Citizenship and Security: The Constitution of Political Being (PRIO New Security Studies)

1973 Constitution of the Republic of the Philippines
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Foreign criminal groups are extending their operations as organised crime becomes increasingly globalised and South Africa is not impervious to this development. Therefore, the SAPS faces new challenges within the increasingly sophisticated, technological and international crime arena. To meet these demands the SAPS needs to upgrade the skills, competencies and capacity of its members and its ability to gather and use crime intelligence.

Therefore implicit in the institutional reform outlined in the White Paper is the development of our human resources in terms of their ability to meet the complex challenges of constantly changing crime. This institutional reform will also ensure that the Police Service becomes representative of the communities it serves.

I am aware of the enormous challenges faced by members of our police service. Many police officers have become victims of violent crimes. It must be acknowledged that police officers in South Africa have a much greater chance of being victimised by violence than do citizens. However, some of us have lost sight of the commitment and huge sacrifices being made by thousands of policemen and women.

We need to appreciate and encourage the efforts of those police officers who often go beyond the call of duty to ensure the safety of their fellow citizens. The Department must therefore ensure that adequate support systems function effectively to assist police officers in this regard. This must ensure that police officers are able to continue high levels of service delivery to the public. We must also ensure that the dedication and performance shown by professional police officers is developed and promoted throughout the country.

Those, other than the police, who have been involved in crime prevention have also been challenged in ensuring a wider recognition of the fact that crime is more than a security issue, and in facilitating an inter-departmental and multi-agency approach to crime prevention. The consolidation of joint interdepartmental projects is now beginning to show positive results, particularly with regard to the Integrated Justice System.

This approach to crime prevention has indicated that greater participation is required from all spheres of government and this is developed in the White Paper. While the public rightfully demand improvement in the quality of service delivered by the police, members of the public also have a responsibility to assist the police to deliver a better service. Here, co-operation with the police is essential as is restoring the morality that prevents participating in or encouraging unlawful activities".

Thus, the responsibility for further reducing crime rates to acceptable levels is a heavy one. However, we have conducted an extensive public consultation process throughout the country, believing that when shared, the burden will be lighter. We have received an overwhelming response from a diverse range of organisations and people.

Each submission and input has enriched the policy proposals in this White Paper, and has enhanced our collective capacity to transform South Africa into a country in which we may enjoy a safe and secure environment. The challenge now is to implement the policy priorities outlined in this White Paper. It is my vision that the provision of safety and security will be improved for all the people of South Africa, and I believe that this White Paper for Safety and Security provides the necessary policy interventions to achieve this.

The vision of the Department of Safety and Security is that the people of South Africa will enjoy greatly improved levels of safety. Real reductions in crime will be attained through, firstly, more effective and efficient policing as part of an effective justice system and, secondly, through a greater ability to prevent crime. The Green Paper for Safety and Security issued in , set out a basic policy guide for the transformation of the Department of Safety and Security.

Since then a number of policy programmes have been initiated to bring the activities of the Department into line with the Constitution and the needs of policing a democracy. To review these programmes and set the policy framework for the next five years, the Minister of Safety and Security approved the development of a White Paper in June The five committees, in which local and international experts and senior members of the SAPS participated, were:.

The committee to investigate safety and security issues in South Africa was referred to as the "core drafting team" and functioned to co-ordinate and integrate the input from the other committees. This committee referred the work of the other committees to the mandate committee and, in turn, provided direction and input from the mandate committee to the White Paper drafting process. The core drafting team also referred work for comment to a critical readers group of experts and stakeholders.

Each committee submitted a final report which contained policy recommendations based on its deliberations. The recommendations contained in these reports were integrated and released for discussion among internal stakeholders in November Extensive consultation was undertaken with key stakeholders, role-players and civil society in the following concurrent phases:.

Public hearings were held in each of the provinces to ensure that the final policy recommendations of the White Paper reflected the views of provincial stakeholders, role-players and the public. A national hearing was held over the 3 rd to 5 th August in Parliament. A number of submissions were made, and provincial reports on the submissions received from the public hearing process were presented. Joint meetings of the National Portfolio Committee on Safety and Security and the National Council of Provinces Committee on Security and Justice deliberated on the issues raised through the public consultation process on the 18 th and 21 st of August.

