EN BANC Paz and Teresita L.
Tolentino as members of the Barangay Council of
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.
MELENCIO-HERRERA, J.:
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.
As required by the Court, respondents submitted their Comment on the
Petition, and petitioner's their Reply to respondents' Comment.
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.
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.
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;
That the above cited memorandum dated December 1,
1986 was signed by me personally on February 8,1987;
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.
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.
On the other hand, respondents rely on Section 2, Article III of the
Provisional Constitution, promulgated on March 25, 1986, which
provided:
 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.
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.
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.
 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-
Republic of the Philippines Sheraton as its hotel operator, which bid for the same number of shares
SUPREME COURT at P44.00 per share, or P2.42 more than the bid of petitioner.
Manila
Pertinent provisions of the bidding rules prepared by respondent GSIS
EN BANC state —

I. EXECUTION OF THE NECESSARY

CONTRACTS WITH GSIS/MHC —
G.R. No. 122156 February 3, 1997
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3,
MANILA PRINCE HOTEL petitioner,
1995) or the Highest Bidder will lose the right to purchase
vs.
the Block of Shares and GSIS will instead offer the Block
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
of Shares to the other Qualified Bidders:
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF
THE GOVERNMENT CORPORATE COUNSEL, respondents.
a. The Highest Bidder must negotiate and
execute with the GSIS/MHC the
Management Contract, International
Marketing/Reservation System Contract or
BELLOSILLO, J.: other type of contract specified by the
Highest Bidder in its strategic plan for the
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the Manila Hotel. . . .
grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified b. The Highest Bidder must execute the
Filipinos, 1 is in oked by petitioner in its bid to acquire 51% of the shares Stock Purchase and Sale Agreement with
of the Manila Hotel Corporation (MHC) which owns the historic Manila GSIS . . . .
Hotel. Opposing, respondents maintain that the provision is not self-
executing but requires an implementing legislation for its enforcement.
K. DECLARATION OF THE WINNING
Corollarily, they ask whether the 51% shares form part of the national
BIDDER/STRATEGIC PARTNER —
economy and patrimony covered by the protective mantle of the
Constitution.
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are
The controversy arose when respondent Government Service Insurance
met:
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 a. Execution of the necessary contracts
outstanding shares of respondent MHC. The winning bidder, or the with GSIS/MHC not later than October 23,
eventual "strategic partner," is to provide management expertise and/or 1995 (reset to November 3, 1995); and
an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel. 2 In a b. Requisite approvals from the
close bidding held on 18 September 1995 only two (2) bidders GSIS/MHC and COP (Committee on
participated: petitioner Manila Prince Hotel Corporation, a Filipino 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 self-executing. 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 self-executing 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 self-executing 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 self-executing. 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 self-
executing. 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-self-executing 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.25 Tolentino 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.33 A 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 sejudicially 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
failedcoup d' etat where 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
THE PRESIDENT. Commissioner Davide
is recognized.
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.
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. 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?
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."
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 pre-qualified 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.
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.
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 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.
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, 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.
 Republic of the Philippines
SUPREME COURT
Manila
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.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND
HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M.
CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT,
AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS
CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF
THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM
BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-
SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO,
FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE
CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON,
LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE
SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR.,
EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO,
JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ,
RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA,
ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON,
REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR.,
AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA.
CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR.,
ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR,
MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO,
EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE,
LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA,
MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL,
ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA,
LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY
EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON
ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED
BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M.
DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER
OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND
ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER
AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE
OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER,
AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS,
LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA,
KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-
PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE
VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT
FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND
AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO
G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES
OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE,
JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G.
DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH
SENATE PRESIDENT FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST
CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U.
VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD
MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW,
UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU,
INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R.
POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW],
REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY
THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU
CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP.
JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT,respondents.
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 one-third (1/3) of the Members of
12th Congress of the House of Representatives adopted and approved the House, impeachment
the Rules of Procedure in Impeachment Proceedings (House proceedings are deemed
Impeachment Rules) on November 28, 2001, superseding the previous
initiated at the time of the filing
House Impeachment Rules1 approved by the 11th Congress.
of such verified complaint or
The relevant distinctions between these two Congresses' House resolution of impeachment with
Impeachment Rules are shown in the following tabulation: the Secretary General.
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 one-
third (1/3) of all the Members of the
House.
RULE V
RULE V Section 17. Bar Against
Initiation Of Impeachment
BAR AGAINST INITIATION OF
BAR AGAINST IMPEACHMENT Proceedings. – Within a period of
IMPEACHMENT PROCEEDINGS
one (1) year from the date
AGAINST THE SAME OFFICIAL
Section 14. Scope of Bar. – No impeachment proceedings are
deemed initiated as provided in
Section 16. – Impeachment impeachment proceedings shall be
initiated against the same official Section 16 hereof, no
Proceedings Deemed Initiated.– impeachment proceedings, as
In cases where a Member of the more than once within the period of
one (1) year. such, can be initiated against the
House files a verified complaint of same official. (Italics in the original;
impeachment or a citizen files a emphasis and underscoring
verified complaint that is endorsed supplied)
by a Member of the House through
a resolution of endorsement
against an impeachable officer, On July 22, 2002, the House of Representatives adopted a
impeachment proceedings against Resolution,2 sponsored by Representative Felix William D. Fuentebella,
such official are deemed initiated which directed the Committee on Justice "to conduct an investigation, in
on the day the Committee on aid of legislation, on the manner of disbursements and expenditures by
Justice finds that the verified the Chief Justice of the Supreme Court of the Judiciary Development
complaint and/or resolution againstFund (JDF)."3
such official, as the case may be,
is sufficient in substance, or on the
On June 2, 2003, former President Joseph E. Estrada filed an
date the House votes to overturn
impeachment complaint4 (first impeachment complaint) against Chief
or affirm the finding of the said
Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court
Committee that the verified
for "culpable violation of the Constitution, betrayal of the public trust and
complaint and/or resolution, as the
other high crimes."6 The complaint was endorsed by Representatives
case may be, is not sufficient in
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
substance.
Dilangalen,7 and was referred to the House Committee on Justice on
August 5, 20038 in accordance with Section 3(2) of Article XI of the
In cases where a verified Constitution which reads:
complaint or a resolution of
impeachment is filed or endorsed,
Section 3(2) A verified complaint for impeachment may be filed by
as the case may be, by at least
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 complaint11 was filed
with the Secretary General of the House12 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.
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. 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 Permanent Injunction to enjoin the House of
Representatives from proceeding with the second impeachment
complaint.
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. 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.
Hofileña, 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.
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.
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.
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 respondent, be recognized and upheld pursuant to the
provisions of Article XI of the Constitution."22
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.
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:
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-a-vis 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 pre-requisites 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.
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.
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)
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:
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.
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
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.
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)
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
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:
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.
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
afore-quoted 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 theirordinary
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)
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:
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 Revenue40 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.
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)
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:
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
above-mentioned 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 well-entrenched 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
procedure73 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.86 It, 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 the res
judicata principle, binding on all members of the class whether or not they
were before the court.89Where 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 petitionersadditionally allege 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 Malacañang. 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 Malacañang 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.
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 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.
 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
non-justiciable 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.
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 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:
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 duty-bound 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 Justices-Members 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 Senators—
elect, 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.'
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.
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
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
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.
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.
Substituting the word public officers for judges, this Court is well guided
by the doctrine in People v. Veneracion, to wit:141
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 Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
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 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.
"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:
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.
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)
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 Osmeña 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.
InArroyo 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-à-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-à-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
it must 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 non-interference 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.

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.

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

in Impeachment Proceedings which were approved by the House of
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.

SO ORDERED.
 Republic of the Philippines Resolutions; and (c) the Auditor General from passing in audit any
SUPREME COURT disbursement from the appropriation of funds made in said Republic Act
Manila No. 4913; and

EN BANC 2) declaring said Act unconstitutional and void.

G.R. No. L-28196 November 9, 1967 The main facts are not disputed. On March 16, 1967, the Senate and the
House of Representatives passed the following resolutions:
RAMON A. GONZALES, petitioner,
vs. 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5,
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and Article VI, of the Constitution of the Philippines, be amended so as to
AUDITOR GENERAL, respondents. increase the membership of the House of Representatives from a
maximum of 120, as provided in the present Constitution, to a maximum
G.R. No. L-28224 November 9, 1967 of 180, to be apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants, although each
PHILIPPINE CONSTITUTION ASSOCIATION province shall have, at least, one (1) member;
(PHILCONSA), petitioner,
vs. 2. R. B. H. No. 2, calling a convention to propose amendments to said
COMMISSION ON ELECTIONS, respondent. Constitution, the convention to be composed of two (2) elective delegates
from each representative district, to be "elected in the general elections to
No. 28196: be held on the second Tuesday of November, 1971;" and
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Office of the Solicitor General for respondents. Constitution, be amended so as to authorize Senators and members of
the House of Representatives to become delegates to the
No. 28224: aforementioned constitutional convention, without forfeiting their
Salvador Araneta for petitioner. respective seats in Congress.
Office of the Solicitor General for respondent.
Subsequently, Congress passed a bill, which, upon approval by the
CONCEPCION, C.J.: 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
G. R. No. L-28196 is an original action for prohibition, with preliminary
general elections which shall be held on November 14, 1967.
injunction.
The petition in L-28196 was filed on October 21, 1967. At the hearing
Petitioner therein prays for judgment:
thereof, on October 28, 1967, the Solicitor General appeared on behalf of
respondents. Moreover, Atty. Juan T. David and counsel for the
1) Restraining: (a) the Commission on Elections from enforcing Republic Philippine Constitution Association — hereinafter referred to as the
Act No. 4913, or from performing any act that will result in the holding of PHILCONSA — were allowed to argue as amici curiae. Said counsel for
the plebiscite for the ratification of the constitutional amendments the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision
proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of in this case be deferred until after a substantially identical case brought
Congress of the Philippines, approved on March 16, 1967; (b) the by said organization before the Commission on Elections,1 which was
Director of Printing from printing ballots, pursuant to said Act and 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 Elections2 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 L-28196, 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, non-
profit 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 Tañada 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.
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 .
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 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.
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."
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;
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
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.
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:
. . . 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.
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.
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.
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 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 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;"
(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;"
(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.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940
amendments, is of the following tenor:
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.
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.
 Republic of the Philippines and Raul M. Gonzales, both members of the Bar, taxpayers and
SUPREME COURT interested in running as candidates for delegates to the Constitutional
Manila Convention. Both impugn the constitutionality of R.A. No. 6132, claiming
during the oral argument that it prejudices their rights as such candidates.
EN BANC 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 Tañada, Senator Arturo Tolentino, Senator Jovito
Salonga, and Senator Emmanuel Pelaez argued orally.
G.R. No. L-32432 September 11, 1970
It will be recalled that on March 16, 1967, Congress, acting as a
Constituent Assembly pursuant to Art. XV of the Constitution, passed
MANUEL B. IMBONG, petitioner,
Resolution No. 2 which among others called for a Constitutional
vs.
Convention to propose constitutional amendments to be composed of
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and
two delegates from each representative district who shall have the same
CESAR MILAFLOR, as members thereof, respondents.
qualifications as those of Congressmen, to be elected on the second
Tuesday of November, 1970 in accordance with the Revised Election
G.R. No. L-32443 September 11, 1970 Code.

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT After the adoption of said Res. No. 2 in 1967 but before the November
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN elections of that year, Congress, acting as a legislative body, enacted
AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and
GONZALES,petitioner, practically restating in toto the provisions of said Resolution No. 2.
vs.
COMELEC, respondent.
On June 17, 1969, Congress, also acting as a Constituent Assembly,
passed Resolution No. 4 amending the aforesaid Resolution No. 2 of
Manuel B. Imbong in his own behalf. March 16, 1967 by providing that the convention "shall be composed of
320 delegates apportioned among the existing representative districts
Raul M. Gonzales in his own behalf. according to the number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates, who shall
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor have the same qualifications as those required of members of the House
General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. of Representatives," 1 "and that any other details relating to the specific
Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for apportionment of delegates, election of delegates to, and the holding of,
respondents. the Constitutional Convention shall be embodied in an implementing
legislation: Provided, that it shall not be inconsistent with the provisions of
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez this Resolution." 2
as amici curiae.
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.
MAKASIAR, J.: 4914. 3

These two separate but related petitions for declaratory relief were filed Petitioner Raul M. Gonzales assails the validity of the entire law as well
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong 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
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.
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.)
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.)
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
Tañada, 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-of-interest 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

Tañada 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.

 Republic of the Philippines
SUPREME COURT
Manila
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 MARCOS-
IMBONG, 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 Resolutions1 proposing 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."14 One of such powers is precisely that of proposing
amendments. The 1973 Constitution in its Transitory Provisions vested
the Interim 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, theInterim Batasang 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.
(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 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.

 Republic of the Philippines
SUPREME COURT
Manila
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 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 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:
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 D
Resolution No. 1 quoted as follows: I
O
xxx xxx xxx S
D
(see above) A
D
O
Pursuant to the provision of Section 14, Republic Act No.
6132 otherwise known as the Constitutional Convention
P
Act of 1971, may we call upon you to help the Convention
.
implement this resolution:
M
Sincerely, A
C
( A
S P
g A
d G
. A
) L

D P
I r
O e
S s
D i
A d
D e
O n
t
P
. On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on condition that:
M
A
(a) The Constitutional Convention will undertake the
C
printing of separate official ballots, election returns and
A
tally sheets for the use of said plebiscite at its expense;
P
A
G (b) The Constitutional Convention will adopt its own
A security measures for the printing and shipment of said
L 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), Tañada 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 aconstituent
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
eighteen-year-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.
 Republic of the Philippines Twenty days after or on September 22, 1976, the President issued
SUPREME COURT another related decree, Presidential Decree No. 1031, amending the
Manila previous Presidential Decree No. 991, by declaring the provisions of
presidential Decree No. 229 providing for the manner of voting and
EN BANC canvass of votes in "barangays" (Citizens Assemblies) applicable to the
national referendum-plebiscite of October 16, 1976. Quite relevantly,
G.R. No. L-44640 October 12, 1976 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
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE On the same date of September 22, 1976, the President issued
NATIONAL TREASURER, respondents. 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
G.R. No. L-44684. October 12,1976
the convening of the National Assembly evinces their desire to have such
body abolished and replaced thru a constitutional amendment, providing
VICENTE M. GUZMAN, petitioner, for a legislative body, which will be submitted directly to the people in the
vs. referendum-plebiscite of October 16.
COMMISSION ELECTIONS, respondent.
The questions ask, to wit:
G.R. No. L-44714. October 12,1976
(1) Do you want martial law to be continued?
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
(2) Whether or not you want martial law to be continued, do you approve
vs.
the following amendments to the Constitution? For the purpose of the
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
second question, the referendum shall have the effect of a plebiscite
NATIONAL TREASURER, respondents.
within the contemplation of Section 2 of Article XVI of the Constitution.
MARTIN, J,:
PROPOSED AMENDMENTS:
The capital question raised in these prohibition suits with preliminary
1. There shall be, in lieu of the interim National Assembly, an interim
injunction relates to the power of the incumbent President of the
Batasang Pambansa. Members of the interim Batasang Pambansa which
Philippines to propose amendments to the present Constitution in the
shall not be more than 120, unless otherwise provided by law, shall
absence of the interim National Assembly which has not been convened.
include the incumbent President of the Philippines, representatives
elected from the different regions of the nation, those who shall not be
On September 2, 1976, President Ferdinand E. Marcos issued less than eighteen years of age elected by their respective sectors, and
Presidential Decree No. 991 calling for a national referendum on October those chosen by the incumbent President from the members of the
16, 1976 for the Citizens Assemblies ("barangays") to resolve, among Cabinet. Regional representatives shall be apportioned among the
other things, the issues of martial law, the I . assembly, its replacement, regions in accordance with the number of their respective inhabitants and
the powers of such replacement, the period of its existence, the length of on the basis of a uniform and progressive ratio while the sectors shall be
the period for tile exercise by the President of his present powers.1 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.
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.
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.
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.
5. The incumbent President shall continue to exercise legislative powers
until martial law shall have been lifted.
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.
8. All provisions of this Constitution not inconsistent with any of these
amendments shall continue in full force and effect.
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 Unavoidably, the regularity regularity of the procedure for amendments,
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.
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 non-political. 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
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 three-fourths 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:
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.
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. 17Such 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 15-year 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. 39It is participated in by all
citizens from the age of fifteen, regardless of whether or not they are
illiterates, feeble-minded, 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.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace
Process (OPAPP) or the so-called Office of the Presidential Adviser
on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON.
CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his
personal capacity as resident of the City of Zamboanga, Rep. MA.
ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO
C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE
LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and
duly appointed Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as
represented by HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as
Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rdCongressional District, and Members
of the Sangguniang Panlalawigan of the Province of Zamboanga del
Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II,
HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON.
ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his
capacity as the Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT
PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-
intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal
Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a
resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the
MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and
residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly
restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines
(GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement
on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the
Moro National Liberation Front (MNLF) then headed by Nur Misuari, on
the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-
Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those
who filed their cases before the scheduled signing of the MOA-AD, this
Court issued a Temporary Restraining Order enjoining the GRP from
signing the same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began. On
July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the
MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to
attain undue advantage while the peace negotiations on the substantive
agenda are on-going.2
Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end of
1999 up to early 2000, the MILF attacked a number of municipalities in
Central Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph
Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously
discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of
Peace Talks Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties
in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from
2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July
13, 2003 and he was replaced by Al Haj Murad, who was then the chief
peace negotiator of the MILF. Murad's position as chief peace negotiator
was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus"
ever embodied in an instrument - the MOA-AD which is assailed
principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor
Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.9 Invoking the
right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit
the slated signing of the MOA-AD, pending the disclosure of the contents
of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and,
in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents and
their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court
and petitioners the official copy of the final draft of the MOA-AD,14 to
which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD
be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-
Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar
Jalosjos, and the members18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the
MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating
Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention
include Senator Manuel A. Roxas, former Senate President Franklin
Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn
Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy
Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both
of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated
that the Executive Department shall thoroughly review the MOA-AD and
pursue further negotiations to address the issues hurled against it, and
thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008
that tackled the following principal issues:
1. Whether the petitions have become moot and academic
 (i) insofar as the mandamus aspect is concerned, in view
of the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization
of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe
for adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information
on matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic
of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical
Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro
Islamic Liberation Front for ancestral domain in violation
of Republic Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the
authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of the
Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in
the subject five petitions and six petitions-in-intervention against the
MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes
not only four earlier agreements between the GRP and MILF, but also
two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the
1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act
for the Autonomous Region in Muslim Mindanao (ARMM)25 and the
Indigenous Peoples Rights Act (IPRA),26 and several international law
instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration
on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty
device."
During the height of the Muslim Empire, early Muslim jurists tended to
see the world through a simple dichotomy: there was the dar-ul-Islam (the
Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to
those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the Islamic world
became part of the international community of nations.
As Muslim States entered into treaties with their neighbors, even with
distant States and inter-governmental organizations, the classical division
of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning.
New terms were drawn up to describe novel ways of perceiving non-
Muslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty
or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from
the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros
and all Indigenous peoples of Mindanao to identify themselves and be
accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as
the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-
AD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected. What this freedom of choice consists in has
not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic endowed with all
the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the sultanates. As
gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, including
the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del
Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other.
Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B
areas, also called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction
over all natural resources within its "internal waters," defined as
extending fifteen (15) kilometers from the coastline of the BJE area;42 that
the BJE shall also have "territorial waters," which shall stretch beyond the
BJE internal waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and that within
these territorialwaters, the BJE and the "Central Government" (used
interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration
and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is
no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships
and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and obligation of
the Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international
meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements
or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and natural
gas, the jurisdiction and control thereon is to be vested in the BJE "as the
party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or
direct the operation of such resources.48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro
people arising from any unjust dispossession of their territorial and
proprietary rights, customary land tenures, or their marginalization shall
be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive
Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and
the BJE as "associative," characterizedby shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions
with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008
by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace
Negotiating Panels of the GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves,
and not merely of the negotiating panels.53 In addition, the signature page
of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF"
Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri
Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions.55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence.57The Court can decide the
constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the 2. Toward this end, the Parties enter into the following
requirement of ripeness. A question is ripe for adjudication when the act stipulations:
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a xxxx
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture,60 and the d. Without derogating from the requirements of prior agreements,
petitioner must allege the existence of an immediate or threatened injury the Government stipulates to conduct and deliver, using all
to itself as a result of the challenged action.61 He must show that he has possible legal measures, within twelve (12) months following the
sustained or is immediately in danger of sustaining some direct injury as signing of the MOA-AD, a plebiscite covering the areas as
a result of the act complained of.62 enumerated in the list and depicted in the map as Category A
attached herein (the "Annex"). The Annex constitutes an integral
The Solicitor General argues that there is no justiciable controversy that part of this framework agreement. Toward this end, the Parties
is ripe for judicial review in the present petitions, reasoning that shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen
The unsigned MOA-AD is simply a list of consensus points (15) months from the signing of the MOA-AD.
subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful xxxx
agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and GOVERNANCE
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx
xxxx
7. The Parties agree that mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
In the cases at bar, it is respectfully submitted that this Honorable Comprehensive Compact to mutually take such steps to enable it
Court has no authority to pass upon issues based on hypothetical to occur effectively.
or feigned constitutional problems or interests with no concrete
bases. Considering the preliminary character of the MOA-AD,
Any provisions of the MOA-AD requiring amendments to the
there are no concrete acts that could possibly violate petitioners'
existing legal framework shall come into forceupon the signing of
and intervenors' rights since the acts complained of are mere
a Comprehensive Compact and upon effecting the necessary
contemplated steps toward the formulation of a final peace
changes to the legal framework with due regard to non-
agreement. Plainly, petitioners and intervenors' perceived injury,
derogation of prior agreements and within the stipulated
if at all, is merely imaginary and illusory apart from being
timeframe to be contained in the Comprehensive
unfounded and based on mere conjectures. (Underscoring
Compact.64 (Underscoring supplied)
supplied)
The Solicitor General's arguments fail to persuade.
The Solicitor General cites63 the following provisions of the MOA-AD:
Concrete acts under the MOA-AD are not necessary to render the
TERRITORY
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
xxxx
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
 act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x
settling the dispute becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's policy allowing student-led prayers and speeches before games
was ripe for adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as unconstitutional
on its face.68
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,69 decided in 1992,
the United States Supreme Court held that the action by the State of New
York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was
not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in
the case of prohibition, without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive
Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said
executive order requires that "[t]he government's policy framework for
peace, including the systematic approach and the administrative
structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission,
by itself, constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-
AD violate the Constitution. The MOA-AD provides that "any provisions of
the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect,guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again,
these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3
and the provisions of the Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition, and Mandamus, and an
actual case or controversy ripe for adjudication exists. When an act of a
branch of government 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.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "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."78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he 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.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose, or
that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the
Executive that injures the institution of Congress causes a derivative but
nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by theIntegrated Bar of the
Philippines or any member of the legal profession of the duty to preserve
the rule of law does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of
facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the
success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in
the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as
precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside
technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752)
and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon havelocus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended
domain of the BJE. These petitioners allege that they did not vote for
their inclusion in the ARMM which would be expanded to form the BJE
territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right
or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing
as taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate the BJE
territory. On that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOA-
AD, as well as on a genuine legal interest in the matter in litigation, or in
the success or failure of either of the parties. He thus possesses the
requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman
of the 3rd district of Davao City, a taxpayer and a member of the Bagobo
tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter,
citizens and taxpayers; Marino Ridao, as taxpayer, resident and member
of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standigiven the paramount public interest
in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace
and Development, an advocacy group for justice and the attainment of
peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case
may be, in the resolution of the petitions concerning the MOA-AD, and
prays for the denial of the petitions on the grounds therein stated. Such
legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot
with the satisfaction of all the reliefs prayed for by petitioners and the
subsequent pronouncement of the Executive Secretary that "[n]o matter
what the Supreme Court ultimately decides[,] the government will not
sign the MOA."92
In lending credence to this policy decision, the Solicitor General points
out that the President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount
public interest is involved;96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where
there is a voluntary cessation of the activity complained of by the
defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the
tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust
them into the domain of judicial review. The grounds cited above
in David are just as applicable in the present cases as they were, not only
in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not
moot the present petitions. It bears emphasis that the signing of the
MOA-AD did not push through due to the Court's issuance of a
Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered
a mere "list of consensus points," especially given its nomenclature,
the need to have it signed or initialed by all the parties concerned on
August 5, 2008, and the far-reaching Constitutional implications of
these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-AD, but
to other on-going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD,102 the
manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory and the
wide-ranging political modifications of affected LGUs. The assertion that
the MOA-AD is subject to further legal enactments including
possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide
the bench, the bar, the public and, in this case, the government and
its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual
case or controversy [as this] will do more harm than good to the nation as
a whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-
alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein
involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series
of agreements necessary to carry out the Tripoli Agreement 2001. The
MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli
Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that "no matter what
the Supreme Court ultimately decides[,] the government will not sign the
MOA[-AD],"mootness will not set in in light of the terms of the Tripoli
Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar
or significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the
only way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions toformulate controlling
principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then
Chief Justice Artemio Panganiban inSanlakas v. Reyes104 in which he
stated that the doctrine of "capable of repetition yet evading review" can
override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan
v. GRP) is a petition for Injunction and Declaratory Relief, the Court will
treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a
number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in
another or any form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of
the MOA-AD and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and
later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-
executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled
that access to public records is predicated on the right of the people to
acquire information on matters of public concern since, undoubtedly, in a
democracy, the pubic has a legitimate interest in matters of social and
political significance.
x x x The incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times.
As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation112 so that they may
be able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a
matter of public concern114 faces no serious challenge. In
fact, respondents admit that the MOA-AD is indeed of public
concern.115 In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds,116 the need for
adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS funds
allegedly used to grant loans to public officials,119 the recovery of the
Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract. In
not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for
the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates
 the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights.
We can allow neither an emasculation of a constitutional right, nor
a retreat by the State of its avowed "policy of full disclosure of all
its transactions involving public interest."122 (Emphasis and italics
in the original)
Intended as a "splendid symmetry"123 to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II
of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical principle for
the conduct of public affairs in a genuinely open democracy, with the
people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of
the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that
the safeguards on national interest are modified by the clause "as
may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no
longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis
supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same
self-executory nature. Since both provisions go hand-in-hand, it is absurd
to say that the broader130 right to information on matters of public concern
is already enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable until there is an
enabling law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the
twin rights to information and disclosure is the design for feedback
mechanisms.
 MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will
the people be able to participate? Will the government
provide feedback mechanisms so that the people can
participate and can react where the existing media facilities
are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make
one last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid
that there will be another OMA in the making.132(Emphasis
supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the sentiments,
values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134Included as a component of the
comprehensive peace process is consensus-building and empowerment
for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace
process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite
to effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onductregular dialogues with the National
Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive
peace process."137 E.O. No. 3 mandates the establishment of the NPF to
be "the principal forumfor the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of
society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society
dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on
the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to
carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him
to comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be
consulted. Respondents' stance manifests the manner by which they
treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is
not tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government
proffers its definite propositions.141 It bear emphasis that E.O. No. 3
seeks to elicit relevant advice, information, comments and
recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD. By unconditionally complying with
the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented
in their respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authoritiesunless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of
the Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy
and above-quoted provision of the LGU apply only to national programs
or projects which are to be implemented in a particular local community.
Among the programs and projects covered are those that are critical to
the environment and human ecology including those that may call for
the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,146 which could pervasively and
drastically result to the diaspora or displacement of a great number
of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez
and are adversely affected by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies.147 The MOA-
AD, an instrument recognizing ancestral domain, failed to justify its non-
compliance with the clear-cut mechanisms ordained in said Act,148 which
entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes
to the legal framework, such clause is itself invalid, as will be discussed in
the following section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance. This
has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from
them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question
that they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before
this Court, and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon
how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the Parties
actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11
on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall beassociative
characterized by shared authority and responsibility with a
structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions
in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to
be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law
instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other,
the principal, while maintaining its international status as a
state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-
administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their
own name and right, such capacity extending to matters such as the law
of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the Marshall
Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any
third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each
party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-
associated states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an underlying
status of independence.152
In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status
of associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent
with the international legal concept ofassociation, specifically the
following: the BJE's capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to
ensure the BJE's participation in meetings and events in the ASEAN and
the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or,
at any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common
and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty
as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different
from that of the ARMM. Indeed, BJE is a state in all but name as it
meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it - which has
betrayed itself by its use of the concept of association - runs counter to
the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific
provisions of the MOA-AD on the formation and powers of the BJE
are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term "autonomous
region" in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to
2(d) and 2(e), the present geographic area of the ARMM and, in addition,
the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion
therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas
voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act
of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice,
since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not
include aggression against the Government of the Republic of the
Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the
rights ofindigenous cultural communities within the framework of national
unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are
R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-
AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at
the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and
underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers
in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner
of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties
simply agree that, subject to the delimitations in the agreed Schedules,
"[t]he Bangsamoro homeland and historic territory refer to the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-
Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with
the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral
domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine
involvement and participation by the members of the communities
concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall
include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession
or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of
the following authentic documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
 2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those
of old improvements, burial grounds, sacred places and
old villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional
communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional
landmarks such as mountains, rivers, creeks, ridges, hills,
terraces and the like; and
10) Write-ups of names and places derived from the
native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and
the findings of fact based thereon, the Ancestral Domains Office
of the NCIP shall prepare a perimeter map, complete with
technical descriptions, and a description of the natural features
and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete
copy of the preliminary census and a report of investigation, shall
be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15)
days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published
in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists,
broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from
publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable
action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral domain claims,
the Ancestral Domains Office shall cause the contending parties
to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and
domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as
part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director
of Prisons,158 held that the Universal Declaration of Human Rights is part
of the law of the land on account of which it ordered the release on bail of
a detained alien of Russian descent whose deportation order had not
been executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but
also a portion thereof. In considering the question of whether the people
of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination
is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention' and is considered a general
principle of international law."
Among the conventions referred to are the International Covenant on
Civil and Political Rights161 and the International Covenant on Economic,
Social and Cultural Rights162 which state, in Article 1 of both covenants,
that all peoples, by virtue of the right of self-determination, "freely
determine their political status and freely pursue their economic, social,
and cultural development."
The people's right to self-determination should not, however, be
understood as extending to a unilateral right of secession. A distinction
should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within
the framework of an existing state. A right toexternal self-
determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under
carefully defined circumstances. x x x
External self-determination can be defined as in the
following statement from the Declaration on Friendly
Relations, supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or
the emergence into any other political status freely
determined by apeople constitute modes of implementing the
right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial
integrity of existing states. The various international documents
that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that
the exercise of such a right must be sufficiently limited to prevent
threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which
the right to external self-determination can arise, namely, where a people
is under colonial rule, is subject to foreign domination or exploitation
outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to
internal self-determination. The Court ultimately held that the population
of Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom to make
political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and
judicial institutions within Canada, even occupying prominent positions
therein.
The exceptional nature of the right of secession is further exemplified in
the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON
THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the kingdom of
Sweden. The Council, before resolving the question, appointed an
International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.
The Committee stated the rule as follows:
 x x x [I]n the absence of express provisions in international
treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the
State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some
other method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A dispute
between two States concerning such a question, under normal
conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability which would not
only be contrary to the very idea embodied in term "State," but
would also endanger the interests of the international community.
If this right is not possessed by a large or small section of a
nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis
and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did
not refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule,
however, was a very narrow one, namely, the Aaland Islands agitation
originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the conditions
required for the formation of a sovereign State did not exist. In the midst
of revolution, anarchy, and civil war, the legitimacy of the Finnish national
government was disputed by a large section of the people, and it had, in
fact, been chased from the capital and forcibly prevented from carrying
out its duties. The armed camps and the police were divided into two
opposing forces. In light of these circumstances, Finland was not, during
the relevant time period, a "definitively constituted" sovereign state. The
Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this
term has been used, in scholarship as well as international, regional, and
state practices, to refer to groups with distinct cultures, histories, and
connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded
as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive
groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been
regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession
from those states under international law,165 but they do have rights
amounting to what was discussed above as the right to internal self-
determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right
to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5
 Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they so
choose, in the political, economic, social and cultural life of the
State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal self-
determination."166 The extent of self-determination provided for in the UN
DRIP is more particularly defined in its subsequent articles, some of
which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention
of, and redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and
social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories
of indigenous peoples, unless justified by a relevant public
interest or otherwise freely agreed with or requested by the
indigenous peoples concerned.
2. States shall undertake effective consultations with the
indigenous peoples concerned, through appropriate procedures
and in particular through their representative institutions, prior to
using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands
or territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior
 to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human
Rights, must now be regarded as embodying customary international law
- a question which the Court need not definitively resolve here - the
obligations enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for
flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security
force. Indeed, Article 8 presupposes that it is the State which will provide
protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State,
then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain
and atmospheric space. What it upholds, in Article 26 thereof, is the right
of indigenous peoples to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the
near-independent status of an associated state. All the rights recognized
in that document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying
for any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United
Nations orconstrued as authorizing or encouraging any
action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and
independent States.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not suffice to
uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous
provisions that cannot be reconciled with the Constitution and the
laws as presently worded. Respondents proffer, however, that the
signing of the MOA-AD alone would not have entailed any violation of law
or grave abuse of discretion on their part, precisely because it stipulates
that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD
strand on GOVERNANCE quoted earlier, but which is reproduced below
for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon signing of a
 Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of
the MOA-AD from coming into force until the necessary changes to the
legal framework are effected. While the word "Constitution" is not
mentioned in the provision now under consideration or anywhere
else in the MOA-AD, the term "legal framework" is certainly broad
enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their
mere act of incorporating in the MOA-AD the provisions thereof regarding
the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions
From The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrityof the Republic of the
Philippines." (Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-
AD is defective because the suspensive clause is invalid, as discussed
below.
The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall
be established Government Peace Negotiating Panels for negotiations
with different rebel groups to be "appointed by the President as her
official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not
restricted by E.O. No. 3 only to those options available under the laws as
they presently stand. One of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the "Paths to Peace,"
is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No.
3, which reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are
interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box," so to speak. Hence, they negotiated and were set
on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation
and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot
stop here, because it must be askedwhether the President herself may
exercise the power delegated to the GRP Peace Panel under E.O.
No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree
to pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with
rebel groups is not explicitly mentioned in the Constitution does not mean
that she has no such authority. In Sanlakas v. Executive Secretary,168 in
issue was the authority of the President to declare a state of rebellion -
an authority which is not expressly provided for in the Constitution. The
Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from
the grant of executive power and which are necessary
for her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the
article on the Executive Department and in scattered
provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and,
at the same time, draws strength from her Commander-in-
Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building,
is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process
can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map
on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which
the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that
peace agreements establish or confirm mechanisms for demilitarization
and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human
rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of
the Constitution. Behind the provisions of the Constitution on
autonomous regions172is the framers' intention to implement a particular
peace agreement, namely, the Tripoli Agreement of 1976 between the
GRP and the MNLF, signed by then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have
some more questions, I will reserve my right to ask them if they
are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it
 has, in fact, diminished a great deal of the problems. So, my
question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right thatcertain definite
steps have been taken to implement the provisions of the
Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question
that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality
of an on-going conflict between the Government and the MILF. If the
President is to be expected to find means for bringing this conflict to an
end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being
uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions
that she considers viable, but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is minded,
act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose
the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional Convention,
or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled
the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muñoz Palma vigorously
dissented. The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that
he would have upheld the President's action along with the majority had
the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"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 decrees 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."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's
voice.' However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the agenda' of
the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of ‘people's voice'
or ‘sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath
of office,178 only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice
for Presidents in this jurisdiction to propose new legislation. One of the
more prominent instances the practice is usually done is in the yearly
State of the Nation Address of the President to Congress. Moreover, the
annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a
proposal for new legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the
above-discussed standards
Given the limited nature of the President's authority to propose
constitutional amendments, she cannot guarantee to any third party that
the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a
suspensive condition - defined in civil law as a future and uncertain event
- but of a term. It is not a question of whether the necessary changes to
the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to
effect the changes to the legal framework contemplated in the MOA-AD -
which changes would include constitutional amendments, as discussed
earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would
be counted among the "prior agreements" from which there could
be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points" and,
notably, the deadline for effecting the contemplated changes to the legal
framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the
laws of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD. Hence, it
must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a
similar provision appearing in the 1996 final peace agreement between
the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would
be implemented in two phases. Phase Icovered a three-year transitional
period involving the putting up of new administrative structures through
Executive Order, such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of
R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties.
To that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the
MOA-AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to
change its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it been signed.
An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the
Lomé Accord case) of the Special Court of Sierra Leone is enlightening.
The Lomé Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of signing. There
were non-contracting signatories to the agreement, among which were
the Government of the Togolese Republic, the Economic Community of
West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The sole purpose of the
Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian
law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by
them in pursuit of their objectives as members of that organization since
the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries
of the amnesty provided therein, citing, among other things, the
participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that it can only
create binding obligations and rights between the parties in municipal
law, not in international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace
agreement is implemented with integrity and in good faith by
both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding
of the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must
create rights and obligations regulated by international law so that
a breach of its terms will be a breach determined under
international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international
law. An agreement such as the Lomé Agreement which
brings to an end an internal armed conflict no doubt creates
a factual situation of restoration of peace that the
international community acting through the Security Council
may take note of. That, however, will not convert it to an
international agreement which creates an obligation
enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace
agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to
be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a remedy for
the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict
which, essentially, must be between two or more warring
States. The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives
of States and international organizations not parties to the Agreement
would not have sufficed to vest in it a binding character under
international law.
In another vein, concern has been raised that the MOA-AD would amount
to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case,
decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France refused to
appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the
ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to
a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international community in
issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of
the State making the declaration that it should become
bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations,
 is binding. In these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor
even any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a
State may choose to take up a certain position in relation to
a particular matter with the intention of being bound-the
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of
action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and
rely on their being effective. The validity of these statements
and their legal consequences must be considered within the
general framework of the security of international
intercourse, and the confidence and trust which are so essential
in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending
their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear
and they were addressed to the international community as a
whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270
that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of
a state representative may be construed as a unilateral declaration only
when the following conditions are present: the statements were clearly
addressed to the international community, the state intended to be bound
to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized
in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also
known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President
of Mali, in an interview by a foreign press agency, that Mali would abide
by the decision to be issued by a commission of the Organization of
African Unity on a frontier dispute then pending between Mali and
Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Mali's President was not a unilateral act with legal implications. It clarified
that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral
act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests
cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible
continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests‘ (I.C.J. Reports
1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could
not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have
accepted the terms of a negotiated solution with each of the
applicants without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the present
case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method:
a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the
declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to
the international community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another,
in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in
the Lomé Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States,
not to give legal effect to such commitments would not be detrimental to
the security of international intercourse - to the trust and confidence
essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD
are closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration
by the ICJ. As in that case, there was also nothing to hinder the
Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a
clear commitment to be legally bound to the international community, not
just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of
that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in their
brazen willingness toguarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for the only
way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to
consult the local government units or communities affected constitutes a
departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of
the Constitution by any branch of government is a proper matter for
judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents the
requisitelocus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel mooted
the present petitions, the Court finds that the present petitions provide an
exception to the "moot and academic" principle in view of (a) the grave
violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-
AD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court
and the petitioners with the official copy of the final draft of the MOA-AD
and its annexes.
The people's right to information on matters of public concern under Sec.
7, Article III of the Constitution is insplendid symmetry with the state
policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right
to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and the
people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be a
species of these public rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant
matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of
1997 provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance
of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is
untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after
it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the GRP
and the BJE, areunconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until
that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a
violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as
the clause is worded, it virtually guarantees that the necessary
amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an undue
influence or interference with that process.

