G.R. No.

86344 December 21, 1989

REP. RAUL A. DAZA, petitioner,

vs.
REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S CAPACITY AS SECRETARY
OF THE COMMISSION ON APPOINTMENTS, respondent.

CRUZ, J.:

After the congressional elections of May 11, 1987, the House of Representatives proportionally apportioned its
twelve seats in the Commission on Appointments among the several political parties represented in that
chamber, including the Lakas ng Bansa, the PDP-Laban, the NP-Unido, the Liberal Party, and the KBL, in
accordance with Article VI, Section 18, of the Constitution. Petitioner Raul A. Daza was among those chosen
and was listed as a representative of the Liberal Party. 1

On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized, resulting in a political
realignment in the House of Representatives. Twenty four members of the Liberal Party formally resigned from
that party and joined the LDP, thereby swelling its number to 159 and correspondingly reducing their former
party to only 17 members. 2

On the basis of this development, the House of Representatives revised its representation in the Commission on
Appointments by withdrawing the seat occupied by the petitioner and giving this to the newly-formed LDP. On
December 5, 1988, the chamber elected a new set of representatives consisting of the original members except
the petitioner and including therein respondent Luis C. Singson as the additional member from the LDP. 3

The petitioner came to this Court on January 13, 1989, to challenge his removal from the Commission on
Appointments and the assumption of his seat by the respondent. Acting initially on his petition for prohibition and
injunction with preliminary injunction, we issued a temporary restraining order that same day to prevent both the
petitioner and the respondent from serving in the Commission on Appointments.4

Briefly stated, the contention of the petitioner is that he cannot be removed from the Commission on
Appointments because his election thereto is permanent under the doctrine announced in Cunanan v. Tan. 5 His
claim is that the reorganization of the House representation in the said body is not based on a permanent
political realignment because the LDP is not a duly registered political party and has not yet attained political
stability.

For his part, the respondent argues that the question raised by the petitioner is political in nature and so beyond
the jurisdiction of this Court. He also maintains that he has been improperly impleaded, the real party respondent
being the House of Representatives which changed its representation in the Commission on Appointments and
removed the petitioner. Finally, he stresses that nowhere in the Constitution is it required that the political party
be registered to be entitled to proportional representation in the Commission on Appointments.

In addition to the pleadings filed by the parties, a Comment was submitted by the Solicitor General as amicus
curiae in compliance with an order from the Court.

At the core of this controversy is Article VI, Section 18, of the Constitution providing as follows:

Sec. 18. There shall be a Commission on Appointments consisting of the President of the
Senate, as ex officio Chairman, twelve Senators and twelve Members of the House of
Representatives, elected by each House on the basis of proportional representation from the
political parties and parties or organizations registered under the party-list system represented
therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission
shall act on all appointments submitted to it within thirty session days of the Congress from their
submission. The Commission shall rule by a majority vote of all the Members.

Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's assertion, the Court has the
competence to act on the matter at bar. Our finding is that what is before us is not a discretionary act of the
House of Representatives that may not be reviewed by us because it is political in nature. What is involved here
is the legality, not the wisdom, of the act of that chamber in removing the petitioner from the Commission on
Appointments. That is not a political question because, as Chief Justice Concepcion explained in Tanada v.
Cuenco. 6

... the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, ... it refers "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.

In the aforementioned case, the Court was asked by the petitioners therein to annul the election of two members
of the Senate Electoral Tribunal of that chamber, on the ground that they had not been validly nominated. The
Senate then consisted of 23 members from the Nacionalista Party and the petitioner as the lone member of the
Citizens Party. Senator Lorenzo M. Tanada nominated only himself as the minority representative in the
Tribunal, whereupon the majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from its own
ranks, to complete the nine-man composition of the Tribunal as provided for in the 1935 Constitution. The
petitioner came to this Court, contending that under Article VI, Section 11, of that Charter, the six legislative
members of the Tribunal were to be chosen by the Senate, "three upon nomination of the party having the
largest number of votes and three of the party having the second largest number of votes therein." As the
majority party in the Senate, the Nacionalista Party could nominate only three members and could not also fill
the other two seats pertaining to the minority.

By way of special and affirmative defenses, the respondents contended inter alia that the subject of the petition
was an internal matter that only the Senate could resolve. The Court rejected this argument, holding that what
was involved was not the wisdom of the Senate in choosing the respondents but the legality of the choice in light
of the requirement of the Constitution. The petitioners were questioning the manner of filling the Tribunal, not the
discretion of the Senate in doing so. The Court held that this was a justiciable and not a political question, thus:

Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by Senator Primicias-member and
spokesman of the party having the largest number of votes in the Senate-behalf of its Committee
on Rules, contravenes the constitutional mandate that said members of the Senate Electoral
Tribunal shall be chosen "upon nomination ... of the party having the second largest number of
votes" in the Senate and hence, is null and void. The Senate is not clothed with "full discretionary
authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power
thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is
clearly within the legitimate province of the judicial department to pass upon the validity of the
proceeding in connection therewith.

... whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a
given situation, the judiciary may determine whether a particular election has been in conformity
with such statute, and particularly, whether such statute has been applied in a way to deny or
transgress on constitutional or statutory rights ...' (1 6 C.J.S., 439; emphasis supplied)

It is, therefore, our opinion that we have, not only jurisdiction but also the duty, to consider and
determine the principal issue raised by the parties herein."

Although not specifically discussed, the same disposition was made in Cunanan v. Tan as it likewise involved
the manner or legality of the organization of the Commission on Appointments, not the wisdom or discretion of
the House in the choice of its representatives.

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. Article VII, Section 1, of the Constitution clearly provides:

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.

The respondent's contention that he has been improperly impleaded is even less persuasive. While he may be
technically correct in arguing that it is not he who caused the petitioner's removal, we feel that this objection is
also not an insuperable obstacle to the resolution of this controversy. We may, for one thing, treat this
proceeding as a petition for quo warranto as the petitioner is actually questioning the respondent's right to sit as
a member of the Commission on Appointments. For another, we have held as early as in the Emergency Powers
Cases 7 that where serious constitutional questions are involved, "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." The same policy has since then been consistently followed by the Court, as in Gonzales v.
Commission on Elections, 8 where we held through Chief Justice Fernando:

In the course of the deliberations, a serious procedural objection was raised by five members of
the Court. It is their view that respondent Commission on Elections not being sought to be
restrained from performing any specific act, this suit cannot be characterized as other than a
mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much
to recommend it. Nonetheless, a majority would affirm the original stand that under the
circumstances, it could still rightfully be treated as a petition for prohibition.

The language of justice Laurel fits the case: "All await the decision of this Court on the
constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality ... be now resolved.' It may likewise be added that the exceptional character of
the situation that confronts us, the paramount public interest, and the undeniable necessity for
ruling, the national elections being barely six months away, reinforce our stand. It would appear
undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act
on the matter.

Coming now to the more crucial question, the Court notes that both the petitioner and the respondent are
invoking the case of Cunanan v. Tan to support their respective positions. It is best, therefore, to make a quick
review of that case for a proper disposition of this one.

In the election for the House of Representatives held in 1961, 72 seats were won by the Nacionalista Party, 29
by the Liberal Party and 1 by an independent. Accordingly, the representation of the chamber in the Commission
on Appointments was apportioned to 8 members from the Nacionalista Party and 4 from the Liberal Party.
Subsequently, 25 members of the Nacionalista Party, professing discontent over the House leadership, made
common cause with the Liberal Party and formed what was called the Allied Majority to install a new Speaker
and reorganize the chamber. Included in this reorganization was the House representation in the Commission on
appointments where three of the Nacionalista congressmen originally chosen were displaced by three of their
party colleagues who had joined the Allied Majority.

Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of the Reforestration Administration
was rejected by the Commission on Appointments as thus reorganized and respondent Jorge Tan, Jr. was
thereafter designated in his place. Cunanan then came to this Court, contending that the rejection of his
appointment was null and void because the Commission itself was invalidly constituted.

The Court agreed. It noted that the Allied Majority was a merely temporary combination as the Nacionalista
defectors had not disaffiliated from their party and permanently joined the new political group. Officially, they
were still members of the Nacionalista Party. The reorganization of the Commission on Appointments was
invalid because it was not based on the proportional representation of the political parties in the House of
Representatives as required by the Constitution. The Court held:

... In other words, a shifting of votes at a given time, even if du to arrangements of a more or less
temporary nature, like the one that has led to the formation of the so-called "Allied Majority," does
not suffice to authorize a reorganization of the membership of the Commission for said House.
Otherwise the Commission on Appointments may have to be reorganized as often as votes shift
from one side to another in the House. The framers of our Constitution could not have intended
 to thus place a constitutional organ, like the Commission on Appointments, at the mercy of each
House of Congress.

The petitioner vigorously argues that the LDP is not the permanent political party contemplated in the
Constitution because it has not been registered in accordance with Article IX-B, Section 2(5), in relation to the
other provisions of the Constitution. He stresses that the so-called party has not yet achieved stability and
suggests it might be no different from several other political groups that have died "a-bornin'," like the LINA, or
have subsequently floundered, like the UNIDO.

The respondent also cites Cunanan but from a different viewpoint. According to him, that case expressly allows
reorganization at any time to reflect changes in the political alignments in Congress, provided only that such
changes are permanent. The creation of the LDP constituting the bulk of the former PDP-Laban and to which no
less than 24 Liberal congressmen had transferred was a permanent change. That change fully justified his
designation to the Commission on Appointments after the reduction of the LP representation therein. Thus, the
Court held:

Upon the other hand, the constitutional provision to the effect that "there shall be a Commission
on Appointments consisting of twelve (12) Senators and twelve (12) members of the House of
Representatives elected by each House, respectively, on the basis of proportional
REPRESENTATION OF THE POLITICAL PARTIES THEREIN," necessarily connotes the
authority of each House of Congress to see to it that this requirement is duly complied with. As a
consequence, it may take appropriate measures, not only upon the initial organization of the
Commission, but also, subsequently thereto. If by reason of successful election protests against
members of a House, or of their expulsion from the political party to which they belonged and/or
of their affiliation with another political party, the ratio in the representation of the political parties
in the House is materially changed, the House is clothed with authority to declare vacant the
necessary number of seats in the Commission on Appointments held by members of said House
belonging to the political party adversely affected by the change and then fill said vacancies in
conformity with the Constitution.

In the course of the spirited debate on this matter between the petitioner and the respondent (who was
supported by the Solicitor General) an important development has supervened to considerably simplify the
present controversy. The petitioner, to repeat, bases his argument heavily on the non-registration of the LDP
which, he claims has not provided the permanent political realignment to justify the questioned reorganization.
As he insists:

(c) Assuming that the so-called new coalesced majority is actually the LDP itself,
then the proposed reorganization is likewise illegal and ineffectual, because the
LDP, not being a duly registered political party, is not entitled to the "rights and
privileges granted by law to political parties' (See. 160, BP No. 881), and
therefore cannot legally claim the right to be considered in determining the
required proportional representation of political parties in the House of
Representatives. 9

xxx xxx xxx

... the clear constitutional intent behind Section 18, Article VI, of the 1987 Constitution, is to give
the right of representation in the Commission on Appointment only to political parties who are
duly registered with the Comelec. 10

On November 23, 1989, however, that argument boomeranged against the petitioner. On that date, the
Commission on Elections in an en banc resolution affirmed the resolution of its First Division dated August 28,
1989, granting the petition of the LDP for registration as a political party. 11 This has taken the wind out of the
sails of the petitioner, so to speak, and he must now limp to shore as best he can.

The petitioner's contention that, even if registered, the party must still pass the test of time to prove its
permanence is not acceptable. Under this theory, a registered party obtaining the majority of the seats in the
House of Representatives (or the Senate) would still not be entitled to representation in the Commission on
Appointments as long as it was organized only recently and has not yet "aged." The Liberal Party itself would fall
in such a category. That party was created in December 1945 by a faction of the Nacionalista Party that seceded
therefrom to support Manuel A. Roxas's bid for the Presidency of the Philippines in the election held on April 23,
1946. 12 The Liberal Party won. At that time it was only four months old. Yet no question was raised as to its right
to be represented in the Commission on Appointments and in the Electoral Tribunals by virtue of its status as the
majority party in both chambers of the Congress.

The LDP has been in existence for more than one year now. It now has 157 members in the House of
Representatives and 6 members in the Senate. Its titular head is no less than the President of the Philippines
and its President is Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V. Mitra. It is true
that there have been, and there still are, some internal disagreements among its members, but these are to be
expected in any political organization, especially if it is democratic in structure. In fact even the monolithic
Communist Party in a number of socialist states has undergone similar dissension, and even upheavals. But it
surely cannot be considered still temporary because of such discord.

If the petitioner's argument were to be pursued, the 157 members of the LDP in the House of Representatives
would have to be denied representation in the Commission on Appointments and, for that matter, also the
Electoral Tribunal. By the same token, the KBL, which the petitioner says is now "history only," should also be
written off. The independents also cannot be represented because they belong to no political party. That would
virtually leave the Liberal Party only with all of its seventeen members to claim all the twelve seats of the House
of Representatives in the Commission on Appointments and the six legislative seats in the House Electoral
Tribunal.

It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on
Appointments, it did not express any objection. 13 Inconsistently, the petitioner is now opposed to the withdrawal
from it of one seat although its original number has been cut by more than half.

As for the other condition suggested by the petitioner, to wit, that the party must survive in a general
congressional election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that
as it now commands the biggest following in the House of Representatives, the party has not only survived but in
fact prevailed. At any rate, that test was never laid down in Cunanan.

To summarize, then, we hold, in view of the foregoing considerations, that the issue presented to us is justiciable
rather political, involving as it does the legality and not the wisdom of the act complained of, or the manner of
filling the Commission on Appointments as prescribed by the Constitution. Even if the question were political in
nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by
Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of
discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the
government. As for the alleged technical flaw in the designation of the party respondent, assuming the existence
of such a defect, the same may be brushed aside, conformably to existing doctrine, so that the important
constitutional issue raised may be addressed. Lastly, we resolve that issue in favor of the authority of the House
of Representatives to change its representation in the Commission on Appointments to reflect at any time the
changes that may transpire in the political alignments of its membership. It is understood that such changes
must be permanent and do not include the temporary alliances or factional divisions not involving severance of
political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another.

The Court would have preferred not to intervene in this matter, leaving it to be settled by the House of
Representatives or the Commission on Appointments as the bodies directly involved. But as our jurisdiction has
been invoked and, more importantly, because a constitutional stalemate had to be resolved, there was no
alternative for us except to act, and to act decisively. In doing so, of course, we are not imposing our will upon
the said agencies, or substituting our discretion for theirs, but merely discharging our sworn responsibility to
interpret and apply the Constitution. That is a duty we do not evade, lest we ourselves betray our oath.

WHEREFORE, the petition is DISMISSED. The temporary restraining order dated January 13, 1989, is LIFTED.
The Court holds that the respondent has been validly elected as a member of the Commission on Appointments
and is entitled to assume his seat in that body pursuant to Article VI, Section 18, of the Constitution. No
pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Cows,
Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., took no part.

A.M. No. 88-7-1861-RTC October 5, 1988

IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE
PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.:

On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads:

Hon. Marcelo Fernan

Chief Justice of the Supreme Court
of the Philippines
Manila

Thru channels: Hon. Leo Medialdea

Court Administrator
Supreme Court of the Philippines

Sir:

By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of
Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte
Provincial Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12
December 1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with
Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my
appointment as a member of the Committee. For your ready reference, I am enclosing herewith
machine copies of Executive Order RF6-04 and the appointment.

Before I may accept the appointment and enter in the discharge of the powers and duties of the
position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor
to request for the issuance by the Honorable Supreme Court of a Resolution, as follows:

(1) Authorizing me to accept the appointment and to as assume and discharge

the powers and duties attached to the said position;

(2) Considering my membership in the Committee as neither violative of the

Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the
second paragraph of Section .7, Article IX (B), both of the Constitution, and will
not in any way amount to an abandonment of my present position as Executive
Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a
member of the Judiciary; and

(3) Consider my membership in the said Committee as part of the primary

functions of an Executive Judge.

May I please be favored soon by your action on this request.

Very respectfully yours,

(Sgd) RODOLFO U. MANZANO

Judge

An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are
created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent
ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee
are—

3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be
found to have committed abuses in the discharge of his duties and refer the same to proper
authority for appropriate action;
 3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper
administration of criminal justice.

It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative
functions are those which involve the regulation and control over the conduct and affairs of individuals for; their
own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such
as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre
and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary).

Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that—

Section 6. Supervision.—The Provincial/City Committees on Justice shall be under the

supervision of the Secretary of justice Quarterly accomplishment reports shall be submitted to
the Office of the Secretary of Justice.

Under the Constitution, the members of the Supreme Court and other courts established by law shag not be
designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII,
Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which
discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his
request.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39
SCRA 106) ably sets forth:

2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic
rigor, the practical demands of government precluding its doctrinaire application, it cannot justify
a member of the judiciary being required to assume a position or perform a duty non-judicial in
character. That is implicit in the principle. Otherwise there is a plain departure from its command.
The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by
Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no exception to the rigidity of such a
norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn
responsibility no less than the maintenance of respect for the judiciary can be satisfied with
nothing less.

