By Josephine A. Concepcion *

Justice Isagani A. Cruz made it clear.

     The constitution must be quintessential rather than superficial, the root and not the blossom, the base and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly 'in the crucible of Filipino minds and hearts,' where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the constitutional convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history and dynamism and vitality that will keep it. far from becoming a petrified rule, a pulsing living law attuned to the heartbeat of the nation.1

     Constitutions are designed to meet not only the vagaries of contempo-rary events. They should be interpreted to cover even future and unknown circumstances.2 In fact, one of the essential characteristics of a good Constitution is that it must be broad enough to meet future contingencies and apply to divergent needs of its subjects. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods, and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services, and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.3

     On the basis of this equality and reciprocity, the government finds reasons to humanize and swing to the millennium buzz word "Globalization". This ushers a new borderless world of business by sweeping away as mere historical relics the traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls, replaces the age-old "beggar-thy-neighbor policy" and open up each market to the world with least control from respective states.4

     The question is not anymore focused on whether globalization is constitutional or not. A more pressing emphasis must be on how far our Constitution can bend to balance what is truly for Filipinos alone without sacrificing trade agreement as well as foreign relation with other states; of how far it can shield itself from what seems to be an unconscious maneuver of the state affairs in the guise of increased participation as key to domestic growth and prosperity.

     This point was, in fact, answered in the case of Wigberto Taņada vs. Edgardo Angara, et. al.5 The Supreme Court concluded that there are enough balancing provisions to ratify the Philippine concurrence in the WIG Agreement. Sec. 1 of Art. XII of the Philippine Constitution lays down the basic goals of national economic development, to wit:

  1. Amore equitable distribution of opportunities, income and wealth;
  2. A sustained increase in the amount of goods and services for the benefit of the people; and
  3. An expanding productivity as the key to raising the quality of life.
     With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony and in the use of Filipino labor, domestic materials and locally-produced goods;6 (2) by mandating the State to "adopt measures" that help make them competitive;7 and (3) by requiring the State to "develop a self-reliant and independent national economy effectively controlled by Filipinos.8 In similar language, the Constitution takes into account the realities of the outside world as it requires the pursuit of a "trade policy that serves the general welfare and utilizes all forms and arrange-ments of exchange on the basis of equality and reciprocity"9 and speaks of industries "which are competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises against unfair foreign competition and trade practices."10

     The Constitution speaks well of its mandate. Preference must be given to a Filipino in all areas of development. However, this rule admits of certain limitation. The constitutional provision of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investment and services. It contemplates neither "economic seclusion" nor "mendicancy in the international community". 11

     This analysis is further enhanced by the principle of pacta sunt ser-vanda. A state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. After all, the Constitution "adopts the generally accepted principle 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."12

     Therefore, the issue boils down to one thing. The Philippines is pre-pared to assert its competence in the global market, at least, in the legal aspect, it now becomes moot and academic. With regard to its beneficial point of view, this remains to be seen. Hardly known to many, the provisions of Article XII - National Economy and Patrimony, are treated as incompat-ible to the thrust of globalization by people behind moves to amend the Charter. In fact, this is not the first time this particular provisions became prominent.

     A revisit of the Parity Amendment is pertinent. Here, the American citizens were given the same rights as that of the Filipinos in the use exploration and exploitation of the natural resources. These resources shall be open to citizens of the US and to all forms of business enterprise owned or controlled, directly or indirectly, by US citizens.13

     Whatever considerations our lawmakers then had in mind, history has its own justification. However, citizens of the United States and corpora-tions and business enterprises owned and controlled by them cannot acquire and own, save in cases of hereditary succession, private agricultural lands.14The Parity Amendment contemplated alienation of public agricultural lands only.