While the MOA-AD would not amount to an international agreement or

unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and

intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the

GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to
law and the Constitution.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
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);
intervenor-oppositor 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 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY
Constitution, not to revision thereof. Extending or lifting of THE NATIONAL GOVERNMENT IF THE COMELEC
term limits constitutes a revision and is, therefore, outside GRANTS THE PETITION OF RESPONDENT DELFIN.
the power of the people's initiative. ALL EXPENSES IN THE SIGNATURE GATHERING ARE
ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
(6) Finally, Congress has not yet appropriated funds for AND HIS VOLUNTEERS PER THEIR PROGRAM OF
people's initiative; neither the COMELEC nor any other ACTIVITIES AND EXPENDITURES SUBMITTED TO
government department, agency, or office has realigned THE COMELEC. THE ESTIMATED COST OF THE
funds for the purpose. DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE
To justify their recourse to us via the special civil action for prohibition, DEPOSITED and TO BE PAID BY DELFIN AND HIS
the petitioners allege that in the event the COMELEC grants the Delfin VOLUNTEERS IS P2,571,200.00;
Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters 3. THE PENDING PETITION BEFORE THE COMELEC
amounting to at least P180 million, not to mention the millions of IS ONLY ON THE SIGNATURE GATHERING WHICH BY
additional pesos in expenses which would be incurred in the conduct of LAW COMELEC IS DUTY BOUND "TO SUPERVISE
the initiative itself. Hence, the transcendental importance to the public CLOSELY" PURSUANT TO ITS "INITIATORY
and the nation of the issues raised demands that this petition for JURISDICTION" UPHELD BY THE HONORABLE
prohibition be settled promptly and definitely, brushing aside COURT IN ITS RECENT SEPTEMBER 26, 1996
technicalities of procedure and calling for the admission of a taxpayer's DECISION IN THE CASE OF SUBIC BAY
and legislator's suit. 14 Besides, there is no other plain, speedy, and METROPOLITAN AUTHORITY VS.COMELEC, ET AL.
adequate remedy in the ordinary course of law. G.R. NO. 125416;

On 19 December 1996, this Court (a) required the respondents to 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4,
comment on the petition within a non-extendible period of ten days from 1989 IS THE ENABLING LAW IMPLEMENTING THE
notice; and (b) issued a temporary restraining order, effective POWER OF PEOPLE INITIATIVE TO PROPOSE
immediately and continuing until further orders, enjoining public AMENDMENTS TO THE CONSTITUTION. SENATOR
respondent COMELEC from proceeding with the Delfin Petition, and DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
private respondents Alberto and Carmen Pedrosa from conducting a DUPLICATION OF WHAT ARE ALREADY PROVIDED
signature drive for people's initiative to amend the Constitution. FOR IN REP. ACT NO. 6735;

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.
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 mentions initiative 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 rule-making 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 initiativeunder 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
co-authored 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?
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.
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. 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. 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
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 self-
executing provision?
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.
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 theprocess 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
self-executory.
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 50and 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
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).
Hence, to complete the classification under subtitles there should have
been a subtitle on initiative on amendments to the Constitution. 53
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 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) 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;
(e) The publication of the approved proposition in the Official Gazette or
in a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(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;
(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 theinitiatory 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.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.
 Republic of the Philippines Solidarity of Health Against Charter Change, DR. REGINALD
SUPREME COURT PAMUGAS of Health Action for Human Rights, Intervenors.
Manila
x--------------------------------------------------------x
EN BANC
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
G.R. No. 174153 October 25, 2006 THERESA HONTIVEROS-BARAQUEL,Intervenors.

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH x--------------------------------------------------------x

6,327,952 REGISTERED VOTERS,Petitioners,
vs. ARTURO M. DE CASTRO, Intervenor.
THE COMMISSION ON ELECTIONS, Respondent.
x ------------------------------------------------------- x
x--------------------------------------------------------x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x---------------------------------------------------------x
x ------------------------------------------------------ x
LUWALHATI RICASA ANTONINO, Intervenor.
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. x ------------------------------------------------------- x
OPLE, and CARLOS P. MEDINA, JR., Intervenors.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
x------------------------------------------------------ x CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON,
FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
ATTY. PETE QUIRINO QUADRA, Intervenor. AGUAS, and AMADO GAT INCIONG, Intervenors.

x--------------------------------------------------------x x ------------------------------------------------------- x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan- RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo BAYA, Intervenors.
Lesaca, KILUSANG MAYO UNO represented by its Secretary
General Joel Maglunsod, HEAD represented by its Secretary x -------------------------------------------------------- x
General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM
represented by Fr. Dionito Cabillas, MIGRANTE represented by its
PHILIPPINE TRANSPORT AND GENERAL WORKERS
Chairperson Concepcion Bragas-Regalado, GABRIELA represented
ORGANIZATION (PTGWO) and MR. VICTORINO F.
by its Secretary General Emerenciana de Jesus, GABRIELA
BALAIS, Intervenors.
WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay,
ANAKBAYAN represented by Chairperson Eleanor de Guzman,
LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer x -------------------------------------------------------- x
Crisostomo Palabay, JOJO PINEDA of the League of Concerned
Professionals and Businessmen, DR. DARBY SANTIAGO of the SENATE OF THE PHILIPPINES, represented by its President,
MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA
A. LAT, ANTONIO L. SALVADOR, and RANDALL
TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU
PROVINCE CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and
SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE
A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN
S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006
of the Commission on Elections ("COMELEC") denying due course to an
initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.
Lambino and Erico B. Aumentado ("Lambino Group"), with other
groups1 and individuals, commenced gathering signatures for an initiative
petition to change the 1987 Constitution. On 25 August 2006, the
Lambino Group filed a petition with the COMELEC to hold a plebiscite
that will ratify their initiative petition under Section 5(b) and (c)2 and
Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelveper centum (12%) of all
registered voters, with each legislative district represented by at least
three per centum(3%) of its registered voters. The Lambino Group also
claimed that COMELEC election registrars had verified the signatures of
the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department)4 and
Sections 1-4 of Article VII (Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These proposed changes will shift
the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due
publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND
VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY
 PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with
the COMELEC indicating modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due
course to the Lambino Group's petition for lack of an enabling law
governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the
writs of certiorari and mandamus to set aside the COMELEC Resolution
of 31 August 2006 and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their
petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case,
and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court
require respondent COMELEC Commissioners to show cause why they
should not be cited in contempt for the COMELEC's verification of
signatures and for "entertaining" the Lambino Group's petition despite the
permanent injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General
joined causes with the petitioners, urging the Court to grant the petition
despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings
supporting or opposing the Lambino Group's petition. The supporting
intervenors10 uniformly hold the view that the COMELEC committed
grave abuse of discretion in relying on Santiago. On the other hand, the
opposing intervenors11 hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the
Lambino Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under Section 2,
Article XVII of the 1987 Constitution;12 (4) the nature of the proposed
changes as revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino
Group's compliance with the requirement in Section 10(a) of RA 6735
limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties' memoranda, the Court
considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section
2, Article XVII of the Constitution on amendments to the Constitution
through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to implement the initiative clause on proposals to amend the
Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in
denying due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a people's initiative. Thus,
there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to
comply with the basic requirements of the Constitution. For following the
Court's ruling in Santiago, no grave abuse of discretion is attributable to
the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article
XVII of the Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional
provision that allows a people's initiative to propose amendments to the
Constitution. This section states:
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. x x x x
(Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the
meaning of an amendment "directly proposed by the people through
initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some
voters want to propose a constitutional amendment. Is the draft
of the proposed constitutional amendment ready to be
shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft is
ready and shown to them before they sign. Now, who
prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already
a draft shown to them and they are asked whether or not they
want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13 (Emphasis
supplied)
Clearly, the framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and shown" to
the people "before" they sign such proposal. The framers plainly stated
that "before they sign there is already a draft shown to them." The
framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the people
through initiative upon a petition" is that the entire proposal on its
face is a petition by the people. This means two essential elements
must be present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second, as
an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by
signing such complete proposal in a petition. Thus, an amendment is
"directly proposed by the people through initiative upon a petition"
only if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the
face of the petition, or attached to it. If so attached, the petition must state
the fact of such attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen the full text of the
proposed amendments before signing. Otherwise, it is physically
impossible, given the time constraint, to prove that every one of the
millions of signatories had seen the full text of the proposed amendments
before signing.
The framers of the Constitution directly borrowed14 the concept of
people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all States15 which
allow initiative petitions,the unbending requirement is that the people
must first see the full text of the proposed amendments before they
sign to signify their assent, and that the people must sign on an
initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in
several decisions of various courts. Thus, inCapezzuto v. State Ballot
Commission, the Supreme Court of Massachusetts, affirmed by the
First Circuit Court of Appeals, declared:
 [A] signature requirement would be meaningless if the
person supplying the signature has not first seen what it is
that he or she is signing. Further, and more importantly, loose
interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe
orally the contents of an initiative petition to a potential signer,
without the signer having actually examined the petition, could
easily mislead the signer by, for example, omitting, downplaying,
or even flatly misrepresenting, portions of the petition that might
not be to the signer's liking. This danger seems particularly
acute when, in this case, the person giving the description is
the drafter of the petition, who obviously has a vested
interest in seeing that it gets the requisite signatures to
qualify for the ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon
explained:
The purposes of "full text" provisions that apply to amendments
by initiative commonly are described in similar terms. x x x (The
purpose of the full text requirement is to provide sufficient
information so that registered voters can intelligently
evaluate whether to sign the initiative petition."); x x x
(publication of full text of amended constitutional provision
required because it is "essential for the elector to have x x x the
section which is proposed to be added to or subtracted from. If he
is to vote intelligently, he must have this knowledge. Otherwise in
many instances he would be required to vote in the dark.")
(Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of
the nature and effect of that which is proposed" and failure to do so is
"deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that
the petition must set forth the full text of the proposed amendments.
However, the deliberations of the framers of our Constitution clearly show
that the framers intended to adopt the relevant American jurisprudence
on people's initiative. In particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they
sign, and that the people must sign on a petition containing such
full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and
Referendum Act that the Lambino Group invokes as valid, requires that
the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people.
The proponents secure the signatures in their private capacity and not as
public officials. The proponents are not disinterested parties who can
impartially explain the advantages and disadvantages of the proposed
amendments to the people. The proponents present favorably their
proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who
gather the signatures.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The proponents
bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures - that the petition contained,
or incorporated by attachment, the full text of the proposed
amendments.
The Lambino Group did not attach to their present petition with this Court
a copy of the paper that the people signed as their initiative petition. The
Lambino Group submitted to this Court a copy of a signature
sheet20 after the oral arguments of 26 September 2006 when they filed
their Memorandum on 11 October 2006. The signature sheet with this
Court during the oral arguments was the signature sheet attached21 to
the opposition in intervention filed on 7 September 2006 by intervenor
Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the
signature sheet attached to the Lambino Group's Memorandum are
the same. We reproduce below the signature sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
Verified
Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF
ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN people the draft of the proposed changes before they are asked to
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY sign the signature sheet. Clearly, the signature sheet is not the
SHIFT FROM ONE SYSTEM TO ANOTHER?" "petition" that the framers of the Constitution envisioned when they
formulated the initiative clause in Section 2, Article XVII of the
I hereby APPROVE the proposed amendment to the 1987 Constitution. Constitution.
My signature herein which shall form part of the petition for initiative to
amend the Constitution signifies my support for the filing thereof. Petitioner Atty. Lambino, however, explained that during the signature-
gathering from February to August 2006, the Lambino Group circulated,
Precinct Name Address Birthdate Signature Verification
together with the signature sheets, printed copies of the Lambino Group's
Number draft petition which they later filed on 25 August 2006 with the
Last Name, First MM/DD/YY COMELEC. When asked if his group also circulated the draft of their
Name, M.I. amended petition filed on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty. Lambino
1
changed his answer and stated that what his group circulated was the
2 draft of the 30 August 2006 amended petition, not the draft of the 25
August 2006 petition.
3
4 The Lambino Group would have this Court believe that they prepared the
draft of the 30 August 2006 amended petition almost seven months
5 earlier in February 2006 when they started gathering signatures.
Petitioner Erico B. Aumentado's "Verification/Certification" of the 25
6 August 2006 petition, as well as of the 30 August 2006 amended petition,
7 filed with the COMELEC, states as follows:

8 I have caused the preparation of the foregoing [Amended]

Petition in my personal capacity as a registered voter, for and on
9 behalf of the Union of Local Authorities of the Philippines, as
10 shown by ULAP Resolution No. 2006-02 hereto attached, and
as representative of the mass of signatories hereto. (Emphasis
_________________ _________________ supplied)
__________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) The Lambino
(Print Name and Sign)Group failed to attach a copy of ULAP Resolution No.
2006-02 to the present petition. However, the "Official Website of the
Union of Local Authorities of the Philippines"22 has posted the full text of
There is not a single word, phrase, or sentence of text of the Resolution No. 2006-02, which provides:
Lambino Group's proposed changes in the signature sheet. Neither
does the signature sheet state that the text of the proposed changes RESOLUTION NO. 2006-02
is attached to it. Petitioner Atty. Raul Lambino admitted this during the
oral arguments before this Court on 26 September 2006. RESOLUTION SUPPORTING THE PROPOSALS OF THE
PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER
The signature sheet merely asks a question whether the people approve CHANGE THROUGH PEOPLE'S INITIATIVE AND
a shift from the Bicameral-Presidential to the Unicameral-Parliamentary REFERENDUM AS A MODE OF AMENDING THE 1987
system of government. The signature sheet does not show to the CONSTITUTION
 WHEREAS, there is a need for the Union of Local Authorities of
the Philippines (ULAP) to adopt a common stand on the approach
to support the proposals of the People's Consultative
Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms as embodied in the ULAP Joint Declaration
for Constitutional Reforms signed by the members of the ULAP
and the majority coalition of the House of Representatives in
Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter
Change created by Her Excellency to recommend amendments
to the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members
and the failure of Congress to amend the Constitution as a
constituent assembly, ULAP has unanimously agreed to pursue
the constitutional reform agenda through People's Initiative and
Referendum without prejudice to other pragmatic means to
pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY
RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE
UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S
CONSULATATIVE (SIC) COMMISSION ON CHARTER
CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION;
DONE, during the ULAP National Executive Board special
meeting held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado
to prepare the 25 August 2006 petition, or the 30 August 2006 amended
petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission24 arevastly different from the
proposed changes of the Lambino Group in the 25 August 2006 petition
or 30 August 2006 amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission
affect all provisions of the existing Constitution, from the Preamble to
the Transitory Provisions. The proposed revisions have profound
impact on the Judiciary and the National Patrimony provisions of the
existing Constitution, provisions that the Lambino Group's proposed
changes do not touch. The Lambino Group's proposed changes purport
to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more
than six months before the filing of the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC. However, ULAP
Resolution No. 2006-02 does not establish that ULAP or the Lambino
Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition
together with the signature sheets. ULAP Resolution No. 2006-02
does not refer at all to the draft petition or to the Lambino Group's
proposed changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to
correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition
because the amended petition was what they had shown to the people
during the February to August 2006 signature-gathering. Instead, the
Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the
30 August 2006 amended petition with the COMELEC that they
circulated printed copies of the draft petition together with the signature
sheets. Likewise, the Lambino Group did not allege in their present
petition before this Court that they circulated printed copies of the draft
petition together with the signature sheets. The signature sheets do not
also contain any indication that the draft petition is attached to, or
circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions
that the Lambino Group first claimed that they circulated the "petition for
initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is
not (sic) fraud, a signer who did not read the measure
attached to a referendum petition cannot question his
signature on the ground that he did not understand the
nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224,
S.W. 327, 283 Mo. 546.] Thus, the registered voters who
signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are
presumed to have understood the proposition contained in the
petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the
petition for initiative filed with the COMELEC" appears an
afterthought, made after the intervenors Integrated Bar of the Philippines
(Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had
pointed out that the signature sheets did not contain the text of the
proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to
mention the amended petition. This contradicts what Atty. Lambino
finally stated during the oral arguments that what they circulated was the
draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating
that "a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." The Lambino Group quotes an
authority that cites a proposed changeattached to the petition signed
by the people. Even the authority the Lambino Group quotes requires
that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the
petition itself.
Indeed, it is basic in American jurisprudence that the proposed
amendment must be incorporated with, or attached to, the initiative
petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to,
the signature sheets. The Lambino Group's citation of Corpus Juris
Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed,
circulated, from February to August 2006 during the signature-gathering
period, the draft of the petition or amended petition they filed later with
the COMELEC. The Lambino Group are less than candid with this Court
in their belated claim that they printed and circulated, together with the
signature sheets, the petition or amended petition. Nevertheless,
even assumingthe Lambino Group circulated the amended petition
during the signature-gathering period, the Lambino Group admitted
circulating only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they filed more than
six months later with the COMELEC. Atty. Lambino added that he also
asked other supporters to print additional copies of the draft petition but
he could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the
printing of 100,000 copies because he himself caused the printing of
these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October
2006, the Lambino Group expressly admits that "petitioner Lambino
initiated the printing and reproduction of 100,000 copies of the
petition for initiative x x x."25 This admission binds the Lambino
Group and establishes beyond any doubt that the Lambino Group
failed to show the full text of the proposed changes to the great
majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have
received with certainty one copy each of the petition, assuming a 100
percent distribution with no wastage. If Atty. Lambino and company
attached one copy of the petition to each signature sheet, only 100,000
signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed
each of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically
impossible for all or a great majority of the 6.3 million signatories to have
seen the petition before they signed the signature sheets. The
inescapable conclusion is that the Lambino Group failed to show to
the 6.3 million signatories the full text of the proposed changes. If
ever, not more than one million signatories saw the petition before they
signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the
full text of the proposed changes, either on the face of the signature
sheets, or as attachment with an indication in the signature sheet of such
attachment.Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact
is also obvious from a mere reading of the signature sheet. This
omission is fatal. The failure to so include the text of the proposed
changes in the signature sheets renders the initiative void for non-
compliance with the constitutional requirement that the amendment must
be "directly proposed by the people through initiative upon a
petition." The signature sheet is not the "petition" envisioned in the
initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the
signature sheets did not see the full text of the proposed changes before
signing. They could not have known the nature and effect of the
proposed changes, among which are:
1. The term limits on members of the legislature will be
lifted and thus members of Parliament can be re-elected
indefinitely;26
2. The interim Parliament can continue to function indefinitely until
its members, who are almost all the present members of
Congress, decide to call for new parliamentary elections. Thus,
the members of the interim Parliament will determine the
expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed
changes, the interim Parliament shall convene to propose
further amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the
Lambino Group's signature sheets. The people who signed the signature
sheets had no idea that they were proposing these amendments. These
three proposed changes are highly controversial. The people could not
have inferred or divined these proposed changes merely from a reading
or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the
elections for the regular Parliament would be held during the 2007
local elections if the proposed changes were ratified before the 2007
local elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as
found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election
of the members of Parliament, which shall be synchronized
and held simultaneously with the election of all local
government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament
will be held simultaneously with the 2007 local elections. This section
merely requires that the elections for the regular Parliament shall be held
simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the
proposed changes, could have easily written the word "next" before the
phrase "election of all local government officials." This would have
insured that the elections for the regular Parliament would be held in the
next local elections following the ratification of the proposed changes.
However, the absence of the word "next" allows the interim Parliament to
schedule the elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of
their own term of office. This allows incumbent members of the House of
Representatives to hold office beyond their current three-year term of
office, and possibly even beyond the five-year term of office of regular
members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million
people who signed the signature sheets. Atty. Lambino and his
group deceived the 6.3 million signatories, and even the entire
nation.
This lucidly shows the absolute need for the people to sign an initiative
petition that contains the full text of the proposed amendments to avoid
fraud or misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of Atty. Lambino
and his group because the signature sheets did not contain the full text of
the proposed changes. The result is a grand deception on the 6.3
million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people
who signed the signature sheets. The proposed changes mandate the
interim Parliament to make further amendments or revisions to the
Constitution. The proposed Section 4(4), Article XVIII on Transitory
Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent
with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a
"surplusage" and the Court and the people should simply ignore it. Far
from being a surplusage, this provision invalidates the Lambino Group's
initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system.
American jurisprudence on initiatives outlaws this as logrolling - when
the initiative petition incorporates an unrelated subject matter in the same
petition. This puts the people in a dilemma since they can answer only
either yes or no to the entire proposition, forcing them to sign a petition
that effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the
entire proposition and not only the unrelated subject matter. Thus,
in Fine v. Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal
constitutes "logrolling," which, if our judicial responsibility
is to mean anything, we cannot permit. The very broadness of
the proposed amendment amounts to logrolling because the
electorate cannot know what it is voting on - the amendment's
proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of
the proposed amendment being voted on. x x x x The ballot
language in the instant case fails to do that. The very broadness
of the proposal makes it impossible to state what it will affect and
effect and violates the requirement that proposed amendments
embrace only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,30 the Supreme Court of Alaska warned against "inadvertence,
stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's
passage, and there is a greater opportunity for "inadvertence, stealth
and fraud" in the enactment-by-initiative process. The drafters of an
initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions,
when communicating to the public. x x x Indeed, initiative promoters
typically use simplistic advertising to present their initiative to
potential petition-signers and eventual voters. Many voters will never
read the full text of the initiative before the election. More importantly,
there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from
the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could
not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4)
to compel the interim Parliament to amend or revise again the
Constitution within 45 days from ratification of the proposed changes, or
before the May 2007 elections. In the absence of the proposed Section
4(4), the interim Parliament has the discretion whether to amend or revise
again the Constitution. With the proposed Section 4(4), the initiative
proponents want the interim Parliament mandated to immediately amend
or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in
amending or revising again so soon the Constitution. The signature
sheets do not also explain what specific amendments or revisions the
initiative proponents want the interim Parliament to make, and why there
is a need for such further amendments or revisions. The people are
again left in the dark to fathom the nature and effect of the proposed
changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of
the proposed changes.
There is another intriguing provision inserted in the Lambino Group's
amended petition of 30 August 2006. The proposed Section 4(3) of the
Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June
2010.
After 30 June 2010, not one of the present Senators will remain as
member of Parliament if the interim Parliament does not schedule
elections for the regular Parliament by 30 June 2010. However, there is
no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007,
three years earlier than that of half of the present Senators. Thus, all the
present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter,
the Prime Minister exercises all the powers of the President. If the interim
Parliament does not schedule elections for the regular Parliament by 30
June 2010, the Prime Minister will come only from the present members
of the House of Representatives to theexclusion of the present
Senators.
The signature sheets do not explain this discrimination against the
Senators. The 6.3 million people who signed the signature sheets
could not have known that their signatures would be used to
discriminate against the Senators. They could not have known that
their signatures would be used to limit, after 30 June 2010, the
interim Parliament's choice of Prime Minister only to members of
the existing House of Representatives.
An initiative that gathers signatures from the people without first
showing to the people the full text of the proposed amendments is most
likely a deception, and can operate as a gigantic fraud on the people.
That is why the Constitution requires that an initiative must be "directly
proposed by the people x x x in a petition" - meaning that the people
must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental
law, the writing of the text of the proposed amendments cannot
be hidden from the people under a general or special power of attorney
to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose
amendments to the Constitution. This Court trusts the wisdom of the
people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment
is first shown to the people before they sign the petition, not after
they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional
because it dismally fails to comply with the requirement of Section 2,
Article XVII of the Constitution that the initiative must be "directly
proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution
Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both amendments
and revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members, or
 (2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative x x x. (Emphasis
supplied)
Article XVII of the Constitution speaks of three modes of amending the
Constitution. The first mode is through Congress upon three-fourths vote
of all its Members. The second mode is through a constitutional
convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies
to "[A]ny amendment to, or revision of, this Constitution." In contrast,
Section 2 of Article XVII, referring to the third mode, applies only to
"[A]mendments to this Constitution." This distinction was intentional as
shown by the following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the 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. 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 be limited to amendments to the
Constitution and 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. x x x x
xxxx
MS. AQUINO: [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 self-executing provision?
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.
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.
MS. AQUINO: I thank the sponsor; and thank you, Madam
President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendments."
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."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the
Constitution intended, and wrote, a clear distinction between
"amendment" and "revision" of the Constitution. The framers intended,
and wrote, that only Congress or a constitutional convention may
propose revisions to the Constitution. The framers intended, and wrote,
that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly
withhold from the people the power to propose revisions to the
Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United
States. Thus, in McFadden v. Jordan,32 the Supreme Court of California
ruled:
The initiative power reserved by the people by amendment to
the Constitution x x x applies only to the proposing and the
adopting or rejecting of 'laws and amendments to the
Constitution' and does not purport to extend to a
constitutional revision. x x x x It is thus clear that a revision of
the Constitution may be accomplished only through ratification by
the people of a revised constitution proposed by a convention
called for that purpose as outlined hereinabove. Consequently if
the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state
Constitution would be effected, then the measure may not
properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention, and the writ sought
by petitioner should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the
manner in which it may be amended or revised, it can be altered
by those who favor amendments, revision, or other change only
through the use of one of the specified means. The constitution
itself recognizes that there is a difference between an
amendment and a revision; and it is obvious from an examination
of the measure here in question that it is not an amendment as
that term is generally understood and as it is used in Article IV,
Section 1. The document appears to be based in large part on the
revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative
Assembly, x x x and submitted to the 1963 Legislative Assembly.
It failed to receive in the Assembly the two-third's majority vote of
both houses required by Article XVII, Section 2, and hence failed
of adoption, x x x.
While differing from that document in material respects, the
measure sponsored by the plaintiffs is, nevertheless, a thorough
overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a
measure as can be submitted to the people through the initiative.
If a revision, it is subject to the requirements of Article XVII,
Section 2(1); if a new constitution, it can only be proposed at a
convention called in the manner provided in Article XVII, Section
1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's
initiative can only propose amendments to the Constitution since the
Constitution itself limits initiatives to amendments. There can be no
deviation from the constitutionally prescribed modes of revising the
Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed
in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No.
364:34
It is a fundamental principle that a constitution can only be
revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the
instrument is almost invariably treated as extra-
constitutional and revolutionary. x x x x "While it is universally
conceded that the people are sovereign and that they have power
to adopt a constitution and to change their own work at will, they
must, in doing so, act in an orderly manner and according to the
settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the
people may alter or amend it, an attempt to change the
fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the
Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution ― that a people's
initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an
amendment or revision of the Constitution? If the Lambino Group's
initiative constitutes a revision, then the present petition should be
dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.
Courts have long recognized the distinction between an amendment and
a revision of a constitution. One of the earliest cases that recognized the
distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a
permanent and abiding nature, and the provisions contained
therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was
framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the
constitution, like altering the principle of separation of powers or the
system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when
the change affects substantial provisions of the constitution. On the
other hand, amendment broadly refers to a change that adds, reduces,
or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment
generally affects only the specific provision being amended.
In California where the initiative clause allows amendments but not
revisions to the constitution just like in our Constitution, courts have
developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so extensive
in its provisions as to change directly the 'substantial entirety' of the
constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed
change in the constitution. The main inquiry is whether the change will
"accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an
alteration in the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental plan" includes
"change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also
includes changes that "jeopardize the traditional form of government and
the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's
initiative is a revision and not merely an amendment. Quantitatively, the
Lambino Group's proposed changes overhaul two articles - Article VI on
the Legislature and Article VII on the Executive - affecting a total of 105
provisions in the entire Constitution.40Qualitatively, the proposed changes
alter substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution,
as when the three great co-equal branches of government in the present
Constitution are reduced into two. This alters the separation of powers
in the Constitution. A shift from the present Bicameral-Presidential
system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of one chamber
of Congress alters the system of checks-and-balances within the
legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the abolition
of the Office of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment is
to improve specific parts or to add new provisions deemed necessary to
meet new conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In revision,
however, the guiding original intention and plan contemplates a re-
examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a
switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire
constitutional structure. So would a switch from a bicameral system
to a unicameral system be because of its effect on other important
provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of
the Florida State constitution to shift from a bicameral to a unicameral
legislature. The issue turned on whether the initiative "was defective and
unauthorized where [the] proposed amendment would x x x affect several
other provisions of [the] Constitution." The Supreme Court of Florida,
striking down the initiative as outside the scope of the initiative clause,
ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not
only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of
government, which has been in existence in the United States
Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more
revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only
radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but
would even affect the physical facilities necessary to carry
on government.
xxxx
We conclude with the observation that if such proposed
amendment were adopted by the people at the General Election
and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after
submission of appropriate amendments the people should refuse
to adopt them, simple chaos would prevail in the government of
this State. The same result would obtain from an amendment, for
instance, of Section 1 of Article V, to provide for only a Supreme
Court and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to the
answer.
The purpose of the long and arduous work of the hundreds of
men and women and many sessions of the Legislature in bringing
about the Constitution of 1968 was to eliminate inconsistencies
and conflicts and to give the State a workable, accordant,
homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be
amended in the manner proposed in the initiative petition
here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the
present petition. The Lambino Group's initiative not only seeks a shift
from a bicameral to a unicameral legislature, it also seeks to merge the
executive and legislative departments. The initiative in Adams did not
even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the
Florida Constitution that would be affected by the shift from a bicameral
to a unicameral legislature. In the Lambino Group's present initiative, no
less than 105 provisions of the Constitution would be affected based
on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no
doubt that the Lambino Group's present initiative seeks far more radical
changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment"
and "revision" is only one of procedure, not of substance. The
Lambino Group posits that when a deliberative body drafts and proposes
changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the
changes. However, the same substantive changes, when proposed
through an initiative, are called "amendments" because the changes are
made by ordinary people who do not make an "occupation,
profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory
in their Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and "revision"
when it speaks of legislators and constitutional delegates, while
the same provisions expressly provide only for "amendment"
when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that
on one hand the common people in general are not expected to
work full-time on the matter of correcting the constitution because
that is not their occupation, profession or vocation; while on the
other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter
because that is their occupation, profession or vocation. Thus,
the difference between the words "revision" and
"amendment" pertain only to the process or procedure of
coming up with the corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between "amendment"
and "revision" cannot reasonably be in the substance or
extent of the correction. x x x x (Underlining in the original;
boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional
convention had drafted the same proposed changes that the Lambino
Group wrote in the present initiative, the changes would constitute a
revision of the Constitution. Thus, the Lambino Group concedes that
the proposed changes in the present initiative constitute a revision
if Congress or a constitutional convention had drafted the changes.
However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of
the framers and the language of the Constitution are clear and plainly
stated, courts do not deviate from such categorical intent and
language.45 Any theory espousing a construction contrary to such intent
and language deserves scant consideration. More so, if such theory
wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any
jurisprudential mooring and inviting inconsistencies in the Constitution,
only exposes the flimsiness of the Lambino Group's position. Any theory
advocating that a proposed change involving a radical structural change
in government does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in
American jurisdictions have attempted to advance without any success.
In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this
theory, thus:
Mabon argues that Article XVII, section 2, does not apply to
changes to the constitution proposed by initiative. His theory is
that Article XVII, section 2 merely provides a procedure by
which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions
initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a
wholesale change to the constitution that cannot be enacted
through the initiative process. They assert that the distinction
between amendment and revision is determined by reviewing the
scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the
constitution." They argue that this ballot measure proposes far
reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and
radical restructuring of the government's relationship with a
defined group of citizens. Plaintiffs assert that, because the
proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1),
does not prohibit revisions instituted by initiative. In Holmes v.
Appling, x x x, the Supreme Court concluded that a revision of the
constitution may not be accomplished by initiative, because of the
provisions of Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court said:
 "From the foregoing it appears that Article IV, Section 1,
authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use
as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and
said: "It is the only section of the constitution which provides the
means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure
before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII,
section 2, does not apply to constitutional revisions
proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which
negates the express intent of the framers and the plain language of the
Constitution.
We can visualize amendments and revisions as a spectrum, at one end
green for amendments and at the other end red for revisions. Towards
the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present
initiative is indisputably located at the far end of the red spectrum where
revision begins. The present initiative seeks a radical overhaul of the
existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and
articles of the Constitution.
Where the proposed change applies only to a specific provision of the
Constitution without affecting any other section or article, the change may
generally be considered an amendment and not a revision. For example,
a change reducing the voting age from 18 years to 15 years47 is an
amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is
an amendment and not a revision.48 Also, a change requiring a college
degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49
The changes in these examples do not entail any modification of sections
or articles of the Constitution other than the specific provision being
amended. These changes do not also affect the structure of government
or the system of checks-and-balances among or within the three
branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the
present petition is located.
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one sentence of
the Constitution may be a revision and not an amendment. For example,
the substitution of the word "republican" with "monarchic" or "theocratic"
in Section 1, Article II50 of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be examined case-
by-case, depending on how it affects other provisions, as well as how it
affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several
provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles
with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the
Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to
26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be amended
to conform with a unicameral parliamentary form of
government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is
irreconcilably inconsistent with a prior law, the later law prevails. This rule
also applies to construction of constitutions. However, the Lambino
Group's draft of Section 2 of the Transitory Provisions turns on its head
this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with a
unicameral parliamentary form of government." The effect is to freeze the
two irreconcilable provisions until the earlier one "shall be amended,"
which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner
Atty. Lambino readily conceded during the oral arguments that the
requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the
later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of
the Transitory Provisions is not between a provision in Article VI of the
1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987 Constitution
and the "Parliamentary system of government," and the inconsistency
shall be resolved in favor of a "unicameral parliamentary form of
government."
Now, what "unicameral parliamentary form of government" do the
Lambino Group's proposed changes refer to ― the Bangladeshi,
Singaporean, Israeli, or New Zealand models, which are among
the few countries withunicameral parliaments? The proposed changes
could not possibly refer to the traditional and well-known parliamentary
forms of government ― the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature
sheets realize that they were adopting the Bangladeshi, Singaporean,
Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for
revisions of the Constitution but only for amendments. A shift from the
present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the
Constitution. Revision of the Constitution through a people's initiative will
only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative
is a revision and not an amendment. Thus, the present initiative is void
and unconstitutional because it violates Section 2, Article XVII of the
Constitution limiting the scope of a people's initiative to "[A]mendments
to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the
basic requirements of Section 2, Article XVII of the Constitution on the
conduct and scope of a people's initiative to amend the Constitution.
There is no need to revisit this Court's ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution. An
affirmation or reversal of Santiagowill not change the outcome of the
present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of
the Constitution to implement the initiative clause on amendments to the
Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a
statute if the case before the Court can be resolved on some other
grounds. Such avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the constitutionality of a statute if
the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the
constitutional provision on initiatives to amend the Constitution, this will
not change the result here because the present petition violates Section
2, Article XVII of the Constitution. To be a valid initiative, the present
initiative must first comply with Section 2, Article XVII of the Constitution
even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which
requires that the "petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered
voters as signatories." Section 5(b) of RA 6735 requires that the people
must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or
the amended petition of 30 August 2006 filed with the COMELEC. Only
Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C.
Agra signed the petition and amended petition as counsels for
"Raul L. Lambino and Erico B. Aumentado, Petitioners." In the
COMELEC, the Lambino Group, claiming to act "together with" the 6.3
million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with
the COMELEC did not even comply with the basic requirement of RA
6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA
6735 stating, "No petition embracing more than one (1) subject shall
be submitted to the electorate; x x x." The proposed Section 4(4) of the
Transitory Provisions, mandating the interim Parliament to propose
further amendments or revisions to the Constitution, is a subject matter
totally unrelated to the shift in the form of government. Since the present
initiative embraces more than one subject matter, RA 6735 prohibits
submission of the initiative petition to the electorate. Thus, even if RA
6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in
Dismissing the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en
banc merely followed this Court's ruling inSantiago and People's
Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC.52 For following this Court's ruling, no grave abuse of
discretion is attributable to the COMELEC. On this ground alone, the
present petition warrants outright dismissal. Thus, this Court should
reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse
of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it
appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on
March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the
utmost respect and obedience of all the citizens of this nation. No one
can trivialize the Constitution by cavalierly amending or revising it in
blatant violation of the clearly specified modes of amendment and
revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the
Constitution in unchartered waters, to be tossed and turned by every
dominant political group of the day. If this Court allows today a cavalier
change in the Constitution outside the constitutionally prescribed modes,
tomorrow the new dominant political group that comes will demand its
own set of changes in the same cavalier and unconstitutional fashion. A
revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority − 16,622,111 voters comprising 76.3
percent of the total votes cast53 − approved our Constitution in a
national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's
sovereign will. That approval included the prescribed modes for
amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures
gathered by the Lambino Group, can change our Constitution contrary to
the specific modes that the people, in their sovereign capacity, prescribed
when they ratified the Constitution. The alternative is an extra-
constitutional change, which means subverting the people's sovereign
will and discarding the Constitution. This is one act the Court cannot
and should never do. As the ultimate guardian of the Constitution, this
Court is sworn to perform its solemn duty to defend and protect the
Constitution, which embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the
people decide" cannot override the specific modes of changing the
Constitution as prescribed in the Constitution itself. Otherwise, the
Constitution ― the people's fundamental covenant that provides enduring
stability to our society ― becomes easily susceptible to manipulative
changes by political groups gathering signatures through false promises.
Then, the Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice."
However, the Lambino Group unabashedly states in ULAP Resolution
No. 2006-02, in the verification of their petition with the COMELEC, that
"ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms."
The Lambino Group thus admits that their "people's" initiative is an
"unqualified support to the agenda" of the incumbent President to change
the Constitution. This forewarns the Court to be wary of incantations of
"people's voice" or "sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the people's sovereign
will, is the bible of this Court. This Court exists to defend and protect
the Constitution. To allow this constitutionally infirm initiative, propelled
by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such
alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13250 October 29, 1971
THE COLLECTOR OF INTERNAL REVENUE, petitioner,
vs.
ANTONIO CAMPOS RUEDA, respondent..
Assistant Solicitor General Jose P. Alejandro and Special Attorney Jose
G. Azurin, (O.S.G.) for petitioner.
Ramirez and Ortigas for respondent.
FERNANDO, J.:
The basic issue posed by petitioner Collector of Internal Revenue in this
appeal from a decision of the Court of Tax Appeals as to whether or not
the requisites of statehood, or at least so much thereof as may be
necessary for the acquisition of an international personality, must be
satisfied for a "foreign country" to fall within the exemption of Section 122
of the National Internal Revenue Code 1 is now ripe for adjudication. The
Court of Tax Appeals answered the question in the negative, and thus
reversed the action taken by petitioner Collector, who would hold
respondent Antonio Campos Rueda, as administrator of the estate of the
late Estrella Soriano Vda. de Cerdeira, liable for the sum of P161,874.95
as deficiency estate and inheritance taxes for the transfer of intangible
personal properties in the Philippines, the deceased, a Spanish national
having been a resident of Tangier, Morocco from 1931 up to the time of
her death in 1955. In an earlier resolution promulgated May 30, 1962, this
Court on the assumption that the need for resolving the principal question
would be obviated, referred the matter back to the Court of Tax Appeals
to determine whether the alleged law of Tangier did grant the reciprocal
tax exemption required by the aforesaid Section 122. Then came an
order from the Court of Tax Appeals submitting copies of legislation of
Tangier that would manifest that the element of reciprocity was not
lacking. It was not until July 29, 1969 that the case was deemed
submitted for decision. When the petition for review was filed on January
2, 1958, the basic issue raised was impressed with an element of
novelty. Four days thereafter, however, on January 6, 1958, it was held
by this Court that the aforesaid provision does not require that the
"foreign country" possess an international personality to come within its
terms. 2 Accordingly, we have to affirm.
The decision of the Court of Tax Appeals, now under review, sets forth
the background facts as follows: "This is an appeal interposed by
petitioner Antonio Campos Rueda as administrator of the estate of the
deceased Doña Maria de la Estrella Soriano Vda. de Cerdeira, from the
decision of the respondent Collector of Internal Revenue, assessing
against and demanding from the former the sum P161,874.95 as
deficiency estate and inheritance taxes, including interest and penalties,
on the transfer of intangible personal properties situated in the
Philippines and belonging to said Maria de la Estrella Soriano Vda. de
Cerdeira. Maria de la Estrella Soriano Vda. de Cerdeira (Maria Cerdeira
for short) is a Spanish national, by reason of her marriage to a Spanish
citizen and was a resident of Tangier, Morocco from 1931 up to her death
on January 2, 1955. At the time of her demise she left, among others,
intangible personal properties in the Philippines." 3 Then came this
portion: "On September 29, 1955, petitioner filed a provisional estate and
inheritance tax return on all the properties of the late Maria Cerdeira. On
the same date, respondent, pending investigation, issued an assessment
for state and inheritance taxes in the respective amounts of P111,592.48
and P157,791.48, or a total of P369,383.96 which tax liabilities were paid
by petitioner ... . On November 17, 1955, an amended return was filed ...
wherein intangible personal properties with the value of P396,308.90
were claimed as exempted from taxes. On November 23, 1955,
respondent, pending investigation, issued another assessment for estate
and inheritance taxes in the amounts of P202,262.40 and P267,402.84,
respectively, or a total of P469,665.24 ... . In a letter dated January 11,
1956, respondent denied the request for exemption on the ground that
the law of Tangier is not reciprocal to Section 122 of the National Internal
Revenue Code. Hence, respondent demanded the payment of the sums
of P239,439.49 representing deficiency estate and inheritance taxes
including ad valorem penalties, surcharges, interests and compromise
penalties ... . In a letter dated February 8, 1956, and received by
respondent on the following day, petitioner requested for the
reconsideration of the decision denying the claim for tax exemption of the
intangible personal properties and the imposition of the 25% and 5% ad
valorem penalties ... . However, respondent denied request, in his letter
dated May 5, 1956 ... and received by petitioner on May 21, 1956.
Respondent premised the denial on the grounds that there was no
reciprocity [with Tangier, which was moreover] a mere principality, not a
foreign country. Consequently, respondent demanded the payment of the
sums of P73,851.21 and P88,023.74 respectively, or a total of
P161,874.95 as deficiency estate and inheritance taxes including
surcharges, interests and compromise penalties." 4
The matter was then elevated to the Court of Tax Appeals. As there was
no dispute between the parties regarding the values of the properties and
the mathematical correctness of the deficiency assessments, the
principal question as noted dealt with the reciprocity aspect as well as the
insisting by the Collector of Internal Revenue that Tangier was not a
foreign country within the meaning of Section 122. In ruling against the
contention of the Collector of Internal Revenue, the appealed decision
states: "In fine, we believe, and so hold, that the expression "foreign
country", used in the last proviso of Section 122 of the National Internal
Revenue Code, refers to a government of that foreign power which,
although not an international person in the sense of international law,
does not impose transfer or death upon intangible person properties of
our citizens not residing therein, or whose law allows a similar exemption
from such taxes. It is, therefore, not necessary that Tangier should have
been recognized by our Government order to entitle the petitioner to the
exemption benefits of the proviso of Section 122 of our Tax. Code." 5
Hence appeal to this court by petitioner. The respective briefs of the
parties duly submitted, but as above indicated, instead of ruling definitely
on the question, this Court, on May 30, 1962, resolve to inquire further
into the question of reciprocity and sent back the case to the Court of Tax
Appeals for the motion of evidence thereon. The dispositive portion of
such resolution reads as follows: "While section 122 of the Philippine Tax
Code aforequoted speaks of 'intangible personal property' in both
subdivisions (a) and (b); the alleged laws of Tangier refer to 'bienes
muebles situados en Tanger', 'bienes muebles radicantes en Tanger',
'movables' and 'movable property'. In order that this Court may be able to
determine whether the alleged laws of Tangier grant the reciprocal tax
exemptions required by Section 122 of the Tax Code, and without, for the
time being, going into the merits of the issues raised by the petitioner-
appellant, the case is [remanded] to the Court of Tax Appeals for the
reception of evidence or proof on whether or not the words `bienes
muebles', 'movables' and 'movable properties as used in the Tangier
laws, include or embrace 'intangible person property', as used in the Tax
Code." 6 In line with the above resolution, the Court of Tax Appeals
admitted evidence submitted by the administrator petitioner Antonio
Campos Rueda, consisting of exhibits of laws of Tangier to the effect that
"the transfers by reason of death of movable properties, corporeal or
incorporeal, including furniture and personal effects as well as of
securities, bonds, shares, ..., were not subject, on that date and in said
zone, to the payment of any death tax, whatever might have been the
nationality of the deceased or his heirs and legatees." It was further noted
in an order of such Court referring the matter back to us that such were
duly admitted in evidence during the hearing of the case on September 9,
1963. Respondent presented no evidence." 7
The controlling legal provision as noted is a proviso in Section 122 of the
National Internal Revenue Code. It reads thus: "That no tax shall be
collected under this Title in respect of intangible personal property (a) if
the decedent at the time of his death was a resident of a foreign country
which at the time of his death did not impose a transfer tax or death tax of
any character in respect of intangible person property of the Philippines
not residing in that foreign country, or (b) if the laws of the foreign country
of which the decedent was a resident at the time of his death allow a
similar exemption from transfer taxes or death taxes of every character in
respect of intangible personal property owned by citizens of the
Philippines not residing in that foreign country." 8 The only obstacle
therefore to a definitive ruling is whether or not as vigorously insisted
upon by petitioner the acquisition of internal personality is a
condition sine qua non to Tangier being considered a "foreign country".
Deference to the De Lara ruling, as was made clear in the opening
paragraph of this opinion, calls for an affirmance of the decision of the
Court of Tax Appeals.
It does not admit of doubt that if a foreign country is to be identified with a
state, it is required in line with Pound's formulation that it be a politically
organized sovereign community independent of outside control bound by
penalties of nationhood, legally supreme within its territory, acting
through a government functioning under a regime of
law. 9 It is thus a sovereign person with the people composing it viewed
as an organized corporate society under a government with the legal
competence to exact obedience to its commands. 10 It has been referred
to as a body-politic organized by common consent for mutual defense
and mutual safety and to promote the general welfare. 11 Correctly has it
been described by Esmein as "the juridical personification of the
nation." 12 This is to view it in the light of its historical development. The
stress is on its being a nation, its people occupying a definite territory,
politically organized, exercising by means of its government its sovereign
will over the individuals within it and maintaining its separate international
personality. Laski could speak of it then as a territorial society divided into
government and subjects, claiming within its allotted area a supremacy
over all other institutions. 13 McIver similarly would point to the power WHEREFORE, the decision of the respondent Court of Tax Appeals of
entrusted to its government to maintain within its territory the conditions October 30, 1957 is affirmed. Without pronouncement as to costs.
of a legal order and to enter into international relations. 14 With the latter
requisite satisfied, international law do not exact independence as a
condition of statehood. So Hyde did opine. 15