These deliberations informed the final drafting of the White Paper. Parliamentary debates on the White Paper were held during September A White Paper Conference was held on 11 September at which a report back on the submissions and how they were incorporated was presented. A user friendly booklet is being developed which will explain the policy shifts contained in the White Paper and what it means for the stakeholders and role-players in safety and security in South Africa. In the new democratic order, South Africans demand and deserve accountable, effective and service oriented policing.

The rights enshrined in the Constitution, enacted in , aim to ensure safety by protecting citizens who come into contact with the law, and by obliging the state to provide adequate security from those who perpetrate crime. In the past, the majority of citizens were concerned with abuse by agencies of the state. With the advent of democracy, the public now also demand the effective provision of safety. This means that policing in a democracy requires professional law enforcement which does not infringe upon human rights.

It also requires a concerted effort by government, in partnership with civil society, to prevent crime before it occurs. The immediate challenge of the new government in was to create a legitimate police service out of the eleven police forces constituted under apartheid. Along with this challenge, political leaders had to ensure that the police would support the new democracy, rather than oppose or undermine it. Key to this process was ensuring that the police in future would act in ways which won the trust of citizens who had once feared them. The first democratic election in , however, did not bring a system of policing which was well placed to meet these objectives.

Policing in South Africa was traditionally highly centralised, para-military and authoritarian. While these characteristics ensured that the police were effective under apartheid in controlling the political opponents of the government, it meant that they were poorly equipped for crime control and prevention in the new democracy.

Under apartheid rule the police force lacked legitimacy and functioned as an instrument of control rather than as a police service dedicated to ensuring the safety of all citizens. Those police who were situated in "black" areas did not aim to provide greater safety and security for their inhabitants. Police presence in townships was used to anticipate and respond to collective challenges to apartheid. Such interventions typically involved the targeting of police resources for short periods of time in response to resistance to apartheid rule.

This mode of policing necessitated the mobilisation of force, requiring skills and an organisation very different from that needed to police a democratic order in which government seeks to ensure the safety of all citizens. This inheritance has had a number of important consequences which have weakened the ability of the Department to combat crime:. Continuing the process of transformation of the Department of Safety and Security requires a concentration on these and related areas.

The White Paper is central to this process. It is the overarching policy framework of government in relation to safety and security for the period to The White Paper draws conclusions for the future policy orientation of the Department of Safety and Security. It aims to guide the policy direction of the Department over the next five years to ensure reductions in crime.

It points to areas where other government departments and authorities — at national, provincial and local level — should be involved in ensuring a safer society for all citizens.

J. Peter Burgess

In doing so, it seeks to create a coherent policy framework for effective and accountable policing. In addition, by providing appropriate principles and an appropriate framework for crime prevention, the White Paper aims to impact upon the root causes of crime. It also recommends reform to the Department of Safety and Security"s institutional arrangements to ensure effective service delivery.

In this regard, the principles outlined in the Green Paper continue to inform the broad policy thrusts of this White Paper — particularly, the principle of community participation as embodied in the philosophy of community policing, and the principles of democratic control and accountability as envisaged in the Constitution.

This focus is directly in line with international trends in policing which demonstrate that the participation of communities and community policing form the bedrock of effective law enforcement. Fundamental to the development of appropriate policing services in South Africa has been a shift from an inheritance of authoritarian law and order responses, to a broader concept of safety and security for all citizens.

The strategy motivated for a new paradigm for safety and security: a change in emphasis from an exclusive focus on crime control to include crime prevention. Given its scope and multi-agency approach, the NCPS is the most important current initiative aimed at achieving sustainable safety in South Africa. This, therefore, ensures that the vision of the NCPS continues to frame the guiding principles of departmental policy. In line with these principles, the White Paper views the concept of safety and security in terms of two broad and inter-locking components: that of policing or law enforcement, and that of crime prevention, and particularly social crime prevention, which is aimed at undercutting the causes of crime.

