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A Filipino Attempt at Constitution-Making

THE only constitution ever framed by Filipinos is what is
known as the Malolos Constitution, taking its name
from the then capital of the Filipino Revolutionary
Government. This constitution, to be understood, should be
viewed in relation to its background : centuries of Spanish rule
over the Philippines, insurrections first against the authority of
Spain and " her bad government", and later against the as-
sumption of sovereignty by the United States, and the gradu-
ally increasing sense of nationality which, nourished in the
blood of martyrdom, grew into a common and an ardent desire
for independence.

Although the revolt of 1872 against Spain failed almost at
once, it was revived on a larger scale in 1896 and was only
temporarily checked by the Pact of Biac-na-bato, between the
Spanish authorities and General Emilio Aguinaldo, the com-
mander-in-chief of the Filipino forces. A recrudescence of the
outbreak, with various causes, the principal of which was a
misunderstanding of American aims, began in 1898, and was
brought to a conclusion by the dispersal of the Filipino forces
and the capture of General Aguinaldo, followed by the Amnesty
Proclamation of the President of the United States, July 4,
1902, granting full and complete pardon to all persons for
political offenses committed in the islands.

A Filipino government was first established in the form of a
dictatorship by Aguinaldo's proclamation of May 24, 1898.
The government, according to this proclamation, was " to be
administered by decrees promulgated upon my responsibility
solely," until the islands shall be " completely conquered and
able to form a constitutional convention and to elect a presi-
dent and a cabinet in whose favor I will duly resign the author-



ity." ' One month later, the Dictatorial Government gave way
to the Revolutionary Government, with Aguinaldo as president.
The objects of the Revolutionary Government, according to the
proclamation providing for its temporary constitution, were " to
struggle for the independence of the Philippines, until all
nations, including Spain, shall expressly recognize it, and to
prepare the country for the establishment of a real Republic. 2

During the entire period, 1 897-1901, Emilio Aguinaldo was
successively the commander general, the dictator, the president
of the Revolutionary Government, and the president of the
Philippine Republic. He was assisted by cabinets, in which
served eminent Filipinos such as Apolinario Mabini, Pedro A.
Paterno, and Felipe Buencamino. Foreign delegates were ap-
pointed, of whom Felipe Agoncillo was the most active. Two
groups arose in the government : one, the Radicals or " Irrecon-
cilables" the war party which believed in independence at any
cost, and the other, the Conservatives or " Paci.fi.cos" who
wanted peace, with independence if possible, but if not, the
best government which peaceful means could obtain from the
Spanish or American regimes. From the standpoint of inter-
national law, the Filipino government was of the class known
as a de facto governments

Possibly the most important manifestation of governmental
capacity — at least it is of most interest in this connection — was
the record of the revolutionary congress. In conformity with
the organic decree of June 23, 1898, made effective by decrees
of September 4 and 10 of the same year, the congress con-
vened in the church of Barasoain near Malolos, Bulacan, on
September 15, 1898. Eighty-five deputies, some elected and
some appointed, responded to the summons. 4 The legal pro-

1 See Aguinaldo's Resena Veridica de la Revoluci6n Filipina (True Review of the
Philippine Revolution) of September 23, 1899, published in vol. 35, Cong. Record,
Part 8, Appendix, p. 440. Proclamation quoted in Senate Document 62, p. 431.

'Calderdn, Mis Memorias sobre la Revoluci6n Filipina (My Memories of the Phil-
ippine Revolution), pp. 72-92.

3 Macleod v. United States (1912) 229 U. S. 416, 57, L. Ed. 1260; U. S. v.
Pagaduan (1917) 37 Phil. 90.

*Calder6n, Mis Memorias sobre la Revoluci6n Filipina, Appendix, pp. 1-3; Wor-
cester, The Philippines Past and Present, vol. i, p. 264. The list printed with the


