
The provision limiting the size of public landholdings easily got
a nod from the delegates. However, a heated debate ensued on the
provision limiting the size of private agricultural landholdings.
Delegates opposed to it argued that it would stultify or even destroy
private initiative which had spurred progress in many other
countries. They asserted that the state should not prevent people to
work for unlimited progress, as individual progress would ultimately
benefit the country. After much debate, the proposal to limit private
agricultural landholdings was approved overwhelmingly.5 8 The
libertarian view that allows the free market to determine the
distribution of goods, benefits and burdens apparently undergirds
the argument proffered by opponents of the provision limiting
private agricultural holdings. On the other hand, supporters of the
provision apparently subscribed to a view congruent with the
Rawlsian liberal egalitarian conception of distributive equality that
will only allow inequality if it offers the greatest benefit to the least
advantaged members of society.59 Hence, considering the great
inequality in wealth and land ownership brought about by the
formation of large estates and the oppression it had caused helpless
tenants, delegates espousing a liberal egalitarian view pushed for the
provision limiting the size of private agricultural holdings.
The provision for expropriation of landed estates, similar to the
provision limiting private holdings, was approved. 60 In his stirring
speech pleading for approval of the provision, Delegate Miguel
Cuaderno cited the need to remedy the endless conflicts between
landlord and tenants, saying:
196 EQUAL PROTECHFONAND SOCIALJUSTICE IN THE PHiIUPPINES

There has been an impairment of public tranquility, and to

be sure a continuous impairment of it, because of the existence
of these conflicts. In our folklore, the oppression and
exploitation of the tenants are vividly referred to; their
sufferings at the hand of the landlords are emotionally pictured
in our drama; and even in the native movies and talkies of
today, this theme of economic slavery has been touched upon.
In official documents these same conflicts are narrated and
exhaustively explained as a threat to social order and stability.
But we should go to Rizal for inspiration and illumination
in this problem of the conflicts between landlords and tenants.
The national hero and his family were persecuted because of
these same conflicts in Calamba, and Rizal himself met a
martyr's death because of his exposal of the cause of the tenant
class, because he would not close his eyes to oppression and
persecution with his own people as victims.
I ask you, gentlemen of the Convention, knowing this as
you do and feeling deeply as you must feel a regret over the
immolation of the hero's life, would you not write in the
Constitution the provision on large estates and trusts in
perpetuity, so that you would be the very instrument of
Providence to complete the labors of Rizal to insure domestic
tranquility for the masses of our people?
If we are to be true to our trust, if it is our purpose in
drafting our constitution to insure domestic tranquiliy and to provide
for the well-being of our people, we cannot, we must not fail to
prohibit the ownership of large estates, to make it the duty of
the government to break up existing large estates, and to
provide for their acquisition by purchase or through
expropriation and sale to their occupants, as has been provided
in the Constitutions of Mexico and Jugoslavia. 61

Without doubt, as early as in the 1935 Constitution, the

underlying philosophy and provisions on social justice and equality
gave a new dimension to the Equal Protection Clause which the
Philippines inherited from U.S. constitutional law. With the
adoption of social justice provisions in the Constitution, the
libertarian and free-market conceptions of equality underpinning the
individual-focused American Bill of Rights gave leeway to a liberal
 Equal ProtectionandSodalJusice in the 1935 and 1973 Constitutions 197