This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or
unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of
the structure of government. Their integrity and performance in the adjudication of cases contribute to the solidity
of such structure. As public officials, they are trustees of an orderly society. Even as non-members of
Provincial/City Committees on Justice, RTC judges should render assistance to said Committees to help
promote the laudable purposes for which they exist, but only when such assistance may be reasonably
incidental to the fulfillment of their judicial duties.

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.

SO ORDERED.

Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., dissenting:

The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or
administrative functions (Section 12, Article VIII, Constitution.).

Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain
from participating in the work of any administrative agency which adjudicates disputes and controversies
involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line
insofar as administrative functions are concerned.

"Administrative functions" as used in Section 12 refers to the executive machinery of government and the
performance by that machinery of governmental acts. It refers to the management actions, determinations, and
orders of executive officials as they administer the laws and try to make government effective. There is an
element of positive action, of supervision or control.

Applying the definition given in the opinion of the majority which reads:

Administrative functions are those which involve the regulation and control over the conduct and
affairs of individuals for their own welfare and the promulgation of rules and regulations to better
carry out the policy of the legislature or such as are devolved upon the administrative agency by
the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v.
Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. )

we can readily see that membership in the Provincial or City Committee on Justice would not involve any
regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate
rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see
anything wrong in a member of the judiciary joining any study group which concentrates on the administration of
justice as long as the group merely deliberates on problems involving the speedy disposition of cases
particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the
members, and limits itself to recommendations which may be adopted or rejected by those who have the power
to legislate or administer the particular function involved in their implementation.

We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice
cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials
concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over
these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for
such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically
insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of
justice and afterwards forwarding their findings to the people, public or private, where these findings would do
the most good.

The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice.
Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of
being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If
judges cannot become members, why should they be allowed or even encouraged to assist these Committees
The line drawn by the majority is vague and unrealistic.

The constitutional provision is intended to shield Judges from participating in activities which may compromise
their independence or hamper their work. Studying problems involving the administration of justice and arriving
at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive
or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the
other departments into judicial affairs.

As the visible representation of the law and of justice in his community, the Judge should not shy away from
public activities which do not interfere with the prompt and proper performance of his office, but which, in fact,
enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary
seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study
groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most
concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of
their functions.

It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the
Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However,
we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which
define or circumscribe our powers and functions as they do to the provisions governing the other dependents of
government. The Court should not adopt a strained construction which impairs its own efficiency to meet the
responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in
this case—constitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth.

I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U.

Fernan C.J., Narvasa and Griño-Aquino, JJ., join in Gutierrez dissent.

MELENCIO-HERRERA, J., dissenting:

I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987
Constitution, and thus join the dissent of Justice Gutierrez, Jr.

What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-
judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving
running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a
Judge/Justice from the performance of his regular functions.

The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group
with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by
reason of the primary functions of their position.

The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856,
need not be a cause for concern. That supervision is confined to Committee work and will by no means extend
to the performance of judicial functions per se.

Manzano to become a member of the Ilocos Norte Provincial Committee on Justice.

Separate Opinions

GUTIERREZ, JR., J., dissenting:

The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or
administrative functions (Section 12, Article VIII, Constitution.).

Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain
from participating in the work of any administrative agency which adjudicates disputes and controversies
involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line
insofar as administrative functions are concerned.

"Administrative functions" as used in Section 12 refers to the executive machinery of government and the
performance by that machinery of governmental acts. It refers to the management actions, determinations, and
orders of executive officials as they administer the laws and try to make government effective. There is an
element of positive action, of supervision or control.

Applying the definition given in the opinion of the majority which reads:

Administrative functions are those which involve the regulation and control over the conduct and
affairs of individuals for their own welfare and the promulgation of rules and regulations to better
carry out the policy of the legislature or such as are devolved upon the administrative agency by
the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v.
Tapucar, S.P-07599-R, 29 September 1978, Black's Law Dictionary. )

we can readily see that membership in the Provincial or City Committee on Justice would not involve any
regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate
rules and regulations nor exercise any quasi-legislative functions. Its work is purely advisory. I do not see
anything wrong in a member of the judiciary joining any study group which concentrates on the administration of
justice as long as the group merely deliberates on problems involving the speedy disposition of cases
particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the
members, and limits itself to recommendations which may be adopted or rejected by those who have the power
to legislate or administer the particular function involved in their implementation.

We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice
cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials
concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over
these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for
such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically
insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of
justice and afterwards forwarding their findings to the people, public or private, where these findings would do
the most good.

The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice.
Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of
being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If
judges cannot become members, why should they be allowed or even encouraged to assist these Committees
The line drawn by the majority is vague and unrealistic.

The constitutional provision is intended to shield Judges from participating in activities which may compromise
their independence or hamper their work. Studying problems involving the administration of justice and arriving
at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive
or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the
other departments into judicial affairs.

As the visible representation of the law and of justice in his community, the Judge should not shy away from
public activities which do not interfere with the prompt and proper performance of his office, but which, in fact,
enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary
seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study
groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most
concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of
their functions.

It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the
Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However,
we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which
define or circumscribe our powers and functions as they do to the provisions governing the other dependents of
government. The Court should not adopt a strained construction which impairs its own efficiency to meet the
responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in
this case—constitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth.

I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Manzano to become a member
of the Ilocos Norte Provincial Committee on Justice.

Fernan C.J., Narvasa and Griño-Aquino, JJ., join in Gutierrez dissent.

MELENCIO-HERRERA, J., dissenting:

I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987
Constitution, and thus join the dissent of Justice Gutierrez, Jr.

What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-
judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving
running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a
Judge/Justice from the performance of his regular functions.

The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group
with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by
reason of the primary functions of their position.
The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856,
need not be a cause for concern. That supervision is confined to Committee work and will by no means extend
to the performance of judicial functions per se.

[G.R. No. L-38025. August 20, 1979.]

DANTE O. CASIBANG, Petitioner, v. HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of
Pangasinan, Branch XIV, and REMEGIO P. YU, Respondents.

Nicanor S. Bautista and Agaton D. Yaranon for Petitioner.

Bince, Sevilleja, Agsalud & Associates for Respondents.

DECISION

MAKASIAR, J.:

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor of Rosales, Pangasinan in the
1971 local elections, by a plurality of 501 votes over his only rival, herein petitioner, who seasonably filed on November
24, 1971 a protest against the election of the former with the Court of First Instance of Pangasinan, on the grounds of
(1) anomalies and irregularities in the appreciation, counting and consideration of votes in specified electoral precincts;
(2) terrorism; (3) rampant vote buying; (4) open voting or balloting; and (5) excessive campaign expenditures and other
violations of the 1971 Election Code. chanroble s virtual lawl ib rary

Respondent Yu filed on November 29, 1971 his answer and counter-protest which petitioner answered on December 10,
1971. However, respondent Yu withdrew his counter-protest after waiving the opening and revision of the ballot boxes
specified therein.

Proceedings therein continued with respect to the election protest of petitioner before the Court of First Instance of
Pangasinan, Branch XIV, presided by respondent Judge, who initially took cognizance of the same as it is unquestionably
a justiciable controversy.

In the meantime or on September 21, 1972, the incumbent President of the Republic of the Philippines issued
Proclamation No. 1081, placing the entire country under Martial Law; and two months thereafter, more or less, or
specifically on November 29, 1972, the 1971 Constitutional Convention passed and approved a Constitution to supplant
the 1935 Constitution; and the same was thereafter overwhelmingly ratified by the sovereign people of the Republic of
the Philippines on January 17, 1973; and on March 31, 1973, this Court declared that "there is no further judicial
obstacle to the new Constitution being considered in force and effect" (Javellana v. Executive Secretary, 50 SCRA 30
[1973]).chan roble s law lib ra ry : red

Thereafter or on October 10, 1973, at which time petitioner had already completed presenting his evidence and in fact
had rested his case, respondent Yu moved to dismiss the election protest of petitioner on the ground that the trial court
had lost jurisdiction over the same in view of the effectivity of the 1973 Constitution by reason of which — (principally)
Section 9 of Article XVII [Transitory Provisions] and Section 2 of Article XI — a political question has intervened in the
case. Respondent Yu contended that." . the provisions in the 1935 Constitution relative to all local governments have
been superseded by the 1973 Constitution. Therefore, all local government should adhere to our Parliamentary form of
government. This is clear in the New Constitution under its Article XI." He further submitted that local elective officials
(including mayors) have no more four-year term of office. They are only in office at the pleasure of the appointing power
embodied in the New Constitution, and under Section 9 of Article XVII. chanrobles.com : vi rtua l law lib ra ry

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7 and 8 of Article XVII (Transitory
Provisions) of the New Constitution and G.O. No. 3, contended that the New Constitution did not divest the Court of First
Instance of its jurisdiction to hear and decide election protests pending before them at the time of its ratification and
effectivity; that the ratification of the New Constitution and its effectivity did not automatically abolish the office and
position of municipal mayor nor has it automatically cut short the tenure of the office, so as to render the issue as to who
is the lawfully elected candidate to said office or position moot and academic; that election protests involve public
interest such that the same must be heard until terminated and may not be dismissed on mere speculation that the office
involved may have been abolished, modified or reorganized; and that the motion to dismiss was filed manifestly for
delay.

Respondent Yu replied pointing out, among others, that petitioner failed to refute the issue of political question; and
reiterated his stand, expanding his arguments on the political question, thus: jgc:cha nrob les.c om.ph

"It is an undeniable fact that this case has its source from the 1971 elections for municipal mayoralty. Unsatisfied with
the counting of votes held by the Board of Canvassers, the herein protestant filed this present case. And before the
termination of the same and pending trial, the Filipino people in the exercise of their free will and sovereign capacity
approved a NEW CONSTITUTION, thus a NEW FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find
this provision under Article XI of the New Constitution, which provides: c hanrob1es vi rt ual 1aw li bra ry
‘SEC. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a
majority vote of all its members, defining a more responsive and accountable local government structure with an
effective system of recall, allocating among the different local government units their powers, responsibilities, and
resources, and providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local
officials, and all other matters relating to the organization and operation of the local units. However, any change in the
existing form of local government shall not take effect until ratified by a majority of the votes cast in a plebiscite called
for the purpose.’

It is respectfully submitted that the contention of the protestant to the effect that the New Constitution ‘shows that the
office of the Municipal Mayor has not been abolished . . .,’ is not ACCURATE. Otherwise, the provisions of Section 9 of
Article XVII, is meaningless.

‘All officials and employees in the existing Government of the Republic shall continue in office until otherwise provided by
law or decreed by the incumbent President of the Philippines, . . ..’

In the above-quoted provision is the protection of the officials and employees working in our government, otherwise, by
the force of the New Constitution they are all out of the government offices. In fact, in the case abovecited (Javellana)
we are all performing our duties in accordance with the New Constitution.

"Therefore, election cases of the 1935 Constitution being interwoven in the political complexion of our new Constitution
should be dismissed because only those incumbent official and employees existing in the new government are protected
by the transitorial provisions of the New Fundamental Law of the Land. The protestant, we respectfully submit, is not
covered by the provisions of Section 9 Article XVII of the Constitution. And in case he will win in this present case he has
no right to hold the position of mayor of the town of Rosales, Pangasinan, because he was not then an official of the
government at the time the New Constitution was approved by the Filipino People. His right if proclaimed a winner is
derived from the 1935 Constitution which is changed by the Filipino people." cra law virt ua1aw li bra ry

On December 18, 1973, the trial court, presided by respondent Judge, sustained the political question theory of
respondent Yu and ordered the dismissal of the electoral protest. Thus: jgc:chanro bles. com.ph

"There is no dispute that the Filipino people have accepted and submitted to a new Constitution to replace the 1935
Constitution, and that we are now living under its aegis and protection. . . .

x x x

"Under Section 9, Article XVII, of the new Constitution, above-quoted, only those officials and employees of the existing
Government of the Republic of the Philippines like the protestee herein, are given protection and are authorized to
continue in office at the pleasure of the incumbent President of the Philippines, while under Section 2 of Article XI of the
new Constitution, also above-quoted, the intention to completely revamp the whole local government structure, providing
for different qualifications, election and removal, term, salaries, powers, functions, and duties, is very clear. These
present questions of policy, the necessity and expediency of which are outside the range of judicial review. With respect
to the fate of incumbent officials and employees in the existing Government of the Republic of the Philippines, as well as
to the qualifications, election and removal, term of office, salaries, and powers of all local officials under the
parliamentary form of government — these have been entrusted or delegated by the sovereign people or has reserved it
to be settled by the incumbent Chief Executive or by the National Assembly with full discretionary authority therefor. As if
to supplement these delegated powers, the people have also decreed in a referendum the suspension of all elections.
Thus, in the United States, questions relating to what persons or organizations constitute the lawful government of a
state of the Union (Luther v. Borden, 7 How. 1, 12, L. Ed. 58), and those relating to the political status of a state
(Highland Farms Dairy v. Agnew, 57 S. et. 549, 300 U.S. 608, 81 L.ed. 835), have been held to be political and not for
the judiciary to determine.

"To the mind of the Court, therefore, the ratification and effectivity of the new Constitution has tainted this case with a
political complexion above and beyond the power of judicial review. As fittingly commented by Mr. Justice Antonio in a
separate opinion in the Javellana, Et. Al. cases, 69 O.G. No. 36, September 3, 1973, p. 8008: chanrob1es vi rt ual 1aw li bra ry

‘The essentially political nature of the question is at once manifest by understanding that in the final analysis, what is
assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of
the approval or ratification, but the legitimacy of the government. It is addressed more to the frame-work and political
character of this government which now functions under the new Charter. It seeks to nullify a Constitution that is already
effective. In other words, where a complete change in the fundamental law has been effected through political action, the
Court whose existence is affected by such a change is, in the words of Mr. Meville Fuller Weston, ‘precluded from passing
upon the fact of change by a logical difficulty which is not to be surmounted,’ as the change relates to the existence of a
prior point in the Court’s ‘chain of title’ to its authority and ‘does not relate merely to a question of the horizontal
distribution of powers.’ It involves a matter which ‘the sovereign has entrusted to the so-called political departments or
has reserved to be settled by its own extra-governmental action.’ The present Government functions under the new
Constitution which has become effective through political action. Judicial power presupposes an established government
and an effective constitution. If it decides at all as a court, it necessarily affirms the existence and authority of the
Government under which it is exercising judicial power.’

"The Court is not unaware of provisions of the new Constitution, particularly Sections 7 and 8, Article XVII (Transitory
Provisions) decreeing that all existing laws not inconsistent with the new Constitution shall remain operative until
amended, modified, or repealed by the National Assembly, and that all courts existing at the time of the ratification of
the said new Constitution shall continue and exercise their jurisdiction until otherwise provided by law in accordance with
the new Constitution, and all cases pending in said courts shall be heard, tried and determined under the laws then in
force. Again, to the mind of the Court, these refer to matters raised in the enforcement of existing laws or in the
invocation of a court’s jurisdiction which have not been ‘entrusted to the so-called political department or has reserved to
be settled by its own extra-governmental action." ‘

Hence, this petition.

WE reverse.

The thrust of the aforesaid political question theory of respondent Yu is that the 1973 Constitution, through Section 9 of
Article XVII thereof, protected only those incumbents, like him, at the time of its ratification and effectivity and are the
only ones authorized to continue in office and their term of office as extended now depends on the pleasure of, as the
same has been entrusted or committed to, the incumbent President of the Philippines or the Legislative Department; and
that Section 2 of Article XI thereof entrusted to the National Assembly the revamp of the entire local government
structure by the enactment of a local government code, thus presenting a question of policy, the necessity and
expediency of which are outside the range of judicial review. In short, for the respondent Judge to still continue assuming
jurisdiction over the pending election protest of petitioner is for him to take cognizance of a question or policy "in regard
to which full discretionary authority has been delegated to the Legislative or Executive branch of the government." chanrobles law lib rary : re d

There is an imperative need to re-state pronouncements of this Court on the new Constitution which are decisive in the
resolution of the political question theory of respondent Yu.

WE ruled: cha nrob 1es vi rtua l 1aw lib rary

1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and academic pending election protest
cases (Santos v. Castañeda, 65 SCRA 114 [1975]; Equipilag v. Araula, 60 SCRA 211 [1974]; Nuñez v. Averia, 57 SCRA
726 [1974]; Paredes v. Abad, L-36927, Sunga v. Mosqueda, L-37715, Valley v. Caro, L-38331, 56 SCRA 522, [1974]).