fession was most largely represented. Many able Filipinos
were included among the members. Some were later to fill
important posts in the American administration. There was
Pedro A. Paterno, a prominent figure during the closing days
of the Spanish administration and an intermediary between the
Spanish officials and the Filipino radicals ; Benito Legarda, sub-
sequently a member of the Philippine Commission and a resi-
dent commissioner to the United States; Gregorio Araneta,
attorney-general and secretary of finance and justice; Pablo
Ocampo, resident commissioner to the United States; Trinidad
A. Pardo de Tavera, member of the Philippine Commission and
organizer of the Federal Party; Alberto Barretto, secretary of
finance; Ignacio Villamor, attorney-general and president of
the University of the Philippines ; Arsenio Cruz Herrera, mayor
of Manila and member of the Philippine Assembly; Felipe
Buencamino, long a well-known lawyer ; and others who be-
came judges or assemblymen. While a few delegates were
graduates of European universities, yet Felipe Calderon, the
member of the convention who assumed the most prominent
r61e in its deliberations, and whose work, My Memories of the
Philippine Revolution, is of a nature similar to that of The
Federalist, and of Prince Ito's Commentaries on the Japanese
Constitution, is frank to admit that they had little or no knowl-
edge of matters political and constitutional. 1 An American
writer, John Barrett, more charitably inclined, says that the
delegates " would compare in behavior, manner, dress and edu-
cation with the average men of the better classes of other Asi-
atic nations, possibly including the Japanese. These men,
whose sessions I repeatedly attended, conducted themselves
with great decorum and showed a knowledge of debate and
parliamentary law that would not compare unfavorably with
the Japanese parliament.""

official edition of the political constitution of the Philippine Republic contains the
names of ninety-two members, later raised to one hundred and ten. Le Roy, The
Americans in the Philippines, vol. i, pp. 288, 299, notes.

1 Calder6n, Mis Memorias sobre la Revoluci6n Filipina, pp. 234, 235.

2 John Barrett, ex-Minister to Siam, in an address at Shanghai, January 12, 1899;
and, by the same author, "Some Phases of the Philippine Situation," Review of
Reviews, July, 1899, p. 65.


The sessions of the revolutionary congress were opened by
the president, who read his message in person. The delegates
were therein enjoined " to write with their votes the immortal
book of the Filipino Constitution, as the supreme expression of
the national will." z The congress was organized with Pedro A.
Paterno as president, Benito Legarda as vice-president, and
Gregorio Araneta and Pablo Ocampo as secretaries. The rules
of the Spanish Cortes, slightly modified, were temporarily
adopted. Eight committees were selected, including a com-
mittee to draft a constitution, composed of Hipolito Magsalin,
Basilio Teodoro, Jose Albert, Joaquin Gonzalez, Gregorio
Araneta, Pablo Ocampo, Aguedo Velarde, Higinio Benitez,
Tomas G. del Rosario, Jose Alejandrino, Alberto Barretto,
Jose Ma. de la Vina, Jose Luna, Antonio Luna, Mariano Abella,
Juan Manday, Felipe Calderon, Arsenio Cruz Herrera, and
Felipe Buencamino. 2 Subsequent to the perfection of an or-
ganization, and the patriotic ratification of a declaration of in-
dependence, the principal work of the congress became the
discussion and adoption of a constitution.

Contemporary testimony shows that the Committee on the
Constitution had before it three plans: those of Paterno, a
modification of his autonomy project ; of Mabini, expounded
in his True Decalogue and his Constitutional Program ; and of
Calderon. The project of the latter prevailed, and was re-
ported to the congress on October 8, 1898.3 Then, after
printed copies had been distributed, there ensued a discussion
article by article, lasting for over a month — from October 25
to November 29. Those prominent in the debates were
Felipe Calderon, Ambrosio Rianzares Bautista, Juaquin Gon-
zalez, Tomas G. del Rosario, Arcadio del Rosario, Ignacio
Villamor, Alberto Barretto, Aguedo Velarde, and Pablo Tec-
son. The religious question — whether to adopt a state religion
as proposed by Calderon, or separation of church and state as

1 Millet, The Expedition to the Philippines, pp. 261-267; Calder6n, Mis Memor-
ias sobre la Revoluci6n Filipina, appendix, pp. 3-5.

