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EN BANC

That the above cited memorandum dated December 1, 1986 was signed
by me personally on February 8,1987;

G.R. No. 78059 August 31, 1987


ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA,
JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M.
RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the
Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC
Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA,
ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.

An original action for Prohibition instituted by petitioners seeking to enjoin


respondents from replacing them from their respective positions as Barangay
Captain and Barangay Councilmen of Barangay Dolores, Municipality of
Taytay, Province of Rizal.

Before us now, petitioners pray that the subject Memoranda of February 8,


1987 be declared null and void and that respondents be prohibited from
taking over their positions of Barangay Captain and Barangay Councilmen,
respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years
which shall commence on June 7, 1982 and shall continue until their
successors shall have elected and shall have qualified," or up to June 7,
1988. It is also their position that with the ratification of the 1987 Constitution,
respondent OIC Governor no longer has the authority to replace them and to
designate their successors.

As required by the Court, respondents submitted their Comment on the


Petition, and petitioner's their Reply to respondents' Comment.

On the other hand, respondents rely on Section 2, Article III of the


Provisional Constitution, promulgated on March 25, 1986, which provided:

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De


Leon was elected Barangay Captain and the other petitioners Angel S.
Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and
Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.

SECTION 2. All elective and appointive officials and employees under


the 1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment
is made within a period of one year from February 25,1986.

MELENCIO-HERRERA, J.:

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum


antedated December 1, 1986 but signed by respondent OIC Governor
Benjamin Esguerra on February 8, 1987 designating respondent Florentino
G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of the Minister of
Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum,
antedated December 1, 1986 designating respondents Remigio M. Tigas,
Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L.
Tolentino as members of the Barangay Council of the same Barangay and
Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of
respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on
March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the
performance of my duties thereof, I among others, have signed as I did
sign the unnumbered memorandum ordering the replacement of all the
barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

By reason of the foregoing provision, respondents contend that the terms of


office of elective and appointive officials were abolished and that petitioners
continued in office by virtue of the aforequoted provision and not because
their term of six years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay officials to six (6)
years must be deemed to have been repealed for being inconsistent with the
aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as
elective officials under the 1973 Constitution, may continue in office but
should vacate their positions upon the occurrence of any of the events
mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no
proclamation or executive order terminating the term of elective Barangay
officials. Thus, the issue for resolution is whether or not the designation of
respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that
February 8, 1977, should be considered as the effective date of replacement
and not December 1,1986 to which it was ante dated, in keeping with the
dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline,
the aforequoted provision in the Provisional Constitution must be deemed to
have been overtaken by Section 27, Article XVIII of the 1987 Constitution
reading.

SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By
that date, therefore, the Provisional Constitution must be deemed to have
been superseded. Having become inoperative, respondent OIC Governor
could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially
considering that the Barangay Election Act of 1982 declares it "a policy of the
State to guarantee and promote the autonomy of the barangays to ensure
their fullest development as self-reliant communities. 2 Similarly, the 1987
Constitution ensures the autonomy of local governments and of political
subdivisions of which the barangays form a part, 3 and limits the President's
power to "general supervision" over local governments. 4 Relevantly, Section
8, Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law,
therefore, the term of office of six (6) years provided for in the Barangay
Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between
the term of six (6) years for elective Barangay officials and the 1987
Constitution, and the same should, therefore, be considered as still
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution,
reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations
letters of instructions, and other executive issuances not inconsistent,
with this Constitution shall remain operative until amended, repealed or
revoked.

date its ratification was proclaimed per Proclamation No. 58 of the President
of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds
that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the
plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take
effect on the date its ratification shall have been ascertained and not at the
time the people cast their votes to approve or reject it." This view was
actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view
that the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission
fully supports the Court's judgment. It shows that the clear, unequivocal and
express intent of the Constitutional Conunission in unanimously approving
(by thirty-five votes in favor and none against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the
ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite
and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in
adopting the Constitution when they cast their votes on the date of the
plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the
original formulation of the committee as indicated in Section 12, unless
there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on


February 8, 1987 designating respondents as the Barangay Captain and
Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are
both declared to be of no legal force and effect; and (2) the Writ of
Prohibition is granted enjoining respondents perpetually from proceeding
with the ouster/take-over of petitioners' positions subject of this Petition.
Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin and Cortes, JJ., concur.
Separate Opinions

THE PRESIDENT. Commissioner Davide is recognized.


MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the
following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner
Davide is going to propose an additional sentence, the committee would
suggest that we take up first his amendment to the first sentence as
originally formulated. We are now ready to comment on that proposed
amendment.

TEEHANKEE, CJ., concurring:


The main issue resolved in the judgment at bar is whether the 1987
Constitution took effect on February 2, 1987, the date that the plebiscite for
its ratification was held or whether it took effect on February 11, 1987, the

The proposed amendment would be to delete the words "its ratification


and in lieu thereof insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words" AND
THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we


regret that we cannot accept the second proposed amendment after the
word "constitutions" because the committee feels that when we talk of all
previous Constitutions, necessarily it includes "AND THEIR
AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
amendment so the Commission would be able to appreciate the change in
the first.

to give the President some kind of leeway on whether to announce the


ratification or not. Therefore, we should not make this dependent on the
action of the President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELECand it should
be the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need
to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?

MR. MAAMBONG. Yes, Madam President, we can now do that.

FR. BERNAS. Willingly, Madam President.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION


SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION
OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE
RESULTS OF SUCH PLEBISCITE."

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed
as to exactly when the Constitution is supposed to be ratified.

MR. MAAMBONG. Madam President, after conferring with our chairman,


the committee feels that the second proposed amendment in the form of a
new sentence would not be exactly necessary and the committee feels
that it would be too much for us to impose a time frame on the President
to make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully complied.
When we approve this first sentence, and it says that there will be a
proclamation by the President that the Constitution has been ratified, the
President will naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have cited. It would be
too much to impose on the President a time frame within which she will
make that declaration. It would be assumed that the President would
immediately do that after the results shall have been canvassed by the
COMELEC.
Therefore, the committee regrets that it cannot accept the second
sentence which the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that
there will be an immediate proclamation of the results by the President.

FR. BERNAS. I would say that the ratification of the Constitution is on the
date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam
President. We present the Constitution to a plebiscite, the people exercise
their right to vote, then the votes are canvassed by the Commission on
Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
what would be, in clear terms, the date when the Constitution is supposed
to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the
President were to say that the plebiscite would be held, for instance, on
January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual
issuance of the results by the Commission on Elections which will be
doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the
act of saying "yes" is done when one casts his ballot.

MR. MAAMBONG. With that understanding, Madam President.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam


President?

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Yes, Madam President.

FR. BERNAS. Madam President.


THE PRESIDENT. Commissioner Bernas is recognized.

MR. MAAMBONG. With that statement of Commissioner Bernas, we


would like to know from the proponent, Commissioner Davide, if he is
insisting on his amendment.

FR. BERNAS. I would ask the committee to reconsider its acceptance of


the amendment which makes the effectivity of the new Constitution
dependent upon the proclamation of the President. The effectivity of the
Constitution should commence on the date of the ratification, not on the
date of the proclamation of the President. What is confusing, I think,
is what happened in 1976 when the amendments of 1976 were ratified. In
that particular case, the reason the amendments of 1976 were effective
upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation
made by the President. I have a suspicion that was put in there precisely

MR. DAVIDE. Madam President, I am insisting on the amendment


because I cannot subscribe to the view of Commissioner Bernas, that the
date of the ratification is reckoned from the date of the casting of the
ballots. That cannot be the date of reckoning because it is a plebiscite all
over the country. We do not split the moment of casting by each of the
voters. Actually and technically speaking, it would be all right if it would be
upon the announcement of the results of the canvass conducted by the
COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement
of the results of the plebiscite. So it is either the President or the

COMELEC itself upon the completion of the canvass of the results of the
plebiscite, and I opted for the President.

be a necessity for the President to make a proclamation of the results of


the canvass as submitted by the Commission on Elections?

xxx xxx xxx

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. NOLLEDO. Madam President.

MR. MAAMBONG. In other words, the President may or may not make
the proclamation whether the Constitution has been ratified or not.

THE PRESIDENT. Commissioner Nolledo is recognized.


MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely
confirms the ratification even if the results are released two or three days
after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is
the act of voting by the people. So that is the date of the ratification. If
there should be any need for presidential proclamation, that proclamation
will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass thereafter
is merely the mathematical confirmation of what was done during the date
of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the
Filipino people in adopting the Constitution when they cast their votes on
the date of the plebiscite.

FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts
what the Commission on Elections says, it would have no effect. I would
only add that when we say that the date of effectivity is on the day of the
casting of the votes, what we mean is that the Constitution takes effect on
every single minute and every single second of that day, because the Civil
Code says a day has 24 hours.So that even if the votes are cast in the
morning, the Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of
Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?

MR. LERUM. Madam President, may I be recognized.


FR. BERNAS. Yes, Madam President.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. MAAMBONG. I thank the Commissioner.
MR. LERUM. I am in favor of the Davide amendment because we have to
fix a date for the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a month, what happens to
the obligations and rights that accrue upon the approval of the
Constitution? So I think we must have a definite date. I am, therefore, in
favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.

MR. GUINGONA. Madam President.


THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite
date. I think it is precisely the proposal of Commissioner Bernas which
speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the
canvassing by the COMELEC.

MR. MAAMBONG. With the theory of the Commissioner, would there be a


necessity for the Commission on Elections to declare the results of the
canvass?

Thank you,

FR. BERNAS. There would be because it is the Commission on Elections


which makes the official announcement of the results.

MR. CONCEPCION. Thank you, Madam President.

MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there

Whoever makes the announcement as to the result of the plebiscite, be it


the COMELEC or the President, would announce that a majority of the
votes cast on a given date was in favor of the Constitution. And that is the
date when the Constitution takes effect, apart from the fact that the

THE PRESIDENT. Commissioner Concepcion is recognized.

provision on the drafting or amendment of the Constitution provides that a


constitution becomes effective upon ratification by a majority of the votes
cast, although I would not say from the very beginning of the date of
election because as of that time it is impossible to determine whether
there is a majority. At the end of the day of election or plebiscite, the
determination is made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time when the new
Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment
of Commissioner Davide and I support the view of Commissioner Bernas
and the others because the ratification of the Constitution is on the date
the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent
and a third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the
date that the people have cast their affirmative votes in favor of the
Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if
he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make
the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation
indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and shall
supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his
hand.)

The results show 35 votes in favor and none against; Section 12 is


approved. 2
The Court next holds as a consequence of its declaration at bar that the
Constitution took effect on the date of its ratification in the plebiscite held on
February 2, 1987, that: (1) the Provisional Constitution promulgated on
March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said
date, February 2, 1987, absent any saying clause to the contrary in the
Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as
Barangay Captain and Councilmen. Hence, the attempted replacement of
petitioners by respondent OIC Governor's designation on February 8, 1987
of their successors could no longer produce any legal force and effect. While
the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this
period was shortened by the ratification and effectivity on February 2, 1987
of the Constitution. Had the intention of the framers of the Constitution been
otherwise, they would have so provided for in the Transitory Article, as
indeed they provided for multifarious transitory provisions in twenty six
sections of Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers by
the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals
and 55 city fiscals reported extended (by) the President on February 2,
1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior
endorsement thereof by the Judicial and Bar Council created under the
Constitution. It should be stated for the record that the reported date of the
appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were
transmitted to this Court on February 1, 1987 and they were all appointed on
or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise
show that the appointment papers of the last batch of provincial and city fiscals signed by the
President in completion of the reorganization of the prosecution service were made on January 31,
1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that
since February 2, 1987, no appointments to the Judiciary have been extended by the President,
pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly
declared by the Court.

CRUZ, J., concurring.


In her quiet and restrained manner, Justice Herrera is able to prove her point
with more telling effect than the tones of thunder. She has written another
persuasive opinion, and I am delighted to concur. I note that it in effect
affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced,
having acquired security of tenure under the new Constitution. Our difference
is that whereas I would make that right commence on February 25, 1987,
after the deadline set by the Freedom Constitution, Justice Herrera would opt
for February 2, 1987, when the new Constitution was ratified. I yield to that
better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of
the Provisional Constitution with respect to the tenure of government
functionaries, as follows:

Since 1973, moreover, we have invariably reckoned the effectivity of the


Constitution as well as the amendments thereto from the date it is
proclaimed ratified.

SECTION 2. All elective and appointive officials and employees under the
1973 Constitution shall continue in office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such appointment is made within a
period of one year from February 25, 1986.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force


and effect on January 17, 1973, the date Proclamation No. 1102,
"Announcing the Ratification by the Filipino People of the Constitution
Proposed by the 1971 Constitutional Convention," was issued, although Mr.
Justice, now Chief Justice, Teehankee would push its effectivity date further
to April 17, 1973, the date our decision in Javellana v. Executive
Secretary, 3 became final. And this was so notwithstanding Section 16, Article
XVII, of the 1973 Constitution, thus:

was cut short by the ratification of the 1987 Constitution, I entertain serious
doubts whether or not that cut-off period began on February 2, 1987, the
date of the plebiscite held to approve the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.

SEC. 16. This Constitution shall take effect


immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and,
except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all
amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no.
1595, proclaiming the ratification of the 1976 amendments submitted in the
plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.

It is my reading of this provision that the Constitution takes effect on the date
its ratification shall have been ascertained, and not at the time the people
cast their votes to approve or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite, when the will of the people
as of that time, had not, and could not have been, vet determined.

By virtue-of the powers vested in me by law, I hereby proclaim all the


amendments embodied in this certificate as duly ratified by the Filipino
people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore
effective and in full force and effect as of this date.

Other than that, pragmatic considerations compel me to take the view.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

I have no doubt that between February 2, and February 11, 1987 the
government performed acts that would have been valid under the Provisional
Constitution but would otherwise have been void under the 1987 Charter. I
recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
Sec. 9. 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.
xxx xxx xxx
such appointments could be open to serious questions.

These amendments shall take effect after the


incumbent President shall have proclaimed that they
have been ratified by a majority of the votes cast in the
referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959,
"Proclaiming the Ratification by the Filipino People of the Amendments of
Section 7, Article X of the Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified
by a majority of the votes cast in the plebiscite held,
together with the election for local officials, on January
30, 1980, and that said amendment is hereby declared
to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979,
the proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the
Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them
Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this Proclamation,"
It shall be noted, in this connection, that under Resolutions Nos. I and 2 of

the Batasang Pambansa, Third Regular Session, Sitting as a Constituent


Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when
approved by a majority of the votes cast in a plebiscite
to be held pursuant to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the
Filipino People, for Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting
as a Constituent Assembly, in its Resolutions Numbered Three, Two, and
One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc,
shad canvass and proclaim the result of the plebiscite
using the certificates submitted to it, duly authenticated
and certified by the Board of Canvassers of each
province or city.

... that the Constitution of the Republic of the Philippines adopted by


the Constitutional Commission of 1986, including the Ordinance
appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it
took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in
passing, that the new Charter was ratified on February 2, 1987, does not in
any way weaken this dissent. As I stated, the remark was said in passing-we
did not resolve the case on account of a categorical holding that the 1987
Constitution came to life on February 2, 1987. In any event, if we did, I now
call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above,
that the challenged dismissals done on February 8, 1987 were valid, the
1987 Constitution not being then as yet in force.
Footnotes

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the


Plebiscite of January 27, 1984, of the Amendments to the Constitution
Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112
and 113." It states that the amendments:
....are therefore effective and in full force and effect as
of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and
112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the
date the President of the Philippines shall proclaim that
they have been ratified by a majority of the votes cast
in the plebiscite held for the purpose, but not later than
three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the
Constitution when approved by a majority of the votes
cast in an election/plebiscite at which it is submitted to
the people for their ratification pursuant to Section 2 of
Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of
their ratification and not at the time of the plebiscite is a view that is not
peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March
11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution
of Both Houses (of Congress) adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution makes no mention of a
retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:

1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and
Debates, pages 620-623; emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty
forty-five votes in favor and two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L.
Benipayo, Minerva G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus
Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr., and their
appointments bear various dates from January 9, 1987 to January 31,
1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer,
Feb. 3,1987, p. 1, cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.

EN BANC

G.R. No. 122156 February 3, 1997


MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, 1 is inoked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares
of respondent MHC. The winning bidder, or the eventual "strategic
partner," is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel. 2 In a close bidding held on
18 September 1995 only two (2) bidders participated: petitioner Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of
the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 (reset to November 3, 1995) or the
Highest Bidder will lose the right to purchase the Block of
Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the


GSIS/MHC the Management Contract, International

Marketing/Reservation System Contract or other type of


contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase
and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC
not later than October 23, 1995 (reset to November 3,
1995); and
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00
per share tendered by Renong Berhad. 4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by Philtrust Bank for
Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent
GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian
firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set for
oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of
an earlier generation of Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to release the full potential of
the Filipino people. To all intents and purposes, it has become a part of the
national patrimony. 6 Petitioner also argues that since 51% of the shares of
the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly
covered by the term national economy, to which Sec. 10, second par., Art.
XII, 1987 Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII,
of the 1987 Constitution is merely a statement of principle and policy since it
is not a self-executing provision and requires implementing legislation(s) . . .
Thus, for the said provision to Operate, there must be existing laws "to lay
down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to 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 all
marine wealth in its territorial sea, and exclusive marine zone as cited in the
first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According
to respondents, while petitioner speaks of the guests who have slept in the
hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimonyof the
nation. What is more, the mandate of the Constitution is addressed to the
State, not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of
the MHC cannot be considered part of the national patrimony. Moreover, if
the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it
had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
which provides that if for any reason, the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced.
Respondents postulate that the privilege of submitting a matching bid has
not yet arisen since it only takes place if for any reason, the Highest Bidder
cannot be awarded the Block of Shares. Thus the submission by petitioner of
a matching bid is premature since Renong Berhad could still very well be
awarded the block of shares and the condition giving rise to the exercise of
the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was not
so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the act
required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the


governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it emanates. It
has been defined as the fundamental and paramount law of the nation. 10 It
prescribes the permanent framework of a system of government, assigns to
the different departments their respective powers and duties, and establishes
certain fixed principles on which government is founded. The fundamental
conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be
determined and all public authority administered.11 Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by
the executive branch or entered into by private persons for private purposes
is null and void and without any force and effect. Thus, since the Constitution
is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry
out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens. 12 A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule
by means of which the right it grants may be enjoyed or protected, is selfexecuting. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject
is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative
body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that
all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. 14 This can be cataclysmic. That is why the prevailing
view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing . . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body,
which could make them entirely meaningless by simply refusing to pass
the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on
the floor of the 1986 Constitutional Commission

MR. RODRIGO. Madam President, I am asking this question as the


Chairman of the Committee on Style. If the wording of "PREFERENCE"
is given to QUALIFIED FILIPINOS," can it be understood as a
preference to qualified Filipinos vis-a-vis Filipinos who are not qualified.
So, why do we not make it clear? To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it
to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS"
as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting other
further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left
to the legislature without impairing the self-executing nature of constitutional
provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to
be used for its enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation
may supplement and add to or prescribe a penalty for the violation of a selfexecuting constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be selfexecuting. The rule is that a self-executing provision of the constitution does
not necessarily exhaust legislative power on the subject, but any legislation
must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. 17 Subsequent legislation
however does not necessarily mean that the subject constitutional provision
is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not selfexecuting. 18 The argument is flawed. If the first and third paragraphs are not
self-executing because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second paragraph can
only be self-executing as it does not by its language require any legislation in

order to give preference to qualified Filipinos in the grant of rights, privileges


and concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and non-selfexecuting in another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights are simply not
in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks
of constitutional provisions on personal dignity, 21 the sanctity of family
life, 22 the vital role of the youth in nation-building 23 the promotion of social
justice, 24 and the values of education. 25Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human
rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites
provisions on the promotion of general welfare, 30 the sanctity of family
life, 31 the vital role of the youth in nation-building 32 and the promotion of total
human liberation and development. 33A reading of these provisions indeed
clearly shows that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions manifest
that they are only principles upon which the legislations must be based. Res
ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that qualified Filipinos shall
be preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and
from which all legislations must take their bearings. Where there is a right
there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains
The patrimony of the Nation that should be conserved and developed
refers not only to out rich natural resources but also to the cultural
heritage of out race. It also refers to our intelligence in arts, sciences
and letters. Therefore, we should develop not only our lands, forests,
mines and other natural resources but also the mental ability or faculty
of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could
have very well used the term natural resources, but also to the cultural
heritage of the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which

have shaped Philippine history. It was called the Cultural Center of the
1930's. It was the site of the festivities during the inauguration of the
Philippine Commonwealth. Dubbed as the Official Guest House of the
Philippine Government. it plays host to dignitaries and official visitors who
are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City. 37During World War II the hotel was
converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila the
hotel was selected by the Japanese together with Intramuros as the two (2)
places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a failed coup d'
etatwhere an aspirant for vice-president was "proclaimed" President of the
Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle
for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the
land on which the hotel edifice stands. Consequently, we cannot sustain
respondents' claim that theFilipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of
the corporation, not the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission

MR. DAVIDE. Is that the intention?


MR. MONSOD. Yes, because, in fact, we would be limiting it if we say
that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment be
read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos"
here, as intended by the proponents, will include not only individual
Filipinos but also Filipino-controlled entities or entities fully-controlled by
Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?

THE PRESIDENT. Commissioner Davide is recognized.

MR. NOLLEDO. Obviously.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo


amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE
CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.

MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?

xxx xxx xxx


MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a corporation
that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.

MR. NOLLEDO. The answer is "yes."


MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be
"SHALL THE STATE SHALL GlVE PREFERENCE TO QUALIFIED
FILIPINOS. This embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission


regarding the subject provision was still further clarified by Commissioner
Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in
all economic concerns. It is better known as the FILIPINO FIRST Policy
. . . This provision was never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be
given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment
to Filipino citizens or organizations that are incompetent or inefficient,
since such an indiscriminate preference would be counter productive
and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered
by respondent GSIS and selected as one of the qualified bidders. It was prequalified by respondent GSIS in accordance with its own guidelines so that
the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant
equity ownership in another hotel company, or it has an overall management
and marketing proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision by the government itself is only too distressing.
To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life
of their own and can be the source of a judicial remedy. We cannot simply
afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt
The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts provided that
there are discoverable legal standards for executive action. When the
executive acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The responsibility for
reading and understanding the Constitution and the laws is not the sole
prerogative of Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation every time the
executive is confronted by a constitutional command. That is not how
constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to
the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed
that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on Privatization.
As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes
the sale of the assets of respondents GSIS and MHC a "state action." In
constitutional jurisprudence, the acts of persons distinct from the government

are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so
significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of the State and
therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is
not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution
bestows preference on qualified Filipinos the mere tending of the highest bid
is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in
choosing the awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to be known to
all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for being
violative of the Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of the land.
Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per
share. 47 Certainly, the constitutional mandate itself is reason enough not to
award the block of shares immediately to the foreign bidder notwithstanding
its submission of a higher, or even the highest, bid. In fact, we cannot
conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering
the national economy and patrimony, thereby exceeding the bid of a Filipino,
there is no question that the Filipino will have to be allowed to match the bid
of the foreign entity. And if the Filipino matches the bid of a foreign firm the
award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For,
while this may neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is, omnipresent to be simply disregarded. To
ignore it would be to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines
are understood to be always open to public scrutiny. These are given factors
which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights
and obligations under the Constitution and the laws of the forum.

Supreme Court has not been spared criticism for decisions perceived
as obstacles to economic progress and development . . . in connection
with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that injunction
"again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.

The argument of respondents that petitioner is now estopped from


questioning the sale to Renong Berhad since petitioner was well aware from
the beginning that a foreigner could participate in the bidding is meritless.
Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the
qualified Filipino fails to match the highest bid tendered by the foreign entity.
In the case before us, while petitioner was already preferred at the inception
of the bidding because of the constitutional mandate, petitioner had not yet
matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid. Rightly,
only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid did the latter have
a cause of action.

Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself up
as the judge of whether they are viable or attainable, it is its bounden
duty to make sure that they do not violate the Constitution or the laws,
or are not adopted or implemented with grave abuse of discretion
amounting to lack or excess of jurisdiction. It will never shirk that duty,

Besides, there is no time frame for invoking the constitutional safeguard


unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down
the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied
in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as
the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not
the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and
welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by the
Constitution. The position of the Court on this matter could have not been
more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about
the wisdom and feasibility of legislation economic in nature, the

no matter how buffeted by winds of unfair and ill-informed criticism. 48


Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the
asset, should not take precedence over non-material values. A commercial,
nay even a budgetary, objective should not be pursued at the expense of
national pride and dignity. For the Constitution enshrines higher and nobler
non-material values. Indeed, the Court will always defer to the Constitution in
the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review
when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism,
the happiness and welfare of the people must be the goal. The nation-state
can have no higher purpose. Any interpretation of any constitutional
provision must adhere to such basic concept. Protection of foreign
investments, while laudible, is merely a policy. It cannot override the
demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as a
nation. We are talking about a hotel where heads of states would prefer to be
housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila
Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it
has become truly a reflection of the Filipino soul a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark this Grand Old Dame of hotels
in Asia to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of
a nation's soul for some pieces of foreign silver. And so we ask: What
advantage, which cannot be equally drawn from a qualified Filipino, can be
gained by the Filipinos Manila Hotel and all that it stands for is sold to a
non-Filipino? How much of national pride will vanish if the nation's cultural
heritage is entrusted to a foreign entity? On the other hand, how much

dignity will be preserved and realized if the national patrimony is safekept in


the hands of a qualified, zealous and well-meaning Filipino? This is the plain
and simple meaning of the Filipino First Policy provision of the Philippine
Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue
to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as may be
necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr.,
JJ., concur.
Separate Opinions

PADILLA, J., concurring:


I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would
like to expound a bit more on the concept of national patrimony as including
within its scope and meaning institutions such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national
patrimony" over which qualified Filipinos have the preference, in ownership
and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution,
"national patrimony" consists of the natural resources provided by Almighty
God (Preamble) in our territory (Article I) consisting of land, sea, and
air. 2study of the 1935 Constitution, where the concept of "national patrimony"
originated, would show that its framers decided to adopt the even more
comprehensive expression "Patrimony of the Nation" in the belief that the
phrase encircles a concept embracing not only their natural resources of the
country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets
and possessions of the people. It is to be noted that the framers did not stop
with conservation. They knew that conservation alone does not spell
progress; and that this may be achieved only through development as a
correlative factor to assure to the people not only the exclusive ownership,
but also the exclusive benefits of their national patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring


not only to our rich natural resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our
national patrimony and, as such, deserves constitutional protection as to who
shall own it and benefit from its operation. This institution has played an
important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest
House for visiting foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the
welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and
reserve it for Filipinos was the intent of the distinguished gentlemen who first
framed our Constitution. Thus, in debating the need for nationalization of our
lands and natural resources, one expounded that we should "put more teeth
into our laws, and; not make the nationalization of our lands and natural
resources a subject of ordinary legislation but of constitutional
enactment" 6 To quote further: "Let not our children be mere tenants and
trespassers in their own country. Let us preserve and bequeath to them what
is rightfully theirs, free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to
be meaningful, must refer not only to things that are peripheral, collateral, or
tangential. It must touch and affect the very "heart of the existing order." In
the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified
Filipino to match or equal the higher bid of a non-Filipino; the preference
shall not operate only when the bids of the qualified Filipino and the nonFilipino are equal in which case, the award should undisputedly be made to
the qualified Filipino. The Constitutional preference should give the qualified
Filipino an opportunity to match or equal the higher bid of the non-Filipino
bidder if the preference of the qualified Filipino bidder is to be significant at
all.
It is true that in this present age of globalization of attitude towards foreign
investments in our country, stress is on the elimination of barriers to foreign
trade and investment in the country. While government agencies, including
the courts should re-condition their thinking to such a trend, and make it easy
and even attractive for foreign investors to come to our shores, yet we
should not preclude ourselves from reserving to us Filipinos certain areas
where our national identity, culture and heritage are involved. In the hotel
industry, for instance, foreign investors have established themselves
creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin
Hotels. This should not stop us from retaining 51% of the capital stock of the
Manila Hotel Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national patrimony,
including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting)
opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos" 1 is selfexecutory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural
resources but also to its cultural heritage. A "historical landmark," to use the
words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed
become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling 51% of
its share in MHC should be considered an act of the State subject to the
Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find
it somewhat difficult to take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case before us, the only
meaningful preference, it seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a particular matter, I cannot see any
bid that literally calls for millions of dollars to be at par (to the last cent) with
another. The magnitude of the magnitude of the bids is such that it becomes
hardly possible for the competing bids to stand exactly "equal" which alone,
under the dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great
disappointment, a letdown that it did not deserve, by a simple and timely
advise of the proper rules of bidding along with the peculiar constitutional
implications of the proposed transaction. It is also regrettable that the Court
at time is seen, to instead, be the refuge for bureaucratic inadequate which
create the perception that it even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to
enforce the constitutional mandate that "[i]n the grant of rights, privileges and
concessions covering the national patrimony the State shall give preference
to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the
bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a
qualified Filipino of Philippine corporation can be given preference in the
enjoyment of a right, privilege or concession given by the State, by favoring it
over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance
System, if petitioner and the Malaysian firm had offered the same price per
share, "priority [would be given] to the bidder seeking the larger ownership
interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a
Philippine corporation. Consequently, it is only in cases like the present one,
where an alien corporation is the highest bidder, that preferential treatment of
the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is
awarded the shares of stocks. 3That, to me, is what "preference to qualified
Filipinos" means in the context of this case by favoring Filipinos whenever
they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute


giving "preference to Filipino citizens in the lease of public market
stalls." 5 This Court upheld the cancellation of existing leases covering
market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente, 6 this
Court sustained the validity of a municipal ordinance passed pursuant to the
statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the
occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference granted
under the statute was held to apply to cases in which Filipino vendors sought
the same stalls occupied by alien vendors in the public markets even if there
were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which
situation the right to preference immediately arises." 8
Our legislation on the matter thus antedated by a quarter of a century efforts
began only in the 1970s in America to realize the promise of equality, through
affirmative action and reverse discrimination programs designed to remedy
past discrimination against colored people in such areas as employment,
contracting and licensing. 9Indeed, in vital areas of our national economy,
there are situations in which the only way to place Filipinos in control of the
national economy as contemplated in the Constitution 10 is to give them
preferential treatment where they can at least stand on equal footing with
aliens.
There need be no fear that thus preferring Filipinos would either invite
foreign retaliation or deprive the country of the benefit of foreign capital or
know-how. We are dealing here not with common trades of common means
of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of
benefits and concessions covering the national economy" and therefore no
one should begrudge us if we give preferential treatment to our citizens. That
at any rate is the command of the Constitution. For the Manila Hotel is a
business owned by the Government. It is being privatized. Privatization
should result in the relinquishment of the business in favor of private
individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to
petitioner we would be trading competence and capability for nationalism.
Both petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest
bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder
to match the highest bid of an alien could encourage speculation, since all
that a Filipino entity would then do would be not to make a bid or make only
a token one and, after it is known that a foreign bidder has submitted the
highest bid, make an offer matching that of the foreign firm. This is not
possible under the rules on public bidding of the GSIS. Under these rules
there is a minimum bid required (P36.87 per share for a range of 9 to 15
million shares). 13 Bids below the minimum will not be considered. On the
other hand, if the Filipino entity, after passing the prequalification process,
does not submit a bid, he will not be allowed to match the highest bid of the
foreign firm because this is a privilege allowed only to those who have
"validly submitted bids." 14 The suggestion is, to say the least, fanciful and
has no basis in fact.

For the foregoing reasons, I vote to grant the petition.


TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are
not confronted in the case at bar with legal and constitutional issues and
yet I am driven so to speak on the side of history. The reason perhaps is due
to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page
of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel
has a historical and cultural aspect within the meaning of the constitution and
thus, forming part of the "patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:

MR. FOZ. In connection with that amendment, if a foreign enterprise is


qualified and the Filipinos enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the
Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and
spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973
Constitutions. That we have no reneged on this nationalist policy is
articulated in one of the earliest case, this Court said

xxx xxx xxx


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 goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the
same Constitution pertaining to "Declaration of Principles and State Policies"
which ordain
The State shall develop a self-reliant and independent national
economy effectively by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one
of the highlights in the 1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos"
here, as intended by the proponents, will include not only individual
Filipinos but also Filipino-Controlled entities fully controlled by Filipinos
(Vol. III, Records of the Constitutional Commission, p. 608).
MR. MONSOD. We also wanted to add, as Commissioner Villegas
said, this committee and this body already approved what is known as
the Filipino First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV, Records of the
Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to
above, said:
MR. NOLLEDO. In the grant of rights, privileges and concessions
covering the national economy and patrimony, the State shall give
preference to qualified Filipinos.

The nationalistic tendency is manifested in various provisions of the


Constitution. . . . It cannot therefore be said that a law imbued with the
same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not
legislated and is the product of events, customs, usages and practices. It is
actually a product of growth and acceptance by the collective mores of a
race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the
Manila Hotel is witness to historic events (too numerous to mention) which
shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
controversy. As I believe that has been exhaustively discussed in
the ponencia. Suffice it to say at this point that the history of the Manila Hotel
should not be placed in the auction block of a purely business transaction,
where profits subverts the cherished historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable
tradition which, in the words of the philosopher Salvador de Madarriaga
tradition is "more of a river than a stone, it keeps flowing, and one must view
the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of
forceful currents that push the river or people towards the future, and if you
look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different
lights.
I remember, however, a Spanish proverb which says "He is always right
who suspects that he makes mistakes". On this note, I say that if I have to
make a mistake, I would rather err upholding the belief that the Filipino be
first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:


This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance
System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of
section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila
Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its
shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered
for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide
management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila
Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a
domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of
Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international
marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel.
In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint
venture or juridical entity with at least one of the following qualifications:
a. Proven management .expertise in the hotel industry; or
b. Significant equity ownership (i.e. board representation) in another hotel company; or
c. Overall management and marketing expertise to successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or
international marketing/reservation system for The Manila Hotel.

xxx xxx xxx


D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working
days within the period specified in Section III. Each set of documents consists of the following:
a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization
b. Confidential Information Memorandum: The Manila Hotel Corporation
c. Letter of Invitation. to the Prequalification and Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the
Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who
purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly
advised, although the Applicant will not be penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration
Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the
Information Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall
qualifications of the group, taking into account the contribution of each member to the venture.
3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the criteria set forth below:
a. Business management expertise, track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem appropriate.

6. The parties that prequalified in the first MHC public bidding ITT Sheraton, Marriot International Inc., Renaissance
Hotels International Inc., consortium of RCBC Capital/Ritz Carlton may participate in the Public Bidding without having
to undergo the prequalification process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office
at the date specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration
for being included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares of MHC, will be offered in the Public
Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to
bid for. The range is intended to attract bidders with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis for the Block of
Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid
Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for
disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered
purchase price, in a sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which
adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a
Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the
group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in
the form of:
i. Manager's check or unconditional demand draft payable to the "Government Service Insurance
System" and issued by a reputable banking institution duly licensed to do business in the
Philippines and acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less than the required amount.
c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid
Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the
downpayment on the Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is
not declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with
GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract
specified by the Highest Bidder in its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and
executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest
Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting
requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be
submitted in a sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public
Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted.
6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of
submission will also be indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose.
These boxes will be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked
"SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted
incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of
its bid price will be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the
same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed period; or
b. There is only one (1) bid that is submitted and acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose
the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract or other type of contract specified by the
Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to
provide only financial support to The Manila Hotel, a separate institution may enter into the
aforementioned contract/s with GSIS/MHC.

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified Bidder after the prequalification process is
completed.
2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed
overhead expenses and the basic management fee.
c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of
gross room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the
negotiations with the Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the
management fee structure above is acceptable before submitting their prequalification documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms
of price per share.
2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of
their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that
submitted the second and third highest bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not
later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied
as downpayment.
2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the
"Government Service Insurance System," issued by a reputable banking institution licensed to do business in the
Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such
application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the
submission of any additional information from the Applicant as the PBAC may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new
public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the
obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline for the
submission of the prequalification documents, the date of the Public Bidding or other pertinent activities at least three (3)
calendar days prior to the respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon
request.
6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in
the Public Bidding, are deemed to have agreed to accept and abide by these results.
7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the
Qualified Bidders who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share
also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made
to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid
security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the
hotel, refused to entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing provision and does not need implementing legislation to
carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of
our patrimony as a nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong
Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and
general framework of the law and government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action. 6 Some of
its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law
oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a
definitive law, or if it needs future legislation for completion and enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8
Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring future legislation for their enforcement. 10 The reason is not
difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and
nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13the rights of a person under custodial
investigation, 14 the rights of an accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate
constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional
provisions forbidding the taking or damaging of property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the
Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution
entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some
provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the
basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate
their policy content. 24
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads:
Sec. 10. 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.
The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one
hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in
the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments
in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign
ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right
granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was
plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao
Ichong v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973
provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of
our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and
not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of
the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and
it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall
develop a self-reliant and independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in our fundamental law
and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records
of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers
not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel
to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31the
hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to
the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian
travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests
during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the
situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has
reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national
patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may
be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and
cultural property as synonymous to the phrase "patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned
and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in
trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are allowed to be invested in business and other ventures for the
benefit of the employees. 36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the
contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter
to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As state-owned and controlled
corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their
contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's
unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase
"qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED"
because the existing laws or the prospective laws will always lay down conditions under which
business map be done, for example, qualifications on capital, qualifications on the setting up of
other financial structures, et cetera.
MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.


MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the
word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies
and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to
measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in
the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the
highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is proPilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of
rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from
granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between
two desiderata first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy
controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that
for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In
fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance,
the greater the degree of the right of preference can be given to Filipinos and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our
constitutional scheme, the right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies
and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike
down acts of the state that violate the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents
Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the
rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they
cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said
rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference
of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by
the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises
only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final.
It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What
the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right
of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province
of the policy-making branches and agencies of the State. We are duty-bound to respect that determination even if we differ with the wisdom of their judgment. The
right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the
right that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew
that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to
foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be

allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules
and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people.
This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective
will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder
not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a
Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to
a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal
protection clause of the Constitution protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:


I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right
to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national
economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering
law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino
can lose and where no foreigner can win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages
other countries in the guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own jurisdictions by authorizing their own
nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the
long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may
be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly
posted the highest score.

EN BANC
G.R. No. 160261

November 10, 2003

ERNESTO
B.
FRANCISCO,
JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG
PILIPINO,
INC.,
ITS
OFFICERS
AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C.
TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME
N.
SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.
There may indeed be some legitimacy to the characterization that the
present controversy subject of the instant petitions whether the filing of the
second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
with the House of Representatives falls within the one year bar provided in
the Constitution, and whether the resolution thereof is a political question
has resulted in a political crisis. Perhaps even more truth to the view that it
was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government
by no means prescribes for absolute autonomy in the discharge by each of
that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of
each of these three branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for
the good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting,

interpreting and enforcing laws are harmonized to achieve a unity of


governance, guided only by what is in the greater interest and well-being of
the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. 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.
SECTION 2. 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.
SECTION 3. (1) The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. 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.
(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The
vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. 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.
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment according to
law.

(8) The Congress shall promulgate its rules on impeachment to


effectively carry out the purpose of this section. (Emphasis and
underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the
12th Congress of the House of Representatives adopted and approved the
Rules of Procedure in Impeachment Proceedings (House Impeachment
Rules) on November 28, 2001, superseding the previous House
Impeachment
Rules1 approved
by
the
11th
Congress.
The relevant distinctions between these two Congresses' House
Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. Impeachment
shall be initiated only by a verified
complaint for impeachment filed
by any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement
by any Member thereof or by a
verified complaint or resolution of
impeachment filed by at least onethird (1/3) of all the Members of
the House.

RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment
Proceedings
Deemed
Initiated. In cases where a
Member of the House files a
verified complaint of impeachment
or a citizen files a verified
complaint that is endorsed by a
Member of the House through a
resolution of endorsement against
an
impeachable
officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint
and/or
resolution
against such official, as the case
may be, is sufficient in substance,
or on the date the House votes to
overturn or affirm the finding of the
said Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the
House, impeachment
proceedings
are
deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.

RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No
impeachment proceedings shall
be initiated against the same
official more than once within the
period of one (1) year.

Section
17. Bar
Against
Initiation Of Impeachment
Proceedings. Within a period of
one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section
16
hereof,
no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the
original;
emphasis
and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a


Resolution,2 sponsored by Representative Felix William D. Fuentebella,
which directed the Committee on Justice "to conduct an investigation, in aid
of legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment
complaint4 (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices 5 of this Court for "culpable violation
of the Constitution, betrayal of the public trust and other high crimes." 6 The
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 2003 8 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a
resolution of endorsement by any Member thereof, which shall be
included in the Order of Business within ten session days, and referred
to the proper Committee within three session days thereafter. 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 House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form," 9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date, the
Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on
Justice voted to dismiss it, the second impeachment complaint 11 was filed
with the Secretary General of the House 12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded
on the alleged results of the legislative inquiry initiated by above-mentioned
House Resolution. This second impeachment complaint was accompanied
by a "Resolution of Endorsement/Impeachment" signed by at least one-third
(1/3) of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et.
al., most of which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of Article
XI of the Constitution that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he
has a duty as a member of the Integrated Bar of the Philippines to use all
available legal remedies to stop an unconstitutional impeachment, that the
issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"14 posits that his right to bring
an impeachment complaint against then Ombudsman Aniano Desierto had
been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the
House of Representatives and prays that (1) Rule V, Sections 16 and 17 and
Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2)
this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
the Constitution, to return the second impeachment complaint and/or strike it
off the records of the House of Representatives, and to promulgate rules
which are consistent with the Constitution; and (3) this Court permanently

enjoin respondent House of Representatives from proceeding with the


second impeachment complaint.