     The basis is Sec. 5 now sec. 7 of the 1987 Constitution, "Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain." Under this provision, aliens are qualified to hold or acquire alienable lands of the public domain only in cases of hereditary succession. The phrase "hereditary succession' should be inter-preted to mean intestate succession and not testamentary succession.15

     A sale of land in violation of the constitutional prohibition against the transfer of lands to aliens is void. This being the case, the parties should be restored in the position they occupied before the sale took place. In other words, the seller can recover the land from the buyer (alien) who has a right to be reimbursed with the amount of the purchase price. But if the land had been sold by the alien to a Filipino citizen qualified to own and possess it, the sale to the latter cannot be questioned anymore as the land is already possessed by a qualified person.16

     Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations, qualified to acquire or hold lands of the public domain in the Philippines" is an expression of public policy to conserve lands for the Filipino people. Therefore, Art. 1416 of the Civil Code, which declares that "when the agreement is not illegal per se but is merely prohibited, and the prohibition by law is designed for the protection of the plaintiff, he may if public policy is thereby enhanced, recover what he has paid or delivered," is applicable.

     Consequently, it is now settled that where a Filipino vendor transfers or assigns a residential or commercial lot to an alien in violation of the KRIVENKO doctrine, although such transfer or assignment is void ab initio, he has now a perfect right to institute an action for recovery or re-conveyance of the property against the alien, or it may be in the nature of a petition for reversion within the meaning of sec. 5 of Rule 92.17

     We are satisfied, however, that aliens are not completely excluded by the Constitution from the use of lands for residential purposes. Since their residence in the Philippines is temporary, they may be granted temporary rights such as a lease contract which is not forbidden by the Constitution. Should they decide to remain here forever and share our fortunes and misfortunes Filipino citizenship is not impossible to acquire.

     In view of the foregoing, there is NO NEED to amend the Charter insofar as the National Economy and Patrimony is concerned. The Consti-tution has enough built-in provisions to meet the demands of time - that of Globalization and a Nationalistic Economy. To allow 100% foreign equity ownership and alien landholding for the sole purpose of making the Con-stitution attuned to the exigencies of world economic policies would render nugatory the spirit of the Constitution." It should be emphatically stated that the provisions of our Constitution which limit to Filipinos the rights to develop our natural resources and to operate the public utilities of the Philippines is one of the bulwarks of our national integrity. The Filipino people decided to include it in our Constitution in order that it may have the stability and permanency that its importance requires. It is written in our Constitution so that it may neither be the subject of barter nor be impaired in the give and take politics. With our natural resources, our sources of power of energy, our public lands, and our public utilities, the material basis of the nation's existence, in the hands of aliens over whom the Philippine government has no control, the Filipinos may soon find themselves deprived of their patri-mony and living as it were, in a house that no longer belongs them."18 The Constitution is flexible enough. To bend it more would be a virtual maneuver of the same.


* LLB. 2000, Article Editor, UB Law Journal
1Quintessential Constitution" by lsagani A. Cruz, Philippine Political Law, 1996 Edition, p. 13.
2Taņada, et al. vs. Angara, G. R. No. 118295, May 2, 1997.
3 ibid.
4 Ibid.
5 The Lawyers Review, June 30, 1997, p.21.
6 Sec. 10, Art XII.
7 Sec. 12, Art. XII.
8 Sec. 19, Art. II.
9 Sec. 13, Art. XII.
10 Ibid.
11 III Records of the Constitutional Commission, p.252.
12 Sec. 2, Art. II., 1987 Philippine Constitution.
13 Judge Jorge R. Coquia, The Parity Rights Amendment, 46 SCRA 261.
14 Republic vs. Quasha, 46 SCRA 461.
15 Ramirez vs. Vda. De Ramirez, 111 SCRA 704.
16 Herrera vs. Luy Kim Guan, 1 SCRA 406.
17 Philippine Banking Corp. vs. Lui She, September 12,1967.
18 Sinco, Vicente G. quoted from the Congress Record, House of Representative, Vol. 1 No. 26 p. 561.