2 Calder6n, Mis Memorias sobre la Revoluci6n Filipina, pp. 234, 235; appendix,.
pp. 5-10.

% Ibid., appendix, pp. 16-18.


advocated by the faction under the leadership of Tomas G. del
Rosario — was the subject of the most heated debate ; after the
first vote had resulted in a tie, twenty-five to twenty-five, Pablo
Tecson cast the deciding vote in favor of the amendment pro-
viding for freedom of worship. 1 The constitution was approved
by congress on November 29 and immediately transmitted to
General Aguinaldo for promulgation. The president of the
Revolutionary Government, however, acting on the instigation
of the premier, Mabini, returned the proposed constitution on
December 1, 1898, with a message in which he recommended
certain amendments. 2 The congress, following the report of
its committee, prepared by Calderdn, refused to accede to these
amendments.3 The president thereupon gave in and approved
the constitution on December 23. On January 21, 1899, the
day after the formal adoption by congress, President Aguinaldo
promulgated the constitution and ordered that it should be
" kept, complied with and executed in all its parts because it is
the sovereign will of the Filipino people." A copy of the con-
stitution was forwarded by Aguinaldo to General Otis, the
military governor, with the comment that the people " have
adopted the form of government most compatible with their
aspirations". 4 Due to the war, the Malolos Constitution was
never actually put in force.

Mabini vigorously contended that under the provisions of

��An account, with brief summaries of the discussion, will be found in La Indepen-
dencia for November 29, 30, and December 1, 1898, and in Calderdn, Mis Memor-
ias sobre la Revolucidn Filipina, pp. 241-245. See Le Roy, The Americans in the
Philippines, vol. i, pp. 316, 317. Article 5, Title III, of the constitution as passed
reads: "The State recognizes the freedom and equality of religious worship, as well
as the separation of the Church and the State."

2 Calderdn, Mis Memorias sobre la Revoluci6n Filipina, appendix, p. 99; Ponce,
Efemerides Filipinas, pp. 71-74; Kalaw, Documentos Constitucionales sobre Fili-
pinas, Part 2, p. 36, citing Document 34, say December 1, 1898. Kalaw, La Con-
stituci6n de Malolos, and Worcester, The Philippines Past and Present, vol. i, p. 266,
citing record 40.8, give January I, 1899. See Mabini, La Revoluci6n Filipina, p.
72. Message quoted in Kalaw, La Constituci6n de Malolos, Appendix B.

3 Quoted in Calderdn, Mis Memorias sobre la Revoluci6n Filipina, pp. 237, 238,
appendix, pp. 99, et. seq ; and in Kalaw, La Constitucidn de Malolos, Appendix C.

♦Hearings before the Senate Committee on the Philippines, vol. i, p. 823; Sen-
ate Document 138, 56th Congress, 1st session; Ponce, Efemerides Filipinas, p. 71.


articles fifteen and sixteen of the organic decree giving the
powers of Congress, it had no legal right to adopt a constitu-
tion. He advised Aguinaldo that " congress should not adopt
a constitution, as it was not a constituent assembly; nor could
it enact laws, as it did not have any legislative powers ; and its
principal and urgent duty was to study the best system of or-
ganizing the military forces and obtaining the necessary funds
for the maintenance of the same." " Moreover," he added,
" it was not the right time for framing a constitution, as the
independence of the Philippines had not as yet been recog-
nized." * His advice was of no avail and was rejected by the
president and the cabinet. Mabini was probably right in
theory, but wrong in fact. He was right in showing that the
time was not the best for the drafting of a formal constitution.
The testimony of others proves him wrong in arguing that the
principal aim of the congress was not the adoption of a consti-
tution. That was the avowed purpose as a matter of policy.

While Felipe G. Calderon is entitled to the honor of being
called the author of the Malolos Constitution, that document
was by no means an entirely original creation. Prior con-
stitutional projects in the Philippines had a molding influ-
ence. The Cartilla and the Sanggunian-Hukuman — the
charter and code of laws and morals of the Katipunan, drawn
up by Emilio Jacinto (1896); the provisional constitution of
Biaknabato (1897) modeled after a revolutionary constitution
of Cuba, planned by Isabelo Artacho ; Mabini's Constitutional
Program of the Philippine Republic (1898); the provisional
constitution of Mariano Ponce (1898), following Spanish con-
stitutions; and the autonomy projects of Paterno (1898) — all
contributed to the evolution of the Malolos Constitution. 1
Besides, as the committee on the constitution said in its report :

1 Mabini's Writings, vol. ii, pp. 246, 247; Mabini, La Revolucidn Filipina, pp.
68-71. See Kalaw, "The Constitutional Flan of the Philippine Revolution,"
Philippine Law Journal, December, 1914, pp. 208, 209.