egalitarian theory of distributive equality that seeks to promote the

welfare of disadvantaged groups in accord with the paradigm of
substantive equality. Although in the 1904 case of Kepner, the U.S.
Supreme Court prescribed that the rights extended to the
Philippines from the U.S. Constitution should be interpreted
according to the meaning given to the American Bill of Rights, the
Convention unequivocally chose to partly depart from the American
meaning of the Equal Protection Clause when it adopted the social
justice provisions alongside the Equal Protection Clause in the 1935
Constitution.
As Delegate Laurel lamented in the debates, the American-based
Philippine Bill of Rights put too much emphasis on the individual
and his natural and inalienable rights, in accord with the high value
placed on individualism in American constitutional theory and
tradition. But the social justice provisions of the 1935 Constitution,
which are not found in the U.S. Constitution, reduced the emphasis
on the individual in order to give due attention to the group-focused
social justice principle. The Equal Protection Clause in the 1935
Constitution was thus intended not to impede, but to allow, the
legislature to pass laws promoting the welfare of laborers,, tenants,
women, or in general, the common tao, comprising the
disadvantaged groups in society. Thirty-eight years after the
ratification of the 1935 Constitution, its social justice thrust was
strengthened in the 1973 Constitution even as the wording of the
Equal Protection Clause remained unchanged.

7.3 THE 1973 CONSTITUTION

The phraseology of the Equal Protection Clause, approved by the

1934 Constitutional Convention with the understanding that it had
been transformed by the social justice philosophy of the 1935
Constitution, was retained in the Bill of Rights of the 1973
Constitution, viz.:

Section 1. No person shall be deprived of life, liberty, or

property without due process of law, nor shall any person be
denied the equal protection of the laws. 62
198 EQUAL PROTECTION AND SOCIAL JUSTICE IN THE PHILTPPINES

The 1973 Constitution, compared with the 1935 Constitution,

enhanced the social justice and substantive equality ideology, as
shown by an increase in both the number and strength of social
justice and equality provisions. Significantly, unlike the Preamble of
the 1935 Constitution, equality was explicitly enshrined in the 1973
charter at the outset by adding it to the ideals of the Filipino people
stated in the Preamble, viz.:

Preamble

We, the sovereign Filipino people, imploring the aid of

Divine Providence, in order to establish a government that
shall embody our ideals, promote the general welfare, conserve
and develop the patrimony of our Nation, and secure to
ourselves and our posterity the blessings of democracy under a
regime of justice, peace, liberty, and equality, do ordain and
promulgate this Constitution (emphasis added).

In his sponsorship speech, Delegate Raymundo Baguilat,

Chairman of the Sub-Committee on the Preamble, emphasized the
worsening of the already yawning inequalities in Philippine society
and the responsibility of government to bridge them, viz.:

As Delegate Martinez strongly says in his Resolution No.

355, "it is imperative to declare in clear terms in the Preamble
the need to provide every man a fair and decent opportunity,
not just a Chinaman's chance to improve his lot in a nation
saddled with tragic inequalitiesin wealth andpower." The people are
demonstrating in the streets in protest of these inequalities in
our society.

. . . Let us spell out in our preamble the objectives of

achieving unity, of maintaining peace and security, of
protecting the life of our people, of guaranteeingequal opportunity
andpromotingsocialjustice to constantly remind our government
of their responsibilities and not merely imply them under the
63
phrase "general welfare."

The concept of equality enshrined in the Preamble was not

easily understood and agreed upon in the Convention. Delegate Juan
 EqualProtection andSodalJustice in the 1935 and 1973 Constitutions 199

David clarified the difference between equality and equality of

opportunity. In pointing out that the poor lack factors possessed by
the rich, he was apparently referring to substantive equality of
opportunity which, as earlier discussed, is concerned not only with
procedural fairness but also background fairness, viz.:

We know that equality embraces a good number of the

rights of the citizen, but may I call the attention of this
honorable Convention that equality is not synonymous with
equality of opportunity? ... The poor man wants equality and
justice. He is entitled to that equality and to thatjustice but he lacks
thesefactors which are attainedorpossessed by the rich man. The fightfor
justice is so unequal that the poor man suffers by reason of the
wide gap between them. 64

In subsequent debates, Delegate David expounded on the

difference between equality in the sense of "equality before the law"
or the right to equal treatment of persons by the law within the
framework of formal equality, and -substantive equality of
opportunity as an element of social justice. In some contexts,
however, he apparently used the term "equality" in the sense of a
social ideal that renounces social hierarchy. For his part, Delegate
Cicero Calderon understood equality as equal protection before the
law. The exchange between Delegate David and Delegate Calderon
showed the difficulty of grasping the concept of equality.