Permanent Injunction to enjoin the House of Representatives from


proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens


and taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance of a
writ "perpetually" prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with the Senate; and
for the issuance of a writ "perpetually" prohibiting respondents Senate and
Senate President Franklin Drilon from accepting any Articles of Impeachment
against the Chief Justice or, in the event that the Senate has accepted the
same, from proceeding with the impeachment trial.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections
16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad


Cagampang, as citizens, taxpayers, lawyers and members of the Integrated
Bar of the Philippines, alleging that their petition for Prohibition involves
public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the
issuance of a writ of prohibition enjoining Congress from conducting further
proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court
has recognized that he has locus standi to bring petitions of this nature in the
cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers
and members of the legal profession, pray in their petition for Prohibition for
an order prohibiting respondent House of Representatives from drafting,
adopting, approving and transmitting to the Senate the second impeachment
complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House
of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they
have a right to be protected against all forms of senseless spending of
taxpayers' money and that they have an obligation to protect the Supreme
Court, the Chief Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a class suit" and
pray that (1) the House Resolution endorsing the second impeachment
complaint as well as all issuances emanating therefrom be declared null and
void; and (2) this Court enjoin the Senate and the Senate President from
taking cognizance of, hearing, trying and deciding the second impeachment
complaint, and issue a writ of prohibition commanding the Senate, its
prosecutors and agents to desist from conducting any proceedings or to act
on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members
are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen,
taxpayer and a member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second
impeachment complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a
member of the Philippine Bar Association and of the Integrated Bar of the
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in
their petition for the issuance of a Temporary Restraining Order and

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his


petition for Certiorari and Prohibition that the House Impeachment Rules be
declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et.
al., in their petition for Prohibition and Injunction which they claim is a class
suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in
behalf of succeeding generations of Filipinos, pray for the issuance of a writ
prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and
that this Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in interfering
with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting
the House of Representatives from transmitting the Articles of Impeachment
to the Senate and the Senate from receiving the same or giving the
impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in
his petition for Prohibition that respondents Fuentebella and Teodoro at the
time they filed the second impeachment complaint, were "absolutely without
any legal power to do so, as they acted without jurisdiction as far as the
Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofilea, alleging that as professors of law they have an abiding interest in
the subject matter of their petition for Certiorari and Prohibition as it pertains
to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that
the second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is
founded on the issue of whether or not the Judicial Development Fund (JDF)
was spent in accordance with law and that the House of Representatives
does not have exclusive jurisdiction in the examination and audit thereof,
prays in his petition "To Declare Complaint Null and Void for Lack of Cause
of Action and Jurisdiction" that the second impeachment complaint be
declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve
matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited from

accepting the Articles of Impeachment and from conducting any proceedings


thereon.

respondent, be recognized and upheld pursuant to the provisions of Article


XI of the Constitution."22

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null
and void and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.

Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions; (b)
require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November 5,
2003.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263,
the first three of the eighteen which were filed before this Court, 18 prayed for
the issuance of a Temporary Restraining Order and/or preliminary injunction
to prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null
and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition,
petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration by
the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of
fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of quorum, 19 and
as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b)
require respondent House of Representatives and the Senate, as well as the
Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5,
2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others acting for and in
their behalf to refrain from committing acts that would render the petitions
moot.

On October 29, 2003, the Senate of the Philippines, through Senate


President Franklin M. Drilon, filed a Manifestation stating that insofar as it is
concerned, the petitions are plainly premature and have no basis in law or in
fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the
Articles of Impeachment, which it had not, and (2) the principal issues raised
by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of
all the petitions as the matter in question is not yet ripe for judicial
determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene
and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention
were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and
the arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be
invoked; who can invoke it; on what issues and at what time; and
whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:

Also on October 28, 2003, when respondent House of Representatives


through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way
of special appearance, submitted a Manifestation asserting that this Court
has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its
constitutionally mandated duty to initiate impeachment cases. On even date,
Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to
Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court over
the issues affecting the impeachment proceedings and that the sole power,
authority and jurisdiction of the Senate as the impeachment court to try and
decide impeachment cases, including the one where the Chief Justice is the

a) locus standi of petitioners;


b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of
impeachment;

f) constitutionality of the House Rules on Impeachment vis-avis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the threshold and novel
issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential prerequisites for the exercise of the power of judicial review have been fulfilled;
and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.

possession of this moderating power of the courts, not to speak of


its historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our
Constitution.

Judicial power includes the duty of the courts of justice to settle


actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)

The Constitution is a definition of the powers of government. Who is to


determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in truth
all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.24 (Italics in the original; emphasis and
underscoring supplied)

Such power of judicial review was early on exhaustively expounded upon by


Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose provisions,
unlike the present Constitution, did not contain the present provision in
Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:

As pointed out by Justice Laurel, this "moderating power" to "determine the


proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in
all courts25 as a necessary consequence of the judicial power itself, which
is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26

x x x In times of social disquietude or political excitement, the great


landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.

Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has "been
set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief
Justice Marshall, to wit:

As any human production, our Constitution is of course lacking


perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that instrument
which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function
as a harmonious whole, under a system of checks and balances, and
subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no
express constitutional grant is found in their constitution, the

It is also not entirely unworthy of observation, that in declaring what


shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that
rank.

Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment
complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.

Thus, the particular phraseology of the constitution of the United


States confirms and strengthens the principle, supposed to be
essential to all written constitutions, that a law repugnant to the
constitution is void; and that courts, as well as other departments,
are bound by that instrument.28 (Italics in the original; emphasis
supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in
the 1935 Constitution, the power of judicial review was exercised by our
courts to invalidate constitutionally infirm acts. 29 And as pointed out by noted
political law professor and former Supreme Court Justice Vicente V.

Mendoza,30 the executive and legislative branches of our government in fact


effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an
integral component of the delicate system of checks and balances which,
together with the corollary principle of separation of powers, forms the
bedrock of our republican form of government and insures that its vast
powers are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but
by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination
in the workings of the various departments of the government. x
x x And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise
of its power to determine the law, and hence to declare executive
and
legislative
acts
void
if
violative
of
the
Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers among
the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them." 33 To
him, "[j]udicial review is the chief, indeed the only, medium of participation
or instrument of intervention of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of
discretion by "any branch or instrumentalities of government," the aforequoted Section 1, Article VIII of the Constitution engraves, for the first time
into
its
history,
into
block
letter
law
the
so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for
which are mirrored in the following excerpt from the sponsorship speech of
its proponent, former Chief Justice Constitutional Commissioner Roberto
Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of
political questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and other
matters related to the operation and effect of martial law failed because
the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters of
this nature, by claiming that such matters constitute a political
question.35 (Italics in the original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court
must necessarily turn to the Constitution itself which employs the well-settled
principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for
its meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained. They are to be given their ordinary meaning except
where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution
is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels

acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Thus these are the cases where the need for construction is reduced to
a minimum.37 (Emphasis and underscoring supplied)

In other words, the court must harmonize them, if practicable, and must
lean in favor of a construction which will render every word operative,
rather than one which may make the words idle and
nugatory.45 (Emphasis supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:

If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:

A foolproof yardstick in constitutional construction is the intention


underlying the provision under consideration. Thus, it has been held
that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and calculated to
effect that purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue 40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent
of the framers of the organic law and of the people adopting it
should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as
a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not
have dedicated a provision of our Constitution merely for the
benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document. 43 (Emphasis and
underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that no
one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing
upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument.
Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made
to stand together.

While it is permissible in this jurisdiction to consult the debates and


proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning
is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from
what appears upon its face." The proper interpretation therefore
depends more on how it was understood by the people adopting it
than in the framers's understanding thereof. 46 (Emphasis and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and
jurisprudential application of the power of judicial review that respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel
argument that the Constitution has excluded impeachment proceedings from
the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et.
al. that impeachment is a political action which cannot assume a judicial
character. Hence, any question, issue or incident arising at any stage of the
impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents Speaker
De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American
authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the
framers' decision to allocate to different fora the powers to try impeachments
and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would
create a lack of finality and difficulty in fashioning relief.51 Respondents
likewise point to deliberations on the US Constitution to show the intent to
isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to
support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion of
the power of judicial review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American


Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since
diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical
cord."
The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power
but also a duty, and it was given an expanded definition to include the
power to correct any grave abuse of discretion on the part of any
government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives
without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment
cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations
include the manner of filing, required vote to impeach, and the one year bar
on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress
and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride."56
But did not the people also express their will when they instituted the abovementioned safeguards in the Constitution? This shows that the Constitution
did not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power
of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases concern
the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.
There is indeed a plethora of cases in which this Court exercised the power
of judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr.,60 this Court ruled that it is well within the power and jurisdiction of the
Court to inquire whether the Senate or its officials committed a violation of
the Constitution or grave abuse of discretion in the exercise of their functions
and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an action of
the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution
of the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal

for being violative of Section 17, Article VI of the Constitution. In Coseteng v.


Mitra,63 it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of
the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the
House of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon
the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the
election of any member, irrespective of whether his election is contested, is
not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the
system of checks and balances. Verily, the Constitution is to be interpreted
as a whole and "one section is not to be allowed to defeat another." 67 Both
are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the
powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is subject
to several limitations, namely: (1) an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be raised at the
earliest possible opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that
petitioners do not have standing since only the Chief Justice has sustained
and will sustain direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.

Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to
them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is
of the same opinion, citing transcendental importance and the wellentrenched rule exception that, when the real party in interest is unable to
vindicate his rights by seeking the same remedies, as in the case of the
Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction
of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure 73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest
has been noted by authorities thus: "It is important to note . . . that
standing because of its constitutional and public policy underpinnings,
is very different from questions relating to whether a particular plaintiff
is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating
to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the public
interest. Hence the question in standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether
he is "the party who would be benefited or injured by the judgment, or
the 'party entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of the
petitioners before us asserts a violation of the personal rights of the Chief
Justice. On the contrary, they invariably invoke the vindication of their own
rights as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession which were
supposedly violated by the alleged unconstitutional acts of the House of
Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is

about to be denied some right or privilege to which he is lawfully entitled or


that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of. 77 In fine, when the proceeding involves the
assertion of a public right,78 the mere fact that he is a citizen satisfies the
requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being deflected to
any improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law. 79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained.81 This Court opts to grant standing to
most of the petitioners, given their allegation that any impending transmittal
to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official
action which he claims infringes his prerogatives as a legislator. 82 Indeed, a
member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his
office.83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial taxpayers and the
outcome will affect their vital interests, 85 the mere invocation by
the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law and nothing more, although undoubtedly
true, does not suffice to clothe it with standing. Its interest is too general. It is
shared by other groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents.86It, therefore, behooves this Court to relax the rules on standing
and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the
interests of all concerned87 to enable the court to deal properly with all
interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under theres judicata principle,
binding on all members of the class whether or not they were before the
court.89 Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail.
Since petitioners additionallyallege standing as citizens and taxpayers,
however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied that the issues
raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence
of such interest, it not being one of which courts can take judicial notice. In
petitioner Vallejos' case, he failed to allege any interest in the case. He does
not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules
of Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts
when the applicant shows facts which satisfy the requirements of the law
authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since,
save for one additional issue, they raise the same issues and the same
standing, and no objection on the part of petitioners Candelaria, et. al. has
been interposed, this Court as earlier stated, granted the Motion for Leave of
Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking
their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives
is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed
a "Petition-in-Intervention with Leave to Intervene" to raise the additional
issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the
Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the
Philippines, Inc. possess a legal interest in the matter in litigation the
respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives.
Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted and he
was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
denied for, while he asserts an interest as a taxpayer, he failed to meet the
standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being extracted and spent in

violation of specific constitutional protection against abuses of


legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that
the act of petitioners will result in illegal disbursement of public funds or in
public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
for a case to be considered ripe for adjudication, "it is a prerequisite that
something had by then been accomplished or performed by either branch
before a court may come into the picture." 96 Only then may the courts pass
on the validity of what was done, if and when the latter is challenged in an
appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional
act should be accomplished and performed before suit, as Tan v.
Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant
petitions are premature. Amicus curiaeformer Senate President Jovito R.
Salonga opines that there may be no urgent need for this Court to render a
decision at this time, it being the final arbiter on questions of constitutionality
anyway. He thus recommends that all remedies in the House and Senate
should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law
who suggests to this Court to take judicial notice of on-going attempts to
encourage signatories to the second impeachment complaint to withdraw
their signatures and opines that the House Impeachment Rules provide for
an opportunity for members to raise constitutional questions themselves
when the Articles of Impeachment are presented on a motion to transmit to
the same to the Senate. The dean maintains that even assuming that the
Articles are transmitted to the Senate, the Chief Justice can raise the issue
of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2) and (3)
of Article XI of the Constitution97 and, therefore, petitioners would continue to
suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact
that, as previously discussed, neither the House of Representatives nor the
Senate is clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or otherwise,
as said power is exclusively vested in the judiciary by the earlier quoted
Section I, Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion


defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, it refers to "those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without
any rhyme or reason, this Court vacillated on its stance of taking cognizance
of cases which involved political questions. In some cases, this Court hid
behind the cover of the political question doctrine and refused to exercise its
power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction
whenever it found constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark 1988 case
of Javellana v. Executive Secretary102 which raised the issue of whether the
1973 Constitution was ratified, hence, in force, this Court shunted the
political question doctrine and took cognizance thereof. Ratification by the
people of a Constitution is a political question, it being a question decided by
the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to
refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the
usual comment that the judiciary is the weakest among the three major
branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the most powerful
of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some
antecedents in the past, but the role of the judiciary during the

deposed regime was marred considerably by the circumstance


that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of
political questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus, that
is, the authority of courts to order the release of political
detainees, and other matters related to the operation and effect of
martial law failed because the government set up the defense of
political question. And the Supreme Court said: "Well, since it is
political, we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the
rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. I am sure the members of the
Bar are familiar with this situation. But for the benefit of the Members of
the Commission who are not lawyers, allow me to explain. I will start
with a decision of the Supreme Court in 1973 on the case of Javellana
vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated
September 21. The obvious reason for the delay in its publication was
that the administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was announced
on September 22, the media hardly published anything about it. In fact,
the media could not publish any story not only because our main
writers were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of being the
object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not
finished the Constitution; it had barely agreed in the fundamentals of
the Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention, dozens of
them, were picked up. One of them was our very own colleague,
Commissioner Calderon. So, the unfinished draft of the Constitution
was taken over by representatives of Malacaang. In 17 days, they
finished what the delegates to the 1971 Constitutional Convention had
been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972,
whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain
matters of public concern. The purpose was presumably to allow a free
discussion on the draft of the Constitution on which a plebiscite was to
be held sometime in January 1973. If I may use a word famous by our
colleague, Commissioner Ople, during the interregnum, however, the
draft of the Constitution was analyzed and criticized with such a telling
effect that Malacaang felt the danger of its approval. So, the President
suspended indefinitely the holding of the plebiscite and announced that
he would consult the people in a referendum to be held from January
10 to January 15. But the questions to be submitted in the referendum
were not announced until the eve of its scheduled beginning, under the
supposed supervision not of the Commission on Elections, but of what
was then designated as "citizens assemblies or barangays." Thus the
barangays came into existence. The questions to be propounded were
released with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in the
referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the
holding of the referendum be suspended. When the motion was being
heard before the Supreme Court, the Minister of Justice delivered to
the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of
the votes cast in the referendum favored the Constitution. Immediately
after the departure of the Minister of Justice, I proceeded to the session
room where the case was being heard. I then informed the Court and
the parties the presidential proclamation declaring that the 1973
Constitution had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the

government was that the issue was a political question and that the
court had no jurisdiction to entertain the case.

amounting to excess of jurisdiction or lack of jurisdiction. This is


not only a judicial power but a duty to pass judgment on matters
of this nature.

xxx
The government said that in a referendum held from January 10 to
January 15, the vast majority ratified the draft of the Constitution. Note
that all members of the Supreme Court were residents of Manila, but
none of them had been notified of any referendum in their respective
places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a
majority of the members of the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big
difference between a referendum and a plebiscite. But another
group of justices upheld the defense that the issue was a political
question. Whereupon, they dismissed the case. This is not the
only major case in which the plea of "political question" was set
up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because
the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its
functions, it faced the following questions: What is judicial power? What
is a political question?
The Supreme Court, like all other courts, has one main function: to
settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are guaranteed
by law but cannot be enforced by a judiciary party. In a decided case, a
husband complained that his wife was unwilling to perform her duties
as a wife. The Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband.
There are some rights guaranteed by law, but they are so personal that
to enforce them by actual compulsion would be highly derogatory to
human dignity."
This is why the first part of the second paragraph of Section I provides
that:
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme
Court has, also another important function. The powers of
government are generally considered divided into three branches:
the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others.
Because of that supremacy power to determine whether a given
law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion

This is the background of paragraph 2 of Section 1, which means


that the courts cannot hereafter evade the duty to settle matters of
this nature, by claiming that such matters constitute a political
question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the subject of
the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but
judicial power is not vested in the Supreme Court alone but also in
other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems
to identify political questions with jurisdictional questions. But
there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary
cases but where there is a question as to whether the government
had authority or had abused its authority to the extent of lacking
jurisdiction or excess of jurisdiction, that is not a political
question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by
the Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the
political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of
discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define
what is judicial power. But the Gentleman will notice it says,
"judicial power includes" and the reason being that the definition
that we might make may not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems


arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that
truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a
duty, a duty which cannot be abdicated by the mere specter of this creature
called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with
"truly political questions." From this clarification it is gathered that there are
two species of political questions: (1) "truly political questions" and (2) those
which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for
respect of the doctrine of separation of powers to be maintained. On the
other hand, by virtue of Section 1, Article VIII of the Constitution, courts can
review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken jurisdiction
over questions which are not truly political following the effectivity of the
present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of
the principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question.110 x x x (Emphasis and
underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however.
Identification of these two species of political questions may be problematic.
There has been no clear standard. The American case of Baker v.
Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a


political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a
political decision already made; or thepotentiality of
embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards
are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American
concept of judicial review is radically different from our current concept, for
Section 1, Article VIII of the Constitution provides our courts with far less
discretion in determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political question from a nonjusticiable political question lies in the answer to the question of whether
there are constitutionally imposed limits on powers or functions conferred
upon political bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly acted
within such limits. This Court shall thus now apply this standard to the
present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint
constitute valid impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance
with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice
into the Judicial Development Fund is an unconstitutional infringement
of the constitutionally mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are unconstitutional for
violating the provisions of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section
3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More importantly,
any discussion of this issue would require this Court to make a
determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has
left to the sound discretion of the legislation. Such an intent is clear
from the deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds
for impeachment, two of these, namely, other high crimes and betrayal of
public trust, elude a precise definition. In fact, an examination of the records

of the 1986 Constitutional Commission shows that the framers could find no
better way to approximate the boundaries of betrayal of public trust and other
high crimes than by alluding to both positive and negative examples of both,
without arriving at their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable
political question which is beyond the scope of its judicial power under
Section 1, Article VIII.

legislative inquiries in general, which would thus be broader than is required


by the facts of these consolidated cases. This opinion is further strengthened
by the fact that said petitioners have raised other grounds in support of their
petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v.
Senate Blue Ribbon Commttee,122 viz:

Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional
or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that
course will be adopted and the constitutional question will be
left for consideration until a case arises in which a decision
upon such question will be unavoidable.116 [Emphasis and
underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question
are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the
case itself.118[Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by
the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is
applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue
of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule
of constitutional law touching on the separate and distinct matter of

The 1987 Constitution expressly recognizes the power of both


houses of Congress to conduct inquiries in aid of legislation.
Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall
be respected.
The power of both houses of Congress to conduct inquiries in aid
of legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must be "in aid of
legislation in accordance with its duly published rules of
procedure" and that "the rights of persons appearing in or affected
by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not be compelled
to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et.
al., introduce the new argument that since the second impeachment
complaint was verified and filed only by Representatives Gilberto Teodoro, Jr.
and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members of
the House, the same shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives
signed a Resolution of Endorsement/Impeachment, the same did not satisfy
the requisites for the application of the afore-mentioned section in that the
"verified complaint or resolution of impeachment" was not filed "by at least
one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution
are alleged to have verified the same merely as a "Resolution of
Endorsement." Intervenors point to the "Verification" of the Resolution of
Endorsement which states that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution
requires in order for said second impeachment complaint to automatically
become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment
complaint should have been calendared and referred to the House
Committee on Justice under Section 3(2), Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by


any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session
days thereafter. 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.
Intervenors' foregoing position is echoed by Justice Maambong who opined
that for Section 3 (4), Article XI of the Constitution to apply, there should be
76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the signatories
to a resolution of impeachment. Justice Maambong likewise asserted that
the Resolution of Endorsement/Impeachment signed by at least one-third of
the members of the House of Representatives as endorsers is not the
resolution of impeachment contemplated by the Constitution, such resolution
of endorsement being necessary only from at least one Member whenever a
citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra,
does indeed limit the scope of the constitutional issues to the provisions on
impeachment, more compelling considerations militate against its adoption
as the lis mota or crux of the present controversy. Chief among this is the
fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second
impeachment complaint. Thus, to adopt this additional ground as the basis
for deciding the instant consolidated petitions would not only render for
naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for
the determination of the instant cases is made easier by the fact that said
intervenors Macalintal and Quadra have joined in the petition of
Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as
they are, constitute the very lis mota of the instant controversy: (1) whether
Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by
the 12th Congress are unconstitutional for violating the provisions of Section
3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground
that the Senate, sitting as an impeachment court, has the sole power to try
and decide all cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over justiciable issues
in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that
"[t]here is a moral compulsion for the Court to not assume jurisdiction over
the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the Legislature
has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, because this Court is
not legally disqualified. Nor can jurisdiction be renounced as there is no other

tribunal to which the controversy may be referred." 126 Otherwise, this Court
would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is dutybound to take cognizance of the instant petitions. 127 In the august words
of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because
no other office has the authority to do so. 128 On the occasion that this Court
had been an interested party to the controversy before it, it has acted upon
the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his]
appointment to the office, the public has laid on [a member of the judiciary]
their confidence that [he] is mentally and morally fit to pass upon the merits
of their varied contentions. For this reason, they expect [him] to be fearless
in [his] pursuit to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral fiber strong enough to
resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case ofAbbas v. Senate Electoral Tribunal.131 In
that case, the petitioners filed with the respondent Senate Electoral Tribunal
a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that
all of them were interested parties to said case as respondents therein. This
would have reduced the Tribunal's membership to only its three JusticesMembers whose disqualification was not sought, leaving them to decide the
matter. This Court held:
Where, as here, a situation is created which precludes the substitution
of any Senator sitting in the Tribunal by any of his other colleagues in
the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and
ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Senators.
To our mind, this is the overriding consideration that the Tribunal be
not prevented from discharging a duty which it alone has the power to
perform, the performance of which is in the highest public interest as
evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all Senatorselect,
six of whom would inevitably have to sit in judgment thereon. Indeed,
such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be
at stake. Yet the Constitution provides no scheme or mode for settling
such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such
situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices
and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in
the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as

such, absent its entire membership of Senators and that no


amendment of its Rules can confer on the three Justices-Members
alone the power of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a
majority of them, is nothing short ofpro tanto depriving the Court itself of
its jurisdiction as established by the fundamental law. Disqualification of
a judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court,
as is the case with the Justices of this Court, the deprivation of his or
their judicial power is equivalent to the deprivation of the judicial power
of the court itself. It affects the very heart of judicial independence. The
proposed mass disqualification, if sanctioned and ordered, would leave
the Court no alternative but to abandon a duty which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when
it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the
"seven pillars" of limitations of the power of judicial review, enunciated by US
Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary proceeding, declining because to decide such
questions 'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a
party beaten in the legislature could transfer to the courts an inquiry as
to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' . . . 'It is not the habit of the
Court to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.'

6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by
the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the
operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in
the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest
possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136

4. The Court will not pass upon a constitutional question although


properly presented by the record, if there is also present some other
ground upon which the case may be disposed of. This rule has found
most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the
latter. Appeals from the highest court of a state challenging its decision
of a question under the Federal Constitution are frequently dismissed
because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint
of one who fails to show that he is injured by its operation. Among the
many applications of this rule, none is more striking than the denial of
the right of challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v.
Hughes, the Court affirmed the dismissal of a suit brought by a citizen
who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest
in judicial hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure of
this Court to enforce its Resolution against Congress would result in the
diminution of its judicial authority and erode public confidence and faith in the
judiciary.
Such an argument, however, is specious, to say the least. As correctly stated
by the Solicitor General, the possibility of the occurrence of a constitutional
crisis is not a reason for this Court to refrain from upholding the Constitution
in all impeachment cases. Justices cannot abandon their constitutional
duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive
act is not regarded as settled until the Supreme Court has passed upon

the constitutionality of the act involved, the judgment has not only
juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of
votes. Frequently, failure to act explicitly, one way or the other, itself
constitutes a decision for the respondent and validation, or at least
quasi-validation, follows." 138

Regalado) as amicus curiae affirmed during the oral arguments on the


instant petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates
any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
and (5) of the Constitution means to file the complaint and take initial action
on it.

Thus, in Javellana v. Executive Secretary139 where this Court was split and
"in the end there were not enough votes either to grant the petitions, or to
sustain respondent's claims,"140 the pre-existing constitutional order was
disrupted which paved the way for the establishment of the martial law
regime.

"Initiate" of course is understood by ordinary men to mean, as dictionaries


do, to begin, to commence, or set going. As Webster's Third New
International Dictionary of the English Language concisely puts it, it means
"to perform or facilitate the first action," which jibes with Justice Regalado's
position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Such an argument by respondents and intervenor also presumes that the


coordinate branches of the government would behave in a lawless manner
and not do their duty under the law to uphold the Constitution and obey the
laws of the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental
law of the land.

Briefly then, an impeachment proceeding is not a single act. It is a


comlexus of acts consisting of a beginning, a middle and an end. The
end is the transmittal of the articles of impeachment to the Senate. The
middle consists of those deliberative moments leading to the
formulation of the articles of impeachment. The beginning or the
initiation is the filing of the complaint and its referral to the Committee
on Justice.

Substituting the word public officers for judges, this Court is well guided by
the doctrine in People v. Veneracion, towit:141

Finally, it should be noted that the House Rule relied upon by


Representatives Cojuangco and Fuentebella says that impeachment is
"deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after actual initiation.
(Emphasis and underscoring supplied)

Obedience to the rule of law forms the bedrock of our system of justice.
If [public officers], under the guise of religious or political beliefs were
allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes the exercise
of broad discretionary powers by those acting under its authority. Under
this system, [public officers] are guided by the Rule of Law, and ought
"to protect and enforce it without fear or favor," resist encroachments by
governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality
of
the
for
Impeachment
adopted by the 12th Congress

Rules

of

Procedure
Proceedings

Respondent House of Representatives, through Speaker De Venecia,


argues that Sections 16 and 17 of Rule V of the House Impeachment Rules
do not violate Section 3 (5) of Article XI of our present Constitution,
contending that the term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which
has the exclusive power to initiate all cases of impeachment; that initiate
could not possibly mean "to file" because filing can, as Section 3 (2), Article
XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by
a verified complaint for impeachment by any member of the House of
Representatives; or (2) by any citizen upon a resolution of endorsement by
any member; or (3) by at least 1/3 of all the members of the House.
Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment complaint against
Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner

As stated earlier, one of the means of interpreting the Constitution is looking


into the intent of the law. Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I
understand there have been many proposals and, I think, these would
need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee
a resolution on impeachment proceedings, copies of which have been
furnished the Members of this body. This is borne out of my experience
as a member of the Committee on Justice, Human Rights and Good
Government which took charge of the last impeachment resolution filed
before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the
impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the
report, transmittal referral to the Senate, trial and judgment by the
Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking that
we do not really initiate the filing of the Articles of Impeachment on the
floor. The procedure, as I have pointed out earlier, was that the
initiation starts with the filing of the complaint. And what is
actually done on the floor is that the committee resolution
containing the Articles of Impeachment is the one approved by the
body.

As the phraseology now runs, which may be corrected by the


Committee on Style, it appears that the initiation starts on the floor. If
we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the
resolution, and the Articles of Impeachment to the body, and it was the
body who approved the resolution. It is not the body which initiates
it. It only approves or disapproves the resolution. So, on that score,
probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing
with me The Rules of the House of Representatives of the U.S.
Congress. The Senate Rules are with me. The proceedings on the
case of Richard Nixon are with me. I have submitted my proposal, but
the Committee has already decided. Nevertheless, I just want to
indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the
approval of Section 3 (3). My reconsideration will not at all affect the
substance, but it is only in keeping with the exact formulation of the
Rules of the House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to any of this
provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete
the words which read: "to initiate impeachment proceedings"and
the comma (,) and insert on line 19 after the word "resolution" the
phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole
section will now read: "A vote of at least one-third of all the Members of
the House shall be necessary either to affirm a resolution WITH THE
ARTICLES of Impeachment OF the Committee or to override its
contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as
the House of Representatives of the United States is concerned, really
starts from the filing of the verified complaint and every resolution
to impeach always carries with it the Articles of Impeachment. As a
matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third
of all the Members of the House. I will mention again, Madam
President, that my amendment will not vary the substance in any way. It
is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring
supplied)
This amendment proposed by Commissioner Maambong was clarified and
accepted by the Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of
the complaint. In his amicus curiaebrief, Commissioner Maambong explained
that "the obvious reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of Section 3 (3)
was to settle and make it understood once and for all that the initiation
of impeachment proceedings starts with the filing of the complaint, and
the vote of one-third of the House in a resolution of impeachment does not
initiate the impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2), Article XI of
the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as
is Father Bernas, who was also a member of the 1986 Constitutional
Commission, that the word "initiate" as used in Article XI, Section 3(5) means
to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the
word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in
the second sentence is "impeachment proceeding." Following the principle
of reddendo singuala sinuilis, the term "cases" must be distinguished from
the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that
the House, by a vote of one-third of all its members, can bring a case to the
Senate. It is in that sense that the House has "exclusive power" to initiate all
cases of impeachment. No other body can do it. However, before a decision
is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end.
It takes place not in the Senate but in the House and consists of several
steps: (1) there is the filing of a verified complaint either by a Member of the
House of Representatives or by a private citizen endorsed by a Member of
the House of the Representatives; (2) there is the processing of this
complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the
complaint, the resolution must be forwarded to the House for further
processing; and (4) there is the processing of the same complaint by the
House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the
members. If at least one third of all the Members upholds the complaint,
Articles of Impeachment are prepared and transmitted to the Senate. It is at
this point that the House "initiates an impeachment case." It is at this point
that an impeachable public official is successfully impeached. That is, he or
she is successfully charged with an impeachment "case" before the Senate
as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not
initiated when the complaint is transmitted to the Senate for trial because
that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding"
initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The
action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice for action.
This is the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote of
at least one-third of all the Members of the House shall be necessary
toinitiate impeachment proceedings," this was met by a proposal to delete
the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus
the line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once within
a period of one year," it means that no second verified complaint may be
accepted and referred to the Committee on Justice for action. By his

explanation, this interpretation is founded on the common understanding of


the meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary
words and not abstruse meaning, they ratify words as they understand it and
not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can
initiate impeachment proceedings because Section 3 (1) says "The House of
Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the
principle of reddendo singula singulisby equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is without a
doubt that the term "to initiate" refers to the filing of the impeachment
complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the members of
the House of Representatives with the Secretary General of the House, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be
filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by the
House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of
the House. These rules clearly contravene Section 3 (5) of Article XI since
the rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could
not use contemporaneous construction as an aid in the interpretation of
Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that
"their personal opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed during this Court's
our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states
that this Court likened the former members of the Constitutional Convention
to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's
balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions.
There are at present only two members of this Court who participated in the
1986 Constitutional Commission Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has
examined the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of
Article XI, it is clear and unequivocal that it and only it has the power
to make and interpret its rules governing impeachment. Its argument is
premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution which said
rules were intended to effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. 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.
(3) A vote of at least one-third of all the Members of the House shall be
necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The
vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of
either House of Congress to interpret its rules and that it was the best judge
of what constituted "disorderly behavior" of its members. However, in Paceta
v. Secretary of the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and quoting Justice
Brandeis in United States v. Smith,151 declared that where the construction to
be given to a rule affects persons other than members of the Legislature, the
question
becomes
judicial
in
nature.
In Arroyo
v.
De
Venecia,152 quoting United States v. Ballin, Joseph & Co., 153 Justice Vicente
Mendoza, speaking for this Court, held that while the Constitution empowers
each house to determine its rules of proceedings, it may not by its rules
ignore constitutional restraints or violate fundamental rights, and further that
there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be
attained. It is only within these limitations that all matters of method are open
to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion,
was even more emphatic as he stressed that in the Philippine setting there is
even more reason for courts to inquire into the validity of the Rules of
Congress, viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will trivialize
the principle of separation of power if we assume jurisdiction over
he case at bar. Even in the United States, the principle of separation of
power is no longer an impregnable impediment against the interposition

of judicial power on cases involving breach of rules of procedure by


legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as
a window to view the issues before the Court. It is in Ballin where the
US Supreme Court first defined the boundaries of the power of the
judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may
determine the rules of its proceedings." It appears that in pursuance of
this authority the House had, prior to that day, passed this as one of its
rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker,
the names of members sufficient to make a quorum in the hall of the
House who do not vote shall be noted by the clerk and recorded in the
journal, and reported to the Speaker with the names of the members
voting, and be counted and announced in determining the presence of
a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question,
therefore, is as to the validity of this rule, and not what methods the
Speaker may of his own motion resort to for determining the presence
of a quorum, nor what matters the Speaker or clerk may of their own
volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters
for judicial consideration. With the courts the question is only one of
power. The Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceedings
established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are open to
the determination of the House, and it is no impeachment of the rule to
say that some other way would be better, more accurate, or even more
just. It is no objection to the validity of a rule that a different one has
been prescribed and in force for a length of time. The power to make
rules is not one which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other
body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon
the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was found
to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a
reasonable relationship with the result sought to be attained. By
examining Rule XV, the Court did not allow its jurisdiction to be
defeated by the mere invocation of the principle of separation of
powers.154
xxx
In the Philippine setting, there is a more compelling reason for
courts to categorically reject the political question defense when
its interposition will cover up abuse of power. For section 1,
Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our courts in

the 1935 and 1972 Constitutions. It was not also xeroxed from the
US Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the
political question doctrine. Led by the eminent former Chief Justice
Roberto Concepcion, the CONCOM expanded and sharpened the
checking powers of the judiciary vis--vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court
is not a mere power which it can decline to exercise. Precisely to
deter this disinclination, the Constitution imposed it as a duty of
this Court to strike down any act of a branch or instrumentality of
government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or
wrongly, the Constitution has elongated the checking powers of this
Court against the other branches of government despite their more
democratic character, the President and the legislators being elected
by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts
of justice. . . to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government' constitutes the
capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis--vis the other branches of government. This
provision was dictated by our experience under martial law which
taught us that a stronger and more independent judiciary is needed to
abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new
Constitution transformed this Court from passivity to activism. This
transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially
determining what it cannot do; under the 1987 Constitution, there is
a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not do
but what itmust do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to
this new constitutional provision as the case at bar once more calls us
to define the parameters of our power to review violations of the rules
of the House. We will not be true to our trust as the last bulwark
against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not
defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of
judicial power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign jurisprudence. In
resolving the case at bar, the lessons of our own history should provide
us the light and not the experience of foreigners. 157 (Italics in the
original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant


petitions. Here, the third parties alleging the violation of private rights and the
Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as
basis for arguing that this Court may not decide on the constitutionality of
Sections 16 and 17 of the House Impeachment Rules. As already observed,
the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be
exercised. No limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning
does not hold with regard to impeachment power of the Philippine House of
Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the
filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House thus clearly contravene Section 3 (5)
of Article XI as they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with
seven associate justices of this Court, on June 2, 2003 and referred to the
House Committee on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the
constitutional prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally
exhausting experience. Both sides have fought bitterly a dialectical struggle
to articulate what they respectively believe to be the correct position or view
on the issues involved. Passions had ran high as demonstrators, whether for
or against the impeachment of the Chief Justice, took to the streets armed
with their familiar slogans and chants to air their voice on the matter. Various
sectors of society - from the business, retired military, to the academe and
denominations of faith offered suggestions for a return to a state of
normalcy in the official relations of the governmental branches affected to
obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and

argued to take no action of any kind and form with respect to the prosecution
by the House of Representatives of the impeachment complaint against the
subject respondent public official. When the present petitions were knocking
so to speak at the doorsteps of this Court, the same clamor for noninterference was made through what are now the arguments of "lack of
jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting
the Court from any move that may have a bearing on the impeachment
proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls
under the Court's jurisdiction, no other course of action can be had but for it
to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this
Court to assert judicial dominance over the other two great branches of the
government. Rather, the raison d'etre of the judiciary is to complement the
discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society
upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality
of the impeachment proceedings against the Chief Justice, the members of
this Court have actually closed ranks to protect a brethren. That the
members' interests in ruling on said issue is as much at stake as is that of
the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions.
This Court has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted
to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official
act as tested by the limits set by the Constitution? Of course, there are rules
on the inhibition of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now from the suit
at bar is to regard the Supreme Court as likely incapable of impartiality when
one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as essential
to the law's moral authority and that of its agents to secure respect for and
obedience to its commands. Perhaps, there is no other government branch
or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning

and ramifications through its application to numerous cases especially of the


high-profile kind in the annals of jurisprudence. The Chief Justice is not
above the law and neither is any other member of this Court. But just
because he is the Chief Justice does not imply that he gets to have less in
law than anybody else. The law is solicitous of every individual's rights
irrespective of his station in life.

Representatives on November 28, 2001 are unconstitutional. Consequently,


the second impeachment complaint against Chief Justice Hilario G. Davide,
Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House
of Representatives on October 23, 2003 is barred under paragraph 5,
section 3 of Article XI of the Constitution.

The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the Constitution
in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important
that it went through this crucible of a democratic process, if only to discover
that it can resolve differences without the use of force and aggression upon
each other.

SO ORDERED.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in


Impeachment Proceedings which were approved by the House of

Bellosillo
and
Tinga,
JJ., see
separate
opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate
concurring
opinion.
Quisumbing,
J., concurring
separate
opinion
received.
Carpio,
J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate
opinion
of
J.
Vitug.
Corona,
J., will
write
a
separate
concurring
opinion.
Azcuna, J., concur in the separate opinion.

EN BANC
G.R. No. L-28196

constitutional convention, without forfeiting their respective seats in


Congress.
November 9, 1967

RAMON
A.
GONZALES, petitioner,
vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.
G.R. No. L-28224

November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.
No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with preliminary
injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic Act
No. 4913, or from performing any act that will result in the holding of the
plebiscite for the ratification of the constitutional amendments proposed in
Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the
Philippines, approved on March 16, 1967; (b) the Director of Printing from
printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor
General from passing in audit any disbursement from the appropriation of
funds made in said Republic Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and the
House of Representatives passed the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5,
Article VI, of the Constitution of the Philippines, be amended so as to
increase the membership of the House of Representatives from a maximum
of 120, as provided in the present Constitution, to a maximum of 180, to be
apportioned among the several provinces as nearly as may be according to
the number of their respective inhabitants, although each province shall
have, at least, one (1) member;
2. R. B. H. No. 2, calling a convention to propose amendments to said
Constitution, the convention to be composed of two (2) elective delegates
from each representative district, to be "elected in the general elections to be
held on the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Constitution, be amended so as to authorize Senators and members of the
House of Representatives to become delegates to the aforementioned

Subsequently, Congress passed a bill, which, upon approval by the


President, on June 17, 1967, became Republic Act No. 4913, providing that
the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the
general elections which shall be held on November 14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the hearing
thereof, on October 28, 1967, the Solicitor General appeared on behalf of
respondents. Moreover, Atty. Juan T. David and counsel for the Philippine
Constitution Association hereinafter referred to as the PHILCONSA
were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr.
Salvador Araneta, likewise prayed that the decision in this case be deferred
until after a substantially identical case brought by said organization before
the Commission on Elections,1 which was expected to decide it any time, and
whose decision would, in all probability, be appealed to this Court had
been submitted thereto for final determination, for a joint decision on the
identical issues raised in both cases. In fact, on October 31, 1967, the
PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review
bycertiorari of the resolution of the Commission on Elections 2 dismissing the
petition therein. The two (2) cases were deemed submitted for decision on
November 8, 1967, upon the filing of the answer of respondent, the
memorandum of the petitioner and the reply memorandum of respondent in
L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen,
a taxpayer, and a voter. He claims to have instituted case L-28196 as a class
unit, for and in behalf of all citizens, taxpayers, and voters similarly situated.
Although respondents and the Solicitor General have filed an answer
denying the truth of this allegation, upon the ground that they have no
knowledge or information to form a belief as to the truth thereof, such denial
would appear to be a perfunctory one. In fact, at the hearing of case L28196, the Solicitor General expressed himself in favor of a judicial
determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly
organized and existing under the laws of the Philippines, and a civic, nonprofit and non-partisan organization the objective of which is to uphold the
rule of law in the Philippines and to defend its Constitution against erosions
or onslaughts from whatever source. Despite his aforementioned statement
in L-28196, in his answer in L-28224 the Solicitor General maintains that this
Court has no jurisdiction over the subject-matter of L-28224, upon the
ground that the same is "merely political" as held in Mabanag vs. Lopez
Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on
Elections and filed an opposition to the PHILCONSA petition therein, was
allowed to appear before this Court and objected to said petition upon the
ground: a) that the Court has no jurisdiction either to grant the relief sought in
the petition, or to pass upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect, render in
operational the legislative department; and c) that "the failure of Congress to
enact a valid reapportionment law . . . does not have the legal effect of
rendering illegal the House of Representatives elected thereafter, nor of
rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court speaking
through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel declared that
"the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof." It is true
that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question

whether or not a given number of votes cast in Congress in favor of a


proposed amendment to the Constitution which was being submitted to
the people for ratification satisfied the three-fourths vote requirement of
the fundamental law. The force of this precedent has been weakened,
however, by Suanes vs. Chief Accountant of the Senate, 6 Avelino vs.
Cuenco,7 Taada vs. Cuenco,8 and Macias vs. Commission on Elections.9 In
the first, we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for a quorum in the Senate; in
the third, we nullified the election, by Senators belonging to the party having
the largest number of votes in said chamber, purporting to act on behalf of
the party having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second party, of
the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional
an act of Congress purporting to apportion the representative districts for the
House of Representatives, upon the ground that the apportionment had not
been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory, advanced in these four (4)
cases, that the issues therein raised were political questions the
determination of which is beyond judicial review.

Pursuant to this provision, amendments to the Constitution may be


proposed, either by Congress, or by a convention called by Congress for that
purpose. In either case, the vote of "three-fourths of all the members of the
Senate and of the House of Representatives voting separately" is necessary.
And, "such amendments shall be valid as part of" the "Constitution when
approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification."