2. That "the constitutional grant of privilege to continue in office, made by the new Constitution for the benefit of persons
who were incumbent officials or employees of the Government when the new Constitution took effect, cannot be fairly
construed as indiscriminately encompassing every person who at the time happened to be performing the duties of an
elective office, albeit under protest or contest" and that "subject to the constraints specifically mentioned in Section 9,
Article XVII of the Transitory Provisions, it neither was, nor could have been the intention of the framers of our new
fundamental law to disregard and shunt aside the statutory right of a candidate for elective position who, within the time-
frame prescribed in the Election Code of 1971, commenced proceedings beamed mainly at the proper determination in a
judicial forum of a proclaimed candidate-elect’s right to the contested office." ‘ (Santos v. Castañeda, supra); and We
rationalized that "the Constitutional Convention could not have intended, as in fact it did not intend, to shielf or protect
those who had been unduly elected. To hold that the right of the herein private respondents to the respective offices
which they are now holding, may no longer be subject to question, would be tantamount to giving a stamp of approval to
what could have been an election victory characterized by fraud, threats, intimidation, vote buying, or other forms of
irregularities prohibited by the Election Code to preserve inviolate the sanctity of the ballot." (Paredes, Sunga and Valley
cases, supra).

3. That "the right of the private respondents (protestees) to continue in office indefinitely arose not only by virtue of
Section 9 of Article XVII of the New Constitution but principally from their having been proclaimed elected to their
respective positions as a result of the November 8, 1971 elections. Therefore, if in fact and in law, they were not duly
elected to their respective positions and consequently, have no right to hold the same, perform their functions, enjoy
their privileges and emoluments, then certainly, they should not be allowed to enjoy the indefinite term of office given to
them by said constitutional provision" (Paredes, Sunga and Valley cases, supra).

4. That "until a subsequent law or presidential decree provides otherwise, the right of respondent (protestee) to continue
as mayor rests on the legality of his election which has been protested by herein petitioner. Should the court decide
adversely against him the electoral protest, respondent (protestee) would cease to be mayor even before a law or
presidential decree terminates his tenure of office pursuant to said Section 9 of Article XVII of the 1973 Constitution"
(Equipilag, supra).

5. That "there is a difference between the ‘term’ of office and the ‘right’ to hold an office. A ‘term’ of office is the period
during which an elected officer or appointee is entitled to hold office, perform its functions and enjoy its privileges and
emoluments. A ‘right’ to hold a public office is the just and legal claim to hold and enjoy the powers and responsibilities
of the office. In other words, the ‘term’ refers to the period, duration of length of time during which the occupant of an
office is entitled to stay therein whether such period be definite or indefinite. Hence, although Section 9, Article XVII of
the New Constitution made the term of the petitioners indefinite, it did not foreclose any challenge by the herein
petitioners, in an election protest, of the ‘right’ of the private respondents to continue holding their respective office.
What has been directly affected by said constitutional provision is the ‘term’ to the office, although the ‘right’ of the
incumbent to an office which he is legally holding is co-extensive with the ‘term’ thereof," and that "it is erroneous to
conclude that under Section 9, Article XVII of the New Constitution, the term of office of the private respondents expired,
and that they are now holding their respective offices under a new term. We are of the opinion that they hold their
respective offices still under the term to which they have been elected, although the same is now indefinite" (Paredes,
Sunga and Valley cases, supra).

6. That the New Constitution recognized the continuing jurisdiction of courts of first instance to hear, try and decide
election protests: "Section 7 of Article XVII of the New Constitution provides that ‘all existing laws not inconsistent with
this Constitution shall remain operative until amended, modified or repealed by the National Assembly.’ And there has
been no amendment, modification or repeal of Section 220 of the Election Code of 1971 which gave the herein petitioners
the right to file an election contest against those proclaimed elected," and "according to Section 8, Article XVII of the
New Constitution ‘all courts existing at the time of the ratification of this Constitution shall continue and exercise their
jurisdiction until otherwise provided by law in accordance with this Constitution, and all cases pending in said courts shall
be heard, tried and determined under the laws then in force.’ Consequently, the Courts of First Instance presided over by
the respondent-Judges should continue and exercise their jurisdiction to hear, try and decide the election protests filed
by herein petitioners" (Santos, Equipilag, Nuñez, Paredes, Sunga and Valley cases, supra).

While under the New Constitution the Commission on Elections is now the sole judge of all contests relating to the
elections, returns, and qualifications of members of the National Assembly as well as elective provincial and city officials
(par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power does not extend to electoral contests concerning
municipal elective positions.

7. That General Order No. 3, issued by the President of the Philippines merely reiterated his powers under Section 9 of
Article XVII of the New Constitution. The President did not intend thereby to modify the aforesaid constitutional provision
(Equipilag, supra).

General Order No. 3, as amended by General Order No. 3-A, does not expressly include electoral contests of municipal
elective positions as among those removed from the jurisdiction of the courts; for said General Order, after affirming the
jurisdiction of the Judiciary to decide in accordance with the existing laws on criminal and civil cases, simply removes
from the jurisdiction of the Civil Court certain crimes specified therein as well as the validity, legality or constitutionality
of any decree, order or acts issued by the President or his duly designated representative or by public servants pursuant
to his decrees and orders issued under Proclamation No. 1081.

8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their jurisdiction because to do so "is
nothing short of unwarranted abdication of judicial authority, which no judge duly imbued with the implications of the
paramount principle of independence of the judiciary should ever think of doing. It is unfortunate indeed that respondent
Judge is apparently unaware that it is a matter of highly significant historical fact that this Court has always deemed
General Order No. 3 including its amendment by General Order No. 3-A as practically inoperative even in the light of
Proclamation No. 1081 of September 21, 1972 and Proclamation No. 1104 of January 17, 1973, placing the whole
Philippines under martial law. While the members of the Court are not agreed on whether or not particular instances of
attack against the validity of certain Presidential decrees raise political questions which the Judiciary would not interfere
with, there is unanimity among Us in the view that it is for the Court rather than the Executive to determine whether or
not We may take cognizance of any given case involving the validity of acts of the Executive Department purportedly
under the authority of the martial law proclamations" (Lina v. Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).

II

1. In the light of the foregoing pronouncements, We hold that the electoral protest case herein involved has remained a
justiciable controversy. No political question has ever been interwoven into this case. Nor is there any act of the
incumbent President or the Legislative Department to be indirectly reviewed or interfered with if the respondent Judge
decides the election protest. The term "political question" connotes what it means in ordinary parlance, namely, a
question of policy. It refers to those questions which under the Constitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure"
(Tañada v. Cuenco, L-1052, Feb. 28, 1957). A broader definition was advanced by U.S. Supreme Court Justice Brennan
in Baker v. Carr (369 U.S. 186 [1962): "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 respect due coordinate branches of the government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p. 217). And Chief Justice Enrique M. Fernando, then an
Associate Justice, of this Court fixed the limits of the term, thus: "The term has been made applicable to controversies
clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid
(Cf. Vera v. Avelino, 77 Phil. 192 [1946]; Lopez v. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales v.
Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774). It has likewise been employed loosely to characterize a
suit where the party proceeded against is the President or Congress, or any branch thereof (Cf. Planas v. Gil, 67 Phil. 62
[1937]; Vera v. Avelino, 77 Phil. 192 [1946]). If to be delimited with accuracy; ‘political questions should refer to such as
would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary
authority is vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. . .
." (Lansang v. Garcia, 42 SCRA 448, 504-505 [1971]).

2. The only issue in the electoral protest case dismissed by respondent Judge on the ground of political question is who
between protestant — herein petitioner — and protestee — herein respondent Yu — was the duly elected mayor of
Rosales, Pangasinan, and legally entitled to enjoy the rights, privileges and emoluments appurtenant thereto and to
discharge the functions, duties and obligations of the position. If the protestee’s election is upheld by the respondent
Judge, then he continues in office; otherwise, it is the protestant, herein petitioner. That is the only consequence of a
resolution of the issue therein involved — a purely justiciable question or controversy as it implies a given right, legally
demandable and enforceable, an act or omission violative of said right, and a remedy, granted or sanctioned by law, for
said breach of right (Tan v. Republic, 107 Phil. 632-633 [1960]). Before and after the ratification and effectivity of the
New Constitution, the nature of the aforesaid issue as well as the consequences of its resolution by the Court, remains
the same as above-stated.

3. Any judgment to be made on that issue will not in any way collide or interfere with the mandate of Section 9 of Article
XVII of the New Constitution, as it will merely resolve who as between protestant and protestee is the duly elected mayor
of Rosales, Pangasinan; hence, entitled to enjoy the extended term as mandated by said provision of the New
Constitution. As construed by this Court, the elective officials referred to in Section 9 of Article XVII are limited to those
duly elected as the right to said extended term was not personal to whosoever was incumbent at the time of the
ratification and effectivity of the New Constitution. Nor would such judgment preempt, collide or interfere with the power
or discretion entrusted by the New Constitution to the incumbent President or the Legislative Department, with respect to
the extended term of the duly elected incumbents; because whoever between protestant and protestee is declared the
duly elected mayor will be subject always to whatever action the President or the Legislative Department will take
pursuant thereto. chanrobles v irt ualawli bra ry chan rob les.com: chan roble s.com.p h

4. Neither does Section 2 of Article XI stigmatize the issue in that electoral protest case with a political color. For simply,
that section allocated unto the National Assembly the power to enact a local government code "which may not thereafter
be amended except by a majority of all its Members, defining a more responsive and accountable local government
allocating among the different local government units their powers, responsibilities, and resources, and providing for their
qualifications, election and removal, term, salaries, powers, functions and duties of local officials, and all other matters
relating to the organization and operation of the local units" but." . . any change in the existing form of local government
shall not take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose." It is apparent at
once that such power committed by the New Constitution to the National Assembly will not be usurped or preempted by
whatever ruling or judgment the respondent Judge will render in the electoral protest case. Whoever will prevail in that
contest will enjoy the indefinite term of the disputed office of mayor of Rosales, Pangasinan in the existing set-up of local
government in this country; subject always to whatever change or modification the National Assembly will introduce
when it will enact the local government code. chanro bles law l ib rary : red

III

The construction made by respondent Judge of Sections 7 and 8 of Article XVII of the New Constitution." . . that these
refer to matters raised in the enforcement of existing laws or in the invocation of a court’s jurisdiction which have not
been ‘entrusted to the so-called political department or reserved to be settled by its own extra-governmental action," ‘
strained as it is, cannot be sustained in view of the result herein reached on the issue of political question as well as Our
previous pronouncements as above restated on the same Sections 7 and 8 of the New Constitution.

WHEREFORE, RESPONDENT COURT’S ORDER OF DISMISSAL IS HEREBY SET ASIDE AND THE RESPONDENT COURT IS
DIRECTED TO IMMEDIATELY PROCEED WITH THE TRIAL AND DETERMINATION OF THE ELECTION PROTEST BEFORE IT
ON THE MERITS. THIS DECISION SHALL BE IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.

Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

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

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

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the
incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the
interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national
referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the
issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of his present powers.1

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

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

The questions ask, to wit:

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

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

PROPOSED AMENDMENTS:

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

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.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad)
possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It
is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be
contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the
sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers
in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court
enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise
that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be
inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of
judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial
question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted.
Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of
transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments
becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been
followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably,
the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue.
The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid,
thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court
en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme
Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in
the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power
has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of
the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or 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 Cases12 involving 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.17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The
President has nothing to do with proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are
more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in
a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches executive, legislature, and judiciary. It
is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of
power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47,
'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive
emergency action in behalf of the state and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and action, even if this means the
temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the
separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion
in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems
of government. In the former the all-important harmony of legislature and executive is taken for granted; in the
latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established
and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of constitutional and legal
limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable
even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had
not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the
government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times
restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear
authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus:23

The incumbent President of the Philippines shall initially convene the interim National Assembly
and shall preside over its sessions until the interim Speaker shall have been elected. He shall
continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and the Prime Minister under this
Constitution until the calls upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective powers vested by this
Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other
 acts of the incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional
Convention, while giving to the President the discretion when to call the interim National Assembly to session,
and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly
shown that in meeting the same, indefinite power should be attributed to tile President to take emergency
measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly
during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the
judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the
power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the
President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the
President decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge
the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although
peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office
into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim
National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of
absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses
no capacity to propose amendments without constitutional infractions. For the President to shy away from that
actuality and decline to undertake the amending process would leave the governmental machineries at a
stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or
constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February
1975, the people had already rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60
cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim
National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The
national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its
existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 .28 The Batasang Bayan
(legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the
people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led
the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22,
1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16.
V

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a
republican and unitary state, sovereignty "resides in the people and all government authority emanates from
them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the
highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional
prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment."34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore,
upon a self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as
constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a
single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the
authority who can presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the
people themselves implemented only by the authority of the President. Indeed, it may well be said that the
amending process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 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.39 It 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.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds advanced be the Solicitor
General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the hearing
had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of controversy,
namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?

(2) During the present stage of the transition period, and under the environmental circumstances now obtaining,
does the President possess power to propose amendments to the Constitution as well as set up the required
machineries and prescribe the procedure for the ratification of his proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter of proposals to amend the
Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum that-

Proposal to amend the Constitution is a highly political function performed by the Congress in its
sovereign legislative capacity and committed to its charges by the Constitution itself. The
exercise of this power is even independent of any intervention by the Chief Executive. If on
grounds of expediency scrupulous attention of the judiciary be needed to safeguard public
 interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a
ratification.

In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate (81
Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28,
1957), and Macias vs. Commission on Elections (L-18684, September 14, 1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-violates the
Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent this
view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales vs. Commission on Elections, et
al, L-28196, November 9, 1967, 21 SCRA 774, 786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in Javellana
vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the view
that the question of whether the 1973 Constitution was ratified in accordance with the provisions of Article XV
(Amendments) of the 1935 Constitution is inherently and essentially justiciable.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-

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

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

So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of
proposing amendments to the Constitution and of calling a referendum-plebiscite for the ratification of the
proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the authority
claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely on the existence
of the said power in the President - a question purely of legality determinable thru interpretation and construction
of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional
boundaries and the allocation of constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in these parlous years, would be
to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people their ultimate
recourse for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well within the periphery of judicial
inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its solution,
I believe, can be found and unraveled only by a critical assessment of the existing legal order in the light of the
prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or under
normal conditions, a Constitution may be amended only in accord with the procedure set forth therein. Hence, if
there be any such prescription for the amendatory process as invariable there is because one of the essential
parts of a Constitution is the so-called "constitution of sovereignty" which comprises the provision or provisions
on the modes in accordance with which formal changes in the fundamental law may be effected the same would
ordinarily be the controlling criterion for the validity of the amendments sought.

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

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

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

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions embodied in the
Constitution on the amendatory process applied during the said first stage. Thus, Section 15, Article XVII
(Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote
of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the application
thereof to the second stage of the transition period, i.e.,., after the interim? National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

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 ceiling such a
convention to the electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the
approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall have become fully operative,
referring as they do to the National Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to the
Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in what
manner such amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere declaration of the
traditions of a nation but more the embodiment of a people's hopes and aspirations, its strictures are not
unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the living social
organism they seek to fashion and govern. If it is conceded that "the political or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the third," then a Constitution must be able to adjust
to the changing needs and demands of society so that the latter may survive, progress and endure. On these
verities, there can be no debate.

During the first stage of the transition period in which the Government is at present - which is understandably the
most critical - the need for change may be most pressing and imperative, and to disavow the existence of the
right to amend the Constitution would be sheer political heresy. Such view would deny the people a mechanism
for effecting peaceful change, and belie the organic conception of the Constitution by depriving it of its means of
growth. Such a result obviously could not have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass before the convocation of the
interim National Assembly was not anticipated, hence, the omission of an express mandate to govern the said
situation in so far as amendments are concerned. But such omission through inadvertence should not, because
it cannot, negate the sovereign power of the people to amend the fundamental charter that governs their lives
and their future and perhaps even the very survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the intent was,
instead, to provide a simpler and more expeditious mode of amending the Constitution during the transition
period. For, while under Article XVI thereof, proposals for amendment may be made directly by the regular
National Assembly by a vote of at least three-fourths of all its members, under Section 15 of Article XVII, a bare
majority vote of all the members of the National Assembly would suffice for the purpose. The relaxation and the
disparity in the vote requirement are revealing. The can only signify a recognition of the need to facilitate the
adoption of amendments during the second stage of the transition period so that the interim National Assembly
will be able, in a manner of speaking, to iron out the kinks in the new Constitution, remove imperfections therein,
and provide for changed or changing circumstances before the establishment of the regular Government. In this
contest, therefore, it is inutile speculation to assume that the Constitution was intended to render impotent or ar
the effectuation of needful change at an even more critical period - the first stage. With greater reason, therefore,
must the right and power to amend the Constitution during the first stage of te transition period be upheld, albeit
within its express and implied constraints.