Even on the assumption then that Tangier is bereft of international

personality, petitioner has not successfully made out a case. It bears
repeating that four days after the filing of this petition on January 6, 1958
in Collector of Internal Revenue v. De Lara, 16 it was specifically held by
us: "Considering the State of California as a foreign country in relation to
section 122 of our Tax Code we believe and hold, as did the Tax Court,
that the Ancilliary Administrator is entitled the exemption from the
inheritance tax on the intangible personal property found in the
Philippines." 17 There can be no doubt that California as a state in the
American Union was in the alleged requisite of international personality.
Nonetheless, it was held to be a foreign country within the meaning of
Section 122 of the National Internal Revenue Code. 18

What is undeniable is that even prior to the De Lara ruling, this Court did
commit itself to the doctrine that even a tiny principality, that of
Liechtenstein, hardly an international personality in the sense, did fall
under this exempt category. So it appears in an opinion of the Court by
the then Acting Chief Justicem Bengson who thereafter assumed that
position in a permanent capacity, in Kiene v. Collector of Internal
Revenue. 19 As was therein noted: 'The Board found from the documents
submitted to it — proof of the laws of Liechtenstein — that said country
does not impose estate, inheritance and gift taxes on intangible property
of Filipino citizens not residing in that country. Wherefore, the Board
declared that pursuant to the exemption above established, no estate or
inheritance taxes were collectible, Ludwig Kiene being a resident of
Liechtestein when he passed away." 20 Then came this definitive ruling:
"The Collector — hereafter named the respondent — cites decisions of
the United States Supreme Court and of this Court, holding that
intangible personal property in the Philippines belonging to a non-
resident foreigner, who died outside of this country is subject to the
estate tax, in disregard of the principle 'mobilia sequuntur personam'.
Such property is admittedly taxable here. Without the proviso above
quoted, the shares of stock owned here by the Ludwig Kiene would be
concededly subject to estate and inheritance taxes. Nevertheless our
Congress chose to make an exemption where conditions are such that
demand reciprocity — as in this case. And the exemption must be
honored." 21
 epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA
BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA,
JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA
BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN DELA
CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER,
CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY
KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA
IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO,
MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO
VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE
NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221(RA 9522) adjusting the
country’s archipelagic baselines and classifying the baseline regime of
nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA
3046)2 demarcating the maritime baselines of the Philippines as an
archipelagic State.3 This law followed the framing of the Convention on
the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4 codifying, among others, the sovereign right of States parties over
their "territorial sea," the breadth of which, however, was left
undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades,
save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the
statute now under scrutiny. The change was prompted by the need to
make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of application for
the extended continental shelf.8 Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints
around the Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a legislator, in their
respective capacities as "citizens, taxpayers or x x x legislators,"9 as the
case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine state’s sovereign power, in violation
of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty
of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s
waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security,
contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as
"regime of islands" not only results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen.14 To buttress
their argument of territorial diminution, petitioners facially attack RA 9522
for what it excluded and included – its failure to reference either the
Treaty of Paris or Sabah and its use of UNCLOS III’s framework of
regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petition’s compliance with the case or controversy
requirement for judicial review grounded on petitioners’ alleged lack
of locus standiand (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the country’s compliance with the
terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine
the country’s security, environment and economic interests or relinquish
the Philippines’ claim over Sabah.
Respondents also question the normative force, under international law,
of petitioners’ assertion that what Spain ceded to the United States under
the Treaty of Paris were the islands and all the waters found within the
boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners possess locus standi to bring this
suit; and
2. Whether the writs of certiorari and prohibition are the
proper remedies to assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus
standi to bring this suit as citizens and (2) the writs of certiorari and
prohibition are proper remedies to test the constitutionality of RA 9522.
On the merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as
legislators and taxpayers because the petition alleges neither
infringement of legislative prerogative15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA 9522.
Nonetheless, we recognize petitioners’ locus standi as citizens with
constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of
RA 9522, it is understandably difficult to find other litigants possessing "a
more direct and specific interest" to bring the suit, thus satisfying one of
the requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds,
respondents seek a strict observance of the offices of the writs of
certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-
judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents’ submission holds true in ordinary civil proceedings. When
this Court exercises its constitutional power of judicial review, however,
we have, by tradition, viewed the writs of certiorari and prohibition as
proper remedial vehicles to test the constitutionality of statutes,19 and
indeed, of acts of other branches of government.20 Issues of
constitutional import are sometimes crafted out of statutes which, while
having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues
raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the
national territory"21 because it discards the pre-UNCLOS III demarcation
of Philippine territory under the Treaty of Paris and related treaties,
successively encoded in the definition of national territory under the
1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying
the Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of
Paris’ technical description, Philippine sovereignty over territorial waters
extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It
is a multilateral treaty regulating, among others, sea-use rights over
maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the world’s
oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine
lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by
UNCLOS III States parties to mark-out specific basepoints along their
coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf.
– The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS
III States parties to delimit with precision the extent of their maritime
zones and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights,
namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in
the contiguous zone (Article 33), and the right to exploit the living and
non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory embraces the
islands and all the waters within the rectangular area delimited in the
Treaty of Paris, the baselines of the Philippines would still have to be
drawn in accordance with RA 9522 because this is the only way to draw
the baselines in conformity with UNCLOS III. The baselines cannot be
drawn from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the "outermost islands and
drying reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory.
Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and
prescription,25 not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules
on general international law.26
RA 9522’s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent miles)
with the Philippines’ Claim of Sovereignty
Over these Areas Internal or
archipelagic
Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of waters 166,858 171,435
islands framework to draw the baselines, and to measure the breadth of
the applicable maritime zones of the KIG, "weakens our territorial claim" Territorial Sea 274,136 32,106
over that area.27 Petitioners add that the KIG’s (and Scarborough
Shoal’s) exclusion from the Philippine archipelagic baselines results in
Exclusive
the loss of "about 15,000 square nautical miles of territorial waters,"
Economic Zone 382,669
prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and
the extent of maritime space encompassed by each law, coupled with a TOTAL 440,994 586,210
reading of the text of RA 9522 and its congressional deliberations, vis-à-
vis the Philippines’ obligations under UNCLOS III, belie this
view.1avvphi1 Thus, as the map below shows, the reach of the exclusive economic
zone drawn under RA 9522 even extends way beyond the waters
covered by the rectangular demarcation under the Treaty of Paris. Of
The configuration of the baselines drawn under RA 3046 and RA 9522 course, where there are overlapping exclusive economic zones of
shows that RA 9522 merely followed the basepoints mapped by RA
opposite or adjacent States, there will have to be a delineation of
3046, save for at least nine basepoints that RA 9522 skipped to optimize maritime boundaries in accordance with UNCLOS III.30
the location of basepoints and adjust the length of one baseline (and thus
comply with UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the
Philippine archipelago. This undeniable cartographic fact takes the wind
out of petitioners’ argument branding RA 9522 as a statutory renunciation
of the Philippines’ claim over the KIG, assuming that baselines are
relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of

territorial waters" under RA 9522 is similarly unfounded both in fact and
law. On the contrary, RA 9522, by optimizing the location of
basepoints, increasedthe Philippines’ total maritime space (covering its
internal waters, territorial sea and exclusive economic zone) by 145,216
square nautical miles, as shown in the table below:29

Extent of maritime Extent of maritime

area using RA 3046, area using RA 9522,
as amended, taking taking into account
into account the UNCLOS III (in
Treaty of Paris’ square nautical
delimitation (in miles)
square nautical

Further, petitioners’ argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the
KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines’ continued claim of sovereignty and jurisdiction over the KIG
and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined
as "Regime of Islands" under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal.
(Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal
as part of the Philippine archipelago, adverse legal effects would have
ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that
"[t]he drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago." Second, Article
47 (2) of UNCLOS III requires that "the length of the baselines shall not
exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the
KIG32 and the Scarborough Shoal for several decades, these outlying
areas are located at an appreciable distance from the nearest shoreline
of the Philippine archipelago,33 such that any straight baseline loped
around them from the nearest basepoint will inevitably "depart to an
appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam
Defensor-Santiago, took pains to emphasize the foregoing during the
Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world
call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: "The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago." So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although
we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya
kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow
the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded
UNCLOS III’s limits.1avvphi1 The need to shorten this baseline, and in
addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including the
extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3
Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This
exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines
shall not exceed 100 nautical miles, except that up to 3 per cent
of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical
miles."
2. The selection of basepoints is not optimal. At least 9
basepoints can be skipped or deleted from the baselines system.
This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968,
and not established by geodetic survey methods. Accordingly,
some of the points, particularly along the west coasts of Luzon
down to Palawan were later found to be located either inland or
on water, not on low-water line and drying reefs as prescribed by
Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the
Scarborough Shoal, Congress’ decision to classify the KIG and the
Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of the
Philippines consistent with Article 121"36 of UNCLOS III manifests the
Philippine State’s responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any "naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the
category of "regime of islands," whose islands generate their own
applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to
textualize the Philippines’ claim over Sabah in North Borneo is also
untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Actis without prejudice to the
delineation of the baselines of the territorial sea around the territory
of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty. (Emphasis
supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners
contend that the law unconstitutionally "converts" internal waters into
archipelagic waters, hence subjecting these waters to the right of
innocent and sea lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose
Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the
Constitution39 or as "archipelagic waters" under UNCLOS III (Article 49
[1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the
waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic waters,
regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil, and
the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in
this Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such waters
and their air space, bed and subsoil, and the resources
contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of
municipal and international law norms subjecting the territorial sea or
archipelagic waters to necessary, if not marginal, burdens in the interest
of maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of navigation.
Thus, domestically, the political branches of the Philippine government, in
the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate
innocent and sea lanes passage.40 Indeed, bills drawing nautical
highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now
codified in UNCLOS III, operate to grant innocent passage rights over the
territorial sea or archipelagic waters, subject to the treaty’s limitations and
conditions for their exercise.42 Significantly, the right of innocent passage
is a customary international law,43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that is exercised in
accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject
to both the right of innocent passage and sea lanes passage45 does not
place them in lesser footing vis-à-vis continental coastal States which are
subject, in their territorial sea, to the right of innocent passage and the
right of transit passage through international straits. The imposition of
these passage rights through archipelagic waters under UNCLOS III was
a concession by archipelagic States, in exchange for their right to claim
all the waters landward of their baselines,regardless of their depth or
distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States’
archipelago and the waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical
miles beyond the States’ territorial sovereignty, subjecting these waters
to the rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions in Article
II (Declaration of Principles and State Policies)48 must also fail. Our
present state of jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation, "do not
embody judicially enforceable constitutional rights x x x."49 Article II
provisions serve as guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful
and balanced ecology under Section 16 of Article II as an exception, the
present petition lacks factual basis to substantiate the claimed
constitutional violation. The other provisions petitioners cite, relating to
the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and
subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to
delimit its exclusive economic zone, reserving solely to the Philippines
the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime
delineation is contrary to UNCLOS III, the international community will of
course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space – the exclusive
economic zone – in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources
found within this zone up to 200 nautical miles.53 UNCLOS III, however,
preserves the traditional freedom of navigation of other States that Associate Justice Associate Justice
attached to this zone beyond the territorial sea before UNCLOS III.
ARTURO D. BRION DIOSDADO M. PERALTA
RA 9522 and the Philippines’ Maritime Zones
Associate Justice Associate Justice
Petitioners hold the view that, based on the permissive text of UNCLOS
III, Congress was not bound to pass RA 9522.54 We have looked at the LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
relevant provision of UNCLOS III55 and we find petitioners’ reading Associate Justice Associate Justice
plausible. Nevertheless, the prerogative of choosing this option belongs
to Congress, not to this Court. Moreover, the luxury of choosing this
option comes at a very steep price. Absent an UNCLOS III compliant ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
baselines law, an archipelagic State like the Philippines will find itself Associate Justice Associate Justice
devoid of internationally acceptable baselines from where the breadth of
its maritime zones and continental shelf is measured. This is recipe for a
two-fronted disaster: first, it sends an open invitation to the seafaring JOSE PORTUGAL PEREZ JOSE C. MENDOZA
powers to freely enter and exploit the resources in the waters and Associate Justice Associate Justice
submarine areas around our archipelago; and second, it weakens the
country’s case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided. MARIA LOURDES P. A. SERENO
Associate Justice
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an CERTIFICATION
internationally-recognized delimitation of the breadth of the Philippines’
maritime zones and continental shelf. RA 9522 is therefore a most vital
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
step on the part of the Philippines in safeguarding its maritime zones,
conclusions in the above Decision had been reached in consultation
consistent with the Constitution and our national interest.
before the case was assigned to the writer of the opinion of the Court.
WHEREFORE, we DISMISS the petition.
RENATO C. CORONA
Chief Justice
SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, TERESITA J. LEONARDO-DE

JR. CASTRO
 EN BANC
[G.R. No. L-9657. November 29, 1956.]
LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-
Appellees, vs. NATIONAL COCONUT CORPORATION, ET
AL., Defendants, NATIONAL COCONUT CORPORATION and BOARD
OF LIQUIDATORS, Defendants-Appellants.
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs herein are court stenographers assigned in Branch VI of the
Court of First Instance of Manila. During the pendency of Civil Case No.
2293 of said court, entitled Francisco Sycip vs. National Coconut
Corporation, Assistant Corporate Counsel Federico Alikpala, counsel
forDefendant, requested said stenographers for copies of the transcript of
the stenographic notes taken by them during the
hearing. Plaintiffs complied with the request by delivering to Counsel
Alikpala the needed transcript containing 714 pages and thereafter
submitted to him their bills for the payment of their fees. The National
Coconut Corporation paid the amount of P564 to Leopoldo T. Bacani and
P150 to Mateo A. Matoto for said transcript at the rate of P1 per page.
Upon inspecting the books of this corporation, the Auditor General
disallowed the payment of these fees and sought the recovery of the
amounts paid. On January 19, 1953, the Auditor General required
the Plaintiffs to reimburse said amounts on the strength of a circular of
the Department of Justice wherein the opinion was expressed that the
National Coconut Corporation, being a government entity, was exempt
from the payment of the fees in question. On February 6, 1954, the
Auditor General issued an order directing the Cashier of the Department
of Justice to deduct from the salary of Leopoldo T. Bacani the amount of
P25 every payday and from the salary of Mateo A. Matoto the amount of
P10 every payday beginning March 30, 1954. To prevent deduction of
these fees from their salaries and secure a judicial ruling that the National
Coconut Corporation is not a government entity within the purview of
section 16, Rule 130 of the Rules of Court, this action was instituted in
the Court of First Instance of Manila.
Defendants set up as a defense that the National Coconut Corporation is
a government entity within the purview of section 2 of the Revised
Administrative Code of 1917 and, hence, it is exempt from paying the
stenographers’ fees under Rule 130 of the Rules of Court. After trial, the
court found for the Plaintiffs declaring (1) “that Defendant National
Coconut Corporation is not a government entity within the purview of
section 16, Rule 130 of the Rules of Court; chan roblesvirtualawlibrary(2)
that the payments already made by said Defendant to Plaintiffs herein
and received by the latter from the former in the total amount of P714, for
copies of the stenographic transcripts in question, are valid, just and
legal; chan roblesvirtualawlibraryand (3) that Plaintiffs are under no
obligation whatsoever to make a refund of these payments already
received by them.” This is an appeal from said decision.
Under section 16, Rule 130 of the Rules of Court, the Government of the
Philippines is exempt from paying the legal fees provided for therein, and
among these fees are those which stenographers may charge for the
transcript of notes taken by them that may be requested by any
interested person (section 8). The fees in question are for the transcript
of notes taken during the hearing of a case in which the National Coconut
Corporation is interested, and the transcript was requested by its
assistant corporate counsel for the use of said corporation.
On the other hand, section 2 of the Revised Administrative Code defines
the scope of the term “Government of the Republic of the Philippines” as
follows:chanroblesvirtuallawlibrary
“‘The Government of the Philippine Islands’ is a term which refers to the
corporate governmental entity through which the functions of government
are exercised throughout the Philippine Islands, including, save as the
contrary appears from the context, the various arms through which
political authority is made effective in said Islands, whether pertaining to
the central Government or to the provincial or municipal branches or
other form of local government.”
The question now to be determined is whether the National Coconut
Corporation may be considered as included in the term “Government of
the Republic of the Philippines” for the purposes of the exemption of the
legal fees provided for in Rule 130 of the Rules of Court.
As may be noted, the term “Government of the Republic of the
Philippines” refers to a government entity through which the functions of
government are exercised, including the various arms through which
political authority is made effective in the Philippines, whether pertaining
to the central government or to the provincial or municipal branches or
other form of local government. This requires a little digression on the
nature and functions of our government as instituted in our Constitution.
To begin with, we state that the term “Government” may be defined as
“that institution or aggregate of institutions by which an independent
society makes and carries out those rules of action which are necessary
to enable men to live in a social state, or which are imposed upon the
people forming that society by those who possess the power or authority
of prescribing them” (U.S. vs. Dorr, 2 Phil., 332). This institution, when
referring to the national government, has reference to what our
Constitution has established composed of three great departments, the
legislative, executive, and the judicial, through which the powers and
functions of government are exercised. These functions are
twofold:chanroblesvirtuallawlibrary constitute and ministrant. The former
are those which constitute the very bonds of society and are compulsory
in nature; chan roblesvirtualawlibrarythe latter are those that are
undertaken only by way of advancing the general interests of society, and
are merely optional. President Wilson enumerates the constituent
functions as follows:chanroblesvirtuallawlibrary
“‘(1) The keeping of order and providing for the protection of persons and
property from violence and robbery.
‘(2) The fixing of the legal relations between man and wife and between
parents and children.
‘(3) The regulation of the holding, transmission, and interchange of
property, and the determination of its liabilities for debt or for crime.
‘(4) The determination of contract rights between individuals.
‘(5) The definition and punishment of crime.
‘(6) The administration of justice in civil cases.
‘(7) The determination of the political duties, privileges, and relations of
citizens.
‘(8) Dealings of the state with foreign
powers:chanroblesvirtuallawlibrary the preservation of the state from
external danger or encroachment and the advancement of its
international interests.’“ (Malcolm, The Government of the Philippine
Islands, p. 19.)
The most important of the ministrant functions
are:chanroblesvirtuallawlibrary public works, public education, public
charity, health and safety regulations, and regulations of trade and
industry. The principles deter mining whether or not a government shall
exercise certain of these optional functions
are:chanroblesvirtuallawlibrary (1) that a government should do for the
public welfare those things which private capital would not naturally
undertake and (2) that a government should do these things which by its
very nature it is better equipped to administer for the public welfare than
is any private individual or group of individuals. (Malcolm, The
Government of the Philippine Islands, pp. 19-20.)
From the above we may infer that, strictly speaking, there are functions
which our government is required to exercise to promote its objectives as
expressed in our Constitution and which are exercised by it as an