This twin approach to fighting crime is critical: law enforcement and crime prevention are not mutually exclusive but reinforce each other. On the one hand, law enforcement initiatives will be weakened if conditions in which they are carried out continue to spawn high levels of criminality, which the police are only able to react to and not pre-empt. On the other hand, international experience has shown that sophisticated crime prevention strategies have only a limited effect when the state institutions of policing and criminal justice are poorly developed, with little deterrent effect.

What is required are social crime prevention programmes which target the causes of particular types of crime at national, provincial and local level. More generally, such an approach also recognises the impact of broader government economic, development and social policies for crime prevention. Thus, the effective delivery of basic services such as housing, education and health as well as job creation, have in themselves, a critical role to play in ensuring living environments less conducive to crime. This suggests that greater lobbying, planning and co-ordination is required at national, provincial and local level, specifically on the question of crime prevention and its links to a wider array of other government functions.

These requirements have profound implications for how the Department of Safety and Security and other government departments reorient themselves, conduct their business and reallocate their resources. It suggests a renewed concentration on law enforcement within the police service itself. It also requires the involvement of a wider number of new role-players in safety and security. Another important element of safety and security in democratic South Africa is the necessity to enhance the spirit of voluntarism in our country. There are many important partners in the fight against crime.

These include, among others, organisations of civil society, particularly business and community organisations, citizens who volunteer for service as Police Reservists as well as the private security industry which performs a useful role. The role of such players is, in principle, one of partnership with the State.

For this reason, greater attention will be paid to their role in the safety and security environment in future policy processes. In particular, it is envisaged that the role of the private security industry, including in-house private security, will be developed through legislation as provided for in the Security Officers Act. Given the nature and scope of the private security industry, this legislation should be preceded by an all inclusive process of consultation and contribution by all stakeholders.

Important also, is the need to strengthen partnerships and co-operation with those key departments involved in crime prevention and those Departments which have valuable skills and resources to offer, such as the South African National Defence Force. Section I provides an overview of the extent and nature of crime in the country, and the implications for future policy. Drawing on this analysis, Section II outlines key areas of intervention in relation to law enforcement.

Section III examines the challenges of implementing crime prevention. Sections IV and V provide guidelines for institutional reform at national, provincial and local level. Reducing crime is one of the leading challenges of South Africa's democratic government. Some success has been achieved in this regard with most categories of recorded crime stabilising from Appropriate law enforcement and social crime prevention interventions are urgently required to reduce crime from current levels.

Recorded crime statistics, while they do not always reflect the true extent of crime in any society, are still useful in presenting broad crime trends. In turn, victim surveys — an independent means of verifying police statistics through questioning a representative sample of the population — also provide useful insights into the extent of crime.

In South Africa, recent victim surveys suggest that police statistics may be more accurate than has been generally assumed. Much effort is being directed within the Department to ensure that the quality and reliability of crime statistics is further enhanced. A Committee of Inquiry into the collection, processing and interpretation of crime statistics has just completed its work and several of its recommendations are being implemented. However, data key to ensuring effective crime prevention on issues such as domestic violence, the relationship between alcohol and offending, and the role of youth in crime, is currently not available.

SAPS statistics suggest that crime in the country increased from This began to change in when most categories of crime showed a stabilisation. Despite this trend, current levels of crime remain high and continue to breed insecurity in the country. Crime has severe implications through the costs of victimisation which undermine economic and social development.

Also, fear of crime often changes lifestyles, negatively affecting the quality of living. The causes of crime were analysed in some detail in the NCPS. Among others, the NCPS identified these as being: gender inequality; proliferation of arms; social-psychological factors; vigilantism; inadequate support to victims of crime; youth marginalisation; economic underdevelopment and inequality; poverty and unemployment; institutionalised violence in the society; and, the encroachment of international criminal groups. Given that these have already been covered in the NCPS, which frames the content of the White Paper, this analysis will not be repeated here.

It should be noted, however, that high levels of crime often accompany transitions to democracy. This is not to say that crime is necessarily a feature of democracy. Instead, dramatic changes in societies which move from authoritarian rule to democratic governance often weaken state and social controls, generating increased levels of crime.