'Epifanio de los Santos, Biography of Trinidad H. Pardo de Tavera, p. 33;
Epifanio de los Santos, Biography of Emilio Jacinto; Kalaw, "The Constitutional
Plan of the Philippine Revolution," Philippine Law Journal, December, 1914, pp.


"The work whose results the commission has the honor to
present for the consideration of congress has been largely a
matter of selection ; in executing it not only has the French
constitution been used, but also the constitutions of Belgium,
Mexico, Brazil, Nicaragua, Costa Rica, and Guatemala, as we
have considered those nations as most resembling the Filipino
people." ' The general outline of the text was borrowed from
Costa Rica, Chile, and Spain. The inspiration was always
drawn from Spanish or Spanish-American constitutions. A
comparison of the articles of the Malolos Constitution with
those of Spain and the South American republics will show
this. Such influence as the constitution of the United States
had upon the Malolos document filtered through the constitu-
tions of its Southern neighbors. Arcadio del Rosario did in-
deed contend on the floor of the revolutionary congress that
the work of the committee should have been patterned after the
constitution of the American nation, which " being the champion
of liberty, is the most democratic nation, and with which the
Filipino people are united by strong ties of friendship and
sympathy " ; but the reply of Calderon prevailed — " that the
gratitude which the Filipino people owed the American nation
did not oblige them to adopt the institutions of the latter,
taking into consideration the differences in their history, usages,
and customs, and that the country was most akin, politically, to
the South American republics, and other Latin nations ".»

The tendency to absorb Latin principles was natural, in fact
inevitable, because of the education of the leading members
and their familiarity with Spanish institutions, and because of
what Calderdn called the " religious tradition."

The constitution 3 opened with a preamble reading: "We,

l Calder6n, Mis Memorias sobte la Revolucidn Filipina, appendix, pp. 16-18;
Ponce, Efemgrides Filipinas, pp. 71-74; Worcester, The Philippines Past and
Present, vol. i, p. 265, citing record 40.1.

* See Calderdn, Mis Memorias sobre la Revoluci6n Filipina, appendix, pp. 19-23,
for a synopsis of the debate.

* Published in Tagalog in the Heraldo Filipina, official organ of the revolutionary
government, last instalment on February 5, 1899. See Harper's History of the War
in the Philippines, p. 106, for facsimile. Appears in Spanish as an appendix to


the Representatives of the Filipino People, lawfully convened,
in order to establish justice, provide for common defense, pro-
mote the general welfare and insure the benefits of liberty, im-
ploring the aid of the Sovereign Legislator of the Universe
for the attainment of these ends, have voted, decreed, and
sanctioned the following political constitution ". The constitu-
tion then organized a Filipino state called the Philippine Re-
public, sovereignty residing exclusively in the people. The
national and individual rights of Filipinos and aliens were next
specified. These provisions are, in the main, literal copies of
articles of the Spanish constitution. The bill of rights included
— religious liberty ; freedom from arbitrary arrest and imprison-
ment, a provision like that of Spain; recognition of what
amounts to the writ of habeas corpus; sanctity of domicile;
prohibition of unreasonable searches and seizures; right to
choose one's domicile ; inviolability of correspondence ; prohi-
bition of criminal prosecutions unless in a competent court and
according to law ; protection of private property, reserving to
the government the right of eminent domain ; inhibition against
the payment of any tax not legally prescribed; freedom of
speech and press ; right to form associations ; right to petition ;
permission to establish educational institutions : compulsory and
free popular education; right of expatriation; prohibition of
trial under special laws or by special tribunals; prohibition
against laws of primogeniture and the entailment of property ;
prohibition of acceptance of titles of honor or nobility from
foreign nations without authorization of the government and of
the granting of such honors by the Republic. The constitution
also provided (article 28) that " the enumeration of the rights
granted in this title does not imply the prohibition of any others
not expressly stated. " On every Filipino there was imposed
the obligation of defending the country and of contributing to
the expenses of the state. A government was established which
was expected to be popular, representative and responsible,

Kalaw, La Constituci6n de Malolos. Appears in English as Appendix C to the
Hearings before the Committee on the Philippines, United States Senate, Sixty-
third Congress, Third Session; as Exhibit IV, vol. i, Report of the Philippine
Commission, 1900; and in Senate Document 208, Part I, p. 207.


consisting of three independent powers called the legislative,
the executive and the judicial. Profiting by prior experience,
the Church and the State were made separate.