Indeed, the power to amend the Constitution or to propose amendments


thereto is not included in the general grant of legislative powers to
Congress.10 It is part of the inherent powers of the people as the
repository of sovereignty in a republican state, such as ours11 to make,
and, hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly grants
such power.12Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, notas members of Congress,
but as component elements of a constituent assembly. When acting as such,
the members of Congress derive their authority from the Constitution, unlike
the people, when performing the same function, 13 for their authority
does not emanate from the Constitution they are the very source of all
powers of government, including the Constitution itself .

3. The election, in which proposals for amendment to the Constitution shall


be
submitted
for
ratification,
must
be
aspecial election, not a general election, in which officers of the national and
local governments such as the elections scheduled to be held on
November 14, 1967 will be chosen; and

Since, when proposing, as a constituent assembly, amendments to the


Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final say
on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary to
the basic tenet that ours is a government of laws, not of men, and to the rigid
nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, 14 the power to
declare a treaty unconstitutional,15 despite the eminently political character of
treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a
constituent assembly violates the Constitution essentially justiciable, not
political, and, hence, subject to judicial review, and, to the extent that this
view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito,16 the latter should be deemed modified accordingly. The Members of the
Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of threefourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification.

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been
approved by a vote of three-fourths of all the members of the Senate and of
the House of Representatives voting separately. This, notwithstanding, it is
urged that said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments,
as well as the resolution calling a convention to propose amendments, are,
at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose
amendments or call a convention therefore but may not avail of both that
is to say, propose amendment and call a convention at the same time;

4. The spirit of the Constitution demands that the election, in which proposals
for amendment shall be submitted to the people for ratification, must be held
under such conditions which, allegedly, do not exist as to give the
people a reasonable opportunity to have a fair grasp of the nature and
implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution,
which provides:
The House of Representatives shall be composed of not more
than one hundred and twenty Members who shall be apportioned
among the several provinces as nearly as may be according to
the number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall
have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no
apportionment having been made within three (3) years thereafter, the
Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within
three years after the enumeration or census made in 1960. It did actually
pass a bill, which became Republic Act No. 3040,17 purporting to make said
apportionment. This Act was, however, declared unconstitutional, upon the
ground that the apportionment therein undertaken had not been made
according to the number of inhabitants of the different provinces of the
Philippines.18

Moreover, we are unable to agree with the theory that, in view of the failure
of Congress to make a valid apportionment within the period stated in the
Constitution, Congress became an "unconstitutional Congress" and that, in
consequence thereof, the Members of its House of Representatives are de
facto officers. The major premise of this process of reasoning is that the
constitutional provision on "apportionment within three years after the return
of every enumeration, and not otherwise," is mandatory. The fact that
Congress is under legal obligation to make said apportionment does not
justify, however, the conclusion that failure to comply with such obligation
rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers.

Petitioners do not allege that the expiration of said three-year period without
a reapportionment, had the effect of abrogating or repealing the legal
provision creating Congress, or, at least, the House of Representatives, and
are not aware of any rule or principle of law that would warrant such
conclusion. Neither do they allege that the term of office of the members of
said House automatically expired or that they ipso facto forfeited their seats
in Congress, upon the lapse of said period for reapportionment. In fact,
neither our political law, nor our law on public officers, in particular, supports
the view that failure to discharge a mandatory duty, whatever it may be,
would automatically result in the forfeiture of an office, in the absence of a
statute to this effect.

It is conceded that, since the adoption of the Constitution in 1935, Congress


has not made a valid apportionment as required in said fundamental law. The
effect of this omission has been envisioned in the Constitution, pursuant to
which:

Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not repealed in
consequence of the failure of said body to make an apportionment within
three (3) years after the census of 1960. Inasmuch as the general elections
in 1965 were presumably held in conformity with said Election Law, and the
legal provisions creating Congress with a House of Representatives
composed of members elected by qualified voters of representative districts
as they existed at the time of said elections remained in force, we can not
see how said Members of the House of Representatives can be regarded
as de facto officers owing to the failure of their predecessors in office to
make a reapportionment within the period aforementioned.

. . . Until such apportionment shall have been made, the House of


Representatives shall have the same number of Members as that
fixed by law for the National Assembly, who shall be elected by
the qualified electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the
period to make the apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it implies necessarily that
Congress shall continue to function with the representative districts existing
at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held
in 1935. This theory assumes that an apportionment had to be made
necessarily before the first elections to be held after the inauguration of the
Commonwealth of the Philippines, or in 1938.19 The assumption, is, however,
unwarranted, for there had been no enumeration in 1935, and nobody could
foretell when it would be made. Those who drafted and adopted the
Constitution in 1935 could be certain, therefore, that the three-year period,
after the earliest possible enumeration, would expire after the elections in
1938.
What is more, considering that several provisions of the Constitution,
particularly those on the legislative department, were amended in 1940, by
establishing a bicameral Congress, those who drafted and adopted said
amendment, incorporating therein the provision of the original Constitution
regarding the apportionment of the districts for representatives, must have
known that the three-year period therefor would expire after the elections
scheduled to be held and actually held in 1941.
Thus, the events contemporaneous with the framing and ratification of the
original Constitution in 1935 and of the amendment thereof in 1940 strongly
indicate that the provision concerning said apportionment and the effect of
the failure to make it were expected to be applied to conditions
obtaining after the elections in 1935 and 1938, and even
after subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30, 1960, it
follows that the three-year period to make the apportionment did not expire
until 1963, or after the Presidential elections in 1961. There can be no
question, therefore, that the Senate and the House of Representatives
organized or constituted on December 30, 1961, were de jure bodies, and
that the Members thereof were de jure officers. Pursuant to the theory of
petitioners herein, upon expiration of said period of three years, or late in
1963, Congress became illegal and its Members, or at least, those of the
House of Representatives, became illegal holder of their respective offices,
and were de facto officers.

Upon the other hand, the Constitution authorizes the impeachment of the
President, the Vice-President, the Justices of the Supreme Court and the
Auditor General for, inter alia, culpable violation of the Constitution,20 the
enforcement of which is, not only their mandatory duty, but also, their main
function. This provision indicates that, despite the violation of such
mandatory duty, the title to their respective offices remains unimpaired, until
dismissal or ouster pursuant to a judgment of conviction rendered in
accordance with Article IX of the Constitution. In short, the loss of office or
the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are
merely de facto officers, it would not follow that the contested resolutions and
Republic Act No. 4913 are null and void. In fact, the main reasons for the
existence of the de facto doctrine is that public interest demands that acts of
persons holding, under color of title, an office created by a valid statute be,
likewise, deemed valid insofar as the public as distinguished from the
officer in question is concerned.21 Indeed, otherwise, those dealing with
officers and employees of the Government would be entitled to demand from
them satisfactory proof of their title to the positions they hold,before dealing
with them, or before recognizing their authority or obeying their commands,
even if they should act within the limits of the authority vested in their
respective offices, positions or employments.22 One can imagine this great
inconvenience, hardships and evils that would result in the absence of
the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo
warranto proceedings. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer.24 And the reasons are
obvious: (1) it would be an indirect inquiry into the title to the office; and (2)
the acts of a de facto officer, if within the competence of his office, are valid,
insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because
the acts therein involved have not been completed and petitioners herein are
not third parties. This pretense is untenable. It is inconsistent withTayko vs.
Capistrano.25 In that case, one of the parties to a suit being heard before
Judge Capistrano objected to his continuing to hear the case, for the reason
that, meanwhile, he had reached the age of retirement. This Court held that
the objection could not be entertained, because the Judge was at least, a de
facto Judge, whose title can not be assailed collaterally. It should be noted
that Tayko was not a third party insofar as the Judge was concerned. Tayko
was one of the parties in the aforementioned suit. Moreover, Judge

Capistrano had not, as yet, finished hearing the case, much less rendered
decision therein. No rights had vested in favor of the parties, in consequence
of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to
say, insofar as Congress is concerned, its acts, as regards the Resolutions
herein contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either
propose amendments to the Constitution or call a convention for that
purpose, but it can not do both, at the same time. This theory is based upon
the fact that the two (2) alternatives are connected in the Constitution by the
disjunctive "or." Such basis is, however, a weak one, in the absence of other
circumstances and none has brought to our attention supporting the
conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes,
been held to mean "and," or vice-versa, when the spirit or context of the law
warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the
constitutional provision on Congress, to be submitted to the people for
ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a
convention in 1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No. 2
is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments
proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification
several years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3) resolutions
were passed on the same date, they were taken up and put to a vote
separately, or one after the other. In other words, they were notpassed at the
same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different Congresses to
approve the contested Resolutions, or of the same Congress to pass the
same in, different sessions or different days of the same congressional
session. And, neither has any plausible reason been advanced to justify the
denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention
to propose amendments, why not let the whole thing be submitted to said
convention, instead of, likewise, proposing some specific amendments, to be
submitted for ratification before said convention is held? The force of this
argument must be conceded. but the same impugns the wisdom of the
action taken by Congress, not its authority to take it. One seeming purpose
thereof to permit Members of Congress to run for election as delegates to
the constitutional convention and participate in the proceedings therein,
without forfeiting their seats in Congress. Whether or not this should be done
is a political question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in
a General Election?
Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of threefourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to
this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that three
previous amendments to the Constitution had been submitted to the people
for ratification in special elections merely shows that Congress deemed it
best to do so under the circumstances then obtaining. It does not negate its
authority to submit proposed amendments for ratification in general
elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's approval
independently of the election of public officials. And there is no denying the
fact that an adequate appraisal of the merits and demerits proposed
amendments is likely to be overshadowed by the great attention usually
commanded by the choice of personalities involved in general elections,
particularly when provincial and municipal officials are to be chosen. But,
then, these considerations are addressed to the wisdom of holding a
plebiscite simultaneously with the election of public officer. They do not deny
the authority of Congress to choose either alternative, as implied in the term
"election" used, without qualification, in the abovequoted provision of the
Constitution. Such authority becomes even more patent when we consider:
(1) that the term "election," normally refers to the choice or selection of
candidates to public office by popular vote; and (2) that the word used in
Article V of the Constitution, concerning the grant of suffrage to women is,
not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV
of the Constitution, should be construed as meaning a special election.
Some members of the Court even feel that said term ("election") refers to a
"plebiscite," without any "election," general or special, of public officers. They
opine that constitutional amendments are, in general, if not always, of such
important, if not transcendental and vital nature as to demand that the
attention of the people be focused exclusively on the subject-matter thereof,
so that their votes thereon may reflect no more than their intelligent, impartial
and considered view on the merits of the proposed amendments,
unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let
alone the partisan political considerations that are likely to affect the
selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of
which should be promoted. The ideal conditions are, however, one thing. The
question whether the Constitution forbids the submission of proposals for
amendment to the people except under such conditions, is another thing.
Much as the writer and those who concur in this opinion admire the contrary
view, they find themselves unable to subscribe thereto without, in effect,
reading into the Constitution what they believe is not written thereon and can
not fairly be deduced from the letter thereof, since the spirit of the law should
not be a matter of sheer speculation.
The majority view although the votes in favor thereof are insufficient to
declare Republic Act No. 4913 unconstitutional as ably set forth in the
opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People
Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March
16, 1967, so that, by November 14, 1967, our citizenry shall have had
practically eight (8) months to be informed on the amendments in question.
Then again, Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of


the Official Gazette, at least twenty days prior to the election;"

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940


amendments, is of the following tenor:

(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building
and in every polling place not later than October 14, 1967," and that said
copy "shall remain posted therein until after the election;"

The said amendments shall be published in English and Spanish


in three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted in
a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later
than May eighteen, nineteen hundred and forty, and shall remain
posted therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be made
available for examination by the qualified electors during election
day. When practicable, copies in the principal native languages,
as may be determined by the Secretary of the Interior, shall also
be kept therein.

(3) that "at least five copies of said amendment shall be kept in each polling
place, to be made available for examination by the qualified electors during
election day;"
(4) that "when practicable, copies in the principal native languages, as may
be determined by the Commission on Elections, shall be kept in each polling
place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the principal
native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the
ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals for
amendment be "submitted to the people for their ratification," and that said
measures are manifestly insufficient, from a constitutional viewpoint, to
inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people of
the subject submitted to them for ratification, from the original Constitution
down to the Parity Amendment. Thus, referring to the original Constitution,
Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be
published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said
election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office building
and in each polling place not later than the twenty-second day of
April, nineteen hundred and thirty-five, and shall remain posted
therein continually until after the termination of the election. At
least ten copies of the Constitution with the Ordinance appended
thereto, in English and in Spanish, shall be kept at each polling
place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior
shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth
Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues
at least fifteen days prior to said election, and the said Article V
shall be posted in a conspicuous place in each municipal and
provincial office building and in each polling place not later than
the twenty-second day of April, nineteen and thirty-seven, and
shall remain posted therein continually until after the termination
of the plebiscite. At least ten copies of said Article V of the
Constitution, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors
during the plebiscite. Whenever practicable, copies in the
principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept in each polling place.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the


effect that:
The said amendment shall be published in English and Spanish in
three consecutive issues of the Official Gazette at least twenty days
prior to the election. A printed copy thereof shall be posted in a
conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than February eleven,
nineteen hundred and forty-seven, and shall remain posted therein until
after the election. At least, ten copies of the said amendment shall be
kept in each polling place to be made available for examination by the
qualified electors during election day. When practicable, copies in the
principal native languages, as may be determined by the Commission
on Elections, shall also be kept in each polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law enacted
therefor. The difference springs from the circumstance that the major political
parties had taken sides on previous amendments to the Constitution
except, perhaps, the woman's suffrage and, consequently, debated
thereon at some length before the plebiscite took place. Upon the other
hand, said political parties have not seemingly made an issue on the
amendments now being contested and have, accordingly, refrained from
discussing the same in the current political campaign. Such debates or
polemics as may have taken place on a rather limited scale on the
latest proposals for amendment, have been due principally to the initiative of
a few civic organizations and some militant members of our citizenry who
have voiced their opinion thereon. A legislation cannot, however, be nullified
by reason of the failure of certain sectors of the community to discuss it
sufficiently. Its constitutionality or unconstitutionality depends upon no other
factors than those existing at the time of the enactment thereof, unaffected
by the acts or omissions of law enforcing agencies, particularly those that
take place subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the
sufficiency or insufficiency, from a constitutional angle, of the submission
thereof for ratification to the people on November 14, 1967, depends in
the view of those who concur in this opinion, and who, insofar as this phase
of the case, constitute the minority upon whether the provisions of
Republic Act No. 4913 are such as to fairly apprise the people of the gist, the
main idea or the substance of said proposals, which is under R. B. H. No.
1 the increase of the maximum number of seats in the House of
Representatives, from 120 to 180, and under R. B. H. No. 3 the
authority given to the members of Congress to run for delegates to the
Constitutional Convention and, if elected thereto, to discharge the duties of
such delegates, without forfeiting their seats in Congress. We who
constitute the minority believe that Republic Act No. 4913 satisfies such
requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned by R.

B. H. No. 1 among the provinces in the Philippines. It is not improbable,


however, that they are not interested in the details of the apportionment, or
that a careful reading thereof may tend in their simple minds, to impair a
clear vision thereof. Upon the other hand, those who are more sophisticated,
may enlighten themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling places
and the text of contested resolutions, as printed in full on the back of the
ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to
realize or envisage the effect of R. B. H. No. 3 upon the work of the
Constitutional Convention or upon the future of our Republic. But, then,
nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their
seats as legislators, even if they should run for and assume the functions of
delegates to the Convention.
We are impressed by the factors considered by our distinguished and
esteemed brethren, who opine otherwise, but, we feel that such factors affect
the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and
3, not theauthority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike
down acts of the Executive or of Congress transcending the confines set
forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme within
its own sphere. The determination of the conditions under which the
proposed amendments shall be submitted to the people is concededly a
matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in
enacting Republic Act No. 4913. Presumably, it could have done something
better to enlighten the people on the subject-matter thereof. But, then, no law
is perfect. No product of human endeavor is beyond improvement.
Otherwise, no legislation would be constitutional and valid. Six (6) Members
of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the
spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic
Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions
in these two (2) cases must be, as they are hereby, dismiss and the writs
therein prayed for denied, without special pronouncement as to costs. It is so
ordered.
Makalintal
and
Bengzon,
J.P.,
JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on
the question of jurisdiction.

Are you in favor of the proposed amendment to Section five of


Article VI of our Constitution printed at the back of this ballot?
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some
additional observations in connection with my concurrence. Sections 2 and 4
of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election. A printed copy thereof shall be posted in a conspicuous
place in every municipality, city and provincial office building and
in every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election. At least five copies of the said amendments
shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall be kept in each
polling place. The Commission on Elections shall make available
copies of each amendments in English, Spanish and, whenever
practicable, in the principal native languages, for free distribution.
xxx

xxx

xxx

Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and
Pilipino and shall be in the size and form prescribed by the
Commission on Elections:Provided, however, That at the back of
said ballot there shall be printed in full Resolutions of both Houses
of Congress Numbered One and Three, both adopted on March
sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing
on the face of the ballot shall be as follows:

Are you in favor of the proposed amendment to section sixteen of


Article VI of our Constitution printed at the back of this ballot?
To vote for the approval of the proposed amendments, the voter
shall write the word "yes" or its equivalent in Pilipino or in the local
dialect in the blank space after each question; to vote for the
rejection thereof, he shall write the word "No" or its equivalent in
Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without reference to
extraneous factors and circumstances, the manner prescribed in the
aforesaid provisions is sufficient for the purpose of having the proposed
amendments submitted to the people for their ratification, as enjoined in
Section 1, Article XV of the Constitution. I am at a loss to say what else
should have been required by the Act to make it adhere more closely to the
constitutional requirement. Certainly it would have been out of place to
provide, for instance, that government officials and employees should go out
and explain the amendments to the people, or that they should be the
subject of any particular means or form of public discussion.
The objection of some members of the Court to Republic Act No. 4913
seems to me predicated on the fact that there are so many other issues at
stake in the coming general election that the attention of the electorate,
cannot be entirely focused on the proposed amendments, such that there is
a failure to properly submit them for ratification within the intendment of the
Constitution. If that is so, then the defect is not intrinsic in the law but in its
implementation. The same manner of submitting the proposed amendments
to the people for ratification may, in a different setting, be sufficient for the
purpose. Yet I cannot conceive that the constitutionality or unconstitutionality
of a law may be made to depend willy-nilly on factors not inherent in its
provisions. For a law to be struck down as unconstitutional it must be so by
reason of some irreconcilable conflict between it and the Constitution.
Otherwise a law may be either valid or invalid, according to circumstances
not found in its provisions, such as the zeal with which they are carried out.
To such a thesis I cannot agree. The criterion would be too broad and
relative, and dependent upon individual opinions that at best are subjective.

What one may regard as sufficient compliance with the requirement of


submission to the people, within the context of the same law, may not be so
to another. The question is susceptible of as many views as there are
viewers; and I do not think this Court would be justified in saying that its own
view on the matter is the correct one, to the exclusion of the opinions of
others.
On the other hand, I reject the argument that the ratification must necessarily
be in a special election or plebiscite called for that purpose alone. While such
procedure is highly to be preferred, the Constitution speaks simply of "an
election at which the amendments are submitted to the people for their
ratification," and I do not subscribe to the restrictive interpretation that the
petitioners would place on this provision, namely, that it means only a special
election.

BENGZON, J.P., J., concurring:


It is the glory of our institutions that they are founded upon law, that no one
can exercise any authority over the rights and interests of others except
pursuant to and in the manner authorized by law.1 Based upon this principle,
petitioners Ramon A. Gonzales and Philippine Constitution Association
(PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this suit for
prohibition with preliminary injunction to restrain the Commission on
Elections, Director of Printing and Auditor General from implementing and/or
complying with Republic Act 4913, assailing said law as unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation,
assails the constitutionality not only of Republic Act 4913 but also of
Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the
Filipino people for approval the amendments to the Constitution of the
Philippines proposed by the Congress of the Philippines in Resolutions of
Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic
Act fixes the date and manner of the election at which the aforesaid
proposed amendments shall be voted upon by the people, and appropriates
funds for said election. Resolutions of Both Houses Nos. 1 and 3 propose
two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by
increasing the maximum membership of the House of Representatives from
120 to 180, apportioning 160 of said 180 seats and eliminating the provision
that Congress shall by law make an apportionment within three years after
the return of every enumeration; the second, to amend Sec. 16, Art. VI, by
allowing Senators and Representatives to be delegates to a constitutional
convention without forfeiting their seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1)
Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting
the proposed amendments to the Constitution, to the people for approval, at
the general election of 1967 instead of at a special election solely for that
purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution,
since it was not passed with the 3/4 vote in joint session required when
Congress proposes amendments to the Constitution, said Republic Act being
a step in or part of the process of proposing amendments to the Constitution;
and (3) Republic Act 4913 violates the due process clause of the Constitution
(Sec. 1, Subsec. 1, Art. III), in not requiring that the substance of the
proposed amendments be stated on the face of the ballot or otherwise
rendering clear the import of the proposed amendments, such as by stating

the provisions before and after said amendments, instead of printing at the
back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this Court
under its powers to review an Act of Congress to determine its conformity to
the fundamental law. For though the Constitution leaves Congress free to
propose whatever Constitutional amendment it deems fit, so that
the substance or content of said proposed amendment is a matter of policy
and wisdom and thus a political question, the Constitution nevertheless
imposes requisites as to the manner orprocedure of proposing such
amendments, e.g., the three-fourths vote requirement. Said procedure or
manner, therefore, from being left to the discretion of Congress, as a matter
of policy and wisdom, is fixed by the Constitution. And to that extent, all
questions bearing on whether Congress in proposing amendments followed
the procedure required by the Constitution, is perforce justiciable, it not being
a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly
does not bear him on the point. It nowhere requires that the ratification be
thru an election solely for that purpose. It only requires that it be at "an
election at which the amendments are submitted to the people for their
ratification." To join it with an election for candidates to public office, that is, to
make it concurrent with such election, does not render it any less an election
at which the proposed amendments are submitted to the people for their
ratification. To prohibition being found in the plain terms of the Constitution,
none should be inferred. Had the framers of requiring Constitution thought of
requiring a special election for the purpose only of the proposed
amendments, they could have said so, by qualifying the phrase with some
word such as "special" or "solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it
would not have been better to provide for a separate election exclusively for
the ratification of the proposed amendments. The point however is that such
separate and exclusive election, even if it may be better or wiser, which
again, is not for this Court to decide, is not included in the procedure
required by the Constitution to amend the same. The function of the Judiciary
is "not to pass upon questions of wisdom, justice or expediency of
legislation".2 It is limited to determining whether the action taken by the
Legislative Department has violated the Constitution or not. On this score, I
am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for
not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate and of the House
of Representatives voting separately, may propose amendments
to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election to which
the amendments are submitted to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the
term "propose amendment" is meant to determine WHAT said amendment
shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and
3 already did that. If, on the other hand, it means, or also means, to provide
for how, when, and by what means the amendments shall be submitted to
the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one
intended. Said Section has two sentences: in the first, it requires the 3/4
voting in joint session, for Congress to "propose amendments". And then in
the second sentence, it provides that "such amendments . . . shall be

submitted to the people for their ratification". This clearly indicates that by the
term "propose amendments" in the first sentence is meant to frame the
substance or the content or the WHAT-element of the amendments; for it is
this and this alone that is submitted to the people for their ratification. The
details of when the election shall be held for approval or rejection of the
proposed amendments, or the manner of holding it, are not submitted for
ratification to form part of the Constitution. Stated differently, the plain
language of Section 1, Art. XV, shows that the act of proposing amendments
is distinct from albeit related to that of submitting the amendments to
the people for their ratification; and that the 3/4 voting requirement applies
only to the first step, not to the second one.
It follows that the submission of proposed amendments can be done thru an
ordinary statute passed by Congress. The Constitution does not expressly
state by whom the submission shall be undertaken; the rule is that a power
not lodged elsewhere under the Constitution is deemed to reside with the
legislative body, under the doctrine of residuary powers. Congress therefore
validly enacted Republic Act 4913 to fix the details of the date and manner of
submitting the proposed amendments to the people for their ratification.
Since it does not "propose amendments" in the sense referred to by Sec. 1,
Art. XV of the Constitution, but merely provides for how and when the
amendments, already proposed, are going to be voted upon, the same does
not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the
Constitution. Furthermore, Republic Act 4913 is an appropriation measure.
Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec.
18, Art. VI of the Constitution states that "All appropriation . . . bills shall
originate exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session, reinforcing
the view that Sec. 1, Art. XV does not apply to such a measure providing for
the holding of the election to ratify the proposed amendments, which must
perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against
substantive due process. An examination of the provisions of the law shows
no violation of the due process clause of the Constitution. The publication in
the Official Gazette at least 20 days before the election, the posting of
notices in public buildings not later than October 14, 1967, to remain posted
until after the elections, the placing of copies of the proposed amendments in
the polling places, aside from printing the same at the back of the ballot,
provide sufficient opportunity to the voters to cast an intelligent vote on the
proposal. Due process refers only to providing fair opportunity; it does not
guarantee that the opportunity given will in fact be availed of; that is the lookout of the voter and the responsibility of the citizen. As long as fair and
reasonable opportunity to be informed is given, and it is, the due process
clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the
printing of the full proposed amendments at the back of the ballot instead of
the substance thereof at the face of the ballot, do not deprive the voter of fair
opportunity to be informed. The present wording of the Constitution is not
being veiled or suppressed from him; he is conclusively presumed to know
them and they are available should he want to check on what he is
conclusively presumed to know. Should the voters choose to remain ignorant
of the present Constitution, the fault does not lie with Congress. For
opportunity to familiarize oneself with the Constitution as it stands has been
available thru all these years. Perhaps it would have been more convenient
for the voters if the present wording of the provisions were also to be printed
on the ballot. The same however is a matter of policy. As long as the method
adopted provides sufficiently reasonable chance to intelligently vote on the
amendments, and I think it does in this case, it is not constitutionally
defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of the
proposed amendments. These are for the people in their sovereign capacity
to decide, not for this Court.

Two arguments were further advanced: first, that Congress cannot both call a
convention and propose amendments; second, that the present Congress is
a de facto one, since no apportionment law was adopted within three years
from the last census of 1960, so that the Representatives elected in 1961
are de facto officers only. Not being de jure, they cannot propose
amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or", however,
is frequently used as having the same meaning as "and" particularly in
permissive, affirmative sentences so that the interpretation of the word "or"
as "and" in the Constitution in such use will not change its meaning
(Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And
it should be pointed out that the resolutions proposing amendments (R.B.H.
Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2).
Surely, if Congress deems it better or wise to amend the Constitution before
a convention called for is elected, it should not be fettered from doing so. For
our purposes in this case, suffice it to note that the Constitution does not
prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration, and
not otherwise". It however further states in the next sentence: "Until such
apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present
assembly districts." The failure of Congress, therefore, to pass a valid
redistricting law since the time the above provision was adopted, does not
render the present districting illegal or unconstitutional. For the Constitution
itself provides for its continuance in such case, rendering legal and de
jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic Act
4913, and fully concur with the opinion of the Chief Justice.

FERNANDO, J., concurring:


At the outset, we are faced with a question of jurisdiction. The opinion
prepared by the Chief Justice discusses the matter with a fullness that
erases doubts and misgivings and clarifies the applicable principles. A few
words may however be added.
We start from the premise that only where it can be shown that the question
is to be solved by public opinion or where the matter has been left by the
Constitution to the sole discretion of any of the political branches, as was so
clearly stated by the then Justice Concepcion in Taada v. Cuenco,1 may this
Court avoid passing on the issue before it. Whatever may be said about the
present question, it is hard to speak with certitude considering Article XV, that
Congress may be entrusted with the full and uncontrolled discretion on the
procedure leading to proposals for an amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through
Justice Tuason followed Coleman v. Miller, 3 in its holding that certain aspects
of the amending process may be considered political. His opinion quoted
with approval the view of Justice Black, to which three other members of the
United States Supreme Court agreed, that the process itself is political in its
entirety, "from submission until an amendment becomes part of the
Constitution, and is not subject to judicial guidance, control or interference at
any point." In a sense that would solve the matter neatly. The judiciary would
be spared the at times arduous and in every case soul-searching process of
determining whether the procedure for amendments required by the
Constitution has been followed.

At the same time, without impugning the motives of Congress, which cannot
be judicially inquired into at any rate, it is not beyond the realm of possibility
that a failure to observe the requirements of Article XV would occur. In the
event that judicial intervention is sought, to rely automatically on the theory of
political question to avoid passing on such a matter of delicacy might under
certain circumstances be considered, and rightly so, as nothing less than
judicial abdication or surrender.

(Resolutions I and 3) are to be submitted to the people for their ratification


next November 14, 1967. Resolution No. 2 just adverted to calls for a
constitutional convention also to propose amendments to the Constitution.
The delegates thereto are to be elected on the second Tuesday of November
1970; the convention to sit on June 1, 1971; and the amendments proposed
by the convention to be submitted to the people thereafter for their
ratification.

What appears regrettable is that a major opinion of an esteemed jurist, the


late Justice Tuason, would no longer be controlling. There is comfort in the
thought that the view that then prevailed was itself a product of the times. It
could very well be that considering the circumstances existing in 1947 as
well as the particular amendment sought to be incorporated in the
Constitution, the parity rights ordinance, the better part of wisdom in view of
the grave economic situation then confronting the country would be to avoid
the existence of any obstacle to its being submitted for ratification. Moreover,
the Republic being less than a year old, American Supreme Court opinions
on constitutional questions were-invariably accorded uncritical acceptance.
Thus the approach followed by Justice Tuason is not difficult to understand. It
may be said that there is less propensity now, which is all to the good, for
this Court to accord that much deference to constitutional views coming from
the quarter.

Of importance now are the proposed amendments increasing the number of


members of the House of representatives under Resolution No. 1, and that in
Resolution No. 3 which gives Senators and Congressmen the right to sit as
members of the constitutional convention to be convened on June 1, 1971.
Because, these are the two amendments to be submitted to the people in the
general elections soon to be held on November 14, 1967, upon the
provisions of Section 1, Republic Act 4913, which reads:

Nor is this mode of viewing the opinion of Justice Tuason to do injustice to


his memory. For as he stated in another major opinion in Araneta v.
Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers
Act,5 one should not ignore what would ensue if a particular mode of
construction were followed. As he so emphatically stated, "We test a rule by
its results."
The consequences of a judicial veto on the then proposed amendment on
the economic survival of the country, an erroneous appraisal it turned out
later, constituted an effective argument for its submission. Why not then
consider the question political and let the people decide? That assumption
could have been indulged in. It could very well be the inarticulate major
premise. For many it did bear the stamp of judicial statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of this
date and in the foreseeable future judicial inquiry to assure the utmost
compliance with the constitutional requirement would be a more appropriate
response.

SANCHEZ, J., in separate opinion:


Right at the outset, the writer expresses his deep appreciation to Mr. Justice
Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable
contribution to the substance and form of the opinion which follows.
Directly under attack in this, a petition for prohibition, is the constitutionality
of Republic Act 4913, approved on June 17, 1967. This Act seeks to
implement Resolutions 1 and 3 adopted by the Senate and the House of
Representatives on March 16, 1967 with the end in view of amending vital
portions of the Constitution.
Since the problem here presented has its roots in the resolutions aforesaid of
both houses of Congress, it may just as well be that we recite in brief the
salient features thereof. Resolution No. 1 increases the membership of the
House of Representatives from 120 to 180 members, and immediately
apportions 160 seats. A companion resolution is Resolution No. 3 which
permits Senators and Congressmen without forfeiting their seats in
Congress to be members of the Constitutional Convention 1 to be
convened, as provided in another resolution Resolution No. 2.
Parenthetically, two of these proposed amendments to the Constitution

The amendments to the Constitution of the Philippines proposed


by the Congress of the Philippines in Resolutions of both Houses
Numbered One and Three, both adopted on March sixteen,
nineteen hundred and sixty- seven, shall be submitted to the
people for approval at the general election which shall be held on
November fourteen, nineteen hundred and sixty- seven, in
accordance with the provisions of this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon us
the manner in which the amendments proposed by Congress just adverted
to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed
amendments to the Constitution may become effective, Section 1, Article XV
thereof commands that such amendments must be "approved by a majority
of the votes cast at an election at which amendments are submitted to the
people for their ratification."2 The accent is on two words complementing
each other, namely, "submitted" and "ratification."
1. We are forced to take a long hard look at the core of the problem facing
us. And this, because the amendments submitted are transcendental and
encompassing. The ceiling of the number of Congressmen is sought to be
elevated from 120 to 180 members; and Senators and Congressmen may
run in constitutional conventions without forfeiting their seats. These certainly
affect the people as a whole. The increase in the number of Congressmen
has its proportional increase in the people's tax burdens. They may not look
at this with favor, what with the constitutional provision (Section 5, Article VI)
that Congress "shall by law make an apportionment", without the necessity of
disturbing the present constitutionally provided number of Congressmen.
People in Quezon City, for instance, may balk at the specific apportionment
of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of
their own, on the theory of equal representation. And then, people may
question the propriety of permitting the increased 180 Congressmen from
taking part in the forthcoming constitutional convention and future
conventions for fear that they may dominate its proceedings. They may
entertain the belief that, if at all, increase in the number of Congressmen
should be a proper topic for deliberation in a constitutional convention which,
anyway, will soon take place. They probably would ask: Why the hurry?
These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the
constitutional directive that constitutional amendments be submitted to the
people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a statute
which may suffer amendments three or more times in the same year, it is
intended to stand the test of time. It is an expression of the people's
sovereign will.

And so, our approach to the problem of the mechanics of submission for
ratification of amendments is thatreasoning on the basis of the spirit of the
Constitution is just as important as reasoning by a strict adherence to the
phraseology thereof. We underscore this, because it is within the realm of
possibility that a Constitution maybe overhauled. Supposing three-fourths of
the Constitution is to be amended. Or, the proposal is to eliminate the all
important; Bill of Rights in its entirety. We believe it to be beyond debate that
in some such situations the amendments ought to call for a constitutional
convention rather than a legislative proposal. And yet, nothing there is in the
books or in the Constitution itself. which would require such amendments to
be adopted by a constitutional convention. And then, too, the spirit of the
supreme enactment, we are sure, forbids that proposals therefor be initiated
by Congress and thereafter presented to the people for their ratification.
In the context just adverted to, we take the view that the words "submitted to
the people for their ratification", if construed in the light of the nature of the
Constitution a fundamental charter that is legislation direct from the
people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid
before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly in
insidious influences. We believe, the word "submitted" can only mean that
the government, within its maximum capabilities, should strain every effort to
inform very citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are
not to be understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the meaning
of the word as intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within
its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For, as we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent, consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so be it.
For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said "A good Constitution should beyond
the reach of temporary excitement and popular caprice or
passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the
thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can
be allowed efficiency. . . . Changes in government are to be
feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law
Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the
people are not sufficiently informed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner
can it be said that in accordance with the constitutional mandate, "the
amendments are submitted to the people for their ratification?" Our answer is
"No".

We examine Republic Act 4913, approved on June 17, 1967 the statute
that submits to the people the constitutional amendments proposed by
Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner
of propagation of the nature of the amendments throughout the country.
There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election.
(2) A printed copy thereof shall be posted in a conspicuous place
in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until
after the election.
(3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept
in each polling place.
(5) The Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable,
in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for dissemination of
information regarding the amendments effectively brings the matter to the
people. A dissection of the mechanics yields disturbing thoughts. First, the
Official Gazette is not widely read. It does not reach the barrios. And even if it
reaches the barrios, is it available to all? And if it is, would all under stand
English? Second, it should be conceded that many citizens, especially those
in the outlying barrios, do not go to municipal, city and/or provincial office
buildings, except on special occasions like paying taxes or responding to
court summonses. And if they do, will they notice the printed amendments
posted on the bulletin board? And if they do notice, such copy again is in
English (sample submitted to this Court by the Solicitor General) for, anyway,
the statute does not require that it be in any other language or dialect. Third,
it would not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts it,
voting time is not study time. And then, who can enter the polling place,
except those who are about to vote? Fourth, copies in the principal native
languages shall be kept in each polling place. But this is not, as Section 2
itself implies, in the nature of a command because such copies shall be kept
therein only "when practicable" and "as may be determined by the
Commission on Elections." Even if it be said that these are available before
election, a citizen may not intrude into the school building where the polling
places are usually located without disturbing the school classes being held
there. Fifth, it is true that the Comelec is directed to make available copies of
such amendments in English, Spanish or whenever practicable, in the
principal native languages, for free distribution. However, Comelec is not
required to actively distribute them to the people. This is significant as to
people in the provinces, especially those in the far-flung barrios who are
completely unmindful of the discussions that go on now and then in the cities
and centers of population on the merits and demerits of the amendments.
Rather, Comelec, in this case, is but a passive agency which may hold
copies available, but which copies may not be distributed at all. Finally, it is of
common knowledge that Comelec has more than its hands full in these preelection days. They cannot possibly make extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official
sample ballot submitted to this Court would show that only the amendments
are printed at the back. And this, in pursuance to Republic Act 4913 itself.

Surely enough, the voters do not have the benefit of proper notice of the
proposed amendments thru dissemination by publication in extenso. People
do not have at hand the necessary data on which to base their stand on the
merits and demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed
constitutional amendments within the meaning and intendment of Section 1,
Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present election
campaign the focus is on the election of candidates. The constitutional
amendments are crowded out. Candidates on the homestretch, and their
leaders as well as the voters, gear their undivided efforts to the election of
officials; the constitutional amendments cut no ice with them. The truth is that
even in the ballot itself, the space accorded to the casting of "yes" or "no"
vote would give one the impression that the constitutional amendments are
but a bootstrap to the electoral ballot. Worse still, the fortunes of many
elective officials, on the national and local levels, are inextricably intertwined
with the results of the votes on the plebiscite. In a clash between votes for a
candidate and conscience on the merits and demerits of the constitutional
amendments, we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them to
equally ratify them properly is the meat of the constitutional requirement, is
reflected in the sequence of uniform past practices. The Constitution had
been amended thrice in 1939, 1940 and 1947. In each case, the
amendments were embodied in resolutions adopted by the Legislature,
which thereafter fixed the dates at which the proposed amendments were to
be ratified or rejected. These plebiscites have been referred to either as an
"election" or "general election". At no time, however, was the vote for the
amendments of the Constitution held simultaneously with the election
officials, national or local. Even with regard to the 1947 parity amendment;
the record shows that the sole issue was the 1947 parity amendment; and
the special elections simultaneously held in only three provinces, Iloilo,
Pangasinan and Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to ask
that reasonable guarantee be made that in the matter of the alterations of the
law of the land, their true voice be heard? The answer perhaps is best
expressed in the following thoughts: "It must be remembered that the
Constitution is the people's enactment. No proposed change can become

effective unless they will it so through the compelling force of need of it and
desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken
down as in violation of the Constitution.
Zaldivar
and
Castro,
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

JJ., concur.

REYES, J.B.L., J., concurring:


I concur in the result with the opinion penned by Mr. Justice Sanchez. To
approve a mere proposal to amend the Constitution requires (Art. XV) a
three-fourths (3/4) vote of all the members of each legislative chamber, the
highest majority ever demanded by the fundamental charter, one higher
even than that required in order to declare war (Sec. 24, Article VI), with all
its dire consequences. If such an overwhelming majority, that was evidently
exacted in order to impress upon all and sundry the seriousness of every
constitutional amendment, is asked for a proposal to amend the Constitution,
I find it impossible to believe that it was ever intended by its framers that
such amendment should be submitted and ratified by just "a majority of the
votes cast at an election at which the amendments are submitted to the
people for their ratification", if the concentration of the people's attention
thereon to be diverted by other extraneous issues, such as the choice of
local and national officials. The framers of the Constitution, aware of the
fundamental character thereof, and of the need of giving it as much stability
as is practicable, could have only meant that any amendments thereto
should be debated, considered and voted upon at an election wherein the
people could devote undivided attention to the subject. That this was the
intention and the spirit of the provision is corroborated in the case of all other
constitutional amendments in the past, that were submitted to and approved
in special elections exclusively devoted to the issue whether the legislature's
amendatory proposals should be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.

EN BANC

G.R. No. L-32432 September 11, 1970


MANUEL
B.
IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and
CESAR MILAFLOR, as members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS
THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M.
GONZALES,petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor
General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P.
Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for
respondents.

After the adoption of said Res. No. 2 in 1967 but before the November
elections of that year, Congress, acting as a legislative body, enacted
Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and
practically restating in toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed
Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16,
1967 by providing that the convention "shall be composed of 320 delegates
apportioned among the existing representative districts according to the
number of their respective inhabitants: Provided, that a representative district
shall be entitled to at least two delegates, who shall have the same
qualifications as those required of members of the House of
Representatives," 1 "and that any other details relating to the specific
apportionment of delegates, election of delegates to, and the holding of, the
Constitutional Convention shall be embodied in an implementing legislation:
Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2
On August 24, 1970, Congress, acting as a legislative body, enacted
Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and
expressly
repealing
R.A.
No.
4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as
the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a).
Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of
Sec. 8(a) of said R.A. No. 6132 practically on the same grounds advanced
by petitioner Gonzales.
I

Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as


amici curiae.

MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and
Raul M. Gonzales, both members of the Bar, taxpayers and interested in
running as candidates for delegates to the Constitutional Convention. Both
impugn the constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates. After the Solicitor
General had filed answers in behalf the respondents, hearings were held at
which the petitioners and the amici curiae, namely Senator Lorenzo Taada,
Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel
Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent
Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2
which among others called for a Constitutional Convention to propose
constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of
Congressmen, to be elected on the second Tuesday of November, 1970 in
accordance with the Revised Election Code.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers
and employees, whether elective or appointive, including members of the
Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date of
the filing of their certificates of candidacy, was recently sustained by this
Court, on the grounds, inter alia, that the same is merely an application of
and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution
and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec.
8(a) of R.A. No. 6132 was upheld. 4
II
Without first considering the validity of its specific provisions, we sustain the
constitutionality of the enactment of R.A. No. 6132 by Congress acting as a
legislative body in the exercise of its broad law-making authority, and not as
a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art.
XV of the Constitution, has full and plenary authority to propose
Constitutional amendments or to call a convention for the purpose, by a
three-fourths vote of each House in joint session assembled but voting
separately. Resolutions Nos. 2 and 4 calling for a constitutional
convention were passed by the required three-fourths vote.