Neither can it be successfully argued, in the same context and in the present posture, that the Constitution may
be amended during the said first stage only by convening the interim National Assembly. That is to say and
require that he said stage must first be brought to an end before any amendment may be proposed and ratified.
Settled jurisprudence does not square with such a proposition. As aptly noted in Aquino vs. Commission on
Elections, et al., supra, the framers of the Constitution set no deadline for the convening of the interim National
Assembly because they could not have foreseen how long the crises which impelled the proclamation and justify
the continued state of martial law would last. Indeed, the framers committed to the sound judgment is not subject
to judicial review, save possibly to determine whether arbitrariness has infected such exercise; absent such a
taint, the matter is solely in the keeping of the President. To thus content that only by convening the interim
National Assembly may the Constitution be amended at this time would effectively override the judgement
vested in the President, even in default of any he has acted arbitrarily or gravely abuse his discretion.
Furthermore, to sustain such a contention would not only negate the mandate so resoundingly expressed by the
people in two national referenda against the immediate convening of the interim National Assembly, but as well
deride their overwhelming approval of the manner in which the President has exercised the legislative power to
issue proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query
that compels itself for resolution is: By whom, then, may proposals for the amendment of the Constitution be
made and in what manner may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be confuse with legislative power in
general because the prerogative to propose amendments to the Constitution is not in any sense embraced
within the ambit of ordinary law-making. Hence, there is much to recommend the proposition that, in default of
an express grant thereof, the legislature - traditionally the delegated repository thereof - may not claim it under a
general grant of legislative authority. In the same vein, neither would it be altogether unassailable to say that
because by constitutional tradition and express allocation the constituent power under the Constitution is locate
in the law-making agency and at this stage of the transition period the law-making authority is firmly recognized
as being lodged in the President, the said constituent power should now logically be in the hands of te President
who may thus exercise it in place of the interim National Assembly. Instead,, as pointed out in Gonzales vs.
Commission on Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in a republican
state, such as ours - t o make, and, hence, to amend their own Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or through their
chosen delegate, can wield. Since it has been shown that the people, inadvertently or otherwise, have not
delegated that power to inadvertently or otherwise, have not delegated that power to any instrumentality during
the current stage of our hegira from crisis to normalcy, it follows of necessity that the same remains with them for
them to exercise in the manner they see fit and through the agency they choose. And, even if it were conceded
that - as it is reputedly the rule in some jurisdictions - a delegation of the constituent authority amounts to a
complete divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim
from the delegate, there would be no violence donde to such rule, assuming it to be applicable here, inasmuch
as that power, under the environmental circumstance adverted to, has not been delegated to anyone in the first
place. The constituent power during the first stage of the transition period belongs to and remains with the
people, and accordingly may be exercised by them - how and when - at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the country proves revelatory.
The people, shocked and revolted by the "obvious immorality" of the unabashed manner by which the delegates
to the Constitutional Convention virtually legislated themselves into office as ipso facto members of the interim
National Assembly by the mere fiat of voting for the transitory provisions of the Constitution. and the stark reality
that the unwieldy political monstrosity that the interim Assembly portended to be would have proven to be a
veritable drain on the meager financial resources of a nation struggling for survival, have unequivocally put their
foot down, as it were, on the convocation thereof. But this patently salutary decision of the people proved to be
double-edged. It likewise bound the political machinery of the Government in a virtual straight-jacket and
consigned the political evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations in the barangays and
sanggunian assemblies, the instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for the hastening of the return to
constitutional normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to
replace the discredited interim National Assembly with what the people believe will be an appropriate agency to
eventually take over the law-making power and thus pave the way for the early lifting of martial rule. In pursuit of
this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan ng Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap of the
Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come forward
with definitive proposals for the amendment of the Constitution, and, choosing the President the only political
arm of the State at this time through which that decision could be implemented and the end in view attained as
their spokesman, proposed the amendments under challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people
for their ratification in the forthcoming referendum-plebiscite are factually not of the President; they are directly
those of the people themselves speaking thru their authorized instrumentalities. The President merely formalized
the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in
the people and it having been demonstrated that their constituent power to amend the Constitution has not been
delegated by them to any instrumentality of the Government during the present stage of the transition period of
our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether
or not the President is vested with constituent power as it does not appear necessary to do so in the premises
the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising said authority has acted as a mere alter ego
of the people who made the proposals, but likewise because the said authority is legislative in nature rather than
constituent.

III
Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments
for ratification from the standpoint of time. The thesis cannot be disputed that a fair submission presupposes an
adequate time lapse to enable the people to be sufficiently enlightened on the merits or demerits of the
amendments presented for their ratification or rejection. However, circumstances there are which unmistakably
demonstrated that the is met. Even if the proposal appear to have been formalized only upon the promulgation
of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that
for so long have preoccupied the minds of the people and their authorized representatives, from the very lowest
level of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same cannot but
be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great
masses of the nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973
Constitution was submitted to the people for ratification, an all-out campaign, in which all the delegates of the
Constitutional Convention reportedly participated, was launched to acquaint the people with the ramifications
and working of the new system of government sought to be inaugurated thereunder. It may thus well be
assumed that the people in general have since acquired, in the least, a working knowledge of the entirety of the
Constitution. The changes now proposed the most substantial of which being merely the replacement of the
interim National assembly with another legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted do not appear to be of such complexity as to require
considerable time to be brought home to the full understanding of the people. And, in fact, the massive and
wide-ranging informational and educational campaign to this end has been and still is in full swing, with all the
media the barangay, the civic and sectoral groups, and even the religious all over the land in acting and often
enthusiastic if not frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean an understanding
of the proposals which they reject; while an affirmative vote could equally be indicative Of such understanding
and/or an abiding credence in the fidelity with which the President has kept the trust they have confided to him
as President and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is posed. Accordingly, I
vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections continuing
with the epochal resolution in Javellana v. Executive Secretary and followed successively in three crucial
decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military
Commission,5 manifest to the same degree the delicate and awesome character of the function of judicial review.
While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity
unmindful of altered circumstances and the urgencies of the times. It is inappropriate to resolve the complex
problems of a critical period without full awareness of the consequences that flow from whatever decision is
reached. Jural norms must be read in the context of social facts, There is need therefore of adjusting inherited
principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of and a force
in the society that it controls. No quality then can be more desirable in constitutional adjudication than that
intellectual and imaginative insight which goes into the heart of the matter. The judiciary must survey things as
they are in the light of what they must become It must inquire into the specific problem posed not only in terms of
the teaching of the past but also of the emerging political and legal theory, especially so under a leadership
notable for its innovative approach to social problems and the vigor of its implementation. This, on the one side.
It must equally be borne in mind through that this Court must be conscious of the risk inherent in its being
considered as a mere subservient instrument of government policy however admittedly salutary or desirable.
There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination
has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached
being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my
reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino
v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin
that there is concentration of power in the President during a crisis government. Consequently, I cannot see my
way clear to accepting the view that the authority to propose amendments is not open to question. At the very
least, serious doubts could be entertained on the matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers
in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my
concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no choice.

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

The conclusion reached by me as to the state of American federal law on the question of martial law was
expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick
and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be
surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state
of American law: 'The Milligan and Duncan cases show plainly that martial law is the public law of necessity.
Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the extended degree to
which it may be It is, the high Court has affirmed, an unbending rule of law that the exercise of military power,
where the rights of the citizen are concerned, may, never be pushed beyond what the exigency requires. If
martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of
decisions, including one the highest Court, went or on the theory that the executive had a free hand in taking
martial law measures. Under them, it has been widely supposed that in proclamation was so far conclusive that
any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these
earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where
martial law measures impinge upon personal or property rights-normally beyond the scope of military power,
whose intervention is lawful only because an abnormal Actuation has made it necessary the executive's ipse
dixit is not of itself conclusive of the necessity.'"15

There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly
provided for in the Constitution rather than being solely predicated on the common law power based on the
urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to
be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an
explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and
Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance
under that system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, ,
in which - it means the suspension of ordinary law and the temporary government of a country or parts of it be
military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the
"Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of
the permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is
sometimes employed as a name for the common law right of the Crown and its servants to repel force by force
in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is
essential to the very existence of orderly government, and is most assuredly recognized in the most ample
manner by the law of England. It is a power which has in itself no special connection with the existence of an
armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a
soldier, whether what is called a servant of the government,' such for example as a policeman, or a person in no
way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in
putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially
employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all
loyal subjects are bound to take their part in the suppression of riots."16

Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of
what is provided both in the 1935 and the present Constitution, affords sufficient justification for the
concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory
on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures
and courts are not merely cherished American institutions; they are indispensable to our government. 17 If there
has been no observance of such a cardinal concept at the present, it is due to the fact that before the former
Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing
for an interim National Assembly, which has not been convened.18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his
work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of
invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian
population, the substitution of the will of a military commander for the will of the people's elected
government."19 Since, for me at least, the Rossiter characterization of martial law has in it more of the common
law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate
device for coping with emergency conditions in times of grave danger, but always subject to attendant limitations
in accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for
the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis,
Schwartz formulations paying due regard to the primacy of liberty possess relevance. lt cannot be said that the
martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be
reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that
Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken there under
could be passed upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that
the week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom."20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of
the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was
expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees during the period Martial Law essential to the
security and preservation of the Republic, to the defense of the political and social liberties of the people and to
the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all
nations including highly developed countries." 21 To that extent, Rossiter's view mainly relied upon, now
possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern is that with the
opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law
as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation
of the view expressed in the last chapter of his work approving tile "concentration of governmental power in a
democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers." 22 It is
to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three
pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional
Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which
must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they function and a too conscious employment of powers
and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control
of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the
men who fought for freedom not because they were inefficient or unsuccessful, but because they were
dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken only
when the dangers to a free state will be greater if the dictatorial institution is not adopted."23

4. It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who
would accord recognition to the Rossiter concept of concentration of governmental power in the Executive during
periods of crisis. This is not to lose sight of the undeniable fact that in this country through the zeal, vigor, and
energy lavished on projects conducive to the general welfare, considerable progress has been achieved under
martial rule. A fair summary may be found in a recent address of the First Lady before the delegates to the 1976
international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in
so brief a time. Since September 1972, when President Marcos established the crisis government, peace and
order have been restored in a country once avoided as one of the most unsafe in the world. We have liberated
millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of
agrarian reform."24 Further, she said: "A dynamic economy has replaced a stagnant order, and its rewards are
distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a
narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive
interaction with the whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work
out our own salvation, the Filipino has re-discovered the well-springs of his strength and resilience As Filipinos,
we have found our true Identity. And having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the present Constitution should not be further
delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the imperatives of a constitutional order. It should not go
unnoticed either that the President has referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority
being more Identified with the Idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with dictatorship,
even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a
partisan of d strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I
would interpret this excerpt from the fourth edition of his classic treatise on the Presidency: "A regime of martial
law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as
administered by the ordinary courts, is superseded for the time being by the will of a military commander. It
follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President
of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the
subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the
employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve
martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the
disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other
hand be reason of the discretion that the civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an employment of the military and a regime of martial
law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of
martial law today bifurcates into two conceptions, one of which shades off into military government and the other
into the situation just described, in which the civil authority remains theoretically in control although dependent
on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other
characteristics of martial law were generally absent."26

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield
assent to the Rossiter view of concentration of governmental powers in the Executive during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions be squarely
faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries
of the power of the President during this period of martial law, more precisely whether it covers proposing
amendments to the Constitution. There is the further qualification if the stand of respondents be taken into
account that the interim National Assembly has not been convened and is not likely to be called into session in
deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority
that the answer be in the affirmative, such authority being well within the area of presidential competence. Again
I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no
basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v.
Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long
as the interim National Assembly is not For me, the stage of certitude has not been reached. I cannot simply
ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any
constituent power on the part of the President, the express provision of the Constitution conferring it on the by
team National Assembly.27 The learned advocacy reflected in the pleadings as well as the oral discourse of
Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as
to the possession of legislative competence by the President during this period of transition with the interim
lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not
prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction
between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices
Malcolm and Laurel In their casebook published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and
legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had
been no express provision in the Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the general grant of legislative
power for such grant does not carry with it the right 'to erect the state, institute the form of its government,' which
is considered a function inherent in the people. Congressional law- making authority is limited to the power of
approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the
government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino
decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as
that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot be deemed as
devoid of legislative power during this transition stage is supplied by implications from explicit constitutional
provisions.13 That is not the case with the power to propose amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to
entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a
need for al. amendments. I do not feel confident therefore that a negative vote on my part would be warranted.
What would justify the step taken by the President, even if no complete acceptance be accorded to the view that
he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by
Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and appropriately powers are
concerned, is the necessity that unless such authority be recognized, there may be paralyzation of governmental
activities, While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the
power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be
dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear
infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required,
That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. -As shown by
my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the
fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to
refrain as much as possible from denying the people the opportunity to make known their wishes on matters of
the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that
conviction by the teaching of persuasive American decisions There is reinforcement to such a conclusion from
retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider
applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition
and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles,
and that said writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the
later case of Gonzales v. Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no
injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary
to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly,
denied." 40 With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would
necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken
by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if
their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that
may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations
that argue against acceding to the plea. With the prospect of the interim National Assembly being convened
being dim, if not non- existent, if only because of the results in three previous referenda, there would be no
constitutional agency other than the Executive who could propose amendments, which, as noted. may urgently
press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that the
plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but
also to provide. the machinery be which the termination of martial law could be hastened. That is a
consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The
obstruction they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to
what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present
Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections
and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not to be
minimized. It is crucial it is of the essence. Nonetheless, it is their will, if given expression in a manner
sanctioned by law and with due care that there be no mistake in its appraisal, that should be controlling. There is
all the more reason then to encourage their participation in the power process. That is to make the regime truly
democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would
interpret Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the
amending process gives rise to a justiciable rather than a political question. So, it has been since the leading
case of Gonzales v. Commission on Election S.48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The Executive Secretary This Court
did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in
Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the United States as set forth in the leading
case of Coleman v. Miller , 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to
such a contention.,51 That may be the case in the United States, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before
the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy
that the people of times place more confidence in instrumentalities of the State other than those directly chosen
by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a
judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to
the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did
exercise at times creative power. It has to that extent participated in the molding of policy, It has always
recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the
perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they
are bent in other directions. it does not follow that it should not contribute its thinking to the extent that it can. It
has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this
nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and
change. A society in flux calls for dynamism in "he law, which must be responsive to the social forces at work. It
cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must
resist the temptation of allowing in the wasteland of meaningless abstractions. It must face stubborn reality. It
has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far
and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily
ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It
cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of
what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must
be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of
unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a
confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in
judicial opinions. 8. 1 am thus led by my studies on the subject of constitutional law and, much more so, by
previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to byes not currently
fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the
social and economic reforms so needed by the troubled present that have been introduced and implemented.
There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has
been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty
which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it
wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the
referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution
requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections,56
full respect for free speech and press, free assembly and free association. There should be no thought of
branding the opposition as the enemy and the expression of its views as anathema, Dissent, it is fortunate to
note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely
due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be
heard but because there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay
of knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the name of
protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is that except on a
showing of clear and present danger, there must be respect for the traditional liberties that make a society truly
free.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the
petitions for the following reasons and considerations: 1. It is undisputed that neither the 1935 Constitution nor
the 1973 Constitution grants to the incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for ratification in a plebiscite. The 1935
Constitution expressly vests the constituent power in Congress, be a three-fourths vote of all its members, to
propose amendments or call a constitutional convention for the purpose The 1973 Constitution expressly vests
the constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its
members) or "call a constitutional convention" (by a two-thirds vote of all its members) or "submit the question of
calling such convention to the electorate in an election" (by a majority vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during the period of
transition in the interim National Assembly "upon special call be the Prime Minister (the incumbent President 3)...
by a majority ore of all its members (to) propose amendments."

Since the Constitution provides for the organization of the essential departments of government, defines and
delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or Prime Minister, it follows that the
President's questioned decrease proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis.

2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In therein declaring
null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the
general elections scheduled for November 8, 1971 for the purpose of submitting for the people's ratification an
advance amendment reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental
law are binding upon the Convention and the other departments of the government, (land) are no less binding
upon the people

As long as an amendment is formulated and submitted under the aegis of the present Charter,
any proposal for such amendment which is not in conformity with the letter, spirit and intent of the
Charter for effecting amendments, cannot receive the sanction of this Court ;8

The real issue here cannot be whether or not the amending process delineated by the present Constitution may
be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments,
if only because it is evident that the very Idea of departing from the fundamental law is anachronistic in the realm
of constitutionalism and repugnant to the essence of the rule of law,"; 9 and

-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the proposed
amendments and the manner of its submission to the people for ratification or rejection" did not "conform with
the mandate of the people themselves in such regard, as expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending process as set forth in the Article on Amendments.

3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where the
proposed amendments are violative of the Constitutional mandate on the amending process not merely for being
a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the Constitution with the constituent power to do so, and
hence transgressing the substantive provision that it is only the interim National Assembly, upon special call of
the interim Prime Minister, bu a majority vote of all its members that may propose the amendments, the Court
must declare the amendments proposals null and void.