DELEGATE CALDERON (C): My question is, is not

"equal opportunity," which you seek the government to
guarantee, an essential element of "social justice"? Is it not one
of the important elements of social justice?
DELEGATE DAVID: Precisely, Your Honor, in my
resolution or in the proposed Preamble, I used the phrase
"equal opportunity" because it is not synonymous with
equality.
DELEGATE CALDERON (C.): Are we not also trying to
say that we will guarantee equal opportunity since equal
opportunity is an element of social justice?
DELEGATE DAVID: My thoughts are attuned to yours,
Your Honor, but unfortunately, I did not succeed in inserting
200 EQUAL PROTECTION AND SOCIALJUSTICE IN THE PHILIPPINES

that clause, notwithstanding the fact that some members of the

Committee called my attention to the word "equality" as it is
used here. In effect, there is a great difference between equaliy and
equal opportunio. Example: We have equality before the law but the
poor do not have equal opportunity with the rich to employ adequate
counsel. The poor have a right to equality but they do not have equal
opportunity as the rich because the means with which to enjoy equality are
not within their reach.
DELEGATE CALDERON (C): May I know then the
concept of the Committee with regard to the use of the word "equaliy"
because it is used here - "under a regime of liberty, equality,
and democracy"?
DELEGATE DAVID: Well, Your Honor, as I have
expressed in my observations a while ago, these are the classical
expressions - liberty, equality, justice and democracy which
constituted the battlecry of those who wanted to do away with
monarchy ....
DELEGATE CALDERON (C.): Your Honor, do you
agree with me then that "equal opportunity" is an important
element of social justice?
DELEGATE DAVID: I consider it indispensable.
DELEGATE CALDERON (C.): Indispensable. And
therefore, when we promote social justice, we don't really need
to state that we should guarantee "equal opportunity."
DELEGATE DAVID: Precisely, as I said, Your Honor,
the expression I used was "equal opportunity in the
preservation of life and health and equal opportunity in the
development of the talents regardless of financial positions."

DELEGATE CALDERON (C.): There is no use to

include the term "justice" in this draft, Your Honor.
DELEGATE DAVID: I said "liberty, equality and
democracy" only.
DELEGATE CALDERON (C.): And yet, if we define
democracy, as a concept, it includes also as one of its essential
elements the right to liberty and the rght to equality, whatever may
be your concept of equality. Equality means equal protection before the
law.65
 EqualProtection and SocialJusticein the 1935 and 1973 Constitutions 201

In another discussion of the Convention, respect for cultural

diversity was brought up in tackling the proposal to include the
concept of "unity in diversity" in the Preamble. Delegate Michael
Mastura acknowledged the presence of culturally diverse ethnic
groups in our country and the need to reflect respect for this
plurality in the Preamble. He pointed out that national unity should
not dilute this diversity, but must respect and celebrate differences.
He apparently did not espouse a formal conception of legal equality
which fails to take into account real differences among people.
Instead, he recognized that unjust inequality can result from this
failure to appreciate differences and not necessarily from failing to
treat everyone the same. Although the phrase "unity in diversity" did
not end up in the Preamble of the 1973 Constitution, the charter
provided in the Article on General Provisions that "[t]he State shall
consider the customs, traditions, beliefs, and interests of national
cultural communities in the formulation and implementation of
66
State policies." Delegate Mastura explained:

In the phrase "UNITY IN DIVERSITY," the thought

running in our minds about the need to build a national
community within the context of a culturallypluralisticsocety is
contained. This merely underlines the right approach towards
bringing together our culturally discrete ethnic groups into one
political territorial unit or nationhood. In the light of our long
experience in dealing with the problem of forging our society,
pluralistic that is, into a homogenous whole, we must realize
now that some ethnic groups are, as in algebra, the 'givens" in the
Philhpine national life. As a noted sociologist points out:
"Integration must be understoodin the light of thefact that the Phihlpines
is, and will likely, remain a pluralsociey. "Attempts to do away with this
pluralism so as to eliminate the less dominantgroups entirely, or even to
fuse them into one body politic will likely end in failure and only mult4zyl
miseU in the process.67

In subsequent debates on the Preamble, Delegate Magtanggol

Gunigundo opposed the proposed new Preamble for not being
sufficiently revolutionary as to reflect the goal of making a radical
departure from the status quo of Philippine society, which was
marked by glaring social inequalities. The delegate from Bulacan
202 EQUAL PROTECION AND SOCIALJUSTICE IN THE PHILIPPINES

strongly condemned social classes and subjugation of the powerless,

and instead called for a distribution of economic and political power
to enhance human dignity.

DELEGATE GUNIGUNDO: . . . Who would quarrel

with a just government, a good society? What would be wrong
in protecting the health of the Filipino people, in maintaining
peace and security, in preserving and developing the patrimony
of the nation, in guaranteeing equal opportunity, in promoting
social justice, and the general welfare, in securing for the
Filipino people and their posterity the blessings of life?
And is not a regime of liberty, equality, and democracy a
consummation devoutly to be wished?
These are the words from the new preamble - words
which mesmerize, which seem to convey every aspiration,
every dream, every vision, every goal.
These words would have been sufficient for me to keep
my silence and hold my peace, in view of the overwhelming
impact of those words - words such as "unremitting toil,"
words such as "unity in diversity." But on closer look, when
the words are weighed and examined and sounded, something
seems to be missing. There seems to be a void. As Franz
Fanon, an Algerian revolutionary writer, would say: "There
comes a time when silence becomes dishonesty." And this is
why I have to rise this morning to speak against this new
preamble, for it is not a Preamble, an avant-garde of a new
revolutionary Constitution. It is a commitment to preserve and
maintain the status quo. There are changes in style, in language.
These are innovations, but basically, this is the same preamble
of the present Constitution. "To innovate is not to reform,"
Edmund Burke said.
The issue that I presented to you this morning is whether
or not this preamble is a commitment to preserve and maintain
the status quo. In tackling this issue, let me ask certain
questions.
But you may ask, what is wrong with preserving and
maintaining the status quo? If by status quo is meant a
commitment to a system of free enterprise or a capitalistic
society, is anything wrong with the status quo?
 Equal Protection and SocialJustice in the 1935 and 1973 Constitutions 203

Is it wrong to preserve and maintain a structured society

which is divided into classes, which is sought to be maintained
by the words "unity in diversity"? Does not such a socieyfoster the
division into classes - the exploited and the exploiters - a relationshp of
domination and subjugation?
Is not such a society bound to explode into a revolution
because of the loyalty of classes to their own kind, thereby
resulting in a class struggle between the exploited and the
exploiters? ... Can such a society be considered good, when it
is good only to the exploiters who always have the upper hand,
it being based on merciless exploitation, dehumanization, and
deformation of man?
Can such a society be considered just, for capitalism, which
is its economic system, is unjust? In the words of Populorum
Progressio, the rich become richer, the poor, poorer.
Theoretically, there is liberty, but is not liberty only the
freedom of the Filipino people to accept the oppressive
conditions of the terms of employment, or else they might die
of hunger?
The Preamble speaks of equality of opportunity, but is not
capitalism based on inequality when profits are produced by
the work of a large number of people and appropriated by a
few?
In such a society, can it be said that law is the embodiment
of the ideals of the people, for the majority of our people are
those who have less in life, and only 22 families in this country
control and possess the wealth of our nation? In the words of
Disraeli, "a nation of the rich and a nation of the poor."
Does not law in such a society become the embodiment of
the ideals and the expression of the will of the ruling class and
the exploiters? How can the government in such a society be
just when the government is only an agent of the ruling class
-