The legislative power was vested in a unicameral body called
the Assembly of Representatives. The members were to be
elected according to law for terms of four years. They were
expected to represent the entire nation and not exclusively the
voters who chose them. The secretaries of the government were
given seats in the assembly. The assembly was to meet annu-
ally for a period of at least three months. Bills could be intro-
duced either by the president or by a member of the assembly.
No bill could become a law without having been passed by the
assembly, at least a fourth part of the total number of mem-
bers being present. As the legislative powers of the assembly
were not specified, it is logical to presume that it was to have
all power not expressly prohibited to it by the constitution.
Among powers not legislative in nature granted to the body
were the right to select its own officers, the right of censure and
interpellation, and the right of impeaching the president, the
cabinet members, the chief justice of the supreme court, and the
solicitor-general. A permanent commission of seven, elected
by the assembly, and granted certain specific powers by the
constitution, was to sit during the intervals between sessions of
the assembly.

The executive power was vested in the president of the
Republic. The president was to be elected by a constituent
assembly, consisting of the members of the assembly of repre-
sentatives and special representatives (as to who these were to
be the constitution is silent), for a term of four years, and was
to be eligible for re-election. No vice-president was provided
for. In case of a vacancy in the office of chief executive, a
president was to be selected by the constituent assembly, the
prerogatives of the office in the meantime being exercised by
the chief justice of the supreme court. Among the powers
granted to the president were : the initiation of laws ; the veto
power ; the command of the army and navy ; and the right to
dissolve the assembly, to send messages to the legislature, to
appoint the secretaries of the government, to grant pardons,


and to have control over diplomatic and commercial relations
with other states. The functions of the executive department
were to be performed by the Council of the Government, com-
posed of a president and seven secretaries. The several port-
folios were: foreign affairs, interior, finance, war and navy,
public instruction, public communications and works, and agri-
culture, industry, and commerce. The secretaries were made
jointly responsible to the assembly for the general policy of the
government and individually responsible for their personal acts.
An important duty of the cabinet was that of annually present-
ing a budget to the assembly. It is to be presumed that such
a plan would evolve into responsible government.

The judicial power was vested in the supreme court of justice
and in other courts to be created by law. The membership
and organization of the courts was to be governed by special
laws. The chief justice of the supreme court and the solicitor-
general were to be chosen by the national assembly, with the
concurrence of the president of the Republic and the secretaries
of the government. The courts were made " absolutely inde-
pendent of the legislative and executive departments ", and
were given the power to apply the laws in civil and criminal
cases in the name of the nation. But one system of law was to
be established throughout the Republic for all citizens.

The organization of the provincial and municipal assemblies
was to be governed generally by the following principles: (i)
The government and direction of the interests of the several
provinces and municipalities by their respective corporations :
(2) popular and direct elections; (3) intervention by the
central government or by the national assembly in case the
provinces or municipalities exceeded their powers. Local
government was to be placed upon " the basis of the most
ample decentralization and administrative autonomy." Amend-
ments to the constitution must originate in the assembly of
representatives, while power of adoption resided in the con-
stituent assembly. Transitory articles to cover the then exist-
ing extraordinary situation were appended. An " additional
article " provided for the " restoration to the Filipino State " —
meaning confiscation — of the properties belonging to the reli-
gious corporations in the Philippines.