4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means" 11 but
only by the particular mode and manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands of their official agencies but their own
hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to
take action in opposition to this fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular National
Assembly) or the interim National Assembly during the transition period) or in a constitutional convention called
for the purpose is in accordance with universal practice. "From the very necessity of the case" Cooley points out
"amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body
of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and
discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will
can be obtained, except by asking it upon the single point of assent or disapproval." This body of representatives
vested with the constituent - power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for ratification or rejection.13
5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be desired" and in
denying reconsideration in paraphrase of the late Claro M. Recto declared that "let those who would put aside,
invoking grounds at best controversial, any mandate of the fundamental purportedly in order to attain some
laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may
take advantage of the precedent and continue the destruction of the Constitution, making those who laid down
the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the
Ratification cases 14 that "we will be opening the gates for a similar disregard to the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now in force because the members of
the citizens assemblies had approved said new Constitution, although that approval was not in accordance with
the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time
that some amendments to the Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendments is submitted to the people in any manner and
what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without
mustering the required majority vote to so overrule) to accept the proposed; amendments as valid
notwithstanding their being "not in conformity with the letter, spirit and intent of the provision of the Charter for
effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative
functions of the interim National Assembly, there is no reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec16, this Court speaking through now retired Chief Justice
Roberto Concepcion, pointer out that "Indeed, the power to Congress"17 or to the National Assembly.18 Where it not
for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the
power under the general grant of legislative power during the transition period.

The majority's ruling in the Referendum cases19 that the Transitory Provision in section 3(2) recognized the
existence of the authority to legislate in favor of the incumbent President during the period of martial law
manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National
Assembly in derogation of the allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional
law, 20 the contituent power has been lodged by the sovereign power of the people with the interim National
Assembly during the transition period and there it must remain as the sole constitutional agency until the
Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner21,
"(T)he Constitution sets forth in no uncertain language and restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in
any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people against the
convening of the interim National Assembly and to have no elections for "at least seven (7) years" Concededly
could not ament the Constitution insofar as the interim National Assembly is concerned (since it admittendly
came into existence "immediately" upon the proclamation of ratification of the 1973 Constitution), much less
remove the constituent power from said interim National Assembly.

As stressed in the writer's separate opinion in the Referendum cases22, "(W)hile it has been advanced that the
decision to defer the initial convocation of the interim National Assembly was supported by the results of the
referendum in January, 1973 when the people voted against the convening of the interim National Assembly for
at least seven years, such sentiment cannot be given any legal force and effect in the light of the State's
admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or
Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential to the parliamentary system' and the other
urgent measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of the interim National Assembly to
dischange its legislative tasks during the period of transition under martial law, they certainly had no opportunity
and did not express themselves against convening the interim National Assembly to discharge the constituent
power to propose amendments likewise vested in it by the people's mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers
reported that among the seven questions proposed by the sanggunian and barangay national executive
committies for the referendum was the convening of the interim National Assembly.23

It was further reported that the proposals which were termed tentative "will be discussed and studied by (the
President), the members of the cabinet, and the security council" and that the barangays felt, notwithstanding
the previous referenda on the convening of the interim National Assembly that "it is time to again ask the
people's opinion of this matter "24

8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for
submittal to the people, strict adherence with the mandatory requirements of the amending process as provided
in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed
amendments must validly come from the constitutional agency vested with the constituent power to do so,
namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the
incumbent President) with the assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley
"Me voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the
times and under the conditions which they themselves have prescribed and pointed out by the Constitution. ...
."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that
the "Convention being a legislative body of the highest order (and directly elected by the people to speak their
voice) is sovereign, in as such, its acts impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending process" is nothing more than a part of the
Constitution thus ordained by the people. Hence, in continuing said section, We must read it as if the people
said, "The Constitution may be amended, but it is our will that the amendment must be proposed and submitted
to Us for ratification only in the manner herein provided'".27

This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution
took care that the process of amending the same should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in
a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future
and every other conceivable aspect of the lives of all the people within the country and those subject to its
sovereignity, ever constitution worthy of the people for which it is intended must not be prepared in haste without
adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much
care and deliberation;" and that "written constitutions are supposed to be designed so as to last for some time, if
not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or less passing political moods
or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment."28

9. The convening of the interim National Assembly to exercise the constituent power to proposed amendments is
the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a Comelec
resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates int he
special 1970 elections, "the concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of
our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it
imposes must be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on
its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot
ignore of disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the
judiciary is called upon the maintain inviolate what is decreed by the fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions (which
allows of no other interpretation) that during the stage of transition the interim National Assembly alone
exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact
that the cited section does not grant to the regular National Assembly of calling a constitutional convention, thus
expressing the will of the Convention (and presumably of the people upon ratification) that if ever the need to
propose amendments arose during the limited period of transition, the interim National Assembly alone would
discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose amendments, among
them its own abolition, (P24 million annually in salaries alone for its 400 members at P600,000.00 per annum
per member, assuming that its deliberations could last for one year), suffice it to recall this Court's
pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a plebiscite separately from
the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been
spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even
more is not too much a price to pay for fealty and loyalty to the Constitution ... " 30 and that "while the financial
costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding
clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs
shall deter Us from adherence to the requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and
economic crisis a crisis greater than war") 32 cited by the majority opinion as justifying the concentration of
powers in the President, and the recognition now of his exercising the constituent power to propose
amendments to the Fundamental Law "as agent for and in behalf of the people"33 has no constitutional basis.

In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle
that emergency in itself cannot and should not create power. In our democracy the hope and survival of the
nation lie in the wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the
Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the writer in his
separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the
1935 Constitution and provides for the imposition of martial law only 'in case of invasion, resurrection or
rebellion, or imminent danger thereof, when the public safety requires it and hence the use of the legislative
power or more accurately 'military power' under martial rule is limited to such necessary measures as will
safeguard the Republic and suppress the rebellion (or invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the Referendum
Cases to be the recognition or warrant for the exercise of legislative power by the President during the period of
martial law is but a transitory provision. Together with the martial law clause, they constitute but two provisions
which are not to be considered in isolation from the Constitution but as mere integral parts thereof which must be
harmonized consistently with the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and
clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than one which may make some words Idle
and nugatory.

This rule is applicable with special force to written constitutions, in which the people will be
presumed to have expressed themselves in careful and measured terms, corresponding with the
immense importance of the powers delegated, leaving as little as possible to implication. It is
scarcelly conceivable that a case can arise where a court would bye justified in declaring any
portion of a written constitution nugatory because of ambiguity. One part may qualify another so
as to restrict its operation, or apply it otherwise than the natural construction would require if it
stood by itself; but one part is not to be allowed to defeat another, if by any reasonable
construction the two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the Constitution as well as set up
the machinery and prescribe the procedure for the ratification of his proposals has been withheld from the
President (Prime Minister) as sole repository of the Executive Power, presumably in view of the immense
powers already vested in him by the Constitution but just as importantly, because by the very nature of the
constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative
assembly of representatives such as the interim National Assembly and hence may not be antithetically
entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional
Convention that the records of past plebiscites show that the constitutional agency vested with the exercise of
the constituent power (Congress or the Constitutional Convention) really determined the amendments to the
Constitution since the proposals were invariably ratified by the people 37 thus: "although the people have the
reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be determined by the Convention;
that, accordingly the people should exercise the greatest possible degree of circumspection in the election of
delegates thereto ... "38

12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and
allocation of powers among the Executive, Legislative and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the
Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it.
Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose
only if, by reason of martial law measures, the Republic is preserved. If by reason of such measures the
Republic is so transformed that it is changed in its nature and becomes a State other than republican, then
martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its
defender and preserver."40

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned presidential
decrees: let it be underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when Justice
Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must never forget that it is a
Constitution we are expounding" and declared the Court's "solemn and sacred" constitutional obligation of
judicial review and laid down the doctrine that the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments . . . but only asserts the solemn and sacred obliteration entrusted to it
by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which the instrument secures and guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions
which are intended by the Constitutional and relevant laws to be conclusively determined by the "political", i.e.
branches of government (namely, the Executive and the Legislative) are outside the Court's jurisdiction. 41

Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the required constitutional majority), the Court
has since consistently ruled that when proposing and approving amendments to the Constitution, the members
of Congress. acting as a constituent assembly or the members of the Constitutional Convention elected directly
for the purpose by not have the final say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs is it
government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional,
despite the eminently political character of treaty-making power".44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a majority vote),
"when the grant of power is qualified, conditional or subject to limitations. the issue on whether or not the
prescribed qualifications or conditions have been met, or the limitations by expected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the contested act, not its wisdom Otherwise,
said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution would
be set at naught".

The fact that the proposed amendments are to be submitted to the people for ratification by no means makes the
question political and non- justiciable since as stressed even in Javellana the issue of validity of the President's
proclamation of ratification of the Constitution presented a justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the Constitutional
Convention called fol- the purpose, in proposing amendments to the people for ratification followed the
constitutional procedure and on the amending process is perforce a justiciable question and does not raise a
political question of police or wisdom of the proposed amendments, which if Submitted, are reserved for the
people's decision.

The substantive question presented in the case at bar of whether the President may legally exercise the
constituent power vested in the interim National Assembly (which has not been granted to his office) and
propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon to determine the proper allocation
of powers between the several departments and among the integral or constituent units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be judicial
abdication.

III. On the question of whether there is a sufficient and proper submittal of the proposed amendments to the
people: Prescinding from the writer's view of the nullity of the questioned decree of lack of authority on the
President's part to excercise the constituent power, I hold that the doctrine of fair and proper submission first
enunciated by a simple majority of by Justices in Gonzales and subsequently officially adopted by the required
constitutional two-thirds majority of the Court in is controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in
Tolentino where "the proposed amendment in question is expressly saddled with reservations which naturally
impair, in great measures, its very essence as a proposed constitutional amendment" and where "the way the
proposal is worded, read together with the reservations tacked to it by the Convention thru Section 3 of the
questioned resolution, it is too much of a speculation to assume what exactly the amendment would really
amount lo in the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of
amendment is allowed, the Philippines will appear before the world to be in the absurd position of being the only
country with a constitution containing a provision so ephemeral no one knows until when it will bet actually in
force", there can be no proper submission.

In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court which
ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole," and that there was no proper Submission wherein the people are in the dark as to frame of
reference they can base their judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed out in their
joint separate opinion that the solitary question "would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all".47

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate opinion in
Gonzales "on the minimum requirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if construed in
the light of the nature of the Constitution a fundamental charter that is legislation direct from the
people, an expression of their sovereign will - is that it can only be amended by the people
expressing themselves according to the procedure ordained by the Constitution. Therefore,
amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them with the proposed amendments,
and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word submitted' can only mean that
the government, within its maximum capabilities, should strain every effort to inform every citizen
of the provisions to be amended, and the proposed amendments and the meaning, nature and
effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens
or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word
 as intended by the framers of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every instrumentality or
agency within its structural framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing is submission and another
is ratification. There must be fair submission, intelligent. consent or rejection. If with all these
safeguards the people still approve the amendment no matter how prejudicial it is to them, then
so be it. For the people decree their own fate.48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who builded the
structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who
has said 'A good Constitution should be beyond the reach of temporary excitement and. popular caprice or
passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the
people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. xxx xxx xxx Changes in government are to be feared unless
the benefit is certain. As Montaign says: All great mutations shake and disorder state. Good does not
necessarily succeed evil ;another evil may succeed and a worse'." 49

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

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

As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning among others
the proposed granting of dual legislative powers to both the President and the Batasang Pambansa and
remarking that "This dual legislative authority can give rise to confusion and serious constitutional questions".53

Aside from the inadequacy of the limited time given for the people's consideration of the proposed amendments,
there can be no proper submission because the proposed amendments are not in proper form and violate the
cardinal rule of amendments of written constitutions that the specific provisions of the Constitution being
repealed or amended as well as how the specific provisions as amended would read, should be clearly stated in
careful and measured terms. There can be no proper submission because the vagueness and ambiguity of the
proposals do not sufficiently inform the people of the amendments for, conscientious deliberation and intelligent
consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the proposals
is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious study thereof in
detail would lead to the conclusion that the whole context of the 1973 Constitution proper would be affected and
grave amendments and modifications thereof -would apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is reduced to 18
years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang
Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within 30 days from
the election and selection of the members (for which there is no fixed date) the incumbent President apparently
becomes a regular President and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as
the prohibition against the holding of more than one office in the government including government-owned or -
controlled corporations would appear to be eliminated, if not prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law is lifted;

Under Amendment No. 6, there is a duality of legislative authority given the President and the interim Batasang
Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with the President
continuing to exercise legislative powers in case of "grave emergency or a threat or imminence thereof" (without
definition of terms) or when said Assemblies "fail or are unable to act adequately on any matter for any reason
that in his judgment requires immediate action", thus radically affecting provisions of the Constitution governing
the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their
functions, power and composition may be altered by law. Referendums (which are not authorized in the present
1973 Constitution) would also be constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the Constitution may thereafter be effected
by referendum, rather than by the rigid and strict amending process provided presently in Article XVI of the
Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the
Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under
Amendment No. 9. the incumbent President is authorized to proclaim the ratification of the amendments by the
majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments
come in a package and may not be voted upon separately but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with due circumspection on the
proposed amendments amidst the constraints of martial law is yet another question. That a period of free debate
and discussion has to be declared of itself shows the limitations on free debate and discussion. The facilities for
free debate and discussion over the mass media, print and otherwise are wanting. The President himself is
reported to have observed the timidity of the media under martial law and to have directed the press to air the
views of the opposition.54

Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of September 23,
1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth analyzes the issues
"which will affect generations yet to come" and urge the people to mull over the pros and cons very carefully", as
follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national issues - the
creation of a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be convened,
primarily because of its membership. Majority of the members of the defunct Congress, who are
mandated by the Constitution to become members of the interim National Assembly, have
gained so widespread a notoriety that the mere mention of Congress conjures the image of a den
of thieves who are out to fool the people most of the time. Among the three branches of
government, it was the most discredited. In fact, upon the declaration of martial law, some people
were heard to mutter that a 'regime that has finally put an end to such congressional
shenanigans could not be all that bad'.

A substitute legislative body is contemplated to help the President in promulgating laws, and
perhaps minimize the issuance of ill-drafted decrees which necessitate constant amendments.
But care should be taken that this new legislative body would not become a mere rubber stamp
akin to those of other totalitarian countries. It should be given real powers, otherwise we will just
have another nebulous creation having the form but lacking the substance. Already the President
has expressed the desire that among the powers he would like to have with regard to the
proposed legislative body is that of abolishing it in case 'there is a need to do so'. As to what
would occasion such a need, only the President himself can determine. This would afford the
Chief Executive almost total power over the legislature, for he could always offer the members
thereof a carrot and a stick.
 On the matter of lifting martial law the people have expressed ambivalent attitudes. Some of
them, remembering the turmoil that prevailed before the declaration of martial law, have
expressed the fear that its lifting might precipitate the revival of the abuses of the past, and
provide an occasion for evil elements to resurface with their usual tricks. Others say that it is
about time martial law was lifted since the peace and order situation has already stabilized and
the economy seems to have been parked up.

The regime of martial law has been with us for four years now. No doubt, martial law has initially
secured some reforms for the country The people were quite willing to participate in the new
experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have
gone back to the old ways, with the exception that some of our freedoms were taken away, and
an authoritarian regime established.

We must bear in mind that martial law was envisioned only to cope with an existing national
crisis, It was not meant to be availed of for a long period of time, otherwise it would undermine
our adherence to a democratic form of government. In the words of the Constitution. martial law
shall only be declared in times of 'rebellion, insurrection,. invasion, or imminent danger thereof,
when the public safety requires it'. Since we no longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously rethink the 'necessity' of prolonging the martial
law regime. If we justify the continuance of martial by economic or other reasons other than the
foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still holds vast powers under the constitution.
After all, the gains of the New Society can be secured without sacrificing the freedom of our
people. If the converse is true, then we might have to conclude that the Filipinos deserve a
dictatorial form of government. The referendum results will show whether the people themselves
have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to come, so they
should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of
proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it may "guide
the people", and that we "remain steadfast on the rule of law and the Constitution" as he recalled his rejection of
the "exercise (of) power that can be Identified merely with a revolutionary government" that makes its own law,
thus:

. . . Whoever he may be and whatever position he may happen to have, whether in government
or outside government, it is absolutely necessary now that we look solemnly and perceptively
into the Constitution and try to discover for ourselves what our role is in the successful
implementation of that Constitution. With this thought, therefore, we can agree on one thing and
that is: Let all of us age, let all of us then pass away as a pace in the development of our country.
but let the Constitution remain firm and stable and let institutions grow in strength from day to
day, from achievement to achievement, and so long as that Constitution stands, whoever may
the man in power be, whatever may his purpose be, that Constitution will guide the people and
no man, however, powerful he may be, will dare to destroy and wreck the foundation of such a
Constitution.