attribute of sovereignty, and those which it may exercise to promote
merely the welfare, progress and prosperity of the people. To this latter
class belongs the organization of those corporations owned or controlled
by the government to promote certain aspects of the economic life of our
people such as the National Coconut Corporation. These are what we
call government-owned or controlled corporations which may take on the
form of a private enterprise or one organized with powers and formal
characteristics of a private corporations under the Corporation Law.
The question that now arises is:chanroblesvirtuallawlibrary Does the fact
that these corporation perform certain functions of government make
them a part of the Government of the Philippines?
The answer is simple:chanroblesvirtuallawlibrary they do not acquire that
status for the simple reason that they do not come under the
classification of municipal or public corporation. Take for instance the
National Coconut Corporation. While it was organized with the purpose of
“adjusting the coconut industry to a position independent of trade
preferences in the United States” and of providing “Facilities for the better
curing of copra products and the proper utilization of coconut by-
products”, a function which our government has chosen to exercise to
promote the coconut industry, however, it was given a corporate power
separate and distinct from our government, for it was made subject to the
provisions of our Corporation Law in so far as its corporate existence and
the powers that it may exercise are concerned (sections 2 and 4,
Commonwealth Act No. 518). It may sue and be sued in the same
manner as any other private corporations, and in this sense it is an entity
different from our government. As this Court has aptly said, “The mere
fact that the Government happens to be a majority stockholder does not
make it a public corporation” (National Coal Co. vs. Collector of Internal
Revenue, 46 Phil., 586-587). “By becoming a stockholder in the National
Coal Company, the Government divested itself of its sovereign character
so far as respects the transactions of the corporation cralaw . Unlike the
Government, the corporation may be sued without its consent, and is
subject to taxation. Yet the National Coal Company remains an agency or
instrumentality of government.” (Government of the Philippine Islands vs.
Springer, 50 Phil., 288.)
To recapitulate, we may mention that the term “Government of the
Republic of the Philippines” used in section 2 of the Revised
Administrative Code refers only to that government entity through which
the functions of the government are exercised as an attribute of
sovereignty, and in this are included those arms through which political
authority is made effective whether they be provincial, municipal or other As regards the question of procedure raised by Appellants, suffice it to
form of local government. These are what we call municipal corporations. say that the same is insubstantial, considering that this case refers not to
They do not include government entities which are given a corporate a money claim disapproved by the Auditor General but to an action of
personality separate and distinct from the government and which are prohibition the purpose of which is to restrain the officials concerned from
governed by the Corporation Law. Their powers, duties and liabilities deducting from Plaintiffs’ salaries the amount paid to them as
have to be determined in the light of that law and of their corporate stenographers’ fees. This case does not come under section 1, Rule 45
charters. They do not therefore come within the exemption clause of the Rules of Court relative to appeals from a decision of the Auditor
prescribed in section 16, Rule 130 of our Rules of Court. General.
“Public corporations are those formed or organized for the government of Wherefore, the decision appealed from is affirmed, without
a portion of the State.” (Section 3, Republic Act No. 1459, Corporation pronouncement as to costs.
Law).
“‘The generally accepted definition of a municipal corporation would only
include organized cities and towns, and like organizations, with political
and legislative powers for the local, civil government and police
regulations of the inhabitants of the particular district included in the
boundaries of the corporation.’ Heller vs. Stremmel, 52 Mo. 309, 312.”
“In its more general sense the phrase ‘municipal corporation’ may include
both towns and counties, and other public corporations created by
government for political purposes. In its more common and limited
signification, it embraces only incorporated villages, towns and cities.
Dunn vs. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661.”
(McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.)
“We may, therefore, define a municipal corporation in its historical and
strict sense to be the incorporation, by the authority of the government, of
the inhabitants of a particular place or district, and authorizing them in
their corporate capacity to exercise subordinate specified powers of
legislation and regulation with respect to their local and internal concerns.
This power of local government is the distinctive purpose and the
distinguishing feature of a municipal corporation proper.” (Dillon,
Municipal Corporations, 5th ed., Vol. I, p. 59.)
It is true that under section 8, Rule 130, stenographers may only charge
as fees P0.30 for each page of transcript of not less than 200 words
before the appeal is taken and P0.15 for each page after the filing of the
appeal, but in this case the National Coconut Corporation has agreed
and in fact has paid P1.00 per page for the services rendered by
the Plaintiffs and has not raised any objection to the amount paid until its
propriety was disputed by the Auditor General. The payment of the fees
in question became therefore contractual and as such is valid even if it
goes beyond the limit prescribed in section 8, Rule 130 of the Rules of
Court.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM,
MILAGROS ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA,
MARTIN AGSALUD, JOSEFINA AGUINALDO, GLORIA ALBANO,
ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE, AURORA
APUSEN, TOMAS ARCANGEL, LOURDES ARJONELLO, MANUEL
AROMIN, DIONISIO ASISTIN, JOSE AURE, NICASIO AZNAR,
EUGENIO AZURIN, CLARITA BACUGAN, PIO BALAGOT, HEREDIO
BALMACEDA, ESTHER BANAAG, JOVENCIO BARBERO, MONICO
BARBADILLO, HERNANDO BARROZO, FILIPINA BARROZO,
REMEDIO BARTOLOME, ANGELINA BASCOS, JOSE BATALLA,
ALMARIO BAUTISTA, EUGENIO BAUTISTA, JR., HERMALO
BAUTISTA, JUANITO BAUTISTA, SEVERINO BARBANO, CAPPIA
BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ,
ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO,
VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN,
LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA CADOTTE,
IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO CALUZA, CALVIN
CAMBA, ALFREDO CAMPOSENO, BAGUILITA CANTO, ALFREDO
CARRERA, PEDRO CASES, CRESCENTE CASIS, ERNESTO
CASTANEDA, HERMINIO CASTILLO, JOSE CASTRO, LEONOR
CASTRO, MADEO CASTRO, MARIA PINZON CASTRO, PABLO
CATURA, RESTITUTO CESPADES, FLORA CHACON, EDMUNDO
CORPUZ, ESTHER CRUZ, CELIA CUARESMA, AQUILINO DACAYO,
DIONISIA DASALLA, SOCORRO DELFIN, ABELARDO DIAZ,
ARTHUR DIAZ, CYNTHIA DIZON, MARCIA DIZON, ISABELO
DOMINGO, HONORATA DOZA, CAROLINA DUAD, JUSTINIANO
EPISTOLA, ROMEO ENCARNACION, PRIMITIVO ESCANO, ELSA
ESPEJO, JUAN ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS,
LORNA FAVIS, DAN FERNANDEZ, JAIME FERNANDEZ, ALFREDO
FERRER, MODESTO FERRER, JR., EUGENIO FLANDEZ,
GUILLERMO FLORENDO, ALFREDO FLORES, DOMINGA FLORES,
ROMEO FLORES, LIGAYA FONTANILLA, MELCHOR GASMEN,
LEILA GASMENA, CONSUELO GAROLAGA, ALFONSO GOROSPE,
CESAR GOROSPE, RICARDO GOROSPE, JR., CARLITO GUZMAN,
ERNESTO DE GUZMAN, THELMA DE GUZMAN, FELIX HERNANDEZ,
SOLIVEN HERNANDO, FRANCISCO HIDALGO, LEONILO INES,
SIXTO JAQUIES, TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO
LAMBINO, ROMAN LANTING, OSCAR LAZO, ROSARIO LAZO,
JOSEFINA DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE,
LAMBERTO LLAMAS, ANTONIO LLANES, ROMULA LOPEZ,
ADRIANO LORENZANA, ANTONIO MACARAEG, ILDEFONSO
MAGAT, CECILIO MAGHANOY, ALFONSO MAGSANOC, AVELINA
MALLARE, AUGUSTO MANALO, DOMINADOR MANASAN, BENITO
MANECLANG, JR., TIRSO MANGUMAY, EVELIA MANZANO,
HONORANTE MARIANO, DOMINGO MEDINA, MARTIN MENDOZA,
PERFECTO MILANA, EMILIO MILLAN, GREGORIO MONEGAS,
CONSOLACION NAVALTA, NOLI OCAMPO, VICENTE CLEGARIO,
ELPIDIO PALMONES, ARACELI PANGALANGAN, ISIDORO
PANLASIGUI, JR., ARTEMIO PARIS, JR., FEDERICO PAYUMO, JR.,
NELIA PAYUMO, BITUEN PAZ, FRANCISCO PENGSON, OSCAR
PERALTA, PROCORRO PERALTA, RAMON PERALTA, MINDA
PICHAY, MAURO PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO
PUNO, REYNALDO RABE, ROLANDO REA, CONSTANTINO REA,
CECILIA RICO, CECILIO RILLORAZA, AURORA ROMAN,
MERCEDES RUBIO, URSULA RUPISAN, OLIVIA SABADO,
BERNARDO SACRAMENTO, LUZ SALVADOR, JOSE SAMSON, JR.,
ROMULA DE LOS SANTOS, ANTONIO SAYSON, JR., FLORANTE
SERIL, MARIO SISON, RUDY SISON, PROCEDIO TABIN, LUCENA
TABISULA, HANNIBAL TAJANO, ENRIQUE TIANGCO, JR.,
JUSTINIANO TOBIAS, NYMIA TOLENTINO, CONSTANTE
TOLENTINO, TEODORO TOREBIO, FEDERICO TRINIDAD,
JOVENCINTO TRINIDAD, LAZARO VALDEZ, LUDRALINA VALDEZ,
MAXIMINA VALDEZ, FRANCISCO VELASCO, JR., ROSITA
VELASCO, SEVERO VANTANILLA, VENANCIO VENTIGAN,
FELICITAS VENUS, NIEVES DE VERA, ELISEO VERSOZA,
SILVESTRE VILA, GLORIA VILLAMOR, ALEJANDRO VELLANUEVA,
DAVID VILLANUEVA, CAROLINA VILLASENOR ORLANDO
VILLASTIQUE, MAJELLA VILORIN, ROSARIO VILORIA, MAY
VIRATA, FEDERICO VIRAY, MELBA YAMBAO, MARIO ZAMORA,
AUTENOR ABUEG, SOTERO ACEDO, HONRADO ALBERTO, FELIPE
ALIDO, VICENTE ANCHUELO, LIBERTAD APEROCHO, MARIANO
BALBAGO, MARIO BALMACEDA, DAISY BICENIO, SYLVIA
BUSTAMANTE, RAYMUNDO GEMERINO, LAZARO CAPURAS,
ROGELIO CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA,
ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN, PABLO
JARETA, MANUEL JOSE, NESTORIA KINTANAR, CLEOPATRIA
LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR MARINAS,
CESAR MAULSON, MANUEL MEDINA, JESUS PLURAD, LAKAMBINI
RAZON, GLORIA IBANEZ, JOSE SANTOS, ELEAZAR SQUI, JOSE
TAMAYO, FELIPE TENORIO, SILVINO UMALI, VICENTE ZARA,
SATURNINO GARCIA, WILLIAM GARCIA, NORMA GARINGARAO,
ROSARIO ANTONIO, RUBEN BAUTISTA, QUIRINO PUESTO, NELIA
M. GOMERI, OSCAR R. LANUZA, AURORA M. LINDAYA, GREGORIO
MOGSINO, JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N.
ROZUL, MAGTANGOL SAMALA, PORFIRIO AGOCOLIS, LEONARDO
MONTE, HERMELINO PATI, ALFREDO PAYOYO, PURIFICACION
ROJAS, ODANO TEANO, RICARDO SANTIAGO, and MARCELO
MANGAHAS, respondents.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M.
Lazaro and Vicente Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents.
FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from
an order of respondent Court of Industrial Relations is one of
constitutional significance. It is concerned with the expanded role of
government necessitated by the increased responsibility to provide for
the general welfare. More specifically, it deals with the question of
whether petitioner, the Philippine Virginia Tobacco Administration,
discharges governmental and not proprietary functions. The landmark
opinion of the then Justice, row Chief Justice, Makalintal in Agricultural
Credit and Cooperative Financing Administration v. Confederation of
Unions in Government Corporations and offices, points the way to the
right answer. 1 It interpreted the then fundamental law as hostile to the
view of a limited or negative state. It is antithetical to the laissez
faire concept. For as noted in an earlier decision, the welfare state
concept "is not alien to the philosophy of [the 1935] Constitution." 2 It is
much more so under the present Charter, which is impressed with an
even more explicit recognition of social and economic rights. 3 There is
manifest, to recall Laski, "a definite increase in the profundity of the social
conscience," resulting in "a state which seeks to realize more fully the
common good of its members." 4 It does not necessarily follow, however,
just because petitioner is engaged in governmental rather than
proprietary functions, that the labor controversy was beyond the
jurisdiction of the now defunct respondent Court. Nor is the objection
raised that petitioner does not come within the coverage of the Eight-
Hour Labor Law persuasive. 5 We cannot then grant the reversal sought.
We affirm.
The facts are undisputed. On December 20, 1966, claimants, now private
respondents, filed with respondent Court a petition wherein they alleged
their employment relationship, the overtime services in excess of the
regular eight hours a day rendered by them, and the failure to pay them
overtime compensation in accordance with Commonwealth Act No. 444.
Their prayer was for the differential between the amount actually paid to
them and the amount allegedly due them. 6 There was an answer filed by
petitioner Philippine Virginia Tobacco Administration denying the
allegations and raising the special defenses of lack of a cause of action
and lack of jurisdiction. 7 The issues were thereafter joined, and the case
set for trial, with both parties presenting their evidence. 8 After the parties
submitted the case for decision, the then Presiding Judge Arsenio T.
Martinez of respondent Court issued an order sustaining the claims of
private respondents for overtime services from December 23, 1963 up to
the date the decision was rendered on March 21, 1970, and directing
petitioner to pay the same, minus what it had already paid. 9 There was a
motion for reconsideration, but respondent Court en banc denied the
same. 10 Hence this petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had been noted,
would predicate its plea for the reversal of the order complained of on the
basic proposition that it is beyond the jurisdiction of respondent Court as
it is exercising governmental functions and that it is exempt from the
operation of Commonwealth Act No. 444. 11While, to repeat, its
submission as to the governmental character of its operation is to be
given credence, it is not a necessary consequence that respondent Court
is devoid of jurisdiction. Nor could the challenged order be set aside on
the additional argument that the Eight-Hour Labor Law is not applicable
to it. So it was, at the outset, made clear.
1. A reference to the enactments creating petitioner corporation suffices
to demonstrate the merit of petitioner's plea that it performs governmental
and not proprietary functions. As originally established by Republic Act
No. 2265, 12 its purposes and objectives were set forth thus: "(a) To
promote the effective merchandising of Virginia tobacco in the domestic
and foreign markets so that those engaged in the industry will be placed
on a basis of economic security; (b) To establish and maintain balanced
production and consumption of Virginia tobacco and its manufactured
products, and such marketing conditions as will insure and stabilize the
price of a level sufficient to cover the cost of production plus reasonable
profit both in the local as well as in the foreign market; (c) To create,
establish, maintain, and operate processing, warehousing and marketing
facilities in suitable centers and supervise the selling and buying of
Virginia tobacco so that the farmers will enjoy reasonable prices that
secure a fair return of their investments; (d) To prescribe rules and
regulations governing the grading, classifying, and inspecting of Virginia
tobacco; and (e) To improve the living and economic conditions of the
people engaged in the tobacco industry." 13 The amendatory statute,
Republic Act No. 4155, 14renders even more evident its nature as a
governmental agency. Its first section on the declaration of policy reads:
"It is declared to be the national policy, with respect to the local Virginia
tobacco industry, to encourage the production of local Virginia tobacco of
the qualities needed and in quantities marketable in both domestic and
foreign markets, to establish this industry on an efficient and economic
basis, and, to create a climate conducive to local cigarette manufacture
of the qualities desired by the consuming public, blending imported and
native Virginia leaf tobacco to improve the quality of locally manufactured
cigarettes." 15 The objectives are set forth thus: "To attain this national
policy the following objectives are hereby adopted: 1. Financing; 2.
Marketing; 3. The disposal of stocks of the Agricultural Credit
Administration (ACA) and the Philippine Virginia Tobacco Administration
(PVTA) at the best obtainable prices and conditions in order that a
reinvigorated Virginia tobacco industry may be established on a sound
basis; and 4. Improving the quality of locally manufactured cigarettes
through blending of imported and native Virginia leaf tobacco; such
importation with corresponding exportation at a ratio of one kilo of
imported to four kilos of exported Virginia tobacco, purchased by the
importer-exporter from the Philippine Virginia Tobacco Administration." 16
It is thus readily apparent from a cursory perusal of such statutory
provisions why petitioner can rightfully invoke the doctrine announced in
the leading Agricultural Credit and Cooperative Financing Administration
decision 17and why the objection of private respondents with its overtones
of the distinction between constituent and ministrant functions of
governments as set forth in Bacani v. National Coconut Corporation 18 if
futile. The irrelevance of such a distinction considering the needs of the
times was clearly pointed out by the present Chief Justice, who took note,
speaking of the reconstituted Agricultural Credit Administration, that
functions of that sort "may not be strictly what President Wilson described
as "constituent" (as distinguished from "ministrant"),such as those
relating to the maintenance of peace and the prevention of crime, those
regulating property and property rights, those relating to the
administration of justice and the determination of political duties of
citizens, and those relating to national defense and foreign relations.
Under this traditional classification, such constituent functions are
exercised by the State as attributes of sovereignty, and not merely to
promote the welfare, progress and prosperity of the people — these latter
functions being ministrant, the exercise of which is optional on the part of
the government." 19 Nonetheless, as he explained so persuasively: "The
growing complexities of modern society, however, have rendered this
traditional classification of the functions of government quite unrealistic,
not to say obsolete. The areas which used to be left to private enterprise
and initiative and which the government was called upon to enter
optionally, and only "because it was better equipped to administer for the
public welfare than is any private individual or group of individuals",
continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if
it is to meet the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was
envisioned, indeed adopted as a national policy, by the Constitution itself
in its declaration of principle concerning the promotion of social
justice." 20 Thus was laid to rest the doctrine in Bacani v. National
Coconut Corporation,21 based on the Wilsonian classification of the tasks
incumbent on government into constituent and ministrant in accordance
with the laissez faire principle. That concept, then dominant in
economics, was carried into the governmental sphere, as noted in a
textbook on political science, 22 the first edition of which was published in
1898, its author being the then Professor, later American President,
Woodrow Wilson. He took pains to emphasize that what was categorized
by him as constituent functions had its basis in a recognition of what was
demanded by the "strictest [concept of] laissez faire, [as they] are indeed
the very bonds of society." 23 The other functions he would minimize as
ministrant or optional.
It is a matter of law that in the Philippines, the laissez faire principle
hardly commanded the authoritative position which at one time it held in
the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial
Board 24could affirm: "The doctrines of laissez faire and of unrestricted
freedom of the individual, as axioms of economic and political theory, are
of the past. The modern period has shown a widespread belief in the
amplest possible demonstration of government activity." 25 The 1935
Constitution, as was indicated earlier, continued that approach. As noted
in Edu v. Ericta: 26 "What is more, to erase any doubts, the Constitutional
Convention saw to it that the concept of laissez-faire was rejected. It
entrusted to our government the responsibility of coping with social and
economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote
the general welfare through state action." 27 Nor did the opinion in Edu
stop there: "To repeat, our Constitution which took effect in 1935 erased
whatever doubts there might be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading members of the
Constitutional Convention, Manuel A. Roxas, later the first President of
the Republic, made it clear when he disposed of the objection of
Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the
sphere of governmental functions" and the "almost unlimited power to
interfere in the affairs of industry and agriculture as well as to compete
with existing business" as "reflections of the fascination exerted by [the
then] current tendencies' in other jurisdictions. He spoke thus: "My
answer is that this constitution has a definite and well defined philosophy,
not only political but social and economic.... If in this Constitution the
gentlemen will find declarations of economic policy they are there
because they are necessary to safeguard the interest and welfare of the
Filipino people because we believe that the days have come when in
self-defense, a nation may provide in its constitution those safeguards,
the patrimony, the freedom to grow, the freedom to develop national
aspirations and national interests, not to be hampered by the artificial
boundaries which a constitutional provision automatically imposes." 28
It would be then to reject what was so emphatically stressed in the
Agricultural Credit Administration decision about which the observation
was earlier made that it reflected the philosophy of the 1935 Constitution
and is even more in consonance with the expanded role of government
accorded recognition in the present Charter if the plea of petitioner that it
discharges governmental function were not heeded. That path this Court
is not prepared to take. That would be to go backward, to retreat rather
than to advance. Nothing can thus be clearer than that there is no
constitutional obstacle to a government pursuing lines of endeavor,
formerly reserved for private enterprise. This is one way, in the language
of Laski, by which through such activities, "the harsh contract which
[does] obtain between the levels of the rich and the poor" may be
minimized. 29 It is a response to a trend noted by Justice Laurel
in Calalang v. Williams 30 for the humanization of laws and the promotion
of the interest of all component elements of society so that man's innate
aspirations, in what was so felicitously termed by the First Lady as "a
compassionate society" be attained. 31
2. The success that attended the efforts of petitioner to be adjudged as
performing governmental rather than proprietary functions cannot militate
against respondent Court assuming jurisdiction over this labor dispute.
So it was mentioned earlier. As far back as Tabora v. Montelibano, 32 this
Court, speaking through Justice Padilla, declared: The NARIC was
established by the Government to protect the people against excessive
or unreasonable rise in the price of cereals by unscrupulous dealers.
With that main objective there is no reason why its function should not be
deemed governmental. The Government owes its very existence to that
aim and purpose — to protect the people." 33 In a subsequent case, Naric
Worker's Union v. Hon. Alvendia, 34 decided four years later, this Court,
relying on Philippine Association of Free Labor Unions v. Tan, 35 which
specified the cases within the exclusive jurisdiction of the Court of
Industrial Relations, included among which is one that involves hours of
employment under the Eight-Hour Labor Law, ruled that it is precisely
respondent Court and not ordinary courts that should pass upon that
particular labor controversy. For Justice J. B. L. Reyes, the ponente, the
fact that there were judicial as well as administrative and executive
pronouncements to the effect that the Naric was performing
governmental functions did not suffice to confer competence on the then
respondent Judge to issue a preliminary injunction and to entertain a
complaint for damages, which as pointed out by the labor union, was
connected with an unfair labor practice. This is emphasized by the
dispositive portion of the decision: "Wherefore, the restraining orders
complained of, dated May 19, 1958 and May 27, 1958, are set aside, and
the complaint is ordered dismissed, without prejudice to the National Rice
and Corn Corporation's seeking whatever remedy it is entitled to in the
Court of Industrial Relations." 36 Then, too, in a case involving petitioner
itself, Philippine Virginia Tobacco Administration, 37 where the point in
dispute was whether it was respondent Court or a court of first instance
that is possessed of competence in a declaratory relief petition for the
interpretation of a collective bargaining agreement, one that could readily
be thought of as pertaining to the judiciary, the answer was that "unless
the law speaks clearly and unequivocally, the choice should fall on the
Court of Industrial Relations." 38 Reference to a number of decisions
which recognized in the then respondent Court the jurisdiction to
determine labor controversies by government-owned or controlled
corporations lends to support to such an approach. 39 Nor could it be
explained only on the assumption that proprietary rather than
governmental functions did call for such a conclusion. It is to be admitted
that such a view was not previously bereft of plausibility. With the
aforecited Agricultural Credit and Cooperative Financing Administration
decision rendering obsolete the Bacani doctrine, it has, to use a
Wilsonian phrase, now lapsed into "innocuous
desuetude." 40 Respondent Court clearly was vested with jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor Law 41 does not
apply to it hardly deserves any extended consideration. There is an air of
casualness in the way such an argument was advanced in its petition for
review as well as in its brief. In both pleadings, it devoted less than a full
page to its discussion. There is much to be said for brevity, but not in this
case. Such a terse and summary treatment appears to be a reflection
more of the inherent weakness of the plea rather than the possession of
an advocate's enviable talent for concision. It did cite Section 2 of the Act,
but its very language leaves no doubt that "it shall apply to all persons
employed in any industry or occupation, whether public or private ...
." 42 Nor are private respondents included among the employees who are
thereby barred from enjoying the statutory benefits. It cited Marcelo v.
Philippine National Red Cross 43 and Boy Scouts of the Philippines v.
Araos. 44 Certainly, the activities to which the two above public
corporations devote themselves can easily be distinguished from that
engaged in by petitioner. A reference to the pertinent sections of both
Republic Acts 2265 and 2155 on which it relies to obtain a ruling as to its
governmental character should render clear the differentiation that exists.
If as a result of the appealed order, financial burden would have to be
borne by petitioner, it has only itself to blame. It need not have required
private respondents to render overtime service. It can hardly be surmised
that one of its chief problems is paucity of personnel. That would indeed
be a cause for astonishment. It would appear, therefore, that such an
objection based on this ground certainly cannot suffice for a reversal. To
repeat, respondent Court must be sustained.