2. The grant to Congress as a Constituent Assembly of such plenary


authority to call a constitutional convention includes, by virtue of the
doctrine of necessary implication, all other powers essential to the
effective exercise of the principal power granted, such as the power to
fix the qualifications, number, apportionment, and compensation of the
delegates as well as appropriation of funds to meet the expenses for
the election of delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already
embody the above-mentioned details, except the appropriation of
funds.
3. While the authority to call a constitutional convention is vested by the
present Constitution solely and exclusively in Congress acting as a
Constituent Assembly, the power to enact the implementing details,
which are now contained in Resolutions Nos. 2 and 4 as well as in R.A.
No. 6132, does not exclusively pertain to Congress acting as a
Constituent Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive
legislative power, which power encompasses all matters not expressly
or by necessary implication withdrawn or removed by the Constitution
from the ambit of legislative action. And as lone as such statutory
details do not clash with any specific provision of the constitution, they
are valid.
4. Consequently, when Congress, acting as a Constituent Assembly,
omits to provide for such implementing details after calling a
constitutional convention, Congress, acting as a legislative body, can
enact the necessary implementing legislation to fill in the gaps, which
authority is expressly recognized in Sec. 8 of Res No. 2 as amended by
Res. No. 4.
5. The fact that a bill providing for such implementing details may be
vetoed by the President is no argument against conceding such power
in Congress as a legislative body nor present any difficulty; for it is not
irremediable as Congress can override the Presidential veto or
Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of
delegates is not in accordance with proportional representation and therefore
violates the Constitution and the intent of the law itself, without pinpointing
any specific provision of the Constitution with which it collides.
Unlike in the apportionment of representative districts, the Constitution does
not expressly or impliedly require such apportionment of delegates to the
convention on the basis of population in each congressional district.
Congress, sitting as a Constituent Assembly, may constitutionally allocate
one delegate for, each congressional district or for each province, for
reasons of economy and to avoid having an unwieldy convention. If the
framers of the present Constitution wanted the apportionment of delegates to
the convention to be based on the number of inhabitants in each
representative district, they would have done so in so many words as they
did in relation to the apportionment of the representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly
conflict with its own intent expressed therein; for it merely obeyed and

implemented the intent of Congress acting as a Constituent Assembly


expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts according
to the number of their respective inhabitants, but fixing a minimum of at least
two delegates for a representative district. The presumption is that the factual
predicate, the latest available official population census, for such
apportionment was presented to Congress, which, accordingly employed a
formula for the necessary computation to effect the desired proportional
representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator
Pelaez which is now R.A. No. 6132, submitted to this Tribunal by the amici
curiae, show that it based its apportionment of the delegates on the 1970
official preliminary population census taken by the Bureau of Census and
Statistics from May 6 to June 30, 1976; and that Congress adopted the
formula to effect a reasonable apportionment of delegates. The Director of
the Bureau of Census and Statistics himself, in a letter to Senator Pelaez
dated July 30, 1970, stated that "on the basis of the preliminary count of the
population, we have computed the distribution of delegates to the
Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3
line 12) which is a fair and an equitable method of distributing the delegates
pursuant to the provisions of the joint Resolution of both Houses No. 2, as
amended. Upon your request at the session of the Senate-House
Conference Committee meeting last night, we are submitting herewith the
results of the computation on the basis of the above-stated method."
Even if such latest census were a preliminary census, the same could still be
a valid basis for such apportionment.6 The fact that the lone and small
congressional district of Batanes, may be over-represented, because it is
allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts, each of
which is also allotted only two delegates, and therefore under-represented,
vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting
proportional representation. Absolute proportional apportionment is not
required and is not possible when based on the number of inhabitants, for
the population census cannot be accurate nor complete, dependent as it is
on the diligence of the census takers, aggravated by the constant movement
of population, as well as daily death and birth. It is enough that the basis
employed is reasonable and the resulting apportionment is substantially
proportional. Resolution No. 4 fixed a minimum of two delegates for a
congressional district.
While there may be other formulas for a reasonable apportionment
considering the evidence submitted to Congress by the Bureau of Census
and Statistics, we are not prepared to rule that the computation formula
adopted by, Congress for proportional representation as, directed in Res. No.
4 is unreasonable and that the apportionment provided in R.A. No. 6132
does not constitute a substantially proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law,
which was nullified as unconstitutional, granted more representatives to a
province with less population than the provinces with more inhabitants. Such
is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted
only two delegates, which number is equal to the number of delegates
accorded other provinces with more population. The present petitions
therefore do not present facts which fit the mould of the doctrine in the case
of Macias et al. vs. Comelec, supra.

The impossibility of absolute proportional representation is recognized by the


Constitution itself when it directs that the apportionment of congressional
districts among the various provinces shall be "as nearly as may be
according to their respective inhabitants, but each province shall have at
least one member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The
employment of the phrase "as nearly as may be according to their respective
inhabitants" emphasizes the fact that the human mind can only approximate
a reasonable apportionment but cannot effect an absolutely proportional
representation with mathematical precision or exactitude.

As observed by the Solicitor General in his Answer, the overriding objective


of the challenged disqualification, temporary in nature, is to compel the
elected delegates to serve in full their term as such and to devote all their
time to the convention, pursuant to their representation and commitment to
the people; otherwise, his seat in the convention will be vacant and his
constituents will be deprived of a voice in the convention. The inhibition is
likewise "designed to prevent popular political figures from controlling
elections or positions. Also it is a brake on the appointing power, to curtail the
latter's desire to 'raid' the convention of "talents" or attempt to control the
convention." (p. 10, Answer in L-32443.)

IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation
of liberty without due process of law and denies the equal protection of the
laws. Said Sec. 5 disqualifies any elected delegate from running "for any
public office in any election" or from assuming "any appointive office or
position in any branch of the government government until after the final
adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public
office, is axiomatic under our constitutional system. The State through its
Constitution or legislative body, can create an office and define the
qualifications and disqualifications therefor as well as impose inhibitions on a
public officer. Consequently, only those with qualifications and who do not fall
under any constitutional or statutory inhibition can be validly elected or
appointed to a public office. The obvious reason for the questioned inhibition,
is to immunize the delegates from the perverting influence of self-interest,
party interest or vested interest and to insure that he dedicates all his time to
performing solely in the interest of the nation his high and well nigh sacred
function of formulating the supreme law of the land, which may endure for
generations and which cannot easily be changed like an ordinary statute.
With the disqualification embodied in Sec. 5, the delegate will not utilize his
position as a bargaining leverage for concessions in the form of an elective
or appointive office as long as the convention has not finally adjourned. The
appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his
actuations as delegate; otherwise the several provisions of the new
Constitution may only satisfy individual or special interests, subversive of the
welfare of the general citizenry. It should be stressed that the disqualification
is not permanent but only temporary only to continue until the final
adjournment of the convention which may not extend beyond one year. The
convention that framed the present Constitution finished its task in
approximately seven months from July 30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the time for
which he was elected, from being appointed to any civil office which may
have been created or the emolument whereof shall have been increased
while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is


a valid limitation on the right to public office pursuant to state police power as
it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional
Convention is likewise constitutional; for it is based on a substantial
distinction which makes for real differences, is germane to the purposes of
the law, and applies to all members of the same class. 7 The function of a
delegate is more far-reaching and its effect more enduring than that of any
ordinary legislator or any other public officer. A delegate shapes the
fundamental law of the land which delineates the essential nature of the
government, its basic organization and powers, defines the liberties of the
people, and controls all other laws. Unlike ordinary statutes, constitutional
amendments cannot be changed in one or two years. No other public officer
possesses such a power, not even the members of Congress unless they
themselves, propose constitutional amendments when acting as a
Constituent Assembly pursuant to Art. XV of the Constitution. The
classification, therefore, is neither whimsical nor repugnant to the sense of
justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law,
which is to insure that the proposed amendments are meaningful to the
masses of our people and not designed for the enhancement of selfishness,
greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who
will be elected on the second Tuesday of November, 1970.
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as
violative of the constitutional guarantees of due process, equal protection of
the laws, freedom of expressions, freedom of assembly and freedom of
association.
This Court ruled last year that the guarantees of due process, equal
protection of the laws, peaceful assembly, free expression, and the right of
association are neither absolute nor illimitable rights; they are always subject
to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present
danger test to determine whether a statute which trenches upon the
aforesaid Constitutional guarantees, is a legitimate exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention


(a) from representing, or
(b) allowing himself to be represented as being a candidate of any
political party or any other organization; and
2. any political party, political group, political committee, civic, religious,
professional or other organizations or organized group of whatever
nature from
(a) intervening in the nomination of any such candidate or in the
filing of his certificate, or
(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.
The ban against all political parties or organized groups of whatever nature
contained in par. 1 of Sec. 8(a), is confined to party or organization support
or assistance, whether material, moral, emotional or otherwise. The very
Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the
help of the members of his family within the fourth civil degree of
consanguinity or affinity, and a campaign staff composed of not more than
one for every ten precincts in his district. It allows the full exercise of his
freedom of expression and his right to peaceful assembly, because he
cannot be denied any permit to hold a public meeting on the pretext that the
provision of said section may or will be violated. The right of a member of
any political party or association to support him or oppose his opponent is
preserved as long as such member acts individually. The very party or
organization to which he may belong or which may be in sympathy with his
cause or program of reforms, is guaranteed the right to disseminate
information about, or to arouse public interest in, or to advocate for
constitutional reforms, programs, policies or constitutional proposals for
amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow
that the basic constitutional rights themselves remain substantially intact and
inviolate. And it is therefore a valid infringement of the aforesaid
constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the period for
nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates
presents a question that is not too formidable in
character. According to the act: "It shall be unlawful for
any political party, political committee, or political group
to nominate candidates for any elective public office
voted for at large earlier than one hundred and fifty
days immediately preceding an election, and for any
other elective public office earlier than ninety days
immediately preceding an election.
The right of association is affected. Political parties
have less freedom as to the time during which they
may nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right.

Their scope of legitimate activities, save this one, is


not unduly narrowed. Neither is there infringement of
their freedom to assemble. They can do so, but not for
such a purpose. We sustain its validity. We do so
unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period
for the conduct of an election campaign or partisan political activity may be
limited without offending the aforementioned constitutional guarantees as the
same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for the
purpose of soliciting votes and/or undertaking any campaign or propaganda
for or against any candidate or party; and (c) giving, soliciting, or receiving
contributions for election campaign either directly or indirectly, (Sec. 50-B,
pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as
constitutional by six members of this Court, which could not "ignore ... the
legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the reality of
the situation." 12;
Likewise, because four members dissented, this Court in said case
of Gonzales vs. Comelec, supra, failed to muster the required eight votes to
declare as unconstitutional the limitation on the period for (a) making
speeches, announcements or commentaries or holding interviews for or
against the election of any party or candidate for public office; (b) publishing
or distributing campaign literature or materials; and (e) directly or indirectly
soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of
R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists today
and is one of the major compelling interests that moved Congress into
prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to
justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible, render
spotless, the electoral process," 14 impressed as it was by the explanation
made by the author of R.A. No. 4880, Sen. Lorenzo Taada, who appeared
as amicus curiae, "that such provisions were deemed by the legislative body
to be part and parcel of the necessary and appropriate response not merely
to a clear and present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and corruption as well
as violence that of late has marred election campaigns and partisan political
activities in this country. He did invite our attention likewise to the well-settled
doctrine that in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the responsibility. Nor
should the cure prescribed by it, unless clearly repugnant to fundamental
rights, be ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the
electoral process, as conceded by Senator Pelaez, the basic motivation,
according to Senate Majority Floor Leader Senator Arturo Tolentino, the

sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a)


of R.A. No. 6132, is to assure the candidates equal protection of the laws by
according them equality of chances. 16 The primary purpose of the prohibition
then is also to avert the clear and present danger of another substantive evil,
the denial of the equal protection of the laws. The candidates must depend
on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that
under this provision, the poor candidate has an even chance as against the
rich candidate. We are not prepared to disagree with them, because such a
conclusion, predicated as it is on empirical logic, finds support in our recent
political history and experience. Both Senators stressed that the independent
candidate who wins in the election against a candidate of the major political
parties, is a rare phenomenon in this country and the victory of an
independent candidate mainly rests on his ability to match the resources,
financial and otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution, includes
the guarantee of equal opportunity, equality of political rights, and equality
before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural
Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong per se
it is equally true that Congress in the exercise of its broad law-making
authority can declare certain acts as mala prohibita when justified by the
exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better
attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-ofinterest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting
its Constitution in a hopeful endeavor to find a solution to the grave
economic, social and political problems besetting the country. Instead
of directly proposing the amendments Congress has chosen to call a
Constitutional Convention which shall have the task of fashioning a
document that shall embody the aspirations and ideals of the people.
Because what is to be amended is the fundamental law of the land, it is
indispensable that the Constitutional Convention be composed of
delegates truly representative of the people's will. Public welfare
demands that the delegates should speak for the entire nation, and
their voices be not those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious, political, civic or
professional in character. Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional Amendments, eloquently
stated that "the function of a constitution is not to represent anyone in
interest or set of interests, not to favor one group at the expense or
disadvantage of the candidates but to encompass all the interests
that exist within our society and to blend them into one harmonious and
balanced whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be
deflated or frustrated, it is necessary that the delegatee thereto be
independent, beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in the election of
delegates who, because they have been chosen with the aid and
resources of organizations, cannot be expected to be sufficiently
representative of the people. Such delegates could very well be the
spokesmen of narrow political, religious or economic interest and not of
the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of the
laws is not unduly subverted in par. I of Sec. 8(a); because it does not create
any hostile discrimination against any party or group nor does it confer
undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social,
civic, religious, or professional associations. The ban is germane to the
objectives of the law, which are to avert the debasement of the electoral
process, and to attain real equality of chances among individual candidates
and thereby make real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in advantages
because of their machinery and other facilities, which, the individual
candidate who is without any organization support, does not have. The fact
that the other civic of religious organizations cannot have a campaign
machinery as efficient as that of a political party, does not vary the situation;
because it still has that much built-in advantage as against the individual
candidate without similar support. Moreover, these civic religious and
professional organization may band together to support common candidates,
who advocates the reforms that these organizations champion and believe
are imperative. This is admitted by petitioner Gonzales thru the letter of
Senator Ganzon dated August 17, 1970 attached to his petition as Annex
"D", wherein the Senator stated that his own "Timawa" group had agreed
with the Liberal Party in Iloilo to support petitioner Gonzales and two others
as their candidates for the convention, which organized support is nullified by
the questioned ban, Senator Ganzon stressed that "without the group
moving and working in joint collective effort" they cannot "exercise effective
control
and
supervision
over
our
leaders the Women's League, the area commanders, etc."; but with their
joining with the LP's they "could have presented a solid front with very bright
chances of capturing all seats."
The civic associations other than political parties cannot with reason insist
that they should be exempted from the ban; because then by such
exemption they would be free to utilize the facilities of the campaign
machineries which they are denying to the political parties. Whenever all
organization engages in a political activity, as in this campaign for election of
delegates to the Constitutional Convention, to that extent it partakes of the
nature of a political organization. This, despite the fact that the Constitution
and by laws of such civic, religious, or professional associations usually
prohibit the association from engaging in partisan political activity or
supporting any candidate for an elective office. Hence, they must likewise
respect the ban.
The freedom of association also implies the liberty not to associate or join
with others or join any existing organization. A person may run independently
on his own merits without need of catering to a political party or any other

association for support. And he, as much as the candidate whose candidacy
does not evoke sympathy from any political party or organized group, must
be afforded equal chances. As emphasized by Senators Tolentino and
Salonga, this ban is to assure equal chances to a candidate with talent and
imbued with patriotism as well as nobility of purpose, so that the country can
utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of Senator
Taada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132,
demonstrating once again his deep concern for the preservation of our civil
liberties enshrined in the Bill of Rights, We are not persuaded to entertain the
belief that the challenged ban transcends the limits of constitutional invasion
of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No.
6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be
declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.

Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in
scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in accepting
the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall
represent or allow himself to be represented as being a candidate of any
political party or any other organization, and no political party, political group,
political committee, civic, religious, professional, or other organization or
organized group of whatever nature shall intervene in the nomination of any
such candidate or in the filing of his certificate of candidacy or give aid or
support directly or indirectly, material or otherwise, favorable to or against his
campaign for election: ..." 1 It is with regret then that I dissent from that
portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as the aforesaid
ban on political parties and civic, professional and other organizations is
concerned with the explicit provision that the freedom to form associations or
societies for purposes not contrary to law shall not be abridged. 2 The right of
an individual to join others of a like persuasion to pursue common objectives
and to engage in activities is embraced within if not actually encouraged by
the regime of liberty ordained by the Constitution. This particular freedom
has an indigenous cast, its origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards freedom
of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and

continue to contribute to our Free Society." 3 Such is indeed the case, for five
years earlier the American Supreme Court had already declared: "It is
beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in]
freedom of speech." 4
Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of
association as including "the right to express one's attitudes or philosophies
by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is
not extremely included in the First Amendment its existence is necessary in
making the express guarantees fully meaningful." 5 Thus is further vitalized
freedom of expression which, for Justice Laurel, is at once the instrument"
and the guarantee and the bright consummate flower of all liberty" 6 and, for
Justice Cardozo, "the matrix, the indispensable condition of nearly every
other form of freedom." 7
2. It is in the light of the above fundamental postulates that I find merit in the
plea of petitioners to annul the challenged provision. There is much to be
said for the point emphatically stressed by Senator Lorenzo M. Taada, as
amicus curiae, to the effect that there is nothing unlawful in a candidate for
delegate to the Convention representing or allowing himself to be
represented as such of any political party or any other organization as well
as of such political party, political group, political committee, civic, religious,
professional or other organization or organized group intervening in his
nomination, in the filing of his certificate of candidacy, or giving aid or
support, directly or indirectly, material or otherwise, favorable to or against
his campaign for election as such delegate. I find the conclusion inescapabe
therefore, that what the constitutional provisions in question allow, more
specifically the right to form associations, is prohibited. The infirmity of the
ban is thus apparent on its face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of civic,
political, religious, professional, trade organizations or organized groups of
whatever nature to disseminate information about, or arouse public interest
in, the forthcoming Constitutional Convention, or to advocate constitutional
reforms, programs, policies or proposals for amendment of the present
Constitution, and no prohibition contained herein shall limit or curtail the right
of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention." 8 It is regrettable
that such an explicit recognition of what cannot be forbidden consistently
with the constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus commanded,
by the fundamental law, as they are precluded by the very same Act from
giving aid or support precisely to the very individuals who can carry out
whatever constitutional reforms, programs, policies or proposals for
amendment they might advocate. As thus viewed, the conviction I entertain
as to its lack of validity is further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear and present
danger of a substantive evil that would justify a limitation on such cherished
freedoms. Reference has been made to Gonzales v. Commission on
Elections. 9 As repression is permissible only when the danger of substantive
evil is present is explained by Justice Branders thus: ... the evil apprehended
is to imminent that it may befall before there is opportunity for full discussion.
If there be time to expose through discussion the falsehood and fallacies, to

avert the evil by the processes of education, the remedy to be applied is


more speech, not enforced silence. For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting
a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." Only thus may there
be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except
at those extreme borders where thought merges into action." It received its
original formulation from Holmes. Thus: "The question in every case is
whether the words used in such circumstances are of such a nature as to
create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree." " 10 The majority of the Court would find the existence of a clear and
present danger of debasing the electoral process. With due respect, I find
myself unable to share such a view.
The assumption would, appear to be that there is a clear and present danger
of a grave substantive evil of partisanship running riot unless political parties
are thus restrained. There would be a sacrifice then of the national interest
involved. The Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It would appear
though that what prompted such a ban is to assure that the present majority
party would not continue to play its dominant role in the political life of the
nation. The thought is entertained that otherwise, we will not have a
Convention truly responsive to the needs of the hour and of the future insofar
as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections of
1946, 1953, 1961 and 1965, the presidency was won by the opposition
candidate. Moreover, in national elections for senators alone, that of 1951, to
mention only one instance, saw a complete sweep of the field by the then
minority party. It would be unjustifiable, so I am led to believe to assume that
inevitably the prevailing dominant political party would continue its
ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in
1967 indicate unmistakably that the people can, if so minded, make their
wishes prevail. There is thus no assurance that the mere identification with
party labels would automatically insure the success of a candidacy. Even if it
be assumed that to guard against the evils of party spirit carried to excess,
such a ban is called for, still no such danger is presented by allowing civil,
professional or any other organization or organized group of whatever nature
to field its own candidates or give aid or support, directly or indirectly material
or otherwise, to anyone running for the Convention. From such a source, no
such misgivings or apprehension need arise. Nor it the fear that
organizations could hastily be assembled or put up to camouflage their true
colors as satellites of the political parties be valid. The electorate can see
through such schemes and can emphatically register its reaction. There is,
moreover, the further safeguard that whatever work the Convention may
propose is ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present.
What causes me grave concern is that to guard against such undesirable
eventuality, which may not even come to pass, a flagrant disregard of what
the Constitution ordains is minimized. A desirable end cannot be coerced by
unconstitutional means.

4. It is not easy to yield assent to the proposition that on a matter so


essentially political as the amendment or revision of an existing Constitution,
political parties or political groups are to be denied the opportunity of
launching the candidacy of their choice. Well has it been said by Chief
Justice Hughes: "The greater the importance of safeguarding the community
from incitements to the overthrow of our institutions by force and violence,
the more imperative is the need to preserve inviolate the constitutional rights
of free speech, free press and free assembly in order to maintain the
opportunity for free political discussion, to the end that government may be
responsive to the will of the people and that changes, if desired, may be
obtained by peaceful means. Therein lies the security of the Republic, the
very foundation of constitutional government." 11 It is to carry this essential
process one step farther to recognize and to implement the right of every
political party or group to select the candidates who, by their election, could
translate into actuality their hopes for the fundamental law that the times
demand. Moreover, is it not in keeping with the rights to intellectual freedom
so sedulously safeguarded by the Constitution to remove all obstacles to
organized civic groups making their influence felt in the task of constitution
framing, the result of which has momentuous implications for the nation?
What is decisive of this aspect of the matter is not the character of the
association or organized group as such but the essentially political activity
thus carried out.
This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued that
the judiciary should display reluctance in extending sympathy and
understanding to such legislative determination. This is merely to stress that
however worthwhile the objective, the Constitution must still be paid
deference. Moreover, it may not be altogether unrealistic to consider the
practical effects of the ban as thus worded as not lacking in effectivity insofar
as civic, religious, professional or other organizations or organized group is
concerned, but not necessarily so in the case of political party, political group
or political committee. There is the commendable admission by Senator
Tolentino, appearing as amicus curiae, that the political leaders of stature, in
their individual capacity, could continue to assert their influence. It could very
well happen, then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is
thus sought to be accomplished to guard against the evil of party spirit
prevailing could very well be doomed to futility. The high hopes entertained
by the articulate and vocal groups of young people, intellectuals and
workers, may not be realized. The result would be that this unorthodox and
novel provision could assume the character of a tease, an illusion like a
munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my
mind, a radical approach to a problem possibly tainted with constitutional
infirmity cannot hurdle the judicial test as to its validity. It is one thing to
encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different matter to
cut down the exercise of what otherwise are undeniable constitutional rights,
when as in this case, the outcome might belie expectations. Considering the
well-settled principle that even though the governmental process be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties, if the end can be narrowly achieved, I
am far from being persuaded that to preclude political parties or other groups
or associations from lending aid and support to the candidates of men in
whom they can repose their trust is consistent with the constitutional rights of
freedom of association and freedom of expression. Here, the danger of
overbreadth, so clear and manifest as to be offensive to constitutional
standards, magnified by the probability that the result would be the failure

and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that
the holding of this Court in Gonzales v. Comelec 12 does not compel the
conclusion reached by the majority sustaining the validity of this challenged
provision. What survived the test of constitutional validity in that case, with
the Court unanimous in its opinion, is the prohibition for any political party,
political committee or political group to nominate candidates for any elective
public office voted for at large earlier than 150 days immediately preceding
election and for any other public office earlier than 90 days immediately
preceding such election. 13 A corollary to the above limitation, the provision
making it unlawful for any person, whether or not a voter or candidate, or for
any group or association of persons, whether or not a political party or
political committee, to engage in an election campaign or partisan political
activity except during the above periods successfully hurdled, the
constitutional test, although the restrictions as to the making of speeches,
announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office or the publishing or
distributing of campaign literature or materials or the solicitation or
undertaking any campaign or propaganda for or against any candidate or
party, directly or indirectly, survived by the narrow margin of one vote, four
members of this Court unable to discern any constitutional infirmity as
against the free speech guarantee, thus resulting in failing to muster the
necessary two-thirds majority for a declaration of invalidity. Insofar as
election campaign or partisan political activity would limit or restrict the
formation, of organizations, associations, clubs, committees or other groups
of persons for the purpose of soliciting votes or undertaking any campaign or
propaganda for or against a party or candidate or, the giving, soliciting, or
receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a
similar and in view, only five members of this Court, a minority thereof voted,
for their unconstitutionality. What emerges clearly, then, is that definite acts
short of preventing the political parties from the choice of their candidates
and thereafter working for them in effect were considered by this Court as
not violative of the constitutional freedoms of speech, of press, of assembly
and of association.

Without prejudice to a more extended opinion, I vote, in concurrence with the


majority, to sustain the validity of the provisions of Republic Act 6132
impugned by petitioners in these cases, except Section 4 and the portion of
Section 8(a) referring to political parties. As regards Section 4, I reiterate my
separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and
L-32439) With respect to Section 8(a), I hold that the considerations which
take the restraint on the freedoms of association, assembly and speech
involved in the ban on political parties to nominate and support their own
candidates, reasonable and within the limits of the Constitution do not obtain
when it comes to civic or non-political organizations. As I see it, the said ban,
insofar as civic or non-political organizations are concerned, is a deceptive
device to preserve the built-in advantages of political parties while at the
same time crippling completely the other kinds of associations. The only way
to accomplish the purported objective of the law of equalizing the forces that
will campaign in behalf of the candidates to the constitutional convention is to
maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the resulting
set up embodied in the provision in question, the individual candidates who
have never had any political party connections or very little of it would be at
an obvious disadvantage unless they are allowed to seek and use the aid of
civic organizations. Neither the elaborate provisions of Republic Act 6132
regarding methods of campaign nor its other provisions intended to minimize
the participation of political parties in the electorate processes of voting,
counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties,
particularly the major and established ones, as long as the right to form other
associations and the right of these associations to campaign for their
candidates are denied considering particularly the shortness of the time that
is left between now and election day.
The issues involved in the coming elections are grave and fundamental ones
that are bound to affect the lives, rights and liberties of all the people of this
country most effectively, pervasively and permanently. The only insurance of
the people against political parties which may be inclined towards the
Establishment and the status quo is to organize themselves to gain much
needed strength and effectivity. To deny them this right is to stifle the
people's only opportunity for change.

The challenged provision in these two petitions, however, goes much farther.
Political parties or any other organization or organized group are precluded
from selecting and supporting candidates for delegates to the Constitutional
Convention. To my mind, this is to enter a forbidden domain, Congress
trespassing on a field hitherto rightfully assumed to be within the sphere of
liberty. Thus, I am unable to conclude that our previous decision in Gonzales
v. Commission on Elections which already was indicative of the cautious and
hesitant judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of
expression, and of association lends support to the decision reached by the
majority insofar as this challenged provision is concerned.

It is axiomatic that issues, no matter how valid, if not related to particular


candidates in an organized way, similarly as in the use of platforms by
political parties, cannot have any chance of support and final adoption. Both
men and issues are important, but unrelated to each other, each of them
alone is insignificant, and the only way to relate them is by organization.
Precisely because the issues in this election of candidates are of paramount
importance second to none, it is imperative that all of the freedoms
enshrined in the constitution should have the ampliest recognition for those
who are minded to actively battle for them and any attempt to curtail them
would endanger the very purposes for which a new constitutional convention
has been conceived.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am


authorized to state that the Chief Justice is in agreement with the views
herein expressed.

Consistently with my separate opinion in the case of Gonzales and Cabigao


vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein
stated, I maintain that the right of suffrage which is the cornerstone of any
democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or
hampered, as is being done under the statute in dispute.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.


BARREDO, J., concurring and dissenting:

It is, of course, understood that this opinion is based on my considered view,


contrary to that of the majority, that as Section 8(a) stands and taking into
account its genesis, the ban against political parties is separable from that
against other associations within the contemplation of Section 21 of the Act

which expressly refers to the separability of the application thereof to any


"persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few days.

EN BANC
G.R. No. L-56350 April 2, 1981
SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOSIMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M.
TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON
ELECTIONS, respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of
three Batasang Pambansa Resolutions 1proposing constitutional
amendments, goes further than merely assailing their alleged constitutional
infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members
of the Philippine Bar and former delegates to the 1971 Constitutional
Convention that framed the present Constitution, are suing as taxpayers. The
rather unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting
charm of novelty but nothing else. It is in fact self defeating, for if such
were indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility.
Nor are the arguments of petitioners cast in the traditional form of
constitutional litigation any more persuasive. For reasons to be set forth, we
dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and March 12,
1981. 4 On March 10 and 13 respectively, respondents were required to
answer each within ten days from notice. 5 There was a comment on the part
of the respondents. Thereafter, both cases were set for hearing and were
duly argued on March 26 by petitioners and Solicitor General Estelito P.
Mendoza for respondents. With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for
decision.
It is the ruling of the Court, as set forth at the outset, that the petitions must
be dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973
Constitution. In the dispositive portion of Javellana v. The Executive
Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to
four. 8 It then concluded: "This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force and
effect." 9 Such a statement served a useful purpose. It could even be said
that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into
force and effect. With such a pronouncement by the Supreme Court and with

the recognition of the cardinal postulate that what the Supreme Court says is
not only entitled to respect but must also be obeyed, a factor for instability
was removed. Thereafter, as a matter of law, all doubts were resolved. The
1973 Constitution is the fundamental law. It is as simple as that. What cannot
be too strongly stressed is that the function of judicial review has both a
positive and a negative aspect. As was so convincingly demonstrated by
Professors Black 10 and Murphy, 11 the Supreme Court can check as well as
legitimate. In declaring what the law is, it may not only nullify the acts of
coordinate branches but may also sustain their validity. In the latter case,
there is an affirmation that what was done cannot be stigmatized as
constitutionally deficient. The mere dismissal of a suit of this character
suffices. That is the meaning of the concluding statement in Javellana. Since
then, this Court has invariably applied the present Constitution. The latest
case in point is People v. Sola, 12 promulgated barely two weeks ago. During
the first year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13
2. We come to the crucial issue, the power of the Interim Batasang
Pambansa to propose amendments and how it may be exercised. More
specifically as to the latter, the extent of the changes that may be introduced,
the number of votes necessary for the validity of a proposal, and the
standard required for a proper submission. As was stated earlier, petitioners
were unable to demonstrate that the challenged resolutions are tainted by
unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is
indubitable. The applicable provision in the 1976 Amendments is quite
explicit. Insofar as pertinent it reads thus: "The Interim Batasang
Pambansa shall have the same powers and its Members shall have the
same functions, responsibilities, rights, privileges, and disqualifications
as the interim National Assembly and the regular National Assembly
and the Members thereof." 14One of such powers is precisely that of
proposing amendments. The 1973 Constitution in its Transitory
Provisions vested theInterim National Assembly with the power to
propose amendments upon special call by the Prime Minister by a vote
of the majority of its members to be ratified in accordance with the
Article on Amendments. 15 When, therefore, the InterimBatasang
Pambansa, upon the call of the President and Prime Minister Ferdinand
E. Marcos, met as a constituent body it acted by virtue Of such
impotence Its authority to do so is clearly beyond doubt. It could and
did propose the amendments embodied in the resolutions now being
assailed. It may be observed parenthetically that as far as petitioner
Occena is Concerned, the question of the authority of
the Interim Batasang Pambansa to propose amendments is not new.
In Occena v. Commission on Elections, 16 filed by the same petitioner,
decided on January 28, 1980, such a question was involved although
not directly passed upon. To quote from the opinion of the Court
penned by Justice Antonio in that case: "Considering that the proposed
amendment of Section 7 of Article X of the Constitution extending the
retirement of members of the Supreme Court and judges of inferior
courts from sixty-five (65) to seventy (70) years is but a restoration of
the age of retirement provided in the 1935 Constitution and has been
intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, it cannot, therefore, be
said that our people are unaware of the advantages and disadvantages
of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the
amendments proposed are so extensive in character that they go far
beyond the limits of the authority conferred on the Interim Batasang

Pambansa as Successor of the Interim National Assembly. For them,


what was done was to revise and not to amend. It suffices to quote
from the opinion of Justice Makasiar, speaking for the Court, in Del
Rosario v. Commission on Elections 18 to dispose of this contention.
Thus: "3. And whether the Constitutional Convention will only propose
amendments to the Constitution or entirely overhaul the present
Constitution and propose an entirely new Constitution based on an
Ideology foreign to the democratic system, is of no moment; because
the same will be submitted to the people for ratification. Once ratified by
the sovereign people, there can be no debate about the validity of the
new Constitution. 4. The fact that the present Constitution may be
revised and replaced with a new one ... is no argument against the
validity of the law because 'amendment' includes the 'revision' or total
overhaul of the entire Constitution. At any rate, whether the Constitution
is merely amended in part or revised or totally changed would become
immaterial the moment the same is ratified by the sovereign
people." 19 There is here the adoption of the principle so well-known in
American decisions as well as legal texts that a constituent body can
propose anything but conclude nothing. 20 We are not disposed to
deviate from such a principle not only sound in theory but also
advantageous in practice.

is unavailing. As for the people being adequately informed, it cannot be


denied that this time, as in the cited 1980 Occena opinion of Justice
Antonio, where the amendment restored to seventy the retirement age
of members of the judiciary, the proposed amendments have "been
intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, [ so that ] it cannot,
therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro
and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.

Separate Opinions
TEEHANKEE, J., dissenting:

(3) That leaves only the questions of the vote necessary to propose
amendments as well as the standard for proper submission. Again,
petitioners have not made out a case that calls for a judgment in their
favor. The language of the Constitution supplies the answer to the
above questions. The Interim Batasang Pambansa, sitting as a
constituent body, can propose amendments. In that capacity, only a
majority vote is needed. It would be an indefensible proposition to
assert that the three-fourth votes required when it sits as a legislative
body applies as well when it has been convened as the agency through
which amendments could be proposed. That is not a requirement as far
as a constitutional convention is concerned. It is not a requirement
either when, as in this case, the Interim Batasang Pambansa exercises
its constituent power to propose amendments. Moreover, even on the
assumption that the requirement of three- fourth votes applies, such
extraordinary majority was obtained. It is not disputed that Resolution
No. 1 proposing an amendment allowing a natural-born citizen of the
Philippines naturalized in a foreign country to own a limited area of land
for residential purposes was approved by the vote of 122 to 5;
Resolution No. 2 dealing with the Presidency, the Prime Minister and
the Cabinet, and the National Assembly by a vote of 147 to 5 with 1
abstention; and Resolution No. 3 on the amendment to the Article on
the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a
proper submission, the question may be viewed not only from the
standpoint of the period that must elapse before the holding of the
plebiscite but also from the standpoint of such amendments having
been called to the attention of the people so that it could not plausibly
be maintained that they were properly informed as to the proposed
changes. As to the period, the Constitution indicates the way the matter
should be resolved. There is no ambiguity to the applicable provision:
"Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held
not later than three months after the approval of such amendment or
revision." 21 The
three
resolutions
were
approved
by
the InterimBatasang Pambansa sitting as a constituent assembly on
February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date
of the plebiscite is set for April 7, 1981. It is thus within the 90-day
period provided by the Constitution. Thus any argument to the contrary

I vote to give due course to the petitions at bar and to grant the application
for a temporary restraining order enjoining the plebiscite scheduled for April
7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the
invalidity of the October 1976 amendments proposals to the 1973
Constitution for not having been proposed nor adopted in accordance with
the mandatory provisions thereof, as restated by me in Hidalgo vs.
Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of the
December 17, 1977 referendum exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the
Interim Batasang Pambansa as provided for in Amendment No. 3 of the
1976 Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose
and approve amendments to the Constitution as well as to set up the
machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and that so
long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional
amendments were now deemed necessary to be discussed and adopted for
submittal to the people, strict adherence with the mandatory requirements of
the amending process as provided in the Constitution must be complied with.
This means, under the prevailing doctrine ofTolentino vs. Comelec 4 that the
proposed amendments to be valid must come from the constitutional agency
vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be
convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling
doctrine of Tolentino, the October 1976 constitutional amendments which
created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional

provisions on amendments "dealing with the procedure or manner of


amending the fundamental law are binding upon the Convention and the
other departments of the government (and) are no less binding upon the
people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the essence
of the rule of law." The proposed amendments at bar having been adopted
by the Interim Batasang Pambansa as the fruit of the invalid October, 1976
amendments must necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand inSanidad that the doctrine of fair and
proper submission firs enunciated by a simple majority of six Justices (of an
eleven member Court prior to the 1973 Constitution which increased the
official composition of the Court to fifteen) in Gonzales vs. Comelec 5 and
subsequently officially adopted by the required constitutional two-thirds
majority vote of the Court (of eight votes, then) in Tolentino is fully applicable
in the case at bar. The three resolutions proposing complex, complicated and
radical amendments of our very structure of government were considered
and approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine
days later on April 7, 1981 which is totally inadequate and far short of the
ninety-day period fixed by the Constitution for submittal to the people to
"sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine
manner." 6
4. "The minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" as
stated by retired Justice Conrado V. Sanchez in his separate opinion
inGonzales bears repeating as follows: "... we take the view that the words
'submitted to the people for their ratification,' if construed in the light of the
nature of the Constitution a fundamental charter that is legislation direct

from the people, an expression of their sovereign will is that it can only be
amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid
before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word 'submitted' can only mean that the
government, within its maximum capabilities, should strain every short to
inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within
its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For, as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission,
intelligent consent or rejection. If with all these safeguards the people still
approve the amendments no matter how prejudicial it is to them, then so be
it. For the people decree their own fate."
Justice Sanchez therein ended the passage with an apt citation that "... The
great men who builded the structure of our state in this respect had the
mental vision of a good Constitution voiced by Judge Cooley, who has said
'A good Constitution should be beyond the reach of temporary excitement
and popular caprice or passion. It is needed for stability and steadiness; it
must yield to the thought of the people; not to the whim of the people, or the
thought evolved in excitement, or hot blood, but the sober second thought,
which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As
Montaign says: 'All great mutation shake and disorder a state. Good does
not necessarily succeed evil; another evil may succeed and a worse."'

EN BANC

G.R. No. L-34150 October 16, 1971


ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE
AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS,
JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA,
VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the
1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent
Disbursing Officer of the 1971 Constitutional Convention.

intervenors from the ranks of the delegates to the Convention who, more or
less, have legal interest in the success of the respondents, and so, only
Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor
de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right,
have been allowed to intervene jointly. The Court feels that with such an
array of brilliant and dedicated counsel, all interests involved should be duly
and amply represented and protected. At any rate, notwithstanding that their
corresponding motions for leave to intervene or to appear as amicus curiae 1
have been denied, the pleadings filed by the other delegates and some
private parties, the latter in representation of their minor children allegedly to
be affected by the result of this case with the records and the Court
acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of
1971 came into being by virtue of two resolutions of the Congress of the
Philippines approved in its capacity as a constituent assembly convened for
the purpose of calling a convention to propose amendments to the
Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The delegates to
the said Convention were all elected under and by virtue of said resolutions
and the implementing legislation thereof, Republic Act 6132. The pertinent
portions of Resolution No 2 read as follows:

Intervenors in their own behalf.


BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on
Elections "from undertaking to hold a plebiscite on November 8, 1971," at
which the proposed constitutional amendment "reducing the voting age" in
Section 1 of Article V of the Constitution of the Philippines to eighteen years
"shall be, submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said resolutions to be
without the force and effect of law in so far as they direct the holding of such
plebiscite and by also declaring the acts of the respondent Commission
(COMELEC) performed and to be done by it in obedience to the aforesaid
Convention resolutions to be null and void, for being violative of the
Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the
COMELEC, the Count required that copies thereof be served on the Solicitor
General and the Constitutional Convention, through its President, for such
action as they may deem proper to take. In due time, respondent COMELEC
filed its answer joining issues with petitioner. To further put things in proper
order, and considering that the fiscal officers of the Convention are
indispensable parties in a proceeding of this nature, since the acts sought to
be enjoined involve the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing Officer, Chief
Accountant and Auditor of the Convention be made respondents. After the
petition was so amended, the first appeared thru Senator Emmanuel Pelaez
and the last two thru Delegate Ramon Gonzales. All said respondents, thru
counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of
arguments and even possible confusion, and considering that with the
principal parties being duly represented by able counsel, their interests
would be adequately protected already, the Court had to limit the number of

SECTION 1. There is hereby called a convention to propose


amendments to the Constitution of the Philippines, to be composed of
two elective Delegates from each representative district who shall have
the same qualifications as those required of Members of the House of
Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the
different cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. Its preliminary labors
of election of officers, organization of committees and other preparatory
works over, as its first formal proposal to amend the Constitution, its session
which began on September 27, 1971, or more accurately, at about 3:30 in
the morning of September 28, 1971, the Convention approved Organic
Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE
VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional
Convention:

Section 1. Section One of Article V of the Constitution of the Philippines


is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.
Section 2. This amendment shall be valid as part of the Constitution
of the Philippines when approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section
or on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of
P75,000.00 from its savings or from its unexpended funds for the
expense of the advanced plebiscite; provided, however that should
there be no savings or unexpended sums, the Delegates waive
P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal,
called upon respondent Comelec "to help the Convention implement (the
above) resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1
quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132
otherwise known as the Constitutional Convention Act of 1971, may we
call upon you to help the Convention implement this resolution:
Sincerely, Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of


separate official ballots, election returns and tally sheets for the use of
said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures
for the printing and shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same time
that the Commission will distribute its official and sample ballots to be
used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from
intervenors' Governors' statement of the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad
Hoc Committee to implement the Resolution.
This Committee issued implementing guidelines which were approved
by the President who then transmitted them to the Commission on
Elections.
The Committee on Plebiscite and Ratification filed a report on the
progress of the implementation of the plebiscite in the afternoon of
October 7,1971, enclosing copies of the order, resolution and letters of
transmittal above referred to (Copy of the report is hereto attached as
Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention
approved a resolution authored by Delegate Antonio Olmedo of Davao
Oriental, calling for a recess of the Convention from November 1, 1971
to November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and
the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24
submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution
No. 1 and the other implementing resolutions thereof subsequently approved
by the Convention have no force and effect as laws in so far as they provide
for the holding of a plebiscite co-incident with the elections of eight senators
and all city, provincial and municipal officials to be held on November 8,
1971, hence all of Comelec's acts in obedience thereof and tending to carry
out the holding of the plebiscite directed by said resolutions are null and void,
on the ground that the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as a legislative body,
and may not be exercised by the Convention, and that, under Section 1,
Article XV of the Constitution, the proposed amendment in question cannot
be presented to the people for ratification separately from each and all of the

other amendments to be drafted and proposed by the Convention. On the


other hand, respondents and intervenors posit that the power to provide for,
fix the date and lay down the details of the plebiscite for the ratification of any
amendment the Convention may deem proper to propose is within the
authority of the Convention as a necessary consequence and part of its
power to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such time and
manner as the Convention may direct in discretion. The Court's delicate task
now is to decide which of these two poses is really in accord with the letter
and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of
jurisdiction. They contend that the issue before Us is a political question and
that the Convention being legislative body of the highest order is sovereign,
and as such, its acts impugned by petitioner are beyond the control of the
Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction
of this Court in their answer acknowledging that the issue herein is a
justifiable one.
Strangely, intervenors cite in support of this contention portions of the
decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774,
wherein the members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were precisely unanimous
in upholding its jurisdiction. Obviously, distinguished counsel have either
failed to grasp the full impact of the portions of Our decision they have
quoted or would misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting
as a constituent assembly, and, for that matter, those of a constitutional
convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by intervenors should
dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this
Court speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel declared that "the judicial department is the
only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing
the issue submitted thereto as a political one declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution which was being
submitted to the people for ratification satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the Senate
(81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada
v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on
Elections, (L-18684, Sept. 14, 1961). In the first we held that the officers
and employees of the Senate Electoral Tribunal are under its supervision
and control, not of that of the Senate President, as claimed by the latter;
in the second, this Court proceeded to determine the number of

Senators necessary for quorum in the Senate; in the third, we nullified


the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party
having the second largest number of votes therein of two (2) Senators
belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared unconstitutional
an act of Congress purporting to apportion the representatives districts
for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the
number of inhabitants of each province. Thus we rejected the theory,
advanced in these four (4) cases that the issues therein raised were
political questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to
Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of
the inherent powers of the people as the repository sovereignty in a
republican state, such as ours (Section 1, Art. 11, Constitution of the
Philippines) to make, and, hence, to amend their own Fundamental
Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same, it is
said that Senators and members of the House of Representatives
act, not as members of Congress, but as component elements of
a constituent assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their
authority does not emanate from the Constitution they are the very
source of all powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final
say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary
to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact
that the Constitution expressly confers upon the Supreme Court, (And,
inferentially, to lower courts.) the power to declare a treaty
unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite the
eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as
a constituent assembly violates the Constitution is essentially
justiciable not political, and, hence, subject to judicial review, and, to the
extent that this view may be inconsistent with the stand taken
in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the
Convention is not supreme. Nowhere in his petition and in his oral argument
and memoranda does petitioner point otherwise. Actually, what respondents
and intervenors are seemingly reluctant to admit is that the Constitutional
Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not been called by the
people directly as in the case of a revolutionary convention which drafts the
first Constitution of an entirely new government born of either a war of
liberation from a mother country or of a revolution against an existing

government or of a bloodless seizure of power a la coup d'etat. As to such


kind of conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such conventions that
the remarks of Delegate Manuel Roxas of the Constitutional Convention of
1934 quoted by Senator Pelaez refer. No amount of rationalization can belie
the fact that the current convention came into being only because it was
called by a resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present Constitution
which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for the purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
True it is that once convened, this Convention became endowed with extra
ordinary powers generally beyond the control of any department of the
existing government, but the compass of such powers can be co-extensive
only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are
duly ratified by the people, it necessarily follows that the acts of convention,
its officers and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its entirety and
in everyone of its parts the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in
its internal operation and the performance of its task to propose amendments
to the Constitution it is not subject to any degree of restraint or control by any
other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any
person of life, liberty or property without due process of law, deny to anyone
in this country the equal protection of the laws or the freedom of speech and
of the press in disregard of the Bill of Rights of the existing Constitution. Nor,
for that matter, can such Convention validly pass any resolution providing for
the taking of private property without just compensation or for the imposition
or exacting of any tax, impost or assessment, or declare war or call the
Congress to a special session, suspend the privilege of the writ of habeas
corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of
the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and
cannot validly assert, much less exercise, in the light of the existing
Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that
somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our
founding fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.

We need not go far in search for the answer to the query We have posed.
The very decision of Chief Justice Concepcion in Gonzales, so much
invoked by intervenors, reiterates and reinforces the irrefutable logic and
wealth of principle in the opinion written for a unanimous Court by Justice
Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred,
if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that instrument
which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function
as a harmonious whole, under a system of check and balances and
subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels,
for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment and the principles of good
government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in
any living Constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a
period of more than one and half centuries. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of
Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to
them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and
to strike conclusions unrelated to actualities. Narrowed as its functions

is in this manner the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty ... the people who are authors of
this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority
of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in consultation rooms and
court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to the
said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted after
December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole
power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the
Electoral Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of the
National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National Assembly
on the one hand and the Electoral Commission on the other. From the
very nature of the republican government established in our country in
the light of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to
determine all contests relating to the election, returns and qualifications
of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within
the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not
subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting
claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by
the judiciary in justiciable and appropriate cases. Discarding the
English type and other European types of constitutional government,

the framers of our Constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the
American example, provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to interpret the
fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to
assume what is logically their function. For instance, the Constitution of
Poland of 1921 expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, Chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this power.
This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain
(arts. 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present controversy shows
the necessity of a final constitutional arbiter to determine the conflict of
authority between two agencies created by the Constitution. Were we
to decline to take cognizance of the controversy, who will determine the
conflict? And if the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional system which
may in the long run prove destructive of the entire framework? To ask
these questions is to answer them. Natura vacuum abhorret, so must
we avoid exhaustion in our constitutional system. Upon principle,
reason, and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over the
Electoral Commission and the subject matter of the present controversy
for the purpose of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole judge of
all contests relating to the election, returns and qualifications of the
members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did
in Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the government
but to all such conflicts between and among these departments, or, between
any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors, why
the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of
the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of
the Court over the present case. It goes without saying that We do this not
because the Court is superior to the Convention or that the Convention is
subject to the control of the Court, but simply because both the Convention
and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the
power as it is the solemn duty of the Court, under the existing Constitution to
resolve the issues in which petitioner, respondents and intervenors have
joined in this case.
II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is
it within the powers of the Constitutional Convention of 1971 to order, on its
own fiat, the holding of a plebiscite for the ratification of the proposed
amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the
Convention?
At the threshold, the environmental circumstances of this case demand the
most accurate and unequivocal statement of the real issue which the Court is
called upon to resolve. Petitioner has very clearly stated that he is not
against the constitutional extension of the right of suffrage to the eighteenyear-olds, as a matter of fact, he has advocated or sponsored in Congress
such a proposal, and that, in truth, the herein petition is not intended by him
to prevent that the proposed amendment here involved be submitted to the
people for ratification, his only purpose in filing the petition being to comply
with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in
connection with the most laudable undertaking. Indeed, as the Court sees it,
the specific question raised in this case is limited solely and only to the point
of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment
proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subject question
implementing actions and resolution of the Convention and its officers, at this
juncture of its proceedings, when as it is a matter of common knowledge and
judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting
other parts of the existing Constitution; and, indeed, Organic Resolution No.
1 itself expressly provides, that the amendment therein proposed "shall be
without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended section
or on other portions of the entire Constitution." In other words, nothing that
the Court may say or do, in this case should be understood as reflecting, in
any degree or means the individual or collective stand of the members of the
Court on the fundamental issue of whether or not the eighteen-year-olds
should be allowed to vote, simply because that issue is not before Us now.
There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said
proposed amendment may be presented to the people for their approval or
rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm
of the youth have not blinded them to the absolute necessity, under the
fundamental principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely, their idealism,
sincerity and purity of purpose cannot permit any other line of conduct or
approach in respect of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of the pressure brought
to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in the structure and
bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of achieving
such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at
times have justifiably or unjustifiably marred the demonstrations in the

streets, plazas and campuses, the youth of the Philippines, in general, like
the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to
change the present order of things in this Republic of ours. It would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were
to allow itself in deciding this case to be carried astray by considerations
other than the imperatives of the rule of law and of the applicable provisions
of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and
vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge
that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful
change is the only alternative to a violent revolution, this Court would be the
last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling
provision, Article XV, from which the Convention itself draws life expressly
speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly
prevailing view is that only the collective judgment of its members as to what
is warranted by the present condition of things, as they see it, can limit the
extent of the constitutional innovations the Convention may propose, hence
the complete substitution of the existing constitution is not beyond the ambit
of the Convention's authority. Desirable as it may be to resolve, this grave
divergence of views, the Court does not consider this case to be properly the
one in which it should discharge its constitutional duty in such premises. The
issues raised by petitioner, even those among them in which respondents
and intervenors have joined in an apparent wish to have them squarely
passed upon by the Court do not necessarily impose upon Us the imperative
obligation to express Our views thereon. The Court considers it to be of the
utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in
the manner and form it may conceive best, and so the Court may step in to
clear up doubts as to the boundaries set down by the Constitution only when
and to the specific extent only that it would be necessary to do so to avoid a
constitutional crisis or a clearly demonstrable violation of the existing
Charter. Withal, it is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the Supreme Court only when
there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional
Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear
that the Convention came into being by a call of a joint session of Congress
pursuant to Section I of Article XV of the Constitution, already quoted earlier
in this opinion. We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must
be so, because it is plain to Us that the framers of the Constitution took care
that the process of amending the same should not be undertaken with the

same ease and facility in changing an ordinary legislation. Constitution


making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen
for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the Constitution
is of no less importance than the whole Constitution itself, and perforce must
be conceived and prepared with as much care and deliberation. From the
very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or inhibitions save
those that they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution. Generally,
the framers of the latter see to it that their handiwork is not lightly treated and
as easily mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to be designed
so as to last for some time, if not for ages, or for, at least, as long as they can
be adopted to the needs and exigencies of the people, hence, they must be
insulated against precipitate and hasty actions motivated by more or less
passing political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by
the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original
constitution, it does not lie in the delegates of any subsequent convention to
claim that they may ignore and disregard such conditions because they are
as powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree
the number and nature and the scope and extent of the amendments the
Convention may deem proper to propose. Nor does the Court propose to
pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is exclusively legislative and
as such may be exercised only by the Congress or whether the said power
can be exercised concurrently by the Convention with the Congress. In the
view the Court takes of present case, it does not perceive absolute necessity
to resolve that question, grave and important as it may be. Truth to tell, the
lack of unanimity or even of a consensus among the members of the Court in
respect to this issue creates the need for more study and deliberation, and
as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being
nigh, We will refrain from making any pronouncement or expressing Our
views on this question until a more appropriate case comes to Us. After all,
the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or
condition in Section 1 of Article XV of the Constitution which is violated by
the act of the Convention of calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1? The Court holds that there is, and it
is the condition and limitation that all the amendments to be proposed by the
same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be
submitted to a plebiscite is only the first amendment the Convention propose
We hold that the plebiscite being called for the purpose of submitting the
same for ratification of the people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts of the Convention
and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:


1. The language of the constitutional provision aforequoted is sufficiently
clear. lt says distinctly that either Congress sitting as a constituent assembly
or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that
Congress or the Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification," thus
leaving no room for doubt as to how many "elections" or plebiscites may be
held to ratify any amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the
Constitution is as serious and important an undertaking as constitution
making itself. Indeed, any amendment of the Constitution is as important as
the whole of it if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and
reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations
of the people, on the other. lt is inconceivable how a constitution worthy of
any country or people can have any part which is out of tune with its other
parts..
A constitution is the work of the people thru its drafters assembled by them
for the purpose. Once the original constitution is approved, the part that the
people play in its amendment becomes harder, for when a whole constitution
is submitted to them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the
very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of
all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed
amendment in relation to the whole existing constitution and or any of its
parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding
already from the fact that under Section 3 of the questioned resolution, it is
evident that no fixed frame of reference is provided the voter, as to what
finally will be concomitant qualifications that will be required by the final draft
of the constitution to be formulated by the Convention of a voter to be able to
enjoy the right of suffrage, there are other considerations which make it
impossible to vote intelligently on the proposed amendment, although it may
already be observed that under Section 3, if a voter would favor the
reduction of the voting age to eighteen under conditions he feels are needed
under the circumstances, and he does not see those conditions in the ballot
nor is there any possible indication whether they will ever be or not, because
Congress has reserved those for future action, what kind of judgment can he
render on the proposal?
But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the Convention will
be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all.

Who can say whether or not later on the Convention may decide to provide
for varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the
Convention is precisely on the verge of introducing substantial changes, if
not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the reduction of the
voting age upon the different institutions which the Convention may establish
and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole.
In the context of the present state of things, where the Convention has hardly
started considering the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people any single proposal
or a few of them cannot comply with this requirement. We are of the opinion
that the present Constitution does not contemplate in Section 1 of Article XV
a plebiscite or "election" wherein the people are in the dark as to frame of
reference they can base their judgment on. We reject the rationalization that
the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment
on the merits of the proposal to allow these eighteen years old to vote. But
like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being complied
with. In the best light God has given Us, we are of the conviction that in
providing for the questioned plebiscite before it has finished, and separately
from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Section 1, Article
XV that there should only be one "election" or plebiscite for the ratification of
all the amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be
submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic


Resolution No. 1 of the Constitutional Convention of 1971 and the
implementing acts and resolutions of the Convention, insofar as they provide
for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents Comelec, Disbursing Officer,
Chief Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic
resolution. In view of the peculiar circumstances of this case, the Court
declares this decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
Separate Opinions

MAKALINTAL, J., reserves his vote


I reserve my vote. The resolution in question is voted down by a sufficient
majority of the Court on just one ground, which to be sure achieves the result
from the legal and constitutional viewpoint. I entertain grave doubts as to the
validity of the premises postulated and conclusions reached in support of the
dispositive portion of the decision. However, considering the urgent nature of
this case, the lack of time to set down at length my opinion on the particular
issue upon which the decision is made to rest, and the fact that a dissent on
the said issue would necessarily be inconclusive unless the other issues
raised in the petition are also considered and ruled upon a task that would
be premature and pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual
inimitable, forthright and vigorous style. Like him, we do not express our
individual views on the wisdom of the proposed constitutional amendment,
which is not in issue here because it is a matter that properly and exclusively
addresses itself to the collective judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous because of
the reach of the basic constitutional infirmity discussed in extenso in the
main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people for
ratification, we are nonetheless persuaded that (1) that there is no proper
submissionof title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the
forthcoming election is not the proper election envisioned by the same
provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections 1 and Philippine Constitution Association vs. Commission on
Elections, 2 expounded his view, with which we essentially agree, on the
minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment. This is
what he said:

... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. By
this, we are not to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers
that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other extraneous issues,
such as the choice of local and national officials. The framers of the
Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only
meant that any amendments thereto should be debated, considered
and voted upon an election wherein the people could devote undivided
attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do you or do
you not want the 18-year old to be allowed to vote?," would seem to be
uncomplicated and innocuous. But it is one of life's verities that things which
appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the


average voter. Why should the voting age be lowered at all, in the first place?
Why should the new voting age be precisely 18 years, and not 19 or 20? And
why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year
old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be
relied upon to vote with judiciousness when the 21-year old, in the past
elections, has not performed so well? If the proposed amendment is voted
down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment
ratified at this particular time? Do some of the members of the Convention
have future political plans which they want to begin to subserve by the
approval this year of this amendment? If this amendment is approved, does
it thereby mean that the 18-year old should now also shoulder the moral and
legal responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of contractual
consent be reduced to 18 years? If I vote against this amendment, will I not
be unfair to my own child who will be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a
domain (of searching questions) the bounds of which are not immediately
ascertainable. Surely, many more questions can be added to the already
long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by
election time will not be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have been
and are effectively distracted from a full and dispassionate consideration of
the merits and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot thus weigh
in tranquility the need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of
the words, "at an election at which the amendments are submitted to the
people for their ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to the
rule of law couched in eloquent language, that commands assent. As the
Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must
bow to its supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the Constitution, my
conformity does not extend as far as the acceptance of the conclusion
reached. The question presented is indeed novel, not being controlled by
constitutional prescription, definite and certain. Under the circumstances,
with the express recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I cannot discern any
objection to the validity of its action there being no legal impediment that
would call for its nullification. Such an approach all the more commends itself
to me considering that what was sought to be done is to refer the matter to
the people in whom, according to our Constitution, sovereignty resides. It is
in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be


resolved by reliance on, implicit in the petition and the answer of intervenors,
such concepts as legislative control of the constitutional convention referred
to by petitioner on the one hand or, on the other, the theory of conventional
sovereignty favored by intervenors. It is gratifying to note that during the oral
argument of petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as should be
the case, expressly avowing the primacy of the Constitution, the applicable
provision of which as interpreted by this Court, should be controlling on both
Congress and the Convention. It cannot be denied though that in at least one
American state, that is Pennsylvania, there were decisions announcing the
doctrine that the powers to be exercised by a constitutional convention are
dependent on a legislative grant, in the absence of any authority conferred
directly by the fundamental law. The result is a convention that is subordinate
to the lawmaking body. Its field of competence is circumscribed. It has to look
to the latter for the delimitation of its permissible scope of activity. It is thus
made subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its
holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in character.
The Constitution is quite explicit that it is to the people, and to the people
alone, in whom sovereignty resides. 2 Such a prerogative is therefore
withheld from a convention. It is an agency entrusted with the responsibility
of high import and significance it is true; it is denied unlimited legal
competence though. That is what sovereignty connotes. It has to yield to the
superior force of the Constitution. There can then be no basis for the
exaggerated pretension that it is an alter ego of the people. It is to be
admitted that there are some American state decisions, the most notable of
which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892,
that yield a different conclusion. The doctrine therein announced cannot bind
us. Our Constitution makes clear that the power of a constitutional
convention is not sovereign. It is appropriately termed constituent, limited as
it is to the purpose of drafting a constitution or proposing revision or
amendments to one in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar as the
constituent power of proposing amendments to the Constitution is
concerned, a constitutional convention enjoys a wide sphere of autonomy
consistently with the Constitution which can be the only source of valid
restriction on its competence. It is true it is to the legislative body that the call
to a convention must proceed, but once convened, it cannot in any wise be
interfered with, much less controlled by Congress. A contrary conclusion
would impair its usefulness for the delicate, and paramount task assigned to
it. A convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of powers is
supreme within its field and has exclusive cognizance of matters properly
subject to its jurisdiction. A succinct statement of the appropriate principle
that should govern the relationship between a constitutional convention and
a legislative body under American law is that found in Orfield's work. Thus:
"The earliest view seems to have been that a convention was absolute. The
convention was sovereign and subject to no restraint. On the other hand,
Jameson, whose views have been most frequently cited in decisions, viewed
a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view
is that urged by Dodd that a convention, though not sovereign, is a body
independent of the legislature; it is bound by the existing constitution, but not

by the acts of the legislature, as to the extent of its constituent power. This
view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on the
power the Constitutional, Convention must find its source. I turn to its Article
XV. It reads: "The Congress in joint session assembled, by a vote of three
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for
their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are
two steps, proposal and thereafter ratification. Thus as to the former, two
constituent bodies are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention that may be called
into being. Once assembled, a constitutional convention, like the Congress
of the Philippines, possesses in all its plenitude the constituent power.
Inasmuch as Congress may determine what amendments it would have the
people ratify and thereafter take all the steps necessary so that the approval
or disapproval of the electorate may be obtained, the convention likewise, to
my mind, should be deemed possessed of all the necessary authority to
assure that whatever amendments it seeks to introduce would be submitted
to the people at an election called for that purpose. It would appear to me
that to view the convention as being denied a prerogative which is not
withheld from Congress as a constituent body would be to place it in an
inferior category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals under the
fundamental law. A power granted to one should not be denied the other. No
justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the legislative
and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such
likelihood is remote, but if such a risk even if minimal could be avoided, it
should be, unless the compelling force of an applicable constitutional
provision requires otherwise. Considering that a constitutional convention is
not precluded from imposing additional restrictions on the powers of either
the executive or legislative branches, or, for that matter, the judiciary, it would
appear to be the better policy to interpret Article XV in such a way that would
not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to
my mind would collide with a reasonable interpretation of Article XV. It
certainly is one way by which freed from pernicious abstractions, it would be
easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably
brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the
challenged resolution was well within the power of the convention. That
would be to brush aside the web of unreality spun from a too-restrictive
mode of appraising the legitimate scope of its competence. That would be,
for me, to give added vigor and life to the conferment of authority vested in it,
attended by such grave and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article


XV providing that such amendment shall be valid when submitted and
thereafter approved by the majority of the votes cast by the people at an
election is a bar to the proposed submission. It is the conclusion arrived at by
my brethren that there is to be only one election and that therefore the
petition must be sustained as only when the convention has finished its work
should all amendments proposed be submitted for ratification. That is not for
me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not
decisive. No undue reliance should be accorded rules of grammar; they do
not exert a compelling force in constitutional interpretation. Meaning is to be
sought not from specific language in the singular but from the mosaic of
significance derived from the total context. It could be, if it were not thus, selfdefeating. Such a mode of construction does not commend itself. The words
used in the Constitution are not inert; they derive vitality from the obvious
purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I do
not find such contention convincing. The fact that the Constitutional
Convention did seek to consult the wishes of the people by the proposed
submission of a tentative amendatory provision is an argument for its validity.
It might be said of course that until impressed with finality, an amendment is
not to be passed upon by the electorate. There is plausibility in such a view.
A literal reading of the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I deduce the
inference that there is no repugnancy to the fundamental law when the
Constitutional Convention ascertains the popular will. In that sense, the

Constitution, to follow the phraseology of Thomas Reed Powel, is not silently


silent but silently vocal. What I deem the more important consideration is that
while a public official, as an agent, has to locate his source of authority in
either Constitution or statute, the people, as the principal, can only be limited
in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and the
people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its
authority, an action to restrain or prohibit respondent Commission on
Elections from conducting the plebiscite does not lie. It should not be lost
sight of that the Commission on Elections in thus being charged with such a
duty does not act in its capacity as the constitutional agency to take charge
of all laws relative to the conduct of election. That is a purely executive
function vested in it under Article X of the Constitution. 5 It is not precluded
from assisting the Constitutional Convention if pursuant to its competence to
amend the fundamental law it seeks, as in this case, to submit a proposal,
even if admittedly tentative, to the electorate to ascertain its verdict. At any
rate, it may be implied that under the 1971 Constitutional Convention Act, it
is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions. 6
The aforesaid considerations, such as they are, but which for me have a
force that I mind myself unable to overcome, leave me no alternative but to
dissent from my brethren, with due acknowledgement of course that from
their basic premises, the conclusion arrived at by them cannot be
characterized as in any wise bereft of a persuasive quality of a high order.

EN BANC

PROPOSED AMENDMENTS:

G.R. No. L-44640 October 12, 1976

1. There shall be, in lieu of the interim National Assembly, an interim


Batasang Pambansa. Members of the interim Batasang Pambansa which
shall not be more than 120, unless otherwise provided by law, shall include
the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen
years of age elected by their respective sectors, and those chosen by the
incumbent President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in accordance with
the number of their respective inhabitants and on the basis of a uniform and
progressive ratio while the sectors shall be determined by law. The number
of representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,


vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.

2. The interim Batasang Pambansa shall have the same powers and its
members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise
the power provided in Article VIII, Section 14(l) of the Constitution.

The capital question raised in these prohibition suits with preliminary


injunction relates to the power of the incumbent President of the Philippines
to propose amendments to the present Constitution in the absence of the
interim National Assembly which has not been convened.

3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been
elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and the
powers vested in the President and the Prime Minister under this
Constitution.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential


Decree No. 991 calling for a national referendum on October 16, 1976 for the
Citizens Assemblies ("barangays") to resolve, among other things, the issues
of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile
exercise by the President of his present powers.1

4. The President (Prime Minister) and his Cabinet shall exercise all the
powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime
Minister or as many Deputy Prime Ministers as he may deem necessary.

Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendumplebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2

5. The incumbent President shall continue to exercise legislative powers until


martial law shall have been lifted.

MARTIN, J,:

On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its
"whereas" clauses that the people's continued opposition to the convening of
the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body,
which will be submitted directly to the people in the referendum-plebiscite of
October 16.
The questions ask, to wit:

6. Whenever in the judgment of the President (Prime Minister), there exists a


grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of
the land.
7. The barangays and sanggunians shall continue as presently constituted
but their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems
it necessary to ascertain the will of the people regarding any important
matter whether of national or local interest.

(1) Do you want martial law to be continued?

8. All provisions of this Constitution not inconsistent with any of these


amendments shall continue in full force and effect.

(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second
question, the referendum shall have the effect of a plebiscite within the
contemplation of Section 2 of Article XVI of the Constitution.

9. These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by I majority of the votes cast in
the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,
father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding and
conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No.
1031, insofar as it directs the Commission on Elections to supervise, control,
hold, and conduct the Referendum-Plebiscite scheduled on October 16,
1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition period,
only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a
delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition
period is expressly conferred on the interim National Assembly under Section
16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President cannot act as a constituent assembly
to propose amendments to the Constitution; a referendum-plebiscite is
untenable under the Constitutions of 1935 and 1973; the submission of the
proposed amendments in such a short period of time for deliberation renders
the plebiscite a nullity; to lift Martial Law, the President need not consult the
people via referendum; and allowing 15-.year olds to vote would amount to
an amendment of the Constitution, which confines the right of suffrage to
those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo
C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the
constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is
now an ancient rule that the valid source of a stature Presidential Decrees
are of such nature-may be contested by one who will sustain a direct injuries
as a in result of its enforcement. At the instance of taxpayers, laws providing
for the disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds.
4 The breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5 Presidential
Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its

provisions. 6 The interest of the aforenamed petitioners as taxpayers in the


lawful expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's suits, this Court enjoys that
open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the authority
upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political
one, lying outside the domain of judicial review. We disagree. The amending
process both as to proposal and ratification, raises a judicial question. 8 This
is especially true in cases where the power of the Presidency to initiate the of
normally exercised by the legislature, is seriously doubted. Under the terms
of the 1973 Constitution, the power to propose amendments o the
constitution resides in the interim National Assembly in the period of
transition (See. 15, Transitory provisions). After that period, and the regular
National Assembly in its active session, the power to propose amendments
becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been
followed. Rather than calling the National Assembly to constitute itself into a
constituent assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential
Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments,
written in lambent words in the very Constitution sought to be amended,
raises a contestable issue. The implementing Presidential Decree Nos. 991,
1031, and 1033, which commonly purport to have the force and effect of
legislation are assailed as invalid, thus the issue of the validity of said
Decrees is plainly a justiciable one, within the competence of this Court to
pass upon. Section 2 (2), Article X of the new Constitution provides: "All
cases involving the constitutionality of a treaty, executive agreement, or law
may shall be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared unconstitutional without
the concurrence of at least ten Members. ..." The Supreme Court has the last
word in the construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the controversy refers to the legality or
validity of the contested act, that matter is definitely justiciable or nonpolitical. What is in the heels of the Court is not the wisdom of the act of the
incumbent President in proposing amendments to the Constitution, but his
constitutional authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on the
President that power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how
it may be amended, the judiciary as the interpreter of that Constitution, can
declare whether the procedure followed or the authority assumed was valid
or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of the President's authority to propose
amendments and the regularity of the procedure adopted for submission of
the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by
their sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in 1973?
Whether, therefore, the constitutional provision has been followed or not is
the proper subject of inquiry, not by the people themselves of course who
exercise no power of judicial but by the Supreme Court in whom the people
themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a posterior i.e.,
before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political impression.
In the Plebiscite Cases, 11 the contention of the Solicitor General that the
issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino
people (on January 15, 1973) for ratification or rejection the Constitution of
the Republic of the Philippines proposed by the 1971 Constitutional
Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in
nature. Subsequently in the Ratification Cases 12involving the issue of
whether or not the validity of Presidential Proclamation No. 1102. announcing
the Ratification by the Filipino people of the constitution proposed by the
1971 Constitutional Convention," partakes of the nature of a political
question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion,
expressing the majority view, said, Thus, in the aforementioned plebiscite
cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and We unanimously declared that
the issue was a justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases, questioning Our
authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas
corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to
the former case, which view We, accordingly, abandoned and refused to
apply. For the same reason, We did not apply and expressly modified, in
Gonzales vs. Commission on Elections, the political-question theory adopted
in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively
refused by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same as those
given in support on the political question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court
and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II

SECTION 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall take
effect when ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normally,
the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of
the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority
vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the
National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion as to when
he shall initially convene the interim National Assembly. Speaking for the
majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time
when he shall initially convene the interim National Assembly, consistent with
the prevailing conditions of peace and order in the country." Concurring,
Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on
the Transitory Provisions, they were aware of the fact that under the same,
the incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be
convened 'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National Assembly
soon found support from the people themselves. In the plebiscite of January
10-15, 1973, at which the ratification of the 1973 Constitution was submitted,
the people voted against the convening of the interim National Assembly. In
the referendum of July 24, 1973, the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the
proposed question of whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed automatically
members of the I interim National Assembly, were against its inclusion since
in that referendum of January, 1973, the people had already resolved against
it.

The amending process as laid out


in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of threefourths of all its Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members,
submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall
be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not later than three months after the approval of
such amendment or revision.
In the present period of transition, the interim National Assembly instituted in
the Transitory Provisions is conferred with that amending power. Section 15
of the Transitory Provisions reads:

3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual
function of lawmaking. lt is not legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar power bestowed upon it by the
fundamental charter itself. In the Philippines, that power is provided for in
Article XVI of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly). While
ordinarily it is the business of the legislating body to legislate for the nation
by virtue of constitutional conferment amending of the Constitution is not
legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative
character'. The distinction, however, is one of policy, not of law. 17 Such being
the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove
applies only to the ordinary cases of legislation. The President has nothing to
do with proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the Philippines
is a crisis government today are more or less concentrated in the

President. 20 According to Rossiter, "(t)he concentration of government power


in a democracy faced by an emergency is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. In most
free states it has generally been regarded as imperative that the total power
of the government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be destructive
of constitutionalism if any one branch should exercise any two or more types
of power, and certainly a total disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In
normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may
form an insurmountable barrier to a decisive emergency action in behalf of
the state and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and
action, even if this means the temporary union of executive, legislative, and
judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis. This is evident in a comparison
of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be
to confidently expected. As a result, cabinet is more easily established and
more trustworthy than presidential dictatorship. The power of the state in
crisis must not only be concentrated and expanded; it must also be freed
from the normal system of constitutional and legal limitations. 21 John Locke,
on the other hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale
behind such broad emergency powers of the Executive is the release of the
government from "the paralysis of constitutional restrains" so that the crisis
may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now
a conceded valid at. That sun clear authority of the President is saddled on
Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise
his powers and prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister,
who shall then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of
the land, and shall remain valid, binding, and effective even after lifting
of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President
the discretion when to call the interim National Assembly to session, and
knowing that it may not be convened soon, would create a vacuum in the
exercise of legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire governmental
machinery."24 Paraphrasing Rossiter, this is an extremely important factor in
any constitutional dictatorship which extends over a period of time. The
separation of executive and legislature ordained in the Constitution presents
a distinct obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady increase in the
magnitude and complexity of the problems the President has been called
upon by the Filipino people to solve in their behalf, which involve rebellion,

subversion, secession, recession, inflation, and economic crisis-a crisis


greater than war. In short, while conventional constitutional law just confines
the President's power as Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly shown that in meeting the same,
indefinite power should be attributed to tile President to take emergency
measures 25
IV
Authority of the incumbent President t to propose amendments to the
Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned
to the interim National Assembly during the transition period. However, the
initial convening of that Assembly is a matter fully addressed to the judgment
of the incumbent President. And, in the exercise of that judgment, the
President opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National
Assembly upon special call by the President (See. 15 of the Transitory
Provisions). Again, harking to the dictates of the sovereign will, the President
decided not to call the interim National Assembly. Would it then be within the
bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that
body's legislative functions? The answer is yes. If the President has been
legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that
Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say
that the President has converted his office into a constituent assembly of that
nature normally constituted by the legislature. Rather, with the interim
National Assembly not convened and only the Presidency and the Supreme
Court in operation, the urges of absolute necessity render it imperative upon
the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality
and decline to undertake the amending process would leave the
governmental machineries at a stalemate or create in the powers of the
State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous
times, that Presidential initiative to reduce into concrete forms the constant
voices of the people reigns supreme. After all, constituent assemblies or
constitutional conventions, like the President now, are mere agents of the
people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had already
rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang
Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72
provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments
to the Constitution .27 The national organizations of Sangguniang Bayan
presently proposed to settle the issues of martial law, the interim Assembly,
its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on
October 16 . 28 The Batasang Bayan (legislative council) created under
Presidential Decree 995 of September 10, 1976, composed of 19 cabinet
members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a
plebiscite on October 16, the previously quoted proposed amendments to
the Constitution, including the issue of martial law .29 Similarly, the

"barangays" and the "sanggunians" endorsed to the President the


submission of the proposed amendments to the people on October 16. All
the foregoing led the President to initiate the proposal of amendments to the
Constitution and the subsequent issuance of Presidential Decree No, 1033
on September 22, 1976 submitting the questions (proposed amendments) to
the people in the National Referendum-Plebiscite on October 16.
V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is
easily seen. In the Philippines, a republican and unitary state, sovereignty
"resides in the people and all government authority emanates from
them.30 In its fourth meaning, Savigny would treat people as "that particular
organized assembly of individuals in which, according to the Constitution, the
highest power exists." 31 This is the concept of popular sovereignty. It means
that the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their
convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution
"is an experiment, as all life is all experiment." 34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation should
be permitted to permanently fetter all future generations." A constitution is
based, therefore, upon a self-limiting decision of the people when they adopt
it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single
man. Rather, they are the collated thoughts of the sovereign will reduced
only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed
amendments and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves implemented only by the
authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the participation of the 15year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do
you want martial law to be continued? - is a referendum question, wherein
the 15-year olds may participate. This was prompted by the desire of the
Government to reach the larger mas of the people so that their true pulse
may be felt to guide the President in pursuing his program for a New Order.
For the succeeding question on the proposed amendments, only those of
voting age of 18 years may participate. This is the plebiscite aspect, as
contemplated in Section 2, Article XVI of the new Constitution. 36 On this
second question, it would only be the votes of those 18 years old and above
which will have valid bearing on the results. The fact that the voting populace
are simultaneously asked to answer the referendum question and the
plebiscite question does not infirm the referendum-plebiscite. There is
nothing objectionable in consulting the people on a given issue, which is of
current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every
barangay center, one containing the ballots of voters fifteen years of age and
under eighteen, and another containing the ballots of voters eighteen years
of age and above. 37 The ballots in the ballot box for voters fifteen years of
age and under eighteen shall be counted ahead of the ballots of voters
eighteen years and above contained in another ballot box. And, the results of
the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A


"referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people foe
their consideration, the calling of which is derived from or within the totality of
the executive power of the President. 39 It is participated in by all citizens from
the age of fifteen, regardless of whether or not they are illiterates, feebleminded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the
constituent act of those "citizens of the Philippines not otherwise disqualified
by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to
vote for at least six months preceding the election Literacy, property or any
other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification
aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial
law stultifies in main the freedom to dissent. That speaks of a bygone fear.
The martial law regime which, in the observation of Justice Fernando, 41 is
impressed with a mild character recorded no State imposition for a muffled
voice. To be sure, there are restraints of the individual liberty, but on certain
grounds no total suppression of that liberty is aimed at. The for the
referendum-plebiscite on October 16 recognizes all the embracing freedoms
of expression and assembly The President himself had announced that he
would not countenance any suppression of dissenting views on the issues,
as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and clear their adverse
views on the proposed amendments and even (in the valid ratification of the
1973 Constitution, which is already a settled matter. 43 Even government
employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44
VIII
Time for deliberation\ is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not
too short for free debates or discussions on the referendum-plebiscite
issues. The questions are not new. They are the issues of the day. The
people have been living with them since the proclamation of martial law four
years ago. The referendums of 1973 and 1975 carried the same issue of
martial law. That notwithstanding, the contested brief period for discussion is
not without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the
old Society, 15 days were allotted for the publication in three consecutive
issues of the Official Gazette of the women's suffrage amendment to the
Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492).
For the 1940 Constitutional amendments providing for the bicameral
Congress, the reelection of the President and Vice President, and the
creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com Act No. 517). And
the Parity Amendment, an involved constitutional amendment affecting the
economy as well as the independence of the Republic was publicized in
three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision
as to the specific date when the plebiscite shall be held, but simply states
that it "shall be held not later than three months after the approval of such
amendment or revision." In Coleman v. Miller, 46 the United States Supreme
court held that this matter of submission involves "an appraisal of a great

variety of relevant conditions, political, social and economic," which "are


essentially political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may act. This
is because proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural inference being that they
are not to be widely separated in time; second, it is only when there is
deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered
and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In
the words of Jameson, "(a)n alteration of the Constitution proposed today
has relation to the sentiment and the felt needs of today, and that, if not
ratified early while that sentiment may fairly be supposed to exist. it ought to
be regarded as waived, and not again to be voted upon, unless a second
time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991,
1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the
time frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia
Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the
view that the question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the
question is political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the
affirmative, while Associate Justices Teehankee and Munoz Palma voted in
the negative. Associate Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents
from the proposition that there is concentration of powers in the Executive
during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for ratification
by the people. Associate Justices Barredo and Makasiar expressed the
hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political
and therefore beyond the competence and cognizance of this Court,
Associate Justice Fernando adheres to his concurrence in the opinion of
Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that
prescinding from the President's lack of authority to exercise the constituent
power to propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar.

For reasons as expressed in his separate opinion, Associate Justice


Fernando concurs in the result. Associate Justices Teehankee and Munoz
Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are
hereby dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the
grounds advanced be the Solicitor General in opposition thereto, as well as
the arguments adduced by the counsels of the parties at the hearing had on
October 7 and 8, 1976, three vital issues readily project themselves as the
centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991,
1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess
power to propose amendments to the Constitution as well as set up the
required machineries and prescribe the procedure for the ratification of his
proposals by the people?
(3) Is the submission to the people of the proposed amendments within the
time frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically on the
matter of proposals to amend the Constitution, this Court, in Mabanag vs.
Lopez Vito (78 Phil. 1), inceptively announced the dictum thatProposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charges by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive.
If on grounds of expediency scrupulous attention of the judiciary be
needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itselfThe force of this precedent has been weakened, however, by Suanes vs.
Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581,
March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957),
and Macias vs. Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a
constituent assembly-violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and, to the extent this view
may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the

latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point." (Gonzales vs. Commission on Elections, et al, L28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have
been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l,
1973, 50 SCRA 30), six members of the Court concurred in the view that the
question of whether the 1973 Constitution was ratified in accordance with the
provisions of Article XV (Amendments) of the 1935 Constitution is inherently
and essentially justiciable.

"constitution of sovereignty" which comprises the provision or provisions on


the modes in accordance with which formal changes in the fundamental law
may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco


(103 Phil. 1051)-

Unfortunately, however, during the present transition period of our political


development, no express provision is extant in the Constitution regarding the
agency or agent by whom and the procedure by which amendments thereto
may be proposed and ratified fact overlooked by those who challenge the
validity of the presidential acts in the premises. This is so because there are
at least two distinctly in the transition from the old system of government
under the 1935 Constitution to the new one established by the 1973
Constitution.

... the term 'political question' connotes, in legal parlance, what it


means in ordinarily parlance, namely, a question of policy in matters
concerning the government of a State, as a body politic. In other words,
in the language of Corpus Juris Secundum (supra), it refers to 'those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.'

The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the National Assembly is convened by the
incumbent President and the interim President and the interim Prime Minister
are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as
an obvious fact of the nation's political life was recognized by the Court in
Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62
SCRA 275), when it rejected the claim that, under the 1973 Constitution, the
President was in duty bound to convene the interim National Assembly soon
after the Constitution took effect.

Accordingly, when the grant of power is qualified, conditional or subject to


limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations - particularly those prescribed or imposed by the Constitution would be set at naught." (Javellana vs. Executive Secretary, supra).

The second stage embraces the period from the date the interim National
Assembly is convened to the date the Government described in Articles VII
to IX of the Constitution is inaugurated, following the election of the members
of the regular National Assembly (Article XVII, Section 1) and the election of
the regular President and Prime Minister,. This is as it should be because it is
recognized that the President has been accorded the discretion to determine
when he shall initially convene the interim National Assembly, and his
decision to defer the convocation thereof has found overwhelming support by
the sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.