of the foreign oligopolists, and of the indigenous oligarchs

-

which perpetuates them in power, which do as whatever the

ruling class decides?
Of what good is the promotion of the health of the people
when they are merely exploited? Is their health not be (sic)
protected if they may continue to work for the exploiters not
for the purpose of developing their individual personalities and
204 EQuAL PROTECION AND SOCIALJUSTICE IN THE PHILIPPINES

enhancing their dignity as individuals? Instead of humanism,

we have only crass materialism.
How can there be equal opportunity in such a society? To
guarantee equality in such a society is to maintain equality.
Is not socialjustice attained through a radical change in the power
structure, in what Justice Laurel in Calalang v. William [s] calls the
equalization of social and economic forces by the state so that
justice in its rational and objectively secular conception may at
least be approximated? How can the exploited go to the courts
in such a society? How can they expect the promotion of the general
welfare when there is no transfer of economic andpoliticalpowerfrom the
ruling class and the exploiters to them?

I submit to you, Ladies and Gentlemen, that the

imperatives for a Preamble should spell out a new socialand
economic orderfor ourpeople so they mayfulfill their role as human beings,
contribute to the economic growth and development of this
68
country and make this nation great.

In the end, however, the new Preamble was approved by the

Convention in the phraseology previously quoted.
Aside from the addition of "equality" as an ideal in the
Preamble, another significant change in the 1973 charter was the
removal of literacy as a prerequisite of the right to suffrage. The
provision on the right to vote in the 1973 Constitution reads in
relevant part:

Section 1. Suffrage shall be exercised by citizens of the

Philippines not otherwise disqualified by law, who are eighteen
years of age or over and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote for at least six months preceding the election.
No literag, property or other substantive requirement shall be
imposed on the exercise ofsuffrage.... 69

In his speech before the Convention, Delegate Augusto Caesar

Espiritu cited substantive equality in the sense of equal worth among
persons as a compelling reason to remove the literacy requirement
for the exercise of suffrage. He said:
 EqualProtectionand SocialJusticein the 1935 and 1973 Constitutions 205

Mr. President and colleagues of the Convention, the belief

in the common man crystallized and was proclaimed in the
French and American revolution. "We hold these truths to be
self-evident ... that allmen are created equal."
We believe in this, don't we? But in our society, sofar, some
men are more equal than others. We are asking you to frame a new
Constitution in which the ability to read and write will no
longer be a condition to the exercise of suffrage. We are asking
you to help us dignify the status of the depressed elements of
society so that they may be included in the category of
"people" when a new generation recites by heart the
democratic creed that "sovereignty resides in the people." 70

Delegate Sedfrey Ordofiez, apparently recognizing the structural

roots of inequality, lamented the irony that society was responsible
for illiteracy of the marginalized members of society and yet they
were the ones made to bear the consequence of being excluded from
the political process. He argued that this social and political
inequality must be removed by according them the right to vote.

DELEGATE ORDONEZ: . . . It is quite ironic, my

friends, that our own society is responsiblefor the disenfranchisementand
social imbalance in the economic andpoliticalfield which have resulted in
the creation of a so-calledgroup of untouchables, persons who cannot
participate in the process of voting and yet are governed by the
laws that are prepared by persons voted for office. This is quite
ironic because these persons, particularly the cultural
minorities, the underprivileged, are subject to the rule of law;
they are presumed to know the law, and yet, they do not have
any participation in the choice of the persons who are going to
make the law for them.
Unless you remove this literacy test, the cultural minorities,
the underprivileged, the urban guerrillas will forever be
outcasts of our society, irresponsive of (sic) what is happening.
And if this condition were to continue, my friends, we cannot
fully claim that we have representative democracy. Let us
reverse the cycle. Let us eliminate the social imbalance by granting to
these persons who are very responsible the right to participate in the choice
71
of the persons who are to make their lawsfor them.
206 EQUAL PROTECTION AND SOCIAL JUSTICE IN THE PHILIPPINES

The removal of literacy as a requirement for the right of

suffrage, however, does not ensure political equality because as
Delegate Manuel Martinez pointed out in another deliberation of the
Convention, economic inequalities nevertheless vitiate political
equality, viz.:

Indeed, Mr. President, why talk of civil and political rights

for all if these are actually enjoyed only by those small minority
who are economically free, if these are vitiated by economic
inequality?And as we often say in this Convention, politicalpower is only
afunction of economicpower.