WHEREFORE, the appealed Order of March 21, 1970 and the

Resolution of respondent Court en banc of May 8, 1970 denying a motion
for reconsideration are hereby affirmed. The last sentence of the Order of
March 21, 1970 reads as follows: "To find how much each of them
[private respondents] is entitled under this judgment, the Chief of the
Examining Division, or any of his authorized representative, is hereby
directed to make a reexamination of records, papers and documents in
the possession of respondent PVTA pertinent and proper under the
premises and to submit his report of his findings to the Court for further
disposition thereof." Accordingly, as provided by the New Labor Code,
this case is referred to the National Labor Relations Commission for
further proceedings conformably to law. No costs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9959 December 13, 1916
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by
the Treasurer of the Philippine Islands,plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE
MANILA, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.
Attorney-General Avanceña for appellee.
TRENT, J.:
About $400,000, were subscribed and paid into the treasury of the
Philippine Islands by the inhabitants of the Spanish Dominions of the
relief of those damaged by the earthquake which took place in the
Philippine Islands on June 3, 1863. Subsequent thereto and on October 6
of that year, a central relief board was appointed, by authority of the King
of Spain, to distribute the moneys thus voluntarily contributed. After a
thorough investigation and consideration, the relief board allotted
$365,703.50 to the various sufferers named in its resolution, dated
September 22, 1866, and, by order of the Governor-General of the
Philippine Islands, a list of these allotments, together with the names of
those entitled thereto, was published in the Official Gazette of Manila
dated April 7, 1870. There was later distributed, inaccordance with the
above-mentioned allotments, the sum of $30,299.65, leaving a balance of
S365,403.85 for distribution. Upon the petition of the governing body of
the Monte de Piedad, dated February 1, 1833, the Philippine
Government, by order dated the 1st of that month, directed its treasurer
to turn over to the Monte de Piedad the sum of $80,000 of the relief fund
in installments of $20,000 each. These amounts were received on the
following dates: February 15, March 12, April 14, and June 2, 1883, and
are still in the possession of the Monte de Piedad. On account of various
petitions of the persons, and heirs of others to whom the above-
mentioned allotments were made by the central relief board for the
payment of those amounts, the Philippine Islands to bring suit against
the Monte de Piedad a recover, "through the Attorney-General and in
representation of the Government of the Philippine Islands," the $80.000,
together with interest, for the benefit of those persons or their heirs
appearing in the list of names published in the Official Gazette instituted
on May 3, 1912, by the Government of the Philippine Islands,
represented by the Insular Treasurer, and after due trial, judgment was
entered in favor of the plaintiff for the sum of $80,000 gold or its
equivalent in Philippine currency, together with legal interest from
February 28, 1912, and the costs of the cause. The defendant appealed
and makes the following assignment of errors:
1. The court erred in not finding that the eighty thousand dollars
($80,000), give to the Monte de Piedad y Caja de Ahorros, were
so given as a donation subject to one condition, to wit: the return
of such sum of money to the Spanish Government of these
Islands, within eight days following the day when claimed, in case
the Supreme Government of Spain should not approve the action
taken by the former government.
2. The court erred in not having decreed that this donation had
been cleared; said eighty thousand dollars ($80,000) being at
present the exclusive property of the appellant the Monte de
Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the
Philippine Islands has subrogated the Spanish Government in its
rights, as regards an important sum of money resulting from a
national subscription opened by reason of the earthquake of June
3, 1863, in these Island.
4. That the court erred in not declaring that Act Numbered 2109,
passed by the Philippine Legislature on January 30, 1912, is
unconstitutional.
5. That the court erred in holding in its decision that there is no
title for the prescription of this suit brought by the Insular
Government against the Monte de Piedad y Caja de Ahorros for
the reimbursement of the eighty thousand dollars ($80,000) given
to it by the late Spanish Government of these Islands.
6. That the court erred in sentencing the Monte de Piedad y Caja
de Ahorros to reimburse the Philippine Government in the sum of
 eighty thousand dollars ($80,000) gold coin, or the equivalent
thereof in the present legal tender currency in circulation, with
legal interest thereon from February 28th, 1912, and the costs of
this suit.
In the royal order of June 29, 1879, the Governor-General of the
Philippine Islands was directed to inform the home Government in what
manner the indemnity might be paid to which, by virtue of the resolutions
of the relief board, the persons who suffered damage by the earthquake
might be entitled, in order to perform the sacred obligation which the
Government of Spain had assumed toward the donors.
The next pertinent document in order is the defendant's petition, dated
February 1, 1883, addressed to the Governor-General of the Philippine
Islands, which reads:
Board of Directors of the Monte de Piedad of Manila Presidencia.
Excellency: The Board of Directors of the Monte de Piedad y Caja
de Ahorros of Manila informs your Excellency, First: That the
funds which it has up to the present been able to dispose of have
been exhausted in loans on jewelry, and there only remains the
sum of one thousand and odd pesos, which will be expended
between to-day and day after tomorrow. Second: That, to
maintain the credit of the establishment, which would be greatly
injured were its operations suspended, it is necessary to procure
money. Third: That your Excellency has proposed to His
Majesty's Government to apply to the funds of theMonte de
Piedad a part of the funds held in the treasury derived form the
national subscription for the relief of the distress caused by the
earthquake of 1863. Fourth: That in the public treasury there is
held at the disposal of the central earthquake relief board over
$1090,000 which was deposited in the said treasury by order of
your general Government, it having been transferred thereto from
the Spanish-Filipino Bank where it had been held. fifth: That in
the straightened circumstances of the moment, your Excellency
can, to avert impending disaster to the Monte de Piedad, order
that, out of that sum of one hundred thousand pesos held in the
Treasury at the disposal of the central relief board, there be
transferred to the Monte de Piedadthe sum of $80,000, there to
be held under the same conditions as at present in the Treasury,
to wit, at the disposal of the Relief Board. Sixth: That should this
transfer not be approved for any reason, either because of the
failure of His Majesty's Government to approve the proposal
made by your Excellency relative to the application to the needs
of the Monte de Piedad of a pat of the subscription intended to
believe the distress caused by the earthquake of 1863, or for any
other reason, the board of directors of the Monte de
Piedad obligates itself to return any sums which it may have
received on account of the eighty thousand pesos, or the whole
thereof, should it have received the same, by securing a loan
from whichever bank or banks may lend it the money at the
cheapest rate upon the security of pawned jewelry. — This is an
urgent measure to save the Monte de Piedad in the present crisis
and the board of directors trusts to secure your Excellency's
entire cooperation and that of the other officials who have take
part in the transaction.
The Governor-General's resolution on the foregoing petition is as follows:
GENERAL GOVERNMENT OF THE PHILIPPINES.
MANILA, February 1, 1883.
In view of the foregoing petition addressed to me by the board of
directors of the Monte de Piedad of this city, in which it is stated
that the funds which the said institution counted upon are nearly
all invested in loans on jewelry and that the small account
remaining will scarcely suffice to cover the transactions of the
next two days, for which reason it entreats the general
Government that, in pursuance of its telegraphic advice to H. M.
Government, the latter direct that there be turned over to
said Monte de Piedad $80,000 out of the funds in the public
treasury obtained from the national subscription for the relief of
the distress caused by the earthquake of 1863, said board
obligating itself to return this sum should H. M. Government, for
any reason, not approve the said proposal, and for this purpose it
will procure funds by means of loans raised on pawned jewelry; it
stated further that if the aid so solicited is not furnished, it will be
compelled to suspend operations, which would seriously injure
the credit of so beneficient an institution; and in view of the report
upon the matter made by the Intendencia General de Hacienda;
and considering the fact that the public treasury has on hand a
much greater sum from the source mentioned than that solicited;
and considering that this general Government has submitted for
the determination of H. M. Government that the balance which,
after strictly applying the proceeds obtained from the subscription
referred to, may remain as a surplus should be delivered to
the Monte de Piedad, either as a donation, or as a loan upon the
security of the credit of the institution, believing that in so doing
the wishes of the donors would be faithfully interpreted inasmuch
as those wishes were no other than to relieve distress, an act of
charity which is exercised in the highest degree by the Monte de
Piedad, for it liberates needy person from the pernicious effects of
usury; and
Considering that the lofty purposes that brought about the
creation of the pious institution referred to would be frustrated,
and that the great and laudable work of its establishment, and
that the great and laudable and valuable if the aid it urgently
seeks is not granted, since the suspension of its operations would
seriously and regrettably damage the ever-growing credit of
the Monte de Piedad; and
Considering that if such a thing would at any time cause deep
distress in the public mind, it might be said that at the present
juncture it would assume the nature of a disturbance of public
order because of the extreme poverty of the poorer classes
resulting from the late calamities, and because it is the only
institution which can mitigate the effects of such poverty; and
Considering that no reasonable objection can be made to
granting the request herein contained, for the funds in question
are sufficiently secured in the unlikely event that H> M.
Government does not approve the recommendation mentioned,
this general Government, in the exercise of the extraordinary
powers conferred upon it and in conformity with the report of the
Intendencia de Hacienda, resolves as follows:
First. Authority is hereby given to deliver to the Monte de Piedad,
out of the sum held in the public treasury of these Islands
obtained from the national subscription opened by reason of the
earthquakes of 1863, amounts up to the sum $80,000, as its
needs may require, in installments of $20,000.
Second. The board of directors of the Monte de Piedad is
solemnly bound to return, within eight days after demand, the
sums it may have so received, if H. M. Government does not
approve this resolution.
Third. The Intendencia General de Hacienda shall forthwith, and
in preference to all other work, proceed to prepare the necessary
papers so that with the least possible delay the payment referred
to may be made and the danger that menaces the Monte de
Piedad of having to suspend its operations may be averted.
H. M. Government shall be advised hereof.lawphi1.net
(Signed) P. DE RIVERA.
By the royal order of December 3, 1892, the Governor-General of the
Philippine Islands was ordered to "inform this ministerio what is the total
sum available at the present time, taking into consideration the sums
delivered to the Monte de Piedad pursuant to the decree issued by your
general Government on February 1, 1883," and after the rights of the
claimants, whose names were published in the Official Gazette of Manila
on April 7, 1870, and their heirs had been established, as therein
provided, as such persons "have an unquestionable right to be paid the
donations assigned to them therein, your general Government shall
convoke them all within a reasonable period and shall pay their shares to
such as shall identify themselves, without regard to their financial status,"
and finally "that when all the proceedings and operations herein
mentioned have been concluded and the Government can consider itself
free from all kinds of claims on the part of those interested in the
distribution of the funds deposited in the vaults of the Treasury, such
action may be taken as the circumstances shall require, after first
consulting the relief board and your general Government and taking
account of what sums have been delivered to the Monte de Piedad and
those that were expended in 1888 to relieve public calamities," and "in
order that all the points in connection with the proceedings had as a
result of the earthquake be clearly understood, it is indispensable that the
offices hereinbefore mentioned comply with the provisions contained in
paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of
this Finance order by the Governor-General, the Department of Finance
was called upon for a report in reference to the $80,000 turned over to
the defendant, and that Department's report to the Governor-General
dated June 28, 1893, reads:
Intendencia General de Hacienda de Filipinas (General Treasury
of the Philippines) — Excellency. — By Royal Order No. 1044 of
December 3, last, it is provided that the persons who sustained
losses by the earthquakes that occurred in your capital in the year
1863 shall be paid the amounts allotted to them out of the sums
sent from Spain for this purpose, with observance of the rules
specified in the said royal order, one of them being that before
making the payment to the interested parties the assets shall be
reduced to money. These assets, during the long period of time
that has elapsed since they were turned over to the Treasury of
the Philippine Islands, were used to cover the general needs of
the appropriation, a part besides being invested in the relief of
charitable institutions and another part to meet pressing needs
occasioned by public calamities. On January 30, last, your
Excellency was please to order the fulfillment of that sovereign
mandate and referred the same to this Intendencia for its
information and the purposes desired (that is, for compliance with
its directions and, as aforesaid, one of these being the liquidation,
recovery, and deposit with the Treasury of the sums paid out of
that fund and which were expended in a different way from that
intended by the donors) and this Intendencia believed the
moment had arrived to claim from the board of directors of
the Monte de Piedad y Caja de Ahorros the sum of 80,000 pesos
which, by decree of your general Government of the date of
February 1, 1883, was loaned to it out of the said funds, the
(Monte de Piedad) obligating itself to return the same within the
period of eight days if H. M. Government did not approve the
delivery. On this Intendencia's demanding from the Monte de
Piedad the eighty thousand pesos, thus complying with the
provisions of the Royal Order, it was to be supposed that no
objection to its return would be made by the Monte de Piedad for,
when it received the loan, it formally engaged itself to return it;
and, besides, it was indisputable that the moment to do so had
arrived, inasmuch as H. M. Government, in ordering that the
assets of the earthquake relief fund should he collected, makes
express mention of the 80,000 pesos loaned to the Monte de
Piedad, without doubt considering as sufficient the period of ten
years during which it has been using this large sum which lawfully
belongs to their persons. This Intendencia also supposed that
the Monte de Piedad no longer needed the amount of that loan,
inasmuch as, far from investing it in beneficient transactions, it
had turned the whole amount into the voluntary deposit funds
bearing 5 per cent interests, the result of this operation being that
the debtor loaned to the creditor on interest what the former had
gratuitously received. But the Monte de Piedad, instead of
fulfilling the promise it made on receiving the sum, after repeated
demands refused to return the money on the ground that only
your Excellency, and not the Intendencia (Treasury), is entitled to
order the reimbursement, taking no account of the fact that this
Intendencia was acting in the discharge of a sovereign command,
the fulfillment of which your Excellency was pleased to order; and
on the further ground that the sum of 80,000 pesos which it
received from the fund intended for the earthquake victims was
not received as a loan, but as a donation, this in the opinion of
this Intendencia, erroneously interpreting both the last royal order
which directed the apportionment of the amount of the
subscription raised in the year 1863 and the superior decree
which granted the loan, inasmuch as in this letter no donation is
made to the Monte de Piedad of the 80,000 pesos, but simply a
loan; besides, no donation whatever could be made of funds
derived from a private subscription raised for a specific purpose,
which funds are already distributed and the names of the
beneficiaries have been published in the Gaceta, there being
lacking only the mere material act of the delivery, which has been
unduly delayed. In view of the unexpected reply made by
the Monte de Piedad, and believing it useless to insist further in
the matter of the claim for the aforementioned loan, or to argue in
support thereof, this Intendencia believes the intervention of your
Excellency necessary in this matter, if the royal Order No. 1044 of
December 3, last, is to be complied with, and for this purpose I
beg your Excellency kindly to order the Monte de Piedad to
reimburse within the period of eight days the 80,000 which it
owes, and that you give this Intendencia power to carry out the
provisions of the said royal order. I must call to the attention of
your Excellency that the said pious establishment, during the last
few days and after demand was made upon it, has endorsed to
the Spanish-Filipino Bank nearly the whole of the sum which it
had on deposit in the general deposit funds.
The record in the case under consideration fails to disclose any further
definite action taken by either the Philippine Government or the Spanish
Government in regard to the $80,000 turned over to the Monte de
Piedad.
In the defendant's general ledger the following entries appear: "Public
Treasury: February 15, 1883, $20,000; March 12, 1883, $20,000; April
14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry
for this total is as follows: "To the public Treasury derived from the
subscription for the earthquake of 1863, $80,000 received from general
Treasury as a returnable loan, and without interest." The account was
carried in this manner until January 1, 1899, when it was closed by
transferring the amount to an account called "Sagrada Mitra," which latter
account was a loan of $15,000 made to the defendant by the Archbishop
of Manila, without interest, thereby placing the "Sagrada Mitra" account at
$95,000 instead of $15,000. The above-mentioned journal entry for
January 1, 1899, reads: "Sagrada Mitra and subscription, balance of
these two account which on this date are united in accordance with an
order of the Exmo. Sr. Presidente of the Council transmitted verbally to
the Presidente Gerente of these institutions, $95,000."
On March 16, 1902, the Philippine government called upon the defendant
for information concerning the status of the $80,000 and received the
following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of
the Philippine Islands.
SIR: In reply to your courteous letter of the 16th inst., in which
you request information from this office as to when and for what
purpose the Spanish Government delivered to the Monte de
Piedad eighty thousand pesos obtained from the subscription
opened in connection with the earthquake of 1863, as well as any
other information that might be useful for the report which your
office is called upon to furnish, I must state to your department
that the books kept in these Pious Institutions, and which have
been consulted for the purpose, show that on the 15th of
February, 1883, they received as a reimbursable loan and without
interest, twenty thousand pesos, which they deposited with their
own funds. On the same account and on each of the dates of
March 12, April 14 and June 2 of the said year, 1883, they also
received and turned into their funds a like sum of twenty thousand
pesos, making a total of eighty thousand pesos. — (Signed)
Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that found in
the letter book No. 2 of those Pious Institutions.
Manila, November 19, 1913
(Sgd.) EMILIO LAZCANOTEGUI,
Secretary
(Sgd.) O. K. EMILIO MORETA,
Managing Director.
The foregoing documentary evidence shows the nature of the
transactions which took place between the Government of Spain and the
Philippine Government on the one side and the Monte de Piedad on the
other, concerning the $80,000. The Monte de Piedad, after setting forth in
its petition to the Governor-General its financial condition and its absolute
necessity for more working capital, asked that out of the sum of $100,000
held in the Treasury of the Philippine Islands, at the disposal of the
central relief board, there be transferred to it the sum of $80,000 to be
held under the same conditions, to wit, "at the disposal of the relief
board." The Monte de Piedad agreed that if the transfer of these funds
should not be approved by the Government of Spain, the same would be
returned forthwith. It did not ask that the $80,000 be given to it as a
donation. The Governor-General, after reciting the substance of the
petition, stated that "this general Government has submitted for the
determination of H. M. Government that the balance which, after strictly
applying the proceeds obtained from the subscription referred to, may
remain as a surplus, should be delivered to the Monte de Piedad, either
as a donation, or as a loan upon the security of the credit of the
institution," and "considering that no reasonable objection can be made to
granting the request herein contained," directed the transfer of the
$80,000 to be made with the understanding that "the Board of Directors
of the Monte de Piedad is solemnly bound to return, within eight days
after demand, the sums it may have so received, if H. M. Government
does not approve this resolution." It will be noted that the first and only
time the word "donation" was used in connection with the $80,000
appears in this resolution of the Governor-General. It may be inferred
from the royal orders that the Madrid Government did tacitly approve of
the transfer of the $80,000 to the Monte de Piedad as a loan without
interest, but that Government certainly did not approve such transfer as a
donation for the reason that the Governor-General was directed by the
royal order of December 3, 1892, to inform the Madrid Government of the
total available sum of the earthquake fund, "taking into consideration the
sums delivered to the Monte de Piedadpursuant to the decree issued by
your general Government on February 1, 1883." This language, nothing
else appearing, might admit of the interpretation that the Madrid
Government did not intend that the Governor-General of the Philippine
Islands should include the $80,000 in the total available sum, but when
considered in connection with the report of the Department of Finance
there can be no doubt that it was so intended. That report refers
expressly to the royal order of December 3d, and sets forth in detail the
action taken in order to secure the return of the $80,000. The Department
of Finance, acting under the orders of the Governor-General, understood
that the $80,000 was transferred to the Monte de Piedad well knew that it
received this sum as a loan interest." The amount was thus carried in its
books until January, 1899, when it was transferred to the account of the
"Sagrada Mitra" and was thereafter known as the "Sagrada Mitra and
subscription account." Furthermore, the Monte de Piedad recognized and
considered as late as March 31, 1902, that it received the $80,000 "as a
returnable loan, and without interest." Therefore, there cannot be the
slightest doubt the fact that the Monte de Piedad received the $80,000 as
a mere loan or deposit and not as a donation. Consequently, the first
alleged error is entirely without foundation.
Counsel for the defendant, in support of their third assignment of error,
say in their principal brief that:
The Spanish nation was professedly Roman Catholic and its King
enjoyed the distinction of being deputy ex officio of the Holy See
and Apostolic Vicar-General of the Indies, and as such it was his
duty to protect all pious works and charitable institutions in his
kingdoms, especially those of the Indies; among the latter was
the Monte de Piedad of the Philippines, of which said King and
his deputy the Governor-General of the Philippines, as royal vice-
patron, were, in a special and peculiar manner, the protectors; the
latter, as a result of the cession of the Philippine Islands, Implicitly
renounced this high office and tacitly returned it to the Holy See,
now represented by the Archbishop of Manila; the national
subscription in question was a kind of foundation or pious work,
for a charitable purpose in these Islands; and the entire
subscription not being needed for its original purpose, the royal
vice-patron, with the consent of the King, gave the surplus thereof
to an analogous purpose; the fulfillment of all these things
involved, in the majority, if not in all cases, faithful compliance
with the duty imposed upon him by the Holy See, when it
conferred upon him the royal patronage of the Indies, a thing that
touched him very closely in his conscience and religion; the
cessionary Government though Christian, was not Roman
Catholic and prided itself on its policy of non-interference in
religious matters, and inveterately maintained a complete
separation between the ecclesiastical and civil powers.
In view of these circumstances it must be quite clear that, even
without the express provisions of the Treaty of Paris, which
apparently expressly exclude such an idea, it did not befit the
honor of either of the contracting parties to subrogate to the
American Government in lieu of the Spanish Government
anything respecting the disposition of the funds delivered by the
latter to the Monte de Piedad. The same reasons that induced the
Spanish Government to take over such things would result in
great inconvenience to the American Government in attempting to
do so. The question was such a delicate one, for the reason that
it affected the conscience, deeply religious, of the King of Spain,
that it cannot be believed that it was ever his intention to confide
the exercise thereof to a Government like the American. (U.
S. vs. Arredondo, 6 Pet. [U. S.], 711.)
It is thus seen that the American Government did not subrogate
the Spanish Government or rather, the King of Spain, in this
regard; and as the condition annexed to the donation was lawful
and possible of fulfillment at the time the contract was made, but
became impossible of fulfillment by the cession made by the
Spanish Government in these Islands, compliance therewith is
excused and the contract has been cleared thereof.
The contention of counsel, as thus stated, in untenable for two reason,
(1) because such contention is based upon the erroneous theory that the
sum in question was a donation to the Monte de Piedad and not a loan,
and (2) because the charity founded by the donations for the earthquake
sufferers is not and never was intended to be an ecclesiastical pious
work. The first proposition has already been decided adversely to the
defendant's contention. As to the second, the record shows clearly that
the fund was given by the donors for a specific and definite purpose —
the relief of the earthquake sufferers — and for no other purpose. The
money was turned over to the Spanish Government to be devoted to that
purpose. The Spanish Government remitted the money to the Philippine
Government to be distributed among the suffers. All officials, including
the King of Spain and the Governor-General of the Philippine Islands,
who took part in the disposal of the fund, acted in their purely civil, official
capacity, and the fact that they might have belonged to a certain church
had nothing to do with their acts in this matter. The church, as such, had
nothing to do with the fund in any way whatever until the $80,000
reached the coffers of the Monte de Piedad (an institution under the
control of the church) as a loan or deposit. If the charity in question had
been founded as an ecclesiastical pious work, the King of Spain and the
Governor-General, in their capacities as vicar-general of the Indies and
as royal vice-patron, respectively, would have disposed of the fund as
such and not in their civil capacities, and such functions could not have
been transferred to the present Philippine Government, because the right
to so act would have arisen out of the special agreement between the
Government of Spain and the Holy See, based on the union of the church
and state which was completely separated with the change of
sovereignty.
And in their supplemental brief counsel say:
 By the conceded facts the money in question is part of
a charitable subscription. The donors were persons in Spain, the
trustee was the Spanish Government, the donees, the cestuis
que trustent, were certain persons in the Philippine Islands. The
whole matter is one of trusteeship. This is undisputed and
indisputable. It follows that the Spanish Government at no time
was the owner of the fund. Not being the owner of the fund
it could not transfer the ownership. Whether or not it could
transfer its trusteeship it certainly never has expressly done so
and the general terms of property transfer in the Treaty of Paris
are wholly insufficient for such a purpose even could Spain have
transferred its trusteeship without the consent of the donors and
even could the United States, as a Government, have accepted
such a trust under any power granted to it by the thirteen original
States in the Constitution, which is more than doubtful. It follows
further that this Government is not a proper party to the action.
The only persons who could claim to be damaged by this
payment to the Monte, if it was unlawful, are the donors or
the cestuis que trustent, and this Government is neither.
If "the whole matter is one of trusteeship," and it being true that the
Spanish Government could not, as counsel say, transfer the ownership of
the fund to the Monte de Piedad, the question arises, who may sue to
recover this loan? It needs no argument to show that the Spanish or
Philippine Government, as trustee, could maintain an action for this
purpose had there been no change of sovereignty and if the right of
action has not prescribed. But those governments were something more
than mere common law trustees of the fund. In order to determine their
exact status with reference to this fund, it is necessary to examine the law
in force at the time there transactions took place, which are the law of
June 20, 1894, the royal decree of April 27. 1875, and the instructions
promulgated on the latter date. These legal provisions were applicable to
the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)
The funds collected as a result of the national subscription opened in
Spain by royal order of the Spanish Government and which were remitted
to the Philippine Government to be distributed among the earthquake
sufferers by the Central Relief Board constituted, under article 1 of the
law of June 20, 1894, and article 2 of the instructions of April 27, 1875, a
special charity of a temporary nature as distinguished from a permanent
public charitable institution. As the Spanish Government initiated the
creation of the fund and as the donors turned their contributions over to
that Government, it became the duty of the latter, under article 7 of the
instructions, to exercise supervision and control over the moneys thus
collected to the end that the will of the donors should be carried out. The
relief board had no power whatever to dispose of the funds confided to its
charge for other purposes than to distribute them among the sufferers,
because paragraph 3 of article 11 of the instructions conferred the power
upon the secretary of the interior of Spain, and no other, to dispose of the
surplus funds, should there be any, by assigning them to some other
charitable purpose or institution. The secretary could not dispose of any
of the funds in this manner so long as they were necessary for the
specific purpose for which they were contributed. The secretary had the
power, under the law above mentioned to appoint and totally or partially
change the personnel of the relief board and to authorize the board to
defend the rights of the charity in the courts. The authority of the board
consisted only in carrying out the will of the donors as directed by the
Government whose duty it was to watch over the acts of the board and to
see that the funds were applied to the purposes for which they were
contributed .The secretary of the interior, as the representative of His
Majesty's Government, exercised these powers and duties through the
Governor-General of the Philippine Islands. The Governments of Spain
and of the Philippine Islands in complying with their duties conferred
upon them by law, acted in their governmental capacities in attempting to
carry out the intention of the contributors. It will this be seen that those
governments were something more, as we have said, than mere trustees
of the fund.
It is further contended that the obligation on the part of the Monte de
Piedad to return the $80,000 to the Government, even considering it a
loan, was wiped out on the change of sovereignty, or inn other words, the
present Philippine Government cannot maintain this action for that
reason. This contention, if true, "must result from settled principles of rigid
law," as it cannot rest upon any title to the fund in the Monte de
Piedad acquired prior to such change. While the obligation to return the
$80,000 to the Spanish Government was still pending, war between the
United States and Spain ensued. Under the Treaty of Paris of December
10, 1898, the Archipelago, known as the Philippine Islands, was ceded to
the United States, the latter agreeing to pay Spain the sum of
$20,000,000. Under the first paragraph of the eighth article, Spain
relinquished to the United States "all buildings, wharves, barracks, forts,
structures, public highways, and other immovable property which, in
conformity with law, belonged to the public domain, and as such
belonged to the crown of Spain." As the $80,000 were not included
therein, it is said that the right to recover this amount did not, therefore,
pass to the present sovereign. This, in our opinion, does not follow as a
necessary consequence, as the right to recover does not rest upon the
proposition that the $80,000 must be "other immovable property"
mentioned in article 8 of the treaty, but upon contractual obligations
incurred before the Philippine Islands were ceded to the United States.
We will not inquire what effect his cession had upon the law of June 20,
1849, the royal decree of April 27, 1875, and the instructions
promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the
court said:
That there is a total abrogation of the former political relations of
the inhabitants of the ceded region is obvious. That all laws
theretofore in force which are in conflict with the political
character, constitution, or institutions of the substituted sovereign,
lose their force, is also plain. (Alvarez y Sanchez vs. United
States, 216 U. S., 167.) But it is equally settled in the same public
law that the great body of municipal law which regulates private
and domestic rights continues in force until abrogated or changed
by the new ruler.
If the above-mentioned legal provisions are in conflict with the political
character, constitution or institutions of the new sovereign, they became
inoperative or lost their force upon the cession of the Philippine Islands to
the United States, but if they are among "that great body of municipal law
which regulates private and domestic rights," they continued in force and
are still in force unless they have been repealed by the present
Government. That they fall within the latter class is clear from their very
nature and character. They are laws which are not political in any sense
of the word. They conferred upon the Spanish Government the right and
duty to supervise, regulate, and to some extent control charities and
charitable institutions. The present sovereign, in exempting "provident
institutions, savings banks, etc.," all of which are in the nature of
charitable institutions, from taxation, placed such institutions, in so far as
the investment in securities are concerned, under the general supervision
of the Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see
also Act No. 701).
Furthermore, upon the cession of the Philippine Islands the prerogatives
of he crown of Spain devolved upon he United States. In Magill vs. Brown
(16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United
States (136 U. S.,1, 57), the court said:
The Revolution devolved on the State all the transcendent power
of Parliament, and the prerogative of the crown, and gave their
Acts the same force and effect.
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering
the opinion of the court in a charity case, said:
When this country achieved its independence, the prerogatives of
the crown devolved upon the people of the States. And this power
still remains with them except so fact as they have delegated a
portion of it to the Federal Government. The sovereign will is
made known to us by legislative enactment. The State as a
sovereign, is the parens patriae.
Chancelor Kent says:
In this country, the legislature or government of the State,
as parens patriae, has the right to enforce all charities of public
nature, by virtue of its general superintending authority over the
public interests, where no other person is entrusted with it. (4
Kent Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United
States, supra, after approving also the last quotations, said:
This prerogative of parens patriae is inherent in the supreme
power of every State, whether that power is lodged in a royal
person or in the legislature, and has no affinity to those arbitrary
powers which are sometimes exerted by irresponsible monarchs
to the great detriment of the people and the destruction of their
liberties. On the contrary, it is a most beneficient functions, and
often necessary to be exercised in the interest of humanity, and
for the prevention of injury to those who cannot protect
themselves.
The court in the same case, after quoting from Sohier vs. Mass. General
Hospital (3 Cush., 483, 497), wherein the latter court held that it is
deemed indispensible that there should be a power in the legislature to
authorize the same of the estates of in facts, idiots, insane persons, and
persons not known, or not in being, who cannot act for themselves, said:
These remarks in reference to in facts, insane persons and
person not known, or not in being, apply to the beneficiaries of
charities, who are often in capable of vindicating their rights, and
justly look for protection to the sovereign authority, acting
as parens patriae. They show that this beneficient functions has
not ceased t exist under the change of government from a
 monarchy to a republic; but that it now resides in the legislative
department, ready to be called into exercise whenever required
for the purposes of justice and right, and is a clearly capable of
being exercised in cases of charities as in any other cases
whatever.
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff
was not the real party in interest; that the Attorney-General had no power
to institute the action; and that there must be an allegation and proof of a
distinct right of the people as a whole, as distinguished from the rights of
individuals, before an action could be brought by the Attorney-General in
the name of the people. The court, in overruling these contentions, held
that it was not only the right but the duty of the Attorney-General to
prosecute the action, which related to charities, and approved the
following quotation from Attorney-General vs. Compton (1 Younge & C.
C., 417):
Where property affected by a trust for public purposes is in the
hands of those who hold it devoted to that trust, it is the privilege
of the public that the crown should be entitled to intervene by its
officers for the purpose of asserting, on behalf on the public
generally, the public interest and the public right, which, probably,
no individual could be found effectually to assert, even if the
interest were such as to allow it. (2 Knet's Commentaries, 10th
ed., 359; Lewin on Trusts, sec. 732.)
It is further urged, as above indicated, that "the only persons who could
claim to be damaged by this payment to the Monte, if it was unlawful, are
the donors or the cestuis que trustent, and this Government is neither.
Consequently, the plaintiff is not the proper party to bring the action." The
earthquake fund was the result or the accumulation of a great number of
small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their
respective contributions. The beneficiaries, consisting of the original
sufferers and their heirs, could have been ascertained. They are quite
numerous also. And no doubt a large number of the original sufferers
have died, leaving various heirs. It would be impracticable for them to
institute an action or actions either individually or collectively to recover
the $80,000. The only course that can be satisfactorily pursued is for the
Government to again assume control of the fund and devote it to the
object for which it was originally destined.
The impracticability of pursuing a different course, however, is not the
true ground upon which the right of the Government to maintain the
action rests. The true ground is that the money being given to a charity
became, in a measure, public property, only applicable, it is true, to the
specific purposes to which it was intended to be devoted, but within those
limits consecrated to the public use, and became part of the public
resources for promoting the happiness and welfare of the Philippine
Government. (Mormon Church vs. U. S., supra.) To deny the
Government's right to maintain this action would be contrary to sound
public policy, as tending to discourage the prompt exercise of similar acts
of humanity and Christian benevolence in like instances in the future.
As to the question raised in the fourth assignment of error relating to the
constitutionality of Act No. 2109, little need be said for the reason that we
have just held that the present Philippine Government is the proper party
to the action. The Act is only a manifestation on the part of the Philippine
Government to exercise the power or right which it undoubtedly had. The
Act is not, as contended by counsel, in conflict with the fifth section of the
Act of Congress of July 1, 1902, because it does not take property
without due process of law. In fact, the defendant is not the owner of the
$80,000, but holds it as a loan subject to the disposal of the central relief
board. Therefor, there can be nothing in the Act which transcends the
power of the Philippine Legislature.
In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila
as it existed before the cession of the Philippine Islands to the United
States by the Treaty of Paris of December 10, 1898. The action was
brought upon the theory that the city, under its present charter from the
Government of the Philippine Islands, was the same juristic person, and
liable upon the obligations of the old city. This court held that the present
municipality is a totally different corporate entity and in no way liable for
the debts of the Spanish municipality. The Supreme Court of the United
States, in reversing this judgment and in holding the city liable for the old
debt, said:
The juristic identity of the corporation has been in no wise
affected, and, in law, the present city is, in every legal sense, the
successor of the old. As such it is entitled to the property and
property rights of the predecessor corporation, and is, in law,
subject to all of its liabilities.
In support of the fifth assignment of error counsel for the defendant argue
that as the Monte de Piedad declined to return the $80,000 when ordered
to do so by the Department of Finance in June, 1893, the plaintiff's right
of action had prescribed at the time this suit was instituted on May 3,
1912, citing and relying upon article 1961, 1964 and 1969 of the Civil
Code. While on the other hand, the Attorney-General contends that the
right of action had not prescribed (a) because the defense of prescription
cannot be set up against the Philippine Government, (b) because the
right of action to recover a deposit or trust funds does not prescribe, and
(c) even if the defense of prescription could be interposed against the
Government and if the action had, in fact, prescribed, the same was
revived by Act No. 2109.
The material facts relating to this question are these: The Monte de
Piedad received the $80,000 in 1883 "to be held under the same
conditions as at present in the treasury, to wit, at the disposal of the relief
board." In compliance with the provisions of the royal order of December
3, 1892, the Department of Finance called upon the Monte de Piedad in
June, 1893, to return the $80,000. The Monte declined to comply with
this order upon the ground that only the Governor-General of the
Philippine Islands and not the Department of Finance had the right to
order the reimbursement. The amount was carried on the books of the
Monte as a returnable loan until January 1, 1899, when it was transferred
to the account of the "Sagrada Mitra." On March 31, 1902, the Monte,
through its legal representative, stated in writing that the amount in
question was received as a reimbursable loan, without interest. Act No.
2109 became effective January 30, 1912, and the action was instituted
on May 3rd of that year.
Counsel for the defendant treat the question of prescription as if the
action was one between individuals or corporations wherein the plaintiff is
seeking to recover an ordinary loan. Upon this theory June, 1893, cannot
be taken as the date when the statute of limitations began to run, for the
reason that the defendant acknowledged in writing on March 31, 1902,
that the $80,000 were received as a loan, thereby in effect admitting that
it still owed the amount. (Section 50, Code of Civil Procedure.) But if
counsels' theory is the correct one the action may have prescribed on
May 3, 1912, because more than ten full years had elapsed after March
31, 1902. (Sections 38 and 43, Code of Civil Procedure.)
Is the Philippine Government bound by the statute of limitations? The
Supreme Court of the United States in U. S.vs. Nashville, Chattanooga &
St. Louis Railway Co. (118 U. S., 120, 125), said:
It is settled beyond doubt or controversy — upon the foundation
of the great principle of public policy, applicable to all
governments alike, which forbids that the public interests should
be prejudiced by the negligence of the officers or agents to whose
care they are confided — that the United States, asserting rights
vested in it as a sovereign government, is not bound by any
statute of limitations, unless Congress has clearly manifested its
intention that it should be so bound. (Lindsey vs. Miller, 6 Pet.
666; U. S. vs.Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall.,
92; U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S.,
272, 281.)
In Gibson vs. Choteau, supra, the court said:
It is a matter of common knowledge that statutes of limitation do
not run against the State. That no laches can be imputed to the
King, and that no time can bar his rights, was the maxim of the
common laws, and was founded on the principle of public policy,
that as he was occupied with the cares of government he ought
not to suffer from the negligence of his officer and servants. The
principle is applicable to all governments, which must necessarily
act through numerous agents, and is essential to a preservation
of the interests and property of the public. It is upon this principle
that in this country the statutes of a State prescribing periods
within which rights must be prosecuted are not held to embrace
the State itself, unless it is expressly designated or the mischiefs
to be remedied are of such a nature that it must necessarily be
included. As legislation of a State can only apply to persons and
thing over which the State has jurisdiction, the United States are
also necessarily excluded from the operation of such statutes.
In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated
as follows:
In the absence of express statutory provision to the contrary,
statute of limitations do not as a general rule run against the
sovereign or government, whether state or federal. But the rule is
otherwise where the mischiefs to be remedied are of such a
nature that the state must necessarily be included, where the
state goes into business in concert or in competition with her
citizens, or where a party seeks to enforces his private rights by
suit in the name of the state or government, so that the latter is
only a nominal party.
In the instant case the Philippine Government is not a mere nominal party
because it, in bringing and prosecuting this action, is exercising its
sovereign functions or powers and is seeking to carry out a trust
developed upon it when the Philippine Islands were ceded to the United
States. The United States having in 1852, purchased as trustee for the
Chickasaw Indians under treaty with that tribe, certain bonds of the State
of Tennessee, the right of action of the Government on the coupons of
such bonds could not be barred by the statute of limitations of
Tennessee, either while it held them in trust for the Indians, or since it
became the owner of such coupons. (U. S.vs. Nashville, etc., R.
Co., supra.) So where lands are held in trust by the state and the
beneficiaries have no right to sue, a statute does not run against the
State's right of action for trespass on the trust lands. (Greene
Tp. vs.Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co.,
3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

These principles being based "upon the foundation of the great principle
of public policy" are, in the very nature of things, applicable to the
Philippine Government.

Counsel in their argument in support of the sixth and last assignments of

error do not question the amount of the judgment nor do they question
the correctness of the judgment in so far as it allows interest, and directs
its payment in gold coin or in the equivalent in Philippine currency.

