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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
GREGORIO PERFECTOR, defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.


Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any
person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . .
.," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain
documents which constituted the records of testimony given by witnesses in the investigation of oil companies, had
disappeared from his office. Shortly thereafter, the Philippine Senate, having been called into special session by the
Governor-General, the Secretary for the Senate informed that body of the loss of the documents and of the steps
taken by him to discover the guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which
were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication
that the author or authors of the crime will ever be discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of
the investigation of the case would not have to display great skill in order to succeed in their undertaking,
unless they should encounter the insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing more.

After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does
not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place in which it was
committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind,
that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but
followed the example of certain Senators who secured their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on
elections and privileges to report as to the action which should be taken with reference to the article published in La
Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the President of the Senate to indorse
to the Attorney-General, for his study and corresponding action, all the papers referring to the case of the
newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal
court of the City of Manila by an assistant city fiscal, in which the editorial in question was set out and in which it
was alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto
was found guilty in the municipal court and again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for
the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under which the
information was presented, is in force, the trial judge, the Honorable George R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the
Ministers of the Crown and other representatives of the King against free speech and action by Spanish
subjects. A severe punishment was prescribed because it was doubtless considered a much more serious
offense to insult the King's representative than to insult an ordinary individual. This provision, with almost
all the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain
because the King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or
other representatives of His Majesty. We now have no Ministers of the Crown or other persons in authority
in the Philippines representing the King of Spain, and said provision, with other articles of the Penal Code,
had apparently passed into "innocuous desuetude," but the Supreme Corut of the Philippine Islands has, by
a majority decision, held that said article 256 is the law of the land to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise
determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense, and little importance
is attached to them, because they are generally the result of political controversy and are usually regarded
as more or less colored or exaggerated. Attacks of this character upon a legislative body are not punishable,
under the Libel Law. Although such publications are reprehensible, yet this court feels some aversion to the
application of the provision of law under which this case was filed. Our Penal Code has come to us from
the Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language
about Ministers of the Crown or other "authority." The King of Spain doubtless left the need of such
protection to his ministers and others in authority in the Philippines as well as in Spain. Hence, the article
referred to was made applicable here. Notwithstanding the change of sovereignty, our Supreme Court, in a
majority decision, has held that this provision is still in force, and that one who made an insulting remark
about the President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in
that case, it would appear to be applicable in this case. Hence, said article 256 must be enforced, without
fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall
otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as charged in the information
and under article 256 of their Penal Code sentences him to suffer two months and one day of arresto
mayor and the accessory penalties prescribed by law, and to pay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral
argument made in his own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this decision.

It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the
case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was charged with
having said, "To hell with the President and his proclamations, or words to that effect," in violation of article 256 of
the Penal Code. He was found guilty in a judgment rendered by the Court of First Instance of Manila and again on
appeal to the Supreme Court, with the writer of the instant decision dissenting on two principal grounds: (1) That the
accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal
Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the
Court of First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a
principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of the record
to the court of origin for the celebration of a new trial. Whether such a trial was actually had, is not known, but at
least, the record in the Helbig case has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the
circumstances above described. This much, however, is certain: The facts of the Helbig case and the case before us,
which we may term the Perfecto case, are different, for in the first case there was an oral defamation, while in the
second there is a written defamation. Not only this, but a new point which, under the facts, could not have been
considered in the Helbig case, is, in the Perfecto case, urged upon the court. And, finally, as is apparent to all, the
appellate court is not restrained, as was the trial court, by strict adherence to a former decision. We much prefer to
resolve the question before us unhindered by references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the
court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of repealing so much of article
256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the information and the facts,
the defendant is neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of the
Chief Justice is that the accused should be acquitted for the reason that the facts alleged in the information do not
constitute a violation of article 156 of the Penal Code. Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.

Without prejudice to the right of any member of the court to explain his position, we will discuss the two main
points just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. — The Libel
Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative
body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs
or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead
or to impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is
alive, and thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws
and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel
Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal Code,
covering the subjects of calumny and insults, must have been particularly affected by the Libel Law. Indeed, in the
early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law as
"reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention was
given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny and insults, and it
was found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of
writing an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)

The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article 256.

The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the
tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly
exposing them to public hatred, contempt, or ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F.
Stephen is authority for the statement that a libel is indictable when defaming a "body of persons definite and small
enough for individual members to be recognized as such, in or by means of anything capable of being a libel."
(Digest of Criminal Law, art. 267.) But in the United States, while it may be proper to prosecute criminally the
author of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within
the range of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p.
2131.) With these facts and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing,
shall defame, abuse, or insult any Minister of the Crown or other person in authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory
construction is, that where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly
appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, previous
laws are held to be repealed by necessary implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For
identical reasons, it is evident that Act No. 277 had the effect so much of this article as punishes defamation, abuse,
or insults by writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as
to this point, it is not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the
Spanish Penal Code. — Appellant's main proposition in the lower court and again energetically pressed in
the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated by
the change from Spanish to American sovereignty over the Philippines and because inconsistent with
democratic principles of government. This view was indirectly favored by the trial judge, and, as before
stated, is the opinion of three members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes the
crimes of treason, crimes that endanger the peace or independence of the state, crimes against international law, and
the crime of piracy. Title II of the same book punishes the crimes of lese majeste, crimes against the Cortes and its
members and against the council of ministers, crimes against the form of government, and crimes committed on the
occasion of the exercise of rights guaranteed by the fundamental laws of the state, including crime against religion
and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of rebellion, sedition,
assaults upon persons in authority, and their agents, and contempts, insults, injurias, and threats against persons in
authority, and insults, injurias, and threats against their agents and other public officers, the last being the title to
Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by any one who
shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any person in authority. The
with an article condemning challenges to fight duels intervening, comes article 256, now being weighed in the
balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or insult any Minister
of the Crown or other person in authority, while engaged in the performance of official duties, or by reason of such
performance, provided that the offensive minister or person, or the offensive writing be not addressed to him, shall
suffer the penalty of arresto mayor," — that is, the defamation, abuse, or insult of any Minister of the Crown of the
Monarchy of Spain (for there could not be a Minister of the Crown in the United States of America), or other person
in authority in the Monarchy of Spain.

It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as
treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of the crown, are not
longer in force. Our present task, therefore, is a determination of whether article 256 has met the same fate, or, more
specifically stated, whether it is in the nature of a municipal law or political law, and is consistent with the
Constitution and laws of the United States and the characteristics and institutions of the American Government.

It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded
region are totally abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the
inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and
Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr.
Justice Field of the United States Supreme Court stated the obvious when in the course of his opinion in the case of
Chicago, Rock Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws,
ordinances and regulations in conflict with the political character, institutions and Constitution of the new
government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the
latter is involved in the former — to the United States, the laws of the country in support of an established religion
or abridging the freedom of the press, or authorizing cruel and unusual punishments, and he like, would at once
cease to be of obligatory force without any declaration to that effect." To quote again from the United States
Supreme Court: "It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United
States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to
exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and
laws of its own government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3
Hos., 210.)

On American occupation of the Philippines, by instructions of the President to the Military Commander dated May
28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory affecting private rights of
person and property and providing for the punishment of crime were nominally continued in force in so far as they
were compatible with the new order of things. But President McKinley, in his instructions to General Merritt, was
careful to say: "The first effect of the military occupation of the enemy's territory is the severance of the former
political relation of the inhabitants and the establishment of a new political power." From that day to this, the
ordinarily it has been taken for granted that the provisions under consideration were still effective. To paraphrase the
language of the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and
could not be, except as precise questions were presented, a careful consideration of the codal provisions and a
determination of the extent to which they accorded with or were repugnant to the "'great principles of liberty and
law' which had been 'made the basis of our governmental system.' " But when the question has been squarely raised,
the appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant t democratic
institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25
Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems vs. U.S., supra.)

The nature of the government which has been set up in the Philippines under American sovereignty was outlined by
President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900.
In part, the President said:

In all the forms of government and administrative provisions which they are authorized to prescribe, the
Commission should bear in mind that he government which they are establishing is designed not for our
satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of
the people of the Philippine Islands, and the measures adopted should be made to conform to their customs,
their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government. At the same time the Commission should bear in
mind, and the people of the Islands should be made plainly to understand, that there are certain great
principles of government which have been made the basis of our governmental system, which we deem
essential to the rule of law and the maintenance of individual freedom, and of which they have,
unfortunately, been denied the experience possessed by us; that there are also certain practical rules of
government which we have found to be essential to the preservation of these great principles of liberty and
law, and that these principles and these rules of government must be established and maintained in their
islands for the sake of their liberty and happiness, however much they may conflict with the customs or
laws of procedure with which they are familiar. It is evident that the most enligthened thought of the
Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably
within a short time command universal assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the case of
United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the government on the model
with which American are familiar, and which has proven best adapted for the advancement of the public interests
and the protection of individual rights and privileges."

Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace, and
prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow the language of
President McKinley, demand obeisance to authority, and royal protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect
Spanish officials who were the representatives of the King. With the change of sovereignty, a new government, and
a new theory of government, as set up in the Philippines. It was in no sense a continuation of the old, although
merely for convenience certain of the existing institutions and laws were continued. The demands which the new
government made, and makes, on the individual citizen are likewise different. No longer is there a Minister of the
Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In
the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with
every other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency
and ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is qualified,
and whether he is qualified or not depends upon the life and character and attainments and conduct of each person
for himself. Every man may lawfully do what he will, so long as it is not malum in se or malum prohibitum or does
not infringe upon the qually sacred rights of others." (State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United States are derived, there
were once statutes of scandalum magnatum, under which words which would not be actionable if spoken of an
ordinary subject were made actionable if spoken of a peer of the realm or of any of the great officers of the Crown,
without proof of any special damage. The Crown of England, unfortunately, took a view less tolerant that that of
other sovereigns, as for instance, the Emperors Augustus, Caesar, and Tiberius. These English statutes have,
however, long since, become obsolete, while in the United States, the offense of scandalum magnatum is not known.
In the early days of the American Republic, a sedition law was enacted, making it an offense to libel the
Government, the Congress, or the President of the United States, but the law met with so much popular disapproval,
that it was soon repealed. "In this country no distinction as to persons is recognized, and in practice a person holding
a high office is regarded as a target at whom any person may let fly his poisonous words. High official position,
instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his
character free plunder for any one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d
ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and
system of government. The gulf which separates this article from the spirit which inspires all penal legislation of
American origin, is as wide as that which separates a monarchy from a democratic Republic like that of the United
States. This article was crowded out by implication as soon as the United States established its authority in the
Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchical
conception of the nature of political authority, as opposed to the American conception of the protection of the
interests of the public, have been obliterated by the present system of government in the Islands. 1awph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts against executive
officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-
judicial officers has no place in a government based upon American principles. Our official class is not, as in
monarchies, an agent of some authority greater than the people but it is an agent and servant of the people
themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their
authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where
such respect and obedience is due, but never does it place around the individual who happens to occupy an official
position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the
Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that
the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,


vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion
of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a
judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muñoz
Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred
on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and
Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties
left by the deceased Francisco Reyes, the common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a)
plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal
heirs of the deceased were defendant Macariola, she being the only offspring of the first marriage
of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the
deceased by his second marriage with Irene Ondez; c) the properties left by the deceased were all
the conjugal properties of the latter and his first wife, Felisa Espiras, and no properties were
acquired by the deceased during his second marriage; d) if there was any partition to be made,
those conjugal properties should first be partitioned into two parts, and one part is to be
adjudicated solely to defendant it being the share of the latter's deceased mother, Felisa Espiras,
and the other half which is the share of the deceased Francisco Reyes was to be divided equally
among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the
dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a


preponderance of evidence, finds and so holds, and hereby renders judgment (1)
Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes,
Adela Reyes and Priscilla Reyes as the only children legitimated by the
subsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the
plaintiff Sinforosa R. Bales to have been an illegitimate child of Francisco
Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506
and 1/4 of Lot 1145 as belonging to the conjugal partnership of the spouses
Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of
Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez
in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging
exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the defendant
Bernardita R. Macariola, being the only legal and forced heir of her mother
Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2) of each of
said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of
one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes
Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of
Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the
remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-
fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz;
(8) Directing the division or partition of the estate of Francisco Reyes Diaz in
such a manner as to give or grant to Irene Ondez, as surviving widow of
Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole
estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil
Code), and the remaining portion of the estate to be divided among the plaintiffs
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way
that the extent of the total share of plaintiff Sinforosa R. Bales in the hereditary
estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any
or each of the other plaintiffs and the defendant (Art. 983, New Civil Code),
each of the latter to receive equal shares from the hereditary estate, (Ramirez vs.
Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9)
Directing the parties, within thirty days after this judgment shall have become
final to submit to this court, for approval a project of partition of the hereditary
estate in the proportion above indicated, and in such manner as the parties may,
by agreement, deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and value of the properties
involved; (10) Directing the plaintiff Sinforosa R. Bales and defendant
Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-
third (1/3) by the first named and two-thirds (2/3) by the second named; and (I
1) Dismissing all other claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a
project of partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding
the fact that the project of partition was not signed by the parties themselves but only by the
respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated
October 23, 1963, which for convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for
approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to
this Honorable Court respectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to
Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the
eastern part of the lot shall be awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the
western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the
portions awarded under item (2) and (4) above shall be awarded to Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares, provided, however that the remaining portion of Lot No. 3416
shall belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition indicated


above which is made in accordance with the decision of the Honorable Court be
approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this
Project of Partition, nevertheless, upon assurance of both counsels of the
respective parties to this Court that the Project of Partition, as above- quoted,
had been made after a conference and agreement of the plaintiffs and the
defendant approving the above Project of Partition, and that both lawyers had
represented to the Court that they are given full authority to sign by themselves
the Project of Partition, the Court, therefore, finding the above-quoted Project of
Partition to be in accordance with law, hereby approves the same. The parties,
therefore, are directed to execute such papers, documents or instrument
sufficient in form and substance for the vesting of the rights, interests and
participations which were adjudicated to the respective parties, as outlined in the
Project of Partition and the delivery of the respective properties adjudicated to
each one in view of said Project of Partition, and to perform such other acts as
are legal and necessary to effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose
of giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding
transfer certificates of title to the respective adjudicatees in conformity with the project of partition
(see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof
with an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive
property of the deceased Francisco Reyes, was adjudicated in said project of partition to the
plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and
when the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to
be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs.
F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July
31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of
the Register of Deeds of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of
around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which
particular portion was declared by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and
interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16).
At the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia
Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion,
with Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The
Articles of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we
shall henceforth refer to as "TRADERS" were registered with the Securities and Exchange
Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging
four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in
Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of
Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating
himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he
was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted
in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of
Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter
disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16, 1968
by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice Cecilia Muñoz
Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the said Investigating
Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be reprimanded or
warned in connection with the first cause of action alleged in the complaint, and for the second cause of action,
respondent should be warned in case of a finding that he is prohibited under the law to engage in business. On the
third and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted
an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa
R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of
partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Judge
approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears,
however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was
dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was
sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria
Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil
Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon
was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cases
against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and
Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador
Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein,
plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and
authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense
Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which
reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take
cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the
two Orders [Exhibits "C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B.
Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for


moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for


exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages;
and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN,


FOR HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO
VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the
deceased Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo
Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES,


ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R.
Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;


(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon perfection
of the appeal on February 22, 1971.

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of
action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No.
3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial
action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply
to lawyers, with respect to the property and rights which may be the object of any litigation in
which they may take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of
litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or
assignment of the property must take place during the pendency of the litigation involving the property" (The
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA
641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in
Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed
an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation.
Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended
order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8,
1963 decision, had long become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil
Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the
plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case
No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to
Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the
same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on
July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and
on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation
purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which
respondent was the president and his wife was the secretary, took place long after the finality of the decision in Civil
Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of
First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders
approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is of
no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his
two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no longer
subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the
aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and
consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the
finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not
during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by
Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In this
connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by
respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS"
of which respondent was the President and his wife the Secretary, was intimately related to the
Order of respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions between the
Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no evidence
whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for
him and his wife. (See p. 14 of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that Dr.
Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the
Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen, credible and sincere,
and I believe him when he testified that he bought Lot 1184-E in good faith and for valuable
consideration from the Reyeses without any intervention of, or previous understanding with Judge
Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition
although it was not signed by the parties, We quote with approval the findings of the Investigating Justice, as
follows:

1. I agree with complainant that respondent should have required the signature of the parties more
particularly that of Mrs. Macariola on the project of partition submitted to him for approval;
however, whatever error was committed by respondent in that respect was done in good faith as
according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of
Mrs. Macariola, That he was authorized by his client to submit said project of partition, (See Exh.
B and tsn p. 24, January 20, 1969). While it is true that such written authority if there was any,
was not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate the
statement of respondent, his affidavit being the only one that was presented as respondent's Exh.
10, certain actuations of Mrs. Macariola lead this investigator to believe that she knew the contents
of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the
following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral
Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate
of title the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly
entered and registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola
on October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco
Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of
said one-fourth share, the same having been adjudicated to her as her share in the estate of her
father Francisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No.
3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition
dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an
amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.
Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22,
1963, several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot
1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh.
A. Such contention is absurd because from the decision, Exh. C, it is clear that one-half of one-
fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-
fourth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-
4). Complainant became the owner of the entire one-fourth of Lot 1154 only by means of the
project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it
was for no other reason than that she was wen aware of the distribution of the properties of her
deceased father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola
admitted during the cross-examination that she went to Tacloban City in connection with the sale
of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce that she
could not have been kept ignorant of the proceedings in civil case 3010 relative to the project of
partition.

Complainant also assails the project of partition because according to her the properties
adjudicated to her were insignificant lots and the least valuable. Complainant, however, did not
present any direct and positive evidence to prove the alleged gross inequalities in the choice and
distribution of the real properties when she could have easily done so by presenting evidence on
the area, location, kind, the assessed and market value of said properties. Without such evidence
there is nothing in the record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in
acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for
him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires
that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not
only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond
reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of
respondent to have purchased or acquired a portion of a piece of property that was or had been in litigation in his
court and caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of
such transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of maintaining
the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just, but his
actuations must be such as not give cause for doubt and mistrust in the uprightness of his administration of justice.
In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render
his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in
litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation, he
should nonetheless have refrained from buying it for himself and transferring it to a corporation in which he and his
wife were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to
his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010,
the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and
the integrity of our courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and
5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in business.
Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can
they hold any office or have any direct, administrative, or financial intervention in commercial or
industrial companies within the limits of the districts, provinces, or towns in which they discharge
their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in
active service. This provision shall not be applicable to mayors, municipal judges, and municipal
prosecuting attorneys nor to those who by chance are temporarily discharging the functions of
judge or prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in a
determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is
part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates
the relationship between the government and certain public officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and operation of the
governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs.
Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public
corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the
Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain
public officers and employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some
modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to the
Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic
of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated because where
there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of
the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new
sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following
a conquest or otherwise, ... those laws which are political in their nature and pertain to the
prerogatives of the former government immediately cease upon the transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new
sovereign continue in force without the express assent or affirmative act of the conqueror, the
political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the
prior sovereignty as are not in conflict with the constitution or institutions of the new sovereign,
may be continued in force if the conqueror shall so declare by affirmative act of the commander-
in-chief during the war, or by Congress in time of peace. (Ely's Administrator vs. United States,
171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton
(1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the
relations of the inhabitants with each other undergo any change. Their relations
with their former sovereign are dissolved, and new relations are created between
them and the government which has acquired their territory. The same act which
transfers their country, transfers the allegiance of those who remain in it; and the
law which may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals, remains in
force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the
public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of
Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the
Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business,