These are the reasons why I personally, having proclaimed martial law, having been often
induced to exercise power that can be Identified merely with a revolutionary government, have
remained steadfast or the rule of law and the Constitution. 54*

IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query allowed by a
vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as resource speakers under
Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in discussions and debates on
the referendum-plebiscite questions under Section 7 of the same Decree."55

The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the majority
resolution, with all due respect, on the ground that the non-participation of judges in such public discussions and
debates on the referendum-plebiscite questions would preserve the traditional non-involvement of the judiciary in
public discussions of controversial issues. This is essential for the maintenance and enhancement of the
people's faith and confidence in the judiciary. The questions of the validity of the scheduled referendum-
plebiscite and of whether there is proper submission of the proposed amendments were precisely subjudice by
virtue of the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and
independence of the judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their
courtesy resignations to avoid an indefinite state of insecurity of their tenure in office still spends litigants and
their relatives and friends as well as a good sector of the public would be hesitant to air views contrary to that of
the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them of record
here, since we understand that the permission given in the resolution is nevertheless addressed to the personal
decision and conscience of each judge, and these views may he of some guidance to them.

BARREDO, J.,: concurring:

While I am in full agreement with the majority of my brethren that the herein petitions should be dismissed, as in
fact I vote for their dismissal, I deem it imperative that I should state separately the considerations that have
impelled me to do so.

Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to whether or
not I should have taken part in the consideration and resolution of these cases. Indeed, it would not be befitting
my position in this Highest Tribunal of the land for me to leave unmentioned the circumstances which have given
cause, I presume, for others to feel apprehensive that my participation in these proceedings might detract from
that degree of faith in the impartiality that the Court's judgment herein should ordinarily command. In a way, it
can be said, of course, that I am the one most responsible for such a rather problematical situation, and it is
precisely for this reason that I have decided to begin this opinion with a discussion of why I have not inhibited
myself, trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity
and purity of purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent contents of the official report of the
Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about the
proceedings held on August 14, 1976. It is stated in that public document that:

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when
the President express his desire to share his powers with other people.

Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA) headed
by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa'
or 'Batasang Pambansa' which would help the President in the performance of his legislative functions. The
proposed new body will take the place of the interim National Assembly which is considered not practical to
convene at this time considering the constitution of its membership.

Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August 1
suggested that the people be consulted on a proposal to create a new legislative body to replace the interim
assembly provided for by the Constitution. The suggestion of the barangay units was made through their
national association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Patines. She said that
the people have shown in at least six instances including in the two past referenda that they are against the
convening of the interim National Assembly. She also said that since the people had ruled out the calling of such
assembly and that they have once proposed that the President create instead the Sangguniang Pambansa or a
legislative advisory body, then the proposal to create a new legislative must necessarily be referred to the
people.

The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the
Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a
new legislative body.

On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of
the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative
advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a
symposium and made a stand which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to discuss more intellegently the
proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans.

Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies, were
forwarded to the Department of Local Government and Community Development (DLGCD).

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91 member
National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held
at Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming
from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have culminated in the holding
of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has
been more substantial and meaningful than the above report imparts. Most importantly, aside from being
probably the first person to publicly articulate the need for the creation of an interim legislative body to take the
place of. the interim National Assembly provided for in the Transitory Provisions of the Constitution, as
suggested in the above report, I might say that I was the one most vehement and persistent in publicly
advocating and urging the authorities concerned to directly submit to the people in a plebiscite whatever
amendments of the Constitution might be considered necessary for the establishment of such substitute interim
legislature. In the aforementioned session of the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step towards the early lifting of martial law and on
the fundamental considerations why in our present situation a constitutional convention would be superfluous in
amending the Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the Hilton Hotel
in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a constitutional convention.
I reiterated the same views on September 7, 1976 at the initial conference called by the Comelec in the course
of the information and educational campaign it was enjoined to conduct on the subject. And looking back at the
subsequent developments up to September 22, 1976, when the Batasang Bayan approved and the President
signed the now impugned Presidential Decree No. 1033, it is but human for me to want to believe that to a
certain extent my strong criticisms and resolute stand against any other alternative procedure of amending the
Constitution for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done, was not
altogether mine alone. The truth of the matter is that throughout the four years of this martial law government, it
has always been my faith, as a result of casual and occasional exchanges of thought with President Marcos, that
when the appropriate time does come, the President would somehow make it known that in his judgment, the
situation has already so improved as to permit the implementation, if gradual, of the constitutionally envisioned
evolution of our government from its present state to a parliamentary one. Naturally, this would inevitably involve
the establishment of a legislative body to replace the abortive interim National Assembly. I have kept tract of all
the public and private pronouncements of the President, and it was the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one way or another, the materialization of the
forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's own attitude on the
matter that made it opportune for me to articulate my own feelings and Ideas as to how the nation can move
meaningfully towards normalization and to publicly raise the issues that have been ventilated by the parties in
the instant cases.

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

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

Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions and
personal inclinations to affect the objectivity needed in the resolution of any judicial question before the Court. I
feel I have always been able to appreciate, fully consider and duly weigh arguments and points raised by all
counsels, even when they conflict with my previous views. I am never beyond being convinced by good and
substantial ratiocination. Nothing has delighted me more than to discover that somebody else has thought of
more weighty arguments refuting my own, regardless of what or whose interests are at stake. I would not have
accepted my position in the Court had I felt I would not be able to be above my personal prejudices. To my mind,
it is not that a judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views
that are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is unavoidable; but I
have always maintained that whatever improper factors might influence a judge will unavoidably always appear
on the face of the decision. In any event, is there better guarantee of justice when the preconceptions of a judge
are concealed?

Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court as not
covered by the general rules relative to disqualification and inhibition of judges in cases before them. If I have in
practice actually refrained from participating in some cases, it has not been because of any legal ground
founded on said rules, but for purely personal reasons, specially because, anyway, my vote would not have
altered the results therein.

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

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark of the
rights and liberties of all the people demands that only one of dependable and trustworthy probity should occupy
the same. Absolute integrity, mental and otherwise, must be by everyone who is appointed thereto. The moral
character of every member of the Court must be assumed to be such that in no case whatsoever. regardless of
the issues and the parties involved, may it be feared that anyone's life, liberty or property, much less the national
interests, would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In
sum, every Justice of the Supreme Court is expected to be capable of rising above himself in every case and of
having full control of his emotions and prejudices, such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable that his judgment cannot be but objectively
impartial, Indeed, even the appointing power, to whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All appointments to the Court are based on these
considerations, hence the ordinary rules on inhibition and disqualification do not have to be applied to its
members.

With the preliminary matter of my individual circumstances out of the way, I shall now address myself to the
grave issues submitted for Our resolution.

-I-
In regard to the first issue as to whether the questions posed in the petitions herein are political or justiciable,
suffice it for me to reiterate the fundamental position I took in the Martial Law cases,1 thus

As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We
are immediately encountered by absolute verities to guide Us all the way. The first and most
important of them is that the Constitution (Unless expressly stated otherwise, all references to
the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the
pertinent provisions are practically Identical in both is the supreme law of the land. This means
among other things that all the powers of the government and of all its officials from the President
down to the lowest emanate from it. None of them may exercise any power unless it can be
traced thereto either textually or by natural and logical implication. "The second is that it is settled
that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter
of all conflicts as to what the Constitution or any part thereof means. While the other
Departments may adopt their own construction thereof, when such construction is challenged by
the proper party in an appropriate case wherein a decision would be impossible without
determining the correct construction, the Supreme Court's word on the matter controls.

xxx xxx xxx

xxx xxx xxx

The fifth is that in the same manner that the Executive power conferred upon the Executive by
the Constitution is complete, total and unlimited, so also, the judicial power vested in the
Supreme Court and the inferior courts, is the very whole of that power, without any limitation or
qualification.

xxx xxx xxx

xxx xxx xxx

From these incontrovertible postulates, it results, first of all, that the main question before Us is
not in reality one of jurisdiction, for there can be no conceivable controversy, especially one
involving a conflict as to the correct construction of the Constitution, that is not contemplated to
be within the judicial authority of the courts to hear and decide. The judicial power of the courts
being unlimited and unqualified, it extends over all situations that call for the as certainment and
protection of the rights of any party allegedly violated, even when the alleged violator is the
highest official of the land or the government itself. It is, therefore, evidence that the Court's
jurisdiction to take cognizance of and to decide the instant petitions on their merits is beyond
challenge.

In this connection, however, it must be borne in mind that in the form of government envisaged
by the framers of the Constitution and adopted by our people, the Court's indisputable and
plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as
the only means of settling the conflicting claims of the parties before it. It is ingrained in the
distribution of powers in the fundamental law that hand in hand with the vesting of the judicial
power upon the Court, the Constitution has coevally conferred upon it the discretion to
determine, in consideration of the constitutional prerogatives granted to the other Departments,
when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It
is in the very nature of republican governments that certain matters are left in the residual power
of the people themselves to resolve, either directly at the polls or thru their elected
representatives in the political Departments of the government. And these reserved matters are
easily distinguishable by their very nature, when one studiously considers the basic functions and
responsibilities entrusted by the charter to each of the great Departments of the government. To
cite an obvious example, the protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being within the ambit of judicial
responsibility. The distinct role then of the Supreme Court of being the final arbiter in the
determination of constitutional controversies does not have to be asserted in such contemplated
situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage
or thru the acts of their political representatives they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in American
constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part
and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism,
which is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might
prevail. It has been invoked and applied by this Court in varied forms and mode of projection in several
momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366;
Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs.
Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs.
Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the
main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also
referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply,
activism and self- restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in
any particular eventuality is naturally dictated by what in the Court's considered opinion is what the Constitution
envisions should be by in order to accomplish the objectives of government and of nationhood. And perhaps it
may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach
based on the doctrine of separation of powers. In truth, We perceive that even under such mode of
rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and
independent Department being the general rule, particularly when the issue is not encroachment of delimited
areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on the
merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature of the
issues herein raised requires that the Court should exercise its constitutionally endowed prerogative to refrain
from exerting its judicial authority in the premises.

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear
and definite express provision in the Charter applicable to the factual milieu herein involved. The primary issue
is, to whom, under the circumstances, does the authority to propose amendments to the Constitution property
belong? To say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies in the interim
National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it
could ' only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article
XVII may be convoked. But precisely, the fundamental issue We are called upon to decide is whether or not it is
still constitutionally possible to convene that body. And relative to that question, the inquiry centers on whether
or not the political developments since the ratification of the Constitution indicate that the people have in effect
enjoined the convening of the interim National Assembly altogether. On this score, it is my assessment that the
results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the
great majority of our people, for reasons plainly obvious to anyone who would consider the composition of that
Assembly, what with its more than 400 members automatically voted into it by the Constitutional Convention
together with its own members, are against its being convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given effect without a
formal amendment of the Constitution is something that constitutional scholars may endlessly debate on. What
cannot be disputed, however, is that the government and the nation have acquiesced to, it and have actually
operated on the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the
people desire that the interim Assembly be not convened, has ordained the suspension of its convocation, has
not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973.

In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the
constitutional relevance of the interim National Assembly to any proposal to amend the Constitution at this time.
It is my considered opinion that in resolving that question, the Court must have to grapple with the problem of
what to do with the will of the people, which although manifested in a manner not explicitly provided for in the
Constitution, was nevertheless official, and reliable, and what is more important clear and unmistakable, despite
the known existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is
not proper for the Court to interpose its judicial authority against the evident decision of the people and should
leave it to the political department of the government to devise the ways and means of resolving the resulting
problem of how to amend the Constitution, so long as in choosing the same, the ultimate constituent power is left
to be exercised by the people themselves in a well- ordered plebiscite as required by the fundamental law.

-2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the
projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the
peculiar situation in which the government is today, it is not incompatible with the Constitution for the President
to propose the subject amendments for ratification by the people in a formal plebiscite under the supervision of
the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the
Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the
Constitution. The correctness of this conclusion should become even more patent, when one considers the
political developments that the people have brought about since the ratification of the Constitution on January
17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the
celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution Association
and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind
that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution
overtook the drafting of the new charter by the Constitutional Convention of 1971. It was
inevitable, therefore, that the delegates had to take into account not only the developments under
it but, most of all, its declared objectives and what the President, as its administrator, was doing
to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the
convention was roundly voted down to signify the determination of the delegates to finish earliest
their work, thereby to accomplish the mission entrusted to them by the people to introduce
meaningful reforms in our government and society. Indeed, the constituent labors gained rapid
tempo, but in the process, the delegates were to realize that the reforms they were formulating
could be best implemented if the martial law powers of the President were to be allowed to
subsist even after the ratification of the Constitution they were approving. This denouement was
unusual. Ordinarily, a constitution born out of a crisis is supposed to provide all the needed cures
and can, therefore, be immediately in full force and effect after ratification. Not so, with our 1973
Constitution, Yes, according to the Supreme Court, 'there is no more judicial obstacle to the new
Constitution being considered in force and effect', but in truth, it is not yet so in full. Let me
explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main
part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our
Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the
transition of our government from the presidential form under the past charter to a parliamentary one as
envisaged in the new fundamental law, but also to institutionalize, according to the President, the reforms
introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has
turned out, has in effect established a transition government, not, I am sure, perceived by many. It is a
government that is neither presidential nor parliamentary. It is headed, of course, by President Marcos who not
on retains all his powers under the 1935 Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and does legislate alone. But to be more accurate,
I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has suspended the convening of said assembly by
issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the Filipino people' expressed in
the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for
approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we
were told that the resulting ratification was subject to the condition that the interim National Assembly evidently
established in the Constitution as the distinctive and indispensable element of a parliamentary form of
government should nevertheless be not convened and that no elections should be held for about seven years,
with the consequence that we have now a parliamentary government without a parliament and a republic without
any regular election of its officials. And as you can see, this phenomenon came into being not by virtue of the
Constitution but of the direct mandate of the sovereign people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct democracy
through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been transformed
into barangays, a system of government proclaimed by the President as 'a real achievement in participatory
democracy.' What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional
authoritarianism means, in the final analysis, that the fundamental source of authority of our existing government
may not be necessarily found within the four corners of the Constitution but rather in the results of periodic
referendums conducted by the Commission on Elections in a manner well known to all of us This, as I see it, is
perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law - powers sanctioned directly by the people which may not even be read in the
language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of reference should
not necessarily be the Constitution but the outcome of referendums called from time to time by the President.
The sooner we imbibe this vital concept the more intelligent will our perspective be in giving our support and
loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers
of government are being exercised by the President, we - do not in reality have a dictatorship but an
experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is
important to note, relative to the main issue now before Us, that it was originally planned to ask the people in
that referendum whether or not they would like the interim National Assembly to convene, but the Comelec to
whom the task of preparing the questions was assigned was prevailed upon not to include any -such question
anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as
the members of the old Congress concerned that that matter had already been finally resolved in the previous
referenda of January and July 1973 in the sense that. the Assembly should not be convened comparable to res
adjudicata.

It is my position that as a result of the political developments since January 17, 1973 the transitory provisions
envisioning the convening of the interim National Assembly have been rendered legally inoperative. There is no
doubt in my mind that for the President to convoke the interim National Assembly as such would be to disregard
the will of the people - something no head of a democratic republican state like ours should do. And I find it
simply logical that the reasons that motivated the people to enjoin the convening of the Assembly - the unusually
large and unmanageable number of its members and the controversial morality of its automatic composition
consisting of all the incumbent elective national executive and legislative officials under the Old Constitution who
would agree to join it and the delegates themselves to the Convention who had voted in favor of the Transitory
Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to its being a constituent
body. And to be more realistic, it is but natural to conclude that since the people are against politicians in the old
order having anything to do with the formulation of national policies, there must be more reasons for them to
frown on said politicians taking part in amendment of the fundamental law, specially because the particular
amendment herein involved calls for the abolition of the interim National Assembly to which they belong and its
substitution by the Batasang Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I disagree. It
is inconsistent with the plenary power of the people to give or withhold their assent to a proposed Constitution to
maintain that they can do so only wholly. I cannot imagine any sound principle that can be invoked to support the
theory that the proposing authority can limit the power of ratification of the people. As long as there are reliable
means by which only partial approval can be manifested, no cogent reason exists why the sovereign people may
not do so. True it is that no proposed Constitution can be perfect and it may therefore be taken with the good
and the bad in it, but when there are feasible ways by which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its purported office to render the final authority - the
people impotent to act according to what they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of qualified
ratification. Proclamation 1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one
(14,976.561) members of all the Barangays voted for the adoption of the proposed Constitution,
as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for
its rejection; but a majority of those who approved the new Constitution conditioned their votes
on the demand that the interim National Assembly provided in its Transitory Provisions should
not be convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The above factual
premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being
a political act of a coordinate department of the government not properly assailed as arbitrary or whimsical. At
this point, it must be emphasized in relation to the contention that a referendum is only consultative, that
Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the Constitution,
must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel if the Act
of ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact
that the sovereign people have voted against the convening of the interim National Assembly, and faced with the
problem of amending the Constitution in order precisely to implement the people's rejection of that Assembly, the
problem of constitutional dimension that confronts Us, is how can any such amendment be proposed for
ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the constitutional
convention to perform the constituent function of formulating proposed amendments has been rendered
inoperative by the people themselves, the people have thereby foreclosed the possibility of amending the
Constitution no matter how desirable or necessary this might be. In this connection, I submit that by the very
nature of the office of the Presidency in the prevailing scheme of government we have - it being the only political
department of the government in existence - it is consistent with basic principles of constitutionalism to
acknowledge the President's authority to perform the constituent function, there being no other entity or body
lodged with the prerogative to exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-
convening of the interim Assembly, the legislative authority has perforce fallen into the hands of the President, if
only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is likewise conceded that
the provisions of Section 3 (2) of Article XVII invest the President with legislative power for the duration of the
transition period. From these premises, it is safe to conclude that in effect the President has been substituted by
the people themselves in place of the interim Assembly. Such being the case, the President should be deemed
as having been granted also the cognate prerogative of proposing amendments to the Constitution. In other
words, the force of necessity and the cognate nature of the act justify that the department exercising the
legislative faculty be the one to likewise perform the constituent function that was attached to the body rendered
impotent by the people's mandate. Incidentally, I reject most vehemently the proposition that the President may
propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a
suggestion cannot be reconciled with the Ideal that a Constitution is the free act of the people.