In addition, as experience from other societies in transition suggest, this enhances opportunities for more sophisticated and organised criminal operations which must be countered by equally sophisticated government responses. This implies improving technological systems and human resource capabilities. Organised criminal activity, while present before , was not recognised as a concern. Countering organised crime has now become a key goal of government. Police statistics suggest a large number of organised crime syndicates operate in the country.

These groups, many of whom have regional and international links, engage in a number of illegal activities including the trafficking of drugs and arms, vehicle theft and armed robbery. Government is therefore required to respond to the regional and international character of crime by strengthening regional and international co-operation. Despite these challenges, international evidence suggests that states in transition to democracy are seldom immediately able to counter crime. On the one hand, authoritarian governance is usually accompanied by policing methods inappropriate for crime prevention in a democratic environment.

On the other hand, the new state is often faced with the dilemma that it is required to govern the society with the same instruments which were used to enforce authoritarian rule. As has been outlined earlier, this was the case in South Africa. The advent of democracy in heralded dramatic legislative and policy changes in the safety and security environment. Primary among these was the enactment of the Constitution which provides a framework for the structure, political control, accountability and oversight of the national police service.

Key interventions were the establishment of the National and Provincial Secretariats, charged with oversight and monitoring of the police service, and the creation of the Independent Complaints Directorate ICD tasked with the investigation of police misconduct, including deaths resulting from police action and deaths in police custody. Given that the ICD began its operations in April , it is too early to rigorously assess its functioning. However, there can be no doubt that the effective functioning of the ICD will deter the abuse of police powers.

Reducing crime however entails more than policing, an effective system of criminal justice and appropriate systems of oversight. Also required are new forms of governance and social control. In South Africa this process is well underway with the establishment of elected government at all three levels.

These developments have all contributed to the stabilisation of crime. In addition, it should be noted that broader socio-economic factors such as rapid urbanisation, high levels of unemployment and inequality between communities all influence safety and security. To counter this, economic growth and social development must ensure that opportunities for some categories of crime are limited. Crime control and prevention strategies must therefore be underpinned by complementary social and economic policies. These and other interventions are required to ensure sustained reductions in crime levels in the medium and long term.

Since , however, the pressures of attempting to meet both the Constitutional criteria for police restructuring, as well as the challenges of policing in a democratic environment, have dominated the policy environment. The transformation process in the police along with the pressures of crime, have resulted in a multiplicity of strategies and plans within the Department of Safety and Security see Appendix 1. An analysis of these suggests that progress has been attained in many areas and that the transformation of the Department to achieve greater effectiveness is underway.

The transformation agenda set by the democratic government since continues to present important challenges to the Department of Safety and Security. The most important of these relate to the development of a professional and representative public service. Particularly relevant here are the White Paper on the Transformation of the Public Service Batho Pele , the White Paper on Affirmative Action and legislative interventions related to employment equity issues.

The Batho Pele White Paper sets out a number of priorities, amongst which, the improvement of service delivery is outlined as the key to transformation. This is because the public service will be judged, above all, on whether it can meet the basic needs of all South African citizens. This White Paper lays down the following eight principles for the transformation of public service delivery:. The White Paper on Affirmative Action outlines the additional corrective steps which must be taken in order to ensure that those who have been historically disadvantaged by unfair discrimination are able to derive full benefit from an equitable employment environment.

Thus, affirmative action programmes must contain the following mandatory requirements:. The policies above demonstrate that improving service delivery is directly related to the creation of a representative, democratic and accountable Department of Safety and Security. Furthermore a focus is needed on developing an integrated human resource development strategy concentrating on, among other areas, training, mechanisms to improve the recruitment of appropriate personnel and a performance-based incentive system. Formulating such a strategy will form an immediate priority for the Department.

It is clear that the Department of Safety and Security needs to strengthen its efforts in transformation. However, some success has already been achieved in important areas. In particular, the task of amalgamating separate police forces and reorganising the service into national and provincial structures is progressing well. A fundamental component of the amalgamation process is the demilitarisation and civilianisation of the new police service.