The members of the power elite have families. They love

one another. Mothers want the best for their children; fathers
look forward to a better future for their sons. The rich also toil
and labor, not without honor, sacrifice or affection. But within
the impoverished masses are also families who love one
another, poor mothers who also have dreams for their
children, poor fathers who also toil and labor - in tears, in
resignation, in despair under conditions of exploitation. The
rich have the right to be happy - so do the poor. And yet, Mr.
President, human institutions, while guaranteeingpolitical rights to all,
deny equality in economic opportunities, and this inequality in economic
rights inevitably and in direct proportion leads to inequality in political
rights. So long as economic rights are monstrously lopsided, equality in
politicalrights is high-soundingfarce.72

Delegate Martinez, ostensibly subscribing to a liberal egalitarian view

of distributive equality, advocated a more active role of government
and the privileged class in addressing the intractable problem of
economic inequalities so that political equality would not be
rendered a farce. He stated:

[W]hat is of more urgent notice is that the government has

obligations not only insofar as what it may not do to its citizens, but what
it must do for them. In other words, the government must not
only protect the rights of citizens from encroachment, but
must also mobilize its resources and exercise its powers for the
full development and culmination of the people's economic
 EqualProtection and SoialJusticein the 1935 and 1973 Constitutions 207

rights. Besides protecting citizens from criminals, it must

provide housing for the masses; besides granting them freedom
of speech, it must give them education; besides freedom from
religion, there must be adequate health services. And most
important of all, economic rights should be equaliZed asfar aspossible;
the abusive practices and unearnedprivileges of the few who are rich must
be trimmed down as a necessary requisite to giving economic liberties and
opportunitiesto the many who arepoor.

To the power elite, I ask the following questions: Are you

against the philosophy of bridging the wide chasm between the rich
and the pood? Are you willing to use your capital not just for
private profit, but also for public benefit? Do you believe that
the status quo is perfect, that present conditions are just, that
they cannot be improved?
These are questions that can be answered by a simple "yes"
or "no." We are waiting for your reply, the nation is waiting.
The teeming masses suffering from exploitation is (sic) waiting.
History is waiting. 73

Aside from the Preamble and the provision on suffrage, the

1973 Constitution manifested a stronger social justice and
substantive equality thrust in the following provisions:

ARTICLE II
Declaration of Principles and State Policies

Section 3. 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.
Section 6. The State shall promote social justice to ensure
the dignity, welfare, and security of all the people. Towards this
end, the State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably
diffuse property ownership and profits.
Section 7. The State shall establish, maintain, and ensure
adequate social services in the field of education, health,
208 EQuAL PROTECTIONAND SOCIAL JUSTICE IN THE PHILIPPINES

housing, employment, welfare, and social security to guarantee

the enjoyment of the people of a decent standard of living.
Section 9. The State shall afford protection to labor,
promote full employment and equality in employment, ensure
equal work opportunities regardless of sex, race, or creed, and
regulate the relation between workers and employers. The State
shall assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions
of work. The State may provide for compulsory arbitration.

ARTICLE IV
Bill of Rights

Section 8. No law shall be made respecting an

establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference
shall forever be allowed ....
Section 13. No person shall be imprisoned for debt or
non-payment of a poll tax.
Section 14. No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall
have been duly convicted.
Section 17. No person shall be held to answer for a
criminal offense without due process of law.
Section 18.... Excessive bail shall not be required.
Section 21. Excessive fines shall not be imposed nor cruel
or unusual punishment inflicted.
Section 23. Free access to the courts shall not be denied to
any person by reason of poverty.