contract or transaction in connection with which he intervenes or takes part in
his official capacity, or in which he is prohibited by the Constitution or by any
Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent
participated or intervened in his official capacity in the business or transactions of the Traders Manufacturing and
Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The business of said corporation is not that kind where
respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any contract or business in which it is his official duty to
intervene, "(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his
office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th
Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business
operations by reason of respondent's financial involvement in it, or that the corporation benefited in one way or
another in any case filed by or against it in court. It is undisputed that there was no case filed in the different
branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant
except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein
the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that
Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his
interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and
1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary
from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not
contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may
engage in teaching or other vocation not involving the practice of law after office hours but with the permission of
the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore
stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is
political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a
property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent
Judge because the sale of the lot in question to him took place after the finality of his decision in Civil Case No.
3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of
litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of
1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation, or
profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written
permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section
3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by
the Constitution or law on any public officer from having any interest in any business and not by a mere
administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil
service, that is, engaging in private business without a written permission from the Department Head may not
constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules,
We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder,
particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No
officer or employee shall engage directly in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department
..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act
No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the
Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own motion,
or upon information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly,
the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of
inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the
existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove any
subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year
without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule
XVIII is a ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary
authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial
Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself
state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under
the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973
Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary
action against judges because to recognize the same as applicable to them, would be adding another ground for the
discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their
removal, namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has
original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the competitive service, and, except as provided by
law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating to
the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and
regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge belong
to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not
covered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No.
2260, we emphasized that only permanent officers and employees who belong to the classified service come under
the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965],
Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing
and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of
the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same
is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to be
involved in litigation in his court; and, after his accession to the bench, he should not retain such
investments previously made, longer than a period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all
relations which would normally tend to arouse the suspicion that such relations warp or bias his
judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967
from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the aforesaid
corporation did not in anyway benefit in any case filed by or against it in court as there was no case filed in the
different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of
Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual
withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his
wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates that
respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent
Judge and his wife therefore deserve the commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter
disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respondent
Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of
her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and
closely fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a
practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan
does not appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to
in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that
all the time he believed that the latter was a bona fide member of the bar. I see no reason for
disbelieving this assertion of respondent. It has been shown by complainant that Dominador
Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a
signboard with his name and the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office,
and it was but natural for respondent and any person for that matter to have accepted that
statement on its face value. "Now with respect to the allegation of complainant that respondent is
guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a
godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render
respondent guilty of violating any canon of judicial ethics as long as his friendly relations with
Dominador A. Tan and family did not influence his official actuations as a judge where said
persons were concerned. There is no tangible convincing proof that herein respondent gave any
undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice
of law from his personal relations with respondent, or that he used his influence, if he had any, on
the Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from
maintaining close friendly relations with practising attorneys and litigants in his court so as to
avoid suspicion 'that his social or business relations or friendship constitute an element in
determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have
social relations, that in itself would not constitute a ground for disciplinary action unless it be
clearly shown that his social relations be clouded his official actuations with bias and partiality in
favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any
law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by
joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be
reminded to be more discreet in his private and business activities, because his conduct as a member of the Judiciary
must not only be characterized with propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY


REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

MANUEL B. IMBONG, petitioner,


vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members
thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY


OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970.
RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr., and
Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for
respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132 by
petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in running
as candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132,
claiming during the oral argument that it prejudices their rights as such candidates. After the Solicitor General had
filed answers in behalf the respondents, hearings were held at which the petitioners and the amici curiae, namely
Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued
orally.

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of the
Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to propose
constitutional amendments to be composed of two delegates from each representative district who shall have the
same qualifications as those of Congressmen, to be elected on the second Tuesday of November, 1970 in accordance
with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress, acting as a
legislative body, enacted Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and practically
restating in toto the provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the aforesaid
Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320 delegates
apportioned among the existing representative districts according to the number of their respective inhabitants:
Provided, that a representative district shall be entitled to at least two delegates, who shall have the same
qualifications as those required of members of the House of Representatives," 1 "and that any other details relating to
the specific apportionment of delegates, election of delegates to, and the holding of, the Constitutional Convention
shall be embodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisions of
this Resolution."2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing
Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914.3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions embodied in
Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of Sec.
8(a) of said R.A. No. 6132 practically on the same grounds advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether elective or
appointive, including members of the Armed Forces of the Philippines, as well as officers and employees of
corporations or enterprises of the government, as resigned from the date of the filing of their certificates of
candidacy, was recently sustained by this Court, on the grounds, inter alia, that the same is merely an application of
and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a
denial of due process or of the equal protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a)
of R.A. No. 6132 was upheld. 4

II

Without first considering the validity of its specific provisions, we sustain the constitutionality of the enactment of
R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-making authority, and not as
a Constituent Assembly, because —

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has
full and plenary authority to propose Constitutional amendments or to call a convention for the
purpose, by a three-fourths vote of each House in joint session assembled but voting separately.
Resolutions Nos. 2 and 4 calling for a constitutional convention were passed by the required three-
fourths vote.

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


constitutional convention includes, by virtue of the doctrine of necessary implication, all other
powers essential to the effective exercise of the principal power granted, such as the power to fix
the qualifications, number, apportionment, and compensation of the delegates as well as
appropriation of funds to meet the expenses for the election of delegates and for the operation of
the Constitutional Convention itself, as well as all other implementing details indispensable to a
fruitful convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details, except
the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present Constitution
solely and exclusively in Congress acting as a Constituent Assembly, the power to enact the
implementing details, which are now contained in Resolutions Nos. 2 and 4 as well as in R.A. No.
6132, does not exclusively pertain to Congress acting as a Constituent Assembly. Such
implementing details are matters within the competence of Congress in the exercise of its
comprehensive legislative power, which power encompasses all matters not expressly or by
necessary implication withdrawn or removed by the Constitution from the ambit of legislative
action. And as lone as such statutory details do not clash with any specific provision of the
constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such
implementing details after calling a constitutional convention, Congress, acting as a legislative
body, can enact the necessary implementing legislation to fill in the gaps, which authority is
expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4.

5. The fact that a bill providing for such implementing details may be vetoed by the President is no
argument against conceding such power in Congress as a legislative body nor present any
difficulty; for it is not irremediable as Congress can override the Presidential veto or Congress can
reconvene as a Constituent Assembly and adopt a resolution prescribing the required
implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance with
proportional representation and therefore violates the Constitution and the intent of the law itself, without
pinpointing any specific provision of the Constitution with which it collides.

Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such
apportionment of delegates to the convention on the basis of population in each congressional district. Congress,
sitting as a Constituent Assembly, may constitutionally allocate one delegate for, each congressional district or for
each province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present
Constitution wanted the apportionment of delegates to the convention to be based on the number of inhabitants in
each representative district, they would have done so in so many words as they did in relation to the apportionment
of the representative districts.5

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed
therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in
Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative
districts according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a
representative district. The presumption is that the factual predicate, the latest available official population census,
for such apportionment was presented to Congress, which, accordingly employed a formula for the necessary
computation to effect the desired proportional representation.

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No. 6132,
submitted to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on the 1970
official preliminary population census taken by the Bureau of Census and Statistics from May 6 to June 30, 1976;
and that Congress adopted the formula to effect a reasonable apportionment of delegates. The Director of the Bureau
of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the
preliminary count of the population, we have computed the distribution of delegates to the Constitutional
Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of
distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon
your request at the session of the Senate-House Conference Committee meeting last night, we are submitting
herewith the results of the computation on the basis of the above-stated method."

Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment.6The fact that the lone and small congressional district of Batanes, may be over-represented, because
it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population very much less than several
other congressional districts, each of which is also allotted only two delegates, and therefore under-represented, vis-
a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional representation. Absolute
proportional apportionment is not required and is not possible when based on the number of inhabitants, for the
population census cannot be accurate nor complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily death and birth. It is enough that the basis
employed is reasonable and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a
minimum of two delegates for a congressional district.

While there may be other formulas for a reasonable apportionment considering the evidence submitted to Congress
by the Bureau of Census and Statistics, we are not prepared to rule that the computation formula adopted by,
Congress for proportional representation as, directed in Res. No. 4 is unreasonable and that the apportionment
provided in R.A. No. 6132 does not constitute a substantially proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as unconstitutional,
granted more representatives to a province with less population than the provinces with more inhabitants. Such is
not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is
equal to the number of delegates accorded other provinces with more population. The present petitions therefore do
not present facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec, supra.

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

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due process of law
and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from running "for any
public office in any election" or from assuming "any appointive office or position in any branch of the government
government until after the final adjournment of the Constitutional Convention."

That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our constitutional
system. The State through its Constitution or legislative body, can create an office and define the qualifications and
disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with
qualifications and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed
to a public office. The obvious reason for the questioned inhibition, is to immunize the delegates from the perverting
influence of self-interest, party interest or vested interest and to insure that he dedicates all his time to performing
solely in the interest of the nation his high and well nigh sacred function of formulating the supreme law of the land,
which may endure for generations and which cannot easily be changed like an ordinary statute. With the
disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for concessions
in the form of an elective or appointive office as long as the convention has not finally adjourned. The appointing
authority may, by his appointing power, entice votes for his own proposals. Not love for self, but love for country
must always motivate his actuations as delegate; otherwise the several provisions of the new Constitution may only
satisfy individual or special interests, subversive of the welfare of the general citizenry. It should be stressed that the
disqualification is not permanent but only temporary only to continue until the final adjournment of the convention
which may not extend beyond one year. The convention that framed the present Constitution finished its task in
approximately seven months — from July 30, 1934 to February 8, 1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a
member of Congress, during the time for which he was elected, from being appointed to any civil office which may
have been created or the emolument whereof shall have been increased while he was a member of the Congress.
(Sec. 16, Art. VI, Phil. Constitution.)