A large number of strategies related to the above are being pursued within the Department of Safety and Security. However, safety and security policy more generally is determined through the overriding framework and programmes of the NCPS. The NCPS is intended as a comprehensive multi-agency approach to crime prevention. Much has been learnt since about the development of such policy approaches. In particular, experience suggests that while co-ordination between departments of the justice system is important, improvements here will not in themselves solve internal problems of capacity.

The effectiveness of the justice system relies not only on co-ordination, but also on the success of individual departments in performing their line function responsibilities.

The formulation of policy over the last four years has resulted in a sophisticated and diverse set of objectives. This has reflected the complexity of both the crime prevention exercise and the demands of achieving effective policing in the context of political transition. Building a legitimate and effective law enforcement organisation is an essential part of this process. In particular, this requires an investment in, and focus on, the institutions which are essential to show that the state can, and will, act against criminals.

Nowhere is this more clearly required than in the area of police investigations. While the new constitutional order makes the job of the police more complex, by providing checks on their power and protecting the rights of citizens, it does not prevent police from fighting crime. Instead, police investigation practices — as in other democracies — require greater sophistication and training.

In South Africa this shift has been slow and is reflected in a comparatively small number of cases which are successfully prosecuted. While the police are only one component in securing a conviction, police investigators have a key role to play. Unless investigations are properly conducted and the work of prosecutors adequately supported, declining convictions will continue. The consequences of inadequate criminal investigations should not be underestimated if criminal justice agencies are to show the public that the state can act against crime.

In the case of sophisticated and, in particular, organised crime, there is little choice but to improve the investigative capacity of the police. This also requires strengthening the link between police investigators and prosecutors to ensure the conviction of offenders. This is highlighted in Section IV. Importantly also in the context of a rights based society, is how best to meet the needs of citizens and in particular victims, in the event of serious crimes. This requires an increase in the standards of professional service provided by the SAPS.

In addition, improving the standard of police service delivery requires targeting corruption within the Police Service and the justice system. Fundamental to dealing with corruption is creating and sustaining effective management systems that aim to strengthen administrative controls and to improve morale. Given the new focus on law enforcement in a democracy, a key policy challenge is now to reduce crime in a way that does not divide South Africa further along lines of race and privilege.

While a basic standard of enforcement — well above the present level — is required, this must be balanced in the long term by measures that reduce the number of people entering the justice system in the first place. This does imply a trade-off between resources for law enforcement and social crime prevention.

To rely on law enforcement alone will incur huge costs associated with investigation, prosecution and imprisonment. Therefore, without an adequate focus on crime prevention, the justice system will remain overburdened. International experience suggests that it is more cost effective in the medium to long term to invest in projects which prevent crime, than in simply spending more on the institutions of policing, courts and corrections. These reactive responses to crime, in addition to proving more expensive in the longer term, also do little to improve the quality of life of the country's citizens.

The importance of such preventive interventions is emphasised by two factors. First, not all crime types can necessarily be solved by policing. In particular, crime in poor communities can often be traced to socio-economic circumstances which cannot be addressed by the police acting alone.

Secondly, as is emphasised in the NCPS, the causes of crime need to be disaggregated for the purposes of preventive interventions. Particular types of crime have different causes; these in turn may vary from locality to locality and thus require specific solutions. It is also necessary to focus on strategies - although relatively little data is available in this area - to counter "crimes of greed"; such as "white-collar"; and commercial crime. Thus social crime prevention is aimed at reducing the social, economic and environmental factors conducive to particular types of crime.

Targeted crime prevention strategies must focus on the individual offender or victim and the environment in which they live. For example, research in the Northern Cape which is supported by police docket analysis suggests that high alcohol consumption a result of historic distribution policies in wine growing areas plays a key contributing role in some types of crime, particularly, assault, domestic violence , rape and murder. Thus, a multi-faceted strategy is required to effectively undercut these crimes.

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Nevertheless, it is difficult to generalize under what circumstances it is likely that a preamble may play a functional role, whether interpretive or substantive. Professional co-ordination. These groups, many of whom have regional and international links, engage in a number of illegal activities including the trafficking of drugs and arms, vehicle theft and armed robbery. Retrieved 28 February — via Twitter. Accepting international contracts.