ARTICLE X
The Judiciary

Section 5. The Supreme Court shall have the following

powers:

(5) Promulgate rules concerning pleading, practice, and

procedure in all courts . . . . Such rules shall provide a
 Equal Protectionand SocialJustice in the 1935 and 1973 Constitutions 209

simplified and inexpensive procedure for the speedy

disposition of cases ....

ARTICLE XIV
The National Economy and the Patrimony of the Nation

Section 2. The State shall regulate or prohibit private

monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall
be allowed.
Section 3. The National Assembly shall, upon
recommendation of the National Economic and Development
Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens,
certain traditional areas of investments when the national
interest so dictates.
Section 5. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines at least sixty per
centum of the capital of which is owned by such citizens, nor
shall such franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither shall
any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteration, or
repeal by the National Assembly when the public interest so
requires. The State shall encourage equity participation in
public utilities by the general public. The participation of
foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in the
capital thereof.
Section 9. The disposition, -exploration, development,
exploitation, or utilization of any of the natural resources of the
Philippines shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the
capital which is owned by such citizens. The National
Assembly, in the national interest, may allow such citizens,
corporations or associations to enter into service contracts for
financial, technical, management, or other forms of assistance
with any foreign person or entity for the exploration, or
210 EVUAL PROTECION AND SOCLAL JUSTICE IN THE PHILIPPINES

utilization of any of the natural resources. Existing valid and

binding service contracts for financial, technical, management,
or other forms of assistance are hereby recognized as such.
Section 12. The State shall formulate and implement an
agrarian reform program aimed at emancipating the tenant
from the bondage of the soil and achieving the goals
enunciated in this Constitution.
Section 13. The National Assembly may authorize, upon
payment of just compensation, the expropriation of private
lands to be subdivided into small lots and conveyed at cost to
deserving citizens.

ARTICLE XV
General Provisions

Section 7. (1) The ownership and management of mass

media shall be limited to citizens of the Philippines or
corporations or associations wholly owned and managed by
such citizens.
(2) The governing body of every entity engaged in
commercial telecommunications shall in all cases be controlled
by citizens of the Philippines.
Section 8... . (5) The State shall maintain a system of free
public elementary education and, in areas where finances
permit, establish and maintain a system of free public
education at least up to the secondary level.
(6) The State shall provide citizenship and vocational
training to adult citizens and out-of-school youth, and create
and maintain scholarships for poor and deserving students.
(7) Educational institutions, other than those established
by religious orders, mission boards, and charitable
organizations, shall be owned solely by citizens of the
Philippines, or corporations or associations sixty per centum of
the capital of which is owned by such citizens. The control and
administration of educational institutions shall be vested in
citizens of the Philippines. No educational institution shall be
established exclusively for aliens, and no group of aliens shall
comprise more than one-third of the enrollment of any school.
The provisions of this subsection shall not apply to schools
 EqualProtectionand SocialJustice in the 1935 and 1973 Constitutions 211

established for foreign diplomatic personnel and their

dependents and, unless otherwise provided by law, for other
foreign temporary resident.
Section 11. The State shall consider the customs,
traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State
policies.

ARTICLE XVII
Transitory Provisions

Section 5. The interim National Assembly shall give priority

to measures for . . . the implementation of declared agrarian
reforms, the standardization of compensation of government
employees, and such other measures as shall bridge the gap
between the rich and the poor.

The above-quoted provisions indisputably show that the 1973

Constitution, despite retaining the wording of the Equal Protection
Clause, had a more intense social justice thrust than the 1935
Constitution. Still, it proved inadequate in addressing tragic
inequalities in Philippine society, thus prompting the framers of the
1987 Constitution to strengthen this thrust even further as will be
shown in the next chapter.