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

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to public
office pursuant to state police power as it is reasonable and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is
based on a substantial distinction which makes for real differences, is germane to the purposes of the law, and
applies to all members of the same class.7 The function of a delegate is more far-reaching and its effect more
enduring than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of
the land which delineates the essential nature of the government, its basic organization and powers, defines the
liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be
changed in one or two years. No other public officer possesses such a power, not even the members of Congress
unless they themselves, propose constitutional amendments when acting as a Constituent Assembly pursuant to Art.
XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the
community.

As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the proposed
amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed,
corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will be elected on the second Tuesday
of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional guarantees
of due process, equal protection of the laws, freedom of expressions, freedom of assembly and freedom of
association.

This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free
expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the
pervasive and dormant police power of the State and may be lawfully abridged to serve appropriate and important
public interests.8

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine whether a statute
which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise of police power. 9

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or


(b) allowing himself to be represented as being a candidate of any political party
or any other organization; and

2. any political party, political group, political committee, civic, religious, professional or other
organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the filing of his
certificate, or

(b) from giving aid or support directly or indirectly, material or otherwise,


favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is
confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The very
Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of the members of his family within
the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more than one for every
ten precincts in his district. It allows the full exercise of his freedom of expression and his right to peaceful
assembly, because he cannot be denied any permit to hold a public meeting on the pretext that the provision of said
section may or will be violated. The right of a member of any political party or association to support him or oppose
his opponent is preserved as long as such member acts individually. The very party or organization to which he may
belong or which may be in sympathy with his cause or program of reforms, is guaranteed the right to disseminate
information about, or to arouse public interest in, or to advocate for constitutional reforms, programs, policies or
constitutional proposals for amendments.

It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional rights
themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid
constitutional guarantees invoked by petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the limitation
on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not too
formidable in character. According to the act: "It shall be unlawful for any political party, political
committee, or political group to nominate candidates for any elective public office voted for at
large earlier than one hundred and fifty days immediately preceding an election, and for any other
elective public office earlier than ninety days immediately preceding an election.

The right of association is affected. Political parties have less freedom as to the time during which
they may nominate candidates; the curtailment is not such, however, as to render meaningless such
a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is
there infringement of their freedom to assemble. They can do so, but not for such a purpose. We
sustain its validity. We do so unanimously. 10

In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election campaign
or partisan political activity may be limited without offending the aforementioned constitutional guarantees as the
same is designed also to prevent a "clear and present danger of a substantive evil, the debasement of the electoral
process." 11

Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other group of
persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any
candidate or party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or
indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative declaration that its enactment was in response to a
serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence,
and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the reality of
the situation." 12;

Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to muster
the required eight votes to declare as unconstitutional the limitation on the period for (a) making speeches,
announcements or commentaries or holding interviews for or against the election of any party or candidate for
public office; (b) publishing or distributing campaign literature or materials; and (e) directly or indirectly soliciting
votes and/or undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B,
pars. (c), (d) & (e) of R.A. 4880. 13

The debasement of the electoral process as a substantive evil exists today and is one of the major compelling
interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to
justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative concern
to cleanse, and if possible, render spotless, the electoral process," 14 impressed as it was by the explanation made by
the author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were
deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear
and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty
and corruption as well as violence that of late has marred election campaigns and partisan political activities in this
country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an
admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the
cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded." 15

But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator
Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the
Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal
protection of the laws by according them equality of chances. 16 The primary purpose of the prohibition then is also
to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or organizations.
Senator Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance
as against the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it
is on empirical logic, finds support in our recent political history and experience. Both Senators stressed that the
independent candidate who wins in the election against a candidate of the major political parties, is a rare
phenomenon in this country and the victory of an independent candidate mainly rests on his ability to match the
resources, financial and otherwise, of the political parties or organizations supporting his opponent. This position is
further strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution,
includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by
Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is equally true that Congress in the
exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies
of the times. One such act is the party or organization support proscribed in Sec. 8(a),which ban is a valid limitation
on the freedom of association as well as expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization
support." 18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a
hopeful endeavor to find a solution to the grave economic, social and political problems besetting
the country. Instead of directly proposing the amendments Congress has chosen to call a
Constitutional Convention which shall have the task of fashioning a document that shall embody
the aspirations and ideals of the people. Because what is to be amended is the fundamental law of
the land, it is indispensable that the Constitutional Convention be composed of delegates truly
representative of the people's will. Public welfare demands that the delegates should speak for the
entire nation, and their voices be not those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious, political, civic or professional in character.
Senator Pelaez, Chairman of the Senate Committee on Codes and Constitutional Amendments,
eloquently stated that "the function of a constitution is not to represent anyone in interest or set of
interests, not to favor one group at the expense or disadvantage of the candidates — but to
encompass all the interests that exist within our society and to blend them into one harmonious
and balanced whole. For the constitutional system means, not the predominance of interests, but
the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it is
necessary that the delegatee thereto be independent, beholden to no one but to God, country and
conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of delegates who, because
they have been chosen with the aid and resources of organizations, cannot be expected to be
sufficiently representative of the people. Such delegates could very well be the spokesmen of
narrow political, religious or economic interest and not of the great majority of the people. 20

We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in par. I
of Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it confer undue
favor or privilege on an individual as heretofore stated. The discrimination applies to all organizations, whether
political parties or social, civic, religious, or professional associations. The ban is germane to the objectives of the
law, which are to avert the debasement of the electoral process, and to attain real equality of chances among
individual candidates and thereby make real the guarantee of equal protection of the laws.

The political parties and the other organized groups have built-in advantages because of their machinery and other
facilities, which, the individual candidate who is without any organization support, does not have. The fact that the
other civic of religious organizations cannot have a campaign machinery as efficient as that of a political party, does
not vary the situation; because it still has that much built-in advantage as against the individual candidate without
similar support. Moreover, these civic religious and professional organization may band together to support common
candidates, who advocates the reforms that these organizations champion and believe are imperative. This is
admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as
Annex "D", wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to
support petitioner Gonzales and two others as their candidates for the convention, which organized support is
nullified by the questioned ban, Senator Ganzon stressed that "without the group moving and working in joint
collective effort" they cannot "exercise effective control and supervision over our
leaders — the Women's League, the area commanders, etc."; but with their joining with the LP's they "could have
presented a solid front with very bright chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that they should be exempted from the
ban; because then by such exemption they would be free to utilize the facilities of the campaign machineries which
they are denying to the political parties. Whenever all organization engages in a political activity, as in this
campaign for election of delegates to the Constitutional Convention, to that extent it partakes of the nature of a
political organization. This, despite the fact that the Constitution and by laws of such civic, religious, or professional
associations usually prohibit the association from engaging in partisan political activity or supporting any candidate
for an elective office. Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with others or join any existing
organization. A person may run independently on his own merits without need of catering to a political party or any
other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any
political party or organized group, must be afforded equal chances. As emphasized by Senators Tolentino and
Salonga, this ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as nobility
of purpose, so that the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the invalidation of par. 1 of Sec.
8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil liberties
enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban transcends the
limits of constitutional invasion of such cherished immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a),
paragraph 1, thereof, cannot be declared unconstitutional. Without costs.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,


vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents.

G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.

No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, C.J.:

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.

Petitioner therein prays for judgment:

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act
that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint
Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the
Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from
passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and

2) declaring said Act unconstitutional and void.

The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the
following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the
Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120,
as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as
nearly as may be according to the number of their respective inhabitants, although each province shall have, at least,
one (1) member;

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed
of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on
the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize
Senators and members of the House of Representatives to become delegates to the aforementioned constitutional
convention, without forfeiting their respective seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic
Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1
and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor
General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine
Constitution Association — hereinafter referred to as the PHILCONSA — were allowed to argue as amici curiae.
Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred
until after a substantially identical case brought by said organization before the Commission on Elections, 1 which
was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court — had
been submitted thereto for final determination, for a joint decision on the identical issues raised in both cases. In
fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review
by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases
were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the
memorandum of the petitioner and the reply memorandum of respondent in L-28224.

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to
have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated.
Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the
ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear
to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a
judicial determination of the merits of the issued raised in said case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of
the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of
law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source. Despite
his aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General maintains that this Court
has no jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely political" as held
in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and
filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to
said petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought in the petition, or
to pass upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would,
in effect, render in operational the legislative department; and c) that "the failure of Congress to enact a valid
reapportionment law . . . does not have the legal effect of rendering illegal the House of Representatives elected
thereafter, nor of rendering its acts null and void."

JURISDICTION

As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units thereof." It is true that
in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass
upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9In
the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators
belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for
the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that
the apportionment had not been made as may be possible according to the number of inhabitants of each province.
Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions
the determination of which is beyond judicial review.

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

Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive
their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or
not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme
Court,14 the power to declare a treaty unconstitutional,15 despite the eminently political character of treaty-making
power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the
Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this
view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.

THE MERITS

Section 1 of Article XV of the Constitution, as amended, reads:

The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments are submitted to the people for their
ratification.