This may require new alcohol control and distribution policies, programmes that will consider environmental factors the position of shebeens in relation to schools , victim support as well as policing regular patrols of high crime areas and enforcing of alcohol related laws. It is clear that policing alone will do little to resolve many of the Northern Cape"s crime problems. This example of the potential effectiveness of social crime prevention is not isolated to the Northern Cape.

Such an example suggests that successful crime prevention is critical to the poor, both because they are least able to cope with the consequences of crime and because the socio-economic conditions at the root of many crimes are often found in underprivileged areas. The government will, therefore, specifically build the needs of the poor into any evaluative framework for crime prevention programmes.

This section highlights the need for critical policy choices to be made. It is important to again stress that these do not ignore the current interventions dealing with police transformation, including issues of affirmative action and community policing. Such ongoing initiatives underpin the policy proposals of the White Paper. All activities which reduce, deter or prevent the occurrence of specific crimes firstly, by altering the environment in which they occur, secondly by changing the conditions which are thought to cause them, and thirdly by providing a strong deterrent in the form of an effective Justice System.

Diagram 2: Crime prevention framework for white paper. The previous section motivated the need for law enforcement to meet the safety and security requirements of democratic South Africa. If policing is to improve safety and security, it will do so through arresting and bringing suspects to court with good evidence.

If effective, this will act as a deterrent to potential offenders and counter the perception of impunity and lack of respect for the law which exists in South Africa. One of the primary focus areas for policing in the course of the next five years will be on improving the quality of criminal investigations.

Improving the capacity of the SAPS to do this means allocating sufficient resources to detection and developing the skills and techniques of the relevant SAPS personnel. In particular, the needs of the police with regard to the management of investigations and information as well as technical support must be met. In addition, it is acknowledged that adequate service delivery to victims of crime is an essential component of successful investigations see Focus Area 3 below. It should be noted, however, that the responsibility for securing a conviction once a suspect has been brought to court, rests both with the police who collect the evidence and with the prosecution who must argue the case.

This case thus emphasizes the power of preambles either to unify or to divide political resources; it also sheds light on the limits of constitutional design to ameliorate ethnic conflicts or foster a common national identity. Israel is considered to be among the few democracies not having a formal written constitution. In fact, one of the historical reasons for the failure to establish a constitution stems from the inability to achieve consent regarding the preamble's content. These amendments included two important sections declaring, for the first time, that Israel is a Jewish and democratic state and that human rights are to be respected in the spirit of the principles set forth in the Declaration of Independence.

Articles 1 and 1A of the Basic Laws read as follows: I. Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

This amendment is consonant with most of the substantive requirements of a preamble; it recognizes the fundamental values of the state of Israel and its national character. It was also the first time in Israel's legislative history that the Declaration of Independence was incorporated into law. The legal status of the Declaration of Independence has changed over the years. Soon after the state's foundation, the Supreme Court refused to grant it legal status; however, this attitude changed with the Supreme Court's progressive reliance on the human rights guaranteed in the declaration for constitutional interpretation.

The Court has repeatedly ruled that the declaration serves as a political act with legal implications that should be respected by all authorities, although it could not disqualify acts of parliament. The Jewish and democratic character of Israel is its basic constitutional structure. This structure, as former president of the Supreme Court Aharon Barak argues, is eternal and, therefore, an amendment that denies it would be an unconstitutional constitutional amendment. Arab citizens feel that the Basic Laws have excluded them from Israel's social arrangement and have ignored their identity, culture, and heritage.

Australia was established in through the Commonwealth of Australia Constitution Act that was passed by the British Parliament and established Australia as an indissoluble federal commonwealth; the act's preamble has been regarded as equivalent to a constitution's preamble. The preamble outlines the structure and powers of the government. It is very short and lacks any substantive content. Toward the end of the twentieth century, the preamble was criticized for no longer reflecting Australia's values.