So it is in the situation here presented. The basic issue is the constitutional


validity of the presidential acts of proposing amendments to the Constitution
and of calling a referendum-plebiscite for the ratification of the proposals
made. Evidently, the question does not concern itself with the wisdom of the
exercise of the authority claimed or of the specific amendments proposed.
Instead the inquiry vel non is focused solely on the existence of the said
power in the President - a question purely of legality determinable thru
interpretation and construction of the letter and spirit of the Constitution by
the Court as the final arbiter in the delineation of constitutional boundaries
and the allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented,
especially in these parlous years, would be to abdicate its constitutional
powers, shirk its constitutional responsibility, and deny the people their
ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is
well within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented
both here and elsewhere. Its solution, I believe, can be found and unraveled
only by a critical assessment of the existing legal order in the light of the
prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there
be any such prescription for the amendatory process as invariable there is
because one of the essential parts of a Constitution is the so-called

Against this factual backdrop, it is readily discernible that neither of the two
sets of provisions embodied in the Constitution on the amendatory process
applied during the said first stage. Thus, Section 15, Article XVII (Transitory
Provisions) provides"Sec. 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim
Prime Minister" limits the application thereof to the second stage of the
transition period, i.e.,., after the interim? National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to witSECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of threefourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its
Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of ceiling such a convention to the
electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be


valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision.
unequivocally contemplate amendments after the regular Government shall
have become fully operative, referring as they do to the National Assembly
which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the
aforesaid first stage and, if in the affirmative, by whom and in what manner
such amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not
being a mere declaration of the traditions of a nation but more the
embodiment of a people's hopes and aspirations, its strictures are not
unalterable. They are, instead, dynamic precepts intended to keep in stride
with and attuned to the living social organism they seek to fashion and
govern. If it is conceded that "the political or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the third," then a
Constitution must be able to adjust to the changing needs and demands of
society so that the latter may survive, progress and endure. On these
verities, there can be no debate.
During the first stage of the transition period in which the Government is at
present - which is understandably the most critical - the need for change may
be most pressing and imperative, and to disavow the existence of the right to
amend the Constitution would be sheer political heresy. Such view would
deny the people a mechanism for effecting peaceful change, and belie the
organic conception of the Constitution by depriving it of its means of growth.
Such a result obviously could not have been intended by the framers of the
fundamental law.
It seems, however, that the happenstance that the first period would come to
pass before the convocation of the interim National Assembly was not
anticipated, hence, the omission of an express mandate to govern the said
situation in so far as amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign power of
the people to amend the fundamental charter that governs their lives and
their future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was, instead, to provide a simpler and
more expeditious mode of amending the Constitution during the transition
period. For, while under Article XVI thereof, proposals for amendment may
be made directly by the regular National Assembly by a vote of at least threefourths of all its members, under Section 15 of Article XVII, a bare majority
vote of all the members of the National Assembly would suffice for the
purpose. The relaxation and the disparity in the vote requirement are
revealing. The can only signify a recognition of the need to facilitate the
adoption of amendments during the second stage of the transition period so
that the interim National Assembly will be able, in a manner of speaking, to
iron out the kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the establishment of
the regular Government. In this contest, therefore, it is inutile speculation to
assume that the Constitution was intended to render impotent or ar the
effectuation of needful change at an even more critical period - the first
stage. With greater reason, therefore, must the right and power to amend the
Constitution during the first stage of te transition period be upheld, albeit
within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage
only by convening the interim National Assembly. That is to say and require
that he said stage must first be brought to an end before any amendment
may be proposed and ratified. Settled jurisprudence does not square with

such a proposition. As aptly noted in Aquino vs. Commission on Elections, et


al., supra, the framers of the Constitution set no deadline for the convening
of the interim National Assembly because they could not have foreseen how
long the crises which impelled the proclamation and justify the continued
state of martial law would last. Indeed, the framers committed to the sound
judgment is not subject to judicial review, save possibly to determine whether
arbitrariness has infected such exercise; absent such a taint, the matter is
solely in the keeping of the President. To thus content that only by convening
the interim National Assembly may the Constitution be amended at this time
would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion.
Furthermore, to sustain such a contention would not only negate the
mandate so resoundingly expressed by the people in two national referenda
against the immediate convening of the interim National Assembly, but as
well deride their overwhelming approval of the manner in which the President
has exercised the legislative power to issue proclamations, orders, decrees
and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself for
resolution is: By whom, then, may proposals for the amendment of the
Constitution be made and in what manner may said proposals be ratified by
the people?
It is conventional wisdom that, conceptually, the constituent power is not to
be confuse with legislative power in general because the prerogative to
propose amendments to the Constitution is not in any sense embraced
within the ambit of ordinary law-making. Hence, there is much to recommend
the proposition that, in default of an express grant thereof, the legislature traditionally the delegated repository thereof - may not claim it under a
general grant of legislative authority. In the same vein, neither would it be
altogether unassailable to say that because by constitutional tradition and
express allocation the constituent power under the Constitution is locate in
the law-making agency and at this stage of the transition period the lawmaking authority is firmly recognized as being lodged in the President, the
said constituent power should now logically be in the hands of te President
who may thus exercise it in place of the interim National Assembly. Instead,,
as pointed out in Gonzales vs. Commission on Elections, et al., supra, the
power to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours - t o make, and, hence,
to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either
directly by themselves or through their chosen delegate, can wield. Since it
has been shown that the people, inadvertently or otherwise, have not
delegated that power to inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis
to normalcy, it follows of necessity that the same remains with them for them
to exercise in the manner they see fit and through the agency they choose.
And, even if it were conceded that - as it is reputedly the rule in some
jurisdictions - a delegation of the constituent authority amounts to a complete
divestiture from the people of the power delegated which they may not
thereafter unilaterally reclaim from the delegate, there would be no violence
donde to such rule, assuming it to be applicable here, inasmuch as that
power, under the environmental circumstance adverted to, has not been
delegated to anyone in the first place. The constituent power during the first
stage of the transition period belongs to and remains with the people, and
accordingly may be exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment
in the country proves revelatory. The people, shocked and revolted by the
"obvious immorality" of the unabashed manner by which the delegates to the
Constitutional Convention virtually legislated themselves into office as ipso
facto members of the interim National Assembly by the mere fiat of voting for
the transitory provisions of the Constitution. and the stark reality that the

unwieldy political monstrosity that the interim Assembly portended to be


would have proven to be a veritable drain on the meager financial resources
of a nation struggling for survival, have unequivocally put their foot down, as
it were, on the convocation thereof. But this patently salutary decision of the
people proved to be double-edged. It likewise bound the political machinery
of the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with the
ensuing dilemma, the people understandably agitated for a solution. Through
consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for
the hastening of the return to constitutional normalcy quickly evolved into an
overwhelming sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe will be an
appropriate agency to eventually take over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment,
and to translate its constraints into concrete action, the Pambansang
Katipunan ng Barangay, the Pambansang Katipunan ng mga Kabataang
Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay,
the Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the
Batasang Bayan, to a man and as one voice, have come forward with
definitive proposals for the amendment of the Constitution, and, choosing the
President the only political arm of the State at this time through which that
decision could be implemented and the end in view attained as their
spokesman, proposed the amendments under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for their ratification in the forthcoming
referendum-plebiscite are factually not of the President; they are directly
those of the people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said proposals in
Presidential Decree No. 1033. It being conceded in all quarters that
sovereignty resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been delegated by them
to any instrumentality of the Government during the present stage of the
transition period of our political development, the conclusion is ineluctable
that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as being ultra vires. Accordingly, without venturing to
rule on whether or not the President is vested with constituent power as it
does not appear necessary to do so in the premises the proposals here
challenged, being acts of the sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not only
because the President, in exercising said authority has acted as a mere alter
ego of the people who made the proposals, but likewise because the said
authority is legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the standpoint
of time. The thesis cannot be disputed that a fair submission presupposes an
adequate time lapse to enable the people to be sufficiently enlightened on
the merits or demerits of the amendments presented for their ratification or
rejection. However, circumstances there are which unmistakably
demonstrated that the is met. Even if the proposal appear to have been
formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that
for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence,
unlike proposals emanating from a legislative body, the same cannot but be
said to have been mulled over, pondered upon, debated, discussed and
sufficiently understood by the great masses of the nation long before they
ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not
so distant past when the 1973 Constitution was submitted to the people for
ratification, an all-out campaign, in which all the delegates of the
Constitutional Convention reportedly participated, was launched to acquaint
the people with the ramifications and working of the new system of
government sought to be inaugurated thereunder. It may thus well be
assumed that the people in general have since acquired, in the least, a
working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the
interim National assembly with another legislative arm for the Government
during the transition period until the regular National Assembly shall have
been constituted do not appear to be of such complexity as to require
considerable time to be brought home to the full understanding of the people.
And, in fact, the massive and wide-ranging informational and educational
campaign to this end has been and still is in full swing, with all the media the
barangay, the civic and sectoral groups, and even the religious all over the
land in acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote
could very well mean an understanding of the proposals which they reject;
while an affirmative vote could equally be indicative Of such understanding
and/or an abiding credence in the fidelity with which the President has kept
the trust they have confided to him as President and administrator of martial
rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass
judgment upon is posed. Accordingly, I vote for the outright dismissal of the
three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in Javellana
v. Executive Secretary and followed successively in three crucial decisions,
Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission, 5 manifest to the same degree the delicate and
awesome character of the function of judicial review. While previous rulings
supply guidance and enlightenment, care is to be taken to avoid doctrinaire
rigidity unmindful of altered circumstances and the urgencies of the times. It
is inappropriate to resolve the complex problems of a critical period without
full awareness of the consequences that flow from whatever decision is
reached. Jural norms must be read in the context of social facts, There is
need therefore of adjusting inherited principles to new needs. For law, much
more so constitutional law, is simultaneously a reflection of and a force in the
society that it controls. No quality then can be more desirable in
constitutional adjudication than that intellectual and imaginative insight which
goes into the heart of the matter. The judiciary must survey things as they
are in the light of what they must become It must inquire into the specific
problem posed not only in terms of the teaching of the past but also of the
emerging political and legal theory, especially so under a leadership notable
for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind
through that this Court must be conscious of the risk inherent in its being
considered as a mere subservient instrument of government policy however
admittedly salutary or desirable. There is still the need to demonstrate that
the conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm
followed, the conclusion reached being that the three petitions be dismissed.
I am in agreement. It is with regret however that based on my reading of past
decisions, both Philippine and American, and more specifically my
concurring opinion in Aquino v. Ponce Enrile, I must dissent from the
proposition set forth in the able and scholarly opinion of Justice Martin that
there is concentration of power in the President during a crisis government.

Consequently, I cannot see my way clear to accepting the view that the
authority to propose amendments is not open to question. At the very least,
serious doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in a crisis government, following
Rossiter, "are more or less concentrated in the President." Adherence to my
concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no
choice.
It must be stated at the outset that with the sufficiency of doctrines supplied
by our past decisions to point the way to what I did consider the appropriate
response to the basic issue raised in the Aquino and the other habeas
corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements
on martial law, at the most persuasive in character and rather few in number
"due no doubt to the, absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only after the
landmark Ex parte Milligan case, that commentators like Cooley in 1868 and
Watson in 1910 paid attention, minimal by that, to the subject." It was next
set forth that in the works on American constitutional law published in this
century specially after the leading cases of cases Sterling v. Constant in and
Duncan v. Kahanamoku, "there was a fuller treatment of the question of
martial law While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick,
came out earlier with a similar appraisal. 10 Thus: "So called martial law,
except in occupied territory of an enemy is merely the calling in of the aid of
military forces by the executive, who is charged with the enforcement of the
law, with or without special authorization by the legislature. Such declaration
of martial law does not suspend the civil law, though it may interfere with the
exercise of one's ordinary rights. The right to call out the military forces to
maintain order and enforce the law is simply part of the Police power, It is
only justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessarily to meet the exigency, including the
arrest, or in extreme cases the. killing of those who create the disorder or
oppose the authorities. When the exigency is over the members of the
military forces are criminally and civilly habit for acts done beyond the scope
of reasonable necessity. When honestly and reasonably coping with a
situation of insurrection or riot a member of the military forces cannot be
made liable for his acts, and persons reasonably arrested under such
circumstances will not, during the insurrection or riot, be free by writ of
habeas corpus." 11 When the opinion cited Willoughby's concept of martial
law, stress was laid on his being "Partial to the claims of liberty."12 This is
evident in the explicit statement from his work quoted by me: "There is, then,
strictly speaking, no such thing in American law as a declaration of martial
law whereby military law is substituted for civil law. So-called declarations of
martial law are, indeed, often made but their legal effect goes no further than
to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while
the emergency lasts, they must, upon pain of arrest and punishment not
commit any acts which will in any way render more difficult the restoration of
order and the enforcement of law. Some of the authorities stating
substantially this doctrine are quoted in the footnote below Nor did I stop
there. The words of Willis were likewise cited: "Martial law proper, that is,
military law in case of insurrection, riots, and invasions, is not a substitute for
the civil law, but is rather an aid to the execution of civil law. Declarations of
martial law go no further than to warn citizens that the executive has called
upon the military power to assist him in the maintenance of law and order.
While martial law is in force, no new powers are given to the executive and
no civil rights of the individual, other than the writ of habeas corpus, are
suspended. The relations between the citizen and his stature unchanged." 14
The conclusion reached by me as to the state of American federal law on the
question of martial law was expressed thus: 4'1 It is readily evident that even
when Milligan supplied the only authoritative doctrine, Burdick and
Willoughby did not ignore the primacy of civil liberties. Willis wrote after
Sterling. It would indeed be surprising if his opinion were otherwise. After
Duncan, such an approach becomes even more strongly fortified. Schwartz,

whose treatise is the latest to be published, has this summary of what he


considers the present state of American law: 'The Milligan and Duncan cases
show plainly that martial law is the public law of necessity. Necessities alone
calls it forth, necessity justifies its exercise; and necessities measures the
extended degree to which it may be It is, the high Court has affirmed, an
unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, may, never be pushed beyond what the exigency
requires. If martial law rule survive the necessities on which alone it rests, for
even a single minute it becomes a mere exercise of lawless violence.'
Further: Sterling v. Constantin is of basic importance. Before it, a number of
decisions, including one the highest Court, went or on the theory that the
executive had a free hand in taking martial law measures. Under them, it has
been widely supposed that in proclamation was so far conclusive that any
action taken under it was immune from judicial scrutiny. Sterling v.
Constantin definitely discredits these earlier decisions and the doctrine of
conclusiveness derived from them. Under Sterling v. Constantin, where
martial law measures impinge upon personal or property rights-normally
beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse
dixit is not of itself conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is the legal
effect of martial law being expressly provided for in the Constitution rather
than being solely predicated on the common law power based on the urgent
need for it because of compelling circumstances incident to the state of
actual clash of arms: "It is not to be lost sight of that the basis for the
declaration of martial law in the Philippines is not mere necessity but an
explicit constitutional provision. On the other hand, Milligan, which furnished
the foundation for Sterling and Duncan had its roots in the English common
law. There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: 'Martial law,' in the
proper sense of that term, , in which - it means the suspension of ordinary
law and the temporary government of a country or parts of it be military
tribunals, is unknown to the law of England. We have nothing equivalent to
what is called in France the "Declaration of the State of Siege," under which
the authority ordinarily vested in the civil power for the maintenance of order
and police passes entirely to the army (autorite militaire). This is an
unmistakable proof of the permanent supremacy of the law under our
constitution. There was this qualification: 'Martial law is sometimes employed
as a name for the common law right of the Crown and its servants to repel
force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very
existence of orderly government, and is most assuredly recognized in the
most ample manner by the law of England. It is a power which has in itself no
special connection with the existence of an armed force. The Crown has the
right to put down breaches of the peace. Every subject, whether a civilian or
a soldier, whether what is called a servant of the government,' such for
example as a policeman, or a person in no way connected with the
administration, not only has the right, but is, as a matter of legal duty, bound
to assist in putting down breaches of the peace. No doubt policemen or
soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to suppress a riot, but
it is clear that all loyal subjects are bound to take their part in the
suppression of riots." 16
Commitment to such an approach results in my inability to subscribe to the
belief that martial law in terms of what is provided both in the 1935 and the
present Constitution, affords sufficient justification for the concentration of
powers in the Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that expressed by
Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not
merely cherished American institutions; they are indispensable to our
government. 17 If there has been no observance of such a cardinal concept at
the present, it is due to the fact that before the former Congress could meet
in regular session anew, the present Constitution was adopted, abolishing it
and providing for an interim National Assembly, which has not been
convened. 18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference


was made to the first chapter on his work on Constitutional Dictatorship
where he spoke of martial rule as "a device designed for use in the crisis of
invasion or rebellion. It may be most precisely defined as an extension of
military government to the civilian population, the substitution of the will of a
military commander for the will of the people's elected government." 19Since,
for me at least, the Rossiter characterization of martial law has in it more of
the common law connotation, less than duly mindful of the jural effects of its
inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to
attendant limitations in accordance with the fundamental postulate of a
charter's supremacy, I felt justified in concluding: "Happily for the Philippines,
the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the
primacy of liberty possess relevance. lt cannot be said that the martial rule
concept of Rossiter, latitudinarian in scope, has been adopted, even on the
assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that
Proclamation No. 1081 was precisely based on the Constitution and that the
validity of acts taken there under could be passed upon by the Supreme
court. For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity, which
puts a premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion his to
be qualified. For in the opinion of the Court in the aforecited Aquino v.
Commission on Elections, penned by Justice Makasiar, the proposition was
expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines can
reclamations, orders and decrees during the period Martial Law essential to
the security and preservation of the Republic, to the defense of the political
and social liberties of the people and to the institution of reforms to prevent
the resurgence of rebellion or insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide recession, inflation or economic
crisis which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now
possesses Juristic significant in this jurisdiction. What, for me at least, gives
caused for concern is that with the opinion of the Court this intrusion of what
I would consider an alien element in the limited concept of martial law as set
forth in the Constitution would be allowed further incursion into the corpus of
the law, with the invocation of the view expressed in the last chapter of his
work approving tile "concentration of governmental power in a democracy
[as] a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers." 22 It is to the credit of the late Professor Rossiter as an
objective scholar that in the very same last chapter, just three pages later, he
touched explicitly on the undesirable aspect of a constitutional dictatorship.
Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of
martial law or the passage of an enabling act is a step which must always be
feared and sometimes bitterly resisted, for it is at once an admission of the
incapacity of democratic institutions to defend the order within which they
function and a too conscious employment of powers and methods long ago
outlawed as destructive of constitutional government. Executive legislation,
state control of popular liberties, military courts, and arbitrary executive
action were governmental features attacked by the men who fought for
freedom not because they were inefficient or unsuccessful, but because they
were dangerous and oppressive. The reinstitution of any of these features is
a perilous matter, a step to be taken only when the dangers to a free state
will be greater if the dictatorial institution is not adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the
view of those of my brethren who would accord recognition to the Rossiter
concept of concentration of governmental power in the Executive during
periods of crisis. This is not to lose sight of the undeniable fact that in this
country through the zeal, vigor, and energy lavished on projects conducive to
the general welfare, considerable progress has been achieved under martial
rule. A fair summary may be found in a recent address of the First Lady
before the delegates to the 1976 international Monetary Fund-World Bank
Joint Annual Meeting: "The wonder is that so much has been done in so brief

a time. Since September 1972, when President Marcos established the crisis
government, peace and order have been restored in a country once avoided
as one of the most unsafe in the world. We have liberated millions of Filipino
farmers from the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24 Further, she said: "A dynamic economy
has replaced a stagnant order, and its rewards are distributed among the
many, not hoarded by a few. Our foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed isolation, now travels the broad
expressways of friendship and constructive interaction with the whole world,
these in a new spirit of confidence and self-reliance. And finally, forced to
work out our own salvation, the Filipino has re-discovered the well-springs of
his strength and resilience As Filipinos, we have found our true Identity. And
having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly
not a permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of the
modified parliamentary system under the present Constitution should not be
further delayed. The full restoration of civilian rule can thus be expected.
That is more in accord with the imperatives of a constitutional order. It should
not go unnoticed either that the President has referred to the present regime
as one of "constitutional authoritarianism." That has a less objectionable ring,
authority being more Identified with the Idea of law, as based on right, the
very antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a partisan of d strong Presidency, was
not averse to constitutional restraints even during periods of crisis. So I
would interpret this excerpt from the fourth edition of his classic treatise on
the Presidency: "A regime of martial law may be compendiously, if not
altogether accurately, defined as one in which the ordinary law, as
administered by the ordinary courts, is superseded for the time being by the
will of a military commander. It follows that, when martial law is instituted
under national authority, it rests ultimately on the will of the President of the
United States in his capacity as Commander-in-Chief. It should be added at
once, nevertheless, that the subject is one in which the record of actual
practice fails often to support the niceties of theory. Thus, the employment of
the military arm in the enforcement of the civil law does not invariably, or
even usually, involve martial law in the strict sense, for, as was noted in the
preceding section, soldiers are often placed simply at the disposal and
direction of the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the civil
authorities themselves are apt to vest in the military in any emergency
requiring its assistance, the line between such an employment of the military
and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into military
government and the other into the situation just described, in which the civil
authority remains theoretically in control although dependent on military aid.
Finally, there is the situation that obtained throughout the North during the
Civil War, when the privilege of the writ of habeas corpus was suspended as
to certain classes of suspects, although other characteristics of martial law
were generally absent." 26
It is by virtue of the above considerations that, with due respect to the
opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial law.
5 There is necessity then, for me at least, that the specific question raised in
all three petitions be squarely faced. It is to the credit of the opinion of the
Court that it did so. The basic issue posed concerns the boundaries of the
power of the President during this period of martial law, more precisely
whether it covers proposing amendments to the Constitution. There is the
further qualification if the stand of respondents be taken into account that the
interim National Assembly has not been convened and is not likely to be
called into session in deference to the wishes of the people as expressed in
three previous referenda. It is the ruling of the majority that the answer be in
the affirmative, such authority being well within the area of presidential

competence. Again I find myself unable to join readily in that conviction. It


does seem to me that the metes and bounds of the executive domain, while
still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal
construction of the principle that underlies Aquino v. Commission on
Elections as to the validity of the exercise of the legislative prerogative by the
President as long as the interim National Assembly is not For me, the stage
of certitude has not been reached. I cannot simply ignore the vigorous plea
of petitioners that there is a constitutional deficiency consisting in the
absence of any constituent power on the part of the President, the express
provision of the Constitution conferring it on the by team National
Assembly. 27 The learned advocacy reflected in the pleadings as well as the
oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the
grave doubts in my mind that the Aquino doctrine as to the possession of
legislative competence by the President during this period of transition with
the interim lawmaking body not called into session be thus expanded. The
majority of my brethren took that step. I am not prepared to go that far. I will
explain why.
The way for me, is beset with obstacles. In the first place, such an approach
would lose sight of the distinction between matters legislative and
constituent. That is implicit in the treatise on the 1935 Constitution by
Justices Malcolm and Laurel In their casebook published the same year, one
of the four decisions on the subject of constitutional amendments is
Ellingham v. Dye 31 which categorically distinguished between constituent
and legislative powers. Dean Sinco, a well-known authority on the subject,
was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would
be outside its authority to assume that power. Congress may not claim it
under the general grant of legislative power for such grant does not carry
with it the right 'to erect the state, institute the form of its government,' which
is considered a function inherent in the people. Congressional law- making
authority is limited to the power of approving the laws 'of civil conduct relating
to the details and particulars of the government instituted,' the government
established by the people."12 If that distinction be preserved, then for me the
aforecited Aquino decision does not reach the heart of the matter. Nor is this
all. In the main opinion of Justice Makasiar as well as that of the then
Justice, now Chief Justice, Castro, support for the ruling that the President
cannot be deemed as devoid of legislative power during this transition stage
is supplied by implications from explicit constitutional provisions. 13 That is not
the case with the power to propose amendments. It is solely the interim
National Assembly that is mentioned. That is the barrier that for me is wellnigh insurmountable. If I limit myself to entertaining doubts rather than
registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this farfrom-quiescent and static period a need for al. amendments. I do not feel
confident therefore that a negative vote on my part would be warranted.
What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the
barangays on this matter, is that as noted in both qualified concurrences by
Justices Teehankee and Munoz Palma in Aquino, as far as the legislative
and appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental
activities, While not squarely applicable, such an approach has, to my mind,
a persuasive quality as far as the power to propose amendments is
concerned.
Thus I would confine myself to the expression of serious doubts on the
question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in
the result that the petitions be dismissed. That is to accord respect to the
principle that judicial review goes no further than to checking clear infractions
of the fundamental law, except in the field of human rights where a much
greater vigilance is required, That is to make of the Constitution a pathway to
rather than a barrier against a desirable objective. -As shown by my
concurring and dissenting opinion in Tolentino Commission on Elections '34
a pre-martial law decision, the fundamental postulate that sovereignty

resides in the people exerts a compelling force requiring the judiciary to


refrain as much as possible from denying the people the opportunity to make
known their wishes on matters of the utmost import for the life of the nation,
Constitutional amendments fall in that category. I am fortified in that
conviction by the teaching of persuasive American decisions There is
reinforcement to such a conclusion from retired Chief Justice Concepcion's
concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider
applicable to the present situation. These are his words: "It is well settled that
the granting of writs of prohibition and mandamus is ordinarily within the
sound discretion of the courts, to be exercised on equitable principles, and
that said writs should be issued when the right to the relief is clear * * by As
he noted in his ponencia in the later case of Gonzales v. Hechanova,19 an
action for prohibition, while petitioner was sustained in his stand, no
injunction was issued. This was evident in the dispositive portion where
judgment was rendered "declaring that respondent Executive Secretary had
and has no power to authorize the importation in question; that he exceeded
his jurisdiction in granting said authority; that said importation is not
sanctioned by law and is contrary to its provisions; and that, for lack of the
requisite majority, the injunction prayed for must be and is, accordingly,
denied." 40 With the illumination thus supplied, it does not necessarily follow
that even a dissent on my part would necessarily compel that I vote for the
relief prayed for. Certainly this is not to belittle in any way the action taken by
petitioners in filing these suits. That, for me, is commendable. It attests to
their belief in the rule of law. Even if their contention as to lack of presidential
power be accepted in their entirety, however, there is still discretion that may
be exercised on the matter, prohibition being an equitable remedy. There are,
for me, potent considerations that argue against acceding to the plea. With
the prospect of the interim National Assembly being convened being dim, if
not non- existent, if only because of the results in three previous referenda,
there would be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for adoption. Of
even greater weight, to my mind, is the pronouncement by the President that
the plebiscite is intended not only to solve a constitutional anomaly with the
country devoid of a legislative body but also to provide. the machinery be
which the termination of martial law could be hastened. That is a
consummation devoutly to be wished. That does militate strongly against the
stand of petitioners. The obstruction they would pose may be fraught with
pernicious consequences. It may not be amiss to refer anew to what I deem
the cardinal character of the jural postulate explicitly affirmed in both the
1935 and the present Constitutions that sovereignty resides in the people.
So I made clear in Tolentino v. Commission on Elections and thereafter in my
dissent in Javellana v. The Executive Secretary" and my concurrence in
Aquino v. Commission on Elections. 42 The destiny of the country lies in their
keeping. The role of leadership is not to be minimized. It is crucial it is of the
essence. Nonetheless, it is their will, if given expression in a manner
sanctioned by law and with due care that there be no mistake in its appraisal,
that should be controlling. There is all the more reason then to encourage
their participation in the power process. That is to make the regime truly
democratic. Constitutional orthodoxy requires, however, that the fundamental
law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45, BrynJones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending process gives rise to a
justiciable rather than a political question. So, it has been since the leading
case of Gonzales v. Commission on Election S. 48 It has since then been
followed in Tolentino v. Commission on Elections 49Planas v. Commission on
Elections," and lastly, in Javellana v. The Executive Secretary This Court did
not heed the vigorous plea of the Solicitor General to resurrect the political
question doctrine announced in Mabanag v. Lopez Vito. 52 This is not to deny
that the federal rule in the United States as set forth in the leading case of
Coleman v. Miller , 53 a 1939 decision, and relatively recent State court
decisions, supply ammunition to such a contention., 51 That may be the case
in the United States, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. It can trace its origin to these words
in the valedictory address before the 1934-35 Constitutional Convention by
the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that
the people of times place more confidence in instrumentalities of the State
other than those directly chosen by them for the exercise of their sovereignty

It can be said with truth, therefore, that there has invariably been a judicial
predisposition to activism rather than self-restraint. The thinking all these
years has been that it goes to the heart of constitutionalism. It may be said
that this Court has shunned the role of a mere interpreter; it did exercise at
times creative power. It has to that extent participated in the molding of
policy, It has always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of statecraft. The
assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it
cannot prevail against the pressure of political forces if they are bent in other
directions. it does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked, to decide
momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties
in an era of transformation and change. A society in flux calls for dynamism
in "he law, which must be responsive to the social forces at work. It cannot
remain static. It must be sensitive to life. This Court then must avoid the
rigidity of legal Ideas. It must resist the temptation of allowing in the
wasteland of meaningless abstractions. It must face stubborn reality. It has to
have a feel for the complexities of the times. This is not to discount the risk
that it may be swept too far and too fast in the surge of novel concepts. The
past too is entitled to a hearing; it cannot just be summarily ignored. History
still has its uses. It is not for this Court to renounce the virtue of systematic
jural consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what appears
to be a splintered society. It should strive to be a factor for unity under a rule
of law. There must be, on its part, awareness of the truth that a new juridical
age born before its appointed time may be the cause of unprecedented
travail that may not end at birth. It is by virtue of such considerations that I
did strive for a confluence of principle and practicality. I must confess that I
did approach the matter with some misgivings and certainly without any
illusion of omniscience. I am comforted by the thought that immortality does
not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject
of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not
currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I
am the first to recognize the worth of' the social and economic reforms so
needed by the troubled present that have been introduced and implemented.
There is no thought then of minimizing, much less of refusing to concede, the
considerable progress that has been made and the benefits that have been
achieved under this Administration. Again, to reiterate one of my cherished
convictions, I certainly approve of the adherence to the fundamental principle
of popular sovereignty which, to be meaningful however, requires both
freedom in its manifestation and accuracy in ascertaining what it wills. Then,
too, it is fitting and proper that a distinction was made between two aspects
of the coming poll, the referendum and the plebiscite. It is only the latter that
is impressed with authoritative force. So the Constitution requires. Lastly,
there should be, as I did mention in my concurrence in Aquino v. Commission
on Elections,56 full respect for free speech and press, free assembly and
free association. There should be no thought of branding the opposition as
the enemy and the expression of its views as anathema, Dissent, it is
fortunate to note, has been encouraged. It has not been Identified with
disloyalty. That ought to be the case, and not solely due to presidential
decrees. Constructive criticism is to be welcomed not so much because of
the right to be heard but because there may be something worth hearing.
That is to ensure a true ferment of Ideas, an interplay of knowledgeable
minds. There are though well- defined limits, One may not advocate disorder
in the name of protest, much less preach rebellion under the cloak of
dissent.. What I mean to stress is that except on a showing of clear and
present danger, there must be respect for the traditional liberties that make a
society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for
lack of merit and vote to grant the petitions for the following reasons and
considerations: 1. It is undisputed that neither the 1935 Constitution nor the

1973 Constitution grants to the incumbent President the constituent power to


propose and approve amendments to the Constitution to be submitted to the
people for ratification in a plebiscite. The 1935 Constitution expressly vests
the constituent power in Congress, be a three-fourths vote of all its members,
to propose amendments or call a constitutional convention for the purpose
The 1973 Constitution expressly vests the constituent power in the regular
National Assembly to propose amendments (by a three-fourths vote of all its
members) or "call a constitutional convention" (by a two-thirds vote of all its
members) or "submit the question of calling such convention to the
electorate in an election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the
constituent power during the period of transition in the interim National
Assembly "upon special call be the Prime Minister (the incumbent President
3)... by a majority ore of all its members (to) propose amendments."
Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrease proposing
and submitting constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in
the case at bar In therein declaring null and void the acts of the 1971
Constitutional Convention and of the Comelec in calling a plebiscite with the
general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing the
voting age from 21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court speaking through
Mr. Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments
of the government, (land) are no less binding upon the people
As long as an amendment is formulated and submitted
under the aegis of the present Charter, any proposal
for such amendment which is not in conformity with the
letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court
;8
The real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the proposed
amendments, if only because it is evident that the very Idea of departing
from the fundamental law is anachronistic in the realm of constitutionalism
and repugnant to the essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendments and the manner of its
submission to the people for ratification or rejection" did not "conform with
the mandate of the people themselves in such regard, as expressed in the
Constitution itself', 10 i.e. the mandatory requirements of the amending
process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis,
mutandis, it is clear that where the proposed amendments are violative of the
Constitutional mandate on the amending process not merely for being a
"partial amendment" of a "temporary or provisional character" (as in
Tolentino) but more so for not being proposed and approved by the
department vested by the Constitution with the constituent power to do so,
and hence transgressing the substantive provision that it is only the interim
National Assembly, upon special call of the interim Prime Minister, bu a

majority vote of all its members that may propose the amendments, the
Court must declare the amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular mode and
manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands of
their official agencies but their own hands as well; and neither the officers of
the State, nor the whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the
legislative body (the regular National Assembly) or the interim National
Assembly during the transition period) or in a constitutional convention called
for the purpose is in accordance with universal practice. "From the very
necessity of the case" Cooley points out "amendments to an existing
constitution, or entire revisions of it, must be prepared and matured by some
body of representatives chosen for the purpose. It is obviously impossible for
the whole people to meet, prepare, and discuss the proposed alterations,
and there seems to be no feasible mode by which an expression of their will
can be obtained, except by asking it upon the single point of assent or
disapproval." This body of representatives vested with the constituent power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for ratification
or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to
be achieved is to be desired" and in denying reconsideration in paraphrase
of the late Claro M. Recto declared that "let those who would put aside,
invoking grounds at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in mind that
someday somehow others with purportedly more laudable objectives may
take advantage of the precedent and continue the destruction of the
Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their own
folly."
This same apprehension was echoed by now retired Justice Calixto O.
Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be
opening the gates for a similar disregard to the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now
in force because the members of the citizens assemblies had approved said
new Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the Constitution
may be adopted, even in a manner contrary to the existing Constitution and
the law, and then said proposed amendments is submitted to the people in
any manner and what will matter is that a basis is claimed that there was
approval by the people. There will not be stability in our constitutional
system, and necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to
so overrule) to accept the proposed; amendments as valid notwithstanding
their being "not in conformity with the letter, spirit and intent of the provision
of the Charter for effecting amendments" on the reasoning that "If the
President has been legitimately discharging the legislative functions of the
interim National Assembly, there is no reason why he cannot validly
discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking
through now retired Chief Justice Roberto Concepcion, pointer out that
"Indeed, the power to Congress" 17 or to the National Assembly.18 Where it
not for the express grant in the Transitory Provisions of the constituent power
to the interim National Assembly, the interim National Assembly could not
claim the power under the general grant of legislative power during the
transition period.

The majority's ruling in the Referendum cases 19 that the Transitory Provision
in section 3(2) recognized the existence of the authority to legislate in favor
of the incumbent President during the period of martial law manifestly cannot
be stretched to encompass the constituent power as expressly vested in the
interim National Assembly in derogation of the allotment of powers defined in
the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of
the settled maxims of constitutional law, 20 the contituent power has been
lodged by the sovereign power of the people with the interim National
Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of
Angara vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no
uncertain language and restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels,
for then the distribution of powers sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any
living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The
sentiment of the people against the convening of the interim National
Assembly and to have no elections for "at least seven (7) years" Concededly
could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the
proclamation of ratification of the 1973 Constitution), much less remove the
constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum cases 22,
"(W)hile it has been advanced that the decision to defer the initial
convocation of the interim National Assembly was supported by the results of
the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such
sentiment cannot be given any legal force and effect in the light of the State's
admission at the hearing that such referendums are merely consultative and
cannot amend the Constitution or Provisions which call for the 'immediate
existence' and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures enumerated in section
5 thereof".
While the people reportedly expressed their mandate against the convening
of the interim National Assembly to dischange its legislative tasks during the
period of transition under martial law, they certainly had no opportunity and
did not express themselves against convening the interim National Assembly
to discharge the constituent power to propose amendments likewise vested
in it by the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was
first announced, the newspapers reported that among the seven questions
proposed by the sanggunian and barangay national executive committies for
the referendum was the convening of the interim National Assembly. 23
It was further reported that the proposals which were termed tentative "will
be discussed and studied by (the President), the members of the cabinet,
and the security council" and that the barangays felt, notwithstanding the
previous referenda on the convening of the interim National Assembly that "it
is time to again ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed necessary to
be discussed and adopted for submittal to the people, strict adherence with
the mandatory requirements of the amending process as provided in the

Constitution must be complied with. This means, under the teaching of


Tolentino that the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do so, namely, the
interim National Assembly, and not from the executive power as vested in the
Prime Minister (the incumbent President) with the assistance of the
Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the
people for as was aptly stated by Cooley "Me voice of the people, acting in
their sovereign capacity, can be of legal force only when expressed at the
times and under the conditions which they themselves have prescribed and
pointed out by the Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino
which rejected the contention that the "Convention being a legislative body of
the highest order (and directly elected by the people to speak their voice) is
sovereign, in as such, its acts impugned by petitioner are beyond the control
of Congress and the Courts" and ruled that the constitutional article on the
amending process" is nothing more than a part of the Constitution thus
ordained by the people. Hence, in continuing said section, We must read it
as if the people said, "The Constitution may be amended, but it is our will
that the amendment must be proposed and submitted to Us for ratification
only in the manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us
that the framers of the Constitution took care that the process of amending
the same should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional democracy such as
the one our founding fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And because the Constitution
affects the lives, fortunes, future and every other conceivable aspect of the
lives of all the people within the country and those subject to its sovereignity,
ever constitution worthy of the people for which it is intended must not be
prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance
than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written constitutions
are supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and exigencies of
the people, hence, they must be insulated against precipitate and hasty
actions motivated by more or less passing political moods or fancies. Thus,
as a rule, the original constitutions carry with them limitations and conditions,
more or less stringent, made so by the people themselves, in regard to the
process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent
power to proposed amendments is the only way to fulfill the express
mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
Comelec 29 in the setting as in of a Comelec resolution banning the use of
political taped jingles by candidates for Constitutional Convention delegates
int he special 1970 elections, "the concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to amnifst fealty to the rule of
law, with priority accorded to that which occupies the topmost rung in the
legal heirarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The Presidency in
the execution of the laws cannot ignore of disregard what it ordains. In its
task of applying the law to the facts as found in deciding cases, the judiciary
is called upon the maintain inviolate what is decreed by the fundamental
law."

This is but to give meaning to the plan and clear mandate of section 15 of
the Transitory Provisions (which allows of no other interpretation) that during
the stage of transition the interim National Assembly alone exercises the
constituent power to propose amendments, upon special call therefor. This is
reinforced by the fact that the cited section does not grant to the regular
National Assembly of calling a constitutional convention, thus expressing the
will of the Convention (and presumably of the people upon ratification) that if
ever the need to propose amendments arose during the limited period of
transition, the interim National Assembly alone would discharge the task and
no constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National Assembly
to propose amendments, among them its own abolition, (P24 million annually
in salaries alone for its 400 members at P600,000.00 per annum per
member, assuming that its deliberations could last for one year), suffice it to
recall this Court's pronouncement in Tolentino (in reflecting a similar
argument on the costs of holding a plebiscite separately from the general
elections for elective officials) that "it is a matter of public knowledge that
bigger amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even more is
not too much a price to pay for fealty and loyalty to the Constitution ...
" 30 and that "while the financial costs of a separate plebiscite may be high, it
can never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and "no
consideration of financial costs shall deter Us from adherence to the
requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis a crisis greater than
war") 32 cited by the majority opinion as justifying the concentration of powers
in the President, and the recognition now of his exercising the constituent
power to propose amendments to the Fundamental Law "as agent for and in
behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and
should not create power. In our democracy the hope and survival of the
nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12 ,
as stressed by the writer in his separate opinion in the Referendum
Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935
Constitution and provides for the imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent danger thereof, when the
public safety requires it and hence the use of the legislative power or more
accurately 'military power' under martial rule is limited to such necessary
measures as will safeguard the Republic and suppress the rebellion (or
invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases to be the recognition or warrant for the
exercise of legislative power by the President during the period of martial law
is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to be considered in isolation from
the Constitution but as mere integral parts thereof which must be
harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to
conflict, the courts must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than
one which may make some words Idle and nugatory.
This rule is applicable with special force to written constitutions, in
which the people will be presumed to have expressed themselves in
careful and measured terms, corresponding with the immense

importance of the powers delegated, leaving as little as possible to


implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify
another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is not
to be allowed to defeat another, if by any reasonable construction the
two can be made to stand together. 36
The transcendental constituent power to propose and approve amendments
to the Constitution as well as set up the machinery and prescribe the
procedure for the ratification of his proposals has been withheld from the
President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the
Constitution but just as importantly, because by the very nature of the
constituent power, such amendments proposals have to be prepared,
deliberated and matured by a deliberative assembly of representatives such
as the interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation
of the l971 Constitutional Convention that the records of past plebiscites
show that the constitutional agency vested with the exercise of the
constituent power (Congress or the Constitutional Convention) really
determined the amendments to the Constitution since the proposals were
invariably ratified by the people 37 thus: "although the people have the
reserved power to ratify or reject the action taken by the Convention, such
power is not, in view of the circumstances attending its exercise, as effective
as one might otherwise think: that, despite the requisite ratification by the
people, the actual contents of our fundamental law will really be determined
by the Convention; that, accordingly the people should exercise the greatest
possible degree of circumspection in the election of delegates thereto ... " 38
12. Martial law concededly does not abrogate the Constitution nor obliterate
its constitutional boundaries and allocation of powers among the Executive,
Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve
and to maintain the Republic against the dangers that threaten it. Such
premise imposes constraints and limitations. For the martial law regime
fulfills the constitutional purpose only if, by reason of martial law measures,
the Republic is preserved. If by reason of such measures the Republic is so
transformed that it is changed in its nature and becomes a State other than
republican, then martial law is a failure; worse, martial law would have
become the enemy of the Republic rather than its defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be underscored
that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs.
Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief Justice
Marshall's "climactic phrase" that "we must never forget that it is a
Constitution we are expounding" and declared the Court's "solemn and
sacred" constitutional obligation of judicial review and laid down the doctrine
that the Philippine Constitution as "a definition of the powers of government"
placed upon the judiciary the great burden of "determining the nature, scope
and extent of such powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments . . . but only asserts the solemn and sacred obliteration
entrusted to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to
them".