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

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all
the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged
that said resolutions are null and void because:

1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a
convention to propose amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose — amendments or call a convention therefore but may
not avail of both — that is to say, propose amendment and call a convention — at the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must be
a special election, not a general election, in which officers of the national and local governments — such as the
elections scheduled to be held on November 14, 1967 — will be chosen; and

4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to
the people for ratification, must be held under such conditions — which, allegedly, do not exist — as to give the
people a reasonable opportunity to have a fair grasp of the nature and implications of said amendments.

Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and twenty Members who
shall be apportioned among the several provinces as nearly as may be according to the number of their
respective inhabitants, but each province shall have at least one Member. The Congress shall by law make
an apportionment within three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the same number of
Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors
from the present Assembly districts. Each representative district shall comprise, as far as practicable,
contiguous and compact territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within
three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that
Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and
that, consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No.
4913, are null and void.

It is not true, however, that Congress has not made an apportionment within three years after the enumeration or
census made in 1960. It did actually pass a bill, which became Republic Act No. 3040,17 purporting to make said
apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines.18

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

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as
required in said fundamental law. The effect of this omission has been envisioned in the Constitution, pursuant to
which:

. . . Until such apportionment shall have been made, the House of Representatives shall have the same
number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified
electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the period to make the apportionment, a
Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress
shall continue to function with the representative districts existing at the time of the expiration of said period.

It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an
apportionment had to be made necessarily before the first elections to be held after the inauguration of the
Commonwealth of the Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there had been no
enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the
Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration,
would expire after the elections in 1938.

What is more, considering that several provisions of the Constitution, particularly those on the legislative
department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted said
amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the
districts for representatives, must have known that the three-year period therefor would expire after the elections
scheduled to be held and actually held in 1941.

Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the
amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the
failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.

Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on
November 30, 1960, it follows that the three-year period to make the apportionment did not expire until 1963, or
after the Presidential elections in 1961. There can be no question, therefore, that the Senate and the House of
Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof
were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or
late in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became
illegal holder of their respective offices, and were de facto officers.

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

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

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the Justices
of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the
enforcement of which is, not only their mandatory duty, but also, their main function. This provision indicates that,
despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal
or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short,
the loss of office or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not
follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the
existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an
office created by a valid statute be, likewise, deemed valid insofar as the public — as distinguished from the officer
in question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to the positions they hold, before dealing with
them, or before recognizing their authority or obeying their commands, even if they should act within the limits of
the authority vested in their respective offices, positions or employments. 22 One can imagine this great
inconvenience, hardships and evils that would result in the absence of the de facto doctrine.

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except
directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is
merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the
office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is
concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been
completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent with Tayko vs.
Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano objected to his continuing
to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the
objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed
collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was one
of the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the case,
much less rendered decision therein. No rights had vested in favor of the parties, in consequence of the acts of said
Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards
the Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing else to do in
connection therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the Constitution
or call a convention for that purpose, but it can not do both, at the same time. This theory is based upon the fact that
the two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak
one, in the absence of other circumstances — and none has brought to our attention — supporting the conclusion
drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the
spirit or context of the law warrants it.26

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress,
to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention
in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of
R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H.
Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they
were taken up and put to a vote separately, or one after the other. In other words, they were not passed at the same
time.

In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the
authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in,
different sessions or different days of the same congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the
whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be
submitted for ratification before said convention is held? The force of this argument must be conceded. but the same
impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof to
permit Members of Congress to run for election as delegates to the constitutional convention and participate in the
proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political
question, not subject to review by the courts of justice.

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate
and of the House of Representatives voting separately, may propose amendments to this Constitution or
call a contention for that purpose. Such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are submitted to the people
for their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general,
election. The circumstance that three previous amendments to the Constitution had been submitted to the people for
ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be
submitted to the people's approval independently of the election of public officials. And there is no denying the fact
that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the
great attention usually commanded by the choice of personalities involved in general elections, particularly when
provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of
holding a plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to
choose either alternative, as implied in the term "election" used, without qualification, in the abovequoted provision
of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election,"
normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used
in Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be
construed as meaning a special election. Some members of the Court even feel that said term ("election") refers to a
"plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments
are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention
of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more
than their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at
least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to
affect the selection of elective officials.

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal
conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for
amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in
this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading
into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof,
since the spirit of the law should not be a matter of sheer speculation.

The majority view — although the votes in favor thereof are insufficient to declare Republic Act No. 4913
unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution?

It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967,
our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again,
Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days
prior to the election;"

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

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for
examination by the qualified electors during election day;"

(4) that "when practicable, copies in the principal native languages, as may be determined by the Commission on
Elections, shall be kept in each polling place;"

(5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free distributing:" and

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on
November 14, 1967.

We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional
requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures
are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendment sought to be
made.

These were substantially the same means availed of to inform the people of the subject submitted to them for
ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original
Constitution, Section 1 of Act No. 4200, provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in
English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed
copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in
each municipal and provincial government office building and in each polling place not later than the
twenty-second day of April, nineteen hundred and thirty-five, and shall remain posted therein continually
until after the termination of the election. At least ten copies of the Constitution with the Ordinance
appended thereto, in English and in Spanish, shall be kept at each polling place available for examination
by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as
may be determined by the Secretary of the Interior shall also be kept in each polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in
a conspicuous place in each municipal and provincial office building and in each polling place not later
than the twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually
until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in
English and in Spanish, shall be kept at each polling place available for examination by the qualified
electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be
determined by the Secretary of the Interior, shall also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:

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

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

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

The main difference between the present situation and that obtaining in connection with the former proposals does
not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties
had taken sides on previous amendments to the Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political
parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained
from discussing the same in the current political campaign. Such debates or polemics as may have taken place — on
a rather limited scale — on the latest proposals for amendment, have been due principally to the initiative of a few
civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation
cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently.
Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the
enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a
constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends — in
the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority —
upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main
idea or the substance of said proposals, which is — under R. B. H. No. 1 — the increase of the maximum number of
seats in the House of Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to the
members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the
duties of such delegates, without forfeiting their seats in Congress. We — who constitute the minority — believe
that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum of representative
districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable,
however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in
their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may
enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the
copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots
they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No.
3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell
such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long
as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they
should run for and assume the functions of delegates to the Convention.

We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but,
we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and
3, not the authority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress
transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions
under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof
in enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the
subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement.
Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said
Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3
unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs
therein prayed for denied, without special pronouncement as to costs. It is so ordered.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

ARTURO M. TOLENTINO, petitioner,


vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B.
FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V.
BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a
plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in
Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for ratification
by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of law in so far as they
direct the holding of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and void, for being
violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that copies
thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action
as they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner.
To further put things in proper order, and considering that the fiscal officers of the Convention are indispensable
parties in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds
appropriated by law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and
Auditor of the Convention be made respondents. After the petition was so amended, the first appeared thru Senator
Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist
petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and
considering that with the principal parties being duly represented by able counsel, their interests would be
adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the
Convention who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo
Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all interests involved
should be duly and amply represented and protected. At any rate, notwithstanding that their corresponding motions
for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates
and some private parties, the latter in representation of their minor children allegedly to be affected by the result of
this case with the records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two
resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the
purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint
sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention
were all elected under and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132.
The pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to the Constitution of


the Philippines, to be composed of two elective Delegates from each representative district who
shall have the same qualifications as those required of Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and considered part of
the Constitution when approved by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed
originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1,
1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as
its first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more
accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1
reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF


THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18

BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:

Section 1. Section One of Article V of the Constitution of the Philippines is amended to as


follows:

Section 1. Suffrage may be exercised by (male) citizens of the Philippines not


otherwise disqualified by law, who are (twenty-one) EIGHTEEN years or over
and are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six
months preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of the Philippines when
approved by a majority of the votes cast in a plebiscite to coincide with the local elections in
November 1971.

Section 3. This partial amendment, which refers only to the age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the future by the
1971 Constitutional Convention on other portions of the amended Section or on other portions of
the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or
from its unexpended funds for the expense of the advanced plebiscite; provided, however that
should there be no savings or unexpended sums, the Delegates waive P250.00 each or the
equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help the
Convention implement (the above) resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention implement
this resolution:

Sincerely,

(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the
plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official ballots, election
returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the printing and
shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time so that they
could be distributed at the same time that the Commission will distribute its official and sample
ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the genesis of
the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee to implement
the Resolution.