On November 6, , a referendum was held on the question of adopting a new preamble. As in the Macedonian case, a legal change was triggered by a new reality. One of the reasons motivating the referendum was the need to reconsider the legal status of Australian Aborigines. In February , a constitutional convention adopted a new preamble that would enable minority groups to identify with Australia.

Prime Minister John Howard announced his intention to abide by the decision regarding a separate referendum on the new preamble. The Australian experiences differ from those of Macedonia and Israel. First, it is very difficult to gain broad public support for a new preamble at a later constitutional moment, especially in multicultural societies. Second, the plan to adopt a nation-building preamble—that is, to use the preamble as a symbol for promoting national identity, similar to a flag or an anthem—requires public involvement. If the goal is to secure reconciliation between the state and its minorities, representatives of the minorities have to be involved in the drafting process.

Third, the intention was not to replace the old preamble but to adopt a new preamble, devoid of legal power, to accompany the old one that enjoyed interpretative force. In addition, the insistence on a nonjusticiable preamble revealed deep concern regarding the role of the preamble in judicial empowerment. On December 1, , the Treaty of Lisbon entered into force. The changes inserted in the Treaty of Lisbon's preamble express the differences in the conceptual framework of the rejected draft Treaty Establishing a Constitution for Europe.

A process that began with high expectations and romantic visions concluded, essentially, in a watered-down product. It is interesting to compare the long, detailed version of the preamble of the draft constitutional treaty with the short, almost valueless preamble of the Lisbon treaty, whose almost sole purpose is to allow the EU more efficient functioning. The discussions during the drafting of the preamble revived old disputes forcing member states to address historical narratives, common motives, shared values, and future destinies.

It includes the values and objectives of the EU's citizens, features that were fiercely debated within the framework of historical narratives, a reference to God or Christianity, and issues of identity. It was first necessary to determine who speaks for EU citizens: the states themselves, the parliaments, or the citizenry.

It was decided to refer to the heads of the state—his Majesty the King of the Belgians, the president of the Czech Republic, her Majesty the Queen of Denmark, and so on—as the entities ratifying the treaty. Another interesting discussion took place regarding the question of whether to refer to Christianity. Poland and Italy advocated adding a reference to God whereas secular France and Belgium strongly opposed such a reference.

At the end, it was decided to mention neither God nor Europe's Christian heritage. A similar debate arose surrounding Europe's common history. The question was whether the horrors of the two world wars should be mentioned as a motivation for the creation of the EU. A major challenge was how to frame common European goals. The preamble to the draft Treaty Establishing a Constitution for Europe was very detailed. The preamble is much shorter.

With no united people of Europe, little common history, and fewer shared goals, the question of having a European identity became more significant. Should the preamble define a collective European identity or be neutral on the subject? In the first draft adopted in July , the preamble began with a quote from the writing of Thucydides, in ancient Greek.

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With no overt desire to develop a collective idea of Europeanness, the Treaty of Lisbon's preamble avoids directly addressing Europe's collective identity. The debate concerning the EU's preamble demonstrates the difficulties of forging a consensus around common values against a background of diverse national histories. It remains unclear as to whether the preamble will have any normative influence or foster a unified European identity.

For now, the preamble's main merit is that it shows the importance of the drafting process, which, in turn, will demonstrate the purposes of the preamble. From a legal perspective, there is little difference between the draft Treaty Establishing a Constitution for Europe and the Treaty of Lisbon. The significant difference, after years of ongoing debates, is to be found in the content of the preamble. Do preambles have a point? They surely do. For Plato, preambles are the soul of the laws, a device through which the legislator convinces the people to obey the law.

For Schmitt, preambles express the society's fundamental political decisions. For Blackstone, preambles are the key to opening up to us the minds of the lawmakers. For a long time, preambles have been disregarded as symbolic statements. Students at American law schools do not learn that they can win a case by invoking the Preamble. This article shows that, in a global perspective, this premise is no longer valid. A growing number of countries have legalized the language of the preamble.

The preamble's rights and principles have become more and more legally enforceable, rights that lawyers can bring to court whether this is a desirable practice is a separate question. And yet, preambles are not simply legal provisions, like the other provisions of the constitution. The motives for writing preambles, their design process, and their sociological functions are different.