At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which are intended by the Constitutional
and relevant laws to be conclusively determined by the "political", i.e.
branches of government (namely, the Executive and the Legislative) are
outside the Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the
required constitutional majority), the Court has since consistently ruled that
when proposing and approving amendments to the Constitution, the
members of Congress. acting as a constituent assembly or the members of
the Constitutional Convention elected directly for the purpose by not have
the final say on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that outs is it government of lawsom not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court, the power
to declare a treaty unconstitutional, despite the eminently political character
of treaty-making power". 44
As amplified by former Chief Justice Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified,
conditional or subject to limitations. the issue on whether or not the
prescribed qualifications or conditions have been met, or the limitations by
expected, is justiciable or non-political, the crux of the problem being one of
legality or validity of the contested act, not its wisdom Otherwise, said
qualifications, conditions and limitations-particularly those prescribed or
imposed by the Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable
since as stressed even in Javellana the issue of validity of the President's
proclamation of ratification of the Constitution presented a justiciable and
non-political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the
purpose, in proposing amendments to the people for ratification followed the
constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or
wisdom of the proposed amendments, which if Submitted, are reserved for
the people's decision.
The substantive question presented in the case at bar of whether the
President may legally exercise the constituent power vested in the interim
National Assembly (which has not been granted to his office) and propose
constitutional amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a
political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of
the proposed amendments to the people: Prescinding from the writer's view
of the nullity of the questioned decree of lack of authority on the President's
part to excercise the constituent power, I hold that the doctrine of fair and
proper submission first enunciated by a simple majority of by Justices in
Gonzales and subsequently officially adopted by the required constitutional
two-thirds majority of the Court in is controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed


amendments. As ruled by this Court in Tolentino where "the proposed
amendment in question is expressly saddled with reservations which
naturally impair, in great measures, its very essence as a proposed
constitutional amendment" and where "the way the proposal is worded, read
together with the reservations tacked to it by the Convention thru Section 3
of the questioned resolution, it is too much of a speculation to assume what
exactly the amendment would really amount lo in the end. All in all, as
already pointed out in our discussion of movants' first ground, if this kind of
amendment is allowed, the Philippines will appear before the world to be in
the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force",
there can be no proper submission.

and. popular caprice or passion. It is needed for stability and steadiness; it


must yield to the thought of the people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. xxx
xxx xxx Changes in government are to be feared unless the benefit is
certain. As Montaign says: All great mutations shake and disorder state.
Good does not necessarily succeed evil ;another evil may succeed and a
worse'." 49

In Tolentino a solitary amendment reducing the voting age to 18 years was


struck down by this Court which ruled that "in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole,"
and that there was no proper Submission wherein the people are in the dark
as to frame of reference they can base their judgment on

3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications
reported in the daily newspapers, it is manifest that there is no proper
submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday, October 16, 1976
wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the
highest order, was reported by the newspapers last October 3 to have
observed that "there is no urgency in approving the proposed amendments
to the Constitution and suggested that the question regarding charter
changes be modified instead of asking the people to vote on hurriedly
prepared amendments". He further pointed out that "apart from lacking the
parliamentary style in the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended". 52

2. The now Chief Justice and Mr. Justice Makasiar with two other members
46 graphically pointed out in their joint separate opinion that the solitary
question "would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so
simple after all". 47
They further expressed "essential agreement" with Mr. Justice Conrado V.
Sanchez' separate opinion in Gonzales "on the minimum requirements that
must be met in order that there can be a proper submission to the people of
a proposed constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the people for their
ratification', if construed in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an
expression of their sovereign will - is that it can only be amended by the
people expressing themselves according to the procedure ordained by
the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them
with the proposed amendments, and try to reach a conclusion as the
dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word
submitted' can only mean that the government, within its maximum
capabilities, should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the
people, educate them with respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent. consent or
rejection. If with all these safeguards the people still approve the
amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate. 48
Justice Sanchez therein ended the passage with an apt citation that " ... "
The great men who builded the structure of our state in this respect had the
mental vision of a good Constitution voiced by Judge Cooley, who has said
'A good Constitution should be beyond the reach of temporary excitement

Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper submission "if the people are not sufficiently
affirmed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner. ... .." 50

As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others the proposed granting of dual legislative
powers to both the President and the Batasang Pambansa and remarking
that "This dual legislative authority can give rise to confusion and serious
constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form and
violate the cardinal rule of amendments of written constitutions that the
specific provisions of the Constitution being repealed or amended as well as
how the specific provisions as amended would read, should be clearly stated
in careful and measured terms. There can be no proper submission because
the vagueness and ambiguity of the proposals do not sufficiently inform the
people of the amendments for, conscientious deliberation and intelligent
consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that
the principal thrust of the proposals is to substitute the interim National
Assembly with an interim Batasang Pambansa, a serious study thereof in
detail would lead to the conclusion that the whole context of the 1973
Constitution proper would be affected and grave amendments and
modifications thereof -would apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim
Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is
withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim
Batasang Pambansa within 30 days from the election and selection of the
members (for which there is no fixed date) the incumbent President
apparently becomes a regular President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the


Cabinet in the Constitution such as the prohibition against the holding of
more than one office in the government including government-owned or
-controlled corporations would appear to be eliminated, if not prescribed by
the President;
Under Amendment No. 5, the President shall continue to exercise legislative
powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the
President and the interim Batasang Pambansa as well as the regular
National Assembly, as pointed out by Senator Tolentino, with the President
continuing to exercise legislative powers in case of "grave emergency or a
threat or imminence thereof" (without definition of terms) or when said
Assemblies "fail or are unable to act adequately on any matter for any
reason that in his judgment requires immediate action", thus radically
affecting provisions of the Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently
be constitutionalized, although their functions, power and composition may
be altered by law. Referendums (which are not authorized in the present
1973 Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged at the
hearing, that amendments to the Constitution may thereafter be effected by
referendum, rather than by the rigid and strict amending process provided
presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of these
amendments" shall continue in full force and effect; and Under Amendment
No. 9. the incumbent President is authorized to proclaim the ratification of
the amendments by the majority of votes cast. It has likewise been stressed
by the officials concerned that the proposed amendments come in a package
and may not be voted upon separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner
and with due circumspection on the proposed amendments amidst the
constraints of martial law is yet another question. That a period of free
debate and discussion has to be declared of itself shows the limitations on
free debate and discussion. The facilities for free debate and discussion over
the mass media, print and otherwise are wanting. The President himself is
reported to have observed the timidity of the media under martial law and to
have directed the press to air the views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the
Philippine Collegian issue of September 23, 1976 comes as a welcome and
refreshing model of conscientious deliberation, as our youth analyzes the
issues "which will affect generations yet to come" and urge the people to mull
over the pros and cons very carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important
national issues - the creation of a new legislative body and the lifting of
martial law.
On the first issue, it is almost sure that the interim National Assembly
will not be convened, primarily because of its membership. Majority of
the members of the defunct Congress, who are mandated by the
Constitution to become members of the interim National Assembly,
have gained so widespread a notoriety that the mere mention of
Congress conjures the image of a den of thieves who are out to fool the
people most of the time. Among the three branches of government, it
was the most discredited. In fact, upon the declaration of martial law,
some people were heard to mutter that a 'regime that has finally put an
end to such congressional shenanigans could not be all that bad'.

A substitute legislative body is contemplated to help the President in


promulgating laws, and perhaps minimize the issuance of ill-drafted
decrees which necessitate constant amendments. But care should be
taken that this new legislative body would not become a mere rubber
stamp akin to those of other totalitarian countries. It should be given
real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have with
regard to the proposed legislative body is that of abolishing it in case
'there is a need to do so'. As to what would occasion such a need, only
the President himself can determine. This would afford the Chief
Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed
ambivalent attitudes. Some of them, remembering the turmoil that
prevailed before the declaration of martial law, have expressed the fear
that its lifting might precipitate the revival of the abuses of the past, and
provide an occasion for evil elements to resurface with their usual
tricks. Others say that it is about time martial law was lifted since the
peace and order situation has already stabilized and the economy
seems to have been parked up.
The regime of martial law has been with us for four years now. No
doubt, martial law has initially secured some reforms for the country
The people were quite willing to participate in the new experiment,
thrilled by the novelty of it all. After the euphoria, however, the people
seem to have gone back to the old ways, with the exception that some
of our freedoms were taken away, and an authoritarian regime
established.
We must bear in mind that martial law was envisioned only to cope with
an existing national crisis, It was not meant to be availed of for a long
period of time, otherwise it would undermine our adherence to a
democratic form of government. In the words of the Constitution.
martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires
it'. Since we no longer suffer from internal disturbances of a gargantuan
scale, it is about time we seriously rethink the 'necessity' of prolonging
the martial law regime. If we justify the continuance of martial by
economic or other reasons other than the foregoing constitutional
grounds, then our faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still holds vast
powers under the constitution. After all, the gains of the New Society
can be secured without sacrificing the freedom of our people. If the
converse is true, then we might have to conclude that the Filipinos
deserve a dictatorial form of government. The referendum results will
show whether the people themselves have adopted this sad
conclusion.
The response of the people to the foregoing issues will affect
generations yet to come, so they should mull over the pros and cons
very carefully."
6. This opinion by written in the same spirit as the President's exhortations
on the first anniversary of proclamation of the 1973 Constitution that we "let
the Constitution remain firm and stable" so that it may "guide the people",
and that we "remain steadfast on the rule of law and the Constitution" as he
recalled his rejection of the "exercise (of) power that can be Identified merely
with a revolutionary government" that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to have,
whether in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the
Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let

all of us then pass away as a pace in the development of our country.


but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so
long as that Constitution stands, whoever may the man in power be,
whatever may his purpose be, that Constitution will guide the people
and no man, however, powerful he may be, will dare to destroy and
wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law,
having been often induced to exercise power that can be Identified
merely with a revolutionary government, have remained steadfast or
the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to
the Comelec query allowed by a vote of 7 to 3, judges of all courts, after
office hours, "to accept invitations to act as resource speakers under Section
5 of Presidential Decree No. 991, as amended, as well as to take sides in
discussions and debates on the referendum-plebiscite questions under
Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had
dissented from the majority resolution, with all due respect, on the ground
that the non-participation of judges in such public discussions and debates
on the referendum-plebiscite questions would preserve the traditional noninvolvement of the judiciary in public discussions of controversial issues. This
is essential for the maintenance and enhancement of the people's faith and
confidence in the judiciary. The questions of the validity of the scheduled
referendum- plebiscite and of whether there is proper submission of the
proposed amendments were precisely subjudice by virtue of the cases at
bar.
The lifting of the traditional inhibition of judges from public discussion and
debate might blemish the image and independence of the judiciary. Aside
from the fact that the fixing of a time limit for the acceptance of their courtesy
resignations to avoid an indefinite state of insecurity of their tenure in office
still spends litigants and their relatives and friends as well as a good sector
of the public would be hesitant to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have
agreed that we make them of record here, since we understand that the
permission given in the resolution is nevertheless addressed to the personal
decision and conscience of each judge, and these views may he of some
guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the herein
petitions should be dismissed, as in fact I vote for their dismissal, I deem it
imperative that I should state separately the considerations that have
impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those
who have doubts as to whether or not I should have taken part in the
consideration and resolution of these cases. Indeed, it would not be befitting
my position in this Highest Tribunal of the land for me to leave unmentioned
the circumstances which have given cause, I presume, for others to feel
apprehensive that my participation in these proceedings might detract from
that degree of faith in the impartiality that the Court's judgment herein should
ordinarily command. In a way, it can be said, of course, that I am the one
most responsible for such a rather problematical situation, and it is precisely
for this reason that I have decided to begin this opinion with a discussion of
why I have not inhibited myself, trusting most confidently that what I have to
say will be taken in the same spirit of good faith, sincerity and purity of
purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent
contents of the official report of the Executive Committee of the Katipunan ng
mga Sanggunian submitted to the Katipunan itself about the proceedings
held on August 14, 1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A
LEGISLATIVE body came out when the President express his desire to
share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution
Association (PHILCONSA) headed by Supreme Court Justice Antonio
Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa'
or 'Batasang Pambansa' which would help the President in the performance
of his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at
this time considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000
barangay assemblies on August 1 suggested that the people be consulted
on a proposal to create a new legislative body to replace the interim
assembly provided for by the Constitution. The suggestion of the barangay
units was made through their national association, Pambansang Katipunan
ng mga Barangay headed by Mrs. Nora Z. Patines. She said that the people
have shown in at least six instances including in the two past referenda that
they are against the convening of the interim National Assembly. She also
said that since the people had ruled out the calling of such assembly and
that they have once proposed that the President create instead the
Sangguniang Pambansa or a legislative advisory body, then the proposal to
create a new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like
their elder counterparts in the Katipunan ng mga Barangay also asserted
their own right to be heard on whatever plans are afoot to convene a new
legislative body.
On August 6, a meeting of the national directorate of PKB was held to
discuss matters pertaining to the stand of the PKB with regards to the
convening of a new legislative body. The stand of the PKB is to create a
legislative advisory council in place of the old assembly. Two days after,
August 8, the Kabataang Barangay held a symposium and made a stand
which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to
discuss more intellegently the proposal to create a new legislative body was
made by various urban and rural Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and
61 city SB assemblies, were forwarded to the Department of Local
Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the
request by convening the 91 member National Executive Committee of the
Pambansang Katipunan ng mga Sanggunian on August 14 which was held
at Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and deliberations
that have culminated in the holding of the proposed referendum- plebiscite
on October 16, 1976, which petitioners are here seeking to enjoin, has been
more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to publicly articulate
the need for the creation of an interim legislative body to take the place of.
the interim National Assembly provided for in the Transitory Provisions of the
Constitution, as suggested in the above report, I might say that I was the one
most vehement and persistent in publicly advocating and urging the
authorities concerned to directly submit to the people in a plebiscite whatever

amendments of the Constitution might be considered necessary for the


establishment of such substitute interim legislature. In the aforementioned
session of the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step towards
the early lifting of martial law and on the fundamental considerations why in
our present situation a constitutional convention would be superfluous in
amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at
the Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I
denounced in no uncertain terms the plan to call a constitutional convention.
I reiterated the same views on September 7, 1976 at the initial conference
called by the Comelec in the course of the information and educational
campaign it was enjoined to conduct on the subject. And looking back at the
subsequent developments up to September 22, 1976, when the Batasang
Bayan approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a certain
extent my strong criticisms and resolute stand against any other alternative
procedure of amending the Constitution for the purpose intended had borne
fruit.
I must hasten to add at this point, however, that in a larger sense, the
initiative for all I have done, was not altogether mine alone. The truth of the
matter is that throughout the four years of this martial law government, it has
always been my faith, as a result of casual and occasional exchanges of
thought with President Marcos, that when the appropriate time does come,
the President would somehow make it known that in his judgment, the
situation has already so improved as to permit the implementation, if gradual,
of the constitutionally envisioned evolution of our government from its
present state to a parliamentary one. Naturally, this would inevitably involve
the establishment of a legislative body to replace the abortive interim
National Assembly. I have kept tract of all the public and private
pronouncements of the President, and it was the result of my reading thereof
that furnished the immediate basis for my virtually precipitating, in one way
or another, the materialization of the forthcoming referendum-plebiscite. In
other words, in the final analysis, it was the President's own attitude on the
matter that made it opportune for me to articulate my own feelings and Ideas
as to how the nation can move meaningfully towards normalization and to
publicly raise the issues that have been ventilated by the parties in the
instant cases.

in this regard. I feel that it must have been precisely because of such
awareness that despite my known public participation in the discussion of the
questions herein involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal inclinations to affect the objectivity
needed in the resolution of any judicial question before the Court. I feel I
have always been able to appreciate, fully consider and duly weigh
arguments and points raised by all counsels, even when they conflict with my
previous views. I am never beyond being convinced by good and substantial
ratiocination. Nothing has delighted me more than to discover that somebody
else has thought of more weighty arguments refuting my own, regardless of
what or whose interests are at stake. I would not have accepted my position
in the Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a judge has preconceptions that counts,
it is his capacity and readiness to absorb contrary views that are
indispensable for justice to prevail. That suspicions of prejudgment may likely
arise is unavoidable; but I have always maintained that whatever improper
factors might influence a judge will unavoidably always appear on the face of
the decision. In any event, is there better guarantee of justice when the
preconceptions of a judge are concealed?
Withal, in point of law, I belong to the school of thought that regards
members of the Supreme Court as not covered by the general rules relative
to disqualification and inhibition of judges in cases before them. If I have in
practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal
reasons, specially because, anyway, my vote would not have altered the
results therein.

I would not be human, if I did not consider myself privileged in having been
afforded by Divine Providence the opportunity to contribute a modest share
in the formulation of the steps that should lead ultimately to the lifting of
martial law in our country. Indeed, I am certain every true Filipino is anxiously
looking forward to that eventuality. And if for having voiced the sentiments of
our people, where others would have preferred to be comfortably silent, and
if for having made public what every Filipino must have been feeling in his
heart all these years, I should be singled out as entertaining such
preconceived opinions regarding the issues before the Court in the cases at
bar as to preclude me from taking part in their disposition, I can only say that
I do not believe there is any other Filipino in and out of the Court today who
is not equally situated as I am .

It is my considered opinion that unlike in the cases of judges in the lower


courts, the Constitution does not envisage compulsory disqualification or
inhibition in any case by any member of the Supreme Court. The Charter
establishes a Supreme Court "composed of a Chief Justice and fourteen
Associate Justices", with the particular qualifications therein set forth and to
be appointed in the manner therein provided. Nowhere in the Constitution is
there any indication that the legislature may designate by law instances
wherein any of the justices should not or may not take part in the resolution
of any case, much less who should take his place. Members of the Supreme
Court are definite constitutional officers; it is not within the power of the
lawmaking body to replace them even temporarily for any reason. To put it
the other way, nobody who has not been duly appointed as a member of the
Supreme Court can sit in it at any time or for any reason. The Judicial power
is vested in the Supreme Court composed as the Constitution ordains - that
power cannot be exercised by a Supreme Court constituted otherwise. And
so, when as in the instant where, if any of the member of Court is to abstain
from taking part, there would be no quorum - and no court to render the
decision - it is the includible duty of all the incumbent justices to participate in
the proceedings and to cast their votes, considering that for the reasons
stated above, the provisions of Section 9 of the Judiciary Act do not appear
to conform with the concept of the office of Justice of the Supreme Court
contemplated in the Constitution.

The matters that concern the Court in the instant petitions do not involve
merely the individual interests of any single person or group of persons.
Besides, the stakes in these cases affect everyone commonly, not
individually. The current of history that has passed through the whole country
in the wake of martial law has swept all of us, sparing none, and the problem
of national survival and of restoring democratic institutions and Ideals is
seeking solution in the minds of all of us. That I have preferred to discuss
publicly my own thoughts on the matter cannot mean that my colleagues in
the Court have been indifferent and apathetic about it, for they too are
Filipinos. Articulated or not, all of us must have our own preconceived Ideas
and notions in respect to the situation that confronts the country. To be sure,
our votes and opinions in the- major political cases in the recent past should
more or less indicate our respective basic positions relevant to the issues
now before Us. Certainly, contending counsels cannot be entirely in the dark

The very nature of the office of Justice of the Supreme Court as the tribunal
of last resort and bulwark of the rights and liberties of all the people demands
that only one of dependable and trustworthy probity should occupy the same.
Absolute integrity, mental and otherwise, must be by everyone who is
appointed thereto. The moral character of every member of the Court must
be assumed to be such that in no case whatsoever. regardless of the issues
and the parties involved, may it be feared that anyone's life, liberty or
property, much less the national interests, would ever be in jeopardy of being
unjustly and improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of rising above
himself in every case and of having full control of his emotions and
prejudices, such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the appointing

power, to whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All appointments to the
Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I
shall now address myself to the grave issues submitted for Our resolution.
-IIn regard to the first issue as to whether the questions posed in the petitions
herein are political or justiciable, suffice it for me to reiterate the fundamental
position I took in the Martial Law cases, 1 thus
As We enter the extremely delicate task of resolving the grave issues
thus thrust upon Us. We are immediately encountered by absolute
verities to guide Us all the way. The first and most important of them is
that the Constitution (Unless expressly stated otherwise, all references
to the Constitution in this discussion are to both the 1935 and 1973
charters, since, after all, the pertinent provisions are practically Identical
in both is the supreme law of the land. This means among other things
that all the powers of the government and of all its officials from the
President down to the lowest emanate from it. None of them may
exercise any power unless it can be traced thereto either textually or by
natural and logical implication. "The second is that it is settled that the
Judiciary provisions of the Constitution point to the Supreme Court as
the ultimate arbiter of all conflicts as to what the Constitution or any part
thereof means. While the other Departments may adopt their own
construction thereof, when such construction is challenged by the
proper party in an appropriate case wherein a decision would be
impossible without determining the correct construction, the Supreme
Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive power conferred
upon the Executive by the Constitution is complete, total and unlimited,
so also, the judicial power vested in the Supreme Court and the inferior
courts, is the very whole of that power, without any limitation or
qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of all, that the
main question before Us is not in reality one of jurisdiction, for there
can be no conceivable controversy, especially one involving a conflict
as to the correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified,
it extends over all situations that call for the as certainment and
protection of the rights of any party allegedly violated, even when the
alleged violator is the highest official of the land or the government
itself. It is, therefore, evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne in mind that in the form of
government envisaged by the framers of the Constitution and adopted
by our people, the Court's indisputable and plenary authority to decide
does not necessarily impose upon it the duty to interpose its fiat as the
only means of settling the conflicting claims of the parties before it. It is

ingrained in the distribution of powers in the fundamental law that hand


in hand with the vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion to determine,
in consideration of the constitutional prerogatives granted to the other
Departments, when to refrain from imposing judicial solutions and
instead defer to the judgment of the latter. It is in the very nature of
republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or
thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by
their very nature, when one studiously considers the basic functions
and responsibilities entrusted by the charter to each of the great
Departments of the government. To cite an obvious example, the
protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being
within the ambit of judicial responsibility. The distinct role then of the
Supreme Court of being the final arbiter in the determination of
constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative
of the people articulated thru suffrage or thru the acts of their political
representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of
what is known in American constitutional law as the political question
doctrine, which in that jurisdiction is unquestionably deemed to be part and
parcel of the rule of law, exactly like its apparently more attractive or popular
opposite, judicial activism, which is the fullest exertion of judicial power, upon
the theory that unless the courts intervene injustice might prevail. It has been
invoked and applied by this Court in varied forms and mode of projection in
several momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87;
Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612;
Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag
vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs.
Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution
of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main
support of the stand of the Solicitor General on the issue of jurisdiction in the
cases at bar. It is also referred to as the doctrine of judicial self-restraint or
abstention. But as the nomenclatures themselves imply, activism and selfrestraint are both subjective attitudes, not inherent imperatives. The choice of
alternatives in any particular eventuality is naturally dictated by what in the
Court's considered opinion is what the Constitution envisions should be by in
order to accomplish the objectives of government and of nationhood. And
perhaps it may be added here to avoid confusion of concepts, that We are
not losing sight of the traditional approach based on the doctrine of
separation of powers. In truth, We perceive that even under such mode of
rationalization, the existence of power is secondary, respect for the acts of a
co-ordinate, co-equal and independent Department being the general rule,
particularly when the issue is not encroachment of delimited areas of
functions but alleged abuse of a Department's own basic prerogatives. (59
SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold that the
Court has jurisdiction to pass on the merits of the various claims of
petitioners. At the same time, however, I maintain that the basic nature of the
issues herein raised requires that the Court should exercise its
constitutionally endowed prerogative to refrain from exerting its judicial
authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts Us
stems from the absence of any clear and definite express provision in the
Charter applicable to the factual milieu herein involved. The primary issue is,
to whom, under the circumstances, does the authority to propose
amendments to the Constitution property belong? To say, in the light of
Section 15 of Article XVII of the Charter, that that faculty lies in the interim
National Assembly is to beg the main question. Indeed, there could be no
occasion for doubt or debate, if it could ' only be assumed that the interim
National Assembly envisaged in Sections 1 and 2 of the same Article XVII
may be convoked. But precisely, the fundamental issue We are called upon

to decide is whether or not it is still constitutionally possible to convene that


body. And relative to that question, the inquiry centers on whether or not the
political developments since the ratification of the Constitution indicate that
the people have in effect enjoined the convening of the interim National
Assembly altogether. On this score, it is my assessment that the results of
the referenda of January 10-15, 1973, July 27-28, 1973 and February 27,
1975 clearly show that the great majority of our people, for reasons plainly
obvious to anyone who would consider the composition of that Assembly,
what with its more than 400 members automatically voted into it by the
Constitutional Convention together with its own members, are against its
being convoked at all.
Whether or not such a manifest determination of the sentiments of the
people should be given effect without a formal amendment of the
Constitution is something that constitutional scholars may endlessly debate
on. What cannot be disputed, however, is that the government and the nation
have acquiesced to, it and have actually operated on the basis thereof.
Proclamation 1103 which, on the predicate that the overwhelming majority of
the people desire that the interim Assembly be not convened, has ordained
the suspension of its convocation, has not been assailed either judicially or
otherwise since the date of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what,
under these circumstances, is the constitutional relevance of the interim
National Assembly to any proposal to amend the Constitution at this time. It
is my considered opinion that in resolving that question, the Court must have
to grapple with the problem of what to do with the will of the people, which
although manifested in a manner not explicitly provided for in the
Constitution, was nevertheless official, and reliable, and what is more
important clear and unmistakable, despite the known existence of wellmeaning, if insufficiently substantial dissent. Such being the situation, I hold
that it is not proper for the Court to interpose its judicial authority against the
evident decision of the people and should leave it to the political department
of the government to devise the ways and means of resolving the resulting
problem of how to amend the Constitution, so long as in choosing the same,
the ultimate constituent power is left to be exercised by the people
themselves in a well- ordered plebiscite as required by the fundamental law.
-2Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter in the
manner provided in Presidential Decree 1033, I hold that in the peculiar
situation in which the government is today, it is not incompatible with the
Constitution for the President to propose the subject amendments for
ratification by the people in a formal plebiscite under the supervision of the
Commission on Elections. On the contrary, in the absence of any express
prohibition in the letter of the Charter, the Presidential Decree in question is
entirely consistent with the spirit and the principles underlying the
Constitution. The correctness of this conclusion should become even more
patent, when one considers the political developments that the people have
brought about since the ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a speech I
delivered on the occasion of the celebration of Law Day on September 18,
1975 before the members of the Philippine Constitution Association and their
guests:
To fully comprehend the constitutional situation in the Philippines today,
one has to bear in mind that, as I have mentioned earlier, the martial
law proclaimed under the 1935 Constitution overtook the drafting of the
new charter by the Constitutional Convention of 1971. It was inevitable,
therefore, that the delegates had to take into account not only the
developments under it but, most of all, its declared objectives and what
the President, as its administrator, was doing to achieve them. In this
connection, it is worthy of mention that an attempt to adjourn the
convention was roundly voted down to signify the determination of the

delegates to finish earliest their work, thereby to accomplish the


mission entrusted to them by the people to introduce meaningful
reforms in our government and society. Indeed, the constituent labors
gained rapid tempo, but in the process, the delegates were to realize
that the reforms they were formulating could be best implemented if the
martial law powers of the President were to be allowed to subsist even
after the ratification of the Constitution they were approving. This
denouement was unusual. Ordinarily, a constitution born out of a crisis
is supposed to provide all the needed cures and can, therefore, be
immediately in full force and effect after ratification. Not so, with our
1973 Constitution, Yes, according to the Supreme Court, 'there is no
more judicial obstacle to the new Constitution being considered in force
and effect', but in truth, it is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory
provisions. It is imperative to do so because the transitory provisions of our
Constitution are extraordinary in the sense that obviously they have been
designed to provide not only for the transition of our government from the
presidential form under the past charter to a parliamentary one as envisaged
in the new fundamental law, but also to institutionalize, according to the
President, the reforms introduced thru the exercise of his martial law powers.
Stated differently, the transitory provisions, as it has turned out, has in effect
established a transition government, not, I am sure, perceived by many. It is
a government that is neither presidential nor parliamentary. It is headed, of
course, by President Marcos who not on retains all his powers under the
1935 Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and does
legislate alone. But to be more accurate, I should say that he legislates alone
in spite of the existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has suspended
the convening of said assembly by issuing Proclamation No. 1103
purportedly 'in deference to the sovereign will of the Filipino people'
expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people, and
after the votes were counted and the affirmative majority known, we were
told that the resulting ratification was subject to the condition that the interim
National Assembly evidently established in the Constitution as the distinctive
and indispensable element of a parliamentary form of government should
nevertheless be not convened and that no elections should be held for about
seven years, with the consequence that we have now a parliamentary
government without a parliament and a republic without any regular election
of its officials. And as you can see, this phenomenon came into being not by
virtue of the Constitution but of the direct mandate of the sovereign people
expressed in a referendum. In other words, in an unprecedented extraconstitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential Decree
No. 86, which later on have been transformed into barangays, a system of
government proclaimed by the President as 'a real achievement in
participatory democracy.' What I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional authoritarianism means, in
the final analysis, that the fundamental source of authority of our existing
government may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums conducted by
the Commission on Elections in a manner well known to all of us This, as I
see it, is perhaps what the President means by saying that under the new
Constitution he has extra-ordinary powers independently of martial law powers sanctioned directly by the people which may not even be read in the
language of the Constitution. in brief, when we talk of the rule of law
nowadays, our frame of reference should not necessarily be the Constitution
but the outcome of referendums called from time to time by the President.
The sooner we imbibe this vital concept the more intelligent will our
perspective be in giving our support and loyalty to the existing government.
What is more, the clearer will it be that except for the fact that all the powers
of government are being exercised by the President, we - do not in reality
have a dictatorship but an experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum


of February 27, 1975. It is important to note, relative to the main issue now
before Us, that it was originally planned to ask the people in that referendum
whether or not they would like the interim National Assembly to convene, but
the Comelec to whom the task of preparing the questions was assigned was
prevailed upon not to include any -such question anymore, precisely
because it was the prevalent view even among the delegates to the
Convention as well as the members of the old Congress concerned that that
matter had already been finally resolved in the previous referenda of January
and July 1973 in the sense that. the Assembly should not be convened
comparable to res adjudicata.
It is my position that as a result of the political developments since January
17, 1973 the transitory provisions envisioning the convening of the interim
National Assembly have been rendered legally inoperative. There is no doubt
in my mind that for the President to convoke the interim National Assembly
as such would be to disregard the will of the people - something no head of a
democratic republican state like ours should do. And I find it simply logical
that the reasons that motivated the people to enjoin the convening of the
Assembly - the unusually large and unmanageable number of its members
and the controversial morality of its automatic composition consisting of all
the incumbent elective national executive and legislative officials under the
Old Constitution who would agree to join it and the delegates themselves to
the Convention who had voted in favor of the Transitory Provisions - apply
not only to the Assembly as an ordinary legislature but perhaps more to its
being a constituent body. And to be more realistic, it is but natural to
conclude that since the people are against politicians in the old order having
anything to do with the formulation of national policies, there must be more
reasons for them to frown on said politicians taking part in amendment of the
fundamental law, specially because the particular amendment herein
involved calls for the abolition of the interim National Assembly to which they
belong and its substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution
is not contemplated. I disagree. It is inconsistent with the plenary power of
the people to give or withhold their assent to a proposed Constitution to
maintain that they can do so only wholly. I cannot imagine any sound
principle that can be invoked to support the theory that the proposing
authority can limit the power of ratification of the people. As long as there are
reliable means by which only partial approval can be manifested, no cogent
reason exists why the sovereign people may not do so. True it is that no
proposed Constitution can be perfect and it may therefore be taken with the
good and the bad in it, but when there are feasible ways by which it can be
determined which portions of it, the people disapprove. it would be stretching
technicality beyond its purported office to render the final authority - the
people impotent to act according to what they deem best suitable to their
interests.
In any event, I feel it would be of no consequence to debate at length
regarding the legal feasibility of qualified ratification. Proclamation 1103
categorically declares that:
WHEREAS, fourteen million nine hundred seventy six
thousand five hundred sixty-one (14,976.561)
members of all the Barangays voted for the adoption of
the proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; but a majority of
those who approved the new Constitution conditioned
their votes on the demand that the interim National
Assembly provided in its Transitory Provisions should
not be convened.
and in consequence, the President has acted accordingly by not convening
the Assembly. The above factual premises of Proclamation 1103 is not
disputed by petitioners. Actually, it is binding on the Court, the same being a
political act of a coordinate department of the government not properly

assailed as arbitrary or whimsical. At this point, it must be emphasized in


relation to the contention that a referendum is only consultative, that
Proclamation 1103, taken together with Proclamation 1102 which proclaimed
the ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel if the
Act of ratification of the Constitution, hence not only persuasive but
mandatory. In the face of the incontrovertible fact that the sovereign people
have voted against the convening of the interim National Assembly, and
faced with the problem of amending the Constitution in order precisely to
implement the people's rejection of that Assembly, the problem of
constitutional dimension that confronts Us, is how can any such amendment
be proposed for ratification by the people?
To start with, it may not be supposed that just because the office or body
designed by the constitutional convention to perform the constituent function
of formulating proposed amendments has been rendered inoperative by the
people themselves, the people have thereby foreclosed the possibility of
amending the Constitution no matter how desirable or necessary this might
be. In this connection, I submit that by the very nature of the office of the
Presidency in the prevailing scheme of government we have - it being the
only political department of the government in existence - it is consistent with
basic principles of constitutionalism to acknowledge the President's authority
to perform the constituent function, there being no other entity or body
lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is
conceded by petitioners that with the non-convening of the interim Assembly,
the legislative authority has perforce fallen into the hands of the President, if
only to avoid a complete paralysis of law-making and resulting anarchy and
chaos. It is likewise conceded that the provisions of Section 3 (2) of Article
XVII invest the President with legislative power for the duration of the
transition period. From these premises, it is safe to conclude that in effect the
President has been substituted by the people themselves in place of the
interim Assembly. Such being the case, the President should be deemed as
having been granted also the cognate prerogative of proposing amendments
to the Constitution. In other words, the force of necessity and the cognate
nature of the act justify that the department exercising the legislative faculty
be the one to likewise perform the constituent function that was attached to
the body rendered impotent by the people's mandate. Incidentally, I reject
most vehemently the proposition that the President may propose
amendments to the Constitution in the exercise of his martial law powers.
Under any standards, such a suggestion cannot be reconciled with the Ideal
that a Constitution is the free act of the people.
It was suggested during the oral, argument that instead of extending his
legislative powers by proposing the amendment to create a new legislative
body, the President should issue a decree providing for the necessary
apportionment of the seats in the Regular National Assembly and call for an
election of the members thereof and thus effect the immediate normalization
of the parliamentary government envisaged in the Constitution. While indeed
procedurally feasible, the suggestion overlooks the imperative need
recognized by the constitutional convention as may be inferred from the
obvious purpose of the transitory provisions, for a period of preparation and
acquaintance by all concerned with the unfamiliar distinctive features and
practices of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there should be an
interim parliament under the present leadership, which will take the
corresponding measures to effectuate the efficient and smooth transition
from the present system to the new one. I do not believe this pattern set by
the convention should be abandoned.
The alternative of calling a constitutional convention has also been
mentioned. But, in the first place, when it is considered that whereas, under
Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a
Constitutional Convention or submit such a call for approval of the people,
Section 15 of Article XVII, in reference to interim National Assembly, does not
grant said body the prerogative of calling a convention, one can readily
appreciate that the spirit of the Constitution does not countenance or favor

the calling of a convention during the transition, if only because such a


procedure would be time consuming, cumbersome and expensive. And when
it is further noted that the requirement as to the number of votes needed for
a proposal is only a majority, whereas it is three-fourths in respect to regular
Assembly, and, relating this point to the provision of Section 2 of Article XVI
to the effect that all ratification plebiscites must be held "not later than three
months after the approval" of the proposed amendment by the proposing
authority, the adoption of the most simple manner of amending the charter,
as that provided for in the assailed Presidential Decree 1033 suggests itself
as the one most in accord with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on the letter of
the Constitution for the purpose of amending or changing the same. To cite
but one important precedent, as explained by Mr. Justice Makasiar in his
concurring opinion in Javellana 2, the present Constitution of the United
States was neither proposed nor ratified in the manner ordained by the
original charter of that country, the Articles of Confederation and Perpetual
Union.
In brief. if the convening and operation of the interim National Assembly has
been effectuated through a referendum-plebiscite in January, 1973, and
ratified expressly and impliedly in two subsequent referenda, those of July,
1973 and February, 1975, why may not a duly held plebiscite suffice for the
purpose of creating a substitute for that Assembly? It should be borne in
mind that after all, as indicated in the whereas of the impugned Presidential
Decree, actually, the proposed amendments were initiated by the barangays
and sanggunian members. In other words, in submitting the amendments for
ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval of the
people as a whole of the amendments in question. If all these mean that the
sovereign people have arrogated unto themselves the functions relative to
the amendment to the Constitution, I would regard myself as totally devoid of
legal standing to question it, having in mind that the most fundamental tenet
on which our whole political structure rests is that "sovereignty resides in the
people and all government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree
No. 1033 does not infringe the Constitution, if only because the specific
provision it is supposed to infringe does not exist in legal contemplation since
it was coevally made inoperative when the people ratified the Constitution on
January 17, 1973. I am fully convinced that there is nothing in the procedure
of amendment contained in said decree that is inconsistent with the
fundamental principles of constitutionalism. On the contrary, I find that the
Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable
the people to sufficiently comprehend the issues and intelligently vote in the
referendum and plebiscite set by Presidential Decree 1033, all I can say is
that while perhaps my other colleagues are right in holding that the period
given to the people is adequate, I would leave it to the President to consider
whether or not it would be wiser to extend the same. Just to avoid adverse
comments later I wish the President orders a postponement. But whether
such postponement is ordered or not, date of the referendum- plebiscite
anywhere from October 16, 1976 to any other later date, would be of no vital
import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided
ultimately by the people in their sovereign capacity, the question is political
as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051),
which is a bar to any judicial inquiry, for the reasons stated in Our opinion in
Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs.

Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et


al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al.
(@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283, March
31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not
important Ratification by the people is all that is indispensable to validate an
amendment. Once ratified, the method of making the proposal and the
period for submission become relevant.
The contrary view negates the very essence of a republican democracy that the people are sovereign - and renders meaningless the emphatic
declaration in the very first provision of Article II of the 1973 Constitution that
the Philippines is a republican state, sovereignty resides in the people and all
government authority emanates from them. It is axiomatic that sovereignty is
illimitable The representatives cannot dictate to the sovereign people. They
may guide them; but they cannot supplant their judgment, Such an opposite
view likewise distrusts the wisdom of the people as much as it despises their
intelligence. It evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who are not in the
public service, who are more learned and better skilled than many of their
elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004,
Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or
administrator of martial rule during the period of martial law can legislate;
and that he has the discretion as to when the convene the interim National
Assembly depending on prevailing conditions of peace and order. In view of
the fact that the interim National Assembly has not been convoked in
obedience to the desire of the people clearly expressed in the 1973
referenda, the President therefore remains the lone law-making authority
while martial law subsists. Consequently, he can also exercise the power of
the interim National Assembly to propose amendments to the New
Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman
(L-44684), former delegate to the 1971 Constitutional Convention which
drafted the 1973 Constitution. the President, during the period of martial law,
can call a constitutional convention for the purpose, admittedly a constituent
power, it stands to reason that the President can likewise legally propose
amendments to the fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political question". It must
be noted that this device has been utilized by the judiciary "to avoid
determining questions it is ill equipped to determine or that could be settled
in any event only with the effective support of the political
branches." 1 According to Weston, judges, whether "personal representatives
of a truly sovereign king, or taking their seats as the creatures of a largely
popular sovereignty speaking through a written constitution, derive their
power by a delegation, which clearly or obscurely as the case may be,
deliminates and delimits their delegated jurisdiction.* * * Judicial questions * *
* are those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the socalled political departments of government or has reserved to be settled by
its own extra-government or has reserved to be settled by its own extragovernmental action." 2 Reflecting a similar concept, this Court has defined a
"political question" as a "matter which is to be exercised by the people in
their primary political capacity or that has been specifically delegated to
some other department or particular officer of the government, with
discretionary power to act." 3 In other words, it refers to those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. 4
In determining whether an issue falls within the political question category,
the absence of satisfactory creterion for a judicial determination or the
appropriateness of attributing finality to the action of the political departments

of government is a dominant consideration. This was explained by Justice


Brennan in Baker v. Carr, 5 thus :
Prominent on the surface of any case held to involve political question
is found a textually demonstrable constitutional lack of judicially
discoverrable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from from multifarious pronouncements
by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained be the people to be
decided by them in their sovereign capacity, or whether that branch exceeds
whatever authority has been committed, is indeed a delicate exercise in
constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy
of the ratification by state legislatures of a constitutional amendment is a
political question. On the question of whether the State Legislature could
constitutionally relative an amendment, after the same had been previously
rejected by it, it was held that the ultimate authority over the question was in
Congress in the exercise of its control over the promulgation of the adoption
of the amendment. And in connection with the second question of whether
the amendment has lost its, vitality through the lapse of time, the Court held
that the question was likewise political, involving "as it does ... an appraisal
of a great variety of relevant conditions, political, social and economic, which
can hardly be said to be within the appropriate range of evidence receivable
in a court of justice and as to which it would be an extravagant extension of
juridical authority to assert judicial notice as the basis of deciding a
controversy with respect to the validity of an amendment actually ratified. On
the other hand, these conditions are appropriate for the consideration of the
political departments of the Government. The questions they involve are
essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and
Douglas stressed that:
The Constitution grants Congress exclusive power to control
submission off constitutional amendments. Final determination by
Congress their ratification by three-fourths of the States has taken
place 'is conclusive upon the courts.' In the exercise of that power,
Congress, of course, is governed by the Constitution. However, A
whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the
Constitution, call for decisions by apolitical department of questions of a
t@ which this Court has frequently designated 'political.' And decision
of a 'political question' by the political department' to which the
Constitution has committed it 'conclusively binds the judges, as well as
all other officers, citizens and subjects of ... government. Proclamation
under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has
taken place as the Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the Constitution,
learning to the judiciary its traditional authority of interpretation. To the
extent that the Court's opinion in the present case even by implieding
assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and by ratification
of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in
Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled
that the process of constitutional amendment, involving proposal and
ratification, is a political question. In the Mabang case, the petitioners sought

to prevent the enforcement of a resolution of Congress proposing the "Parity


Amendment" to the Philippine Constitution on the ground that it had not been
approved by the three-fourths vote of all the members of each house as
required be Article XV of the 1935 Constitution. It was claimed that three (3)
Senators and eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the
determination of the three- fourths %- ore In dismissing the petition on the
ground that the question of the validity of the proposal was political, the
Court stated:
"If ratification of an amendment is a political question, a proposal which leads
to ratification has to be a political question. The question to steps
complement each other in a scheme intended to achieve a single objective.
It is to be noted that amendatory process as provided in Section I of Article
XV of the Philippine Constitution 'consists of (only) two distinct parts:
proposal and ratification.' There is no logic in attaching political character to
one and withholding that character from the other. Proposal to amend the
Constitution is a highly political function performed by the Congress in its
sovereign legislative capacity and committed to its charge by the Constitution
itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue
whether or not a Resolution of Congress, acting as a constituent assembly violates the Constitution is essentially justiciable, not political, and hence,
subject to judicial review." What was involved in Gonzales, however, was not
a proposed What was involved in Gonzales, however, was not a proposed
amendment to the Constitution but an act of Congress, 9 submitting proposed
amendments to the Constitution. Similarly, in Tolentino v. Commission an
Elections, 10 what was involved was not the validity of the proposal to lower
the voting age but rather that of the resolution of the Constitutional
Convention submitting the proposal for ratification. The question was
whether piecemeal amendments to the Constitution could submitted to the
people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for
and in behalf of the people in proposing the amendment. there can be no
question that in the referendums of January, 1973 and in the subsequent
referendums the people had clearly and categorically rejected the calling of
the interim National Assembly. As stated in the main opinion, the Lupang
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang
Barangay organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and the
Sanggunian assemblies are effective instrumentalities through which the
desires of the people are articulated and expressed. The Batasang Bayan
(Legislative Council), composed of nineteen (19) cabinet members and nine
(9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga
Sangguniang Bayani voted in their special session to submit directly to the
people in a plebiscite on October 16, 1976 the afore-mentioned constitutional
amendments. Through the Pambansang Katipunan by Barangay and the
Pampurok ng Katipunan Sangguniang Bayan, the people have expressed
their desire not only to abolish the interim National Assembly, but to replace it
with a more representative body acceptable to them in order to effect the
desirable constitutional changes necessary to hasten the political evolution
of the government towards the parliamentary system, while at the same time
ensuring that the gains of the New Society, which are vital to the welfare of
the people, shall be safeguarded. The proposed constitutional amendments,
therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly should have
been convened to propose those amendments pursuant to Section 15 of
Article XVII of the Constitution. This Court, in the case of Aquino v.
Commission or Elections, 11 took judicial notice of the fact that in the
referendum of January, 1973, a majority of those who approved the new

Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be and the
President "in deference to the sovereign will of the Filipino people" declared
that the convening of said body shall be suspended. 12 As this Court
observed in the Aquino case:

October 16. The political character of the question is, therefore, particularly
manifest, considering that ultimately it is the people who will decide whether
the President has such authority. It certainly involves a matter which is to be
exercised by the people in their sovereign capacity, hence, it is essentially
political, not judicial.