It was suggested during the oral, argument that instead of extending his legislative powers by proposing the
amendment to create a new legislative body, the President should issue a decree providing for the necessary
apportionment of the seats in the Regular National Assembly and call for an election of the members thereof and
thus effect the immediate normalization of the parliamentary government envisaged in the Constitution. While
indeed procedurally feasible, the suggestion overlooks the imperative need recognized by the constitutional
convention as may be inferred from the obvious purpose of the transitory provisions, for a period of preparation
and acquaintance by all concerned with the unfamiliar distinctive features and practices of the parliamentary
system. Accustomed as we are to the presidential system, the Convention has seen to it that there should be an
interim parliament under the present leadership, which will take the corresponding measures to effectuate the
efficient and smooth transition from the present system to the new one. I do not believe this pattern set by the
convention should be abandoned.

The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is
considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a
Constitutional Convention or submit such a call for approval of the people, Section 15 of Article XVII, in
reference to interim National Assembly, does not grant said body the prerogative of calling a convention, one
can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a convention
during the transition, if only because such a procedure would be time consuming, cumbersome and expensive.
And when it is further noted that the requirement as to the number of votes needed for a proposal is only a
majority, whereas it is three-fourths in respect to regular Assembly, and, relating this point to the provision of
Section 2 of Article XVI to the effect that all ratification plebiscites must be held "not later than three months after
the approval" of the proposed amendment by the proposing authority, the adoption of the most simple manner of
amending the charter, as that provided for in the assailed Presidential Decree 1033 suggests itself as the one
most in accord with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of
amending or changing the same. To cite but one important precedent, as explained by Mr. Justice Makasiar in
his concurring opinion in Javellana 2, the present Constitution of the United States was neither proposed nor
ratified in the manner ordained by the original charter of that country, the Articles of Confederation and Perpetual
Union.

In brief. if the convening and operation of the interim National Assembly has been effectuated through a
referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two subsequent referenda, those
of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the purpose of creating a
substitute for that Assembly? It should be borne in mind that after all, as indicated in the whereas of the
impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and
sanggunian members. In other words, in submitting the amendments for ratification, the President is merely
acting as the conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of the amendments
in question. If all these mean that the sovereign people have arrogated unto themselves the functions relative to
the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having
in mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides
in the people and all government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the
Constitution, if only because the specific provision it is supposed to infringe does not exist in legal contemplation
since it was coevally made inoperative when the people ratified the Constitution on January 17, 1973. I am fully
convinced that there is nothing in the procedure of amendment contained in said decree that is inconsistent with
the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms
admirably with the underlying tenet of our government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree 1033,
all I can say is that while perhaps my other colleagues are right in holding that the period given to the people is
adequate, I would leave it to the President to consider whether or not it would be wiser to extend the same. Just
to avoid adverse comments later I wish the President orders a postponement. But whether such postponement
is ordered or not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date,
would be of no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their
sovereign capacity, the question is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil.
1051), which is a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana, et al. vs.
Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs
Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag
et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for
amendment is not important Ratification by the people is all that is indispensable to validate an amendment.
Once ratified, the method of making the proposal and the period for submission become relevant.

The contrary view negates the very essence of a republican democracy - that the people are sovereign - and
renders meaningless the emphatic declaration in the very first provision of Article II of the 1973 Constitution that
the Philippines is a republican state, sovereignty resides in the people and all government authority emanates
from them. It is axiomatic that sovereignty is illimitable The representatives cannot dictate to the sovereign
people. They may guide them; but they cannot supplant their judgment, Such an opposite view likewise distrusts
the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to
intellectual superiority. There are thousands upon thousands among the citizenry, who are not in the public
service, who are more learned and better skilled than many of their elected representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-
302) that the President as enforcer or administrator of martial rule during the period of martial law can legislate;
and that he has the discretion as to when the convene the interim National Assembly depending on prevailing
conditions of peace and order. In view of the fact that the interim National Assembly has not been convoked in
obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore remains
the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the
interim National Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded
by petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which drafted
the 1973 Constitution. the President, during the period of martial law, can call a constitutional convention for the
purpose, admittedly a constituent power, it stands to reason that the President can likewise legally propose
amendments to the fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be noted that this device has been
utilized by the judiciary "to avoid determining questions it is ill equipped to determine or that could be settled in
any event only with the effective support of the political branches."1 According to Weston, judges, whether
"personal representatives of a truly sovereign king, or taking their seats as the creatures of a largely popular
sovereignty speaking through a written constitution, derive their power by a delegation, which clearly or
obscurely as the case may be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * *
are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which
the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by
its own extra-government or has reserved to be settled by its own extra-governmental action."2 Reflecting a
similar concept, this Court has defined a "political question" as a "matter which is to be exercised by the people
in their primary political capacity or that has been specifically delegated to some other department or particular
officer of the government, with discretionary power to act."3 In other words, it refers to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government.4

In determining whether an issue falls within the political question category, the absence of satisfactory creterion
for a judicial determination or the appropriateness of attributing finality to the action of the political departments
of government is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr,5 thus :

Prominent on the surface of any case held to involve political question is found a textually
demonstrable constitutional lack of judicially discoverrable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from from multifarious pronouncements by various departments on one question.
...

To decide whether a matter has in a measure been committed by the Constitution to another branch of
government or retained be the people to be decided by them in their sovereign capacity, or whether that branch
exceeds whatever authority has been committed, is indeed a delicate exercise in constitutional interpretation.

In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by state
legislatures of a constitutional amendment is a political question. On the question of whether the State
Legislature could constitutionally relative an amendment, after the same had been previously rejected by it, it
was held that the ultimate authority over the question was in Congress in the exercise of its control over the
promulgation of the adoption of the amendment. And in connection with the second question of whether the
amendment has lost its, vitality through the lapse of time, the Court held that the question was likewise political,
involving "as it does ... an appraisal of a great variety of relevant conditions, political, social and economic, which
can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which
it would be an extravagant extension of juridical authority to assert judicial notice as the basis of deciding a
controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions
are appropriate for the consideration of the political departments of the Government. The questions they involve
are essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

The Constitution grants Congress exclusive power to control submission off constitutional
amendments. Final determination by Congress their ratification by three-fourths of the States has
taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is
governed by the Constitution. However, A whether submission, intervening procedure for
Congressional determination of ratification conforms to the commands of the Constitution, call for
decisions by apolitical department of questions of a t@ which this Court has frequently
designated 'political.' And decision of a 'political question' by the political department' to which the
Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens
and subjects of ... government. Proclamation under authority of Congress that an amendment
has been ratified will carry with it a solemn assurance by the Congress that ratification has taken
place as the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, learning to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the present case even by implieding
assumes a power to make judicial interpretation of the exclusive constitutional authority of
Congress over submission and by ratification of amendments, we are unable to agree.

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez Vitol, 7 speaking
through Mr. Justice Pedro Tuason, ruled that the process of constitutional amendment, involving proposal and
ratification, is a political question. In the Mabang case, the petitioners sought to prevent the enforcement of a
resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had
not been approved by the three-fourths vote of all the members of each house as required be Article XV of the
1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of
Representatives had been suspended and that their membership was not considered in the determination of the
three- fourths %- ore In dismissing the petition on the ground that the question of the validity of the proposal was
political, the Court stated:

"If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political
question. The question to steps complement each other in a scheme intended to achieve a single objective. It is
to be noted that amendatory process as provided in Section I of Article XV of the Philippine Constitution 'consists
of (only) two distinct parts: proposal and ratification.' There is no logic in attaching political character to one and
withholding that character from the other. Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution
itself. ..." (At pages 4-5, Italics supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of Congress,
acting as a constituent assembly - violates the Constitution is essentially justiciable, not political, and hence,
subject to judicial review." What was involved in Gonzales, however, was not a proposed What was involved in
Gonzales, however, was not a proposed amendment to the Constitution but an act of Congress,9 submitting
proposed amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what was
involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the
Constitutional Convention submitting the proposal for ratification. The question was whether piecemeal
amendments to the Constitution could submitted to the people for approval or rejection.

II

Here, the point has been stressed that the President is acting as agent for and in behalf of the people in
proposing the amendment. there can be no question that in the referendums of January, 1973 and in the
subsequent referendums the people had clearly and categorically rejected the calling of the interim National
Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay
organizations and the various sectoral groups had proposed the replacement of the interim National Assembly.
These barangays and the Sanggunian assemblies are effective instrumentalities through which the desires of
the people are articulated and expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19)
cabinet members and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in their special
session to submit directly to the people in a plebiscite on October 16, 1976 the afore-mentioned constitutional
amendments. Through the Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang
Bayan, the people have expressed their desire not only to abolish the interim National Assembly, but to replace
it with a more representative body acceptable to them in order to effect the desirable constitutional changes
necessary to hasten the political evolution of the government towards the parliamentary system, while at the
same time ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be
safeguarded. The proposed constitutional amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to propose those
amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v.
Commission or Elections,11 took judicial notice of the fact that in the referendum of January, 1973, a majority of
those who approved the new Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be and the President "in deference to the sovereign
will of the Filipino people" declared that the convening of said body shall be suspended.12 As this Court observed
in the Aquino case:

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

Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be
accepted as a necessary consequence that their objection against the immediate convening of the interim
National Assembly must be respected as a positive mandate of the sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority
emanates from them."13 The term "People" as sovereign is comprehensive in its context. The people, as
sovereign creator of all political reality, is not merely the enfranchised citizens but the political unity of the
people. 14 It connotes, therefore, a people which exists not only in the urgent present but in the continuum of
history. The assumption that the opinion of The People as voters can be treated as the expression of the
interests of the People as a historic community was, to the distinguished American journalist and public
philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as the corporate
nation, the voters have no title to consider themselves the proprietors of the commonwealth and
to claim that their interests are Identical to the public interest. A prevailing plurality of the voters
are not The People. The claim that they are is a bogus title invoked to justify the usurpation of the
executive power by representative assemblies and the intimidation of public men by demagogue
politicians. In fact demagoguery can be described as the sleight of hand by which a faction of
The People as voters are invested with the authority of The People. That is why so many crimes
are committed in the People's name 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to
amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a
republican state. While Congress may propose amendments to the Constitution, it acts pursuant to authority
granted to it by the people through the Constitution. Both the power to propose and the authority to approve,
therefore, inhere in the people as the bearer of the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the
authority to exercise constituent powers, it follows from necessity that either the people should exercise that
power themselves or through any other instrumentality they may choose. For Law, like Nature, abhors a vacuum
(natural vacuum abhorret).

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

While it is true that the constituent power is not to be confuse with legislative power in general because the
prerogative to propose amendments is not embraced within the context of ordinary lawmaking, it must be noted
that the proposals to be submitted for ratification in the forthcoming referendum are, in the final analysis, actually
not of the President but directly of the people themselves, speaking through their authorized instrumentalities.

As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No. 1033. It being
conceded in all quarters that sovereignty resides in the people and it having been demonstrated
that their constituent power to amend the Constitution has not been delegated by them to any
instrumentality of the Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as beingultravires. Accordingly, without venturing to
rule on whether or not the President is vested with constituent power - as it does not appear
necessary to do so in the premises - the proposals here challenged, being acts of the sovereign
people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only
because the President, in exercising said authority, has acted as a mere ofiffet byf of the people
who made the proposals, but likewise because the said authority is legislative in nature rather
than constituent.
 This is but a recognition that the People of the Philippines have the inherent, sole and exclusive
right of regulating their own government, and of altering or abolishing their Constitution whenever
it may be necessary to their safety or happiness. There appears to be no justification, under the
existing, circumstances, for a Court to create by implication a limitation on - the sovereign power
of the people. As has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free exercise of it to be
obstructed, or that could render it dangerous to the stability of the government; because the
measure derives all its vital force from the action of the people at the ballot box, and there can
never be danger in submitting in an established form to a free people, the proposition whether
they will change their fundamental law The means provided for the exercise of their Sovereign
right of changing their constitution should receive such a construction as not to trammel the
exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right
of free government, which is inherent in the people; and the best security against tumult and
revolution is the free and unobstructed privilege to the people of the State to change their
constitution in the mode prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring
popular control over the constituent power. "If the people are to control the constituent power - the power to
make and change the fundamental law of the State," observed Wheeler," "the process of Constitutional change
must not be based too heavily upon existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man. can be trusted to determine his political destiny.
Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall
provide for their governance. For in the ultimate analysis, the success of the national endeavor shall depend on
the vision, discipline and I by ininess of the moqqqtai will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished
colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some
thoughts which trouble my mind and leave my conscience with no rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the
burden byeing lightened only by the thought that in this grave task of administering justice, when matters of
conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it
may be.

1. That sovereignty resides in the people and all government authority emanates from them is a fundamental,
basic principle of government which cannot be disputed, but when the people have opted to govern themselves
under the mantle of a written Constitution, each and every citizen, from the highest to the lowliest, has the
sacred duty to respect and obey the Character they have so ordained.

By the Constitution which they establish, they not only tie up he hands of their official agencies,
but their own hands as well; and neither the officers of the state, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of
law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of
the Rule of Law. it is a principle with which I have been familiar as a student of law under the tutelage of revered
Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure
the existence of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have
promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed
among three branches of government; they have also mandated in clear and unmistakable terms the method by
which provisions in their fundamental Charter may be amended or revised. Having done so, the people are
bound by these constitutional limitations. For while there is no surrender or abdication of the people's ultimate
authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves
within the procedural bounds of the existing fundamental law. The right of the people to amend or change their
Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or
condition in the country the change must be accomplished through the ordinary, regular and legitimate
processes provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the
authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in
that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant
of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the
people to decide on amendments to the Constitution .2 Such a view will seriously undermine the very existence
of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as
relevant to my point:

. . . the amendatory provisions are called a 'constitution of sovereighty' because they define the
constitutional meaning of 'sovereignty of the people.' Popular sovereignty, as embodied in the
Philippine Constitution, is not extreme popular sovereignty. As one American writer put it:

A constitution like the American one serves as a basic check upon the popular will at any given
time. It is the distinctive function of such written document to classify certain things as legal
fundamentals; these fundamentals may not be changed except by the slow and cumbersome
process of amendment. The people themselves have decided, in constitutional convention
assembled, to limit themselves ana future generations in the exercise of the sovereign power
which they would otherwise possess. And it is precisely such limitation that enables those subject
to governmental authority to appeal from the people drunk to the people sober in time of
excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of
the people against injury by the .people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental law may be
amended if, after all, the people by themselves can set the same at naught even in times of peace when civil
authority reigns supreme? To go along with the respondents' theory in this regard is to render written
Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of laws. For it
cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by
the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal
processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ
of Judea who was followed and loved by the people while curing the sick, making the lame walk and the blind
see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify
Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from
Judge Cooley:

A good Constitution should be beyond the reason of temporary excitement and popular caprice
or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not
to the whim of the people, or the thought evolved in excitement or hot blood, but the sober
second thought, which alone, if the government is to be sale can be allowed efficiency. ....
Changes in government are to be feared unless the benefit is certain." (quoted in Ellingham v.
Dye, 99 N.E. 1, 15,)3

Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of
Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

 It has been said that changes in the constitution may be introduced in disregard of its provisions;
that if the majority of the people desire a change the majority must be respected, no matter how
the change may be effected; and that the change, if revolution, is peaceful resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the
majority of the people desire, have looked at but one phase of the question, and have not fully
considered the terrible consequences which would almost certainly follow a recognition of the
doctrine for which they contend. It may be that the incorporation of this amendment in the
constitution, even if the constitution has to be broken to accomplish it, would not of itself produce
any serious results. But if it should be done by sanctioning the doctrine contended for, a
precedent would be set which would plague the state for all future time. A Banquo's ghost would
arise at our incantation which would not down at our bidding.

xxx xxx xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to republican
institutions. ...

xxx xxx xxx

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is a portion of
the bill of rights, and is as follows: 'All political power is inherent in the people. Government is instituted for the
protection, security, and benefit of of the people; and they have the right at all times to alter or reform the same,
whenever the public good may require.' Abstractly considered, there can bye no doubt of the correctness of the
propositions embraced in this suction. These principles are older than constitutions and older than governments.
The people did not derive the rights referred to by on the constitution. and, in their nature, thee are such that the
people cannot surrender them ... .

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976
for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void as
they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article
XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which applies during the present
transition period. The Opinion of Justice Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly which may
propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a
transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure
one infirmity - the existence of a "vacuum" caused by the non-convening of the interim National Assembly - with
another infirmity, that is, doing violence to the Charter.

All great mutations shake and disorder a state. Good does not necessarily succeed evil; another
evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra,
p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary
to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country
and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to
make this statement it is because so much stress was given during the hearings of these cases on this particular
point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendum-
plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is
unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should
pardon me therefore if I had ventured to state that the simple solution to the simple solution to the present
dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the
parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation 1102, the
people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape
from the pretended unfavorable consequences thereof, the only y being to set in motion the constitutional
machinery by which the supposed desired amendments may properly be adopted and submitted to the
electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and
preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique
Fernando in Mutuc vs. Commission on Elections
 ... The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest funcitonary, is
a postulate of our system of government. That is to manifest fealty to the rule of law, with priority
accorded to that which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234,
italics Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme
Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to
passion or thoughtless impulse but to allow the exercise of power by the people for the general good by
tistlercoitaitt restraints of law.3 . The true question before Us is is one of power. Does the incumbent President of
the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting
opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested
with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al.,
L-40004, January 31, 1975. 1 wish to stress that although in my separate opinion in said case I agreed that
Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my
statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist
even after the ratification of the Constitution is a matter which I am not ready to concede at the
moment, and which at any rate I believe is not essential in resolving this Petition for reasons to
be given later. Nonetheless, I hold the view that the President is empowered to issue
proclamations, orders, decrees, etc. to carry out and implement the objectives of the
proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its instrumentalities, and agencies. This grant of
legislative power is necessary to fill up a vacuum during the transition period when the interim
National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of
official functions resulting in a collapse of the government and of the existing social order. (62
SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power; one does not
encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this
regard. This is well-explained in Justice Teehankee's Opinion. The state of necessity brought about by the
current political situation, invoked by the respondents, provides no source of power to propose amendments to
the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by
inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the
fundamental law is lost and the powers of government are just what those in authority please to call them?'"5 Or
can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:

... let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly by order to attain some laudable objective bear in mind that
someday somehow others with purportedly more laudable objectives may take advantages of the
precedent in continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the Constitution the victims of their
own folly. 6

Respondents emphatically assert that the final word is the people's word and that ultimately it is in the hands of
the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let
it be an expression of the will of the people a normal political situation and not under the aegis of martial rule for
as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime
of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or
climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human
liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and
seizures, liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification
by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to state
that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution
with an "interim Batasang Pambansa their in by in Proposed amendment No. 6 will permit or allow the
concentration of power in one man - the Executive - Prime Minister or President or whatever you may call him -
for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even
during the existence of the appropriate legislative body, dependent solely on the executive's judgment on the
existence of a grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future,
when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober
deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935
Philippine Constitution, once said: .

... Nor is it enough that our people possess a written constitution in order that their government
may be called constitutional. To be deserving of this name, and to drive away all lanirer of
anarchy as well as of dictatorship whether by one man or a few, it is necessary that both the
government authorities and the people faithfully observe and obey the constitution, and that the
citizens be duly conversant not only with their rights but also with their duties...7

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the
grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly oil the
Judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the
basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the
implementation thereof.

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

The term "political question", as this Court has previously defined, refers to those questions which, under the
constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government. It is concerned with the
issues dependent upon the wisdom, not legality, of a particular measure.1

Here, the question raised is whether the President has authority to propose to the people amendments to the
Constitution which the petitioners claim is vested solely upon the National Assembly, the constitutional
convention called for the purpose, and the by the National Assembly. This is not a political question since it
involves the determination of conflicting claims of authority under the constitution.

In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of Congress, acting as
a constituent assembly, violates the Constitution, ruled that the question is essentially justiciable, not political,
and hence, subject to judicial review.

In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its jurisdiction vis-a-
vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well as those of a
constitutional convention called for the purpose of proposing amendments to the constitution. Insofar as
observance of constitutional provisions on the procedure for amending the constitution is concerned, the issue is
cognizable by this Court under its powers of judicial review.

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help resolve the issue.
It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to bring about an
orderly transition from the presidential to the parliamentary system of government.' The people, however,
probably distrustful of the members who are old time politicians and constitutional delegates who had voted
themselves by to membership in the interim National Assembly, voted against the convening of the said interim
assembly for at least seven years thus creating a political stalemate and a consequent delay' in the
transformation of the government into the parliamentary system. To resolve the impasse, the President, at the
instance of the barangays and sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by interim National Assembly with another
interim body truly representative of the people in a reformed society, issued Presidential Decree No. 991, on
September 2, 1976, calling for a national referendum on October -16, 1976 to ascertain the wishes of the people
as to the ways and means that may be available to attain the objective; providing for a period of educational and
information campaign on the issues; and establishing the mechanics and manner for holding thereof. But the
people, through their barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have
the constitution amended, thus prompting the President to issue Presidential Decree No. 1033, stating the
questions to @ submitted to the people in the referendum-plebiscite on October 16,1976.

As will be seen, the authority to amend the Constitution was removed from the interim National Assembly and
transferred to the seat of sovereignty itself. Since the Constitution emanates from the people who are the
repository of all political powers, their authority to amend the Constitution through the means they have adopted,
aside from those mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to show
that the President did not exercise his martial law legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene
the interim National Assembly, as suggested by the petitioners, without doing violence to the people's will
expressed overwhelmingly when they decided against convening the interim assembly for at least seven years.

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

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,

vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR, respondents.

Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further
cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as
member of the National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents,
Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of
the National Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-
elect of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following
resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES

NO SE HA PRESENTADO PROTESTA.
 Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere
presentado debidamente una protesta antes de la adopcion de la presente resolucion sean,
como por la presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the
only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things,
that said respondent be declared elected member of the National Assembly for the first district of
Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which
provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este

dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the
aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a)
that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly
was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during
which protests against the election of its members should be presented; (b) that the aforesaid resolution
has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in
question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of
Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest
against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid
"Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on
January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards
the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said
election contests, which power has been reserved to the Legislative Department of the Government or
the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision
and to matters involving their internal organization, the Electoral Commission can regulate its
proceedings only if the National Assembly has not availed of its primary power to so regulate such
proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and
obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6
of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as
under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court
has jurisdiction to pass upon the fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the
Legislative Department invested with the jurisdiction to decide "all contests relating to the election,
returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of
December 9, 1935, fixing this date as the last day for the presentation of protests against the election of
any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the
implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the
power and functions conferred upon the same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and
declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its
quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth
Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the
members of the National Assembly against whom no protest had thus far been filed, could not and did
not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within
the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936,
setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there
was no existing law fixing the period within which protests against the election of members of the
National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of
protests against the election of members of the National Assembly, the Electoral Commission was
exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial
attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on December
9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said
respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23,
1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said
commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the
election of its members, and that such confirmation does not operate to limit the period within which
protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed
subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with
quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation,
board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that
neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and
paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its
quasi-judicial functions to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed
for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition
was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the
controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the
cognizance of the protest filed the election of the herein petitioner notwithstanding the previous
confirmation of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ
impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question
and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we
not to pass upon the question of jurisdiction squarely presented to our consideration.

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.
For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this
assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become
a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also the right to convene the Assembly in special
session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive
in the sense that its consent through its Commission on Appointments is necessary in the appointments of
certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define
their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. 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.

But in 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 just where the
one leaves off and the other begins. 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 limitation 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 governments 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 voice 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 confirmation 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 restrictions. 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 department powers and agencies of
the government are necessarily determined by the judiciary in justifiable 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 constitutions 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 Czechoslovak Republic, February
29, 1920) and Spain (arts. 121-123, Title IX, Constitutional 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 be 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 mater 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."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of
the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December
3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of
Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated
by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated
by the party having the largest number of votes, and three by the party having the second largest number of
votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be
the sole judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and
inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full
meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down
the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was
taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House
shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress
of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That
the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and
qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over
the particular case s therein specified. This court has had occasion to characterize this grant of power to the
Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards
of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to
the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees
of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending
the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election
of executive officers for whose election the vote of the whole nation is required, as well as to initiate
impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative
protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members
of the house of the legislature to which the contest corresponds, three members to be designed by the majority
party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on
Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the
reduction of the legislative representation to four members, that is, two senators to be designated one each from
the two major parties in the Senate and two representatives to be designated one each from the two major
parties in the House of Representatives, and in awarding representation to the executive department in the
persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention
on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as
follows:

The elections, returns and qualifications of the members of either house and all cases contesting the
election of any of their members shall be judged by an Electoral Commission, constituted, as to each
House, by three members elected by the members of the party having the largest number of votes
 therein, three elected by the members of the party having the second largest number of votes, and as to
its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution
of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on
Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be
designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on
Legislative Power with respect to the composition of the Electoral Commission and made further changes in
phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally
submitted to the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of votes in the National Assembly, three
elected by the members of the party having the second largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said
justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to
strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National
Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members",
the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934,
as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines,
paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of
the National Assembly and all cases contesting the election of any of its Members shall be judged by an
Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and
qualification of the member whose elections is not contested shall also be judged by the Electoral
Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that
is why the word "judge" is used to indicate a controversy. If there is no question about the election of a
member, there is nothing to be submitted to the Electoral Commission and there is nothing to be
determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the
election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of
Representatives confirming the election of its members is just a matter of the rules of the assembly. It is
not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is
sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the
auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What
happens with regards to the councilors of a municipality? Does anybody confirm their election? The
municipal council does this: it makes a canvass and proclaims — in this case the municipal council
proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is
no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the
case referred to by the gentleman from Cavite where one person tries to be elected in place of another
who was declared elected. From example, in a case when the residence of the man who has been
elected is in question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain
maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give
to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns
and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos
Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz.
This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first
part of the sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already
included in the phrase "the elections, returns and qualifications." This phrase "and contested elections"
was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to
confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the
assembly, the assembly on its own motion does not have the right to contest the election and
qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-
thirds of the assembly believe that a member has not the qualifications provided by law, they cannot
remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the
eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and
make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not
contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and
authority to pass upon the qualifications of the members of the National Assembly even though that
question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the
members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an
amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining
the difference between the original draft and the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:

xxx xxx xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por
varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and
qualifications of the members of the National Assembly" parece que da a la Comision Electoral la
facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar
esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo
que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y
tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los
miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto
los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema
consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la
mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide
contests relating to the election, returns and qualifications of members of the National Assembly to the National
Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme Court in the Electoral Commission to two members each,
so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of
seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National
Assembly shall be judged by an Electoral Commission, composed of three members elected by the party
having the largest number of votes in the National Assembly, three elected by the members of the party
having the second largest number of votes, and three justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes, and three by the party having the
 second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The
Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members
of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through
President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests
relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the
Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the legislature
long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a
mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid
account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by
the House of Commons in the following passages which are partly quoted by the petitioner in his printed
memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the elections,
returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in
the determination of controverted elections, and rights of membership. One of the standing committees
appointed at the commencement of each session, was denominated the committee of privileges and
elections, whose functions was to hear and investigate all questions of this description which might be
referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to
time. When an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the
form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of
proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was
heard and decided by the house, in substantially the same manner as by a committee. The committee of
privileges and elections although a select committee. The committee of privileges and elections although
a select committee was usually what is called an open one; that is to say, in order to constitute the
committee, a quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership
gradually assumed a political character; so that for many years previous to the year 1770, controverted
elections had been tried and determined by the house of commons, as mere party questions, upon
which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert
Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse
vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted
under this system, that "Every principle of decency and justice were notoriously and openly prostituted,
from whence the younger part of the house were insensibly, but too successfully, induced to adopt the
same licentious conduct in more serious matters, and in questions of higher importance to the public
welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose
a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to
bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in
parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the
existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the
principal dependence of both parties is their private interest among us; and it is scandalously notorious
that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-
elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own
inclinations; nay, it is well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in
the contention, and take upon themselves the partial management of the very business, upon which they
should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met
with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was
the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it
"was one of the nobles works, for the honor of the house of commons, and the security of the
constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of
the evil, or the apparent success of the remedy, may have led many of the contemporaries of the
 measure to the information of a judgement, which was not acquiesced in by some of the leading
statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was
objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr.
Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament, and a total
abrogation of one of the most important rights and jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement
of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of
the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having
proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act,
1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43
Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion
of Canada, election contests which were originally heard by the Committee of the House of Commons, are since
1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally
determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all
protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme
Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921
(art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide
contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the
Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2,
1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the
judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute
as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made
no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States
Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the House of Representatives, and five justices of the
Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission
was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of Justice
Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the
United States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship of
Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their majority men
mature in years and experience. To be sure, many of them were familiar with the history and political
development of other countries of the world. When , therefore, they deemed it wise to create an Electoral
Commission as a constitutional organ and invested it with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National Assembly, they must have
done so not only in the light of their own experience but also having in view the experience of other enlightened
peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which
the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the
Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against
58. All that can be said now is that, upon the approval of the constitutional the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First
Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality
all the powers previously exercised by the legislature in matters pertaining to contested elections of its members,
to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan
considerations which prompted the people, acting through their delegates to the Convention, to provide for this
body known as the Electoral Commission. With this end in view, a composite body in which both the majority
and minority parties are equally represented to off-set partisan influence in its deliberations was created, and
further endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance
and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in
our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority,
an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our
Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of
members of the legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon
the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the
commission to lay down the period within which protests should be filed, the grant of power to the commission
would be ineffective. The Electoral Commission in such case would be invested with the power to determine
contested cases involving the election, returns and qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers
of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority
would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be
presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but
in reality without the necessary means to render that authority effective whenever and whenever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably
lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by
indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be
permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate
department of the government and of according validity to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley,
Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision
relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the
incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all
contests relating to the election, returns and qualifications of members of the National Assembly, must be
deemed by necessary implication to have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and
peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the
concession of the power as there is no power that is not susceptible of abuse. In the second place, if any
mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive
jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly,
the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the
possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that
the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive
determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases
entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve
specific purposes, and each constitutional organ working within its own particular sphere of discretionary action
must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they
were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be
desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that
the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that
its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts
may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of
equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy.
The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National
Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner,
Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro
Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not
show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the
Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing
of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935,
confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met;
neither does it appear that said body had actually been organized. As a mater of fact, according to certified
copies of official records on file in the archives division of the National Assembly attached to the record of this
case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National
Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935.
If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National
Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the
National Assembly — on the hypothesis that it still retained the incidental power of regulation in such cases —
had already barred the presentation of protests before the Electoral Commission had had time to organize itself
and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the
Constitution. This result was not and could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members against
whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a
limitation upon the time for the initiation of election contests. While there might have been good reason for the
legislative practice of confirmation of the election of members of the legislature at the time when the power to
decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be
construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the
sole judge of all contest relating to the election, returns, and qualifications of the members of the National
Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the
returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary.
As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the
herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any
member is not required by the Constitution before he can discharge his duties as such member. As a matter of
fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in
the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National
Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper
election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694,
695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the
decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions
for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the
determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed,
the order or decision of the particular house itself is generally regarded as sufficient, without any actual
alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature
fixed the time when protests against the election of any of its members should be filed. This was expressly
authorized by section 18 of the Jones Law making each house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and manner of filing contest in the election of member of said
bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each
house passed a resolution confirming or approving the returns of such members against whose election no
protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests
against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second
Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period, pp. 1121,
1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp.
892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be
deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest
relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the
authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional
provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the
time for the filing of contests against the election of its members. And what the National Assembly could not do
directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of separation of
power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes
difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally
to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and
controversies, and is the power and duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers and
functions to execute and perform, closer for purposes of classification to the legislative than to any of the
other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and
qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house of
the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective
members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature
with respect to contests relating to the elections, returns and qualifications of its members, to the
Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and
complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent
constitutional organ pass upon all contests relating to the election, returns and qualifications of members
of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated
if the National Assembly were to retain the power to prescribe rules and regulations regarding the
manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making
each house of the Philippine Legislature respectively the sole judge of the elections, returns and
qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to
prescribe by resolution the time and manner of filing contests against the election of its members, the
time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the
costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential before
such member-elect may discharge the duties and enjoy the privileges of a member of the National
Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no protest
had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its
 incidental power to prescribe the time within which protests against the election of any member of the
National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the
election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3,
1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of
members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the
Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional
creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it
unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person
within the purview of sections 226 and 516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.