For the foregoing reasons the judgment appealed from is affirmed, with
costs against the appellant. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First
Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent
judge of the lower court be ordered to continue the proceedings in civil
case No. 3012 of said court, which were initiated under the regime of the
so-called Republic of the Philippines established during the Japanese
military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the
proceedings in said case on the ground that the proclamation issued on
October 23, 1944, by General Douglas MacArthur had the effect of
invalidating and nullifying all judicial proceedings and judgements of the
court of the Philippines under the Philippine Executive Commission and
the Republic of the Philippines established during the Japanese military
occupation, and that, furthermore, the lower courts have no jurisdiction to
take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an
enabling law granting such authority. And the same respondent, in his
answer and memorandum filed in this Court, contends that the
government established in the Philippines during the Japanese
occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of
Manila, and on the next day their Commander in Chief proclaimed "the
Military Administration under law over the districts occupied by the Army."
In said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth,
as well as executive and judicial institutions, shall continue to be effective
for the time being as in the past," and "all public officials shall remain in
their present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name
of "Philippine Executive Commission was organized by Order No. 1
issued on January 23, 1942, by the Commander in Chief of the Japanese
Forces in the Philippines, and Jorge B. Vargas, who was appointed
Chairman thereof, was instructed to proceed to the immediate
coordination of the existing central administrative organs and judicial
courts, based upon what had existed therefore, with approval of the said
Commander in Chief, who was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central
administrative organization, issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively, in which the Supreme
Court, Court of Appeals, Courts of First Instance, and the justices of the
peace and municipal courts under the Commonwealth were continued
with the same jurisdiction, in conformity with the instructions given to the
said Chairman of the Executive Commission by the Commander in Chief
of Japanese Forces in the Philippines in the latter's Order No. 3 of
February 20, 1942, concerning basic principles to be observed by the
Philippine Executive Commission in exercising legislative, executive and
judicial powers. Section 1 of said Order provided that "activities of the
administration organs and judicial courts in the Philippines shall be based
upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was
inaugurated, but no substantial change was effected thereby in the
organization and jurisdiction of the different courts that functioned during
the Philippine Executive Commission, and in the laws they administered
and enforced.
On October 23, 1944, a few days after the historic landing in Leyte,
General Douglas MacArthur issued a proclamation to the People of the
Philippines which declared:
1. That the Government of the Commonwealth of the Philippines
is, subject to the supreme authority of the Government of the
United States, the sole and only government having legal and
valid jurisdiction over the people in areas of the Philippines free of
enemy occupation and control;
 2. That the laws now existing on the statute books of the
Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect and
legally binding upon the people in areas of the Philippines free of
enemy occupation and control; and
3. That all laws, regulations and processes of any other
government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on
February 27, 1945, General MacArthur, on behalf of the Government of
the United States, solemnly declared "the full powers and responsibilities
under the Constitution restored to the Commonwealth whose seat is here
established as provided by law."
In the light of these facts and events of contemporary history, the
principal questions to be resolved in the present case may be reduced to
the following:(1) Whether the judicial acts and proceedings of the court
existing in the Philippines under the Philippine Executive Commission
and the Republic of the Philippines were good and valid and remained so
even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces; (2)Whether the proclamation issued on
October 23, 1944, by General Douglas MacArthur, Commander in Chief
of the United States Army, in which he declared "that all laws, regulations
and processes of any of the government in the Philippines than that of
the said Commonwealth are null and void and without legal effect in
areas of the Philippines free of enemy occupation and control," has
invalidated all judgements and judicial acts and proceedings of the said
courts; and (3) If the said judicial acts and proceedings have not been
invalidated by said proclamation, whether the present courts of the
Commonwealth, which were the same court existing prior to, and
continued during, the Japanese military occupation of the Philippines,
may continue those proceedings pending in said courts at the time the
Philippines were reoccupied and liberated by the United States and
Filipino forces, and the Commonwealth of the Philippines were
reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or
not under the rules of international law the judicial acts and proceedings
of the courts established in the Philippines under the Philippine Executive
Commission and the Republic of the Philippines were good and valid and
remained good and valid even after the liberation or reoccupation of the
Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. The question to be determined is
whether or not the governments established in these Islands under the
names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of
those governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or
government de facto in a proper legal sense, is that government that gets
possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal governments and maintains itself against the
will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector.
The second is that which is established and maintained by military forces
who invade and occupy a territory of the enemy in the course of war, and
which is denominated a government of paramount force, as the cases of
Castine, in Maine, which was reduced to British possession in the war of
1812, and Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise in
insurrection against the parent state of such as the government of the
Southern Confederacy in revolt not concerned in the present case with
the first kind, but only with the second and third kinds of de
factogovernments.
Speaking of government "de facto" of the second kind, the Supreme
Court of the United States, in the case of Thorington vs. Smith (8 Wall.,
1), said: "But there is another description of government, called also by
publicists a government de facto, but which might, perhaps, be more
aptly denominated a government of paramount force. Its distinguishing
characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an
established and lawful government; and (2), that while it exists it
necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not warranted by the
laws of the rightful government. Actual governments of this sort are
established over districts differing greatly in extent and conditions. They
are usually administered directly by military authority, but they may be
administered, also, civil authority, supported more or less directly by
military force. . . . One example of this sort of government is found in the
case of Castine, in Mine, reduced to British possession in the war of 1812
. . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case
of Tampico, occupied during the war with Mexico, by the troops of the
United States . . . Fleming vs. Page (9 Howard, 614). These were cases
of temporary possessions of territory by lawfull and regular governments
at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are
regulated in Section III of the Hague Conventions of 1907, which is a
revision of the provisions of the Hague Conventions of 1899 on the same
subject of said Section III provides "the authority of the legislative power
having actually passed into the hands of the occupant, the latter shall
take steps in his power to reestablish and insure, as far as possible,
public order and safety, while respecting, unless absolutely prevented,
the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent
occupant has the right and is burdened with the duty to insure public
order and safety during his military occupation, he possesses all the
powers of a de facto government, and he can suspended the old laws
and promulgate new ones and make such changes in the old as he may
see fit, but he is enjoined to respect, unless absolutely prevented by the
circumstances prevailing in the occupied territory, the municipal laws in
force in the country, that is, those laws which enforce public order and
regulate social and commercial life of the country. On the other hand,
laws of a political nature or affecting political relations, such as, among
others, the right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory occupied, are
considered as suspended or in abeyance during the military occupation.
Although the local and civil administration of justice is suspended as a
matter of course as soon as a country is militarily occupied, it is not usual
for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue
administering justice; and judges and other judicial officers are kept in
their posts if they accept the authority of the belligerent occupant or are
required to continue in their positions under the supervision of the military
or civil authorities appointed, by the Commander in Chief of the occupant.
These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court
and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work
on International Law (Vol. 2, p. 444): "The right of one belligerent to
occupy and govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the Constitution or political
institutions of the conqueror, for authority to establish a government for
the territory of the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are regulated
and limited. Such authority and such rules are derived directly from the
laws war, as established by the usage of the of the world, and confirmed
by the writings of publicists and decisions of courts — in fine, from the
law of nations. . . . The municipal laws of a conquered territory, or the
laws which regulate private rights, continue in force during military
occupation, excepts so far as they are suspended or changed by the acts
of conqueror. . . . He, nevertheless, has all the powers of a de
facto government, and can at his pleasure either change the existing
laws or make new ones."
And applying the principles for the exercise of military authority in an
occupied territory, which were later embodied in the said Hague
Conventions, President McKinley, in his executive order to the Secretary
of War of May 19,1898, relating to the occupation of the Philippines by
United States forces, said in part: "Though the powers of the military
occupant are absolute and supreme, and immediately operate upon the
political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property and provide
for the punishment of crime, are considered as continuing in force, so far
as they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and in practice
they are not usually abrogated, but are allowed to remain in force and to
be administered by the ordinary tribunals, substantially as they were
before the occupation. This enlightened practice is, so far as possible, to
be adhered to on the present occasion. The judges and the other officials
connected with the administration of justice may, if they accept the
authority of the United States, continue to administer the ordinary law of
the land as between man and man under the supervision of the American
Commander in Chief." (Richardson's Messages and Papers of President,
X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the
United States, in the same case of Thorington vs. Smith, supra,
recognized the government set up by the Confederate States as a de
factogovernment. In that case, it was held that "the central government
established for the insurgent States differed from the temporary
governments at Castine and Tampico in the circumstance that its
authority did no originate in lawful acts of regular war; but it was not, on
the account, less actual or less supreme. And we think that it must be
classed among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court
of the United States, discussing the validity of the acts of the Confederate
States, said: "The same general form of government, the same general
laws for the administration of justice and protection of private rights,
which had existed in the States prior to the rebellion, remained during its
continuance and afterwards. As far as the Acts of the States do not
impair or tend to impair the supremacy of the national authority, or the
just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall.,
570; 21 Law. ed., 657): "The existence of a state of insurrection and war
did not loosen the bonds of society, or do away with civil government or
the regular administration of the laws. Order was to be preserved, police
regulations maintained, crime prosecuted, property protected, contracts
enforced, marriages celebrated, estates settled, and the transfer and
descent of property regulated, precisely as in the time of peace. No one,
that we are aware of, seriously questions the validity of judicial or
legislative Acts in the insurrectionary States touching these and kindered
subjects, where they were not hostile in their purpose or mode of
enforcement to the authority of the National Government, and did not
impair the rights of citizens under the Constitution'. The same doctrine
has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388,
400), held: "That what occured or was done in respect of such matters
under the authority of the laws of these local de facto governments
should not be disregarded or held to be invalid merely because those
governments were organized in hostility to the Union established by the
national Constitution; this, because the existence of war between the
United States and the Confederate States did not relieve those who are
within the insurrectionary lines from the necessity of civil obedience, nor
destroy the bonds of society nor do away with civil government or the
regular administration of the laws, and because transactions in the
ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of
the de facto or unlawful government organized to effect a dissolution of
the Union, were without blame 'except when proved to have been
entered intowith actual intent to further invasion or insurrection:'" and
"That judicial and legislative acts in the respective states composing the
so-called Confederate States should be respected by the courts if they
were not hostile in their purpose or mode of enforcement to the authority
of the National Government, and did not impair the rights of citizens
under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive
Commission, which was organized by Order No. 1, issued on January 23,
1942, by the Commander of the Japanese forces, was a civil government
established by the military forces of occupation and therefore a de
facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United
States in Tampico, Mexico. As Halleck says, "The government
established over an enemy's territory during the military occupation may
exercise all the powers given by the laws of war to the conqueror over
the conquered, and is subject to all restrictions which that code imposes.
It is of little consequence whether such government be called a military or
civil government. Its character is the same and the source of its authority
the same. In either case it is a government imposed by the laws of war,
and so far it concerns the inhabitants of such territory or the rest of the
world, those laws alone determine the legality or illegality of its acts."
(Vol. 2, p. 466.) The fact that the Philippine Executive Commission was a
civil and not a military government and was run by Filipinos and not by
Japanese nationals, is of no consequence. In 1806, when Napoleon
occupied the greater part of Prussia, he retained the existing
administration under the general direction of a french official (Langfrey
History of Napoleon, 1, IV, 25); and, in the same way, the Duke of
Willington, on invading France, authorized the local authorities to
continue the exercise of their functions, apparently without appointing an
English superior. (Wellington Despatches, XI, 307.). The Germans, on
the other hand, when they invaded France in 1870, appointed their own
officials, at least in Alsace and Lorraine, in every department of
administration and of every rank. (Calvo, pars. 2186-93; Hall,
International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other government
by the Filipino people, was, in truth and reality, a government established
by the belligerent occupant or the Japanese forces of occupation. It was
of the same character as the Philippine Executive Commission, and the
ultimate source of its authority was the same — the Japanese military
authority and government. As General MacArthur stated in his
proclamation of October 23, 1944, a portion of which has been already
quoted, "under enemy duress, a so-called government styled as the
'Republic of the Philippines' was established on October 14, 1943, based
upon neither the free expression of the people's will nor the sanction of
the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United
States to, or recognize the latent sovereignty of, the Filipino people,
before its military occupation and possession of the Islands had matured
into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations. For it is a well-
established doctrine in International Law, recognized in Article 45 of the
Hauge Conventions of 1907 (which prohibits compulsion of the
population of the occupied territory to swear allegiance to the hostile
power), the belligerent occupation, being essentially provisional, does not
serve to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power
to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9
Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the
Republic of the Philippines was a scheme contrived by Japan to delude
the Filipino people into believing in the apparent magnanimity of the
Japanese gesture of transferring or turning over the rights of government
into the hands of Filipinos. It was established under the mistaken belief
that by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and
other allied nations.
Indeed, even if the Republic of the Philippines had been established by
the free will of the Filipino who, taking advantage of the withdrawal of the
American forces from the Islands, and the occupation thereof by the
Japanese forces of invasion, had organized an independent government
under the name with the support and backing of Japan, such government
would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And
as such, it would have been a de facto government similar to that
organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith,
Williams vs.Bruffy, and Badly vs. Hunter, above quoted; and similar to the
short-lived government established by the Filipino insurgents in the Island
of Cebu during the Spanish-American war, recognized as a de
facto government by the Supreme Court of the United States in the case
of McCleod vs. United States (299 U. S., 416). According to the facts in
the last-named case, the Spanish forces evacuated the Island of Cebu on
December 25, 1898, having first appointed a provisional government, and
shortly afterwards, the Filipinos, formerly in insurrection against Spain,
took possession of the Islands and established a republic, governing the
Islands until possession thereof was surrendered to the United States on
February 22, 1898. And the said Supreme Court held in that case that
"such government was of the class of de facto governments described in
I Moore's International Law Digest, S 20, . . . 'called also by publicists a
government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force . . '." That is to say, that
the government of a country in possession of belligerent forces in
insurrection or rebellion against the parent state, rests upon the same
principles as that of a territory occupied by the hostile army of an enemy
at regular war with the legitimate power.
The governments by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation
being de facto governments, it necessarily follows that the judicial acts
and proceedings of the courts of justice of those governments, which are
not of a political complexion, were good and valid, and, by virtue of the
well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the
Philippines by the American and Filipino forces under the leadership of
General Douglas MacArthur. According to that well-known principle in
international law, the fact that a territory which has been occupied by an
enemy comes again into the power of its legitimate government of
sovereignty, "does not, except in a very few cases, wipe out the effects of
acts done by an invader, which for one reason or another it is within his
competence to do. Thus judicial acts done under his control, when they
are not of a political complexion, administrative acts so done, to the
extent that they take effect during the continuance of his control, and the
various acts done during the same time by private persons under the
sanction of municipal law, remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an invasion; and as
between the state and the individuals the evil would be scarcely less, — it
would be hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general interest that
the sentences passed upon criminals should be annulled by the
disappearance of the intrusive government ." (Hall, International Law, 7th
ed., p. 518.) And when the occupation and the abandonment have been
each an incident of the same war as in the present case, postliminy
applies, even though the occupant has acted as conqueror and for the
time substituted his own sovereignty as the Japanese intended to do
apparently in granting independence to the Philippines and establishing
the so-called Republic of the Philippines. (Taylor, International Law, p.
615.)
That not only judicial but also legislative acts of de facto governments,
which are not of a political complexion, are and remain valid after
reoccupation of a territory occupied by a belligerent occupant, is
confirmed by the Proclamation issued by General Douglas MacArthur on
October 23, 1944, which declares null and void all laws, regulations and
processes of the governments established in the Philippines during the
Japanese occupation, for it would not have been necessary for said
proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase
"processes of any other government" as used in the above-quoted
proclamation of General Douglas MacArthur of October 23, 1944 — that
is, whether it was the intention of the Commander in Chief of the
American Forces to annul and void thereby all judgments and judicial
proceedings of the courts established in the Philippines during the
Japanese military occupation.
The phrase "processes of any other government" is broad and may refer
not only to the judicial processes, but also to administrative or legislative,
as well as constitutional, processes of the Republic of the Philippines or
other governmental agencies established in the Islands during the
Japanese occupation. Taking into consideration the fact that, as above
indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political
complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the
occupied territory had come again into the power of the titular sovereign,
it should be presumed that it was not, and could not have been, the
intention of General Douglas MacArthur, in using the phrase "processes
of any other government" in said proclamation, to refer to judicial
processes, in violation of said principles of international law. The only
reasonable construction of the said phrase is that it refers to
governmental processes other than judicial processes of court
proceedings, for according to a well-known rule of statutory construction,
set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to
violate the law of nations if any other possible construction remains."
It is true that the commanding general of a belligerent army of
occupation, as an agent of his government, may not unlawfully suspend
existing laws and promulgate new ones in the occupied territory, if and
when the exigencies of the military occupation demand such action. But
even assuming that, under the law of nations, the legislative power of a
commander in chief of military forces who liberates or reoccupies his own
territory which has been occupied by an enemy, during the military and
before the restoration of the civil regime, is as broad as that of the
commander in chief of the military forces of invasion and occupation
(although the exigencies of military reoccupation are evidently less than
those of occupation), it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional
commander in chief of the United States Army, did not intend to act
against the principles of the law of nations asserted by the Supreme
Court of the United States from the early period of its existence, applied
by the Presidents of the United States, and later embodied in the Hague
Conventions of 1907, as above indicated. It is not to be presumed that
General Douglas MacArthur, who enjoined in the same proclamation of
October 23, 1944, "upon the loyal citizens of the Philippines full respect
and obedience to the Constitution of the Commonwealth of the
Philippines," should not only reverse the international policy and practice
of his own government, but also disregard in the same breath the
provisions of section 3, Article II, of our Constitution, which provides that
"The Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part of
the law of the Nation."
Moreover, from a contrary construction great inconvenience and public
hardship would result, and great public interests would be endangered
and sacrificed, for disputes or suits already adjudged would have to be
again settled accrued or vested rights nullified, sentences passed on
criminals set aside, and criminals might easily become immune for
evidence against them may have already disappeared or be no longer
available, especially now that almost all court records in the Philippines
have been destroyed by fire as a consequence of the war. And it is
another well-established rule of statutory construction that where great
inconvenience will result from a particular construction, or great public
interests would be endangered or sacrificed, or great mischief done, such
construction is to be avoided, or the court ought to presume that such
construction was not intended by the makers of the law, unless required
by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or
his representatives who reoccupies a territory occupied by an enemy,
may set aside or annul all the judicial acts or proceedings of the tribunals
which the belligerent occupant had the right and duty to establish in order
to insure public order and safety during military occupation, would be
sufficient to paralyze the social life of the country or occupied territory, for
it would have to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards be
annulled, and criminals would not be deterred from committing crimes or
offenses in the expectancy that they may escaped the penalty if
judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and
proceedings of the courts of justice during the Japanese regime, is
impliedly confirmed by Executive Order No. 37, which has the force of
law, issued by the President of the Philippines on March 10, 1945, by
virtue of the emergency legislative power vested in him by the
Constitution and the laws of the Commonwealth of the Philippines. Said
Executive order abolished the Court of Appeals, and provided "that all
case which have heretofore been duly appealed to the Court of Appeals
shall be transmitted to the Supreme Court final decision." This provision
impliedly recognizes that the judgments and proceedings of the courts
during the Japanese military occupation have not been invalidated by the
proclamation of General MacArthur of October 23, because the said
Order does not say or refer to cases which have been duly appealed to
said court prior to the Japanese occupation, but to cases which had
therefore, that is, up to March 10, 1945, been duly appealed to the Court
of Appeals; and it is to be presumed that almost all, if not all, appealed
cases pending in the Court of Appeals prior to the Japanese military
occupation of Manila on January 2, 1942, had been disposed of by the
latter before the restoration of the Commonwealth Government in 1945;
while almost all, if not all, appealed cases pending on March 10, 1945, in
the Court of Appeals were from judgments rendered by the Court of First
Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law
which say: "Moreover when it is said that an occupier's acts are valid and
under international law should not be abrogated by the subsequent
conqueror, it must be remembered that no crucial instances exist to show
that if his acts should be reversed, any international wrong would be
committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than
this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245.) And from this quotion the respondent judge "draws the conclusion
that whether the acts of the occupant should be considered valid or not,
is a question that is up to the restored government to decide; that there is
no rule of international law that denies to the restored government to
decide; that there is no rule of international law that denies to the
restored government the right of exercise its discretion on the matter,
imposing upon it in its stead the obligation of recognizing and enforcing
the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate
most of the acts of the occupier, such as the laws, regulations and
processes other than judicial of the government established by the
belligerent occupant. But in view of the fact that the proclamation uses
the words "processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether or not
General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese
occupation. The question to be determined is whether or not it was his
intention, as representative of the President of the United States, to avoid
or nullify them. If the proclamation had, expressly or by necessary
implication, declared null and void the judicial processes of any other
government, it would be necessary for this court to decide in the present
case whether or not General Douglas MacArthur had authority to declare
them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his
powers as Commander in Chief of Military Forces of liberation or
subsequent conqueror.
Not only the Hague Regulations, but also the principles of international
law, as they result from the usages established between civilized nations,
the laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague
Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article
43, section III, of the Hague Regulations or Conventions which we have
already quoted in discussing the first question, imposes upon the
occupant the obligation to establish courts; and Article 23 (h), section II,
of the same Conventions, which prohibits the belligerent occupant "to
declare . . . suspended . . . in a Court of Law the rights and action of the
nationals of the hostile party," forbids him to make any declaration
preventing the inhabitants from using their courts to assert or enforce
their civil rights. (Decision of the Court of Appeals of England in the case
of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent
occupant is required to establish courts of justice in the territory occupied,
and forbidden to prevent the nationals thereof from asserting or enforcing
therein their civil rights, by necessary implication, the military commander
of the forces of liberation or the restored government is restrained from
nullifying or setting aside the judgments rendered by said courts in their
litigation during the period of occupation. Otherwise, the purpose of these
precepts of the Hague Conventions would be thwarted, for to declare
them null and void would be tantamount to suspending in said courts the
right and action of the nationals of the territory during the military
occupation thereof by the enemy. It goes without saying that a law that
enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President
or commanding officer of the United States Army has violated restraints
imposed by the constitution and laws of his country is obviously of a
domestic nature, yet, in construing and applying limitations imposed on
the executive authority, the Supreme Court of the United States, in the
case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they
"arise from general rules of international law and from fundamental
principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order
issued by the officer in command of the forces of the United States in
South Carolina after the end of the Civil War, wholly annulling a decree
rendered by a court of chancery in that state in a case within its
jurisdiction, was declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year
(15 id., 14), which defined the powers and duties of military officers in
command of the several states then lately in rebellion. In the course of its
decision the court said; "We have looked carefully through the acts of
March 2, 1867 and July 19, 1867. They give very large governmental
powers to the military commanders designated, within the States
committed respectively to their jurisdiction; but we have found nothing to
warrant the order here in question. . . . The clearest language would be
necessary to satisfy us that Congress intended that the power given by
these acts should be so exercised. . . . It was an arbitrary stretch of
authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question
we are not called upon to consider. It is an unbending rule of law that the
exercise of military power, where the rights of the citizen are concerned,
shall never be pushed beyond what the exigency requires.
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.)
Viewing the subject before us from the standpoint indicated, we hold that
the order was void."
It is, therefore, evident that the proclamation of General MacArthur of
October 23, 1944, which declared that "all laws, regulations and
processes of any other government in the Philippines than that of the
said Commonwealth are null and void without legal effect in areas of the
Philippines free of enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political complexion, of the
courts of justice in the Philippines that were continued by the Philippine
Executive Commission and the Republic of the Philippines during the
Japanese military occupation, and that said judicial acts and proceedings
were good and valid before and now good and valid after the
reoccupation of liberation of the Philippines by the American and Filipino
forces.
3. The third and last question is whether or not the courts of the
Commonwealth, which are the same as those existing prior to, and
continued during, the Japanese military occupation by the Philippine
Executive Commission and by the so-called Republic of the Philippines,
have jurisdiction to continue now the proceedings in actions pending in
said courts at the time the Philippine Islands were reoccupied or liberated
by the American and Filipino forces, and the Commonwealth Government
was restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military
occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary
courts or tribunals to administer the laws of the country which he is
enjoined, unless absolutely prevented, to respect. As stated in the above-
quoted Executive Order of President McKinley to the Secretary of War on
May 19, 1898, "in practice, they (the municipal laws) are not usually
abrogated but are allowed to remain in force and to be administered by
the ordinary tribunals substantially as they were before the occupation.
This enlightened practice is, so far as possible, to be adhered to on the
present occasion." And Taylor in this connection says: "From a
theoretical point of view it may be said that the conqueror is armed with
the right to substitute his arbitrary will for all preexisting forms of
government, legislative, executive and judicial. From the stand-point of
actual practice such arbitrary will is restrained by the provision of the law
of nations which compels the conqueror to continue local laws and
institution so far as military necessity will permit." (Taylor, International
Public Law, p.596.) Undoubtedly, this practice has been adopted in order
that the ordinary pursuits and business of society may not be
unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant
of transient character.
Following these practice and precepts of the law of nations, Commander
in Chief of the Japanese Forces proclaimed on January 3, 1942, when
Manila was occupied, the military administration under martial law over
the territory occupied by the army, and ordered that "all the laws now in
force in the Commonwealth, as well as executive and judicial institutions,
shall continue to be affective for the time being as in the past," and "all
public officials shall remain in their present post and carry on faithfully
their duties as before." When the Philippine Executive Commission was
organized by Order No. 1 of the Japanese Commander in Chief, on
January 23, 1942, the Chairman of the Executive Commission, by
Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court of
First Instance, and justices of the peace of courts, with the same
jurisdiction in conformity with the instructions given by the Commander in
Chief of the Imperial Japanese Army in Order No. 3 of February 20,
1942. And on October 14, 1943 when the so-called Republic of the
Philippines was inaugurated, the same courts were continued with no
substantial change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to
the Japanese military occupation had been continued during the
Japanese military administration, the Philippine Executive Commission,
and the so-called Republic of the Philippines, it stands to reason that the
same courts, which had become reestablished and conceived of as
having in continued existence upon the reoccupation and liberation of the
Philippines by virtue of the principle of postliminy (Hall, International Law,
7th ed., p. 516), may continue the proceedings in cases then pending in
said courts, without necessity of enacting a law conferring jurisdiction
upon them to continue said proceedings. As Taylor graphically points out
in speaking of said principles "a state or other governmental entity, upon
the removal of a foreign military force, resumes its old place with its right
and duties substantially unimpaired. . . . Such political resurrection is the
result of a law analogous to that which enables elastic bodies to regain
their original shape upon removal of the external force, — and subject to
the same exception in case of absolute crushing of the whole fibre and
content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in
support in his conclusion that the Court of First Instance of Manila
presided over by him "has no authority to take cognizance of, and
continue said proceedings (of this case) to final judgment until and unless
the Government of the Commonwealth of the Philippines . . . shall have
provided for the transfer of the jurisdiction of the courts of the now
defunct Republic of the Philippines, and the cases commenced and the
left pending therein," is "that said courts were a government alien to the
Commonwealth Government. The laws they enforced were, true enough,
laws of the Commonwealth prior to Japanese occupation, but they had
become the laws — and the courts had become the institutions — of
Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they
became later on the laws and institutions of the Philippine Executive
Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say
that the laws and institutions of the country occupied if continued by the
conqueror or occupant, become the laws and the courts, by adoption, of
the sovereign nation that is militarily occupying the territory. Because, as
already shown, belligerent or military occupation is essentially provisional
and does not serve to transfer the sovereignty over the occupied territory
to the occupant. What the court said was that, if such laws and
institutions are continued in use by the occupant, they become his and
derive their force from him, in the sense that he may continue or set them
aside. The laws and institution or courts so continued remain the laws
and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued
as required by the law of nations, laws and courts of Japan. The
provision of Article 45, section III, of the Hague Conventions of 1907
which prohibits any compulsion of the population of occupied territory to
swear allegiance to the hostile power, "extends to prohibit everything
which would assert or imply a change made by the invader in the
legitimate sovereignty. This duty is neither to innovate in the political life
of the occupied districts, nor needlessly to break the continuity of their
legal life. Hence, so far as the courts of justice are allowed to continue
administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law,
Part II, second ed., p. 102). According to Wheaton, however, the victor
need not allow the use of that of the legitimate government. When in
1870, the Germans in France attempted to violate that rule by ordering,
after the fall of the Emperor Napoleon, the courts of Nancy to administer
justice in the name of the "High German Powers occupying Alsace and
Lorraine," upon the ground that the exercise of their powers in the name
of French people and government was at least an implied recognition of
the Republic, the courts refused to obey and suspended their sitting.
Germany originally ordered the use of the name of "High German Powers
occupying Alsace and Lorraine," but later offered to allow use of the
name of the Emperor or a compromise. (Wheaton, International Law,
War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature,
"Law once established continues until changed by the some competent
legislative power. It is not change merely by change of sovereignty."
(Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9,
citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author
says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section
131): "There can no break or interregnum in law. From the time the law
comes into existence with the first-felt corporateness of a primitive people
it must last until the final disappearance of human society. Once created,
it persists until a change take place, and when changed it continues in
such changed condition until the next change, and so forever. Conquest
or colonization is impotent to bring law to an end; in spite of change of
constitution, the law continues unchanged until the new sovereign by
legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that
of the laws which create and confer upon them their jurisdiction, it is
evident that such laws, not being a political nature, are not abrogated by
a change of sovereignty, and continue in force "ex proprio vigore" unless
and until repealed by legislative acts. A proclamation that said laws and
courts are expressly continued is not necessary in order that they may
continue in force. Such proclamation, if made, is but a declaration of the
intention of respecting and not repealing those laws. Therefore, even
assuming that Japan had legally acquired sovereignty over these Islands,
which she had afterwards transferred to the so-called Republic of the
Philippines, and that the laws and the courts of these Islands had
become the courts of Japan, as the said courts of the laws creating and
conferring jurisdiction upon them have continued in force until now, it
necessarily follows that the same courts may continue exercising the
same jurisdiction over cases pending therein before the restoration of the
Commonwealth Government, unless and until they are abolished or the
laws creating and conferring jurisdiction upon them are repealed by the
said government. As a consequence, enabling laws or acts providing that
proceedings pending in one court be continued by or transferred to
another court, are not required by the mere change of government or
sovereignty. They are necessary only in case the former courts are
abolished or their jurisdiction so change that they can no longer continue
taking cognizance of the cases and proceedings commenced therein, in
order that the new courts or the courts having jurisdiction over said cases
may continue the proceedings. When the Spanish sovereignty in the
Philippine Islands ceased and the Islands came into the possession of
the United States, the "Audiencia" or Supreme Court was continued and
did not cease to exist, and proceeded to take cognizance of the actions
pending therein upon the cessation of the Spanish sovereignty until the
said "Audiencia" or Supreme Court was abolished, and the Supreme
Court created in Chapter II of Act No. 136 was substituted in lieu thereof.
And the Courts of First Instance of the Islands during the Spanish regime
continued taking cognizance of cases pending therein upon the change
of sovereignty, until section 65 of the same Act No. 136 abolished them
and created in its Chapter IV the present Courts of First Instance in
substitution of the former. Similarly, no enabling acts were enacted during
the Japanese occupation, but a mere proclamation or order that the
courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act
No. 136 was enacted abolishing the civil jurisdiction of the provost courts
created by the military government of occupation in the Philippines during
the Spanish-American War of 1898, the same section 78 provided for the
transfer of all civil actions then pending in the provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First
Instance, or Supreme Court having jurisdiction over them according to
law. And later on, when the criminal jurisdiction of provost courts in the
City of Manila was abolished by section 3 of Act No. 186, the same
section provided that criminal cases pending therein within the jurisdiction
of the municipal court created by Act No. 183 were transferred to the
latter.
That the present courts as the same courts which had been functioning
during the Japanese regime and, therefore, can continue the proceedings
in cases pending therein prior to the restoration of the Commonwealth of
the Philippines, is confirmed by Executive Order No. 37 which we have
already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals
created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have
heretofore been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court for final decision. . . ." In so providing,
the said Order considers that the Court of Appeals abolished was the
same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the
previous question, almost all, if not all, of the cases pending therein, or
which had theretofore (that is, up to March 10, 1945) been duly appealed
to said court, must have been cases coming from the Courts of First
Instance during the so-called Republic of the Philippines. If the Court of
Appeals abolished by the said Executive Order was not the same one
which had been functioning during the Republic, but that which had
existed up to the time of the Japanese occupation, it would have provided
that all the cases which had, prior to and up to that occupation on
January 2, 1942, been dully appealed to the said Court of Appeals shall
be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to
continue, to final judgment, the proceedings in cases, not of political
complexion, pending therein at the time of the restoration of the
Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First
Instance of Manila has jurisdiction to continue to final judgment the
proceedings in civil case No. 3012, which involves civil rights of the
parties under the laws of the Commonwealth Government, pending in
said court at the time of the restoration of the said Government; and that
the respondent judge of the court, having refused to act and continue him
does a duty resulting from his office as presiding judge of that
court, mandamus is the speedy and adequate remedy in the ordinary
course of law, especially taking into consideration the fact that the
question of jurisdiction herein involved does affect not only this particular
case, but many other cases now pending in all the courts of these
Islands.