This Committee issued implementing guidelines which were approved by the President who then
transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the implementation
of the plebiscite in the afternoon of October 7,1971, enclosing copies of the order, resolution and
letters of transmittal above referred to (Copy of the report is hereto attached as Annex 8-
Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a resolution
authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention
from November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President of the Convention to implement Organic
Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in
connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they
provide for the holding of a plebiscite co-incident with the elections of eight senators and all city, provincial and
municipal officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to
carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling
and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative
body, and may not be exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the
proposed amendment in question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand, respondents and intervenors
posit that the power to provide for, fix the date and lay down the details of the plebiscite for the ratification of any
amendment the Convention may deem proper to propose is within the authority of the Convention as a necessary
consequence and part of its power to propose amendments and that this power includes that of submitting such
amendments either individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and spirit of the
Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue
before Us is a political question and that the Convention being legislative body of the highest order is sovereign, and
as such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it
is to be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales
v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the
other matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished
counsel have either failed to grasp the full impact of the portions of Our decision they have quoted or would
misapply them by taking them out of context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of proposing amendments to the Constitution, which concededly is
at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon by intervenors
should dispel any lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice
Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking through
one of the leading members of the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted
thereto as a political one declined to pass upon the question whether or not a given number of
votes cast in Congress in favor of a proposed amendment to the Constitution — which was being
submitted to the people for ratification — satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14,
1949), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-
18684, Sept. 14, 1961). In the first we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate President, as claimed by
the latter; in the second, this Court proceeded to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party
having the largest number of votes in said chamber, purporting to act, on behalf of the party
having the second largest number of votes therein of two (2) Senators belonging to the first party,
as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representatives districts for the
House of Representatives, upon the ground that the apportionment had not been made as may be
possible according to the number of inhabitants of each province. Thus we rejected the theory,
advanced in these four (4) cases that the issues therein raised were political questions the
determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the
Philippines). It is part of the inherent powers of the people — as the repository sovereignty in a
republican state, such as ours (Section 1, Art. 11, Constitution of the Philippines) — to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as component
elements of a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same function, (Of
amending the Constitution) for their authority does not emanate from the Constitution — they
are the very source of all powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members
of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do
not have the final say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours
is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is
stressed by the fact that the Constitution expressly confers upon the Supreme Court, (And,
inferentially, to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII
of the Constitution), despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly —
violates the Constitution is essentially justiciable not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v.
Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the Court
are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere
in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents
and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of
liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas
of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the
fact that the current convention came into being only because it was called by a resolution of a joint session of
Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which
provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for the purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond the
control of any department of the existing government, but the compass of such powers can be co-extensive only with
the purpose for which the convention was called and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its
officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force
and effect in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and operates
even within the walls of that assembly. While it is indubitable that in its internal operation and the performance of its
task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other
authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can
rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country
the equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking
of private property without just compensation or for the imposition or exacting of any tax, impost or assessment, or
declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a
convict or render judgment in a controversy between private individuals or between such individuals and the state,
in violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise,
in the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a
citizen as being among those not granted to or inherent in it, according to the existing Constitution, who can decide
whether such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the
Power and duty to resolve such a grave constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice
Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and wealth
of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63
Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a system of
check and balances and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of sentiment and the principles of good
government mere political apothegms. Certainly the limitations and restrictions embodied in our
Constitution are real as they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this moderating power
of the courts, not to speak of its historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and half centuries. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of Article VIII of our
Constitution.

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

But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is
not "the chief palladium of constitutional liberty ... the people who are authors of this blessing
must also be its guardians ... their eyes must be ever ready to mark, their voices to pronounce ...
aggression on the authority of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in the crucible of Filipino
minds and hearts than in consultation rooms and court chambers.

In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the
filing of protests against the election, returns and qualifications of members of the National
Assembly; notwithstanding the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect
of cutting off the power of the Electoral Commission to entertain protests against the election,
returns and qualifications of members of the National Assembly, submitted after December 3,
1935 then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage
and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole
power of regulating its proceedings to the exclusion of the National Assembly, then the resolution
of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing
protests against the election, returns and qualifications of members of the National Assembly,
should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave


constitutional nature between the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the judicial department is
thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission as we shall have occasion to refer hereafter,
is a constitutional organ, created for a specific purpose, namely, to determine all contests relating
to the election, returns and qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while acting within the limits of its
authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by
the people and that it is not subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting claims of authority under
the fundamental law between departmental powers and agencies of the government are necessarily
determined by the judiciary in justiciable and appropriate cases. Discarding the English type and
other European types of constitutional government, the framers of our Constitution adopted the
American type where the written constitution is interpreted and given effect by the judicial
department. In some countries which have declined to follow the American example, provisions
have been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule
that in the absence of direct prohibition, courts are bound to assume what is logically their
function. For instance, the Constitution of Poland of 1921 expressly provides that courts shall have
no power to examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution
contained a similar declaration. In countries whose constitution are silent in this respect, courts
have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslavak,
Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of
1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In
our case, the nature of the present controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies created by the Constitution. Were we
to decline to take cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire framework? To ask
these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason, and authority, we are clearly of the opinion that
upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of the
National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do
not apply only to conflicts of authority between the three existing regular departments of the government but to all
such conflicts between and among these departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the Constituent
assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever,
and none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling should
not apply to the present Convention, even if it is an assembly of delegate elected directly by the people, since at best,
as already demonstrated, it has been convened by authority of and under the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes
without saying that We do this not because the Court is superior to the Convention or that the Convention is subject
to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and
the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is
the solemn duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents
and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of
the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the Convention?

At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal statement
of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not against the
constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or
sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to prevent that
the proposed amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the Constitution of the
Philippines even if it is committed in the course of or in connection with the most laudable undertaking. Indeed, as
the Court sees it, the specific question raised in this case is limited solely and only to the point of whether or not it is
within the power of the Convention to call for a plebiscite for the ratification by the people of the constitutional
amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form provided in said
resolution as well as in the subject question implementing actions and resolution of the Convention and its officers,
at this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is not set to
adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms or amendments affecting
other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides, that the
amendment therein proposed "shall be without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may say or do, in this case should be understood as reflecting,
in any degree or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us now.
There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will not
hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or
rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to
the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of
adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other
line of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was
born, in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various
elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental institutions, including
the provisions of the fundamental law related to the well-being and economic security of the underprivileged classes
of our people as well as those concerning the preservation and protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the
excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets,
plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and
disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit of
what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It
would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in
deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments
of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give
meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the
proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved to
discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of
being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to
put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision,
Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part
of it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of things, as they
see it, can limit the extent of the constitutional innovations the Convention may propose, hence the complete
substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be
to resolve, this grave divergence of views, the Court does not consider this case to be properly the one in which it
should discharge its constitutional duty in such premises. The issues raised by petitioner, even those among them in
which respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court
do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to
be of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its
constitutionally as signed mission in the manner and form it may conceive best, and so the Court may step in to clear
up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it would
be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter.
Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of
respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly,
the Constitutional Convention stands almost in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by
a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in
this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it
is plain to Us that the framers of the Constitution took care that the process of amending the same should not be
undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution
affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country
and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy
of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is
obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it that their
handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more
importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that
they may ignore and disregard such conditions because they are as powerful and omnipotent as their original
counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and
extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the
issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite
for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may
be exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with
the Congress. In the view the Court takes of present case, it does not perceive absolute necessity to resolve that
question, grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the
members of the Court in respect to this issue creates the need for more study and deliberation, and as time is of the
essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is
calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this question until
a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article XV of
the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all
the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution,
hence all acts of the Convention and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either
Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose.
The same provision also as definitely provides that "such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are submitted to the people
for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify
any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the
provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As already
stated, amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed,
any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be an
integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the
one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights,
liberties, ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. lt
is inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its
other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and they can
either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and determine
for themselves from a study of the whole document the merits and demerits of all or any of its parts and of the
document as a whole. And so also, when an amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed amendment in relation to the whole
existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section 3
of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally
will be concomitant qualifications that will be required by the final draft of the constitution to be formulated by the
Convention of a voter to be able to enjoy the right of suffrage, there are other considerations which make it
impossible to vote intelligently on the proposed amendment, although it may already be observed that under Section
3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication whether they
will ever be or not, because Congress has reserved those for future action, what kind of judgment can he render on
the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the
constitution the Convention will be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the
Convention may decide to provide for varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of
introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently
determine the effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of
the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to
form a harmonious whole. In the context of the present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to
the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people
are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating that the
sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be,
in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".
III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less
does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But like
the Convention, the Court has its own duties to the people under the Constitution which is to decide in appropriate
cases with appropriate parties Whether or not the mandates of the fundamental law are being complied with. In the
best light God has given Us, we are of the conviction that in providing for the questioned plebiscite before it has
finished, and separately from, the whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate the condition in
Section 1, Article XV that there should only be one "election" or plebiscite for the ratification of all the amendments
the Convention may propose. We are not denying any right of the people to vote on the proposed amendment; We
are only holding that under Section 1, Article XV of the Constitution, the same should be submitted to them not
separately from but together with all the other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they
provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec
complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents Comelec,
Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking
any action in compliance with the said organic resolution. In view of the peculiar circumstances of this case, the
Court declares this decision immediately executory. No costs.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,


vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER,
THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.


DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged constitutional
infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former
delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The
rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the
Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm
of novelty – but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to
the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was
done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional
form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13
respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the
part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners
and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of
the oral argument, the cases were deemed submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive
portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the
vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and
effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to
clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into force and
effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that
what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was
removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It
is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a positive
and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme
Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate
branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be
stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning
of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The
latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the
effectivity of the present Constitution, at least ten cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it
may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of
votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated
earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the
1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have
the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National Assembly and the Members
thereof." 14One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory
Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on
Amendments. 15When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister
Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its authority to do so is clearly
beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be
observed parenthetically that as far as petitioner Occena is Concerned, the question of the authority of
the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed
by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed
upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed
amendment of Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court
and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement
provided in the 1935 Constitution and has been intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment." 17

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

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper
submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the
Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent
body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible
proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has
been convened as the agency through which amendments could be proposed. That is not a requirement as far as a
constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang
Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the
requirement of three- fourth votes applies, such extraordinary majority was obtained. It is not disputed that
Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign
country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No.
2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5
with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote
of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper
submission, the question may be viewed not only from the standpoint of the period that must elapse before the
holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the
people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As
to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the
applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment
or revision." 21 The three resolutions were approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7,
1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to the contrary is
unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980
Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the
judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said that our people are unaware of
the advantages and disadvantages of the proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in
their capacities as founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),


MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court
is the right of the people to directly propose amendments to the Constitution through the system of initiative under
Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the
1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the main
sponsor2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as
"innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing
amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths
of all its members and (2) by a constitutional convention. 4 For this and the other reasons hereafter discussed, we
resolved to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials,
by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the
1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at the time and on the dates designated for the
purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of
citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the
Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution
granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No.
2300, signature stations shall be established all over the country, with the assistance of municipal election registrars,
who shall verify the signatures affixed by individual signatories; that before the Movement and other volunteers can
gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to
be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published
in newspapers of general and local circulation, under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article
VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution. Attached to the petition is a copy of a
"Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in the
deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT


OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at
least twelve per cent of the total number of registered voters in the country it will be formally filed with the
COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition,
together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general
circulation at his own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December
1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q.
Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-
oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to
Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria
Isabel Ongpin — filed this special civil action for prohibition raising the following arguments:

(1) The constitutional provision on people's initiative to amend the Constitution can only be
implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill
No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by People's
Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before
the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on
initiative on the Constitution, unlike in the other modes of initiative, which are specifically
provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of
people's initiative to amend the Constitution was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in
1994: "There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been obviously left to a
separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media.
This indicates that the Act covers only laws and not constitutional amendments because the latter
take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws, is ultra
vires insofar as initiative on amendments to the Constitution is concerned, since the COMELEC
has no power to provide rules and regulations for the exercise of the right of initiative to amend
the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not to revision thereof.
Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the
people's initiative.

