Chapter 10 Agabin

A Constitution of Positive Liberty

The concept of Positive liberty

 Our leaders viewed the government as the primary threat to our liberty. This prompted the
framers of our constitution to lay down the rules for the exercise of governmental power so it will
not be too string for the liberties of the people.
 The constitution of Biak-na-bato and malolos constitution
o Contains procedural safeguards designed to limit political power so as to protect the
individual from abuses of the state and the church. Such limitations placed on the state
to prohibit the impairment of political and civil rights of the people in the negative side of
liberty
 Bill of Rights
o Rigid limitations imposed on governmental power so that it will not trample on the rights
of the citizens
o Negatively phrased (prohibits, shall not, etc)
o Known as the American’s “charter of negative liberties” which preserves the private realm
from oppressive state interference
 th
Late 19 century saw how the advent of industrialization and capitalism shifted the source of
individual security from governmental powers to economic power of those who controlled the
means of production. Negative liberties became meaningless if the basic needs of the individual
were neglected. Liberty began to be seen not only in terms of the negative duty of the state to
refrain from infringing on the rights of the people but also in terms of the positive duty to combat
hunger, to provide economic opportunities, and to redistribute the gains from economic activity.
 Instead of a constitution of negative liberties alone, the constitution would be also one of positive
liberty. The charter will not only limit the powers of govt but also direct the govt to promote
general welfare by reallocating resources, improving living condition of the poor and providing
basic services necessary for a civilized existence*. *such is the charter of positive liberty

Constitutions embodying the concept of positive liberty

 The 1987 constitution is made out of a combination of positive and negative liberties.
o Most of the objectives it lays down are economic in character (to distribute economic
opportunities, income and wealth equitably; to promote industrialization and full
employment… etc). it is a constitution of positive liberty because it sets up a gov’t of
action, not one of inaction.
 The constitution of the Philippines is not alone as a model of positive charter. Countries which
promulgated their constitution after a revolution, or emergence of industrialization and modern
capitalism, follow the same model. Ex. The constitution of Argentina guarantees social security,
flexible retirement pay and pensions, full family protection including family welfare ad economic
compensation, and access to decent housing etc)
 Comparison between PH and US Constitution

1987 Constitution American Constitution

Contains Has 3 basic parts
1. The organization of government 1. The organization of government
 2. Bill of rights 2. Bill of rights
3. Method of amendment 3. Method of amendment
4. Economic, social, cultural and educational
policies
 The necessity of incorporating the positive aspect of liberty in our constitution, according to J. Puno, was
due to basic inequality in the Philippine society where the “majority have no more than paper rights”. In
Republic v Manila Electric company, he declared: “in 3rd world countries like the Ph, equal justice will have
a synthetic ring unless the economic rights of the people, especially the poor, are protected with the same
resoluteness as their right to liberty”. The present constitution embodies the positive aspect of liberty. “The
constitutions is a covenant that grants and guarantees both the political and economic rights of the people”
and “the protection of the rights of the poor and the powerless is of greater importance to them for they
are concerned with the esoterics of living and less with the esoterics of liberty.

The SC gives meaning to Positive Liberty

 The revolutionary contribution of SC to the concept of positive liberty is the promulgation and adoption og
the writs of amparo and habeas data. It is revolutionary as it breaches the essentialist tradition of the
separation between law and politics. Both writs were imported into the Ph thru judicial
“legislation”(disguised as rules of procedure) unlike in other countries where these remedies were adopted
thru political processes. These writs stand as a sentinel against government-sanctioned abuses of human
rights, especially extrajudicial killings and enforced disappearances and against the violations of the right
to privacy.
o Writ of amparo- used to compel police and military officers to use extraordinary diligence to
compel access or reconstruct information that a dead military officer received from his “assets” ir
network of assets.
o Writ of habeas data- used to protects a person’s right to control information about himself

Public-private dichotonomy

 The advent of a welfare state saw the proliferation of GOCCs and the creation of several gov’t administrative
agencies. There are at least 5 categories of corporations which are considered under the ownership and
control of the gov’t:
o First, Corporations created by special legislation at the national level
o Second, subsidiaries of such corporation created under the general corporation code
o Third, corporations acquired by existing gov’t corporations through purchase, forclosure of the
pledge on the stocks, sequestration, or any other form of acquisition
o Fourth, subcategories of the first three, which are joint mixed undertaking of both the gov’t and
the private sector, with the gov’t holding atleast majority of the controlling shares
o Fifth, municipal enterprises, specially public utilities, formed by local gov’ts by incorporation under
the general corporation law

Defining GOCC: the control test

 GOCCs are categorized into 3 classes, depending on the mode of creation:

o Corporations chartered directly by special law where the government owns 51 percent or more of
the equity
o Subsidiaries of the above established either by special law or under the general corporation law
o Private corporations taken over by entities above