His decision to defer the initial convocation of the byiitttit National


Assembly was supported by the sovereign people at the by referendum
in January, 1973 when the people voted to postpone the convening of
the interim National Assembly until after at least seven (7) years from
the approval of the new Constitution. And the reason why the same
question was eliminated from the questions to be submitted at the
referendum on February 27, 1975, is that even some members of the
Congress and delegates of the Constitutional Convention, who are
already byjso ofitto members of the intetini National Assembly are
against such inclusion; because the issue was already bycciled in the
January, 1973 referendum by the sovereign people indicating thereby
their disenchantment with any Assembly as the former Congress failed
to institutionalize the reforms they demanded and wasted public funds
through endless debates without relieving the suffering of the general
mass of citizenry (p. 302.) The action of the President in suspending
the convening of the interim National Assembly has met the
overwhelming approval of the people in subsequent referenda.

While it is true that the constituent power is not to be confuse with legislative
power in general because the prerogative to propose amendments is not
embraced within the context of ordinary lawmaking, it must be noted that the
proposals to be submitted for ratification in the forthcoming referendum are,
in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage
of the transition period of our political development, the conclusion is
ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on whether or not the President is
vested with constituent power - as it does not appear necessary to do
so in the premises - the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not
only because the President, in exercising said authority, has acted as a
mere ofiffet byf of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than
constituent.

Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be accepted as a necessary consequence that
their objection against the immediate convening of the interim National
Assembly must be respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people
and all government authority emanates from them."13 The term "People" as
sovereign is comprehensive in its context. The people, as sovereign creator
of all political reality, is not merely the enfranchised citizens but the political
unity of the people. 14 It connotes, therefore, a people which exists not only
in the urgent present but in the continuum of history. The assumption that the
opinion of The People as voters can be treated as the expression of the
interests of the People as a historic community was, to the distinguished
American journalist and public philosopher, Walter Lipunan, unwarranted.

This is but a recognition that the People of the Philippines have the
inherent, sole and exclusive right of regulating their own government,
and of altering or abolishing their Constitution whenever it may be
necessary to their safety or happiness. There appears to be no
justification, under the existing, circumstances, for a Court to create by
implication a limitation on - the sovereign power of the people. As has
been clearly explained in a previous case:

Because of the discrepancy between The People as Voters and the


People as the corporate nation, the voters have no title to consider
themselves the proprietors of the commonwealth and to claim that their
interests are Identical to the public interest. A prevailing plurality of the
voters are not The People. The claim that they are is a bogus title
invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by
demagogue politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested
with the authority of The People. That is why so many crimes are
committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power
to propose amendments or to amend the Constitution is part of the inherent
power of the people as the repository of sovereignty in a republican state.
While Congress may propose amendments to the Constitution, it acts
pursuant to authority granted to it by the people through the Constitution.
Both the power to propose and the authority to approve, therefore, inhere in
the people as the bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority to exercise constituent powers, it
follows from necessity that either the people should exercise that power
themselves or through any other instrumentality they may choose. For Law,
like Nature, abhors a vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for the
people in submitting such proposals for ratification at the plebiscite of

There is nothing in the nature of the submission which should cause


the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box,
and there can never be danger in submitting in an established form to a
free people, the proposition whether they will change their fundamental
law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to
trammel the exercise of the right. Difficulties and embarrassments in its
exercise are in derogation of the right of free government, which is
inherent in the people; and the best security against tumult and
revolution is the free and unobstructed privilege to the people of the
State to change their constitution in the mode prescribed by the
instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing
opinion is the necessity of ensuring popular control over the constituent
power. "If the people are to control the constituent power - the power to make
and change the fundamental law of the State," observed Wheeler," "the
process of Constitutional change must not be based too heavily upon
existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man. can be trusted to
determine his political destiny. Therefore, it is time that the people should be

accorded the fullest opportunity to decide the laws that shall provide for their
governance. For in the ultimate analysis, the success of the national
endeavor shall depend on the vision, discipline and I by ininess of the
moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.

should not be construed as limiting the ultimate sovereign will of the people
to decide on amendments to the Constitution .2 Such a view will seriously
undermine the very existence of a constitutional government and will permit
anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the
rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:

Aquino, J., concur.


MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting
opinion of my distinguished colleague, Justice Claudio Teehankee. If I am
writing this brief statement it is only to unburden myself of some thoughts
which trouble my mind and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely
and at times precarious road, the burden byeing lightened only by the
thought that in this grave task of administering justice, when matters of
conscience are at issue, one must be prepared to espouse and embrace a
rightful cause however unpopular it may be.
1. That sovereignty resides in the people and all government authority
emanates from them is a fundamental, basic principle of government which
cannot be disputed, but when the people have opted to govern themselves
under the mantle of a written Constitution, each and every citizen, from the
highest to the lowliest, has the sacred duty to respect and obey the
Character they have so ordained.
By the Constitution which they establish, they not only
tie up he hands of their official agencies, but their own
hands as well; and neither the officers of the state, nor
the whole people as an aggregate body, are at liberty
to take action in opposition to this fundamental law.
(Cooley's Constitutional Limitations, 7th Ed. p. 56,
Italics Our).
The afore-quoted passage from the eminent jurist and author Judge Cooley
although based on declarations of law of more than a century ago, lays down
a principle which to my mind is one of the enduring cornerstones of the Rule
of Law. it is a principle with which I have been familiar as a student of law
under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice
Jose P. Laurel, and which I pray will prevail at all times to ensure the
existence of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a democratic
republican form of government, have promulgated a Constitution whereby
the power to govern themselves has been entrusted to and distributed
among three branches of government; they have also mandated in clear and
unmistakable terms the method by which provisions in their fundamental
Charter may be amended or revised. Having done so, the people are bound
by these constitutional limitations. For while there is no surrender or
abdication of the people's ultimate authority to amend, revise, or adopt a new
Constitution, sound reason demands that they keep themselves within the
procedural bounds of the existing fundamental law. The right of the people to
amend or change their Constitution if and when the need arises is not to be
denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and
legitimate processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General that
the people, being sovereign, have the authority to amend the Constitution
even in a manner different from and contrary to that expressly provided for in
that instrument, and that the amendatory process is intended more as a
limitation of a power rather than a grant of power to a particular agency and it

. . . the amendatory provisions are called a 'constitution


of sovereighty' because they define the constitutional
meaning of 'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine
Constitution, is not extreme popular sovereignty. As
one American writer put it:
A constitution like the American one serves as a basic
check upon the popular will at any given time. It is the
distinctive function of such written document to classify
certain things as legal fundamentals; these
fundamentals may not be changed except by the slow
and cumbersome process of amendment. The people
themselves have decided, in constitutional convention
assembled, to limit themselves ana future generations
in the exercise of the sovereign power which they
would otherwise possess. And it is precisely such
limitation that enables those subject to governmental
authority to appeal from the people drunk to the people
sober in time of excitement and hysteria. The
Constitution, in the neat phrase of the Iowa court, is
the protector of the people against injury by the
.people. *
Truly, what need is there for providing in the Constitution a process by which
the fundamental law may be amended if, after all, the people by themselves
can set the same at naught even in times of peace when civil authority reigns
supreme? To go along with the respondents' theory in this regard is to render
written Constitutions useless or mere "ropes of sand allowing for a
government of men instead of one of laws. For it cannot be discounted that a
situation may arise where the people are heralded to action at a point of a
gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes. History
has recorded such instances, and I can think of no better example than that
of Jesus Christ of Judea who was followed and loved by the people while
curing the sick, making the lame walk and the blind see, but shortly was
condemned by the same people turned into fanatic rabble crying out "Crucify
Him, Crucify Him" upon being incited into action by chief priests and elders of
Jerusalem. Yes, to quote once more from Judge Cooley:
A good Constitution should be beyond the reason of
temporary excitement and popular caprice or passion.
It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the
people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if
the government is to be sale can be allowed efficiency.
.... Changes in government are to be feared unless the
benefit is certain." (quoted in Ellingham v. Dye, 99 N.E.
1, 15,) 3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v.
Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus,
152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx


It has been said that changes in the constitution may
be introduced in disregard of its provisions; that if the
majority of the people desire a change the majority
must be respected, no matter how the change may be
effected; and that the change, if revolution, is peaceful
resolution. ...
We fear that the advocates of this new doctrine, in a
zeal to accomplish an end which the majority of the
people desire, have looked at but one phase of the
question, and have not fully considered the terrible
consequences which would almost certainly follow a
recognition of the doctrine for which they contend. It
may be that the incorporation of this amendment in the
constitution, even if the constitution has to be broken
to accomplish it, would not of itself produce any
serious results. But if it should be done by sanctioning
the doctrine contended for, a precedent would be set
which would plague the state for all future time. A
Banquo's ghost would arise at our incantation which
would not down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine
so fraught with danger to republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of
the staff This section is a portion of the bill of rights, and is as follows: 'All
political power is inherent in the people. Government is instituted for the
protection, security, and benefit of of the people; and they have the right at all
times to alter or reform the same, whenever the public good may require.'
Abstractly considered, there can bye no doubt of the correctness of the
propositions embraced in this suction. These principles are older than
constitutions and older than governments. The people did not derive the
rights referred to by on the constitution. and, in their nature, thee are such
that the people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national
referendum-plebiscite on October 16, 1976 for the purpose, among other
things, of amending certain provisions of the 1973 Constitution are null and
void as they contravene the express provisions on the amending process of
the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII,
Section 15, more particularly the latter which applies during the present
transition period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there is no by
tterint National Assembly which may propose amendments to the
Constitution, the existence of a so-called "vacuum" or "hiatus" does not
justify a transgression of the constitutional provisions on the manner of
amending the fundamental law. We cannot cure one infirmity - the existence
of a "vacuum" caused by the non-convening of the interim National Assembly
- with another infirmity, that is, doing violence to the Charter.
All great mutations shake and disorder a state. Good
does not necessarily succeed evil; another evil may
succeed and a worse. (Am. Law Rev. 1889, p. 311.,
quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the
purpose indicated is a step necessary to restore the state of normalcy in the

country. To my mind, the only possible measure that will lead our country and
people to a condition of normalcy is the lifting or ending of the state of martial
law. If I am constrained to make this statement it is because so much stress
was given during the hearings of these cases on this particular point, leaving
one with the impression that for petitioners to contest the holding of the
October 16 referendum-plebiscite is for them to assume a position of
blocking or installing the lifting of martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the connection between the two. My
esteemed colleagues should pardon me therefore if I had ventured to state
that the simple solution to the simple solution to the present dilemma is the
lifting of martial law and the implementation of the constitutional provisions
which will usher in the parliamentary form of government ordained in the
Constitution, which, as proclaimed in Proclamation 1102, the people
themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound
by their act and cannot escape from the pretended unfavorable
consequences thereof, the only y being to set in motion the constitutional
machinery by which the supposed desired amendments may properly be
adopted and submitted to the electorate for ratification. Constitutional
processes are to be observed strictly, if we have to maintain and preserve
the system of government decreed under the fundamental Charter. As said
by Justice Enrique Fernando in Mutuc vs. Commission on Elections
... The concept of the Constitution as the fundamental
law, setting forth the criterion for the validity of any
public act whether proceeding from the highest official
or the lowest funcitonary, is a postulate of our system
of government. That is to manifest fealty to the rule of
law, with priority accorded to that which occupies the
topmost rung in the legal hierarchy. ... (36 SCRA, 228,
234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of
Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye,
(supra, p. 7) liberty and popular sovereignty are not meant to give rein to
passion or thoughtless impulse but to allow the exercise of power by the
people for the general good by tistlercoitaitt restraints of law. 3 . The true
question before Us is is one of power. Does the incumbent President of the
Philippines possess constituent powers? Again, the negative answer is
explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent
powers on theory that he is vested with legislative powers as held by this
Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L40004, January 31, 1975. 1 wish to stress that although in my separate
opinion in said case I agreed that Section 3 (2) of the Transitory provisions
grants to the incumbent President legislative powers, I qualified my
statement as follows:
.... As to, whether, or not, this unlimited legislative
qqqjwwel of the President continues by exist even after
the ratification of the Constitution is a matter which I
am not ready to concede at the moment, and which at
any rate I believe is not essential in resolving this
Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue
proclamations, orders, decrees, etc. to carry out and
implement the objectives of the proclamation of martial
law be it under the 1935 or 1973 Constitution, and for
the orderly and efficient functioning of the government,
its instrumentalities, and agencies. This grant of
legislative power is necessary to fill up a vacuum
during the transition period when the interim National
Assembly is not yet convened and functioning, for
otherwise, there will be a disruption of official functions

resulting in a collapse of the government and of the


existing social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in
the Charter, and the 1973 Constitution contains provisions in this regard.
This is well-explained in Justice Teehankee's Opinion. The state of necessity
brought about by the current political situation, invoked by the respondents,
provides no source of power to propose amendments to the existing
Constitution. Must we "bend the Constitution to suit the law of the hour or
cure its defects "by inflicting upon it a wound which nothing can heal commit
one assault after the other "until all respect for the fundamental law is lost
and the powers of government are just what those in authority please to call
them?'" 5 Or can we now ignore what this Court, speaking through Justice
Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental
law purportedly by order to attain some laudable
objective bear in mind that someday somehow others
with purportedly more laudable objectives may take
advantages of the precedent in continue the
destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the
requirements of the Constitution the victims of their
own folly. 6
Respondents emphatically assert that the final word is the people's word and
that ultimately it is in the hands of the people where the final decision rests.
(Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be
an expression of the will of the people a normal political situation and not
under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et
al., supra, a referendum (and now a plebiscite) held under a regime of
martial law can be of no far reaching significance because it is being
accomplished under an atmosphere or climate of fear as it entails a wide
area of curtailment and infringement of individual rights, such as, human
liberty, property rights, rights of free expression and assembly, protection
against unreasonable searches and seizures, liberty of abode and of travel,
and so on.
4. The other issues such as the sufficiency and proper submission of the
proposed amendments for ratification by the people are expounded in
Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to
state that the thrust of the proposed amendments is the abolition of the
interim National Assembly and its substitution with an "interim Batasang
Pambansa their in by in Proposed amendment No. 6 will permit or allow the
concentration of power in one man - the Executive - Prime Minister or
President or whatever you may call him - for it gives him expressly (which the
1973 Constitution or the 1935 Constitution does not) legislative powers even
during the existence of the appropriate legislative body, dependent solely on
the executive's judgment on the existence of a grave emergency or a threat
or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted however
by what can happen in the future, when we shall all be gone. Verily, this is a
matter of grave concern which necessitates full, mature, sober deliberation of
the people but which they can do only in a climate of freedom without the
restraints of martial law. I close, remembering what Claro M. Recto,
President of the Constitutional Convention which drafted the 1935 Philippine
Constitution, once said: .

... Nor is it enough that our people possess a written constitution in


order that their government may be called constitutional. To be
deserving of this name, and to drive away all lanirer of anarchy as well
as of dictatorship whether by one man or a few, it is necessary that
both the government authorities and the people faithfully observe and
obey the constitution, and that the citizens be duly conversant not only
with their rights but also with their duties... 7
Jose P. Laurel who served his people as Justice of the Supreme Court of this
country gave this reminder; the grave and perilous task of halting
transgressions and vindicating cherished rights is reposed mainly oil the
Judiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.' On the basis of the foregoing, I vote to declare
Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the
implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to
those questions which, under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the wisdom,
not legality, of a particular measure. 1
Here, the question raised is whether the President has authority to propose
to the people amendments to the Constitution which the petitioners claim is
vested solely upon the National Assembly, the constitutional convention
called for the purpose, and the by the National Assembly. This is not a
political question since it involves the determination of conflicting claims of
authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not
a Resolution of Congress, acting as a constituent assembly, violates the
Constitution, ruled that the question is essentially justiciable, not political,
and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its
position regarding its jurisdiction vis-a-vis the constitutionality of the acts of
Congress, acting as a constituent assembly, as well as those of a
constitutional convention called for the purpose of proposing amendments to
the constitution. Insofar as observance of constitutional provisions on the
procedure for amending the constitution is concerned, the issue is
cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendumplebiscite will help resolve the issue. It is to be noted that under the 1973
Constitution, an interim National Assembly was organized to bring about an
orderly transition from the presidential to the parliamentary system of
government.' The people, however, probably distrustful of the members who
are old time politicians and constitutional delegates who had voted
themselves by to membership in the interim National Assembly, voted
against the convening of the said interim assembly for at least seven years
thus creating a political stalemate and a consequent delay' in the
transformation of the government into the parliamentary system. To resolve
the impasse, the President, at the instance of the barangays and sanggunian
assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by
interim National Assembly with another interim body truly representative of
the people in a reformed society, issued Presidential Decree No. 991, on
September 2, 1976, calling for a national referendum on October -16, 1976
to ascertain the wishes of the people as to the ways and means that may be

available to attain the objective; providing for a period of educational and


information campaign on the issues; and establishing the mechanics and
manner for holding thereof. But the people, through their barangays,
addressed resolutions to the Batasang Bayan, expressing their desire to
have the constitution amended, thus prompting the President to issue
Presidential Decree No. 1033, stating the questions to @ submitted to the
people in the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed from
the interim National Assembly and transferred to the seat of sovereignty
itself. Since the Constitution emanates from the people who are the
repository of all political powers, their authority to amend the Constitution
through the means they have adopted, aside from those mentioned in the
Constitution, cannot be gainsaid. Not much reflection is also needed to show
that the President did not exercise his martial law legislative powers when he
proposed the amendments to the Constitution. He was merely acting as an
instrument to carry out the will of the people. Neither could he convene the
interim National Assembly, as suggested by the petitioners, without doing

violence to the people's will expressed overwhelmingly when they decided


against convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed amendments is
reasonably long and enough to afford intelligent discussion of the issues to
be voted upon. PD 991 has required the barangays to hold assemblies or
meetings to discuss and debate on the referendum questions, which in fact
they have been doing. Considering that the proposed amendments came
from the representatives of the people themselves, the people must have
already formed a decision by this time on what stand to take on the proposed
amendments come the day for the plebiscite. Besides, the Constitution itself
requires the holding of a plebiscite for the ratification of an amendment not
later than three (3) months after the approval of such amendment or revision
but without setting a definite period within which such plebiscite shall not be
held. From this I can only conclude that the framers of the Constitution
desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.

EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA &
CARMEN PEDROSA, in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI),
INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly
propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent 1 and the main sponsor 2 of
the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative". 3 Indeed it is, for both under the
1935 and 1973 Constitutions, only two methods of proposing amendments
to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed, we resolved
to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a
"Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by
People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the
COMELEC for an order
1. Fixing the time and dates for signature gathering all
over the country;
2. Causing the necessary publications of said Order
and the attached "Petition for Initiative on the 1987
Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time
and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement
for People's Initiative, 6 a group of citizens desirous to avail of the system
intended to institutionalize people power; that he and the members of the
Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article
XVII of the Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories;
that before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first

fixed in an order to be issued by the COMELEC; and that to adequately


inform the people of the electoral process involved, it is likewise necessary
that the said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation, under
the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended
are Sections 4 and 7 of Article VI, 7Section 4 of Article VII, 8 and Section 8 of
Article X 9 of the Constitution. Attached to the petition is a copy of a "Petition
for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS
OF ALL ELECTIVE GOVERNMENT OFFICIALS,
AMENDING FOR THE PURPOSE SECTIONS 4 AND
7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND
SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman,
issued an Order 11 (a) directing Delfin "to cause the publication of the petition,
together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the
signature form), and the notice of hearing in three (3) daily newspapers of
general circulation at his own expense" not later than 9 December 1996; and
(b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's
Initiative for Reforms, Modernization and Action (PIRMA); intervenoroppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP),
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on
that same day, filed a Motion to Dismiss the Delfin Petition on the ground that
it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their "memoranda and/or oppositions/memoranda" within
five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor
Santiago, Alexander Padilla, and Maria Isabel Ongpin filed this special
civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to
amend the Constitution can only be implemented by
law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act
Prescribing and Regulating Constitution Amendments
by People's Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still pending
before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three
systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle on initiative on

the Constitution, unlike in the other modes of initiative,


which are specifically provided for in Subtitle II and
Subtitle III. This deliberate omission indicates that the
matter of people's initiative to amend the Constitution
was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his
privilege speech delivered before the Senate in 1994:
"There is not a single word in that law which can be
considered as implementing [the provision on
constitutional initiative]. Such implementing provisions
have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of
the law after publication in print media. This indicates
that the Act covers only laws and not constitutional
amendments because the latter take effect only upon
ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16
January 1991 to govern "the conduct of initiative on the
Constitution and initiative and referendum on national
and local laws, is ultra vires insofar asinitiative on
amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and
regulations for the exercise of the right of initiative to
amend the Constitution. Only Congress is authorized
by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to
the Constitution, not to revision thereof. Extending or
lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds
for people's initiative; neither the COMELEC nor any
other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition,
the people's initiative spearheaded by PIRMA would entail expenses to the
national treasury for general re-registration of voters amounting to at least
P180 million, not to mention the millions of additional pesos in expenses
which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely,
brushing aside technicalities of procedure and calling for the admission of a
taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy,
and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment
on the petition within a non-extendible period of ten days from notice; and (b)
issued a temporary restraining order, effective immediately and continuing
until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen
Pedrosa from conducting a signature drive for people's initiative to amend
the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS

THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE


COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT
DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC.
THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND
HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON
THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY
BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC,
ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP.
ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS
CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL
AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO.
1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS
AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF
THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT
IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION
OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT
EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992,
1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a
"knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. .
. which is not formally filed yet." What he filed on 6 December 1996 was an
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to
start the signature campaign to amend the Constitution or to put the
movement to gather signatures under COMELEC power and function. On
the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No.
6735, which governs the conduct of initiative to amend the Constitution.
The absence therein of a subtitle for such initiative is not fatal, since
subtitles are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as of
the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a
few specific provisions of the Constitution, or more specifically, only
those which lay term limits. It does not seek to reexamine or overhaul
the entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners' estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it
will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary
in R.A. No. 6735 because, being national in scope, that system
of initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that
R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section
20 of R.A. No. 6735 and under the Omnibus Election Code. The rulemaking power of the COMELEC to implement the provisions of R.A.
No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to
Lift Temporary Restraining Order filed by private respondents through Atty.
Quadra, as well as the latter's Manifestation stating that he is the counsel for

private respondents Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition
in Intervention not later than 20 January 1997; and (d) set the case for
hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
and the Movement of Attorneys for Brotherhood Integrity and Nationalism,
Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was
their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J., 18 it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 Arevision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of
the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on
the philosophy of governance, "to open up the political arena to as
many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers
in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good";
hence, to remove the term limits is to negate and nullify the noble vision
of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a
premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who
may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency
of the petition, (h) the appeal from any decision of the COMELEC, (I)
the holding of a plebiscite, and (g) the appropriation of funds for such
people's initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without
authority to legislate the procedure for a people's initiative under
Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a
legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he coauthored the House Bill and even delivered a sponsorship speech thereon.
He likewise submits that the COMELEC was empowered under Section 20 of

that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he


contends that the respondent Commission is without jurisdiction to take
cognizance of the Delfin Petition and to order its publication because the
said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300.
What vests jurisdiction upon the COMELEC in an initiative on the
Constitution is the filing of a petition for initiative which is signedby the
required number of registered voters. He also submits that the proponents of
a constitutional amendment cannot avail of the authority and resources of
the COMELEC to assist them is securing the required number of signatures,
as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and
supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached
a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under
Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not
have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can
be proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions
for Intervention filed by the DIK and MABINI and by the IBP, as well as the
Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended
Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments on the
aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition
in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the allegations
and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules
and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local
officials, as proposed in the draft "Petition for Initiative on the 1987
Constitution," would constitute a revision of, or an amendment to, the
Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction


over, a petition solely intended to obtain an order (a) fixing the time and
dates for signature gathering; (b) instructing municipal election officers
to assist Delfin's movement and volunteers in establishing signature
stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the deliberations on
House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further submits
that the COMELEC should have dismissed the Delfin Petition for failure to
state a sufficient cause of action and that the Commission's failure or refusal
to do so constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the
Journal and the Record of the House of Representatives relating to the
deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989
on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and
MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate
memoranda. 24
As we stated in the beginning, we resolved to give due course to this special
civil action.
For a more logical discussion of the formulated issues, we shall first take up
the fifth issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY
IN THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious
attention to the fifth issue, i.e., whether it is proper for this Court to take
cognizance of this special civil action when there is a pending case before
the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition
filed by private respondent Delfin. This being so, it becomes imperative
to stop the Comelec from proceeding any further, and under the Rules
of Court, Rule 65, Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of
a court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly divisive and
adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion
and political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is


threatened by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the
Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no
jurisdiction or authority to entertain the petition. 26 The COMELEC made no
ruling thereon evidently because after having heard the arguments of Delfin
and the oppositors at the hearing on 12 December 1996, it required them to
submit
within
five
days
their
memoranda
or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by ordering Delfin to cause
the publication of the petition, together with the attached Petition for Initiative,
the signature form, and the notice of hearing; and by setting the case for
hearing. The COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the instant
petition under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any
tribunal, corporation, board, or person, whether exercising functions
judicial or ministerial, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion, and there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the
action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported
by the required minimum number of signatures of registered voters. LABAN
also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated
as a special civil action for certiorari under Section I of Rule 65 of the Rules
of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it
may, in the exercise of its discretion, set aside in view of the importance
of issues raised. In the landmark Emergency Powers Cases, this Court
brushed aside this technicality because the transcendental importance
to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this
right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus,
although this mode of amending the Constitution is a mode of
amendment which bypasses congressional action, in the last
analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to
the Constitution through the system of initiative would remain entombed in
the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized
or granted that right, the people cannot exercise it if Congress, for
whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No.
332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article___ Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of
the complete committee report. With the permission of the Members,
may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to the
legislature?

MR. SUAREZ. That is right, Madam President.


FR. BERNAS. And do we also understand, therefore, that for as long
as the legislature does not pass the necessary implementing law on
this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The Gentleman
is right. In any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that
could be proposed through the exercise of this initiative power would be
after five years. It is reasonably expected that within that five-year
period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the details on
how this is to be carried out is it possible that, in effect, what will be
presented to the people for ratification is the work of the legislature
rather than of the people? Does this provision exclude that possibility?

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are


drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be
placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section
2 is limited to proposals to AMEND not to REVISE the Constitution;
thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the
revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision. 34
xxx xxx xxx

MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.

MS. AQUINO. In which case, I am seriously bothered by providing this


process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms
of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a selfexecuting provision?

xxx xxx xxx


MS. AQUINO. Do I understand from the sponsor that the intention in
the proposal is to vest constituent power in the people to amend the
Constitution?

MR. SUAREZ. We would be amenable except that, as we clarified a


while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which contemplates
a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.

MR. SUAREZ. That is absolutely correct, Madam President.


MS. AQUINO. I fully concur with the underlying precept of the proposal
in terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2, as written. Would
the sponsor agree with me that in the hierarchy of legal mandate,
constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of circumspection
in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of
constituent power we have a separate article in the constitution that
would specifically cover the process and the modes of amending the
Constitution?
MR. SUAREZ. That is right, Madam President.

MS. AQUINO. In other words, the Committee was attempting to


distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the
entire Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications submitted by the
sponsor himself and the honorable Commissioners Guingona, Monsod,
Rama, Ople, de los Reyes and Romulo. The modified amendment in
substitution of the proposed Section 2 will now read as follows:
"SECTION 2. AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE

RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN


ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed
amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36
The interpellations which ensued on the proposed modified amendment to
Section 2 clearly showed that it was a legislative act which must implement
the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it
possible for the legislature to set forth certain procedures to carry out
the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent
the legislature from asking another body to set the proposition in proper
form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.
MR. ROMULO. But the procedures, including the determination of the
proper form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures
which I have discussed be legislated?
MR. DAVIDE. Yes.

37

Commissioner Davide also reaffirmed that his modified amendment strictly


confines initiative to AMENDMENTS to NOT REVISION of the
Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal,


what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National
Assembly is required, the import being that the process of amendment
must be made more rigorous and difficult than probably initiating an
ordinary legislation or putting an end to a law proposed by the National
Assembly by way of a referendum. I cannot agree to reducing the
requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might
present such a proposal, by way of an amendment, when the
Commission shall take up the Article on the Legislative or on the
National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a
vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended,
reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.41 Thereafter, upon his
motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved on Second
and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2
be amended by changing "percent" to "per centum" and "thereof" to "therein"
and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not selfexecutory.
Has Congress "provided" for the implementation of the exercise of this right?
Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative act.
This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the
exercise of this right.

with
The Congress shall provide for the implementation of the exercise of
this right.
This substitute amendment was an investiture on Congress of a power
to provide for the rules implementing the exercise of the right. The
"rules" means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the
House of Representatives on the basis of two House Bills referred to it, viz.,
(a) House Bill No. 497, 47 which dealt with the initiative and referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as
with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and
House Bill No. 21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate 50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress
to "provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of
the Act does not suggest an initiative on amendments to the Constitution.
The said section reads:
Sec. 2. Statement and Policy. The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor relevant to said section,
which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not
accorded the power to "directly propose, enact, approve, or reject, in
whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section
was lifted from Section 1 of Senate Bill No. 17, which solely referred to a
statement of policy on local initiative and referendum and appropriately used
the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it as one
of the three systems of initiative, and that Section 5 (Requirements) restates
the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition
forinitiative on the Constitution. Section 5, paragraph (c) requires, among

other things, statement of the proposed law sought to be enacted, approved


or rejected, amended or repealed, as the case may be. It does not include,
as among the contents of the petition, the provisions of the Constitution
sought to be amended, in the case of initiative on the Constitution. Said
paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one
hundred (100) words which shall be legibly written or printed at the
top of every page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or
rejected, amended or repealed" only strengthens the conclusion that
Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the
latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735
to fully provide for the implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, considering that in
the order of things, the primacy of interest, or hierarchy of values, the right of
the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and character. It is
"national initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local initiative" if
what is proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can
pass. This classification of initiative into national and local is actually based
on Section 3 of the Act, which we quote for emphasis and clearer
understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact


a national legislation; and

(e) The publication of the approved proposition in the Official Gazette or in a


newspaper of general circulation in the Philippines; and

a.3 Initiative on local legislation which refers to a petition proposing to


enact a regional, provincial, city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).

(f) The effects of the approval or rejection of the proposition. 55


As regards local initiative, the Act provides for the following:

Hence, to complete the classification under subtitles there should have been
a subtitle on initiative on amendments to the Constitution. 53

(a) The preliminary requirement as to the number of signatures of registered


voters for the petition;

A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:

(b) The submission of the petition to the local legislative body concerned;

(b) The proposition in an initiative on the Constitution approved by the


majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.

(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;

(c) A national or local initiative proposition approved by majority of the


votes cast in an election called for the purpose shall become effective
fifteen (15) days after certification and proclamation of the Commission.
(Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization,
as defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the
petition for initiative or referendum, which could be petitions for
both national and localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on
Local Initiative and Referendum is misplaced, 54 since the provision therein
applies to both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want of
capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in
providing for the details in the implementation of initiative and referendum on
national and local legislation thereby giving them special attention, it failed,
rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for
the following:
(a) The required percentage of registered voters to sign the petition and the
contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;

(f) The persons before whom the petition shall be signed;


(g) The issuance of a certification by the COMELEC through its official in the
local government unit concerned as to whether the required number of
signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be within
the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A.
No. 6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and
includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the people; (d)
reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating
blow to the system of initiative on amendments to the Constitution by merely
paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary
to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim: potestas delegata non delegari potest. 59 The
recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article
VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of
legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate and
determinable to which the delegate must conform in the performance of
his functions. 61 A sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command
is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned,
R.A. No. 6735 miserably failed to satisfy both requirements in subordinate
legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT
PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT
OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS
VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELEC's
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with
the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A.
No. 6735, a petition for initiative on the Constitution must be signed by at
least 12% of the total number of registered voters of which every legislative
district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters.

Delfin himself admits that he has not yet gathered signatures and that the
purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed
validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only participation of the
COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records
and Statistics Office a certificate on the total number of registered voters in
each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters'
affidavits, and voters' identification cards used in the immediately preceding
election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The respondent Commission must have
known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence, the
said petition was merely entered as UND, meaning, undocketed. That
petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12
December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the
proposal to lift the term limits of elective national and local officials is
an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and
blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation
of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission
on Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made


permanent as against the Commission on Elections, but is LIFTED as
against private respondents.

2. While under the parliamentary system of the 1973 Constitution the


principle remained applicable, the 1981 amendments to the
Constitution of 1973 ensured presidential dominance over the
Batasang Pambansa.

Resolution on the matter of contempt is hereby reserved.


SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and
Torres, Jr., JJ., concur.
Padilla, J., took no part.

Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice
Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I
regret, however, I cannot share the view that R.A. No. 5735 and COMELEC
Resolution No. 2300 are legally defective and cannot implement the people's
initiative to amend the Constitution. I likewise submit that the petition with
respect to the Pedrosas has no leg to stand on and should be dismissed.
With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the
people to initiate amendments to the Constitution thru initiative. Our effort to
discover the meaning of R.A. No. 6735 should start with the search of the
intent of our lawmakers. A knowledge of this intent is critical for the intent of
the legislature is the law and the controlling factor in its
interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit
which gives life to its enactment. 2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was
intended to cover initiative to propose amendments to the Constitution." It
ought to be so for this intent is crystal clear from the history of the law which
was a consolidation of House Bill No. 21505 3 and Senate Bill No.
17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of
Initiative and Referendum and the Exception Therefrom, Whereby People in
Local Government Units Can Directly Propose and Enact Resolutions and
Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include
people's initiative to propose amendments to the Constitution. In checkered
contrast, House Bill No. 21505 5 expressly included people's initiative to
amend the Constitution. Congressman (now Senator) Raul Roco
emphasized in his sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the
constitutional basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which
was introduced by the 1935 Constitution saw the application of the
principle of separation of powers.

Constitutional history then saw the shifting and sharing of legislative


powers between the Legislature and the Executive departments.
Transcending changes in the exercise of legislative power is the
declaration in the Philippine Constitution that the Philippines is a
republican state where sovereignty resides in the people and all
sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still
preserved in Congress; however, to institutionalize direct action of
the people as exemplified in the 1986 Revolution, the Constitution
recognizes the power of the people, through the system of initiative
and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress
does not have plenary powers since reserve powers are given to the
people expressly. Section 32 of the same Article mandates Congress
to pass at the soonest possible time, a bill on referendum and
initiative, and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand,
vests in the people the power to directly propose amendments to the
Constitution through initiative, upon petition of at least 12 percent of
the total number of registered voters.
Stating that House Bill No. 21505 is the Committee's response to the
duty imposed on Congress to implement the exercise by the people
of the right to initiative and referendum, Mr. Roco recalled the
beginnings of the system of initiative and referendum under
Philippine Law. He cited Section 99 of the Local Government Code
which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the
Sangguniang Barangay, all of which are variations of the power of
initiative and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections 100
and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent
quotation on the subject which he will later submit to the Secretary of
the House be incorporated as part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those
contained in the instant Bill among which are the constitutions of
states in the United States which recognize the right of registered
voters to initiate the enactment of any statute or to project any
existing law or parts thereof in a referendum. These states, he said,
are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma,
Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws
to which initiative and referendum apply is also without limitation,
except for emergency measures, which are likewise incorporated in
House Bill No. 21505. He added that the procedure provided by the
Bill from the filing of the petition, the requirements of a certain
percentage of supporters to present a proposition, to the submission
to electors are substantially similar to the provisions in American
laws. Although an infant in Philippine political structure, the system
of initiative and referendum, he said, is a tried and tested system in
other jurisdictions, and the Bill is patterned after American
experience.

He further explained that the bill has only 12 sections, and recalled
that the Constitutional Commissioners saw the system of the
initiative and referendum as an instrument which can be used should
the legislature show itself to be indifferent to the needs of the people.
This is the reason, he claimed, why now is an opportune time to
pass the Bill even as he noted the felt necessity of the times to pass
laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and
referendum as advocated in House Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment,
submit a Bill for the consideration of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the
initiative to amend the Constitution once every five years; the
initiative to amend statutes approved by Congress; and the initiative
to amend local ordinances.
3. The instant Bill gives a definite procedure and allows the
Commission on Elections (COMELEC) to define rules and
regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the
people on measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum
which is a mode of plebiscite by presenting a petition therefor, but
under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every
legislative district is represented by at least three percent of the
registered voters thereof. Within 30 days after receipt of the petition,
the COMELEC shall determine the sufficiency of the petition, publish
the same, and set the date of the referendum within 45 to 90-day
period.
6. When the matter under referendum or initiative is approved by the
required number of votes, it shall become effective 15 days following
the completion of its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the
Members cannot ignore the people's call for initiative and
referendum and urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his
speech together with the footnotes be reproduced as part of the
Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative
to amend the Constitution was stressed by then Congressman (now
Secretary of Agriculture) Salvador Escudero III in his sponsorship
remarks, viz: 7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for
a truly popular democracy ever since, especially in the so-called
parliament of the streets. A substantial segment of the population feels,
he said, that the form of democracy is there, but not the reality or
substance of it because of the increasingly elitist approach of their
representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has


provided a means whereby the people can exercise the reserved power
of initiative to propose amendments to the Constitution, and requested
that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2,
Article XVII of the Constitution be made part of his sponsorship
remarks.
Mr. Escudero also stressed that an implementing law is needed for the
aforecited Constitutional provisions. While the enactment of the Bill will
give way to strong competition among cause-oriented and sectoral
groups, he continued, it will hasten the politization of the citizenry, aid
the government in forming an enlightened public opinion, and produce
more responsive legislation. The passage of the Bill will also give street
parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval
of the Bill so that it can be initially used for the Agrarian Reform Law.
He said that the passage of House Bill No. 21505 will show that the
Members can set aside their personal and political consideration for the
greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill
No. 21505 were threshed out in a Bicameral Conference
Committee. 8 In the meeting of the Committee on June 6,
1989, 9 the members agreed that the two (2) bills should be
consolidated and that the consolidated version should include
people's initiative to amend the Constitution as contemplated by
House Bill No. 21505. The transcript of the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have said, because this
is new in our political system, the Senate decided on a more cautious
approach and limiting it only to the local government units because
even with that stage where . . . at least this has been quite popular,
ano? It has been attempted on a national basis. Alright. There has not
been a single attempt. Now, so, kami limitado doon. And, second, we
consider also that it is only fair that the local legislative body should be
given a chance to adopt the legislation bill proposed, right? Iyong
sinasabing indirect system of initiative. If after all, the local legislative
assembly or body is willing to adopt it in full or in toto, there ought to be
any reason for initiative, ano for initiative. And, number 3, we feel that
there should be some limitation on the frequency with which it should
be applied. Number 4, na the people, thru initiative, cannot enact any
ordinance that is beyond the scope of authority of the local legislative
body, otherwise, my God, mag-aassume sila ng power that is broader
and greater than the grant of legislative power to the Sanggunians. And
Number 5, because of that, then a proposition which has been the
result of a successful initiative can only carry the force and effect of an
ordinance and therefore that should not deprive the court of its
jurisdiction to declare it null and void for want of authority. Ha, di ba? I
mean it is beyond powers of local government units to enact. Iyon ang
main essence namin, so we concentrated on that. And that is why . . .
so ang sa inyo naman includes iyon sa Constitution, amendment to the
Constitution eh . . . national laws. Sa amin, if you insist on that, alright,
although we feel na it will in effect become a dead statute. Alright, and
we can agree, we can agree. So ang mangyayari dito, and magiging
basic nito, let us not discuss anymore kung alin and magiging basic bill,
ano, whether it is the Senate Bill or whether it is the House bill.
Logically it should be ours sapagkat una iyong sa amin eh. It is one of
the first bills approved by the Senate kaya ang number niyan, makikita
mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong
features ng national at saka constitutional, okay. ____ gagawin na natin
na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill


No. so and so. 10
When the consolidated bill was presented to the House for
approval, then Congressman Roco upon interpellation by
Congressman Rodolfo Albano, again confirmed that it covered
people's initiative to amend the Constitution. The record of the
House Representative states: 11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur
is recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing
provisions between Senate Bill No. 21505 which refers to the system
providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions
are totally intact in the bill. The Senators ironically provided for local
initiative and referendum and the House Representatives correctly
provided for initiative and referendum on the Constitution and on
national legislation.
I move that we approve the consolidated bill.

MR. ROCO. That is correct, Mr. Speaker. For constitutional


amendments in the 1987 Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and
referenda.
MR. ALBANO. Therefore, basically, there was no substantial difference
between the two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I
said earlier, ironically was about local, provincial and municipal
legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL
OF
ON
S.B.
NO.
17
AND
(The Initiative and Referendum Act)

H.B.

NO.

C.C.R.
21505

MR. ALBANO. Mr. Speaker.


THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority
Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few
questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the
two bills was that in the Senate version there was a provision for local
initiative and referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely for local initiative
and referendum, whereas in the House version, we provided purely for
national and constitutional legislation.

THE SPEAKER PRO TEMPORE. There was a motion to approve this


consolidated bill on Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is
approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the
people's initiative to amend the Constitution, it is our bounden duty to
interpret the law as it was intended by the legislature. We have ruled that
once intent is ascertained, it must be enforced even if it may not be
consistent with the strict letter of the law and this ruling is as old as the
mountain. We have also held that where a law is susceptible of more than
one interpretation, that interpretation which will most tend to effectuate the
manifest intent of the legislature will be adopted. 12

MR. ALBANO. Is it our understanding therefore, that the two provisions


were incorporated?

The text of R.A. No. 6735 should therefore be reasonably construed to


effectuate its intent to implement the people's initiative to amend the
Constitution. To be sure, we need not torture the text of said law to reach the
conclusion that it implements people's initiative to amend the Constitution.
R.A. No. 6735 is replete with references to this prerogative of the people.

MR. ROCO. Yes, Mr. Speaker.

First, the policy statement declares:

MR. ALBANO. So that we will now have a complete initiative and


referendum both in the constitutional amendment and national
legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with
the provision of the Constitution whereby it mandates this Congress to
enact the enabling law, so that we shall have a system which can be
done every five years. Is it five years in the provision of the
Constitutio