In view of all the foregoing it is adjudged and decreed that a writ

of mandamus issue, directed to the respondent judge of the Court of First
Instance of Manila, ordering him to take cognizance of and continue to
final judgment the proceedings in civil case No. 3012 of said court. No
pronouncement as to costs. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36409 October 26, 1973
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LORETA GOZO, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor
General Jaime M. Lantin and Solicitor Norberto P. Eduardo for plaintiff-
appellee.
Jose T. Nery for defendant-appellant.
FERNANDO, J.:
Appellant seeks to set aside a judgment of the Court of First Instance of
Zambales, convicting her of a violation of an ordinance of Olongapo,
Zambales, requiring a permit from the municipal mayor for the
construction or erection of a building, as well as any modification,
alteration, repair or demolition thereof. She questions its validity, or at the
very least, its applicability to her, by invoking due process, 1 a contention
she would premise on what for her is the teaching of People v.
Fajardo. 2 If such a ground were far from being impressed with solidity,
she stands on quicksand when she would deny the applicability of the
ordinance to her, on the pretext that her house was constructed within
the naval base leased to the American armed forces. While yielding to
the well-settled doctrine that it does not thereby cease to be Philippine
territory, she would, in effect, seek to emasculate our sovereign rights by
the assertion that we cannot exercise therein administrative jurisdiction.
To state the proposition is to make patent how much it is tinged with
unorthodoxy. Clearly then, the lower court decision must be affirmed with
the sole modification that she is given thirty days from the finality of a
judgment to obtain a permit, failing which, she is required to demolish the
same.
The facts are undisputed. As set forth in the decision of the lower court:
"The accused bought a house and lot located inside the United States
Naval Reservation within the territorial jurisdiction of Olongapo City. She
demolished the house and built another one in its place, without a
building permit from the City Mayor of Olongapo City, because she was
told by one Ernesto Evalle, an assistant in the City Mayor's office, as well
as by her neighbors in the area, that such building permit was not
necessary for the construction of the house. On December 29, 1966,
Juan Malones, a building and lot inspector of the City Engineer's Office,
Olongapo City, together with Patrolman Ramon Macahilas of the
Olongapo City police force apprehended four carpenters working on the
house of the accused and they brought the carpenters to the Olongapo
City police headquarters for interrogation. ... After due investigation,
Loreta Gozo was charged with violation of Municipal Ordinance No. 14,
S. of 1964 with the City Fiscal's Office." 3 The City Court of Olongapo City
found her guilty of violating Municipal Ordinance No. 14, Series of 1964
and sentenced her to an imprisonment of one month as well as to pay the
costs. The Court of Instance of Zambales, on appeal, found her guilty on
the above facts of violating such municipal ordinance but would sentence
her merely to pay a fine of P200.00 and to demolish the house thus
erected. She elevated the case to the Court of Appeals but in her brief,
she would put in issue the validity of such an ordinance on constitutional
ground or at the very least its applicability to her in view of the location of
her dwelling within the naval base. Accordingly, the Court of Appeals, in a
resolution of January 29, 1973, noting the constitutional question raised,
certified the case to this Court.
There is, as mentioned in the opening paragraph of this petition, no
support in law for the stand taken by appellant.
1. It would be fruitless for her to assert that local government units are
devoid of authority to require building permits. This Court, from Switzer v.
Municipality of
Cebu, 4 decided in 1911, has sanctioned the validity of such measures. It
is much too late in the day to contend that such a requirement cannot be
validly imposed. Even appellant, justifiably concerned about the
unfavorable impression that could be created if she were to deny that
such competence is vested in municipal corporations and chartered
cities, had to concede in her brief: "If, at all; the questioned ordinance
may be predicated under the general welfare clause ... ." 5 Its scope is
wide, well-nigh all embracing, covering every aspect of public health,
public morals, public safety, and the well being and good order of the
community. 6
It goes without saying that such a power is subject to limitations.
Certainly, if its exercise is violative of any constitutional right, then its
validity could be impugned, or at the very least, its applicability to the
person adversely affected could be questioned. So much is settled law.
Apparently, appellant has adopted the view that a due process question
may indeed be raised in view of what for her is its oppressive character.
She is led to such a conclusion, relying on People v. Fajardo. 7 A more
careful scrutiny of such a decision would not have led her astray, for that
case is easily distinguishable. The facts as set forth in the opinion follow:
"It appears that on August 15, 1950, during the incumbency of defendant-
appellant Juan F. Fajardo as mayor of the municipality of Baao,
Camarines Sur, the municipal council passed the ordinance in question
providing as follows: "... 1. Any person or persons who will construct or
repair a building should, before constructing or repairing, obtain a written
permit from the Municipal Mayor. ... 2. A fee of not less than P2.00
should be charged for each building permit and P1.00 for each repair
permit issued. ... 3. [Penalty]-Any violation of the provisions of the above,
this ordinance, shall make the violator liable to pay a fine of not less than
P25 nor more than P50 or imprisonment of not less than 12 days nor
more than 24 days or both, at the discretion of the court. If said building
destroys the view of the Public Plaza or occupies any public property, it
shall be removed at the expense of the owner of the building or house. ...
." Four years later, after the term of appellant Fajardo as mayor had
expired, he and his son-in-law, appellant Babilonia, filed a written request
with the incumbent municipal mayor for a permit to construct a building
adjacent to their gasoline station on a parcel of land registered in
Fajardo's name, located along the national highway and separated from
the public plaza by a creek ... . On January 16, 1954, the request was
denied, for the reason among others that the proposed building would
destroy the view or beauty of the public plaza ... . On January 18, 1954,
defendants reiterated their request for a building permit ..., but again the
request was turned down by the mayor. Whereupon, appellants
proceeded with the construction of the building without a permit, because
they needed a place of residence very badly, their former house having
been destroyed by a typhoon and hitherto they had been living on leased
property." 8
Clearly then, the application of such an ordinance to Fajardo was
oppressive. A conviction therefore for a violation thereof both in the
justice of the peace court of Baao, Camarines Sur as well as in the Court
of First Instance could not be sustained. In this case, on the contrary,
appellant never bothered to comply with the ordinance. Perhaps aware of
such a crucial distinction, she would assert in her brief: "The evidence
showed that even if the accused were to secure a permit from the Mayor,
the same would not have been granted. To require the accused to obtain
a permit before constructing her house would be an exercise in futility.
The law will not require anyone to perform an impossibility, neither in law
or in fact: ... ." 9 It would be from her own version, at the very least then,
premature to anticipate such an adverse result, and thus to condemn an
ordinance which certainly lends itself to an interpretation that is neither
oppressive, unfair, or unreasonable. That kind of interpretation suffices to
remove any possible question of its validity, as was expressly announced
in Primicias v. Fugoso. 10 So it appears from this portion of the opinion of
Justice Feria, speaking for the Court: "Said provision is susceptible of two
constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for the holding of
a lawful assembly or meeting, parade, or procession in the streets and
other public places of the City of Manila; and the other is that the
applicant has the right to a permit which shall be granted by the Mayor,
subject only to the latter's reasonable discretion to determine or specify
the streets or public places to be used for the purpose, with a view to
prevent confusion by overlapping, to secure convenient use of the streets
and public places by others, and to provide adequate and proper policing
to minimize the risk of disorder. After a mature deliberation, we have
arrived at the conclusion that we must adopt the second construction,
that is, construe the provisions of the said ordinance to mean that it does
not confer upon the Mayor the power to refuse to grant the permit, but
only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the
meeting may be held." 11 If, in a case affecting such a preferred freedom
as the right to assembly, this Court could construe an ordinance of the
City of Manila so as to avoid offending against a constitutional provision,
there is nothing to preclude it from a similar mode of approach in order to
show the lack of merit of an attack against an ordinance requiring a
permit. Appellant cannot therefore take comfort from any broad statement
in the Fajardo opinion, which incidentally is taken out of context,
considering the admitted oppressive application of the challenged
measure in that litigation. So much then for the contention that she could
not have been validly convicted for a violation of such ordinance. Nor
should it be forgotten that she did suffer the same fate twice, once from
the City Court and thereafter from the Court of First Instance. The reason
is obvious.Such ordinance applies to her.
2. Much less is a reversal indicated because of the alleged absence of
the rather novel concept of administrative jurisdiction on the part of
Olongapo City. Nor is novelty the only thing that may be said against it.
Far worse is the assumption at war with controlling and authoritative
doctrines that the mere existence of military or naval bases of a foreign
country cuts deeply into the power to govern. Two leading cases may be
cited to show how offensive is such thinking to the juristic concept of
sovereignty, People v. Acierto, 12 and Reagan v. Commissioner of
Internal Revenue. 13 As was so emphatically set forth by Justice Tuason
in Acierto: "By the Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise jurisdiction
in certain cases. The consent was given purely as a matter of comity,
courtesy, or expediency. The Philippine Government has not abdicated
its sovereignty over the bases as part of the Philippine territory or
divested itself completely of jurisdiction over offenses committed therein.
Under the terms of the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The Philippine
Government retains not only jurisdictional rights not granted, but also all
such ceded rights as the United States Military authorities for reasons of
their own decline to make use of. The first proposition is implied from the
fact of Philippine sovereignty over the bases; the second from the
express provisions of the treaty." 14 There was a reiteration of such a
view in Reagan. Thus: "Nothing is better settled than that the Philippines
being independent and sovereign, its authority may be exercised over its
entire domain. There is no portion thereof that is beyond its power. Within
its limits, its decrees are supreme, its commands paramount. Its laws
govern therein, and everyone to whom it applies must submit to its terms.
That is the extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were not thus, there is a
diminution of sovereignty." 15 Then came this paragraph dealing with the
principle of auto-limitation: "It is to be admitted any state may, by its
consent, express or implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation, which, in
the succinct language of Jellinek, "is the property of a state-force due to
which it has the exclusive capacity of legal self-determination and self-
restriction." A state then, if it chooses to, may refrain from the exercise of
what otherwise is illimitable competence." 16 The opinion was at pains to
point out though that even then, there is at the most diminution of
jurisdictional rights, not its disappearance. The words employed follow:
"Its laws may as to some persons found within its territory no longer
control. Nor does the matter end there. It is not precluded from allowing
another power to participate in the exercise of jurisdictional right over
certain portions of its territory. If it does so, it by no means follows that
such areas become impressed with an alien character. They retain their
status as native soil. They are still subject to its authority. Its jurisdiction
may be diminished, but it does not disappear. So it is with the bases
under lease to the American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be foreign territory." 17
Can there be anything clearer, therefore, than that only a turnabout,
unwarranted and unjustified, from what is settled and orthodox law can
lend the slightest degree of plausibility to the contention of absence of
administrative jurisdiction. If it were otherwise, what was aptly referred to
by Justice Tuason "as a matter of comity, courtesy, or expediency"
becomes one of obeisance and submission. If on a concern purely
domestic in its implications, devoid of any connection with national
security, the Military-Bases Agreement could be thus interpreted, then
sovereignty indeed becomes a mockery and an illusion. Nor does
appellant's thesis rest on less shaky foundation by the mere fact that
Acierto and Reagan dealt with the competence of the national
government, while what is sought to be emasculated in this case is the
so-called administrative jurisdiction of a municipal corporation. Within the
limits of its territory, whatever statutory powers are vested upon it may be
validly exercised. Any residual authority and therein conferred, whether
expressly or impliedly, belongs to the national government, not to an
alien country. What is even more to be deplored in this stand of appellant
is that no such claim is made by the American naval authorities, not that
it would do them any good if it were so asserted. To quote from Acierto
anew: "The carrying out of the provisions of the Bases Agreement is the
concern of the contracting parties alone. Whether, therefore, a given
case which by the treaty comes within the United States jurisdiction
should be transferred to the Philippine authorities is a matter about which
the accused has nothing to do or say. In other words, the rights granted
to the United States by the treaty insure solely to that country and can not
be raised by the offender." 18 If an accused would suffer from such
disability, even if the American armed forces were the beneficiary of a
treaty privilege, what is there for appellant to take hold of when there is
absolutely no showing of any alleged grant of what is quaintly referred to
as administrative jurisdiction? That is all, and it is more than enough, to
make manifest the futility of seeking a reversal.
WHEREFORE, the appealed decision of November 11, 1969 is affirmed
insofar as it found the accused, Loreta Gozo, guilty beyond reasonable
doubt of a violation of Municipal Ordinance No. 14, series of 1964 and
sentencing her to pay a fine of P200.00 with subsidiary imprisonment in
case of insolvency, and modified insofar as she is required to demolish
the house that is the subject matter of the case, she being given a period
of thirty days from the finality of this decision within which to obtain the
required permit. Only upon her failure to do so will that portion of the
appealed decision requiringdemolition be enforced. Costs against the
accused.
Makalintal, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and
Esguerra, JJ., concur.

Barredo, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-409 January 30, 1947
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpus filed by Anastacio
Laurel and based on a theory that a Filipino citizen who adhered
to the enemy giving the latter aid and comfort during the
Japanese occupation cannot be prosecuted for the crime of
treason defined and penalized by article 114 of the Revised Penal
Code, for the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the correlative
allegiance of Filipino citizens thereto was then suspended; and
(2) that there was a change of sovereignty over these Islands
upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which
consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and
temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives, and which
consists in the obedience to the laws of the government or
sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429; Secretary
of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75
Phil., 285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the
supreme power which governs a body politic or society which
constitute the state) must be distinguished from the exercise of
the rights inherent thereto, and may be destroyed, or severed and
transferred to another, but it cannot be suspended because the
existence of sovereignty cannot be suspended without putting it
out of existence or divesting the possessor thereof at least during
the so-called period of suspension; that what may be suspended
is the exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the
sovereignty of the legitimate government in a territory occupied
by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such
thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United
State was suspended in Castine, set forth in the decision in the
case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham
vs. Valdez Tan Keh and Dizon and Peralta vs. Director of
Prisons, supra, in connection with the question, not of
sovereignty, but of the existence of a government de facto therein
and its power to promulgate rules and laws in the occupied
territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military
occupation of an enemy territory does not transfer the sovereignty
to the occupant; that, in the first case, the word "sovereignty"
used therein should be construed to mean the exercise of the
rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it
cannot be suspended without putting it out of existence or
divesting said government thereof; and that in the second case,
that is, if the said conclusion or doctrine refers to the suspension
of the sovereignty itself, it has become obsolete after the adoption
of the Hague Regulations in 1907, and therefore it can not be
applied to the present case;
Considering that even adopting the words "temporarily
allegiance," repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the territory
occupied by the enemy toward the military government
established over them, such allegiance may, at most, be
considered similar to the temporary allegiance which a foreigner
owes to the government or sovereign of the territory wherein he
resides in return for the protection he receives as above
described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a
citizen or subject of a government or sovereign may be
prosecuted for and convicted of treason committed in a foreign
country, in the same way an inhabitant of a territory occupied by
the military forces of the enemy may commit treason against his
own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if
the allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in return for
the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one
hand, ipso facto acquire the citizenship thereof since he has
enforce public order and regulate the social and commercial life,
in return for the protection he receives, and would, on the other
hand, lose his original citizenship, because he would not be
bound to obey most of the laws of his own government or
sovereign, and would not receive, while in a foreign country, the
protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise
of the rights of sovereignty by the legitimate government in the
territory occupied by the enemy military forces, because the
authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the
political laws which prescribe the reciprocal rights, duties and
obligation of government and citizens, are suspended or in
abeyance during military occupation (Co Kim cham vs. Valdez
Tan Keh and dizon, supra), for the only reason that as they
exclusively bear relation to the ousted legitimate government,
they are inoperative or not applicable to the government
established by the occupant; that the crimes against national
security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as
well as those against public order, such as rebellion, sedition, and
disloyalty, illegal possession of firearms, which are of political
complexion because they bear relation to, and are penalized by
our Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable as
against the occupant, because they can not be committed against
the latter (Peralta vs.Director of Prisons, supra); and that, while
the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the
invader for the reason above stated, unless adopted by him, were
also inoperative as against the ousted government for the latter
was not responsible for the preservation of the public order in the
occupied territory, yet article 114 of the said Revised Penal Code,
was applicable to treason committed against the national security
of the legitimate government, because the inhabitants of the
occupied territory were still bound by their allegiance to the latter
during the enemy occupation;
Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate
the social and commercial life of the country, he has,
nevertheless, all the powers of de facto government and may, at
his pleasure, either change the existing laws or make new ones
when the exigencies of the military service demand such action,
that is, when it is necessary for the occupier to do so for the
control of the country and the protection of his army, subject to
the restrictions or limitations imposed by the Hague Regulations,
the usages established by civilized nations, the laws of humanity
and the requirements of public conscience (Peralta vs. Director of
Prisons, supra; 1940 United States Rules of Land Warfare 76,
77); and that, consequently, all acts of the military occupant
dictated within these limitations are obligatory upon the
inhabitants of the territory, who are bound to obey them, and the
laws of the legitimate government which have not been adopted,
as well and those which, though continued in force, are in conflict
with such laws and orders of the occupier, shall be considered as
suspended or not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering to
the enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to repeal
or suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid
and comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular
government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and
comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and
weak nations or states, and would be repugnant to the laws of
humanity and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the Quisling inhabitants
of the occupied territory to fight against their own government
without the latter incurring the risk of being prosecuted for
treason, and even compel those who are not aid them in their
military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus
deprive them all of their own independence or sovereignty —
such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government
of the Philippines defined and penalized in article 114 of the
Penal Code, though originally intended to be a crime against said
government as then organized by authority of the sovereign
people of the United States, exercised through their authorized
representative, the Congress and the President of the United
States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section
1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All
laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such
laws to the Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the Government
and corresponding officials under this constitution;
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in
approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that
"Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late
President Roosevelt in one of his messages to Congress said,
among others, "As I stated on August 12, 1943, the United States
in practice regards the Philippines as having now the status as a
government of other independent nations — in fact all the
attributes of complete and respected nationhood" (Congressional
Record, Vol. 29, part 6, page 8173); and that it is a principle
upheld by the Supreme Court of the United States in many cases,
among them in the case of Jones vs. United States (137 U.S.,
202; 34 Law. ed., 691, 696) that the question of sovereignty is "a
purely political question, the determination of which by the
legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens
and subjects of the country.
Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States "All citizens of
the Philippines shall owe allegiance to the United States", was
one of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or
are not inconsistent with said sovereignty, in the same way that
the people of each State of the Union preserves its own
sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason may
be committed against the Federal as well as against the State
Government, in the same way treason may have been committed
during the Japanese occupation against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government
from Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of
our Constitution provides that "The government established by
this constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of
Philippine independence, the Commonwealth of the Philippines
shall thenceforth be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more

extended opinion, to deny the petitioner's petition, as it is hereby
denied, for the reasons above set forth and for others to be stated
in the said opinion, without prejudice to concurring opinion
therein, if any. Messrs. Justices Paras and Hontiveros dissent in
a separate opinion. Mr. justice Perfecto concurs in a separate
opinion.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for
respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief
of Staff and the General Court Martial of the Philippine Army, be
commanded to desist from further proceedings in the trial of petitioners
before that body. Preliminary injunction having been denied by us and
the General Court Martial having gone ahead with the trial, which
eventually resulted in the acquittal of one of the defendants, Ramon
Ruffy, the dismissal of the case as to another, Victoriano Dinglasan, and
the conviction of Jose L. Garcia, Prudente M. Francisco, Dominador
Adeva and Andres Fortus, the last-named four petitioners now seek in
their memorandum to convert the petition into one for certiorari, with the
prayer that the records of the proceedings before the General Court
Martial be ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to
military law at the time the offense for which they had been placed on trial
was committed. In their memorandum they have raised an additional
question of law — that the 93d Article of War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine
Army, the Philippine Constabulary, and/or with guerrilla organizations will
presently be made. This outline is based on allegations in the petition and
the answer, and on exhibits attached thereto and to the parties'
memoranda, exhibits which were offered in the course of the oral
argument and admitted without objection. The said exhibits are public
documents certified by the officials who had them in custody in their
official capacity. They are presumed to be authentic, as we have no
doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon
Ruffy was the Provincial Commander, Prudente M. Francisco, a junior
officer, and Andres Fortus, a corporal, all of the Philippine Constabulary
garrison stationed in Mindoro. When, on February 27, 1942, the
Japanese forces landed in Mindoro, Major Ruffy retreated to the
mountains instead of surrendering to the enemy, disbanded his company,
and organized and led a guerrilla outfit known as Bolo Combat team of
Bolo Area. Lieutenant Francisco, Corporal Fortus and Jose L. Garcia, the
last then a civilian joined Major Ruffy's organization towards the latter
part of 1942, while Dominador Adeva and Victoriano Dinglasan, then
likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant
colonel of the Philippine Army, also took to the hills of Panay and led the
operation of the 6th Military District, one of the districts into which the
Philippine Army had been divided before the war. About November,
1942, Colonel Peralta succeeded in contacting the General Headquarters
of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the
Southwest Pacific Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District
Colonel Peralta had extended its sphere of operation to comprise
Mindoro and Marinduque, and had, on January 2, 1943, named Major
Ruffy as Acting Commander for those two provinces and Commanding
Officer of the 3rd Battalion, 66 Infantry 61st Division, Philippine Corps.
After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of
Special Orders No. 99, dated November 2, 1943, and signed by Enrique
L. Jurado, Major, OSE, Commanding, was assigned as S-3 in the Bolo
Area. Major, later Lieut. Col., Jurado, it should be noted, had been
dispatched by the 6th Military District to Mindoro to assume operational
control supervision over the Bolo Area unit and to make and direct the
necessary report to the Headquarters, 6th Military District, in Panay. On
April 26, 1944, by General Orders No. 40 of the 6th Military District, 2d
Lieutenant Francisco was promoted to the rank of 1st Lieutenant
(Brevet), effective April 15, 1944, subject to approval by the President of
the Philippines, and was re-assigned to the Bolo Area. As to Andres
Fortus he was assigned to the same Bolo Area as probationary 3d
lieutenant for two-month probationary training, by the Headquarters of the
6th Military District, as per Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District,
dated January 1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of
Staff, Jose L. Garcia and Dominador Adeva were appointed 3d
lieutenants, infantry as of December 31, 1942. Garcia later was promoted
to the rank of captain, effective March 15, 1943, as per Special Orders
No. 82, issued in the field, 6th Military District, and dated August 28,
1943. On May 24, 1943, Jose L. Garcia took his oath before Captain
Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion, 66th
Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L.
Jurado to be Commanding Officer of the Bolo Combat Team in Mindoro
and to undertake other missions of Military character. Pursuant to
instructions, Colonel Jurado on November 2, 1943, assigned Major Ruffy
as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva
and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99
dated November 2, 1943. In a memorandum of Colonel Jurado for Major
Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had
been given P5,000 for palay and Lieut. Francisco P9,000, P5,000 for
palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel
Jurado on June 8, 1944: Major Ruffy was relieved of his assignment as
Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was
put in Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain
allegedly by the petitioners. After the commission of this crime, the
petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now
being contested.
On July 26, 1941, the President of the Untied States issued a military
order the pertinent paragraph of which stated: ". . . as Commander in
Chief of the Army and Navy of the United States, I hereby call and order
into the service of the armed forces of the United States Army, for the
period of the existing emergency, and place under the command of the
general officer, United States Army, to be designated by the Secretary of
War, from time to time, all of the organized military forces of the
Government of the Commonwealth." Following the issuance of President
Roosevelt's order General Douglas MacArthur was appointed
Commanding General of the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that
"by the enemy occupation of the Philippines, the National Defense Act
and all laws and regulations creating and governing the existence of the
Philippine Army including the Articles of War, were suspended and in
abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's
Military Law and Precedents and the subsequent paragraph which has
been omitted furnish a complete answer to petitioner's contention of the
Philippines by Japanese forces, the officers and men of the Philippine
Army did not cease to be fully in the service, though in a measure,' only
in a measure, they were not subject to the military jurisdiction, if they
were not active duty. In the latter case, like officers and soldiers on leave
of absence or held as prisoners of war, they could not be held guilty of a
breach of the discipline of the command or of a neglect of duty, or
disobedience of orders, or mutiny, or subject to a military trial therefor;
but for an act unbecoming an officer and a gentleman, or an act which
constitutes an offense of the class specified in the 95th Article of War,
they may in general be legally held subject to military jurisdiction and trial.
"So a prisoner of war, though not subject, while held by the enemy, to the
discipline of his own army, would, when exchanged of paroled, be not
exempt from liability for such offenses as criminal acts or injuriuos
conduct committed during his captivity against other officers or soldiers in
the same status." (Winthrop's Military Law and Precedents, 2d Edition,
pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or
affecting political relations are considered superseded or in abeyance
during the military occupation, is intended for the governing of the civil
inhabitants of the occupied territory. It is not intended for and does not
bind the enemies in arms. This is self-evident from the very nature of
things. The paradox of a contrary ruling should readily manifest itself.
Under the petitioner's theory the forces of resistance operating in an
occupied territory would have to abide by the outlawing of their own
existence. They would be stripped of the very life-blood of an army, the
right and the ability to maintain order and discipline within the
organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not
profit the petitioner's who were former members of the Philippine
Constabulary any more than does the rule of war or international law they
cite. The fall of Bataan and Corregidor did not end the war. It did not,
legally or otherwise, keep the United States and the Commonwealth of
the Philippines from organizing a new army, regular or irregular, out of
new men and men in the old service who had refused to surrender or
who having surrendered, had decided to carry on the fight through other
diverse means and methods. The fall of Corregidor and Bataan just
marked the beginning of the gigantic preparation for the gigantic drive
that was to fight its way to and beyond the Philippines in fulfillment of
General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the subsequent
liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and
the Philippine Constabulary, Captain Francisco and Lieutenant Fortus as
well as Major Garcia and Lieutenant Adeva were subject to military
jurisdiction.
The 2d Article of War defines and enumerates the persons subject to
military law as follows:
Art. 2. Persons Subject to Military Law. — The following persons
are subject to these articles and shall be understood as included
in the term "any person subject to military law" or "persons
subject to military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers
belonging to the Regular Force of the Philippine Army; all
reservists, from the dates of their call to active duty and while on
such active duty; all trainees undergoing military instructions; and
all other persons lawfully called, drafted, or order to obey the
same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or
serving with the Army of the Philippines in the field in time of war
or when martial law is declared though not otherwise subject to
these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of
the clause in sub-paragraph (a); "and all other persons lawfully called,
drafted, or ordered into, or to duty for training in, the said service, from
the dates they are required by the terms of the call, draft, or order to obey
the same." By their acceptance of appointments as officers in the Bolo
Area from the General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to the Articles of
War. The Bolo Area, as has been seen, was a contigent of the 6th
Military District which, as has also been pointed out, had been
recognized by and placed under the operational control of the United
States Army in the Southwest Pacific. The Bolo Area received supplies
and funds for the salaries of its officers and men from the Southwest
Pacific Command. As officers in the Bolo Area and the 6th Military
District, the petitioners operated under the orders of duly established and
duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect
the military status of guerrillas who had been called into the service of the
Philippine Army. If the invaders refused to look upon guerrillas, without
distinctions, as legitimate troops, that did not stop the guerillas who had
been inducted into the service of the Philippine Army from being
component parts thereof, bound to obey military status of guerrillas was
to be judged not by the concept of the army of the country for which they
fought.
The constitutionality of the 93d Article of War is assailed. This article
ordains "that any person subject to military law who commits murder in
time of was shall suffer death or imprisonment for life, as the court martial
may direct." It is argued that since "no review is provided by that law to
be made by the Supreme Court, irrespective of whether the punishment
is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that
"the National Assembly may not deprive the Supreme Court of its original
jurisdiction over all criminal cases in which the penalty imposed is death
or life imprisonment."
We think the petitioners are in error. This error arose from failure to
perceive the nature of courts martial and the sources of the authority for
their creation.
Courts martial are agencies of executive character, and one of the
authorities "for the ordering of courts martial has been held to be
attached to the constitutional functions of the President as Commander in
Chief, independently of legislation." (Winthrop's Military Law and
Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a portion
of the judiciary. "The Supreme Court of the United States referring to the
provisions of the Constitution authorizing Congress to provide for the
government of the army, excepting military offenses from the civil
jurisdiction, and making the President Commander in Chief, observes as
follows: "These provisions show that Congress has the power to provide
for the trial and punishment of military and naval offenses in the manner
then and now practiced by civilized nations, and that the power to do so
is given without any connection between it and the 3d Article of the
United States; indeed that the two powers are entirely independent of
each other."

"Not belonging to the judicial branch of the government, it follows that

courts-martial must pertain to the executive department; and they are in
fact simply instrumentalities of the executive power, provided by
Congress for the President as Commander in Chief, to aid him in properly
commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives." (Winthrop's Military Law and Precedents, 2d Edition, p.
49.) Of equal interest Clode, 2 M. F., 361, says of these courts in the
British law: "It must never be lost sight of that the only legitimate object of
military tribunals is to aid the Crown to maintain the discipline and
government of the Army." (Footnote No. 24, p. 49, Winthrop's Military
Law and Precedents, 2d Edition.)

Our conclusion, therefore, is that the petition has no merit and that it
should be dismissed with costs. It is so ordered.

Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla,
JJ., concur.