The preamble's purpose is not only—perhaps not mainly—to guarantee rights or provide legal arguments but to set down the basic structure of the society and its constitutional faith. In no other place than the preamble is the constitutional understanding of the founding fathers and the national creed so clearly reflected. Preambles have an important nonlegal purpose, as well. They reflect and affect social and political norms. They encourage cohesion or exacerbate divisions, express the constitutional identity, and are called upon to serve as a device of national consolidation or to reconcile past wrongs.

Their impact depends on their wording but also on the political environment that once gave them life. Preambles may acquire a unique force, generally at a constitutional moment. The classic case is the U. This was also the case with the preamble to the German Grundgesetz in which a defeated and shattered Germany, recuperating from the Nazi nightmare, was able to proclaim its attachment to a new Europe. In those moments, preambles enjoy popular consent. When those moments pass, popular consent is more difficult to achieve.

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Article Contents. How to talk about preambles. The American preamble.

The Constitution, the Articles, and Federalism: Crash Course US History #8

The legal status of preambles. Integrative and disintegrative power of preambles. The preamble in constitutional interpretation Liav Orgad. Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making.

The Charter of the United Nations, for example, has a formal preamble and a substantive preamble; the latter appears in chapter I of the Charter. Another form of a preamble may be a declaration of independence, which, although not formally part of a constitution, may have some of the substantive elements of a preamble. Unless otherwise mentioned, the article does not discuss the declaration of independence as a form of a substantive preamble.

Constitution defined here as a group of binding fundamental principles characterizing a state or society on a permanent basis. Therefore, a constitution could be either a formal document or substantive legal norms a society refers to as a binding constitution. See , e. This is the case of Denmark arts. I , and Sweden arts.

Therefore, it emerges that only eight of the surveyed states 16 percent do not have a preamble to their constitution, either in a formal or a substantive sense. It is not surprising that some preambles refer to the citizens of all national origins. An example of a preamble declaring a quasi-capitalistic character appears in the Constitution of Bosnia-Herzegovina. See , respectively, the preambles to the constitutions of Brazil, Bosnia-Herzegovina, and Armenia. See the preamble to the Constitution of Turkey and India. II, Hutson ed. For an historical review, see Morris D. J URIS , — It cannot confer any power per se … its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.

III, See United States v. Verdugo-Urquidez, U. See Employees v. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year.

The Supreme Court shall provide in its annual budget the appropriations for the Council. It may exercise such other functions and duties as the Supreme Court may assign to it. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law.

During their continuance in office, their salary shall not be decreased. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reached the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court.

A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. The certification shall state why a decision or resolution has not been rendered or issued within said period. The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment.

Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.

The Constitutional Commissions shall appoint their officials and employees in accordance with law. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution.

A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service.

It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries.

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

However, a majority thereof, including the Chairman, shall be Members of the Philippine Bar who have been engaged in the practice of law for at least ten years. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Religious denominations and sects shall not be registered.

Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution.

However, they shall be entitled to appoint poll watchers in accordance with law. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of the election and shall end thirty days after. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission. At no time shall all Members of the Commission belong to the same profession. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment.

Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corporations, and non-governmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency.

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It shall submit such other reports as may be required by law. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy.

Such taxes, fees, and charges shall accrue exclusively to the local governments. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms.

Legislative bodies of local governments shall have sectoral representation as may be prescribed by law. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies.

The jurisdiction of the metropolitan authority that will hereby be created shall be limited to basic services requiring coordination. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region.

There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws.

The defense and security of the regions shall be the responsibility of the National Government. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.

All other public officers and employees may be removed from office as provided by law, but not by impeachment. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The vote of each Member shall be recorded. When sitting for that purpose, the Senators shall be on oath or affirmation.

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When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.

The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election.

The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines. During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article IX-A of this Constitution. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter.

Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

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In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated.

The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.

In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country.

In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses which they may be devoted.

Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

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. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments.

The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

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 or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital 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 Congress when the common good 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 its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector.

They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority.

Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority.