G.R. No.

L-40004 January 31, 1975

BENIGNO S. AQUINO, JR., TRINIDAD HERRERA, BISHOP FRANCISCO CLAVER, S.J., BISHOP
ANTONIO NEPOMUCENO, BISHOP JESUS VALERA, BISHOP FELIX ZAFRA, BISHOP
TEOTIMO PACIS, EUGENIO LOPEZ, JR., SERGIO OSMEA, III, ANTONIO ARANETA, ANTONIO
MIRANDA, RAUL GONZALES, JOKER ARROYO, and EMILIO DE PERALTA, petitioners,
vs.
COMMISSION ON ELECTIONS, and NATIONAL TREASURER, respondents.
Lorenzo M. Taada, Renato E. Taada and Wigberto E. Taada for petitioners
Office of the Solicitor General Estelito P Mendoza, Assistant Solicitor General Hugo E. Gutierrez, Jr.,
Assistant Solicitor General Vicente V. Mendoza & Assistant Solicitor General Reynato S. Puno for
respondents.

MAKASIAR, J.:p
I
This petition for prohibition, which was filed on January 21, 1975, seeks the nullification of Presidential Decrees Nos. 1366, 1366-A, calling a
referendum for February 27, 1975, Presidential Decrees Nos. 629 and 630 appropriating funds therefor, and Presidential Decrees Nos. 637
and 637-A specifying the referendum questions, as well as other presidential decrees, orders and instructions relative to the said
referendum.

The respondents, through the Solicitor General, filed their comment on January 28, 1975. After the
oral argument of over 7 hours on January 30, 1975, the Court resolved to consider the comment as
answer and the case submitted for decision.
The first ground upon which the petition is predicated states that President Ferdinand E. Marcos
does not hold any legal office nor possess any lawful authority under either the 1935 Constitution or
the 1973 Constitution and therefore has no authority to issue the questioned proclamations, decrees
and orders. This challenges the title of the incumbent President to the office of the Presidency and
therefore is in the nature of a quo warrantoproceedings, the appropriate action by which the title of a
public officer can be questioned before the courts. Only the Solicitor General or the person who
asserts title to the same office can legally file such a quo warrantopetition. The petitioners do not
claim such right to the office and not one of them is the incumbent Solicitor General. Hence, they
have no personality to file the suit (Castro vs. Del Rosario, Jan. 30, 1967, 19 SCRA 197; City of
Manila & Antonio Villegas vs. Abelardo Subido, et. al., May 20, 1966, 17 SCRA 231-232, 235-236;
Nacionalista Party vs. Bautista, 85 Phil. 101; and Nacionalista Party vs. Vera, 85 Phil. 127). It is
established jurisprudence that the legality of the appointment or election of a public officer cannot be
questioned collaterally through a petition for prohibition which assails the validity of his official acts.
The foregoing governing legal principles on public officers are re-stated in order to avert any
misapprehension that they have been eroded by Our resolution in the instant petition.
Because of the far-reaching implications of the herein petition, the Court resolved to pass upon the
issues raised.
II
This Court already ruled in the Ratification Cases "that there is no further judicial obstacle to the new
Constitution being considered in force and effect." As Chief Justice Makalintal stressed in the
Habeas Corpus cases, the issue as to its effectivity "has been laid to rest by Our decision in
Javellana versus Executive Secretary (L-36142, March 31, 1973, 50 SCRA 30, 141), and of course
by the existing political realities both in the conduct of national affairs and in our relation with
countries" (Aquino, Jr. vs. Enrile and 8 companion cases, L-35546, L-35538-40, L-35538-40, L35547, L-35556, L-35571 and
L-35573, Sept. 17, 1971, 59 SCRA 183, 241).
III
In the aforesaid Habeas Corpus cases, We affirmed the validity of Martial Law Proclamation No.
1081 issued on September 22, 1972 by President Marcos because there was no arbitrariness in the
issuance of said proclamation pursuant to the 1935 Constitution that the factual bases had not
disappeared but had even been exacerbated; that the question is to the validity of the Martial Law
proclamation has been foreclosed by Section 3(2) of Article XVII of the 1973 Constitution, which
provides that "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, legal, binding
and effective even after the lifting of Martial Law or the ratification of this Constitution ..."; and that
"any inquiry by this Court in the present cases into the constitutional sufficiency of the factual bases
for the proclamation of Martial Law, has become moot and purposeless as a consequence of the
general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the
(1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want
President Marcos to continue beyond 1973 and finish the reforms be initiated under Martial Law?"
The overwhelming majority of those who cast their ballots, including citizens beyond 15 and 18
years, voted affirmatively on the proposal. The question was thereby removed from the area of
presidential power under the Constitution and transferred to the seat of sovereignty itself. Whatever
may be the nature of the exercise of that power by the President in the beginning whether or not
purely political and therefore non-justiciable this Court is precluded from applying its judicial
yardstick to the act of the sovereign." (Aquino, Jr. vs. Enrile, supra, 59 SCRA 183,
240-242).
Under the 1935 Constitution, President Ferdinand E. Marcos was duly reelected by the vote of the
sovereign people in the Presidential elections of 1969 by an overwhelming vote of over 5,000,000
electors as against 3,000,000 votes for his rival, garnering a majority of from about 896,498 to
1,436,118 (Osmea vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973). While his term of
office under the 1935 Constitution should have terminated on December 30, 1973, by the general
referendum of July 27-28, 1973, the sovereign people expressly authorized him to continue in office
even beyond 1973 under the 1973 Constitution (which was validly ratified on January 17, 1973 by
the sovereign people) in order to finish the reforms he initiated under Martial Law; and as
aforestated, as this was the decision of the people, in whom "sovereignty resides ... and all
government authority emanates ...," it is therefore beyond the scope of judicial inquiry (Aquino, Jr.
vs. Enrile, et. al., supra, p. 242).
The logical consequence therefore is that President Marcos is a de jure President of the Republic of
the Philippines.
IV
The next issue is whether he is the incumbent President of the Philippines within the purview of
Section 3 of Article XVII on the transitory provisions of the new or 1973 Constitution. As heretofore
stated, by virtue of his reelection in 1969, the term of President Marcos tinder the 1935 Constitution
was to terminate on December 30, 1973. The new Constitution was approved by the Constitutional
Convention on November 30, 1972, still during his incumbency. Being the only incumbent President
of the Philippines at the time of the approval of the new Constitution by the Constitutional
Convention, the Constitutional Convention had nobody in mind except President Ferdinand E.
Marcos who shall initially convene the interim Assembly. It was the incumbent President Marcos
alone who issued Martial Law Proclamation No. 1081 on September 22, 1972 and issued orders and
decrees as well as instructions and performed other acts as President prior to the approval on
November 30, 1972 of the new Constitution by the Constitutional Convention and prior to its
ratification on January 17, 1973 by the people. Consequently, since President Marcos was the only
incumbent President at the time, because his term under the 1935 Constitution has yet to expire on
December 30, 1973, the Constitutional Convention, in approving the new Constitution, had in mind
only him when in Section 3(2) of Article XVII of the new Constitution it provided "that all the
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, legal, 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."
The term incumbent President of the Philippines employed in Section 9 of the same Article XVII
likewise could only refer to President Ferdinand E. Marcos. .
This conclusion is further buttressed by Section 10 of the same Article XVII which provides that
"the incumbent members of the Judiciary may continue in office until they reach the age of 70 years
unless sooner replaced in accordance with the preceding section hereof." There can be no dispute
that the phrase "incumbent members of the Judiciary" can only refer to those members of the
Judiciary who were already Justices and Judges of the various courts of the country at the time the
Constitutional Convention approved the new Constitution on November 30, 1972 and when it was
ratified.
Because President Ferdinand E. Marcos is the incumbent President referred to in Article XVII of the
transitory provisions of the 1973 Constitution, he can "continue to exercise the 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 he calls upon the interim National

Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their
legislative powers vested by this Constitution (Sec. 3[l], Art. XVII, 1973 Constitution).
Under the 1935 Constitution, the President is empowered to proclaim martial law. Under the 1973
Constitution, it is the Prime Minister who is vested with such authority (Sec. 12, Art. IX, 1973
Constitution).
WE affirm the proposition that as Commander-in-Chief and enforcer or administrator of martial law,
the incumbent President of the Philippines can promulgate proclamations, orders and decrees
during the period of 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 (Rossiter, Constitutional Dictatorship, 1948 Ed., pp. 7, 303; see
also Chief Justice Stone's Concurring Opinion in Duncan vs. Kahanamoku, 327 US 304).
To dissipate all doubts as to the legality of such law-making authority by the President during the
period of Martial Law, Section 3(2) of Article XVII of the New Constitution expressly affirms that all
the proclamations, orders, decrees, instructions and acts he promulgated, issued or did prior to the
approval by the Constitutional Convention on November 30, 1972 and prior to the ratification by the
people on January 17, 1973 of the new Constitution, are "part of the law of the land, and shall
remain valid, legal, binding and effective even after the 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 specifically
modified or repealed by the regular National Assembly."
The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a recognition of such
power as already existing in favor of the incumbent President during the period of Martial Law.
Dr. Jose M. Aruego, noted authority in Constitutional Law as well as delegate to the 1935 and 1971
Constitutional Conventions, shares this view, when he states thus:
108. ... These Presidential Proclamations, order, decrees, instructions, etc. had
been issued by the incumbent President in the exercise of what he consider to be his
powers under martial law, in the same manner that the lawmaking body had enacted
several thousand statutes in the exercise of what it consider to be its power under
the Organic Laws. Both these classes of rules of law by the President and by the
lawmaking body were, under general principles of constitutional law, presumed to
be constitutional until declared unconstitutional by the agency charged with the
power and function to pass upon constitutional law question the Judiciary, at the
apex of which is the Supreme Court. Hence, the inclusion of both group of rules
President rules and legislative rules in the new Constitution for the people to
approve or disapprove in the scheduled plebiscite. (Aruego, The New Constitution,
1973 Ed., p. 230).
Delegate Arturo Pacificador, a Floor Leader of the 1971 Constitutional Convention, in explaining
Section 3(2) of Article XVII, underscores this recognition of the legislative power of the incumbent
President as Commander-in-Chief during martial Law, thus:
The second paragraph sets forth the understanding of the Convention of the nature,
extent and scope of the powers of the incumbent President of the Philippines, under
martial law. It expressly recognizes that the commander-in-chief, under martial law,
can exercise all necessary powers to meet the perils of invasion, insurrection,
rebellion or imminent danger thereof. This provision complements Section 7, Article
XVII of the Constitution that "all existing laws not inconsistent with this Constitution
shall remain operative until amended, modified, or repealed by the National
Assembly."
The second paragraph is an express recognition on the part of the framers of the
new Constitution of the wisdom of the proclamations, orders, decrees and
instructions by the incumbent President in the light of the prevailing conditions
obtaining in the country. (Montejo, New Constitution, 1973 Ed., p. 314, emphasis
supplied).
The power under the second clause of Section 3(2) is not limited merely to modifying, revoking or
superseding all his proclamations, orders, decrees, instructions or other acts promulgated, issued or
done prior to the ratification of the 1973 Constitution. But even if the scope of his legislative authority
thereunder is to be limited to the subject matter of his previous proclamations, orders, decrees or
instructions or acts, the challenged Proclamations Nos. 1366 and 1366-A, as well as Presidential

Decrees Nos. 629, 630, 637 and 637-A are analogous to the referenda of January, 1973 and July
27-28, 1973.
The actions of the incumbent President are not without historical precedents. It should be recalled
that the American Federal Constitution, unlike the 1935 or 1973 Constitution of the Philippines, does
not confer expressly on the American President the power to proclaim Martial Law or to suspend the
writ of habeas corpus. And yet President Abraham Lincoln during the Civil War, and President
Roosevelt during the Second World War, without express constitutional or statutory authority, created
agencies and offices and appropriated public funds therefor in connection with the prosecution of the
war. Nobody raised a finger to oppose the same. In the case of President Roosevelt, the theater of
war was not in the United States. It was thousands of miles away, in the continents of Europe and
Africa and in the Far East. In the Philippines, military engagements between the government forces
and the rebels and secessionists are going on, emphasizing the immediacy of the peril to the safety
of the Republic itself. There is therefore greater reason to affirm this law-making authority in favor of
the incumbent President during the period of Martial Law.
Petitioners further argue that the President should call the interim National Assembly as required of
him by Section 3(1) of Article XVII, which National Assembly alone can exercise legislative powers
during the period of transition.
It should be stressed that there is a distinction between the existence of the interim Assembly and its
organization as well as its functioning. The interim Assembly already existed from the time the new
Constitution was ratified; because Section 1 of Article XVII states that "there shall be
an interim National Assembly which shall exist immediately upon the ratification of this Constitution
and shall continue until the members of the regular National Assembly shall have been elected and
shall have assumed office ..." However, it cannot function until it is convened and thereafter duly
organized with the election of its interim speaker and other officials. This distinction was clearly
delineated in the case of Mejia, et. al. vs. Balolong, et. al. where We held that from the phrase "the
City of Dagupan, which is hereby created, ...," Dagupan City came into existence as a legal entity
upon the approval of its Charter; but the date of the organization of the city government was to be
fixed by the President of the Philippines, and necessarily was subsequent to the approval of its
organic law (81 Phil. 486, 490-492).
Petitioners likewise urge that the President should have convened the interim Assembly before the
expiration of his term on December 30, 1973. 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. This was
revealed by no less than Delegate Jose M. Aruego himself, who stated:
109. Convening the interim National Assembly. The Constitutional Convention
could have fixed the date when the interim National Assembly should convene itself
as it did with respect to the regular National Assembly. There would not have been
any need for any Presidential call as there is none, with respect to the regular
National Assembly.
But considering that the country had been already placed under martial law rule the
success of which was conditioned upon the unity not only of planning but also in the
execution of plans, many delegates felt that the incumbent President should be given
the discretion to decide when the interimNational Assembly should be convened
because he would need its counsel and help in the administration of the affairs of the
country.
And in the event that it should convene, why did the interim National Assembly not fix
its tenure, and state expressly when the election of the members of the regular
National Assembly should be called? Many of the delegates felt that they could not
be sure even of the proximate date when the general conditions of peace and order
would make possible orderly elections, ... (The New Philippine Constitution by
Aruego, 1973 Ed., p. 230).
This was also disclosed by Delegate Arturo F. Pacificador, who affirmed:
Under the first paragraph of this section, the incumbent President is mandated to
initially convene theinterim National Assembly.
Note that the word used is "shall" to indicate the mandatory nature of the desire of
the Constitutional Convention that the interim National Assembly shall be convened
by the incumbent President. The Constitutional Convention, however, did not fix any
definite time at which the incumbent President shall initially convene
the interim National Assembly. This decision was deliberate to allow the incumbent

President enough latitude of discretion to decide whether in the light of the

emergency situation now prevailing, conditions have already normalized to permit the
convening of the interimNational Assembly. (Montejo, The New Constitution, 1973
Ed., p. 314).
It is thus patent that the President is given the discretion as to when he shall convene
the interim National Assembly after determining whether the conditions warrant the same.
His decision to defer the initial convocation of the interim National Assembly was supported by the
sovereign people at the referendum in January, 1973 when the people voted to postpone the
convening of the interimNational 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 ipso facto members of
the interim National Assembly, are against such inclusion; because the issue was already decided 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 had
wasted public funds through the endless debates without relieving the suffering of the general mass
of citizenry.
Petitioners likewise impugn the scheduled referendum on the ground that there can be no true
expression of the people's will due to the climate of fear generated by Martial Law and that the
period of free discussion and debate is limited to two weeks from February 7 to 21, without right of
rebuttal from February 22 until the day of the referendum.
The first objection is not tenable because during the senatorial elections in 1951 and 1971, the
privilege of the writ of habeas corpus was suspended, during which period of suspension there was
fear of arrest and detention. Yet the election was so free that a majority of the senatorial candidates
of the opposition party were elected and there was no reprisal against or harrassment of any voter
thereafter. The same thing was true in the referendum of July 27-28, 1973, which was done also
through secret ballot. There was no Army, PC, or police truck, bus or other mode of transportation
utilized to transport the voters to the various precincts of the country. There was no PC, Army or
police personnel assigned to each election precinct or voting booth. And such assignment would be
impossible; because the combined membership of the police, PC, and Army was then as now very
much less than the number of precincts, let alone the number of voting booths. And no one would be
left to fight the rebels or to maintain peace and order. And as heretofore stated, the voting was done
in secrecy. Only one voter at a time entered the voting booth. The voting was orderly. There was no
buying of votes or buying the right not to vote. And as opined by the Solicitor General, every qualified
voter who fails to register or go to the polling place on referendum day is subject to prosecution; but
failure to fill up the ballot is not penalized.
In the Habeas Corpus cases, We declared that the result of the referendum on July 27-28, 1973 was
a decision by the sovereign people which cannot be reviewed by this Court. Then again, it is too late
now for petitioners to challenge the validity of said referendum.
Moreover, as stressed by the Solicitor General, the previous referenda of January and July, 1973,
were a lot more free than the elections under the Old Society previous to the proclamation of Martial
Law, where the will of the voter was subverted through "guns, goons and gold", as well as through
fraud. All modes of transportation were utilized by the candidates and their leaders to transport the
voters to the precinct. The voters were likewise wined and dined and so prostituted that they refused
to vote until the required monetary persuasion was proffered, if they were not being subjected to
various forms of intimidation. In some areas, the ballots were filled up and the election returns were
accomplished before election day. Even animals and dead persons voted. The decisions in the
electoral contests filed after every election under the Old Society attest to this very unflattering fact in
our history.
The second objection that the two-week period for free debate is too short, is addressed to the
wisdom of the President who may still amend the proclamation to extend the period of free
discussion.
At any rate, such a brief period of discussion has its counterpart in previous plebiscites for
constitutional amendments. 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 Act of the US Federal Congress to
the 1935 Constitution was published in only three consecutive issues of the Official Gazette for 10
days prior to the scheduled plebiscite (Com. Act No. 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).
The period of 14 days for free discussion can compare favorably with the period required for
publication of the proposed amendments under the Old Society.
WHEREFORE, PRESIDENT FERDINAND E. MARCOS IS HEREBY DECLARED DE
JURE PRESIDENT OF THE REPUBLIC, PRESIDENTIAL PROCLAMATIONS NOS. 1366 AND
1366-A AND PRESIDENTIAL DECREES NOS. 629,630, 637 AND 637-A ARE HEREBY DECLARED
VALID, AND THE PETITION IS HEREBY DISMISSED. WITHOUT COSTS.
Aquino, J, concurs.
Makatintal, C.J., concurs in the result.

Separate Opinions

CASTRO, J., concurring:

I vote to deny the petition.
At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a) that
this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners possess
legal standing before the Court; and (c) that all the petitioners, whatever be the persuasion of their
counsel, recognize the Court as the supreme judicial tribunal operating and functioning under the
1973 Constitution.
I find no particular difficulty in resolving what I regard as the two crucial issues posed by the petition.
1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the
Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12
thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.
Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all and
I do not personally entertain any that the said Transitory Provisions refer to President Marcos as
the "incumbent President," then such doubt should be considered as having been completely
dissipated by the resounding affirmative vote of the people on this question propounded in general
referendum of July 27-28, 1973: "Under the [1973] Constitution, the President, if he so desires, can
continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish
the reforms he initiated under martial law?"
2. On the matter of whether President Marcos, at the present time, can constitutionally exercise
legislative power, I do not need to postulate that he derives legislative power from the constraints of
a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory Provisions are
unequivocal authority for President Marcos to legislate. These paragraphs read:
The incumbent President of the Philippines shall initially convene the interim National Assemble 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 he calls
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, legal, binding, and
effective even after [the] 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.

Stated elsewhere, my reading of these provisions is that they constitute an unmistakable

constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate (until, at
the very earliest, the interim National Assembly shall have been convoked).
The peripheral matter of whether President Marcos should now or soon convene the interim National
Assembly is completely outside the competence of the Supreme Court to resolve, as, in my view, it
is a political question addressed principally, basically, and exclusively to the President and the
Filipino people.
Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.
FERNANDO, J., concurring:
It is a crucial question that is posed by this petition to call a halt to the February 27 referendum
because of alleged constitutional transgressions. It is one fundamental in its essence, and what is
more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties. There
has been a quick response, hopefully not one given in haste, which is the enemy of thought. For all
the vigor and the learning that characterized the advocacy of Senator Lorenzo M. Taada, it did not
suffice to elicit a favorable verdict. The petition did not prosper. So it has been adjudged, and I
concur in the result reached. It is given expression in the notable opinion penned by Justice
Makasiar which, on its face, betrays sensitivity to the magnitude and the grave implications of the
serious problems posed. What is more, it has not avoided subsidiary issues which reach into vital
areas of our constitutional system. To the extent that it reiterates tried and tested doctrines, I am of
course in agreement. Certainly, there is not much difficulty for me in reaching the conclusion that the
term "incumbent President" in the Transitory Provisions means what it says. If I submit this brief
concurrence, it is only because of my belief that notwithstanding the brilliant and illuminating
argumentation in depth by both eminent counsel, raging far and wide in the domain of
constitutionalism, there is no need as yet to express my views on some collateral matters. It suffices
for me to rely on a jurical concept that is decisive. It is the fundamental principle that sovereignty
resides in the people with all government authority emanating from them. 1 It speaks, to recall
Cardozo, with a reverberating clang that drowns all weaker sounds.
1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for the political
sovereign, not the courts. 2 Such an assertion carries overtones of the Taada v. Cuenco 3 ruling that a
matter to be decided by the people in their sovereign capacity is of such a character. It has an aura of
plausibility but it cannot stand the rigor of analysis. It confuses the end result with the procedure
necessary to bring it about. It is elemental that constitutionalism implies restraints as well on the process
by which lawful and valid state objectives may be achieved. 4 What is challenged here is the actuation of
the incumbent President for alleged failure to comply with constitutional requisites. It is much too late in
the day to assert that a petition of that character is not appropriate for the courts. This is not to venture
into uncharted judicial territory. There are landmarks all along the way. This is not then to trespass on
forbidden ground. There is no disregard of the political question concept.
Then there is the attack on the standing of petitioners, as vindicating at most what they consider a
public right and not protecting their rights as individuals. 5 This is to conjure the specter of the public
right dogma as an inhibition to parties intent on keeping public officials staying on the path of
constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an essential constituent
of public interest and, conversely, without a well-ordered state there could be no enforcement of private
rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality
of the legal order." 7 Moreover, petitioners have convincingly shown that in their capacity as taxpayers,
their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, 8 foreshadowed by the very decision of People v.
Vera 9 where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents,
however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham, 10 with their claim that what
petitioners possess "is an interest which is shared in common by other people and is comparatively so
minute and indeterminate as to afford any basis and assurance that the judicial process can act on
it." 11 That is to speak in the language of a bygone era, even in the United States. For as Chief Justice
Warren clearly pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has
definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14
2. Now as to the merits. The success of petitioners would signify that the referendum scheduled for
February 27 of this year will not take place. Believing as I do that the opportunity of the people to
give expression to their views is implicit in the fundamental principle that sovereignty resides in
them, I am unable to find sufficient merit in this petition. For all its logical and plausible aspect, it still
does not admit of doubt, in my mind at least, that a conclusion different from that reached by this
Court would be attended by deplorable consequences. For one thing, it would impress with the
stigma of illegality the viable procedure that under the stern realities of the present is the only one in
the horizon for ascertaining the desires of the people. Moreover, under a republican regime, even
under normal times, their role is limited to the choice of public officials, thereafter to be held to
accountability through their informed, even immoderate, criticism. Now with this proposed

referendum, they will be sounded out on what they think and how they feel on matters of
significance. Even assuming its consultative character, it remains at the very least a step in the right
direction. It may not go far enough, but there is progress of sorts that hopefully may eventually lead
to the goal of complete civilian rule. It stands to reason, at least from my standpoint, that when
people are thus allowed to express their wishes and voice their opinions, the concept of popular
sovereignty, more so under crisis conditions, becomes impressed with a meaning beyond that of
lyric liturgy or acrimonious debate devoid of illumination. Nor is this to discern new waves of hope
that may ultimately dissolve in the sands of actuality. It is merely to manifest fidelity to the
fundamental principle of the Constitution. It dates back to the American Declaration of Independence
of 1776. The government it sets up derives its just powers from the consent of the governed. The
basis of republicanism, to paraphrase Lerner, is that the majority will shall prevail, the premise being
that an ordinary citizen, the common man, can be trusted to determine his political destiny. 15Thereby,
as Bryn-Jones pointed out, the controlling power, the governmental authority in the language of the
Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice Laurel
stressed in Moya v. Del Fierro, 17that an "enfranchised citizen [is] a particle of popular sovereignty and [is]
the ultimate source of established authority." 18There is reliance likewise to this excerpt from the eloquent
opinion of Justice Jackson in West Virginia State Board of Education v. Barnette: 19 "There is no mysticism
in the American concept of the State or of the nature or origin of its authority. We set up government by
consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that
consent. Authority here is to be controlled by public opinion, not public opinion by authority." 20 If that is
true of the United States, so should it be in our land. It caters to man's fundamental yearning for some
degree of participation in the process of reaching fateful decisions. While courts have to deal with the
necessities of their time, the idea should remain untarnished.
3. It follows therefore that the will of the people given expression, even in an unofficial manner but
accurately ascertained, is impressed with a decisive significance. It is more than just a foundation for
societal or political development. Whether appropriate, it determines what is to be done. Its
significance is vital, not merely formal. It is understandable then why in Javellana, 21 one of the issues
passed upon by this Court is the effect of acquiescence by the people to present Constitution even on the
assumption that it was ratified in accordance with the 1935 Charter. It may not be amiss to recall what I
did state on that point in my separate opinion: "Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification
of the new Constitution, then this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single center of ultimate reference," necessarily
the possessor of that "power that is able to resolve disputes by saying the last word." If the origins of the
democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out,
that only with the recognition of the nation as the separate political unit in public law is there the juridical
recognition of the people composing it "as the source of political authority." From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," which is supreme and must be obeyed.
To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law.
Even if such were not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its commands has no choice but to
submit. Its officials must act accordingly. No agency is exempt from such a duty, not even this Court. In
that sense, the lack of regularity in the method employed to register its wishes is not fatal in its
consequences. Once the fact of acceptance by the people of a new fundamental law is made evident, the
judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the
courts as well." 22
To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino v.
Commission on Elections: 23 "It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I do not find such contention
convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the
proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of
course that until impressed with finality, an amendment is not to be passed upon by the electorate. There
is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy
to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the
Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent, has to locate his
source of authority in either Constitution or statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary
would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the
people alone, that sovereignty resides." 24
As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in
mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees are
fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in that sense
that I do not feel called upon to inquire into the nature of the authority conferred on the incumbent
President under the Transitory Provisions, whether purely executive as contended by petitioners or
both executive and legislative as argued by respondents. I leave that question for another day. What
cannot be ignored is that with a National Assembly in existence but not convened, it is only the

Executive that can perform those essential and indispensable functions of dealing with the actual
conduct of public affairs. That is the reality that stares us in the face. To deny his power to issue
decrees and to appropriate public funds is thus to assure the paralyzation and impotence of
government. Precisely then, if a referendum may lend itself to a reappraisal of the situation, by all
means let it be conducted. This is not to deny that the judicial power to call a halt exists. It is merely
to stress that it should be exercised with the utmost reluctance as is required by deference to the
concept of popular sovereignty. To be more specific about the matter, this Tribunal should refrain
from making use of that prerogative now.
Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated, I
could not detect sufficient evidence as to the fact of acquiescence to the present Constitution. That
was why I had to dissent from the judgment of the Court dismissing the various petitions assailing
the validity of Proclamation No. 1102. Since then, with well-nigh two years having gone by, it is quite
evident that the matter is no longer open to doubt. Under the standard set forth in the leading case of
Taylor v. Commonwealth, 25 decided at the beginning of the century, no other conclusion is allowable.
The present Constitution "having been thus acknowledged and accepted by the officers administering the
government and by the people ... and being, as a matter of fact, in force throughout ..., and there being no
government in existence ... opposing or denying its validity, [it] is the only rightful, valid, and existing
Constitution ... and that to it all the citizens ... owe their obedience and loyal allegiance." 26
4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It
deserves serious consideration. It is their submission that under martial law, with people denied their
basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly held. In
my concurring and dissenting opinion inPlanas v. Commission on Elections 27 I express the
apprehension that voters cannot "freely register their will," as "dissent may be fraught with unpleasant
consequences." 28 Further: "While it is to be admitted that the Administration has done its best to alleviate
such a state of mind, I cannot in all honesty say, although I am prepared to concede that I may labor
under a sense of undue pessimism, that the momentum of fear necessarily incident to such a regime has
been reduced to a minimum." 29 There is, I would say, still that feeling of insecurity as to what the morrow
may bring, not from high and responsible officials, of course, but from those much lower in the ranks,
whether in the armed forces or in the civilian component. Abuses, in the nature of things, cannot be
completely curbed. In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from
the fact that as I did admit in my concurring and dissenting opinion inAquino v. Enrile, 30 "the Philippine
brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree of
confidence in the capabilities and moderation of those entrusted with its implementation. To cite only an
instance, it is a rare and impressive tribute to the Judge Advocate General, Justice Guillermo S. Santos of
the Court of Appeals, that in a manifesto of reputable citizens both from the clergy and the laity, with a
number of civic and political leaders, the suggestion was made that the conduct of the referendum should
be under the auspices of a Committee of three with him as one of the members. 32 I am not then in a
position to press with the same degree of conviction my original stand. I would not be justified though in
making such a concession if the constitutional rights to freedom of expression and the freedom of
assembly may not be availed of. They are once again enshrined in our Bill of Rights and in the very
same language. If the Constitution is now fully in force, they must be allowed full operation. I do not deny
that they are not absolute in character, but the limitation is supplied by the clear and present danger test.
Nor do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state
authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently stress
though is that dissent, even during such periods of stress, is not disloyalty, much less subversion. Thus
the citizens can invoke in the exercise of the freedoms of expression and of assembly not the challenged
decrees but their constitutional rights. Moreover, as thus construed as they should be to avoid any taint of
invalidity, they may be pulled back from the edge of the constitutional precipice. It would follow, and that to
my mind would be to the credit of the Executive, that even in these trying and parlous times, there is
adherence to a tolerant, compassionate view of life.
5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I had to
vote the way I did. It is quite obvious that for me the old landmarks of the law are still there to serve
as guides, that precedents do serve as factors for continuity and stability not to be ignored but also
not to be slavishly obeyed. For in constitutional law more than in any other branch of juristic science,
much depends on the immediacy and the reality of the specific problems to be faced. Hence it has
been truly said in days of crisis or of emergency, to stand still is to lose ground. Nonetheless, one
has always to reckon with the imponderables and the intangibles, ever so often elusive to our
understanding and disheartening to our deeply-cherished convictions. For he has no choice but to
comply as best he can with the duty to decide in accordance with legal norms with roots that go far
deeper than his personal preferences and predilections. So it has to be.
BARREDO, J., concurring:
I concur in the judgment dismissing the petition. The following opinion is without prejudice to a more
extended one in due time.
Consistently with my opinion in the habeas corpus or martial law cases, the Court has jurisdiction
over the instant petition even if, as will be shown later, the matter of calling a referendum is by nature
a political matter. Anent the possible contention that the title of President Marcos as President of the

Philippines may not be collaterally attacked and that the proper remedy is quo warranto, under the
authority of Nacionalista Party vs. Felix Angelo Bautista, 85 Phil. 101, I concede that the remedy of
prohibition is not altogether improper.
The first ground of the petition is that President Marcos does not have any legal authority to call the
referendum because he is not holding any public office. The specific arguments supporting this
contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is not
President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent President"
contemplated in the transitory provisions of the new constitution; and, in any event, his transitory
powers as "incumbent President" have already lapsed. The second and third grounds are that
President Marcos does not have any power to legislate nor the authority to issue proclamations,
decrees and orders having the force of law, hence he cannot issue decrees appropriating funds and,
therefore, the decree calling for the referendum is void.
It is my considered conviction that these grounds are untenable.
President Marcos' authority to continue exercising the powers of the President under the 1935
Constitution and to exercise those of President and Prime Minister under the 1973 Constitution is
specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me unquestionable
that by virtue of these provisions, President Marcos' being the President of the Philippines, is
constitutionally indubitable.
It was precisely because upon the effectivity of the New Constitution President Marcos would cease
to be President under the 1935 Charter and would not then be occupying any office under the New
Constitution, and, on the other hand, there would yet be no new president and no prime minister,
that he, as "incumbent President" at that time had to be expressly granted the authority to exercise
the powers of the President under the Old Constitution as well as those of the President and the
Prime Minister under the new one, pending the election of these officers. Necessarily, there had to
be a head of government until the new parliamentary system could be properly installed, and
whether or not it would have been wiser to confer the powers in question on some other official or
body is not for the Court to decide. In the meantime, the title of President is the most appropriate to
be held by him.
The contention that President Marcos may not be considered the "incumbent President" referred to
in the Constitution because what is contemplated therein is the one who would be in office at the
time of its ratification and that pursuant to the Javellana decision of the Supreme Court, the
constitution has not yet been ratified, whereas, on the other hand, the term of President Marcos
under the 1935 Constitution expired on December 30, 1973, is predicated wholly on the old theory
advanced in the habeas corpus cases and which has already been discarded in the opinions therein,
although perhaps, it is best that the Court made a categorical ruling which would clear all doubts on
the matter and thereby do away with this issue once and for all. To that end, I would say that as far
as the Court is concerned, its holding in Javellana that "there is no more judicial obstacle to the New
Constitution being considered as in force and effect" should be understood as meaning that the
charter is as valid and binding for all purposes as if it had been ratified strictly in accordance with the
1935 Constitution as petitioners would argue it should have been.
The problem of constitutional construction raised in the petition is, does the Constitution contemplate
that the interim assembly created by it would meet immediately and forthwith elect the new President
and the Prime Minister? If this question were to be answered in the light of normal conditions, there
could be some plausibility in suggesting an affirmative response, albeit not altogether conclusive.
But no one can ever escape the fact that the Constitution was formulated and approved under
abnormal and exceptional circumstances. The members of the convention were well cognizant of the
fact that the country was then as it still is under martial law and that normal processes of government
have not been in operation since its proclamation. We must assume that as practical men they knew
that the procedure of shifting from the presidential to the parliamentary system would have to be
reconciled with the demands of the martial law situation then obtaining. Above all it must have been
obvious to the delegates that under martial law, President Marcos had in fact assumed all the
powers of government. In other words, it must have been evident to them from what was happening
that the immediate convening of the legislative body would not be compatible with the way President
Marcos was exercising martial law powers.
It is but proper, therefore, that these transcendental historical facts be taken into account in
construing the constitutional provisions pertinent to the issue under discussion. As I see it, given the
choice between, on the one hand, delaying the approval of a new charter until after martial law shall
have been lifted and, on the other, immediately enacting one which would have to give due
allowances to the exercise of martial law powers in the manner being done by President Marcos, the
convention opted for the latter. To my mind, it is only from this point of view that one should read and
try to understand the peculiar and unusual features of the transitory provisions of the New
Constitution.

Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to
convene motu propio as was being done in the regular sessions of the old legislature and as in the
case of the regular National Assembly provided therein, said power has been granted by the
Constitution to the incumbent President? Very significantly in this connection, whereas Section 1 of
Article XVII very explicitly uses the word "immediately" in reference to the existence of the interim
Assembly, there is no time fixed as to when the incumbent President should initially convene it.
Withal, even the authority to call for the election of the new President and the Prime Minister was not
lodged in the assembly but again in the incumbent President. Is it not logical to conclude that the
reason behind all these unprecedented provisions is to avoid putting any hindrance or obstacle to
the continued exercise by President Marcos of the powers he had assumed under his martial law
proclamation and his general orders subsequent thereto? If the Convention were differently minded,
it could have easily so worded the said provisions in the most unequivocal manner. And what makes
this conclusion definite is precisely the insertion in the transitory provisions of Section 3(2) of Article
XVII which makes all the proclamations, decrees, orders and instructions of the incumbent President
part of the law of the land, which, in my considered view, is the Convention's own contemporary
construction that during martial law, the administrator thereof must of necessity exercise legislative
powers particularly those needed to carry out the objectives of the proclamation, with no evident
limitation except that no particular legislation not demanded by said objectives shall infringe Section
7 of Article XVII which reserves to the regular National Assembly the power to amend, modify or
repeal "all existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph
(2) of Section 3 of the same article would have been necessary if the convention had intended that
the interim National Assembly would be immediately convened and the new President and the Prime
Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned that the
delegates had in mind that there would be a considerable time gap between the going into effect of
the New Constitution and the election of the new President and the Prime Minister. And they could
not have been thinking merely of the possibility of protracted delay in the election of said officers
because the Assembly itself, once convened, could have readily provided in the exercise of its
inherent powers for what might be required in such a contingency.
In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,
Pacificador and others which were quoted during the hearing and the deliberations. I will quote them
in my extended opinion.
It must be borne in mind that once martial law is proclaimed, all the powers of government are of
necessity assumed by the authority that administers the martial law and the operation of the regular
government, including its legislature and its judiciary, is subjected to its imperatives. Of course, the
Constitution itself is not ousted, but by the power that the Constitution itself vests in the Executive to
issue the proclamation, it yields the application and effects of some of its provisions to the demands
of the situation, as the administrator may in his bona fide judgment so determine. Otherwise stated,
since laws and regulations would be needed to maintain the government and to provide for the
safety and security of the people, the orders of the administrator are given the force of law. In that
sense, the administrator legislates. If he can legislate, so also he can appropriate public funds.
To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate, the said
provision recognizes legislative power in the incumbent President and the scope of said powers is
coextensive with what might be needed, primarily according to his judgment, to achieve the ends of
his martial law proclamation, and in all other respects, they are limited only by the provisions of Sec.
7 of the same article, but, evidently, even this limitation must be reconciled with the fundamental
criterion that the New Constitution was conceived, formulated and enacted with the basic objective
of establishing the New Society for which martial law was proclaimed. In other words, since the
known broad objective of Proclamation 1081 is not only to contain or suppress the rebellion but also
to reform our society and recognize and restructure our government and its institutions as the
indispensable means of preventing the resurgence of the causes of the rebellion, it is obvious that
any decree promulgated by the President in line with these purposes, including those appropriating
the necessary funds therefor, cannot be assailed as beyond the pale of the Constitution.
There is nothing in the letter of the Constitution concerning referendums. But it would be absurd to
think that such paucity may be deemed to indicate that the government has no authority to call one.
If there is anything readily patent in the Constitution, it is that it has been ordained to secure to the
people the blessings of democracy and that its primordial declared principle is that "sovereignty
resides in the people and all government authority emanates from them." Of course, it establishes a
representative democracy, but surely, there is and there could be no prohibition in it against any
practice or action that would make our government approximate as much as possible a direct one,
which is the ideal. On the contrary, it is self-evident that conditions and resources of the country
permitting, any move along such a direction should be welcome. In fact, at this time when there are
fears about what some consider as an emerging dictatorship, referendums in the manner
contemplated in the impugned presidential decrees provide the means for the most vigorous
assertion by the people of their sovereignty, what with the participation therein of even the fifteenyear olds and non-literates and the concrete efforts being exerted to insure the most adequate
submission and the utmost freedom of debate and consensus as the emergency situation would

permit and to have the fairest recording and tabulation of the votes. Granting the good faith of
everyone concerned, and there is absolutely no reason why it should be otherwise, a unique
exercise of essential democratic rights may be expected, unorthodox as the experience may be to
those who cannot understand or who refuse to understand martial law Philippine style. In principle,
to oppose the holding of a referendum under these circumstances could yet be a disservice to the
nation.
A plebiscite or election of officials prescribed by the Constitution for specific occasions must be
distinguished from a referendum, which is an inherent constitutional democratic institution, perhaps
not normally convenient to hold frequently or regularly, but which in certain periods in the life of the
nation may be indispensable to its integrity and preservation. The administration of martial law is
usually considered as nothing more than submission to the will of its administrator. Certainly, there
can be no objection to said administrator's holding a dialogue with the people and adopting ways
and means of governing with their full acquiescence manifested in whatever happens to be the most
feasible way of doing it. If it be assumed that a referendum under the aegis of martial law may not be
an ideal gauge of the genuine will of all the people, no one would deny that if it is undertaken in good
faith, and giving allowances to the imperatives of the situation, it can somehow reflect their sentiment
on the grave issues posed. Besides, whether or not the people will enjoy sufficient and adequate
freedom when they cast their votes in the challenged referendum is a question that is unfair to all
concerned to determine a priori and beforehand. In any event, it is history alone that can pass
judgment on any given referendum.
Upon the other hand, whether a referendum should be called or not and what questions should be
asked therein are purely political matters as to which it does not appear to be proper and warranted
for the Court to exert its judicial power in the premises. To be sure, the referendum in question could
be a waste of the people's money in the eyes of some concerned citizens, while it may be a
necessary and fruitful democratic exercise in the view of others, but what is certain is that
considering its nature and declared purposes and the public benefits to be derived from it, it is the
better part of discretion, granted to it by the Constitution for the Court to refrain from interfering with
the decision of the President.
The claim that the Comelec may not be considered as the independent and impartial guardian of the
results of the scheduled referendum has no basis in fact. From extant circumstances, the recent
activities of that body have not been characterized by any perceptible design to influence such
results in any direction. Referendums being, as they are, in the Philippines today, in the nature of
extra-constitutional innovations, it seems but natural and logical at this stage that the Comelec has
been assigned to undertake the functions of formulating the questions, which, after all has been
done after a more or less nationwide gathering of opinions, and of subsequently explaining them to
the people to best enable them to vote intelligently and freely.
I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start with,
the voting will be secret and is guaranteed to be so. And when I consider that even a strongly
worded petition to enjoin the referendum has been openly ventilated before the Supreme Court with
full mass media coverage giving due emphasis to the points vehemently and vigorously argued by
Senator Taada, who did not appear to be inhibited in the expression of his views, I cannot but be
confirmed in the conviction that the apprehensions of petitioners are unfounded.
Under the New Constitution, every citizen is charged with the duty to vote. To vote in a referendum is
no less a sacred civic obligation than to vote in an election of officials or in a plebiscite. The
impugned decrees cannot therefore be constitutionally faulted just because they provide penalties
for those who fail to comply with their duty prescribed in no uncertain terms by the fundamental law
of the land.
Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.
ANTONIO, J., concurring:
I
The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of
Article XVII (transitory provisions) of the New Constitution is to read its language in connection with
the known conditions of affairs out of which the occasion for its adoption had arisen, and then
construe it, if there be any doubtful expression, not in a narrow or technical sense, but liberally,
giving effect to the whole Constitution, in order that it may accomplish the objects of its
establishment. For these provisions can never be isolated from the context of its economic, political
and social environment.
The New Constitution was framed and adopted at a time of national emergency. The delegates to
the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that brought

about the declaration of martial law, were mere symptoms of a serious malady in the social order.
They knew that the revolutionary reforms made by the incumbent President thru his decrees, orders
and letters of instruction, such as the emancipation of the tenant-farmer from his bondage to the soil,
reorganization of government, eradication of graft and corruption and measures to bridge the gap
between the rich and the poor, were indeed imperative, if the exigency that brought about the military
necessity was to be overcome, civil order restored, and the foundations of genuine democracy
established. The actions of the incumbent President in promulgating those measures legislative in
character during martial law was not without legal and historical basis. Democratic political theorists
traditionally have assumed the need in time of emergency to disregard for the time being the
governmental process prescribed for peacetime and to rely upon a generically different method of
government the exercise by the Chief Executive of extraordinary or authoritarian powers, to
preserve the State and the permanent freedom of its citizens. 1
Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated that "to
preserve the independence of the State, the maintenance of the existing constitutional order and the
defense of the political and social liberties of the people, in times of grave emergency, when the
legislative branch of the government is unable to function or its functioning would itself threaten the public
safety, the Chief Executive may promulgate measures legislative in character, ...". We considered then
that the proclamation of martial rule marked the commencement of a crisis government and crisis
government in a constitutional democracy entails the concentration and expansion of governmental power
and the release of the government from the paralysis of constitutional restraints in order to deal effectively
with the emergency. 3 This was the view of the members of the Constitutional Convention when they
framed the New Constitution.
In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the
deliberations of the 166-man Special Committee of the Constitutional Convention, which was authorized
to make the final draft of the Constitution, during their session on October 24, 1972, the Convention
expressly recognized the authority of the incumbent President during martial law to exercise legislative
powers not merely in the enactment of measures to quell the rebellion but, more important, of measures
urgently required to extirpate the root causes of the social disorder which gave rise to the exigency.
In was with a view of the continuance of the exercise of these extraordinary powers that the
Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the New
Constitution that: "He (the incumbent President) shall continue to exercise his powers and
prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof also
provided that: "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, legal,
binding and effective even after lifting of martial law or 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."
The conferment upon the incumbent President of those extraordinary powers necessarily implies
that in view of the emergency, there might be a deferment in the convening of the interim National
Assembly and, therefore, it was necessary that he be equipped with adequate legal authority and
power to carry the body politic through the crisis.
Indeed, the need of the times was for a more expeditious mode of decision-making and policy
formulation. The insurgency and the secessionist movement compounded by a world-wide economic
inflation and recession generated problems which must be solved with immediacy and with policies
that are flexible and responsive to the imperatives of the crisis.
II
The impossibility for the Convention to determine a priori, in view of the emergency situation, the
time when conditions shall have sufficiently normalized to permit the convening of
the interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a
definite period when the incumbent President shall initially convene that body. It was a matter which
was wholly confided by the Constitution to the incumbent President. Since the exercise of this power
was committed to the incumbent President in all the vicissitudes and conditions of the emergency, it
has necessarily given him ample scope for the exercise of his judgment and discretion. It was a
political decision for which he is directly responsible to the people to whom he is accountable and for
whose welfare he is obliged to act. As stated in the separate opinion of Justice Castro, concurred in
by the Chief Justice, Justices Barredo, Esguerra, Fernandez and the writer of this opinion, "The
peripheral matter whether President Marcos should now or soon convene the interim National
Assembly is completely outside the competence of the Supreme Court to resolve as ... it is a political
question addressed principally, basically, and exclusively to the President and the Filipino people."
III

Neither can it be asserted that the exercise by the incumbent President of those extraordinary
powers is necessarily inconsistent with and an absolute contradiction to the existence of a
democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him by the
Constitution, it represents the will of the sovereign people as the source of all political power. So long as
the power is used to fulfill its true function in realizing the ethical purposes of the community, which is to
ensure the economic and social well-being of its citizens and to secure to them justice, such power is
employed for constructive and moral purposes. Its exercise is, therefore, legitimate as it represents the
collective will of the people themselves. It is, therefore, logical that the incumbent President consult the
people on issues vital to the public interest even through a consultative referendum. Such useful and
healthy contact between the government administrator and the citizenry is the more necessary in a period
of martial law, because the equal participation of the citizenry in the formulation of the will of the State and
in its fundamental political decisions ensures the unity of the people in their efforts to surmount the crisis.
The success then of the political leadership in leading the nation through the emergency would depend on
its ability to convince and persuade, not to dictate and coerce; to enlist, not to command; to arouse and
muster the energies, loyalties, and, if need be, the sacrifices of the people. As Leibholz aptly observed,
"the one essential presupposition of democracy is that the people as a political unity retains its
sovereignty, and that the majority of the active citizens can express their will in political freedom and
equality." 6
IV
It is, however, asserted that the questions asked may not logically be the subject of a referendum.
Thus, it is claimed that some of the questions contemplate vital changes in the existing form of local
government, which changes, under Sections 2 and 3 of Article XI of the 1973 Constitution, must be
submitted to the electorate for ratification in a plebiscite called for that purpose. Admittedly, the
question of the coming referendum asked the voters in the Greater Manila Area, do not contain a full
text of the law proposed for the ratification or rejection by the people. It is, therefore, not a plebiscite
contemplated by the aforecited Sections 2 and 3 of Article XI of the New Constitution but merely a
referendum, advisory or consultative in character.
Political democracy is essentially a government of consensus. The citizen has "a right and a duty to
judge his own concerns, his acts and their effects, as they bear on the common good. If they entail
the common acts of the community, he again has the duty and right to contribute to the common
deliberation by which the acts of the community are decided." 7 Common deliberation or mutual
persuasion occurs on all levels of society, and as a result thereof a common judgment or consensus is
formed on those matters which affect the democratic polity. This is based on the premise that sovereignty
in a political democracy resides in the people and that, their government is founded on their consent. It is
in the formulation of this consensus whether in an election, plebiscite, direct legislation or advisory
referendum or consultation, that the political community manifests its consent or dissent. The national
leadership as the elected representative of the national community has the duty to be responsive and
responsible to this sovereign will. It has been said that the President "speaks and acts as the people's
agent. He lays claim to a mandate from them for his acts. Authority descends upon him from the nation,
not from the other organs of government." 8 In his dual role as Chief Executive and Legislator under
martial law, the incumbent President has, therefore, a greater degree of accountability to the political
community. To discharge effectively that responsibility, he has to ascertain the people's consensus or
common judgment and to act in accordance therewith. Only then can it be said that his actions represent
the people's collective judgment and, therefore, entitled to their whole-hearted support. The coming
referendum is a national undertaking affecting the future of the country and the people. It, therefore,
requires the involvement of every Filipino. By participating in the national consultation or advisory
referendum of February 27, 1975, the Filipino people will prove to the rest of the world their maturity and
capability as a people to make major decisions.
V
It is nevertheless asserted that a referendum held under present existing circumstances is of no farreaching significance because it is being undertaken in a climate of fear. The infirmity of such a
priori judgment is evident from the fact that it is not based on reality. It betrays a lack of awareness of
the strength and character of our people. It is contradicted by past experience. There has been a
deliberate policy to lift gradually the strictures on freedom attendant to a regime of martial law. Thus,
State restrictions on press freedom had been removed, except over publications which, because of
their subversive or seditious character, are deemed incompatible with the public safety. Freedom of
discussion and of assembly are now encouraged. No less than the incumbent President of the
Philippines has underscored the need for an accurate and honest canvass of the people's
sentiments. As the nation's leader, he is called upon to make bold decisions in the face of the grave
problems confronting the nation, but he is convinced that such decisions cannot be effective unless
rooted in the will and reflective of the true sentiments of the sovereign people.
Given the determination of the incumbent President to ascertain the true sentiments of the people,
and considering the measures instituted by the Commission on Elections to safeguard the purity of
the ballot, there appears, therefore, no basis for petitioners' apprehension that the forthcoming
referendum will not reflect the people's untrammeled judgment.

The foregoing opinion contains in brief the reasons for my concurrence with the main opinion and
the separate opinions of Justices Castro and Barredo.
FERNANDEZ, J., concurring:
The present case calls for an interpretation of the New Constitution, particularly its Transitory
Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the
Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to shed
light, even if only modestly, on the fundamental questions involved in this case, on the basis of what
I personally know and in the light of the records of the Convention, to show the understanding and
intention of the Delegates when they discussed and voted on the constitutional provisions involved in
this case.
The pertinent provisions of the New Constitution upon which the parties in this case base their
respective claims are:
ARTICLE XVII
TRANSITORY PROVISIONS
SECTION 1. There shall be an interim National Assembly which shall exist
immediately upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall have
assumed office following an election called for the purpose by the interim National
Assembly. Except as otherwise provided in this Constitution, the interim National
Assembly shall have the same powers and its Members shall have the same
functions, responsibilities, rights, privileges, and disqualifications as the regular
National Assembly and the Members thereof.
Sec. 2. The Members of the interim National Assembly shall be the incumbent
President and Vice-President of the Philippines, those who served as President of
the Nineteen hundred and seventy-one Constitutional Convention, those Members of
the Senate and the House of Representatives who shall express in writing to the
Commission on Elections within thirty days after the ratification of this Constitution
their option to serve therein, and those Delegates to the nineteen hundred and
seventy-one Constitutional Convention who have opted to serve therein by voting
affirmatively for this Article. They may take their oath of office before any officer
authorized to administer oath and qualify thereto, after the ratification of this
Constitution.
Sec. 3. (1) 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 he 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.
(2) 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, legal, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent promulgations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
xxx xxx xxx
The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional Convention
on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:
1. That the determination of the date the interim National Assembly should be convened was left to
the judgment of the President, the country being, as it still is, under martial law;
2. That the incumbent President legally holds office as such having been authorized to continue in
office and to exercise not only the powers of the President under the 1935 Constitution but also
those of the President and Prime Minister under the 1973 Constitution, from the time the New
Constitution was ratified on January 17, 1973 until the election of the interim President
and interim Prime Minister which up to now has not yet taken place; and

3. That included in the powers of the President under the 1935 Constitution and the powers of the
Prime Minister under the 1973 Constitution is the power to declare martial law which in turn includes
the power to make all needful rules and regulations with the force and effect of law until the
termination of the martial rule.
The minutes of the plenary session of the Convention of October 18, 1972 contain the sponsorship
speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions. He described the
proposed interimgovernment as a practical response to our abnormal conditions presently obtaining
in the country. He explained that in order to effectively implement reform measures under the New
Constitution, the nation should be relieved of the burden of political and national elections during the
transitory period. The proposed interim National Assembly should therefore be composed of present
elective government officials, together with members of the Convention who would vote for its
creation and who could be of great help, in view of their familiarity with the provisions of the New
Constitution, in the enactment of reform measures to be approved by the interim National Assembly
pursuant to the mandates of the New Constitution. Delegate Yaneza was interpellated by Delegates
Suarez, Tupaz (A), Jamir, Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel,
Encarnacion, Pacificador, Ordoez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.
The following exchange took place between Delegate Pimentel and Delegate Yaneza.
DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been
repeatedly the basis of certain questions. It says: "the incumbent President of the
Philippines shall initially convene." Will it not be better if we state here, "shall
immediately convene? Or we should provide a certain number of days or months
perhaps after the ratification of the Constitution when the President shall initially
convene the ad interim Assembly?
DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have
discussed that in the Committee lengthily, but we arrived at a decision to give our
President flexibility regarding this particular matter, Your honor. And we feel that we
have decided this matter with some wisdom and with consideration of the present
situation obtaining in our country. (Emphasis supplied)
The minutes of the plenary session of the Convention of October 19, 1972 show, among others, the
following:
Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the same
time President and the Prime Minister under the interim Government. Delegate Yaneza answered
affirmatively, adding that the President would actually have a triple personality since he would
exercise powers under the two Constitutions.
Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval of
the President, to which Delegate Britanico (a co-sponsor) replied in the negative.
Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of
Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui and
Raquiza. He was followed by Delegate Teves who also spoke against the Transitory Provisions in
question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna. Delegate David
(J) was the next opposition speaker. He was in turn interpellated by Delegate Tupaz (A.).
On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola Catan
and Leido.
The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first
speaker. Cuaderno said that he favored the article on the interim Government mainly because of the
benefits of martial law.
Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all
proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present
administration under martial law, contending that only the sovereign people could pass judgment
with finality on the same.
Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who maintained
that theinterim National Assembly was a necessity, to fill the vacuum of constitutional processes that
could arise should the President continue in office beyond his tenure so that he could see the fruition
of his efforts to restore normalcy in the country.

The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of Rizal,
a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A. Fernandez of
Laguna (now a humble member of this Court). Both speeches covered all the principal points.
Modesty aside, we now beg to summarize their arguments, as follows:
Delegate Barrera: It is immoral for us to vote Yes, because that would be practically
electing ourselves as members of the interim National Assembly when we were
elected by the people only for the purpose of writing a Constitution.
Delegate Fernandez: True, when we were elected, our mandate from the people was
only to write a new Constitution. But then there was no martial law yet. With martial
law, there arose a need for aninterim Government, specifically, an interim National
Assembly. No one has previously received any mandate from our people on who
should be members of this interim National Assembly. No one can say as of now
whether it is immoral, and even moral, for us to vote Yes. For my part, I will vote Yes
because if I vote No, I would foreclose my right to become a member of
this interim National Assembly. I will vote Yes. Afterwards I will consult with the
people of the second district of Laguna on this matter. If they say "Fernandez, you
committed an error", then I will not take my oath. However, if they say "Fernandez,
you did well so that we can have an additional representative in the interimNational
Assembly," then I will take my oath. By that time, I think nobody can say it was
immoral for me to have voted Yes. But what is most important is whether or not the
members of the interimNational Assembly succeed in the discharge of their duties
and responsibilities. If they fail, then our people and history will condemn them. If
they succeed, our people and history may commend them.
Delegate Barrera: As long as the interim National Assembly does not call for the
election of the regular members of the National Assembly, the members of
this interim Assembly will continue in office. For how long, it is not determined. In
view of the high salary of the members of the National Assembly (P60,000.00 a
year), there will be a temptation for them not to call for the election of the members of
the regular National Assembly, for a long, long time.
Delegate Fernandez: I disagree. We must grant that the members of
the interim National Assembly would be possessed with a sense of decency and
patriotism that would make them realize the impropriety of overstaying in office. And
the people will always be there to demonstrate thru the media and the streets to
compel the interim National Assembly to call for a regular election.
Delegate Barrera: But it is wishful thinking on the part of the members of the
convention to vote Yes and thereby become members of the interim National
Assembly because the President may unduly delay the lifting of martial law and the
calling of the National Assembly into a session. Then he will be President for life.
Delegate Fernandez: What is the premise of the conclusion of the Delegate from
Rizal that the President will unduly delay the lifting of martial Law and the calling of
the interim Assembly into a session? Nothing. For my part, I wish to advance a
premise. If it is valid, the conclusion will be valid. I believe President Marcos will want
to go down in history as a good President. If this premise is good and I believe it is,
then he will not abuse. He will lift martial law and convene the interim National
Assembly at the proper time. He will not be President for life.
Delegate Abundo then said that the committee had accepted the following amendment: "(b) the
Mario amendment to Section 2 concerning "those members of both the Senate and House of
Representatives to express in writing to the Commission on Elections their option to sit in the
assembly within 30 days after the ratification of the Constitution, etc." There being no objection, the
above amendment was approved.
Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly to
"not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson accepted the
amendment, but when submitted to a vote, the amendment was lost. Other amendments were
proposed and were lost.
Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory Provisions
could be considered as voting on second and third reading and proposed that absent delegates be
allowed to cast their votes in writing and deliver them to the Committee on Credentials within 72
hours from that day.

The voting followed and the chair announced that by a vote of 274 in favor and 14 against the draft
Transitory Provisions were approved on second and third reading. And among the delegates that
voted affirmatively in favor of these Transitory Provisions whose interpretation is now the subject of
the present case, were: Delegate Alonto (former Senator from Lanao), Delegate Aruego (the wellknown author on the framing of the Constitution), Delegate Baradi (former Ambassador), Delegate
Borra (former COMELEC Chairman), Delegate Cuaderno (Member of the first Constitutional
Convention and Economist who recently passed away), Delegate De las Alas (former Speaker of the
House of Representatives), Delegate Laurel (who was President Protempore of the Convention),
Delegate Feliciano Ledesma (Dean of the College of Law of San Beda), Delegate Oscar Ledesma
(former Senator), Delegate Leido (former Congressman and Secretary of Finance), Delegate Liwag
(former Secretary of Justice and Senator), Delegate Marino (former Executive Secretary and
Secretary of Justice), Delegate Mutuc (former Executive Secretary and Ambassador), Delegate
Father Pacifico Ortiz, Delegate Ceferino Padua (lawyer of former Senator Sergio Osmea, Jr.),
Delegate Jose Ma. Paredes (former Justice of the Supreme Court), Delegate Godofredo Ramos
(veteran legislator), Delegate Sinco (former UP President and an authority on Constitutional Law),
Delegate Serrano (former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman),
Delegate Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker
Protempore of the House of Representatives), Delegate Concordia(former Congressman), and
Delegate Fernandez.
The foregoing, in our humble opinion, clearly show:
a) That when 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; and
b) That the incumbent President, or President Marcos to be more specific, was to continue in the
office as President with triple powers, upon and even after the ratification of the New Constitution
(January 17, 1973), and until the election of the interim President and interim Prime Minister (which
has not taken place even up to now), and even after December 30, 1973 when the term of office of
the incumbent President would have expired under the 1935 Constitution. Hence, the incumbent
President continued and continues to be the constitutional and therefore de jure President of our
country.
Subsequent events proved the wisdom of the decision of the Convention to give the President a
wide discretion when to convene the interim National Assembly.
a) For although the peace and order condition of the country has improved, it suffered a relapse. The
rebellion had not been completely quelled. Only last January 29, 1975, for instance, the newspapers
carried the report that according to President Marcos "Muslim insurgents had broken a truce in
Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy casualties." ... "Muslim
secessionists ... had taken over three towns in Mindanao and Sulu." ... "An Armed Forces contingent
of 42 men, including three officers and the battalion commander, were wiped out in a surprise raid."
b) The oil crises which brought about worldwide inflation, recession and depression, created
problems which, according to economic experts, can be solved effectively only with the President
exercising legislative powers. A National Assembly would take a longer period of time to be able to
pass the necessary legislation to cope with this worsening economic situation.
c) And what is most important is that in addition to the criticisms levelled in the Convention against
the membership of the interim National Assembly, the people themselves expressed their disfavor
against the interimAssembly by voting against its immediate convening when they ratified the
Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the Barangays reiterated their
decision of January, 1973 to suspend the convening of the interim National Assembly. And in
connection with the forthcoming February 27, 1975 referendum, many members of
this interim National Assembly themselves asked that the question of whether or not the assembly
should immediately be convened be eliminated, as in fact it was eliminated, because the people had
already decided against the immediate convening of the interim Assembly.
Perhaps, it was a blessing in disguise that before this interim National Assembly could be convened,
it has been "fiscalized" in advance be our people. The people apparently have expressed their
distrust of this interimAssembly. This has become a standing challenge so that when
this interim Assembly is finally convened, its members may discharge their duties and
responsibilities in such a manner as to rebut successfully the basis for the opposition of the people
to its being convened in the meantime.

I have adverted to the proceedings of the Constitutional Convention because it supports the literal
interpretation of the Constitution which I now wish to make. The wording of the New Constitution is, I
believe, clear. Considering the condition in which the country was at the time they approved the draft
of the Constitution, it would have been unthinkable for the Constitutional Convention not to have
provided for a continuity in the office of the Chief Executive.
It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental
machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected
outright.
The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the present administration are hereby ratified
and confirmed as valid." The words "ratified and confirmed" had been changed into "shall be part of
the law of the land," because under the first clause, it would imply that the incumbent President did
not have the authority to issue the proclamations, orders, decrees, instructions and acts referred to.
The Convention conceded that the President had that power; and that is the reason why the phrase
"shall be part of the law of the land" was the one finally used.
Parenthetically, the Constitutional Convention itself recognized expressly the legislative power of the
incumbent President to enact an appropriation law when it asked and the same was given by the
incumbent President additional funds at the time when there was already martial law.
I wish to add that this legislative power of the President under martial law should not be limited to the
legislative power under the old classical concept of martial law rule. For the modern concept of
martial law rule includes not only the power to suppress invasion, insurrection or rebellion and
imminent danger thereof, but also to prevent their resurgence by the removal of the causes which
gave rise to them; in a word, the reform of our society.
In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its
plenary session of October 20, 1972, I stated my firm conviction that President Marcos would want
to go down in history as a good President. This was not only a belief but a challenge to him as well;
and I am glad that subsequent events proved the correctness of my stand. In one of his books, he
himself said:
Moreover, we have embarked upon the experiment with the full knowledge that its
outcome will depend on most of us, not just a few who are managing a "command
society." The misgivings are large; the most outstanding is the fear of a powerful few
holding the many in subjection. But this fear misses the particularity of Philippine
martial law; it cannot and not exist without the clear and not manipulated consent of
the governed. Our people will accept only sacrifices which are justifiable to them.
It is more than a homily to assert that the New Society is not a promised land that
patiently awaits our arrival. More than a place in time or space, the New Society is a
vision in our minds: this can be realized only through the strength of our resolution.
I am mindful of the fact that historically authoritarian regimes tend to outlive their
justification. I do not intend to make a permanent authoritarianism as my legacy to
the Filipino people. It is sufficiently clear to them, I believe, that martial law is an
interlude to a new society, that it is, in sum, a Cromwellian phase in our quest for a
good and just society. Certainly the enterprise is worth a little sacrifice. (Marcos, The
Democratic Revolution in the Philippines, 217-218, [1974]).
And in his speech before government elective officials of Bulacan last January 29, 1975 as reported
in the newspapers of last January 30, 1975, he solemnly said that should the coming referendum fail
to give him a vote of confidence, he would call the interim National Assembly to session and that
more than that, he would ask the Assembly to immediately fix the date for elections of the members
of the National Assembly; and that in such a case, he would run in his district for a seat in the
Assembly.
And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The
information campaign should now go in full gear. The Commission on Elections should emphasize
the freedom of debate during the campaign; it should emphasize the freedom of the people to
express themselves not only in the debates but more so as they cast their ballots, by safeguarding
the secrecy of the ballot. And the Commission should redouble its efforts to assure the people that
there will be a true, correct and accurate reading of the ballots, counting of the votes, and a report of
the results of the referendum.

IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and in the
separate opinions of Justices Castro and Barredo. The petition should thus be dismissed, without
costs.
TEEHANKEE, J., concurring and dissenting:
In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the
"incumbent President" and head of government who is vested with authority under Article XVII,
section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his powers
and prerogatives under the 1935 Constitution and the powers vested in the President and Prime
Minister under this Constitution."
I am constrained, however, to dissent from the remaining portion thereof which dismisses the
petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.
1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution is
the change of our system of government from presidential to parliamentary wherein the legislative
power is vested in a National Assembly 1 and the Executive Power is vested in the Prime Minister who
"shall be elected by a majority of all the members of the National Assembly from among
themselves." 2 The President who is likewise elected by a majority vote of all the members of the National
Assembly from among themselves "shall be the symbolic head of state." 3
To carry out the "orderly transition from the presidential to the parliamentary system," section 1 of the
Transitory Provisions decreed that:
SECTION 1. There shall be an interim National Assembly which shall exist
immediate upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by
the interim National Assembly. Except as otherwise provided in this Constitution,
the interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as
the regular National Assembly, and the Members thereof. (Art. XVII)
Section 2 of the Transitory Provisions provides for the members of the interim National Assembly.
The Solicitor General stated at the hearing that the interim National Assembly came into
existence after the proclamation on January 17, 1973 of the ratification of the Constitution per
Proclamation No. 1102 when the members thereof took their oath of office and qualified thereto in
accordance with the cited section and continues in existence at the present time without having been
convened.
Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that the
calling of a referendum and the appropriation of funds therefor are essentially legislative acts while
the transitory powers and prerogatives vested in President Marcos until the election of
the interim Prime Minister and interim President under section 3 (1) of the Transitory Provisions are
executive and not legislative powers, since the powers of the President under the 1935 Constitution
and those of the Prime Minister under the 1973 Constitution are essentially executive powers; more
so, with respect to the powers of the President under the 1973 Constitution which are symbolic and
ceremonial.
While the Solicitor General has cited the President's powers under martial law and under section 3
(2) of the Transitory Provisions 4 as vesting him with legislative powers, there is constitutional basis
for the observation that his legislative and appropriation powers under martial law are confined to the
law of necessity of preservation of the state which gave rise to its proclamation 5 (including
appropriations for operations of the government and its agencies and instrumentalities).
Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures adopted in
the prosecution of a constitutional dictatorship should never be permanent in character or effect. ...
The actions directed to this end should therefore be provisional. ... Permanent laws, whether
adopted in regular or irregular times are for parliaments to enact," and that "a radical act of
permanent character, one working lasting changes in the political and social fabric (which) is
indispensable to the successful prosecution of the particular constitutional dictatorship ... must be
resolutely taken and openly acknowledged [as exemplified by U.S. President Lincoln's emancipation
proclamation] ... Nevertheless, it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their representatives in the legislature." 6
Even from the declared Presidential objective of using Martial Law powers to institutionalize reforms
and to remove the causes of rebellion, such powers by their very nature and from the plain language
of the Constitution7 are limited to such necessary measures as will safeguard the Republic and suppress

the rebellion (or invasion) and measures directly connected with removing the root causes thereof, such
as the tenant emancipation proclamation. 8 The concept of martial law may not be expanded, as the main
opinion does, to cover the lesser threats of "worldwide recession, inflation or economic crisis which
presently threatens all nations" 9 in derogation of the Constitution.

On the other hand, those legislative powers granted in the cited section 3 (2), known as the
validating provision which validated the President's acts and decrees after the proclamation of
martial law up to the ratification of the Constitution are limited to modifying, revoking or superseding
such validated acts and decrees done or issued prior to the proclaimed ratification, since section 7 of
the Transitory Provisions 10 expressly reserves to the National Assembly the legislative power to amend,
modify or repeal "all existing laws not inconsistent with this Constitution."
The question is thus reduced as to whether now after the lapse of two years since the adoption of
the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the convening, of
the existing interimNational Assembly should be implemented not for purposes of an action of
mandamus which cannot be availed of because of the separation of powers but for the present
action of prohibition against respondents officials which asserts that the questioned referendum
comes within the constitutional domain of the interim National Assembly and that after the coming
into "immediate existence of the interim National Assembly upon the proclamation of ratification of
the Constitution, the "initial convening" thereof with the election of the interimSpeaker and the
election of the interim President and the interim Prime Minister should have followed as a matter of
course. The cited provision reads:
SEC 3. (1) 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 Constitutionuntil he calls upon the interim National Assembly to
the elect the interim President and the interim Prime Minister, who shall then
exercise their respective powers vested by this Constitution. (Art. XVII)
2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the
primary task in constitutional construction is to ascertain and assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution and that the courts may not inquire
into the wisdom and efficacy of a constitutional or statutory mandate.
Where the language used is plain and unambiguous, there is no room for interpretation. "It is
assumed that the words in which constitutional provisions are couched express the objective sought
to be attained. They are to be given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as possible should be understood in
the sense they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say." 11
The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall "exist
immediatelyupon the ratification of this Constitution" calls for its coming into existence "right away"
as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor General, its
members as provided in section 2 duly took their oath of office and qualified thereto, upon the
proclamation of ratification. The clear import of section 3 in order to give meaning and effect to the
creation and "immediate existence" of the interim National Assembly is that the incumbent President
shall then proceed to "initially (i.e. "in the first place: at the beginning") 12 convene" it and preside over
its sessions until the election of the interim Speaker after which he calls for the election of
the interim President and the interim Prime Minister "who shall then exercise their respective powers
vested by this Constitution." (The "incumbent President" then bows out and is succeeded by the Prime
Minister who may of course be himself).
This view is further strengthened by the expectations aired in the debates of the 1971 Constitutional
Convention that a parliamentary government would be more responsible and responsive to the
people's needs and aspirations. Thus, in section 5 of the Transitory Provision, the interim National
Assembly was charged with the mandate to "give priority to measures for the orderly transition from
the presidential to the parliamentary system, the reorganization of the Government
the eradication of graft of and corruption, the effective maintenance ofpeace and order, the
implementation of declared agrarian reforms, the standardization of compensation of government
employees, and such other measures as shall bridge the gap between the rich and the poor"
urgent and long-lasting measures which the President has single-handedly confronted up to now.

3. The manifestation of the Solicitor General that the schedule referendum is merely consultative and
thus includes the participation of voters below 18 years of age but at least 15 years old (who
are not qualified enfranchised voters under Article VI on suffrage of the 1973 Constitution which
decrees a minimum age of 18 years for qualified voters) adds weight to the view that the
existing interim National Assembly be now convened and perform its constitutional functions as the
legislative authority. From the very nature of the transitory provision which created it, its existence
must likewise be interim, i.e. temporary provisional, of passing and temporary duration (as opposed
to permanent and the regular institutions provided for in the first 15 Articles of the Constitution) until
after it shall have reapportioned the Assembly seats 13 and called for the election of the members of
the regular National Assembly. 14 The convening of the interim National Assembly with its cross-section of
knowledgeable representatives from all over the country was obviously hopefully conceived to serve
(more than consultative referendums)to apprise the President of the people's and their constituencies'
views as well as to assist him as mandated by the Constitution in the enactment of priority measure to
achieve fundamental and far-reaching reforms.
4. While 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, 15 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 any provision or mandate
thereof such as the Transitory 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. 16
This seems self-evident for the sovereign people through their mutual compact of a written
constitution have themselves thereby set bounds to their own power, as against the sudden impulse
of mere and fleeting majorities,17 and hence have provided for strict adherence with the mandatory
requirements of the amending process through a fair and proper submission at a plebiscite, with sufficient
information and full debate to assure intelligent consent or rejection. 18
5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail to
register and vote in the scheduled referendum is open to serious constitutional question. It seems
clear that the calling of "consultative referendum" is not provided for nor envisaged in the
Constitution as the appropriate vehicle therefor is provided through the interim and regular National
Assemblies. It should perhaps be reexamined whether the mandate of the Constitution that "it shall
be the obligation of every citizen qualified to vote to register and cast his vote" (at elections of
members of the National Assembly and elective local officials and at plebiscites, as therein provided
for) and the criminal penalties imposed in the questioned decrees should be deemed applicable to
such extra-constitutional consultative referendums wherein non-qualified voters (the 15-year olds up
to below 18) are asked to participate.
MUOZ PALMA, J., concurring and dissenting:
The views I express in this separate opinion will briefly explain my position on the principal issues
posed in this Petition for Prohibition.
1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent President" in
Article XVII to which we shall refer for short as the Transitory Provisions of the 1973 Constitution.
That fact is beyond doubt because at the time the draft of the new Constitution was being prepared
and when it was finally signed by the delegates to the 1971 Constitutional Convention on November
30, 1972, it was President Marcos who was holding the position of President of the Philippines.
2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory
Provisions with constitutional authority to continue as President of the Philippines during the
transition period contemplated in said Article XVII that is, until the interim President and
the interim Prime Minister shall have been elected by the interimNational Assembly who shall then
exercise their respective powers vested by the new Constitution, after which the office of the
incumbent President ceases. During that transition period, President Marcos was given
extraordinary powers consisting of the powers and prerogatives of the President under the 1935
Constitution, and the powers vested in the President and the Prime Minister under the 1973
Constitution. 1
3. Aside from the vest executive powers granted to the incumbent President as indicated above, he
was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the sense,
that all proclamations, orders, decrees, instructions, and acts which were promulgated, issued, or
done by the incumbent President before the ratification of the Constitution were declared part of the
law of the land, to remain valid, legal, binding or effective even after the lifting of martial law or the
ratification of the Constitution, unless modified, revoked or superseded by subsequent
proclamations, etc., by the incumbent President or unless expressly and explicitly modified or

repealed by the regular National Assembly. As to, whether or not, this unlimited legislative power of
the President continue to 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 interimNational
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.
4. Because the grant of vast executive and legislating powers to the incumbent President will
necessarily, result in what the petitioners call a one-man rule as there is a concentration of power in
one person, it is my opinion that it could not have been the intent of the framers of the new
Constitution to grant to the incumbent President an indefinite period of time within which to initially
convene the interim National Assembly and to set in motion the formation of the Parliamentary form
of government which was one of the purposes of adopting a new Constitution. I believe that
the interim National Assembly came automatically into existence upon the ratification of the 1973
Constitution. As a matter of fact, from the submission of the Solicitor General, it appears that many if
not all of those entitled to become members of the interim National Assembly have opted to serve
therein and have qualified thereto in accordance with the requirements of Section 2 of the Transitory
Provisions. 2
We cannot, therefore, reasonably construe the absence of a specific period of time for the President
to initially convene the interim Assembly as placing the matter at his sole pleasure and convenience
for to do so would give rise to a situation in which the incumbent President could keep the intent
National Assembly in suspended animation and prevent it from becoming fully operational as long as
he pleases. This would violate the very spirit and intent of the 1973 Constitution more particularly its
Transitory Provisions to institute a form of government, during the transition period, based upon the
fundamental principle of the "separation of powers," with its checks and balances, by specifically
providing that there shall exist immediately upon the ratification of the 1973 Constitution
an interim National Assembly in which legislative power shall exercise all the powers and
prerogatives which are executive in character, and that the judicial power shall continue to be vested
in the Judiciary existing at the time of the coming into force and effect of the 1973 Constitution. The
situation would also render nugatory the provisions of Section 5 of the Transitory Provisions which
assign to the interim National Assembly a vital role to perform during the transition period. 3
While it is true that the convening of the interim National Assembly cannot be said to be simply at the
pleasure and convenience of the President, however, the matter is one addressed to his sound
discretion and judgment for which he is answerable alone to his conscience, to the people he
governs, to posterity, and to history.
5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is my
view that the act of the President in calling such a referendum is not really in the nature of a
legislative act which violates the present Constitution. I do not see any prohibition in the Constitution
for the Chief Executive or the President to consult the people on national issues which in his
judgment are relevant and important. I use the word "consult" because in effect the measure taken
by the President is nothing more than consultative in character and the mere fact that such measure
or device is called a referendum in the Presidential Decrees in question will not affect nor change in
any manner its true nature which is simply a means of assessing public reaction to the given issues
submitted to the people for their consideration. Calling the people to a consultation is, we may say,
derived from or within the totality of the executive power of the President, and because this is so, it
necessarily follows that he has the authority to appropriate the necessary amount from public funds
which are subject to his executive control and disposition to accomplish the purpose.
6. I am constrained to agree with petitioners that a referendum held under a regime of martial law
can be of no far-reaching significance because it is being accomplished under an atmosphere of
climate of fear. There can be no valid comparison between a situation under martial rule and one
where the privilege of the writ of habeas corpus is suspended, as discussed in the Opinion of Justice
Makasiar, because the former entails a wider 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, etc. 4
7. Finally, whatever maybe the totality of the answers given to the proposed referendum questions
on local government will be of no real value to the President because under Article XI, Section 2,
1973 Constitution, it is the National Assembly which is empowered to enact a local government
code, and any change in the existing form of local government shall not take effect until ratified by
the majority of the votes cast in a plebiscite called for the purpose, all of which cannot be complied
with for the simple reason that for the present there is no National Assembly. Moreover, any vote
given on this matter cannot be truly intelligent considering the vagueness of the question as drafted

and the short period of time given to the citizenry to study the so-called manager or commission type
of local government being submitted to the voters.
8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple reason
that I believe that calling a referendum of this nature is a valid exercise of executive power not
prohibited by the Constitution as discussed in number 5 of this Opinion.

Separate Opinions
CASTRO, J., concurring:
I vote to deny the petition.
At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a) that
this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners possess
legal standing before the Court; and (c) that all the petitioners, whatever be the persuasion of their
counsel, recognize the Court as the supreme judicial tribunal operating and functioning under the
1973 Constitution.
I find no particular difficulty in resolving what I regard as the two crucial issues posed by the petition.
1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the
Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12
thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.
Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all and
I do not personally entertain any that the said Transitory Provisions refer to President Marcos as
the "incumbent President," then such doubt should be considered as having been completely
dissipated by the resounding affirmative vote of the people on this question propounded in general
referendum of July 27-28, 1973: "Under the [1973] Constitution, the President, if he so desires, can
continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish
the reforms he initiated under martial law?"
2. On the matter of whether President Marcos, at the present time, can constitutionally exercise
legislative power, I do not need to postulate that he derives legislative power from the constraints of
a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory Provisions are
unequivocal authority for President Marcos to legislate. These paragraphs read:
The incumbent President of the Philippines shall initially convene the interim National Assemble 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 he calls
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, legal, binding, and
effective even after [the] 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.
Stated elsewhere, my reading of these provisions is that they constitute an unmistakable
constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate (until, at
the very earliest, the interim National Assembly shall have been convoked).
The peripheral matter of whether President Marcos should now or soon convene the interim National
Assembly is completely outside the competence of the Supreme Court to resolve, as, in my view, it
is a political question addressed principally, basically, and exclusively to the President and the
Filipino people.
Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.
FERNANDO, J., concurring:

It is a crucial question that is posed by this petition to call a halt to the February 27 referendum
because of alleged constitutional transgressions. It is one fundamental in its essence, and what is
more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties. There
has been a quick response, hopefully not one given in haste, which is the enemy of thought. For all
the vigor and the learning that characterized the advocacy of Senator Lorenzo M. Taada, it did not
suffice to elicit a favorable verdict. The petition did not prosper. So it has been adjudged, and I
concur in the result reached. It is given expression in the notable opinion penned by Justice
Makasiar which, on its face, betrays sensitivity to the magnitude and the grave implications of the
serious problems posed. What is more, it has not avoided subsidiary issues which reach into vital
areas of our constitutional system. To the extent that it reiterates tried and tested doctrines, I am of
course in agreement. Certainly, there is not much difficulty for me in reaching the conclusion that the
term "incumbent President" in the Transitory Provisions means what it says. If I submit this brief
concurrence, it is only because of my belief that notwithstanding the brilliant and illuminating
argumentation in depth by both eminent counsel, raging far and wide in the domain of
constitutionalism, there is no need as yet to express my views on some collateral matters. It suffices
for me to rely on a jurical concept that is decisive. It is the fundamental principle that sovereignty
resides in the people with all government authority emanating from them. 1 It speaks, to recall
Cardozo, with a reverberating clang that drowns all weaker sounds.
1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for the political
sovereign, not the courts. 2 Such an assertion carries overtones of the Taada v. Cuenco 3 ruling that a
matter to be decided by the people in their sovereign capacity is of such a character. It has an aura of
plausibility but it cannot stand the rigor of analysis. It confuses the end result with the procedure
necessary to bring it about. It is elemental that constitutionalism implies restraints as well on the process
by which lawful and valid state objectives may be achieved. 4 What is challenged here is the actuation of
the incumbent President for alleged failure to comply with constitutional requisites. It is much too late in
the day to assert that a petition of that character is not appropriate for the courts. This is not to venture
into uncharted judicial territory. There are landmarks all along the way. This is not then to trespass on
forbidden ground. There is no disregard of the political question concept.
Then there is the attack on the standing of petitioners, as vindicating at most what they consider a
public right and not protecting their rights as individuals. 5 This is to conjure the specter of the public
right dogma as an inhibition to parties intent on keeping public officials staying on the path of
constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an essential constituent
of public interest and, conversely, without a well-ordered state there could be no enforcement of private
rights. Private and public interests are, both in a substantive and procedural sense, aspects of the totality
of the legal order." 7 Moreover, petitioners have convincingly shown that in their capacity as taxpayers,
their standing to sue has been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, 8 foreshadowed by the very decision of People v.
Vera 9 where the doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take that step. Respondents,
however, would hark back to the American Supreme Court doctrine in Mellon v. Frothingham, 10 with their claim that what
petitioners possess "is an interest which is shared in common by other people and is comparatively so
minute and indeterminate as to afford any basis and assurance that the judicial process can act on
it." 11 That is to speak in the language of a bygone era, even in the United States. For as Chief Justice
Warren clearly pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has
definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14
2. Now as to the merits. The success of petitioners would signify that the referendum scheduled for
February 27 of this year will not take place. Believing as I do that the opportunity of the people to
give expression to their views is implicit in the fundamental principle that sovereignty resides in
them, I am unable to find sufficient merit in this petition. For all its logical and plausible aspect, it still
does not admit of doubt, in my mind at least, that a conclusion different from that reached by this
Court would be attended by deplorable consequences. For one thing, it would impress with the
stigma of illegality the viable procedure that under the stern realities of the present is the only one in
the horizon for ascertaining the desires of the people. Moreover, under a republican regime, even
under normal times, their role is limited to the choice of public officials, thereafter to be held to
accountability through their informed, even immoderate, criticism. Now with this proposed
referendum, they will be sounded out on what they think and how they feel on matters of
significance. Even assuming its consultative character, it remains at the very least a step in the right
direction. It may not go far enough, but there is progress of sorts that hopefully may eventually lead
to the goal of complete civilian rule. It stands to reason, at least from my standpoint, that when
people are thus allowed to express their wishes and voice their opinions, the concept of popular
sovereignty, more so under crisis conditions, becomes impressed with a meaning beyond that of
lyric liturgy or acrimonious debate devoid of illumination. Nor is this to discern new waves of hope
that may ultimately dissolve in the sands of actuality. It is merely to manifest fidelity to the
fundamental principle of the Constitution. It dates back to the American Declaration of Independence
of 1776. The government it sets up derives its just powers from the consent of the governed. The
basis of republicanism, to paraphrase Lerner, is that the majority will shall prevail, the premise being
that an ordinary citizen, the common man, can be trusted to determine his political destiny. 15Thereby,
as Bryn-Jones pointed out, the controlling power, the governmental authority in the language of the
Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice Laurel

stressed in Moya v. Del Fierro, 17that an "enfranchised citizen [is] a particle of popular sovereignty and [is]
the ultimate source of established authority." 18There is reliance likewise to this excerpt from the eloquent
opinion of Justice Jackson in West Virginia State Board of Education v. Barnette: 19 "There is no mysticism
in the American concept of the State or of the nature or origin of its authority. We set up government by
consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that
consent. Authority here is to be controlled by public opinion, not public opinion by authority." 20 If that is
true of the United States, so should it be in our land. It caters to man's fundamental yearning for some
degree of participation in the process of reaching fateful decisions. While courts have to deal with the
necessities of their time, the idea should remain untarnished.

3. It follows therefore that the will of the people given expression, even in an unofficial manner but
accurately ascertained, is impressed with a decisive significance. It is more than just a foundation for
societal or political development. Whether appropriate, it determines what is to be done. Its
significance is vital, not merely formal. It is understandable then why in Javellana, 21 one of the issues
passed upon by this Court is the effect of acquiescence by the people to present Constitution even on the
assumption that it was ratified in accordance with the 1935 Charter. It may not be amiss to recall what I
did state on that point in my separate opinion: "Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification
of the new Constitution, then this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single center of ultimate reference," necessarily
the possessor of that "power that is able to resolve disputes by saying the last word." If the origins of the
democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a
republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out,
that only with the recognition of the nation as the separate political unit in public law is there the juridical
recognition of the people composing it "as the source of political authority." From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," which is supreme and must be obeyed.
To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law.
Even if such were not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its commands has no choice but to
submit. Its officials must act accordingly. No agency is exempt from such a duty, not even this Court. In
that sense, the lack of regularity in the method employed to register its wishes is not fatal in its
consequences. Once the fact of acceptance by the people of a new fundamental law is made evident, the
judiciary is left with no choice but to accord it recognition. The obligation to render it obeisance falls on the
courts as well." 22
To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino v.
Commission on Elections: 23 "It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this article. I do not find such contention
convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the
proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of
course that until impressed with finality, an amendment is not to be passed upon by the electorate. There
is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy
to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the
Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent, has to locate his
source of authority in either Constitution or statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary
would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the
people alone, that sovereignty resides." 24
As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in
mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees are
fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in that sense
that I do not feel called upon to inquire into the nature of the authority conferred on the incumbent
President under the Transitory Provisions, whether purely executive as contended by petitioners or
both executive and legislative as argued by respondents. I leave that question for another day. What
cannot be ignored is that with a National Assembly in existence but not convened, it is only the
Executive that can perform those essential and indispensable functions of dealing with the actual
conduct of public affairs. That is the reality that stares us in the face. To deny his power to issue
decrees and to appropriate public funds is thus to assure the paralyzation and impotence of
government. Precisely then, if a referendum may lend itself to a reappraisal of the situation, by all
means let it be conducted. This is not to deny that the judicial power to call a halt exists. It is merely
to stress that it should be exercised with the utmost reluctance as is required by deference to the
concept of popular sovereignty. To be more specific about the matter, this Tribunal should refrain
from making use of that prerogative now.
Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated, I
could not detect sufficient evidence as to the fact of acquiescence to the present Constitution. That
was why I had to dissent from the judgment of the Court dismissing the various petitions assailing
the validity of Proclamation No. 1102. Since then, with well-nigh two years having gone by, it is quite

evident that the matter is no longer open to doubt. Under the standard set forth in the leading case of
Taylor v. Commonwealth, 25 decided at the beginning of the century, no other conclusion is allowable.
The present Constitution "having been thus acknowledged and accepted by the officers administering the
government and by the people ... and being, as a matter of fact, in force throughout ..., and there being no
government in existence ... opposing or denying its validity, [it] is the only rightful, valid, and existing
Constitution ... and that to it all the citizens ... owe their obedience and loyal allegiance." 26
4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It
deserves serious consideration. It is their submission that under martial law, with people denied their
basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly held. In
my concurring and dissenting opinion inPlanas v. Commission on Elections 27 I express the
apprehension that voters cannot "freely register their will," as "dissent may be fraught with unpleasant
consequences." 28 Further: "While it is to be admitted that the Administration has done its best to alleviate
such a state of mind, I cannot in all honesty say, although I am prepared to concede that I may labor
under a sense of undue pessimism, that the momentum of fear necessarily incident to such a regime has
been reduced to a minimum." 29 There is, I would say, still that feeling of insecurity as to what the morrow
may bring, not from high and responsible officials, of course, but from those much lower in the ranks,
whether in the armed forces or in the civilian component. Abuses, in the nature of things, cannot be
completely curbed. In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from
the fact that as I did admit in my concurring and dissenting opinion inAquino v. Enrile, 30 "the Philippine
brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree of
confidence in the capabilities and moderation of those entrusted with its implementation. To cite only an
instance, it is a rare and impressive tribute to the Judge Advocate General, Justice Guillermo S. Santos of
the Court of Appeals, that in a manifesto of reputable citizens both from the clergy and the laity, with a
number of civic and political leaders, the suggestion was made that the conduct of the referendum should
be under the auspices of a Committee of three with him as one of the members. 32 I am not then in a
position to press with the same degree of conviction my original stand. I would not be justified though in
making such a concession if the constitutional rights to freedom of expression and the freedom of
assembly may not be availed of. They are once again enshrined in our Bill of Rights and in the very
same language. If the Constitution is now fully in force, they must be allowed full operation. I do not deny
that they are not absolute in character, but the limitation is supplied by the clear and present danger test.
Nor do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state
authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently stress
though is that dissent, even during such periods of stress, is not disloyalty, much less subversion. Thus
the citizens can invoke in the exercise of the freedoms of expression and of assembly not the challenged
decrees but their constitutional rights. Moreover, as thus construed as they should be to avoid any taint of
invalidity, they may be pulled back from the edge of the constitutional precipice. It would follow, and that to
my mind would be to the credit of the Executive, that even in these trying and parlous times, there is
adherence to a tolerant, compassionate view of life.
5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I had to
vote the way I did. It is quite obvious that for me the old landmarks of the law are still there to serve
as guides, that precedents do serve as factors for continuity and stability not to be ignored but also
not to be slavishly obeyed. For in constitutional law more than in any other branch of juristic science,
much depends on the immediacy and the reality of the specific problems to be faced. Hence it has
been truly said in days of crisis or of emergency, to stand still is to lose ground. Nonetheless, one
has always to reckon with the imponderables and the intangibles, ever so often elusive to our
understanding and disheartening to our deeply-cherished convictions. For he has no choice but to
comply as best he can with the duty to decide in accordance with legal norms with roots that go far
deeper than his personal preferences and predilections. So it has to be.
BARREDO, J., concurring:
I concur in the judgment dismissing the petition. The following opinion is without prejudice to a more
extended one in due time.
Consistently with my opinion in the habeas corpus or martial law cases, the Court has jurisdiction
over the instant petition even if, as will be shown later, the matter of calling a referendum is by nature
a political matter. Anent the possible contention that the title of President Marcos as President of the
Philippines may not be collaterally attacked and that the proper remedy is quo warranto, under the
authority of Nacionalista Party vs. Felix Angelo Bautista, 85 Phil. 101, I concede that the remedy of
prohibition is not altogether improper.
The first ground of the petition is that President Marcos does not have any legal authority to call the
referendum because he is not holding any public office. The specific arguments supporting this
contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is not
President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent President"
contemplated in the transitory provisions of the new constitution; and, in any event, his transitory
powers as "incumbent President" have already lapsed. The second and third grounds are that
President Marcos does not have any power to legislate nor the authority to issue proclamations,
decrees and orders having the force of law, hence he cannot issue decrees appropriating funds and,
therefore, the decree calling for the referendum is void.

It is my considered conviction that these grounds are untenable.

President Marcos' authority to continue exercising the powers of the President under the 1935
Constitution and to exercise those of President and Prime Minister under the 1973 Constitution is
specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me unquestionable
that by virtue of these provisions, President Marcos' being the President of the Philippines, is
constitutionally indubitable.
It was precisely because upon the effectivity of the New Constitution President Marcos would cease
to be President under the 1935 Charter and would not then be occupying any office under the New
Constitution, and, on the other hand, there would yet be no new president and no prime minister,
that he, as "incumbent President" at that time had to be expressly granted the authority to exercise
the powers of the President under the Old Constitution as well as those of the President and the
Prime Minister under the new one, pending the election of these officers. Necessarily, there had to
be a head of government until the new parliamentary system could be properly installed, and
whether or not it would have been wiser to confer the powers in question on some other official or
body is not for the Court to decide. In the meantime, the title of President is the most appropriate to
be held by him.
The contention that President Marcos may not be considered the "incumbent President" referred to
in the Constitution because what is contemplated therein is the one who would be in office at the
time of its ratification and that pursuant to the Javellana decision of the Supreme Court, the
constitution has not yet been ratified, whereas, on the other hand, the term of President Marcos
under the 1935 Constitution expired on December 30, 1973, is predicated wholly on the old theory
advanced in the habeas corpus cases and which has already been discarded in the opinions therein,
although perhaps, it is best that the Court made a categorical ruling which would clear all doubts on
the matter and thereby do away with this issue once and for all. To that end, I would say that as far
as the Court is concerned, its holding in Javellana that "there is no more judicial obstacle to the New
Constitution being considered as in force and effect" should be understood as meaning that the
charter is as valid and binding for all purposes as if it had been ratified strictly in accordance with the
1935 Constitution as petitioners would argue it should have been.
The problem of constitutional construction raised in the petition is, does the Constitution contemplate
that the interim assembly created by it would meet immediately and forthwith elect the new President
and the Prime Minister? If this question were to be answered in the light of normal conditions, there
could be some plausibility in suggesting an affirmative response, albeit not altogether conclusive.
But no one can ever escape the fact that the Constitution was formulated and approved under
abnormal and exceptional circumstances. The members of the convention were well cognizant of the
fact that the country was then as it still is under martial law and that normal processes of government
have not been in operation since its proclamation. We must assume that as practical men they knew
that the procedure of shifting from the presidential to the parliamentary system would have to be
reconciled with the demands of the martial law situation then obtaining. Above all it must have been
obvious to the delegates that under martial law, President Marcos had in fact assumed all the
powers of government. In other words, it must have been evident to them from what was happening
that the immediate convening of the legislative body would not be compatible with the way President
Marcos was exercising martial law powers.
It is but proper, therefore, that these transcendental historical facts be taken into account in
construing the constitutional provisions pertinent to the issue under discussion. As I see it, given the
choice between, on the one hand, delaying the approval of a new charter until after martial law shall
have been lifted and, on the other, immediately enacting one which would have to give due
allowances to the exercise of martial law powers in the manner being done by President Marcos, the
convention opted for the latter. To my mind, it is only from this point of view that one should read and
try to understand the peculiar and unusual features of the transitory provisions of the New
Constitution.
Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to
convene motu propio as was being done in the regular sessions of the old legislature and as in the
case of the regular National Assembly provided therein, said power has been granted by the
Constitution to the incumbent President? Very significantly in this connection, whereas Section 1 of
Article XVII very explicitly uses the word "immediately" in reference to the existence of the interim
Assembly, there is no time fixed as to when the incumbent President should initially convene it.
Withal, even the authority to call for the election of the new President and the Prime Minister was not
lodged in the assembly but again in the incumbent President. Is it not logical to conclude that the
reason behind all these unprecedented provisions is to avoid putting any hindrance or obstacle to
the continued exercise by President Marcos of the powers he had assumed under his martial law
proclamation and his general orders subsequent thereto? If the Convention were differently minded,
it could have easily so worded the said provisions in the most unequivocal manner. And what makes
this conclusion definite is precisely the insertion in the transitory provisions of Section 3(2) of Article
XVII which makes all the proclamations, decrees, orders and instructions of the incumbent President

part of the law of the land, which, in my considered view, is the Convention's own contemporary
construction that during martial law, the administrator thereof must of necessity exercise legislative
powers particularly those needed to carry out the objectives of the proclamation, with no evident
limitation except that no particular legislation not demanded by said objectives shall infringe Section
7 of Article XVII which reserves to the regular National Assembly the power to amend, modify or
repeal "all existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph
(2) of Section 3 of the same article would have been necessary if the convention had intended that
the interim National Assembly would be immediately convened and the new President and the Prime
Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned that the
delegates had in mind that there would be a considerable time gap between the going into effect of
the New Constitution and the election of the new President and the Prime Minister. And they could
not have been thinking merely of the possibility of protracted delay in the election of said officers
because the Assembly itself, once convened, could have readily provided in the exercise of its
inherent powers for what might be required in such a contingency.
In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,
Pacificador and others which were quoted during the hearing and the deliberations. I will quote them
in my extended opinion.
It must be borne in mind that once martial law is proclaimed, all the powers of government are of
necessity assumed by the authority that administers the martial law and the operation of the regular
government, including its legislature and its judiciary, is subjected to its imperatives. Of course, the
Constitution itself is not ousted, but by the power that the Constitution itself vests in the Executive to
issue the proclamation, it yields the application and effects of some of its provisions to the demands
of the situation, as the administrator may in his bona fide judgment so determine. Otherwise stated,
since laws and regulations would be needed to maintain the government and to provide for the
safety and security of the people, the orders of the administrator are given the force of law. In that
sense, the administrator legislates. If he can legislate, so also he can appropriate public funds.
To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate, the said
provision recognizes legislative power in the incumbent President and the scope of said powers is
coextensive with what might be needed, primarily according to his judgment, to achieve the ends of
his martial law proclamation, and in all other respects, they are limited only by the provisions of Sec.
7 of the same article, but, evidently, even this limitation must be reconciled with the fundamental
criterion that the New Constitution was conceived, formulated and enacted with the basic objective
of establishing the New Society for which martial law was proclaimed. In other words, since the
known broad objective of Proclamation 1081 is not only to contain or suppress the rebellion but also
to reform our society and recognize and restructure our government and its institutions as the
indispensable means of preventing the resurgence of the causes of the rebellion, it is obvious that
any decree promulgated by the President in line with these purposes, including those appropriating
the necessary funds therefor, cannot be assailed as beyond the pale of the Constitution.
There is nothing in the letter of the Constitution concerning referendums. But it would be absurd to
think that such paucity may be deemed to indicate that the government has no authority to call one.
If there is anything readily patent in the Constitution, it is that it has been ordained to secure to the
people the blessings of democracy and that its primordial declared principle is that "sovereignty
resides in the people and all government authority emanates from them." Of course, it establishes a
representative democracy, but surely, there is and there could be no prohibition in it against any
practice or action that would make our government approximate as much as possible a direct one,
which is the ideal. On the contrary, it is self-evident that conditions and resources of the country
permitting, any move along such a direction should be welcome. In fact, at this time when there are
fears about what some consider as an emerging dictatorship, referendums in the manner
contemplated in the impugned presidential decrees provide the means for the most vigorous
assertion by the people of their sovereignty, what with the participation therein of even the fifteenyear olds and non-literates and the concrete efforts being exerted to insure the most adequate
submission and the utmost freedom of debate and consensus as the emergency situation would
permit and to have the fairest recording and tabulation of the votes. Granting the good faith of
everyone concerned, and there is absolutely no reason why it should be otherwise, a unique
exercise of essential democratic rights may be expected, unorthodox as the experience may be to
those who cannot understand or who refuse to understand martial law Philippine style. In principle,
to oppose the holding of a referendum under these circumstances could yet be a disservice to the
nation.
A plebiscite or election of officials prescribed by the Constitution for specific occasions must be
distinguished from a referendum, which is an inherent constitutional democratic institution, perhaps
not normally convenient to hold frequently or regularly, but which in certain periods in the life of the
nation may be indispensable to its integrity and preservation. The administration of martial law is
usually considered as nothing more than submission to the will of its administrator. Certainly, there
can be no objection to said administrator's holding a dialogue with the people and adopting ways
and means of governing with their full acquiescence manifested in whatever happens to be the most

feasible way of doing it. If it be assumed that a referendum under the aegis of martial law may not be
an ideal gauge of the genuine will of all the people, no one would deny that if it is undertaken in good
faith, and giving allowances to the imperatives of the situation, it can somehow reflect their sentiment
on the grave issues posed. Besides, whether or not the people will enjoy sufficient and adequate
freedom when they cast their votes in the challenged referendum is a question that is unfair to all
concerned to determine a priori and beforehand. In any event, it is history alone that can pass
judgment on any given referendum.
Upon the other hand, whether a referendum should be called or not and what questions should be
asked therein are purely political matters as to which it does not appear to be proper and warranted
for the Court to exert its judicial power in the premises. To be sure, the referendum in question could
be a waste of the people's money in the eyes of some concerned citizens, while it may be a
necessary and fruitful democratic exercise in the view of others, but what is certain is that
considering its nature and declared purposes and the public benefits to be derived from it, it is the
better part of discretion, granted to it by the Constitution for the Court to refrain from interfering with
the decision of the President.
The claim that the Comelec may not be considered as the independent and impartial guardian of the
results of the scheduled referendum has no basis in fact. From extant circumstances, the recent
activities of that body have not been characterized by any perceptible design to influence such
results in any direction. Referendums being, as they are, in the Philippines today, in the nature of
extra-constitutional innovations, it seems but natural and logical at this stage that the Comelec has
been assigned to undertake the functions of formulating the questions, which, after all has been
done after a more or less nationwide gathering of opinions, and of subsequently explaining them to
the people to best enable them to vote intelligently and freely.
I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start with,
the voting will be secret and is guaranteed to be so. And when I consider that even a strongly
worded petition to enjoin the referendum has been openly ventilated before the Supreme Court with
full mass media coverage giving due emphasis to the points vehemently and vigorously argued by
Senator Taada, who did not appear to be inhibited in the expression of his views, I cannot but be
confirmed in the conviction that the apprehensions of petitioners are unfounded.
Under the New Constitution, every citizen is charged with the duty to vote. To vote in a referendum is
no less a sacred civic obligation than to vote in an election of officials or in a plebiscite. The
impugned decrees cannot therefore be constitutionally faulted just because they provide penalties
for those who fail to comply with their duty prescribed in no uncertain terms by the fundamental law
of the land.
Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.
ANTONIO, J., concurring:
I
The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of
Article XVII (transitory provisions) of the New Constitution is to read its language in connection with
the known conditions of affairs out of which the occasion for its adoption had arisen, and then
construe it, if there be any doubtful expression, not in a narrow or technical sense, but liberally,
giving effect to the whole Constitution, in order that it may accomplish the objects of its
establishment. For these provisions can never be isolated from the context of its economic, political
and social environment.
The New Constitution was framed and adopted at a time of national emergency. The delegates to
the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that brought
about the declaration of martial law, were mere symptoms of a serious malady in the social order.
They knew that the revolutionary reforms made by the incumbent President thru his decrees, orders
and letters of instruction, such as the emancipation of the tenant-farmer from his bondage to the soil,
reorganization of government, eradication of graft and corruption and measures to bridge the gap
between the rich and the poor, were indeed imperative, if the exigency that brought about the military
necessity was to be overcome, civil order restored, and the foundations of genuine democracy
established. The actions of the incumbent President in promulgating those measures legislative in
character during martial law was not without legal and historical basis. Democratic political theorists
traditionally have assumed the need in time of emergency to disregard for the time being the
governmental process prescribed for peacetime and to rely upon a generically different method of
government the exercise by the Chief Executive of extraordinary or authoritarian powers, to
preserve the State and the permanent freedom of its citizens. 1

Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated that "to
preserve the independence of the State, the maintenance of the existing constitutional order and the
defense of the political and social liberties of the people, in times of grave emergency, when the
legislative branch of the government is unable to function or its functioning would itself threaten the public
safety, the Chief Executive may promulgate measures legislative in character, ...". We considered then
that the proclamation of martial rule marked the commencement of a crisis government and crisis
government in a constitutional democracy entails the concentration and expansion of governmental power
and the release of the government from the paralysis of constitutional restraints in order to deal effectively
with the emergency. 3 This was the view of the members of the Constitutional Convention when they
framed the New Constitution.
In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the
deliberations of the 166-man Special Committee of the Constitutional Convention, which was authorized
to make the final draft of the Constitution, during their session on October 24, 1972, the Convention
expressly recognized the authority of the incumbent President during martial law to exercise legislative
powers not merely in the enactment of measures to quell the rebellion but, more important, of measures
urgently required to extirpate the root causes of the social disorder which gave rise to the exigency.
In was with a view of the continuance of the exercise of these extraordinary powers that the
Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the New
Constitution that: "He (the incumbent President) shall continue to exercise his powers and
prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof also
provided that: "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, legal,
binding and effective even after lifting of martial law or 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."
The conferment upon the incumbent President of those extraordinary powers necessarily implies
that in view of the emergency, there might be a deferment in the convening of the interim National
Assembly and, therefore, it was necessary that he be equipped with adequate legal authority and
power to carry the body politic through the crisis.
Indeed, the need of the times was for a more expeditious mode of decision-making and policy
formulation. The insurgency and the secessionist movement compounded by a world-wide economic
inflation and recession generated problems which must be solved with immediacy and with policies
that are flexible and responsive to the imperatives of the crisis.
II
The impossibility for the Convention to determine a priori, in view of the emergency situation, the
time when conditions shall have sufficiently normalized to permit the convening of
the interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a
definite period when the incumbent President shall initially convene that body. It was a matter which
was wholly confided by the Constitution to the incumbent President. Since the exercise of this power
was committed to the incumbent President in all the vicissitudes and conditions of the emergency, it
has necessarily given him ample scope for the exercise of his judgment and discretion. It was a
political decision for which he is directly responsible to the people to whom he is accountable and for
whose welfare he is obliged to act. As stated in the separate opinion of Justice Castro, concurred in
by the Chief Justice, Justices Barredo, Esguerra, Fernandez and the writer of this opinion, "The
peripheral matter whether President Marcos should now or soon convene the interim National
Assembly is completely outside the competence of the Supreme Court to resolve as ... it is a political
question addressed principally, basically, and exclusively to the President and the Filipino people."
III
Neither can it be asserted that the exercise by the incumbent President of those extraordinary
powers is necessarily inconsistent with and an absolute contradiction to the existence of a
democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him by the
Constitution, it represents the will of the sovereign people as the source of all political power. So long as
the power is used to fulfill its true function in realizing the ethical purposes of the community, which is to
ensure the economic and social well-being of its citizens and to secure to them justice, such power is
employed for constructive and moral purposes. Its exercise is, therefore, legitimate as it represents the
collective will of the people themselves. It is, therefore, logical that the incumbent President consult the
people on issues vital to the public interest even through a consultative referendum. Such useful and
healthy contact between the government administrator and the citizenry is the more necessary in a period
of martial law, because the equal participation of the citizenry in the formulation of the will of the State and
in its fundamental political decisions ensures the unity of the people in their efforts to surmount the crisis.
The success then of the political leadership in leading the nation through the emergency would depend on
its ability to convince and persuade, not to dictate and coerce; to enlist, not to command; to arouse and

muster the energies, loyalties, and, if need be, the sacrifices of the people. As Leibholz aptly observed,
"the one essential presupposition of democracy is that the people as a political unity retains its
sovereignty, and that the majority of the active citizens can express their will in political freedom and
equality." 6

IV
It is, however, asserted that the questions asked may not logically be the subject of a referendum.
Thus, it is claimed that some of the questions contemplate vital changes in the existing form of local
government, which changes, under Sections 2 and 3 of Article XI of the 1973 Constitution, must be
submitted to the electorate for ratification in a plebiscite called for that purpose. Admittedly, the
question of the coming referendum asked the voters in the Greater Manila Area, do not contain a full
text of the law proposed for the ratification or rejection by the people. It is, therefore, not a plebiscite
contemplated by the aforecited Sections 2 and 3 of Article XI of the New Constitution but merely a
referendum, advisory or consultative in character.
Political democracy is essentially a government of consensus. The citizen has "a right and a duty to
judge his own concerns, his acts and their effects, as they bear on the common good. If they entail
the common acts of the community, he again has the duty and right to contribute to the common
deliberation by which the acts of the community are decided." 7 Common deliberation or mutual
persuasion occurs on all levels of society, and as a result thereof a common judgment or consensus is
formed on those matters which affect the democratic polity. This is based on the premise that sovereignty
in a political democracy resides in the people and that, their government is founded on their consent. It is
in the formulation of this consensus whether in an election, plebiscite, direct legislation or advisory
referendum or consultation, that the political community manifests its consent or dissent. The national
leadership as the elected representative of the national community has the duty to be responsive and
responsible to this sovereign will. It has been said that the President "speaks and acts as the people's
agent. He lays claim to a mandate from them for his acts. Authority descends upon him from the nation,
not from the other organs of government." 8 In his dual role as Chief Executive and Legislator under
martial law, the incumbent President has, therefore, a greater degree of accountability to the political
community. To discharge effectively that responsibility, he has to ascertain the people's consensus or
common judgment and to act in accordance therewith. Only then can it be said that his actions represent
the people's collective judgment and, therefore, entitled to their whole-hearted support. The coming
referendum is a national undertaking affecting the future of the country and the people. It, therefore,
requires the involvement of every Filipino. By participating in the national consultation or advisory
referendum of February 27, 1975, the Filipino people will prove to the rest of the world their maturity and
capability as a people to make major decisions.
V
It is nevertheless asserted that a referendum held under present existing circumstances is of no farreaching significance because it is being undertaken in a climate of fear. The infirmity of such a
priori judgment is evident from the fact that it is not based on reality. It betrays a lack of awareness of
the strength and character of our people. It is contradicted by past experience. There has been a
deliberate policy to lift gradually the strictures on freedom attendant to a regime of martial law. Thus,
State restrictions on press freedom had been removed, except over publications which, because of
their subversive or seditious character, are deemed incompatible with the public safety. Freedom of
discussion and of assembly are now encouraged. No less than the incumbent President of the
Philippines has underscored the need for an accurate and honest canvass of the people's
sentiments. As the nation's leader, he is called upon to make bold decisions in the face of the grave
problems confronting the nation, but he is convinced that such decisions cannot be effective unless
rooted in the will and reflective of the true sentiments of the sovereign people.
Given the determination of the incumbent President to ascertain the true sentiments of the people,
and considering the measures instituted by the Commission on Elections to safeguard the purity of
the ballot, there appears, therefore, no basis for petitioners' apprehension that the forthcoming
referendum will not reflect the people's untrammeled judgment.
The foregoing opinion contains in brief the reasons for my concurrence with the main opinion and
the separate opinions of Justices Castro and Barredo.
FERNANDEZ, J., concurring:
The present case calls for an interpretation of the New Constitution, particularly its Transitory
Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the
Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to shed
light, even if only modestly, on the fundamental questions involved in this case, on the basis of what
I personally know and in the light of the records of the Convention, to show the understanding and
intention of the Delegates when they discussed and voted on the constitutional provisions involved in
this case.

The pertinent provisions of the New Constitution upon which the parties in this case base their
respective claims are:
ARTICLE XVII
TRANSITORY PROVISIONS
SECTION 1. There shall be an interim National Assembly which shall exist
immediately upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall have
assumed office following an election called for the purpose by the interim National
Assembly. Except as otherwise provided in this Constitution, the interim National
Assembly shall have the same powers and its Members shall have the same
functions, responsibilities, rights, privileges, and disqualifications as the regular
National Assembly and the Members thereof.
Sec. 2. The Members of the interim National Assembly shall be the incumbent
President and Vice-President of the Philippines, those who served as President of
the Nineteen hundred and seventy-one Constitutional Convention, those Members of
the Senate and the House of Representatives who shall express in writing to the
Commission on Elections within thirty days after the ratification of this Constitution
their option to serve therein, and those Delegates to the nineteen hundred and
seventy-one Constitutional Convention who have opted to serve therein by voting
affirmatively for this Article. They may take their oath of office before any officer
authorized to administer oath and qualify thereto, after the ratification of this
Constitution.
Sec. 3. (1) 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 he 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.
(2) 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, legal, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent promulgations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
xxx xxx xxx
The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional Convention
on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:
1. That the determination of the date the interim National Assembly should be convened was left to
the judgment of the President, the country being, as it still is, under martial law;
2. That the incumbent President legally holds office as such having been authorized to continue in
office and to exercise not only the powers of the President under the 1935 Constitution but also
those of the President and Prime Minister under the 1973 Constitution, from the time the New
Constitution was ratified on January 17, 1973 until the election of the interim President
and interim Prime Minister which up to now has not yet taken place; and
3. That included in the powers of the President under the 1935 Constitution and the powers of the
Prime Minister under the 1973 Constitution is the power to declare martial law which in turn includes
the power to make all needful rules and regulations with the force and effect of law until the
termination of the martial rule.
The minutes of the plenary session of the Convention of October 18, 1972 contain the sponsorship
speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions. He described the
proposed interimgovernment as a practical response to our abnormal conditions presently obtaining
in the country. He explained that in order to effectively implement reform measures under the New
Constitution, the nation should be relieved of the burden of political and national elections during the
transitory period. The proposed interim National Assembly should therefore be composed of present
elective government officials, together with members of the Convention who would vote for its

creation and who could be of great help, in view of their familiarity with the provisions of the New
Constitution, in the enactment of reform measures to be approved by the interim National Assembly
pursuant to the mandates of the New Constitution. Delegate Yaneza was interpellated by Delegates
Suarez, Tupaz (A), Jamir, Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel,
Encarnacion, Pacificador, Ordoez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.
The following exchange took place between Delegate Pimentel and Delegate Yaneza.
DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been
repeatedly the basis of certain questions. It says: "the incumbent President of the
Philippines shall initially convene." Will it not be better if we state here, "shall
immediately convene? Or we should provide a certain number of days or months
perhaps after the ratification of the Constitution when the President shall initially
convene the ad interim Assembly?
DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have
discussed that in the Committee lengthily, but we arrived at a decision to give our
President flexibility regarding this particular matter, Your honor. And we feel that we
have decided this matter with some wisdom and with consideration of the present
situation obtaining in our country. (Emphasis supplied)
The minutes of the plenary session of the Convention of October 19, 1972 show, among others, the
following:
Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the same
time President and the Prime Minister under the interim Government. Delegate Yaneza answered
affirmatively, adding that the President would actually have a triple personality since he would
exercise powers under the two Constitutions.
Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval of
the President, to which Delegate Britanico (a co-sponsor) replied in the negative.
Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of
Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui and
Raquiza. He was followed by Delegate Teves who also spoke against the Transitory Provisions in
question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna. Delegate David
(J) was the next opposition speaker. He was in turn interpellated by Delegate Tupaz (A.).
On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola Catan
and Leido.
The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first
speaker. Cuaderno said that he favored the article on the interim Government mainly because of the
benefits of martial law.
Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all
proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present
administration under martial law, contending that only the sovereign people could pass judgment
with finality on the same.
Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who maintained
that theinterim National Assembly was a necessity, to fill the vacuum of constitutional processes that
could arise should the President continue in office beyond his tenure so that he could see the fruition
of his efforts to restore normalcy in the country.
The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of Rizal,
a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A. Fernandez of
Laguna (now a humble member of this Court). Both speeches covered all the principal points.
Modesty aside, we now beg to summarize their arguments, as follows:
Delegate Barrera: It is immoral for us to vote Yes, because that would be practically
electing ourselves as members of the interim National Assembly when we were
elected by the people only for the purpose of writing a Constitution.
Delegate Fernandez: True, when we were elected, our mandate from the people was
only to write a new Constitution. But then there was no martial law yet. With martial
law, there arose a need for aninterim Government, specifically, an interim National

Assembly. No one has previously received any mandate from our people on who
should be members of this interim National Assembly. No one can say as of now
whether it is immoral, and even moral, for us to vote Yes. For my part, I will vote Yes
because if I vote No, I would foreclose my right to become a member of
this interim National Assembly. I will vote Yes. Afterwards I will consult with the
people of the second district of Laguna on this matter. If they say "Fernandez, you
committed an error", then I will not take my oath. However, if they say "Fernandez,
you did well so that we can have an additional representative in the interimNational
Assembly," then I will take my oath. By that time, I think nobody can say it was
immoral for me to have voted Yes. But what is most important is whether or not the
members of the interimNational Assembly succeed in the discharge of their duties
and responsibilities. If they fail, then our people and history will condemn them. If
they succeed, our people and history may commend them.
Delegate Barrera: As long as the interim National Assembly does not call for the
election of the regular members of the National Assembly, the members of
this interim Assembly will continue in office. For how long, it is not determined. In
view of the high salary of the members of the National Assembly (P60,000.00 a
year), there will be a temptation for them not to call for the election of the members of
the regular National Assembly, for a long, long time.
Delegate Fernandez: I disagree. We must grant that the members of
the interim National Assembly would be possessed with a sense of decency and
patriotism that would make them realize the impropriety of overstaying in office. And
the people will always be there to demonstrate thru the media and the streets to
compel the interim National Assembly to call for a regular election.
Delegate Barrera: But it is wishful thinking on the part of the members of the
convention to vote Yes and thereby become members of the interim National
Assembly because the President may unduly delay the lifting of martial law and the
calling of the National Assembly into a session. Then he will be President for life.
Delegate Fernandez: What is the premise of the conclusion of the Delegate from
Rizal that the President will unduly delay the lifting of martial Law and the calling of
the interim Assembly into a session? Nothing. For my part, I wish to advance a
premise. If it is valid, the conclusion will be valid. I believe President Marcos will want
to go down in history as a good President. If this premise is good and I believe it is,
then he will not abuse. He will lift martial law and convene the interim National
Assembly at the proper time. He will not be President for life.
Delegate Abundo then said that the committee had accepted the following amendment: "(b) the
Mario amendment to Section 2 concerning "those members of both the Senate and House of
Representatives to express in writing to the Commission on Elections their option to sit in the
assembly within 30 days after the ratification of the Constitution, etc." There being no objection, the
above amendment was approved.
Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly to
"not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson accepted the
amendment, but when submitted to a vote, the amendment was lost. Other amendments were
proposed and were lost.
Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory Provisions
could be considered as voting on second and third reading and proposed that absent delegates be
allowed to cast their votes in writing and deliver them to the Committee on Credentials within 72
hours from that day.
The voting followed and the chair announced that by a vote of 274 in favor and 14 against the draft
Transitory Provisions were approved on second and third reading. And among the delegates that
voted affirmatively in favor of these Transitory Provisions whose interpretation is now the subject of
the present case, were: Delegate Alonto (former Senator from Lanao), Delegate Aruego (the wellknown author on the framing of the Constitution), Delegate Baradi (former Ambassador), Delegate
Borra (former COMELEC Chairman), Delegate Cuaderno (Member of the first Constitutional
Convention and Economist who recently passed away), Delegate De las Alas (former Speaker of the
House of Representatives), Delegate Laurel (who was President Protempore of the Convention),
Delegate Feliciano Ledesma (Dean of the College of Law of San Beda), Delegate Oscar Ledesma
(former Senator), Delegate Leido (former Congressman and Secretary of Finance), Delegate Liwag
(former Secretary of Justice and Senator), Delegate Marino (former Executive Secretary and
Secretary of Justice), Delegate Mutuc (former Executive Secretary and Ambassador), Delegate
Father Pacifico Ortiz, Delegate Ceferino Padua (lawyer of former Senator Sergio Osmea, Jr.),
Delegate Jose Ma. Paredes (former Justice of the Supreme Court), Delegate Godofredo Ramos

(veteran legislator), Delegate Sinco (former UP President and an authority on Constitutional Law),
Delegate Serrano (former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman),
Delegate Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker
Protempore of the House of Representatives), Delegate Concordia(former Congressman), and
Delegate Fernandez.
The foregoing, in our humble opinion, clearly show:
a) That when 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; and
b) That the incumbent President, or President Marcos to be more specific, was to continue in the
office as President with triple powers, upon and even after the ratification of the New Constitution
(January 17, 1973), and until the election of the interim President and interim Prime Minister (which
has not taken place even up to now), and even after December 30, 1973 when the term of office of
the incumbent President would have expired under the 1935 Constitution. Hence, the incumbent
President continued and continues to be the constitutional and therefore de jure President of our
country.
Subsequent events proved the wisdom of the decision of the Convention to give the President a
wide discretion when to convene the interim National Assembly.
a) For although the peace and order condition of the country has improved, it suffered a relapse. The
rebellion had not been completely quelled. Only last January 29, 1975, for instance, the newspapers
carried the report that according to President Marcos "Muslim insurgents had broken a truce in
Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy casualties." ... "Muslim
secessionists ... had taken over three towns in Mindanao and Sulu." ... "An Armed Forces contingent
of 42 men, including three officers and the battalion commander, were wiped out in a surprise raid."
b) The oil crises which brought about worldwide inflation, recession and depression, created
problems which, according to economic experts, can be solved effectively only with the President
exercising legislative powers. A National Assembly would take a longer period of time to be able to
pass the necessary legislation to cope with this worsening economic situation.
c) And what is most important is that in addition to the criticisms levelled in the Convention against
the membership of the interim National Assembly, the people themselves expressed their disfavor
against the interimAssembly by voting against its immediate convening when they ratified the
Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the Barangays reiterated their
decision of January, 1973 to suspend the convening of the interim National Assembly. And in
connection with the forthcoming February 27, 1975 referendum, many members of
this interim National Assembly themselves asked that the question of whether or not the assembly
should immediately be convened be eliminated, as in fact it was eliminated, because the people had
already decided against the immediate convening of the interim Assembly.
Perhaps, it was a blessing in disguise that before this interim National Assembly could be convened,
it has been "fiscalized" in advance be our people. The people apparently have expressed their
distrust of this interimAssembly. This has become a standing challenge so that when
this interim Assembly is finally convened, its members may discharge their duties and
responsibilities in such a manner as to rebut successfully the basis for the opposition of the people
to its being convened in the meantime.
I have adverted to the proceedings of the Constitutional Convention because it supports the literal
interpretation of the Constitution which I now wish to make. The wording of the New Constitution is, I
believe, clear. Considering the condition in which the country was at the time they approved the draft
of the Constitution, it would have been unthinkable for the Constitutional Convention not to have
provided for a continuity in the office of the Chief Executive.
It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental
machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected
outright.
The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the present administration are hereby ratified

and confirmed as valid." The words "ratified and confirmed" had been changed into "shall be part of
the law of the land," because under the first clause, it would imply that the incumbent President did
not have the authority to issue the proclamations, orders, decrees, instructions and acts referred to.
The Convention conceded that the President had that power; and that is the reason why the phrase
"shall be part of the law of the land" was the one finally used.
Parenthetically, the Constitutional Convention itself recognized expressly the legislative power of the
incumbent President to enact an appropriation law when it asked and the same was given by the
incumbent President additional funds at the time when there was already martial law.
I wish to add that this legislative power of the President under martial law should not be limited to the
legislative power under the old classical concept of martial law rule. For the modern concept of
martial law rule includes not only the power to suppress invasion, insurrection or rebellion and
imminent danger thereof, but also to prevent their resurgence by the removal of the causes which
gave rise to them; in a word, the reform of our society.
In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its
plenary session of October 20, 1972, I stated my firm conviction that President Marcos would want
to go down in history as a good President. This was not only a belief but a challenge to him as well;
and I am glad that subsequent events proved the correctness of my stand. In one of his books, he
himself said:
Moreover, we have embarked upon the experiment with the full knowledge that its
outcome will depend on most of us, not just a few who are managing a "command
society." The misgivings are large; the most outstanding is the fear of a powerful few
holding the many in subjection. But this fear misses the particularity of Philippine
martial law; it cannot and not exist without the clear and not manipulated consent of
the governed. Our people will accept only sacrifices which are justifiable to them.
It is more than a homily to assert that the New Society is not a promised land that
patiently awaits our arrival. More than a place in time or space, the New Society is a
vision in our minds: this can be realized only through the strength of our resolution.
I am mindful of the fact that historically authoritarian regimes tend to outlive their
justification. I do not intend to make a permanent authoritarianism as my legacy to
the Filipino people. It is sufficiently clear to them, I believe, that martial law is an
interlude to a new society, that it is, in sum, a Cromwellian phase in our quest for a
good and just society. Certainly the enterprise is worth a little sacrifice. (Marcos, The
Democratic Revolution in the Philippines, 217-218, [1974]).
And in his speech before government elective officials of Bulacan last January 29, 1975 as reported
in the newspapers of last January 30, 1975, he solemnly said that should the coming referendum fail
to give him a vote of confidence, he would call the interim National Assembly to session and that
more than that, he would ask the Assembly to immediately fix the date for elections of the members
of the National Assembly; and that in such a case, he would run in his district for a seat in the
Assembly.
And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The
information campaign should now go in full gear. The Commission on Elections should emphasize
the freedom of debate during the campaign; it should emphasize the freedom of the people to
express themselves not only in the debates but more so as they cast their ballots, by safeguarding
the secrecy of the ballot. And the Commission should redouble its efforts to assure the people that
there will be a true, correct and accurate reading of the ballots, counting of the votes, and a report of
the results of the referendum.
IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and in the
separate opinions of Justices Castro and Barredo. The petition should thus be dismissed, without
costs.
TEEHANKEE, J., concurring and dissenting:
In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the
"incumbent President" and head of government who is vested with authority under Article XVII,
section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his powers
and prerogatives under the 1935 Constitution and the powers vested in the President and Prime
Minister under this Constitution."
I am constrained, however, to dissent from the remaining portion thereof which dismisses the
petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.

1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution is
the change of our system of government from presidential to parliamentary wherein the legislative
power is vested in a National Assembly 1 and the Executive Power is vested in the Prime Minister who
"shall be elected by a majority of all the members of the National Assembly from among
themselves." 2 The President who is likewise elected by a majority vote of all the members of the National
Assembly from among themselves "shall be the symbolic head of state." 3
To carry out the "orderly transition from the presidential to the parliamentary system," section 1 of the
Transitory Provisions decreed that:
SECTION 1. There shall be an interim National Assembly which shall exist
immediate upon the ratification of this Constitution and shall continue until the
Members of the regular National Assembly shall have been elected and shall
have assumed office following an election called for the purpose by
the interim National Assembly. Except as otherwise provided in this Constitution,
the interim National Assembly shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as
the regular National Assembly, and the Members thereof. (Art. XVII)
Section 2 of the Transitory Provisions provides for the members of the interim National Assembly.
The Solicitor General stated at the hearing that the interim National Assembly came into
existence after the proclamation on January 17, 1973 of the ratification of the Constitution per
Proclamation No. 1102 when the members thereof took their oath of office and qualified thereto in
accordance with the cited section and continues in existence at the present time without having been
convened.
Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that the
calling of a referendum and the appropriation of funds therefor are essentially legislative acts while
the transitory powers and prerogatives vested in President Marcos until the election of
the interim Prime Minister and interim President under section 3 (1) of the Transitory Provisions are
executive and not legislative powers, since the powers of the President under the 1935 Constitution
and those of the Prime Minister under the 1973 Constitution are essentially executive powers; more
so, with respect to the powers of the President under the 1973 Constitution which are symbolic and
ceremonial.
While the Solicitor General has cited the President's powers under martial law and under section 3
(2) of the Transitory Provisions 4 as vesting him with legislative powers, there is constitutional basis
for the observation that his legislative and appropriation powers under martial law are confined to the
law of necessity of preservation of the state which gave rise to its proclamation 5 (including
appropriations for operations of the government and its agencies and instrumentalities).
Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures adopted in
the prosecution of a constitutional dictatorship should never be permanent in character or effect. ...
The actions directed to this end should therefore be provisional. ... Permanent laws, whether
adopted in regular or irregular times are for parliaments to enact," and that "a radical act of
permanent character, one working lasting changes in the political and social fabric (which) is
indispensable to the successful prosecution of the particular constitutional dictatorship ... must be
resolutely taken and openly acknowledged [as exemplified by U.S. President Lincoln's emancipation
proclamation] ... Nevertheless, it is imperative that any action with such lasting effects should
eventually receive the positive approval of the people or of their representatives in the legislature." 6
Even from the declared Presidential objective of using Martial Law powers to institutionalize reforms
and to remove the causes of rebellion, such powers by their very nature and from the plain language
of the Constitution7 are limited to such necessary measures as will safeguard the Republic and suppress
the rebellion (or invasion) and measures directly connected with removing the root causes thereof, such
as the tenant emancipation proclamation. 8 The concept of martial law may not be expanded, as the main
opinion does, to cover the lesser threats of "worldwide recession, inflation or economic crisis which
presently threatens all nations" 9 in derogation of the Constitution.
On the other hand, those legislative powers granted in the cited section 3 (2), known as the
validating provision which validated the President's acts and decrees after the proclamation of
martial law up to the ratification of the Constitution are limited to modifying, revoking or superseding
such validated acts and decrees done or issued prior to the proclaimed ratification, since section 7 of
the Transitory Provisions 10 expressly reserves to the National Assembly the legislative power to amend,
modify or repeal "all existing laws not inconsistent with this Constitution."
The question is thus reduced as to whether now after the lapse of two years since the adoption of
the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the convening, of
the existing interimNational Assembly should be implemented not for purposes of an action of
mandamus which cannot be availed of because of the separation of powers but for the present

action of prohibition against respondents officials which asserts that the questioned referendum
comes within the constitutional domain of the interim National Assembly and that after the coming
into "immediate existence of the interim National Assembly upon the proclamation of ratification of
the Constitution, the "initial convening" thereof with the election of the interimSpeaker and the
election of the interim President and the interim Prime Minister should have followed as a matter of
course. The cited provision reads:
SEC 3. (1) 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 Constitutionuntil he calls upon the interim National Assembly to
the elect the interim President and the interim Prime Minister, who shall then
exercise their respective powers vested by this Constitution. (Art. XVII)
2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the
primary task in constitutional construction is to ascertain and assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution and that the courts may not inquire
into the wisdom and efficacy of a constitutional or statutory mandate.
Where the language used is plain and unambiguous, there is no room for interpretation. "It is
assumed that the words in which constitutional provisions are couched express the objective sought
to be attained. They are to be given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as possible should be understood in
the sense they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say." 11
The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall "exist
immediatelyupon the ratification of this Constitution" calls for its coming into existence "right away"
as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor General, its
members as provided in section 2 duly took their oath of office and qualified thereto, upon the
proclamation of ratification. The clear import of section 3 in order to give meaning and effect to the
creation and "immediate existence" of the interim National Assembly is that the incumbent President
shall then proceed to "initially (i.e. "in the first place: at the beginning") 12 convene" it and preside over
its sessions until the election of the interim Speaker after which he calls for the election of
the interim President and the interim Prime Minister "who shall then exercise their respective powers
vested by this Constitution." (The "incumbent President" then bows out and is succeeded by the Prime
Minister who may of course be himself).
This view is further strengthened by the expectations aired in the debates of the 1971 Constitutional
Convention that a parliamentary government would be more responsible and responsive to the
people's needs and aspirations. Thus, in section 5 of the Transitory Provision, the interim National
Assembly was charged with the mandate to "give priority to measures for the orderly transition from
the presidential to the parliamentary system, the reorganization of the Government
the eradication of graft of and corruption, the effective maintenance ofpeace and order, the
implementation of declared agrarian reforms, the standardization of compensation of government
employees, and such other measures as shall bridge the gap between the rich and the poor"
urgent and long-lasting measures which the President has single-handedly confronted up to now.
3. The manifestation of the Solicitor General that the schedule referendum is merely consultative and
thus includes the participation of voters below 18 years of age but at least 15 years old (who
are not qualified enfranchised voters under Article VI on suffrage of the 1973 Constitution which
decrees a minimum age of 18 years for qualified voters) adds weight to the view that the
existing interim National Assembly be now convened and perform its constitutional functions as the
legislative authority. From the very nature of the transitory provision which created it, its existence
must likewise be interim, i.e. temporary provisional, of passing and temporary duration (as opposed
to permanent and the regular institutions provided for in the first 15 Articles of the Constitution) until
after it shall have reapportioned the Assembly seats 13 and called for the election of the members of
the regular National Assembly. 14 The convening of the interim National Assembly with its cross-section of
knowledgeable representatives from all over the country was obviously hopefully conceived to serve
(more than consultative referendums)to apprise the President of the people's and their constituencies'
views as well as to assist him as mandated by the Constitution in the enactment of priority measure to
achieve fundamental and far-reaching reforms.
4. While 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, 15 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 any provision or mandate
thereof such as the Transitory 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. 16
This seems self-evident for the sovereign people through their mutual compact of a written
constitution have themselves thereby set bounds to their own power, as against the sudden impulse
of mere and fleeting majorities,17 and hence have provided for strict adherence with the mandatory
requirements of the amending process through a fair and proper submission at a plebiscite, with sufficient
information and full debate to assure intelligent consent or rejection. 18
5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail to
register and vote in the scheduled referendum is open to serious constitutional question. It seems
clear that the calling of "consultative referendum" is not provided for nor envisaged in the
Constitution as the appropriate vehicle therefor is provided through the interim and regular National
Assemblies. It should perhaps be reexamined whether the mandate of the Constitution that "it shall
be the obligation of every citizen qualified to vote to register and cast his vote" (at elections of
members of the National Assembly and elective local officials and at plebiscites, as therein provided
for) and the criminal penalties imposed in the questioned decrees should be deemed applicable to
such extra-constitutional consultative referendums wherein non-qualified voters (the 15-year olds up
to below 18) are asked to participate.
MUOZ PALMA, J., concurring and dissenting:
The views I express in this separate opinion will briefly explain my position on the principal issues
posed in this Petition for Prohibition.
1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent President" in
Article XVII to which we shall refer for short as the Transitory Provisions of the 1973 Constitution.
That fact is beyond doubt because at the time the draft of the new Constitution was being prepared
and when it was finally signed by the delegates to the 1971 Constitutional Convention on November
30, 1972, it was President Marcos who was holding the position of President of the Philippines.
2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory
Provisions with constitutional authority to continue as President of the Philippines during the
transition period contemplated in said Article XVII that is, until the interim President and
the interim Prime Minister shall have been elected by the interimNational Assembly who shall then
exercise their respective powers vested by the new Constitution, after which the office of the
incumbent President ceases. During that transition period, President Marcos was given
extraordinary powers consisting of the powers and prerogatives of the President under the 1935
Constitution, and the powers vested in the President and the Prime Minister under the 1973
Constitution. 1
3. Aside from the vest executive powers granted to the incumbent President as indicated above, he
was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the sense,
that all proclamations, orders, decrees, instructions, and acts which were promulgated, issued, or
done by the incumbent President before the ratification of the Constitution were declared part of the
law of the land, to remain valid, legal, binding or effective even after the lifting of martial law or the
ratification of the Constitution, unless modified, revoked or superseded by subsequent
proclamations, etc., by the incumbent President or unless expressly and explicitly modified or
repealed by the regular National Assembly. As to, whether or not, this unlimited legislative power of
the President continue to 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 interimNational
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.
4. Because the grant of vast executive and legislating powers to the incumbent President will
necessarily, result in what the petitioners call a one-man rule as there is a concentration of power in
one person, it is my opinion that it could not have been the intent of the framers of the new
Constitution to grant to the incumbent President an indefinite period of time within which to initially
convene the interim National Assembly and to set in motion the formation of the Parliamentary form
of government which was one of the purposes of adopting a new Constitution. I believe that

the interim National Assembly came automatically into existence upon the ratification of the 1973
Constitution. As a matter of fact, from the submission of the Solicitor General, it appears that many if
not all of those entitled to become members of the interim National Assembly have opted to serve
therein and have qualified thereto in accordance with the requirements of Section 2 of the Transitory
Provisions. 2
We cannot, therefore, reasonably construe the absence of a specific period of time for the President
to initially convene the interim Assembly as placing the matter at his sole pleasure and convenience
for to do so would give rise to a situation in which the incumbent President could keep the intent
National Assembly in suspended animation and prevent it from becoming fully operational as long as
he pleases. This would violate the very spirit and intent of the 1973 Constitution more particularly its
Transitory Provisions to institute a form of government, during the transition period, based upon the
fundamental principle of the "separation of powers," with its checks and balances, by specifically
providing that there shall exist immediately upon the ratification of the 1973 Constitution
an interim National Assembly in which legislative power shall exercise all the powers and
prerogatives which are executive in character, and that the judicial power shall continue to be vested
in the Judiciary existing at the time of the coming into force and effect of the 1973 Constitution. The
situation would also render nugatory the provisions of Section 5 of the Transitory Provisions which
assign to the interim National Assembly a vital role to perform during the transition period. 3
While it is true that the convening of the interim National Assembly cannot be said to be simply at the
pleasure and convenience of the President, however, the matter is one addressed to his sound
discretion and judgment for which he is answerable alone to his conscience, to the people he
governs, to posterity, and to history.
5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is my
view that the act of the President in calling such a referendum is not really in the nature of a
legislative act which violates the present Constitution. I do not see any prohibition in the Constitution
for the Chief Executive or the President to consult the people on national issues which in his
judgment are relevant and important. I use the word "consult" because in effect the measure taken
by the President is nothing more than consultative in character and the mere fact that such measure
or device is called a referendum in the Presidential Decrees in question will not affect nor change in
any manner its true nature which is simply a means of assessing public reaction to the given issues
submitted to the people for their consideration. Calling the people to a consultation is, we may say,
derived from or within the totality of the executive power of the President, and because this is so, it
necessarily follows that he has the authority to appropriate the necessary amount from public funds
which are subject to his executive control and disposition to accomplish the purpose.
6. I am constrained to agree with petitioners that a referendum held under a regime of martial law
can be of no far-reaching significance because it is being accomplished under an atmosphere of
climate of fear. There can be no valid comparison between a situation under martial rule and one
where the privilege of the writ of habeas corpus is suspended, as discussed in the Opinion of Justice
Makasiar, because the former entails a wider 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, etc. 4
7. Finally, whatever maybe the totality of the answers given to the proposed referendum questions
on local government will be of no real value to the President because under Article XI, Section 2,
1973 Constitution, it is the National Assembly which is empowered to enact a local government
code, and any change in the existing form of local government shall not take effect until ratified by
the majority of the votes cast in a plebiscite called for the purpose, all of which cannot be complied
with for the simple reason that for the present there is no National Assembly. Moreover, any vote
given on this matter cannot be truly intelligent considering the vagueness of the question as drafted
and the short period of time given to the citizenry to study the so-called manager or commission type
of local government being submitted to the voters.
8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple reason
that I believe that calling a referendum of this nature is a valid exercise of executive power not
prohibited by the Constitution as discussed in number 5 of this Opinion.

G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL
REVENUE, respondents.
G.R. No. 115525 October 30, 1995
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary
of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their
AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.
G.R. No. 115543 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE
BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 October 30, 1995
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING
CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 October 30, 1995
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT
COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TAADA,petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 October 30, 1995
PHILIPPINE AIRLINES, INC., petitioner,
vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115873 October 30, 1995
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON.

TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF
PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as
the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his capacity
as the Commissioner of Customs, respondents.
RESOLUTION

MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the petitions filed in these
cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded
Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by the several
petitioners in these cases, with the exception of the Philippine Educational Publishers Association,
Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the
Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc.,
petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a reply. In
turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino,
Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders
Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did not "originate
exclusively" in the House of Representatives as required by Art. VI, 24 of the Constitution. Although
they admit that H. No. 11197 was filed in the House of Representatives where it passed three
readings and that afterward it was sent to the Senate where after first reading it was referred to the
Senate Ways and Means Committee, they complain that the Senate did not pass it on second and
third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it
approved on May 24, 1994. Petitioner Tolentino adds that what the Senate committee should have
done was to amend H. No. 11197 by striking out the text of the bill and substituting it with the text of
S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just becomes
the text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment
to a House revenue bill by enacting its own version of a revenue bill. On at least two occasions
during the Eighth Congress, the Senate passed its own version of revenue bills, which, in
consolidation with House bills earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY
EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY
EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the President
on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the
House on January 29, 1992, and S. No. 1920, which was approved by the Senate on February 3,
1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD TO
ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by the
President on May 22, 1992. This Act is a consolidation of H. No. 22232, which was approved by the

House of Representatives on August 2, 1989, and S. No. 807, which was approved by the Senate on
October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also the result of the
consolidation of House and Senate bills. These are the following, with indications of the dates on
which the laws were approved by the President and dates the separate bills of the two chambers of
Congress were respectively passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR
THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO
REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO
ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING
FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992
Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO
PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY
LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24,
1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL
SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO
DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF
THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF GOODS
AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES RENDERED BY
CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS TO DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO
THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November 9,
1993)

House Bill No. 11024, November 3, 1993

Senate Bill No. 1168, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION
OF THE DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED,
ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR OTHER
PURPOSES (December 23, 1993)
House Bill No. 7789, May 31, 1993
Senate Bill No. 1330, November 18, 1993
7. R.A. NO. 7717
AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES
OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE
OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A
NEW SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5,
1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of
its power to propose amendments to bills required to originate in the House, passed its own version
of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630, petitioners
Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings.
On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino,
concerns a mere matter of form. Petitioner has not shown what substantial difference it would make
if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead enacted as a
substitute measure, "taking into Consideration . . . H.B. 11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
68. Not more than one amendment to the original amendment shall be considered.
No amendment by substitution shall be entertained unless the text thereof is
submitted in writing.
Any of said amendments may be withdrawn before a vote is taken thereon.
69. No amendment which seeks the inclusion of a legislative provision foreign to the
subject matter of a bill (rider) shall be entertained.
xxx xxx xxx
70-A. A bill or resolution shall not be amended by substituting it with another which
covers a subject distinct from that proposed in the original bill or resolution.
(emphasis added).

Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate
possesses less power than the U.S. Senate because of textual differences between constitutional
provisions giving them the power to propose or concur with amendments.
Art. I, 7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other Bills.
Art. VI, 24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt,
bills of local application, and private bills shall originate exclusively in the House of
Representatives, but the Senate may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the
phrase "as on other Bills" in the American version, according to petitioners, shows the intention of
the framers of our Constitution to restrict the Senate's power to propose amendments to revenue
bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and
"the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be
like other bills but must be treated as a special kind."
The history of this provision does not support this contention. The supposed indicia of constitutional
intent are nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be
recalled that the 1935 Constitution originally provided for a unicameral National Assembly. When it
was decided in 1939 to change to a bicameral legislature, it became necessary to provide for the
procedure for lawmaking by the Senate and the House of Representatives. The work of proposing
amendments to the Constitution was done by the National Assembly, acting as a constituent
assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers,
sought to curtail the powers of the proposed Senate. Accordingly they proposed the following
provision:
All bills appropriating public funds, revenue or tariff bills, bills of local application, and
private bills shall originate exclusively in the Assembly, but the Senate may propose
or concur with amendments. In case of disapproval by the Senate of any such bills,
the Assembly may repass the same by a two-thirds vote of all its members, and
thereupon, the bill so repassed shall be deemed enacted and may be submitted to
the President for corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days from the opening of
the next regular session of the same legislative term, reapprove the same with a vote
of two-thirds of all the members of the Assembly. And upon such reapproval, the bill
shall be deemed enacted and may be submitted to the President for corresponding
action.
The special committee on the revision of laws of the Second National Assembly vetoed the proposal.
It deleted everything after the first sentence. As rewritten, the proposal was approved by the National
Assembly and embodied in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO,
KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the
people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, 18 (2) of the 1935 Constitution, from which Art. VI, 24 of the present
Constitution was derived. It explains why the word "exclusively" was added to the American text from
which the framers of the Philippine Constitution borrowed and why the phrase "as on other Bills" was
not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments
must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills
are required to originate exclusively in the House of Representatives, the Senate cannot enact
revenue measures of its own without such bills. After a revenue bill is passed and sent over to it by
the House, however, the Senate certainly can pass its own version on the same subject matter. This
follows from the coequality of the two chambers of Congress.
That this is also the understanding of book authors of the scope of the Senate's power to concur is
clear from the following commentaries:

The power of the Senate to propose or concur with amendments is apparently

without restriction. It would seem that by virtue of this power, the Senate can
practically re-write a bill required to come from the House and leave only a trace of
the original bill. For example, a general revenue bill passed by the lower house of the
United States Congress contained provisions for the imposition of an inheritance tax .
This was changed by the Senate into a corporation tax. The amending authority of
the Senate was declared by the United States Supreme Court to be sufficiently broad
to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55
L. ed. 389].
(L. TAADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247
(1961))
The above-mentioned bills are supposed to be initiated by the House of
Representatives because it is more numerous in membership and therefore also
more representative of the people. Moreover, its members are presumed to be more
familiar with the needs of the country in regard to the enactment of the legislation
involved.
The Senate is, however, allowed much leeway in the exercise of its power to propose
or concur with amendments to the bills initiated by the House of Representatives.
Thus, in one case, a bill introduced in the U.S. House of Representatives was
changed by the Senate to make a proposed inheritance tax a corporation tax. It is
also accepted practice for the Senate to introduce what is known as an amendment
by substitution, which may entirely replace the bill initiated in the House of
Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, 24 provides that all appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private bills must "originate exclusively in
the House of Representatives," it also adds, "but the Senate may propose or concur with
amendments." In the exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a committee to which a bill is
referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill omitting or
adding sections or altering its language; (3) to make and endorse an entirely new bill
as a substitute, in which case it will be known as a committee bill; or (4) to make no
report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to originate in the House by
prescribing that the number of the House bill and its other parts up to the enacting clause must be
preserved although the text of the Senate amendment may be incorporated in place of the original
body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S.
No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any
which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that
S. No. 1630 is an independent and distinct bill. Hence their repeated references to its certification
that it was passed by the Senate "in substitution of S.B. No. 1129, taking into consideration P.S. Res.
No. 734 and H.B. No. 11197," implying that there is something substantially different between the
reference to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude that
R.A. No. 7716 originated both in the House and in the Senate and that it is the product of two "halfbaked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere
amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of the
provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition of

petitioner Tolentino, while showing differences between the two bills, at the same time indicates that
the provisions of the Senate bill were precisely intended to be amendments to the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was
a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass the
Senate on second and three readings. It was enough that after it was passed on first reading it was
referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be
passed by the House of Representatives before the two bills could be referred to the Conference
Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When
the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank
deposits), were referred to a conference committee, the question was raised whether the two bills
could be the subject of such conference, considering that the bill from one house had not been
passed by the other and vice versa. As Congressman Duran put the question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill
is passed by the House but not passed by the Senate, and a Senate bill of a similar
nature is passed in the Senate but never passed in the House, can the two bills be
the subject of a conference, and can a law be enacted from these two bills? I
understand that the Senate bill in this particular instance does not refer to
investments in government securities, whereas the bill in the House, which was
introduced by the Speaker, covers two subject matters: not only investigation of
deposits in banks but also investigation of investments in government securities.
Now, since the two bills differ in their subject matter, I believe that no law can be
enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is precisely in
cases like this where a conference should be had. If the House bill had been
approved by the Senate, there would have been no need of a conference; but
precisely because the Senate passed another bill on the same subject matter, the
conference committee had to be created, and we are now considering the report of
that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct
and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that
because the President separately certified to the need for the immediate enactment of these
measures, his certification was ineffectual and void. The certification had to be made of the version
of the same revenue bill which at the momentwas being considered. Otherwise, to follow petitioners'
theory, it would be necessary for the President to certify as many bills as are presented in a house of
Congress even though the bills are merely versions of the bill he has already certified. It is enough
that he certifies the bill which, at the time he makes the certification, is under consideration. Since on
March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified.
For that matter on June 1, 1993 the President had earlier certified H. No. 9210 for immediate
enactment because it was the one which at that time was being considered by the House. This bill
was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained in the main decision
that the phrase "except when the President certifies to the necessity of its immediate enactment,
etc." in Art. VI, 26 (2) qualifies not only the requirement that "printed copies [of a bill] in its final form
[must be] distributed to the members three days before its passage" but also the requirement that
before a bill can become a law it must have passed "three readings on separate days." There is not
only textual support for such construction but historical basis as well.
Art. VI, 21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been printed and
copies thereof in its final form furnished its Members at least three calendar days

prior to its passage, except when the President shall have certified to the necessity of
its immediate enactment. Upon the last reading of a bill, no amendment thereof shall
be allowed and the question upon its passage shall be taken immediately thereafter,
and the yeas and nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, 19 (2):
(2) No bill shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to the Members
three days before its passage, except when the Prime Minister certifies to the
necessity of its immediate enactment to meet a public calamity or emergency. Upon
the last reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal.
This provision of the 1973 document, with slight modification, was adopted in Art. VI, 26 (2) of the
present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and
the yeasand nays entered in the Journal.
The exception is based on the prudential consideration that if in all cases three readings on separate
days are required and a bill has to be printed in final form before it can be passed, the need for a law
may be rendered academic by the occurrence of the very emergency or public calamity which it is
meant to address.
Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a
country like the Philippines where budget deficit is a chronic condition. Even if this were the case, an
enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or the situation
calling for its enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in these cases) believed
that there was an urgent need for consideration of S. No. 1630, because they responded to the call
of the President by voting on the bill on second and third readings on the same day. While the
judicial department is not bound by the Senate's acceptance of the President's certification, the
respect due coequal departments of the government in matters committed to them by the
Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the
judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it
was discussed for six days. Only its distribution in advance in its final printed form was actually
dispensed with by holding the voting on second and third readings on the same day (March 24,
1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second
reading and its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on
third reading.
The purpose for which three readings on separate days is required is said to be two-fold: (1) to
inform the members of Congress of what they must vote on and (2) to give them notice that a
measure is progressing through the enacting process, thus enabling them and others interested in
the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION 10.04, p. 282 (1972)). These purposes were substantially
achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of
the constitutional policy of full public disclosure and the people's right to know (Art. II, 28 and Art. III,

7) the Conference Committee met for two days in executive session with only the conferees
present.
As pointed out in our main decision, even in the United States it was customary to hold such
sessions with only the conferees and their staffs in attendance and it was only in 1975 when a new
rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine Congress
has not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least
staff members were present. These were staff members of the Senators and Congressmen,
however, who may be presumed to be their confidential men, not stenographers as in this case who
on the last two days of the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for
claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of
their meetings. Above all, the public's right to know was fully served because the Conference
Committee in this case submitted a report showing the changes made on the differing versions of
the House and the Senate.
Petitioners cite the rules of both houses which provide that conference committee reports must
contain "a detailed, sufficiently explicit statement of the changes in or other amendments." These
changes are shown in the bill attached to the Conference Committee Report. The members of both
houses could thus ascertain what changes had been made in the original bills without the need of a
statement detailing the changes.
The same question now presented was raised when the bill which became R.A. No. 1400 (Land
Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon raised a
point of order. He said:
MR. BENGZON. My point of order is that it is out of order to consider the report of
the conference committee regarding House Bill No. 2557 by reason of the provision
of Section 11, Article XII, of the Rules of this House which provides specifically that
the conference report must be accompanied by a detailed statement of the effects of
the amendment on the bill of the House. This conference committee report is not
accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to
consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection
with the point of order raised by the gentleman from Pangasinan.
There is no question about the provision of the Rule cited by the gentleman from
Pangasinan, butthis provision applies to those cases where only portions of the bill
have been amended. In this case before us an entire bill is presented; therefore, it
can be easily seen from the reading of the bill what the provisions are. Besides, this
procedure has been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for
the provisions of the Rules, and the reason for the requirement in the provision cited
by the gentleman from Pangasinan is when there are only certain words or phrases
inserted in or deleted from the provisions of the bill included in the conference report,
and we cannot understand what those words and phrases mean and their relation to
the bill. In that case, it is necessary to make a detailed statement on how those
words and phrases will affect the bill as a whole; but when the entire bill itself is
copied verbatim in the conference report, that is not necessary. So when the reason
for the Rule does not exist, the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))

Congressman Tolentino was sustained by the chair. The record shows that when the ruling was
appealed, it was upheld by viva voce and when a division of the House was called, it was sustained
by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new provisions as long
as these are germane to the subject of the conference. As this Court held in Philippine Judges
Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the
jurisdiction of the conference committee is not limited to resolving differences between the Senate
and the House. It may propose an entirely new provision. What is important is that its report is
subsequently approved by the respective houses of Congress. This Court ruled that it would not
entertain allegations that, because new provisions had been added by the conference committee,
there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no
amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners' charges that
an amendment was made upon the last reading of the bill that eventually became
R.A. No. 7354 and that copiesthereof in its final form were not distributed among the
members of each House. Both the enrolled bill and the legislative journals certify that
the measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the
Constitution. We are bound by such official assurances from a coordinate department
of the government, to which we owe, at the very least, a becoming courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the Philippines in a
1979 study:
Conference committees may be of two types: free or instructed. These committees
may be given instructions by their parent bodies or they may be left without
instructions. Normally the conference committees are without instructions, and this is
why they are often critically referred to as "the little legislatures." Once bills have
been sent to them, the conferees have almost unlimited authority to change the
clauses of the bills and in fact sometimes introduce new measures that were not in
the original legislation. No minutes are kept, and members' activities on conference
committees are difficult to determine. One congressman known for his idealism put it
this way: "I killed a bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere else." The conference
committee submits a report to both houses, and usually it is accepted. If the report is
not accepted, then the committee is discharged and new members are appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND
LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW,
eds.)).
In citing this study, we pass no judgment on the methods of conference committees. We cite it only
to say that conference committees here are no different from their counterparts in the United States
whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under
Art. VI, 16(3) each house has the power "to determine the rules of its proceedings," including those
of its committees. Any meaningful change in the method and procedures of Congress or its
committees must therefore be sought in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, 26
(1) of the Constitution which provides that "Every bill passed by Congress shall embrace only one
subject which shall be expressed in the title thereof." PAL contends that the amendment of its
franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law.
Pursuant to 13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all
other taxes, duties, royalties, registration, license and other fees and charges of any kind, nature, or
description, imposed, levied, established, assessed or collected by any municipal, city, provincial or
national authority or government agency, now or in the future."

PAL was exempted from the payment of the VAT along with other entities by 103 of the National
Internal Revenue Code, which provides as follows:
103. Exempt transactions. The following shall be exempt from the value-added
tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international agreements to
which the Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending
103, as follows:
103. Exempt transactions. The following shall be exempt from the value-added
tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under
Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .
The amendment of 103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING
ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT) SYSTEM
[BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL
INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES," Congress thereby
clearly expresses its intention to amend any provision of the NIRC which stands in the way of
accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific
reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the constitutional
requirement, since it is already stated in the title that the law seeks to amend the pertinent provisions
of the NIRC, among which is 103(q), in order to widen the base of the VAT. Actually, it is the bill
which becomes a law that is required to express in its title the subject of legislation. The titles of H.
No. 11197 and S. No. 1630 in fact specifically referred to 103 of the NIRC as among the provisions
sought to be amended. We are satisfied that sufficient notice had been given of the pendency of
these bills in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was
rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION,
DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR
REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It
contained a provision repealing all franking privileges. It was contended that the withdrawal of
franking privileges was not expressed in the title of the law. In holding that there was sufficient
description of the subject of the law in its title, including the repeal of franking privileges, this Court
held:
To require every end and means necessary for the accomplishment of the general
objectives of the statute to be expressed in its title would not only be unreasonable
but would actually render legislation impossible. [Cooley, Constitutional Limitations,
8th Ed., p. 297] As has been correctly explained:

The details of a legislative act need not be specifically stated in its

title, but matter germane to the subject as expressed in the title, and
adopted to the accomplishment of the object in view, may properly be
included in the act. Thus, it is proper to create in the same act the
machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its
execution. If such matters are properly connected with the subject as
expressed in the title, it is unnecessary that they should also have
special mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed.
725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the
press is not exempt from the taxing power of the State and that what the constitutional guarantee of
free press prohibits are laws which single out the press or target a group belonging to the press for
special treatment or which in any way discriminate against the press on the basis of the content of
the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while
maintaining those granted to others, the law discriminates against the press. At any rate, it is
averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional."
With respect to the first contention, it would suffice to say that since the law granted the press a
privilege, the law could take back the privilege anytime without offense to the Constitution. The
reason is simple: by granting exemptions, the State does not forever waive the exercise of its
sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to
which other businesses have long ago been subject. It is thus different from the tax involved in the
cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L.
Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts
only of newspapers whose weekly circulation was over 20,000, with the result that the tax applied
only to 13 out of 124 publishers in Louisiana. These large papers were critical of Senator Huey Long
who controlled the state legislature which enacted the license tax. The censorial motivation for the
law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S.
575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it could have
been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege of using, storing
or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes.
It was, however, later made to pay a specialuse tax on the cost of paper and ink which made these
items "the only items subject to the use tax that were component of goods to be sold at retail." The
U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of
regulation is not related to suppression of expression, and such goal is presumptively
unconstitutional." It would therefore appear that even a law that favors the press is constitutionally
suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely
and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously
granted to PAL, petroleum concessionaires, enterprises registered with the Export Processing Zone
Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially
withdrawn, in an effort to broaden the base of the tax.
The PPI says that the discriminatory treatment of the press is highlighted by the fact that
transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An
enumeration of some of these transactions will suffice to show that by and large this is not so and
that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are
granted, in some cases, to encourage agricultural production and, in other cases, for the personal
benefit of the end-user rather than for profit. The exempt transactions are:

(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) or for professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 5860)
The PPI asserts that it does not really matter that the law does not discriminate against the press
because "even nondiscriminatory taxation on constitutionally guaranteed freedom is
unconstitutional." PPI cites in support of this assertion the following statement in Murdock
v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The protection
afforded by the First Amendment is not so restricted. A license tax certainly does not
acquire constitutional validity because it classifies the privileges protected by the
First Amendment along with the wares and merchandise of hucksters and peddlers
and treats them all alike. Such equality in treatment does not save the ordinance.
Freedom of press, freedom of speech, freedom of religion are in preferred position.
The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for
regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the
exercise of its right. Hence, although its application to others, such those selling goods, is valid, its
application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with
the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put
it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to
exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386
(1957) which invalidated a city ordinance requiring a business license fee on those engaged in the
sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by
the American Bible Society without restraining the free exercise of its right to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege,
much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or
properties or the sale or exchange of services and the lease of properties purely for revenue
purposes. To subject the press to its payment is not to burden the exercise of its right any more than
to make the press pay income tax or subject it to general regulation is not to violate its freedom
under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds
derived from the sales are used to subsidize the cost of printing copies which are given free to those

who cannot afford to pay so that to tax the sales would be to increase the price, while reducing the
volume of sale. Granting that to be the case, the resulting burden on the exercise of religious
freedom is so incidental as to make it difficult to differentiate it from any other economic imposition
that might make the right to disseminate religious doctrines costly. Otherwise, to follow the
petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible
burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by 107 of the NIRC, as amended by
7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of registration
and enforcement of provisions such as those relating to accounting in 108 of the NIRC. That the
PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the
payment of this fee because it also sells some copies. At any rate whether the PBS is liable for the
VAT must be decided in concrete cases, in the event it is assessed this tax by the Commissioner of
Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses and the rule on
taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies
transactions as covered or exempt without reasonable basis and (3) violates the rule that taxes
should be uniform and equitable and that Congress shall "evolve a progressive system of taxation."
With respect to the first contention, it is claimed that the application of the tax to existing contracts of
the sale of real property by installment or on deferred payment basis would result in substantial
increases in the monthly amortizations to be paid because of the 10% VAT. The additional amount, it
is pointed out, is something that the buyer did not anticipate at the time he entered into the contract.
The short answer to this is the one given by this Court in an early case: "Authorities from numerous
sources are cited by the plaintiffs, but none of them show that a lawful tax on a new subject, or an
increased tax on an old one, interferes with a contract or impairs its obligation, within the meaning of
the Constitution. Even though such taxation may affect particular contracts, as it may increase the
debt of one person and lessen the security of another, or may impose additional burdens upon one
class and release the burdens of another, still the tax must be paid unless prohibited by the
Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal
sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not
only existing laws but also "the reservation of the essential attributes of sovereignty, is . . . read into
contracts as a postulate of the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22
SCRA 135, 147 (1968)) Contracts must be understood as having been made in reference to the
possible exercise of the rightful authority of the government and no obligation of contract can extend
to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while 4 of R.A. No. 7716 exempts such transactions as the sale of
agricultural products, food items, petroleum, and medical and veterinary services, it grants no
exemption on the sale of real property which is equally essential. The sale of real property for
socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate
transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise be
exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods
and services was already exempt under 103, pars. (b) (d) (1) of the NIRC before the enactment of
R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted exemption to these
transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the example given by
petitioner, because the second group or middle class can afford to rent houses in the meantime that
they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is
inherent in the power to tax that the State be free to select the subjects of taxation, and it has been
repeatedly held that 'inequalities which result from a singling out of one particular class for taxation,
or exemption infringe no constitutional limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord,
City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, 28(1)
which provides that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation."

Equality and uniformity of taxation means that all taxable articles or kinds of property of the same
class be taxed at the same rate. The taxing power has the authority to make reasonable and natural
classifications for purposes of taxation. To satisfy this requirement it is enough that the statute or
ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of
Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A.
No. 7716 merely expands the base of the tax. The validity of the original VAT Law was questioned
in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on
grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory,
unjust and regressive in violation of Art. VI, 28(1) of the Constitution." (At 382) Rejecting the
challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform.
...
The sales tax adopted in EO 273 is applied similarly on all goods and services sold
to the public, which are not exempt, at the constant rate of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of goods or
services by persons engaged in business with an aggregate gross annual sales
exceeding P200,000.00. Small corner sari-sari stores are consequently exempt from
its application. Likewise exempt from the tax are sales of farm and marine products,
so that the costs of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within the reach of the
general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of
the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the
mandate of Congress to provide for a progressive system of taxation because the law imposes a flat
rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall "evolve a progressive system of taxation."
The constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
17(1) of the 1973 Constitution from which the present Art. VI, 28(1) was taken. Sales taxes are
also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, 4, amending 103 of the NIRC).
Thus, the following transactions involving basic and essential goods and services are exempted from
the VAT:
(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) and or professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.

(c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 5860)
On the other hand, the transactions which are subject to the VAT are those which involve goods and
services which are used or availed of mainly by higher income groups. These include real properties
held primarily for sale to customers or for lease in the ordinary course of trade or business, the right
or privilege to use patent, copyright, and other similar property or right, the right or privilege to use
industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television,
satellite transmission and cable television time, hotels, restaurants and similar places, securities,
lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers, services
of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by
tendering issues not at retail but at wholesale and in the abstract. There is no fully developed record
which can impart to adjudication the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its effect on property rights.
For the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is
not made concrete by a series of hypothetical questions asked which are no different from those
dealt with in advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere
allegation, as here, does not suffice. There must be a factual foundation of such
unconstitutional taint. Considering that petitioner here would condemn such a
provision as void on its face, he has not made out a case. This is merely to adhere to
the authoritative doctrine that where the due process and equal protection clauses
are invoked, considering that they are not fixed rules but rather broad standards,
there is a need for proof of such persuasive character as would lead to such a
conclusion. Absent such a showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete case. It may be that
postponement of adjudication would result in a multiplicity of suits. This need not be the case,
however. Enforcement of the law may give rise to such a case. A test case, provided it is an actual
case and not an abstract or hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues.
Otherwise, adjudication would be no different from the giving of advisory opinion that does not really
settle legal issues.
We are told that it is our duty under Art. VIII, 1, 2 to decide whenever a claim is made that "there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." This duty can only arise if an actual case or
controversy is before us. Under Art . VIII, 5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, 1, 2 can plausibly mean is that in the exercise of that jurisdiction we have the judicial
power to determine questions of grave abuse of discretion by any branch or instrumentality of the
government.

Put in another way, what is granted in Art. VIII, 1, 2 is "judicial power," which is "the power of a
court to hear and decide cases pending between parties who have the right to sue and be sued in
the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as distinguished from
legislative and executive power. This power cannot be directly appropriated until it is apportioned
among several courts either by the Constitution, as in the case of Art. VIII, 5, or by statute, as in the
case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others."
(United States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this
Court cannot inquire into any allegation of grave abuse of discretion by the other departments of the
government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of
the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to adopt a
definite policy of granting tax exemption to cooperatives that the present Constitution embodies
provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a
constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting
cooperatives from the payment of income taxes and sales taxes but in 1984, because of the crisis
which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986,
P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December
31, 1991, but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the
framers of the Constitution "repudiated the previous actions of the government adverse to the
interests of the cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of
tax exemptions," by providing the following in Art. XII:
1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives, and similar collective organizations, shall be encouraged
to broaden the base of their ownership.
15. The Congress shall create an agency to promote the viability and growth of
cooperatives as instruments for social justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out
cooperatives by withdrawing their exemption from income and sales taxes under P.D. No. 175, 5.
What P.D. No. 1955, 1 did was to withdraw the exemptions and preferential treatments theretofore
granted to private business enterprises in general, in view of the economic crisis which then beset
the nation. It is true that after P.D. No. 2008, 2 had restored the tax exemptions of cooperatives in
1986, the exemption was again repealed by E.O. No. 93, 1, but then again cooperatives were not
the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the Constitution does not really
require that cooperatives be granted tax exemptions in order to promote their growth and viability.
Hence, there is no basis for petitioner's assertion that the government's policy toward cooperatives
had been one of vacillation, as far as the grant of tax privileges was concerned, and that it was to put
an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter
of policy cooperatives should be granted tax exemptions, but that is left to the discretion of
Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no
violation of any constitutional policy can be charged.

Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt
from taxation. Such theory is contrary to the Constitution under which only the following are exempt
from taxation: charitable institutions, churches and parsonages, by reason of Art. VI, 28 (3), and
non-stock, non-profit educational institutions by reason of Art. XIV, 4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the
equal protection of the law because electric cooperatives are exempted from the VAT. The
classification between electric and other cooperatives (farmers cooperatives, producers
cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that
there is greater need to provide cheaper electric power to as many people as possible, especially
those living in the rural areas, than there is to provide them with other necessities in life. We cannot
say that such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional validity of R.A. No.
7716. We have in fact taken the extraordinary step of enjoining its enforcement pending resolution of
these cases. We have now come to the conclusion that the law suffers from none of the infirmities
attributed to it by petitioners and that its enactment by the other branches of the government does
not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency
must be addressed to Congress as the body which is electorally responsible, remembering that, as
Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the
people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194
U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in
arguing that we should enforce the public accountability of legislators, that those who took part in
passing the law in question by voting for it in Congress should later thrust to the courts the burden of
reviewing measures in the flush of enactment. This Court does not sit as a third branch of the
legislature, much less exercise a veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining
order previously issued is hereby lifted.
SO ORDERED.

G.R. No. 130230

April 15, 2005

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner,

vs.
DANTE O. GARIN, respondent.
DECISION
CHICO-NAZARIO, J.:
At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the Metropolitan
Manila Development Authority (MMDA), which authorizes it to confiscate and suspend or revoke
driver's licenses in the enforcement of traffic laws and regulations.
The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was issued
a traffic violation receipt (TVR) and his driver's license confiscated for parking illegally along

Gandara Street, Binondo, Manila, on 05 August 1995. The following statements were printed on the
TVR:
You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila after 48
hours from date of apprehension for disposition/appropriate action thereon. Criminal case shall be
filed for failure to redeem license after 30 days.
Valid as temporary DRIVER'S license for seven days from date of apprehension. 1
Shortly before the expiration of the TVR's validity, the respondent addressed a letter 2 to then MMDA
Chairman Prospero Oreta requesting the return of his driver's license, and expressing his preference
for his case to be filed in court.
Receiving no immediate reply, Garin filed the original complaint3 with application for preliminary
injunction in Branch 260 of the Regional Trial Court (RTC) of Paraaque, on 12 September 1995,
contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No.
7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses, pre-empting
a judicial determination of the validity of the deprivation, thereby violating the due process clause of
the Constitution. The respondent further contended that the provision violates the constitutional
prohibition against undue delegation of legislative authority, allowing as it does the MMDA to fix and
impose unspecified and therefore unlimited - fines and other penalties on erring motorists.
In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and
continues to suffer great and irreparable damage because of the deprivation of his license and that,
absent any implementing rules from the Metro Manila Council, the TVR and the confiscation of his
license have no legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the
powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and
imposition of fines and penalties for traffic violations, which powers are legislative and executive in
nature; the judiciary retains the right to determine the validity of the penalty imposed. It further
argued that the doctrine of separation of powers does not preclude "admixture" of the three powers
of government in administrative agencies.4
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board and
policy making body of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) of
Rep. Act No. 7924 and directed the court's attention to MMDA Memorandum Circular No. TT-95-001
dated 15 April 1995. Respondent Garin, however, questioned the validity of MMDA Memorandum
Circular No. TT-95-001, as he claims that it was passed by the Metro Manila Council in the absence
of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995,
extending the validity of the TVR as a temporary driver's license for twenty more days. A preliminary
mandatory injunction was granted on 23 October 1995, and the MMDA was directed to return the
respondent's driver's license.
On 14 August 1997, the trial court rendered the assailed decision 5 in favor of the herein respondent
and held that:
a.
There was indeed no quorum in that First Regular Meeting of the MMDA Council held on
March 23, 1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation of
driver's licenses upon issuance of a TVR, is void ab initio.
b.
The summary confiscation of a driver's license without first giving the driver an opportunity to
be heard; depriving him of a property right (driver's license) without DUE PROCESS; not filling (sic)
in Court the complaint of supposed traffic infraction, cannot be justified by any legislation (and is)
hence unconstitutional.
WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e) MMDA
is directed to return to plaintiff his driver's license; th(e) MMDA is likewise ordered to desist from
confiscating driver's license without first giving the driver the opportunity to be heard in an
appropriate proceeding.

In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below and
contends that a license to operate a motor vehicle is neither a contract nor a property right, but is a
privilege subject to reasonable regulation under the police power in the interest of the public safety
and welfare. The petitioner further argues that revocation or suspension of this privilege does not
constitute a taking without due process as long as the licensee is given the right to appeal the
revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains the
power to determine the validity of the confiscation, suspension or revocation of the license, the
petitioner points out that under the terms of the confiscation, the licensee has three options:
1. To voluntarily pay the imposable fine,
2. To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or
3. To request the referral of the TVR to the Public Prosecutor's Office.
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the
presence of a quorum, and that the lower court's finding that it had not was based on a
"misapprehension of facts," which the petitioner would have us review. Moreover, it asserts that
though the circular is the basis for the issuance of TVRs, the basis for the summary confiscation of
licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such power is self-executory and does not
require the issuance of any implementing regulation or circular.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented
Memorandum Circular No. 04, Series of 2004, outlining the procedures for the use of the
Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring motorists are issued an MTT,
which can be paid at any Metrobank branch. Traffic enforcers may no longer confiscate drivers'
licenses as a matter of course in cases of traffic violations. All motorists with unredeemed TVRs
were given seven days from the date of implementation of the new system to pay their fines and
redeem their license or vehicle plates.7
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the petitioner
from confiscating drivers' licenses is concerned, recent events have overtaken the Court's need to
decide this case, which has been rendered moot and academic by the implementation of
Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-95001, or any other scheme, for that matter, that would entail confiscating drivers' licenses. For the
proper implementation, therefore, of the petitioner's future programs, this Court deems it appropriate
to make the following observations:
1.
A license to operate a motor vehicle is a privilege that the state may withhold in the
exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a property right, but
a privilege granted by the state, which may be suspended or revoked by the state in the exercise of
its police power, in the interest of the public safety and welfare, subject to the procedural due
process requirements. This is consistent with our rulings in Pedro v. Provincial Board of Rizal8 on
the license to operate a cockpit, Tan v. Director of Forestry9 and Oposa v. Factoran10 on timber
licensing agreements, and Surigao Electric Co., Inc. v. Municipality of Surigao11 on a legislative
franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.
Sullivan,12 which states in part that, "the legislative power to regulate travel over the highways and
thoroughfares of the state for the general welfare is extensive. It may be exercised in any
reasonable manner to conserve the safety of travelers and pedestrians. Since motor vehicles are
instruments of potential danger, their registration and the licensing of their operators have been
required almost from their first appearance. The right to operate them in public places is not a
natural and unrestrained right, but a privilege subject to reasonable regulation, under the police
power, in the interest of the public safety and welfare. The power to license imports further power to
withhold or to revoke such license upon noncompliance with prescribed conditions."

Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,13 to the
effect that: "Automobiles are vehicles of great speed and power. The use of them constitutes an
element of danger to persons and property upon the highways. Carefully operated, an automobile is
still a dangerous instrumentality, but, when operated by careless or incompetent persons, it becomes
an engine of destruction. The Legislature, in the exercise of the police power of the commonwealth,
not only may, but must, prescribe how and by whom motor vehicles shall be operated on the
highways. One of the primary purposes of a system of general regulation of the subject matter, as
here by the Vehicle Code, is to insure the competency of the operator of motor vehicles. Such a
general law is manifestly directed to the promotion of public safety and is well within the police
power."
The common thread running through the cited cases is that it is the legislature, in the exercise of
police power, which has the power and responsibility to regulate how and by whom motor vehicles
may be operated on the state highways.
2.

The MMDA is not vested with police power.

In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically stated
that Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and
that all its functions are administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the authority to
open a subdivision street owned by the Bel-Air Village Association, Inc. to public traffic because it is
an agent of the state endowed with police power in the delivery of basic services in Metro Manila.
From this premise, the MMDA argued that there was no need for the City of Makati to enact an
ordinance opening Neptune Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the
MMDA is not a local government unit or a public corporation endowed with legislative power, and,
unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances for the
welfare of the community. Thus, in the absence of an ordinance from the City of Makati, its own
order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police power, as an
inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to make,
ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either
with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good
and welfare of the commonwealth, and for the subjects of the same.
Having been lodged primarily in the National Legislature, it cannot be exercised by any group or
body of individuals not possessing legislative power. The National Legislature, however, may
delegate this power to the president and administrative boards as well as the lawmaking bodies of
municipal corporations or local government units (LGUs). Once delegated, the agents can exercise
only such legislative powers as are conferred on them by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of 1991. 15 A local
government is a "political subdivision of a nation or state which is constituted by law and has
substantial control of local affairs."16 Local government units are the provinces, cities, municipalities
and barangays, which exercise police power through their respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With the
passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special development
and administrative region" and the administration of "metro-wide" basic services affecting the region
placed under "a development authority" referred to as the MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination, regulation,
implementation, preparation, management, monitoring, setting of policies, installation of a system
and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power,
let alone legislative power. Even the Metro Manila Council has not been delegated any
legislative power. Unlike the legislative bodies of the local government units, there is no provision
in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve
resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila.

The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for
the purpose of laying down policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations and the private sector for
the efficient and expeditious delivery of basic services in the vast metropolitan area. All its
functions are administrative in nature and these are actually summed up in the charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.
The MMDA shall perform planning, monitoring and coordinative functions, and in the
process exercise regulatory and supervisory authority over the delivery of metro-wide
services within Metro Manila, without diminution of the autonomy of the local
government units concerning purely local matters."
.
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that
given to the Metro Manila Council to promulgate administrative rules and regulations in the
implementation of the MMDA's functions. There is no grant of authority to enact ordinances and
regulations for the general welfare of the inhabitants of the metropolis. 17 (footnotes omitted,
emphasis supplied)
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the
petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers'
licenses without need of any other legislative enactment, such is an unauthorized exercise of police
power.
3.
Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and
regulations.
Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila
Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install and
administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of
violations of traffic rules and regulations, whether moving or nonmoving in nature, and confiscate
and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the
provisions of Rep. Act No. 413618 and P.D. No. 160519 to the contrary notwithstanding," and that "(f)or
this purpose, the Authority shall enforce all traffic laws and regulations in Metro Manila, through its
traffic operation center, and may deputize members of the PNP, traffic enforcers of local government
units, duly licensed security guards, or members of non-governmental organizations to whom may
be delegated certain authority, subject to such conditions and requirements as the Authority may
impose."
Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to
whom legislative powers have been delegated (the City of Manila in this case), the petitioner is not
precluded and in fact is duty-bound to confiscate and suspend or revoke drivers' licenses in the
exercise of its mandate of transport and traffic management, as well as the administration and
implementation of all traffic enforcement operations, traffic engineering services and traffic education
programs.20
This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the
purpose of laying down policies and coordinating with the various national government agencies,
people's organizations, non-governmental organizations and the private sector, which may enforce,
but not enact, ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is to be read
in a manner that would breathe life into it, rather than defeat it,21 and is supported by the criteria in
cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a
statute.22
A last word. The MMDA was intended to coordinate services with metro-wide impact that transcend
local political boundaries or would entail huge expenditures if provided by the individual LGUs,
especially with regard to transport and traffic management, 23 and we are aware of the valiant efforts
of the petitioner to untangle the increasingly traffic-snarled roads of Metro Manila. But these

laudable intentions are limited by the MMDA's enabling law, which we can but interpret, and
petitioner must be reminded that its efforts in this respect must be authorized by a valid law, or
ordinance, or regulation arising from a legitimate source.
WHEREFORE, the petition is dismissed.
SO ORDERED.

G.R. No. L-63915 April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 18421847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,11491178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 16061609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 17371742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty

of the law officer of the Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative

duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past
this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the

subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But
whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and
make the said penalties binding on the persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication, even though some criminal laws
provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do
so would in all cases and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so hold would, for
me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in the
Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed
out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless,
this clarification is, to my mind, needed to avoid any possible misconception as to what is required
for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without

notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice
of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their
effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do
so would in all cases and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so hold would, for
me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in the
Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed
out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless,
this clarification is, to my mind, needed to avoid any possible misconception as to what is required
for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the

Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.

The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice
of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their
effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

G.R. No. L-6791

March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.
First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.
MONTEMAYOR, J.:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty
of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and
sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiary
imprisonment in case of insolvency, and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange consisting of U.S.
dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to the
Central Bank through its agents within one day following the receipt of such foreign exchange as
required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was not
published in the Official Gazette prior to the act or omission imputed to the appellant, and that
consequently, said circular had no force and effect. It is contended that Commonwealth Act. No., 638
and Act 2930 both require said circular to be published in the Official Gazette, it being an order or
notice of general applicability. The Solicitor General answering this contention says that
Commonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of said
circular issued for the implementation of a law in order to have force and effect.
We agree with the Solicitor General that the laws in question do not require the publication of the
circulars, regulations and notices therein mentioned in order to become binding and effective. All that
said two laws provide is that laws, resolutions, decisions of the Supreme Court and Court of
Appeals, notices and documents required by law to be of no force and effect. In other words, said
two Acts merely enumerate and make a list of what should be published in the Official Gazette,
presumably, for the guidance of the different branches of the Government issuing same, and of the
Bureau of Printing.
However, section 11 of the Revised Administrative Code provides that statutes passed by Congress
shall, in the absence of special provision, take effect at the beginning of the fifteenth day after the
completion of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code
(Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that
Circular No. 20 of the Central Bank is not a statute or law but being issued for the implementation of
the law authorizing its issuance, it has the force and effect of law according to settled jurisprudence.
(See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,
circulars and regulations especially like the Circular No. 20 of the Central Bank in question which
prescribes a penalty for its violation should be published before becoming effective, this, on the
general principle and theory that before the public is bound by its contents, especially its penal

provisions, a law, regulation or circular must first be published and the people officially and
specifically informed of said contents and its penalties.
Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws,
(Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation, and that
their promulgation shall be understood as made on the day of the termination of the publication of
the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws"
include regulations and circulars issued in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de
Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se
comprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.
Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que
muchas de sus disposiciones contienen la advertencia de que empiezan a regir el mismo dia
de su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera de
aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Espaol, Vol. I. p.
52).
In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was
not published until November 1951, that is, about 3 months after appellant's conviction of its
violation. It is clear that said circular, particularly its penal provision, did not have any legal effect and
bound no one until its publication in the Official Gazzette or after November 1951. In other words,
appellant could not be held liable for its violation, for it was not binding at the time he was found to
have failed to sell the foreign exchange in his possession thereof.
But the Solicitor General also contends that this question of non-publication of the Circular is being
raised for the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, one
may raise on appeal any question of law or fact that has been raised in the court below and which is
within the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court).
But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20
had not been published as required by law before its violation, then in the eyes of the law there was
no such circular to be violated and consequently appellant committed no violation of the circular or
committed any offense, and the trial court may be said to have had no jurisdiction. This question may
be raised at any stage of the proceeding whether or not raised in the court below.
In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with
costs de oficio.
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno,
JJ., concur.

G.R. No. 98382 May 17, 1993

PHILIPPINE NATIONAL BANK, petitioner,
vs.
THE COURT OF APPEALS and EPIFANIO DE LA CRUZ, respondents.
Santiago, Jr., Vidad, Corpus & Associates for petitioner.
Pedro R. Lazo for spouses-intervenors.
Rosendo G. Tansinsin, Jr. for private respondent.

MELO, J.:
The notices of sale under Section 3 of Act No. 3135, as amended by Act No. 4118, on extra-judicial
foreclosure of real estate mortgage are required to be posted for not less than twenty days in at least

three public places of the municipality or city where the property is situated, and if such property is
worth more than four hundred pesos, such notices shall also be published once a week for at least
three consecutive weeks in a newspaper of general circulation in the municipality or city.
Respondent court, through Justice Filemon Mendoza with whom Justices Campos, Jr. and Aldecoa,
Jr. concurred, construed the publication of the notices on March 28, April 11 and l2, 1969 as a fatal
announcement and reversed the judgment appealed from by declaring void, inter alia, the auction
sale of the foreclosed pieces of realty, the final deed of sale, and the consolidation of ownership (p.
27, Rollo).
Hence, the petition at bar, premised on the following backdrop lifted from the text of the challenged
decision:
The facts of the case as related by the trial court are, as follows:
This is a verified complaint brought by the plaintiff for the
reconveyance to him (and resultant damages) of two (2) parcels of
land mortgaged by him to the defendant Philippine National Bank
(Manila), which the defendant allegedly unlawfully foreclosed. The
defendant then consolidated ownership unto itself, and subsequently
sold the parcels to third parties. The amended Answer of the
defendant states on the other hand that the extrajudicial foreclosure,
consolidation of ownership, and subsequent sale to the third parties
were all valid, the bank therefore counterclaims for damages and
other equitable remedies.
xxx xxx xxx
From the evidence and exhibits presented by both parties, the Court
is of the opinion that the following facts have been proved: Two lots,
located at Bunlo, Bocaue, Bulacan (the first covered by Torrens
Certificate No. 16743 and possessed of an area of approximately
3,109 square meters: the second covered by Torrens Certificate No.
5787, possessed of an area of around 610 square meters, and upon
which stood a residential-commercial building were mortgaged to the
defendant Philippine National Bank. The lots were under the common
names of the plaintiff (Epifanio dela Cruz), his brother (Delfin) and his
sister (Maria). The mortgage was made possible because of the grant
by the latter two to the former of a special power of attorney to
mortgage the lots to the defendant. The lots were mortgaged to
guarantee the following promissory notes:
(1) a promissory note for Pl2,000.00, dated September 2, 1958, and payable within
69 days (date of maturity Nov. l0, 1958);
(2) a promissory note for P4,000.00, dated September 22, 1958, and payable within
49 days (date of maturity Nov. 10, 1958);
(3) a promissory note for P4,000.00, dated June 30, 1.958 1 and payable within 120
days (date of maturity Nov. 10, 1958) See also Annex C of the complaint itself).
[1 This date of June 30, 1958 is disputed by the plaintiff who claims that the correct
date is June 30, 1961, which is the date actually mentioned in the promissory note. It
is however difficult to believe the plaintiff's contention since if it were true and correct,
this would mean that nearly three (3) years elapsed between the second and the
third promissory note; that at the time the third note was executed, the first two had
not yet been paid by the plaintiff despite the fact that the first two were supposed to
be payable within 69 and 49 days respectively. This state of affairs would have
necessitated the renewal of said two promissory notes. No such renewal was proved,
nor was the renewal ever alleged. Finally, and this is very significant: the third
mentioned promissory note states that the maturity date is Nov. 10, 1958. Now then,
how could the loan have been contracted on June 30, 1961? It will be observed that

in the bank records, the third mentioned promissory note was really executed on
June 30, 1958 (See Exhs. 9 and 9-A). The Court is therefore inclined to believe that
the date "June 30, 1961" was a mere clerical error and hat the true and correct date
is June 1958. However, even assuming that the true and correct date is June 30,
1961, the fact still remains that the first two promissory notes had been guaranteed
by the mortgage of the two lots, and therefore, it was legal and proper to foreclose on
the lots for failure to pay said two promissory notes.
On September 6, 1961, Atty. Ramon de los Reyes of the bank (PNB) presented
under Act No. 3135 a foreclosure petition of the two mortgaged lots before the
Sheriff's Office at Malolos, Bulacan; accordingly, the two lots were sold or auctioned
off on October 20, 1961 with the defendant PNB as the highest bidder for
P28,908.46. On March 7, 1963, Sheriff Leopoldo Palad executed a Final Deed of
Sale, in response to a letter-request by the Manager of the PNB (Malolos Branch).
On January 15, 1963 a Certificate of Sale in favor of the defendant was executed by
Sheriff Palad. The final Deed of Sale was registered in the Bulacan Registry of
Property on March 19, 1963. Inasmuch as the plaintiff did not volunteer to buy back
from the PNB the two lots, the PNB sold on June 4, 1970 the same to spouses
Conrado de Vera and Marina de Vera in a "Deed of Conditional Sale". (Decision,
pp.3-5; Amended Record on Appeal, pp. 96-98).
After due consideration of the evidence, the CFI on January 22, 1978 rendered its
Decision, the dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, the instant complaint
against the defendant Philippine National Bank is hereby ordered
DISMISSED, with costs against the plaintiff. The Counterclaim
against the plaintiff is likewise DISMISSED, for the Court does not
believe that the complaint had been made in bad faith.
SO ORDERED. (Decision, p. B.; Amended Record on Appeal, p. 100)
Not satisfied with the judgment, plaintiff interposed the present appeal assigning as
errors the following:
I.
THE LOWER COURT ERRED IN HOLDING IN FOOTNOTE I OF ITS DECISION
THAT IT IS THEREFORE INCLINED TO BELIEVE THAT THE DATE "JUNE 30,
1962" WAS A MERE CLERICAL ERROR AND THAT THE TRUE AND CORRECT
DATE IS JUNE 30, 1958. IT ALSO ERRED IN HOLDING IN THE SAME FOOTNOTE
I THAT "HOWEVER, EVEN ASSUMING THAT THE TRUE AND CORRECT DATE IS
JUNE 30, 1961, THE FACT STILL REMAINS THAT THE FIRST TWO PROMISSORY
NOTES HAD BEEN GUARANTEED BY THE MORTGAGE OF THE TWO LOTS,
AND THEREFORE, IT WAS LEGAL AND PROPER TO FORECLOSE ON THE
LOTS FOR FAILURE TO PAY SAID TWO PROMISSORY NOTES". (page 115,
Amended Record on Appeal)
II.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE PETITION FOR
EXTRAJUDICIAL FORECLOSURE WAS PREMATURELY FILED AND IS A MERE
SCRAP OF PAPER BECAUSE IT MERELY FORECLOSED THE ORIGINAL AND
NOT THE AMENDED MORTGAGE.
III.
THE LOWER COURT ERRED IN HOLDING THAT "IT IS CLEAR THAT THE
AUCTION SALE WAS NOT PREMATURE". (page 117, Amended Record on Appeal)
IV.

THE LOWER COURT ERRED IN HOLDING THAT "SUFFICE IT TO STATE THAT

ACTUALLY THE POWER OF ATTORNEY GIVEN TO THE PNB WAS EMBODIED IN
THE REAL ESTATE MORTGAGE (EXB. 10) WHICH WAS REGISTERED IN THE
REGISTRY OF PROPERTY OF BULACAN AND WAS ANNOTATED ON THE TWO
TORRENS CERTIFICATES INVOLVED" (page 118, Amended Record on Appeal).
V.
THE LOWER COURT ERRED IN HOLDING THAT "THE NOTICES REQUIRED
UNDER SEC. 3 OF ACT NO. 3135 WERE ALL COMPLIED WITH" AND "THAT THE
DAILY RECORD . . . IS A NEWSPAPER OF GENERAL CIRCULATION (pages 117118, Amended Record on Appeal).
VI.
THE LOWER COURT ERRED IN NOT DECLARING THE CERTIFICATE OF SALE,
FINAL DEED OF SALE AND AFFIDAVIT OF CONSOLIDATION, NULL AND VOID.
VII.
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO RECONVEY
TO PLAINTIFF THE PARCELS OF LAND COVERED BY T.C.T. NOS. 40712 AND
40713 OF BULACAN (page 8, Amended Record on Appeal)
VIII.
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO PAY TO
PLAINTIFF REASONABLE AMOUNTS OF MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY'S FEES (page 8. Amended Record on Appeal).
IX.
THE LOWER COURT ERRED IN DISMISSING THE INSTANT COMPLAINT
AGAINST THE PHILIPPINE NATIONAL BANK WITH COSTS AGAINST THE
PLAINTIFF. (page 118, Amended Record on Appeal)." (Brief for Plaintiff-Appellant,
pp. 1-4) (pp. 17-21, Rollo)
With reference to the pertinent issue at hand, respondent court opined:
The Notices of Sale of appellant's foreclosed properties were published on March
228, April 11 and April 12, 1969 issues of the newspaper "Daily Record" (Amended
Record on Appeal, p. 108). The date March 28, 1969 falls on a Friday while the dates
April 11 and 12, 1969 are on a Friday and Saturday, respectively. Section 3 of Act No.
3135 requires that the notice of auction sale shall be "published once a week for at
least three consecutive weeks". Evidently, defendant-appellee bank failed to comly
with this legal requirement. The Supreme Court has held that:
The rule is that statutory provisions governing publication of notice of
mortgage foreclosure sales must be strictly complied with, and that
even slight deviations therefrom will invalidate the notice and render
the sale at least voidable (Jalandoni vs. Ledesma, 64 Phil. l058. G.R.
No. 42589, August 1937 and October 29, 1937). Interpreting Sec.
457 of the Code of Civil Procedure (reproduced in Sec. 18(c) of Rule
39, Rules of Court and in Sec. 3 of Act No. 3135) in Campomanes vs.
Bartolome andGerman & Co. (38 Phil. 808, G.R. No. 1309, October
18, 1918), this Court held that if a sheriff sells without notice
prescribed by the Code of Civil Procedure induced thereto by the
judgment creditor, and the purchaser at the sale is the judgment
creditor, the sale is absolutely void and no title passes. This is
regarded as the settled doctrine in this jurisdiction whatever the rule
may be elsewhere (Boria vs. Addison, 14 Phil. 895, G.R. No. 18010,
June 21, 1922).

. . . It has been held that failure to advertise a mortgage foreclosure

sale in compliance with statutory requirements constitutes a
jurisdictional defect invalidating the sale and that a substantial error
or omission in a notice of sale will render the notice insufticient and
vitiate the sale (59 C.J.S. 1314). (Tambunting vs. Court of Appeals, L48278, November 8, 1988; 167 SCRA 16, 23-24).
In view of the admission of defendant-appellee in its pleading showing that there was
no compliance of the notice prescribed in Section 3 of Act No. 3135, as amended by
Act 4118, with respect to the notice of sale of the foreclosed real properties in this
case, we have no choice but to declare the auction sale as absolutely void in view of
the fact that the highest bidder and purchaser in said auction sale was defendantappellee bank. Consequently, the Certificate of Sale, the Final Deed of Sale and
Affidavit of Consolidation are likewise of no legal efffect. (pp. 24-25, Rollo)
Before we focus our attention on the subject of whether or not there was valid compliance in regard
to the required publication, we shall briefly discuss the other observations of respondent court vis-avis herein private respondent's ascriptions raised with the appellate court when his suit for
reconveyance was dismissed by the court of origin even as private respondent does not impugn the
remarks of respondent court along this line.
Although respondent court acknowledged that there was an ambiguity on the date of execution of
the third promissory note (June 30, 1961) and the date of maturity thereof (October 28, 1958), it was
nonetheless established that the bank introduced sufficient proof to show that the discrepancy was a
mere clerical error pursuant to Section 7, Rule l30 of the Rules of Court. Anent the second
disputation aired by private respondent, the appellate court observed that inasmuch as the original
as well as the subsequent mortgage were foreclosed only after private respondent's default, the
procedure pursued by herein petitioner in foreclosing the collaterals was thus appropriate albeit the
petition therefor contained only a copy of the original mortgage.
It was only on the aspect of publication of the notices of sale under Act No. 3135, as amended, and
attorney's fees where herein private respondent scored points which eliminated in the reversal of the
trial court's decision. Respondent court was of the impression that herein petitioner failed to comply
with the legal requirement and the sale effected thereafter must be adjudged invalid following the
ruling of this Court in Tambunting vs. Court of Appeals (167 SCRA 16 [1988]); p. 8, Decision, p.
24, Rollo). In view of petitioner's so-called indifference to the rules set forth under Act No. 3135, as
amended, respondent court expressly authorized private respondent to recover attorney's fees
because he was compelled to incur expenses to protect his interest.
Immediately upon the submission of a supplemental petition, the spouses Conrado and Marina De
Vera filed a petition in intervention claiming that the two parcels of land involved herein were sold to
them on June 4, 1970 by petitioner for which transfer certificates of title were issued in their favor (p.
40, Rollo). On the other hand, private respondent pressed the idea that the alleged intervenors have
no more interest in the disputed lots in view of the sale effected by them to Teresa Castillo, Aquilino
and Antonio dela Cruz in 1990 (pp. 105-106, Rollo).
On March 9, 1992, the Court resolved to give due course to the petition and required the parties to
submit their respective memoranda (p. 110, Rollo).
Now, in support of the theory on adherence to the conditions spelled in the preliminary portion of this
discourse, the pronouncement of this Court in Bonnevie vs. Court of Appeals (125 SCRA [1983]; p.
135, Rollo) is sought to be utilized to press the point that the notice need not be published for three
full weeks. According to petitioner, there is no breach of the proviso since after the first publication on
March 28, 1969, the second notice was published on April 11, 1969 (the last day of the second
week), while the third publication on April 12, 1969 was announced on the first day of the third week.
Petitioner thus concludes that there was no violation from the mere happenstance that the third
publication was made only a day after the second publication since it is enough that the second
publication be made on any day within the second week and the third publication, on any day within
the third week. Moreover, in its bid to rectify its admission in judicio, petitioner asseverates that said
admission alluded to refers only to the dates of publications, not that there was non-compliance with
the publication requirement.

Private respondent, on the other hand, views the legal question from a different perspective. He
believes that the period between each publication must never be less than seven consecutive days
(p. 4, Memorandum; p. 124,Rollo).
We are not convinced by petitioner's submissions because the disquisition in support thereof rests
on the erroneous impression that the day on which the first publication was made, or on March 28,
1969, should be excluded pursuant to the third paragraph of Article 17 of the New Civil Code.
It must be conceded that Article 17 is completely silent as to the definition of what is a "week".
In Concepcion vs. Zandueta (36 O.G. 3139 [1938]; Moreno, Philippine Law Dictionary, Second Ed.,
1972, p. 660), this term was interpreted to mean as a period of time consisting of seven consecutive
days a definition which dovetails with the ruling in E.M. Derby and Co. vs. City of Modesto, et al.
(38 Pac. Rep. 900 [1984]; 1 Paras, Civil Code of the Philippines Annotated, Twelfth Ed., 1989, p. 88;
1 Tolentino, Commentaries and Jurisprudence on th Civil Code, 1990, p. 46). Following the
interpretation in Derby as to the publication of an ordinance for "at least two weeks" in some
newspaper that:
. . . here there is no date or event suggesting the exclusion of the first day's
publication from the computation, and the cases above cited take this case out of the
rule stated in Section 12, Code Civ. Proc. which excludes the first day and includes
the last;
the publication effected on April 11, 1969 cannot be construed as sufficient advertisement for
the second week because the period for the first week should be reckoned from March 28,
1969 until April 3, 1969 while the second week should be counted from April 4, 1969 until
April 10, 1969. It is clear that the announcement on April 11, 1969 was both theoretically and
physically accomplished during the first day of the third week and cannot thus be equated
with compliance in law. Indeed, where the word is used simply as a measure of duration of
time and without reference to the calendar, it means a period of seven consecutive days
without regard to the day of the week on which it begins (1 Tolentino, supra at p. 467citing
Derby).
Certainly, it would have been absurd to exclude March 28, 1969 as reckoning point in line with the
third paragraph of Article 13 of the New Civil Code, for the purpose of counting the first week of
publication as to the last day thereof fall on April 4, 1969 because this will have the effect of
extending the first week by another day. This incongruous repercussion could not have been the
unwritten intention of the lawmakers when Act No. 3135 was enacted. Verily, inclusion of the first day
of publication is in keeping with the computation in Bonnevie vs. Court of Appeals (125 SCRA 122
[1983]) where this Court had occasion to pronounce, through Justice Guerrero, that the publication
of notice on June 30, July 7 and July 14, 1968 satisfied the publication requirement under Act No.
3135. Respondent court cannot, therefore, be faulted for holding that there was no compliance with
the strict requirements of publication independently of the so- called admission in judicio.
WHEREFORE, the petitions for certiorari and intervention are hereby dismissed and the decision of
the Court of Appeals dated April 17, 1991 is hereby affirmed in toto.
SO ORDERED.

G.R. No. L-29131

August 27, 1969

NATIONAL MARKETING CORPORATION, plaintiff-appellant,

vs.
MIGUEL D. TECSON, ET AL., defendants,
MIGUEL D. TECSON, defendant-appellee,
THE INSURANCE COMMISSIONER, petitioner.

Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for
plaintiff-appellant.
Antonio T. Lacdan for defendant-appellee.
Office of the Solicitor General for petitioner.
CONCEPCION, C.J.:
This appeal has been certified to us by the Court of Appeals only one question of law being involved
therein.
On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case No.
20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D. Tecson and Alto Surety and
Insurance Co., Inc.," the dispositive part of which reads as follows:
For the foregoing consideration, the Court decides this case:
(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to pay
jointly and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May 25,
1960 until the amount is fully paid, plus P500.00 for attorney's fees, and plus costs;
(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety &
Insurance Co., Inc. on the cross-claim for all the amounts it would be made to pay in this
decision, in case defendant Alto Surety & Insurance Co., Inc. pay the amount adjudged to
plaintiff in this decision. From the date of such payment defendant Miguel D. Tecson would
pay the Alto Surety & Insurance Co., Inc., interest at 12% per annum until Miguel D. Tecson
has fully reimbursed plaintiff of the said amount.
Copy of this decision was, on November 21, 1955, served upon the defendants in said case. On
December 21, 1965, the National Marketing Corporation, as successor to all the properties, assets,
rights, and choses in action of the Price Stabilization Corporation, as plaintiff in that case and
judgment creditor therein, filed, with the same court, a complaint, docketed as Civil Case No. 63701
thereof, against the same defendants, for the revival of the judgment rendered in said Case No.
20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the ground of lack of
jurisdiction over the subject matter thereof and prescription of action. Acting upon the motion and
plaintiff's opposition thereto, said Court issued, on February 14, 1966, an order reading:
Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of
jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less than
P10,000 as actually these proceedings are a revival of a decision issued by this same court,
the matter of jurisdiction must be admitted. But as for prescription. Plaintiffs admit the
decision of this Court became final on December 21, 1955. This case was filed exactly on
December 21, 1965 but more than ten years have passed a year is a period of 365 days
(Art. 13, CCP). Plaintiff forgot that 1960, 1964 were both leap years so that when this present
case was filed it was filed two days too late.
The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having
prescribed.
1wph1.t

The National Marketing Corporation appealed from such order to the Court of Appeals, which, on
March 20, 1969t certified the case to this Court, upon the ground that the only question therein
raised is one of law, namely, whether or not the present action for the revival of a judgment is barred
by the statute of limitations.
Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within ten
years from the time the right of action accrues," which, in the language of Art. 1152 of the same
Code, "commences from the time the judgment sought to be revived has become final." This, in turn,
took place on December 21, 1955, or thirty (30) days from notice of the judgment which was
received by the defendants herein on November 21, 1955 no appeal having been taken
therefrom. 1 The issue is thus confined to the date on which ten (10) years from December 21, 1955
expired.

Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains otherwise,
because "when the laws speak of years ... it shall be understood that years are of three hundred
sixty-five days each" according to Art. 13 of our Civil Code and, 1960 and 1964 being leap
years, the month of February in both had 29 days, so that ten (10) years of 365 days each, or an
aggregate of 3,650 days, from December 21, 1955, expired on December 19, 1965. The lower court
accepted this view in its appealed order of dismissal.
Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar
year (Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since what is being
computed here is the number of years, a calendar year should be used as the basis of computation.
There is no question that when it is not a leap year, December 21 to December 21 of the following
year is one year. If the extra day in a leap year is not a day of the year, because it is the 366th day,
then to what year does it belong? Certainly, it must belong to the year where it falls and, therefore,
that the 366 days constitute one year." 2
The very conclusion thus reached by appellant shows that its theory contravenes the explicit
provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each "year" as
the term is used in our laws to 365 days. Indeed, prior to the approval of the Civil Code of Spain,
the Supreme Court thereof had held, on March 30, 1887, that, when the law spoke of months, it
meant a "natural" month or "solar" month, in the absence of express provision to the contrary. Such
provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the
same Supreme Court declared 3 that, pursuant to Art. 7 of said Code, "whenever months ... are
referred to in the law, it shall be understood that the months are of 30 days," not the "natural," or
"solar" or "calendar" months, unless they are "designated by name," in which case "they shall be
computed by the actual number of days they have. This concept was later, modified in the
Philippines, by Section 13 of the Revised Administrative Code, Pursuant to which, "month shall be
understood to refer to a calendar month." 4 In the language of this Court, in People vs. Del
Rosario, 5 with the approval of the Civil Code of the Philippines (Republic Act 386) ... we
have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be
considered as the regular 30-day month ... and not the solar or civil month," with the particularity
that, whereas the Spanish Code merely mentioned "months, days or nights," ours has added thereto
the term "years" and explicitly ordains that "it shall be understood that years are of three hundred
sixty-five days."
Although some members of the Court are inclined to think that this legislation is not realistic, for
failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein cannot
be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving Section 13 of the
Revised Administrative Code, thereby engaging in judicial legislation, and, in effect, repealing an act
of Congress. If public interest demands a reversion to the policy embodied in the Revised
Administrative Code, this may be done through legislative process, not by judicial decree.
WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is so
ordered.
[G.R. No. 124893. April 18, 1997]
LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE
COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and
PROVINCIAL SUPERVISOR NOLI PIPO, respondents.
DECISION
PUNO, J.:
Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of
respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly
elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui,
Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled
to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and
voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of

Election Tellers, however, denied her application on the ground that petitioner, who was then twentyone years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng
Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and
Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a
decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as
member and voter in the Katipunan ng Kabataan. [1] The Board of Election Tellers appealed to the
Regional Trial Court, Bangui, Ilocos Norte. [2] The presiding judge of the Regional Trial Court,
however, inhibited himself from acting on the appeal due to his close association with petitioner.[3]
On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman,
Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In
a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial
Election Supervisor Noli Pipo,[4] disapproved petitioner's certificate of candidacy again due to her
age.[5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set
aside the order of respondents and allowed petitioner to run. [6]
On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her
ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be
disapproved.[7] Earlier and without the knowledge of the COMELEC officials, private respondent
Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the
COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against
petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The
petition was sent by facsimile[8] and registered mail on April 29, 1996 to the Commission on Elections
National Office, Manila.
On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers
of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the
election. The order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by
petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the
pertinent allegations of which reads:
xxx
5. That the said respondent is disqualified to become a voter and a candidate for the SK for the
reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born
on June 11, 1974 as can be gleaned from her birth certificate, a copy of which is hereto attached and
marked as Annex "A";
6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos
Norte, she made material representation which is false and as such, she is disqualified; that her
certificate of candidacy should not be given due course and that said candidacy must be cancelled;
x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of
Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to
suspend the proclamation of Lynette G. Garvida in the event she garners the highest
number of votes for the position of Sangguniang Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition
and to pay the filing and legal research fees in the amount of P510.00.
SO ORDERED."[9]
On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's
votes of 76.[10] In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of

Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was
filed on May 27, 1996.
On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. [11] The proclamation was
"without prejudice to any further action by the Commission on Elections or any other interested
party."[12] On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang
Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one
of the elected officials of the Pederasyon.[13]
Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the
COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second,
the cancellation of her certificate of candidacy on the ground that she has exceeded the age
requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK
elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election
Code.[14] The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due
course to or cancel a certificate of candidacy, viz:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due
course to or cancel a certificate of candidacy for an elective office may be filed with the Law
Department of the COMELEC on the ground that the candidate has made a false material
representation in his certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the COMELEC itself. [15]
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only
be entertained by the COMELEC en banc when the required number of votes to reach a decision,
resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider
decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC
en banc.[16] It is therefore the COMELEC sitting in Divisions that can hear and decide election cases.
This is clear from Section 3 of the said Rules thus:
"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2)
Divisions to hear and decide protests or petitions in ordinary actions, special actions,
special cases, provisional remedies, contempt and special proceedings except in
accreditation of citizens' arms of the Commission."[17]
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon
receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it
entertained the petition and issued the order of May 2, 1996. [18]
II
The COMELEC en banc also erred when it failed to note that the petition itself did not comply
with the formal requirements of pleadings under the COMELEC Rules of Procedure.These
requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten
(10) legible copies. However, when there is more than one respondent or protestee, the
petitioner or protestant must file additional number of copies of the petition or protest as
there are additional respondents or protestees.

Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must
be filed directly with the proper Clerk of Court of the Commission personally, or, unless
otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing
is the date of filing and the requirement as to the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed,
mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size
bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the
proper Clerk of Court of the COMELEC personally, or, by registered mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies of the
petition were filed with the COMELEC. [19] Also, the COMELEC en banc issued its Resolution on the
basis of the petition transmitted by facsimile, not by registered mail.
A facsimile or fax transmission is a process involving the transmission and reproduction of
printed and graphic matter by scanning an original copy, one elemental area at a time, and
representing the shade or tone of each area by a specified amount of electric current. [20] The current
is transmitted as a signal over regular telephone lines or via microwave relay and is used by the
receiver to reproduce an image of the elemental area in the proper position and the correct shade.
[21]
The receiver is equipped with a stylus or other device that produces a printed record on paper
referred to as a facsimile.[22]
Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of
Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It
is, at best, an exact copy preserving all the marks of an original. [23]
Without the original, there is no way of determining on its face whether the facsimile pleading is
genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a
sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the
COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en
banc should have waited until it received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as
the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay
who were at least 15 years but less than 18 years of age. [24]
The Kabataang Barangay sought to provide its members a medium to express their views and
opinions and participate in issues of transcendental importance. [25] Its affairs were administered by a
barangay youth chairman together with six barangay youth leaders who were actual residents of the
barangay and were at least 15 years but less than 18 years of age. [26]In 1983, Batas Pambansa Blg.
337, then the Local Government Code, raised the maximum age of the Kabataang Barangay
members from "less than 18 years of age" to "not more than 21 years of age."
The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng
Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not
more than 21 years old.[27] The affairs of the Katipunan ng Kabataan are administered by the
Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by
the Katipunan ng Kabataan.[28]
The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29] A
member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or
becomes permanently incapacitated, dies or resigns from office. [30]

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the
Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all
citizens of the Philippines actually residing in the barangay for at least six (6) months, who
are fifteen (15) but not more than twenty-one (21) years of age, and who are duly
registered in the list of the sangguniang kabataan or in the official barangay list in the
custody of the barangay secretary."
A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if
he possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a
citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the
barangay for at least one (1) year immediately prior to election, at least fifteen (15) years
but not more than twenty-one (21) years of age on the day of his election, able to read and
write Filipino, English, or the local dialect, and must not have been convicted of any crime
involving moral turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan
must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15
but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or
in the official barangay list. Section 428 of the Code requires that an elective official of the
Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng
Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the
election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to
read and write; and (f) must not have been convicted of any crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng
Kabataan becomes a qualified voter and an elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections,
a person must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have
been born between May 6, 1975 and May 6, 1981, inclusive; and
c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein
he proposes to vote for at least six (6) months immediately preceding the elections."
xxx
"Sec. 6. Qualifications of elective members. -- An elective official of the SK must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the elections; and
c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided by the
city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if
he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter
must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines
for at least one (1) year and an actual resident of the barangay at least six (6) months immediately
preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a

voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections;
and (c) able to read and write.
Except for the question of age, petitioner has all the qualifications of a member and voter in the
Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is
admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner,
however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the
scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code
itself does not provide that the voter must be exactly 21 years of age on election day. She urges that
so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on
election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as
candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the maximum age
of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section
424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to
when the member shall have turned 21 years of age. On the other hand, Section 428 provides that
the maximum age of an elective SK official is 21 years old "on the day of his election." The addition
of the phrase "on the day of his election" is an additional qualification. The member may be more
than 21 years of age on election day or on the day he registers as member of the Katipunan ng
Kabataan. The elective official, however, must not be more than 21 years old on the day of
election. The distinction is understandable considering that the Code itself provides more
qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum
dissimilis est ratio.[31] The courts may distinguish when there are facts and circumstances showing
that the legislature intended a distinction or qualification.[32]
The qualification that a voter in the SK elections must not be more than 21 years of age on the
day of the election is not provided in Section 424 of the Local Government Code of 1991.In fact the
term "qualified voter" appears only in COMELEC Resolution No. 2824. [33] Since a "qualified voter" is
not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of
the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a
member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b]
of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for
the SK elections at exactly 21 years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of age on the
day of his election is very clear. The Local Government Code speaks of years, not months nor
days. When the law speaks of years, it is understood that years are of 365 days each. [34] One born
on the first day of the year is consequently deemed to be one year old on the 365th day after his
birth -- the last day of the year.[35] In computing years, the first year is reached after completing the
first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the
365th day of the second cycle, the person turns two years old. This cycle goes on and on in a
lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his
21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day
cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle
and he turns 22 years old on the 365th day.
The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It
means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year
because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent
to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate
be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay
youth official was expressly stated as "x x x at least fifteen years of age or over but less than
eighteen x x x."[36] This provision clearly states that the youth official must be at least 15 years old
and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When
the Local Government Code increased the age limit of members of the youth organization to 21
years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than
22 years old." If the intention of the Code's framers was to include citizens less than 22 years old,
they should have stated so expressly instead of leaving the matter open to confusion and doubt. [37]

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government
Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the
Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were
already over 21 years of age by the time President Aquino assumed power.[38] They were not the
"youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more
than 21 years[39] and the only exception is in the second paragraph of Section 423 which reads:
"Sec. 423. Creation and Election. -- a) x x x;
b) A sangguniang kabataan official who, during his term of office, shall have passed the
age of twenty-one (21) years shall be allowed to serve the remaining portion of the term
for which he was elected."
The general rule is that an elective official of the Sangguniang Kabataan must not be
more than 21 years of age on the day of his election. The only exception is when the official reaches
the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the
remaining portion of the term for which he was elected. According to Senator Pimentel, the youth
leader must have "been elected prior to his 21st birthday." [40] Conversely, the SK official must not
have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of
the Code, the latest date at which an SK elective official turns 21 years old is on the day of his
election. The maximum age of a youth official must therefore be exactly 21 years on election
day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires
insofar as it fixes the maximum age of an elective SK official on the day of his election.
In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she
registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine
(9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she
assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten
(10) days away from turning 22 years old. Petitioner may have qualified as a member of the
Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by
Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No.
2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public policy and
if he lacks the age on the day of the election, he can be declared ineligible. [41]
In the same vein, if the candidate is over the maximum age limit on the day of the election, he is
ineligible. The fact that the candidate was elected will not make the age requirement directory, nor
will it validate his election. [42] The will of the people as expressed through the ballot cannot cure the
vice of ineligibility.[43]
The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the
highest number of votes in the May 6, 1996 elections, to be declared elected. [44] A defeated
candidate cannot be deemed elected to the office. [45] Moreover, despite his claims, [46] private
respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility
and that they maliciously voted for her with the intention of misapplying their franchises and throwing
away their votes for the benefit of her rival candidate.[47]
Neither can this Court order that pursuant to Section 435 of the Local Government Code
petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next
highest number of votes in the May 6, 1996 elections. [48] Section 435 applies when a Sangguniang
Kabataan Chairman "refuses to assume office, fails to qualify,[49] is convicted of a felony, voluntarily
resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave
for more than three (3) consecutive months."
The question of the age qualification is a question of eligibility.[50]
Being "eligible" means being "legally qualified; capable of being legally chosen."[51]
Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in
the Constitution or the statutes for holding public office. [52] Ineligibility is not one of the grounds
enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the
vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San
Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall
assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the
powers and duties, and enjoy the rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared
ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the
Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang
Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member
voted by simple majority by and from among the incumbent Sangguniang Kabataan members of
Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office ofSangguniang Kabataan
Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.

G.R. No. L-4043

May 26, 1952

CENON S. CERVANTES, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
Cenon Cervantes in his own behalf.
Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for respondent.
REYES, J.:
This is a petition to review a decision of the Auditor General denying petitioner's claim for quarters
allowance as manager of the National Abaca and Other Fibers Corporation, otherwise known as the
NAFCO.
It appears that petitioner was in 1949 the manager of the NAFCO with a salary of P15,000 a year. By
a resolution of the Board of Directors of this corporation approved on January 19 of that year, he was
granted quarters allowance of not exceeding P400 a month effective the first of that month.
Submitted the Control Committee of the Government Enterprises Council for approval, the said
resolution was on August 3, 1949, disapproved by the said Committee on strenght of the
recommendation of the NAFCO auditor, concurred in by the Auditor General, (1) that quarters
allowance constituted additional compensation prohibited by the charter of the NAFCO, which fixes
the salary of the general manager thereof at the sum not to exceed P15,000 a year, and (2) that the
precarious financial condition of the corporation did not warrant the granting of such allowance.
On March 16, 1949, the petitioner asked the Control Committee to reconsider its action and approve
his claim for allowance for January to June 15, 1949, amounting to P1,650. The claim was again
referred by the Control Committee to the auditor General for comment. The latter, in turn referred it
to the NAFCO auditor, who reaffirmed his previous recommendation and emphasized that the fact
that the corporation's finances had not improved. In view of this, the auditor General also reiterated
his previous opinion against the granting of the petitioner's claim and so informed both the Control
Committee and the petitioner. But as the petitioner insisted on his claim the Auditor General
Informed him on June 19, 1950, of his refusal to modify his decision. Hence this petition for review.
The NAFCO was created by the Commonwealth Act No. 332, approved on June 18, 1939, with a
capital stock of P20,000,000, 51 per cent of which was to be able to be subscribed by the National
Government and the remainder to be offered to provincial, municipal, and the city governments and
to the general public. The management the corporation was vested in a board of directors of not
more than 5 members appointed by the president of the Philippines with the consent of the
Commission on Appointments. But the corporation was made subject to the provisions of the
corporation law in so far as they were compatible with the provisions of its charter and the purposes
of which it was created and was to enjoy the general powers mentioned in the corporation law in
addition to those granted in its charter. The members of the board were to receive each a per
diem of not to exceed P30 for each day of meeting actually attended, except the chairman of the

board, who was to be at the same time the general manager of the corporation and to receive a
salary not to exceed P15,000 per annum.
On October 4, 1946, Republic Act No. 51 was approved authorizing the President of the Philippines,
among other things, to effect such reforms and changes in government owned and controlled
corporations for the purpose of promoting simplicity, economy and efficiency in their operation
Pursuant to this authority, the President on October 4, 1947, promulgated Executive Order No. 93
creating the Government Enterprises Council to be composed of the President of the Philippines as
chairman, the Secretary of Commerce and Industry as vice-chairman, the chairman of the board of
directors and managing heads of all such corporations as ex-officio members, and such additional
members as the President might appoint from time to time with the consent of the Commission on
Appointments. The council was to advise the President in the excercise of his power of supervision
and control over these corporations and to formulate and adopt such policy and measures as might
be necessary to coordinate their functions and activities. The Executive Order also provided that the
council was to have a Control Committee composed of the Secretary of Commerce and Industry as
chairman, a member to be designated by the President from among the members of the council as
vice-chairman and the secretary asex-officio member, and with the power, among others
(1) To supervise, for and under the direction of the President, all the corporations owned or
controlled by the Government for the purpose of insuring efficiency and economy in their
operations;
(2) To pass upon the program of activities and the yearly budget of expenditures approved by
the respective Boards of Directors of the said corporations; and
(3) To carry out the policies and measures formulated by the Government Enterprises
Council with the approval of the President. (Sec. 3, Executive Order No. 93.)
With its controlling stock owned by the Government and the power of appointing its directors vested
in the President of the Philippines, there can be no question that the NAFCO is Government
controlled corporation subject to the provisions of Republic Act No. 51 and the executive order (No.
93) promulgated in accordance therewith. Consequently, it was also subject to the powers of the
Control Committee created in said executive order, among which is the power of supervision for the
purpose of insuring efficiency and economy in the operations of the corporation and also the power
to pass upon the program of activities and the yearly budget of expenditures approved by the board
of directors. It can hardly be questioned that under these powers the Control Committee had the
right to pass upon, and consequently to approve or disapprove, the resolution of the NAFCO board
of directors granting quarters allowance to the petitioners as such allowance necessarily constitute
an item of expenditure in the corporation's budget. That the Control Committee had good grounds for
disapproving the resolution is also clear, for, as pointed out by the Auditor General and the NAFCO
auditor, the granting of the allowance amounted to an illegal increase of petitioner's salary beyond
the limit fixed in the corporate charter and was furthermore not justified by the precarious financial
condition of the corporation.
It is argued, however, that Executive Order No. 93 is null and void, not only because it is based on a
law that is unconstitutional as an illegal delegation of legislature power to executive, but also
because it was promulgated beyond the period of one year limited in said law.
The second ground ignores the rule that in the computation of the time for doing an act, the first day
is excluded and the last day included (Section 13 Rev. Ad. Code.) As the act was approved on
October 4, 1946, and the President was given a period of one year within which to promulgate his
executive order and that the order was in fact promulgated on October 4, 1947, it is obvious that
under the above rule the said executive order was promulgated within the period given.
As to the first ground, the rule is that so long as the Legislature "lays down a policy and a standard is
established by the statute" there is no undue delegation. (11 Am. Jur. 957). Republic Act No. 51 in
authorizing the President of the Philippines, among others, to make reforms and changes in
government-controlled corporations, lays down a standard and policy that the purpose shall be to
meet the exigencies attendant upon the establishment of the free and independent government of
the Philippines and to promote simplicity, economy and efficiency in their operations. The standard
was set and the policy fixed. The President had to carry the mandate. This he did by promulgating

the executive order in question which, tested by the rule above cited, does not constitute an undue
delegation of legislative power.
It is also contended that the quarters allowance is not compensation and so the granting of it to the
petitioner by the NAFCO board of directors does not contravene the provisions of the NAFCO
charter that the salary of the chairman of said board who is also to be general manager shall not
exceed P15,000 per anum. But regardless of whether quarters allowance should be considered as
compensation or not, the resolution of the board of the directors authorizing payment thereof to the
petitioner cannot be given effect since it was disapproved by the Control Committee in the exercise
of powers granted to it by Executive Order No. 93. And in any event, petitioner's contention that
quarters allowance is not compensation, a proposition on which American authorities appear divided,
cannot be insisted on behalf of officers and employees working for the Government of the
Philippines and its Instrumentalities, including, naturally, government-controlled corporations. This is
so because Executive Order No. 332 of 1941, which prohibits the payment of additional
compensation to those working for the Government and its Instrumentalities, including governmentcontrolled corporations, was in 1945 amended by Executive Order No. 77 by expressly exempting
from the prohibition the payment of quarters allowance "in favor of local government officials and
employees entitled to this under existing law." The amendment is a clear indication that quarters
allowance was meant to be included in the term "additional compensation", for otherwise the
amendment would not have expressly excepted it from the prohibition. This being so, we hold that,
for the purpose of the executive order just mentioned, quarters allowance is considered additional
compensation and, therefore, prohibited.