Not to attempt to indite commentaries on a constitution
which was never in force, there are certain unique and out-
standing features therein which should at least be mentioned.
Among these are the establishment of the unicameral system ;
the permanent commission ; ministerial responsibility ; central
intervention in local administration; the taking of the proper-
ties of the religious orders; and the dominance of the legisla-
tive power. Reasons of local character caused the inclusion
of such provisions. If one wished, most could be justified on
broader grounds. Thus, the unicameral system, which is more
natural than accidental, and which has found advocates in such
countries as Greece, Rome, England, and France, has its mer-
its. The legislative commission, still to be found in certain
modern constitutions, gives continually to government, and is
greatly to be commended. Ministerial responsibility, resulting
in the bringing of the executive and legislative powers into
close unison, and to increased governmental efficiency, is to be
found in almost every advanced country excepting the United

The central and all-pervading idea of the constitution was to
insure the predominance of the legislature. This is explained
by Calderon in the following words :

While I proclaimed the principle of the separation of powers, I con-
ferred upon the legislature such ample powers in the constitution that
in reality it had the power of supervision over the executive and judi-
cial branches ; and in order to make this supervision more effective, in
imitation of the constitution of Costa Rica, I established what is known
as the Permanent Commission, i. e., a committee composed of mem-
bers of Congress who are to assume all the powers of the same while
not in session, with sufficient powers to adopt any urgent measures in
case of emergency ; in a word, it can be said that the Congress of the
republic was the supreme power (poder omnimodo) in the whole na-
tion. . . . Having in mind that, should we become independent, we
would have for a long time an oligarchical republic in which the mili-
tary element, which is ignorant as a whole, would predominate, in
order to check this oligarchy, I preferred to neutralize it by an intellec-
tual oligarchy, since Congress was composed of the most intellectual
classes of our country. This is the reason why I conferred upon the


legislature such ample powers, not only in the field of legislation but
also in the supervision of the executive and judicial branches. In a
word, between the two oligarchies, I preferred the intellectual oligar-
chy of the many to the ignorant oligarchy. 1

Were a constitution to be drafted today by a Filipino con-
stitutional convention, it is most unlikely that certain features
of the Malolos constitution would be revived. Certainly a uni-
cameral system would not be established and it is to be doubted
if the sober sense of the Filipinos would favor the confiscation
of religious property. The Malolos Constitution, consequently,
is now principally of academic interest, as a phase in Philippine
constitutional development, and as an indication of a Filipino
conception of democratic institutions.

In doing justice to the Malolos Constitution one need not
agree with the fulsome eulogy accorded to its framers by even
so eminent an authority as Senator Hoar, who said, " there are
not ten men on the planet who could have made one better ".
It should always be remembered, in judging its merits and de-
merits, that it was intended to be provisional, was drafted by
men inexperienced in grave constitutional problems, and was
flung together in a time of storm and stress. Moreover, in or-
der to do the constitution justice, it should also be recalled that
many provisions which to the American observer seem strange,
to the Filipino were natural and fitting. After all, the consti-
tution did conform to many of the tests of a good constitution,
and it is to be presumed that it did faithfully portray the as-
pirations and political ideals of the people. Perhaps we can do
no better than to conclude, as did the leading Filipino student
of the Malolos Constitution :

In spite of the circumstances which then existed, when it seemed as if
nothing could stand, when everything was tottering on its foundations,
when the very secular institutions and all that most respected the past
was threatened with death and destruction, it was yet possible to frame

*Calder6n, Mis Memorias sobre la Revolucidn Filipina, pp. 239-241. Mabini,
although of the opposite party, reaches much the same conclusion in his Political
Trinity. As to the unicameral system and the permanent commission, see Kalaw,
La Constituci6n de Malolos, pp. 22-27.


with serenity and rectitude a constitution which was logical, rigid,
formal, alone in its class, a beautiful and imperishable document which
constitutes, according to the Message of Aguinaldo, 'the most glorious
token of the noble aspirations of the Philippine Revolution and an
irrefutable proof before the civilized world of the culture and capacity
of the Filipino people for self-government ", a constitution which
established — one is forced to admit — in spite of its being provisional,
tbe first democratic republic in the Orient, for even the Japanese con-
stitution of the year 1889 can not be compared favorably with the
provisional Constitution of Malolos. 1

George A. Malcolm.

(Associate Justice, Supreme Court of the Philippine Islands. Author of The
Government of the Philippine Islands, Philippine Civics etc.)
Manila, P. I.

1 Kalaw, La Constituci6n de Malolos, p. 33.

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