(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC
nor any other government department, agency, or office has realigned funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the
COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the
national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions
of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a
taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary
course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible
period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing
until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private
respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to amend the
Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They argue
therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL


TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST
PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF


THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT
DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE
DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS
IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991


PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT
SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL
AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A


PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES
OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE


OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an
assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . .
which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory
Petition," which was legally necessary to start the signature campaign to amend the Constitution or to put the
movement to gather signatures under COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the
conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative
is not fatal, since subtitles are not requirements for the validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to
amend the Constitution approved by the majority of the votes cast in the plebiscite shall become
effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2,
Article IX-C of the Constitution, which grants the COMELEC the power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or more
specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire
document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as
unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor
General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2
on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3,
which enumerates the three systems of initiative, includes initiative on the Constitution and
defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5
repeatedly mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because,
being national in scope, that system of initiative is deemed included in the subtitle on National
Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the
law when he claimed that nothing therein was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not
deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution,
not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and
under the Omnibus Election Code. The rule-making power of the COMELEC to implement the
provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority
vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents
Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for
Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not
later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was
their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend
that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political
philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the
change might appear to be an isolated one, it can affect other provisions, such as, on
synchronization of elections and on the State policy of guaranteeing equal access to opportunities
for public service and prohibiting political dynasties. 19 A revision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is
limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other national
and local elective officials are based on the philosophy of governance, "to open up the political
arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the
concentration of political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the common good";
hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-
interest situation. Initiative is intended as a fallback position that may be availed of by the people
only if they are dissatisfied with the performance of their elective officials, but not as a premium
for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a) the proper
parties who may file the petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of
gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper
parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC
in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for
such people's initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution
No. 2300, since the COMELEC is without authority to legislate the procedure for a
people's initiative under Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the
Resolution, as the former does not set a sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in


Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-
authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC
was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to
order its publication because the said petition is not the initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of
registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority
and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's
role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the
following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the
1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the
initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required
number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by
Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and
MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended
Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the
aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible
period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court
formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum
and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to
the Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative on amendments to the Constitution
is valid, considering the absence in the law of specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft
"Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment
to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing
municipal election officers to assist Delfin's movement and volunteers in establishing signature
stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition
for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a
pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda
within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No.
21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the
main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a
sufficient cause of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion
amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes
on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6
June 1989 on House Bill No. 21505 and Senate Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention
of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate
memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a
prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it
is proper for this Court to take cognizance of this special civil action when there is a pending case before the
COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent
Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and
under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In
this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental
consequences on the body politic of the questioned Comelec order. The consequent climate of
legal confusion and political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political
ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the
ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no
ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12
December 1996, it required them to submit within five days their memoranda or oppositions/memoranda. 27 Earlier,
or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause
the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of
hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the
Rules of Court, which provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition
because the said petition is not supported by the required minimum number of signatures of registered voters.
LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition,
which does not contain the required number of signatures. In light of these claims, the instant case may likewise be
treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO


THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following
the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending
the Constitution is a mode of amendment which bypasses congressional action, in the last analysis
it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress provides
for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its
Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or


(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the
Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call


attention of the Members of the Commission that pursuant to the mandate given
to us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This
is now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10


percent, there are no details in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?

MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until
after five years from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise of this initiative
power would be after five years. It is reasonably expected that within that five-
year period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details on how
this is to be carried out — is it possible that, in effect, what will be presented to
the people for ratification is the work of the legislature rather than of the people?
Does this provision exclude that possibility?

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

xxx xxx xxx

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

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

MS. AQUINO. I fully concur with the underlying precept of the proposal in
terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of difficulties
in terms of accepting the draft of Section 2, as written. Would the sponsor agree
with me that in the hierarchy of legal mandate, constituent power has primacy
over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of
legal values, the Constitution is source of all legal mandates and that therefore
we require a great deal of circumspection in the drafting and in the amendments
of the Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent


power we have a separate article in the constitution that would specifically cover
the process and the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of
determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover all the conceivable
situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND —
not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this
year, has to be separated from the traditional modes of amending the
Constitution as embodied in Section 1. The committee members felt that this
system of initiative should not extend to the revision of the entire Constitution,
so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34

xxx xxx xxx


MS. AQUINO. In which case, I am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of realigning Section
2 as another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?

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


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

MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would
only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr.,
which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed amendment


after taking into account the modifications submitted by the sponsor himself and
the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes
and Romulo. The modified amendment in substitution of the proposed Section 2
will now read as follows: "SECTION 2. — AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE


IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is


reflective of the sense contained in Section 2 of our completed Committee
Report No. 7, we accept the proposed amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a
legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for


the legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the


implementation of this particular right would be subject to legislation, provided
the legislature cannot determine anymore the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I
have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS
to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed


amendment on line 1 refers to "amendment." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be
more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a Constitution would
ordinarily require a proposal by the National Assembly by a vote of three-
fourths; and to call a constitutional convention would require a higher number.
Moreover, just to submit the issue of calling a constitutional convention, a
majority of the National Assembly is required, the import being that the process
of amendment must be made more rigorous and difficult than probably initiating
an ordinary legislation or putting an end to a law proposed by the National
Assembly by way of a referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it would require another
voting by the Committee, and the voting as precisely based on a requirement of
10 percent. Perhaps, I might present such a proposal, by way of an amendment,
when the Commission shall take up the Article on the Legislative or on the
National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the
Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as


follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON
A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL
NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT
OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE


FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986. 41Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again
approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent"
to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This
amendment was approved and is the text of the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article
XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the
affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage
of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional
Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried
out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared
by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House
Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject
matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely
dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral
Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is
now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of
the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative
on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution,
laws, ordinances, or resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane
nor relevant to said section, which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As
pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are
not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill
No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the
phrases "propose and enact," "approve or reject" and "in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in
the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the
Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents
of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution.
Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;


c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition. (Emphasis supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed"
only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative
and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as
to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle
on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative
and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification
is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what
is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative"
if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of
the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:

Sec. 3. Definition of terms —

xxx xxx xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

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

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

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast
in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election
called for the purpose shall become effective fifteen (15) days after certification and proclamation
of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local
governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may
file a petition for indirect initiative with the House of Representatives, and other legislative
bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency
or insufficiency of the petition for initiative or referendum, which could be petitions for both national and
local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is
misplaced, 54 since the provision therein applies to both national and local initiative and referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts
from declaring null and void any proposition approved pursuant to this Act for violation of the
Constitution or want of capacity of the local legislative body to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special attention,
it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the
Philippines; and

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

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

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

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

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative
as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;


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

(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as
to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their
approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three
sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and
includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process
by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates
the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date
of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No.
6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely
paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata
non delegari potest. 59 The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and
regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible
delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in
itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard — the limits of which are sufficiently determinate and determinable — to which the delegate must conform
in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits,
maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to
satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS


ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise
of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does
not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C
of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN


ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement
the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction
or with grave abuse of discretion in entertaining the Delfin Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on
the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative
district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures
of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose
of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the
petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of
signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of
voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it
cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that
the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under
Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was
merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which
should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order
directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted
without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective
national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not
academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept
in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation of the right of the people under that
system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and
to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.
EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED


VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

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

ALTERNATIVE LAW GROUPS, INC., Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN
T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

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

ATTY. PETE QUIRINO QUADRA, Intervenor.

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

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel
Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL
BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus,
GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by
Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of
Health Action for Human Rights,Intervenors.

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

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL,Intervenors.

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

ARTURO M. DE CASTRO, Intervenor.

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

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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

LUWALHATI RICASA ANTONINO, Intervenor.


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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.


TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO
P. AGUAS, and AMADO GAT INCIONG, Intervenors.

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

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

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

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.


VICTORINO F. BALAIS, Intervenors.

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

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

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

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.

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

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE


CHAPTERS, Intervenors.

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

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA
III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.

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

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

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

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter Doe,, Respondent.
DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections
("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino
Group"), with other groups1 and individuals, commenced gathering signatures for an initiative petition to change the
1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite
that will ratify their initiative petition under Section 5(b) and (c) 2 and Section 73 of Republic Act No. 6735 or the
Initiative and Referendum Act ("RA 6735").

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least
twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per
centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had
verified the signatures of the 6.3 million individuals.

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI
(Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII
entitled "Transitory Provisions." 6 These proposed changes will shift the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their
petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987


CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
ONE SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in
the proposed Article XVIII (Transitory Provisions) of their initiative. 7

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for
lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this
Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside
the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative
petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due
course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims
that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will
of the sovereign people."

In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners
to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for
"entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the
Binay Group's petition as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the
Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735
and its implementing rules "as temporary devises to implement the system of initiative."

Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's
petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of
discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to
file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters supporting an initiative petition under
Section 2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not mere
amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's
compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties'
memoranda, the Court considered the case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on
amendments to the Constitution through a people's initiative;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's
petition.

The Ruling of the Court

There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a
people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based
alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For
following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by
the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative
to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters of which
every legislative district must be represented by at least three per centum of the registered voters therein. x
x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly
proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional
amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people
when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign.
Now, who prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are
asked whether or not they want to propose this constitutional amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for
signature.13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment"
should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that
"before they sign there is already a draft shown to them." The framers also "envisioned" that the people should
sign on the proposal itself because the proponents must "prepare that proposal and pass it around for
signature."

The essence of amendments "directly proposed by the people through initiative upon a petition" is that the
entire proposal on its face is a petition by the people. This means two essential elements must be present. First,
the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second,
as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people
who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly
proposed by the people through initiative upon a petition" only if the people sign on a petition that contains
the full text of the proposed amendments.

The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so
attached, the petition must state the fact of such attachment. This is an assurance that every one of the several
millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it
is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the
full text of the proposed amendments before signing.

The framers of the Constitution directly borrowed 14 the concept of people's initiative from the United States where
various State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the
unbending requirement is that the people must first see the full text of the proposed amendments before they
sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of
the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus,
in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court
of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the signature has not first
seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud. A person permitted to describe orally
the contents of an initiative petition to a potential signer, without the signer having actually examined the
petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly
misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the drafter of the petition,
who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are described in
similar terms. x x x (The purpose of the full text requirement is to provide sufficient information so
that registered voters can intelligently evaluate whether to sign the initiative petition."); x x x
(publication of full text of amended constitutional provision required because it is "essential for the elector
to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently,
he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the
proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers
intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text
of the proposed amendments before they sign, and that the people must sign on a petition containing such full
text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x as signatories."

The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their
private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain
the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their
proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters,
often pay those who gather the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the
signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in
gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the
proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed
as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral
arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with
this Court during the oral arguments was the signature sheet attached 21 to the opposition in intervention filed on 7
September 2006 by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's
Memorandum are the same. We reproduce below the signature sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
Verified

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO
ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING
AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO
ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of
the petition for initiative to amend the Constitution signifies my support for the filing thereof.

Precinct Name Address Birthdate Signature


Number
Last Name, First Name, M.I. MM/DD/YY
1
2
3
4
5
6
7
8
9
10

_________________ _________________ _____________


Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the
signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it.
Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006.

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of
the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the
"petition" that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2,
Article XVII of the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the
Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition
which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of
their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they
circulated both. However, Atty. Lambino changed his answer and stated that what his group circulated was the draft
of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended
petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B.
Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended
petition, filed with the COMELEC, states as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered
voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP
Resolution No. 2006-02 hereto attached, and as representative of the mass of signatories hereto.
(Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the
"Official Website of the Union of Local Authorities of the Philippines" 22 has posted the full text of Resolution No.
2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE


COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a
common stand on the approach to support the proposals of the People's Consultative Commission on
Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional
Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in
Manila Hotel sometime in October 2005;

WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to
recommend amendments to the 1987 Constitution has submitted its final report sometime in December
2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which militates
against the use of the expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend
the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional
reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to
pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-


LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP)
SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the
Century Park Hotel, Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or
the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the
porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the Consultative
Commission24 are vastly different from the proposed changes of the Lambino Group in the 25 August 2006 petition
or 30 August 2006 amended petition filed with the COMELEC.

For example, the proposed revisions of the Consultative Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on
the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino
Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI
and VII of the existing Constitution, including the introduction of new Transitory Provisions.

The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25
August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution
No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition,
together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP
Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft
petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.

In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the
Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory
Provisions were inaccurately stated and failed to correctly reflect their proposed amendments.

The Lambino Group did not allege that they were amending the petition because the amended petition was what
they had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group
alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed
amendments."

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the
COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the
Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the
draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft
petition is attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that
they circulated the "petition for initiative filed with the COMELEC," thus:

[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground that
he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327,
283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to have understood the proposition
contained in the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the
COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City
Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the
text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the
petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally
stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the
measure attached to a referendum petition cannot question his signature on the ground that he did not understand
the nature of the act." The Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change
must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the
petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached
to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were
not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris
Secundumpulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during
the signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The
Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together
with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group
circulated the amended petition during the signature-gathering period, the Lambino Group admitted
circulating only very limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft
petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked
other supporters to print additional copies of the draft petition but he could not state with certainty how many
additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of
100,000 copies because he himself caused the printing of these 100,000 copies.

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits
that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for
initiative x x x."25 This admission binds the Lambino Group and establishes beyond any doubt that the
Lambino Group failed to show the full text of the proposed changes to the great majority of the people who
signed the signature sheets.

Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of
the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy
of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each
signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets
with the attached petition, the maximum number of people who saw the petition before they signed the signature
sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the
6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion
is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If
ever, not more than one million signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the
face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner
Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This
fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include
the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the people through initiative upon
a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the
proposed changes before signing. They could not have known the nature and effect of the proposed changes, among
which are:
1. The term limits on members of the legislature will be lifted and thus members of Parliament can be
re-elected indefinitely;26

2. The interim Parliament can continue to function indefinitely until its members, who are almost all the
present members of Congress, decide to call for new parliamentary elections. Thus, the members of the
interim Parliament will determine the expiration of their own term of office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to
propose further amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The
people who signed the signature sheets had no idea that they were proposing these amendments. These three
proposed changes are highly controversial. The people could not have inferred or divined these proposed changes
merely from a reading or rereading of the contents of the signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the
signature-gathering that the elections for the regular Parliament would be held during the 2007 local
elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed
changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government officials. x x x
x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007
local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously
with the local elections without specifying the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written
the word "next" before the phrase "election of all local government officials." This would have insured that the
elections for the regular Parliament would be held in the next local elections following the ratification of the
proposed changes. However, the absence of the word "next" allows the interim Parliament to schedule the elections
for the regular Parliament simultaneously with any future local elections.

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows
incumbent members of the House of Representatives to hold office beyond their current three-year term of office,
and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is
contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the
signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the
proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to
rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the
full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to
believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.

The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The
proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The
proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall
convene to propose amendments to, or revisions of, this Constitution consistent with the principles of
local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people
should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-
Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition
incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can
answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two
propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the
unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared:

Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial
responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment
amounts to logrolling because the electorate cannot know what it is voting on - the amendment's
proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the
electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant
case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and
effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska
warned against "inadvertence, stealth and fraud" in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was
enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues
to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth
and fraud" in the enactment-by-initiative process. The drafters of an initiative operate independently of any
structured or supervised process. They often emphasize particular provisions of their proposition, while remaining
silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed,
initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers
and eventual voters. Many voters will never read the full text of the initiative before the election. More
importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These
difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken
by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have
known that their signatures would be used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or
revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007
elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or
revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim
Parliament mandated to immediately amend or revise again the Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the
Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative
proponents want the interim Parliament to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes.
Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature
and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The
proposed Section 4(3) of the Transitory Provisions states:

Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the
thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament
does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision
for the present members of the House of Representatives even if their term of office will all end on 30 June 2007,
three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain
members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers
of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010,
the Prime Minister will come only from the present members of the House of Representatives to the exclusion of the
present Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the
signature sheets could not have known that their signatures would be used to discriminate against the
Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the
interim Parliament's choice of Prime Minister only to members of the existing House of Representatives.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the
Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that
the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as
amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from
the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court
trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the
petition. However, this trust emanates from a fundamental assumption: the full text of the proposed
amendment is first shown to the people before they sign the petition, not after they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the
requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the
people through initiative upon a petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its
revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the
Constitution. Article XVII of the Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or


(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative x x x. (Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through
Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The
third mode is through a people's initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of,
this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments
to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional
Commission:

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the mandate
given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose amendments to
this Constitution thru initiative upon petition of at least ten percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested
on the theory that this matter of initiative, which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative should be limited to amendments
to the Constitution and should not extend to the revision of the entire Constitution, so we removed it
from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning
Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is
limited to the matter of amendment and should not expand into a revision which contemplates a total
overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes
(a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend,
which is given to the public, would only apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers
to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when
he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section
1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between
"amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a
constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot
propose revisions even as they are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32the
Supreme Court of California ruled:

The initiative power reserved by the people by amendment to the Constitution x x x applies only to
the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does
not purport to extend to a constitutional revision. x x x x It is thus clear that a revision of the
Constitution may be accomplished only through ratification by the people of a revised constitution
proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the
proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such
measure became law a substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33

It is well established that when a constitution specifies the manner in which it may be amended or revised,
it can be altered by those who favor amendments, revision, or other change only through the use of one of
the specified means. The constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question that it is not an
amendment as that term is generally understood and as it is used in Article IV, Section 1. The document
appears to be based in large part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses
required by Article XVII, Section 2, and hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs is,
nevertheless, a thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people
through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new
constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section
1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the
Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

It is a fundamental principle that a constitution can only be revised or amended in the manner
prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other
than the one provided in the instrument is almost invariably treated as extra-constitutional and
revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have
power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in adopting a
constitution, have prescribed the method by which the people may alter or amend it, an attempt to change
the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and
duty to insure compliance with the clear command of the Constitution ― that a people's initiative may only amend,
never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the
Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the
scope of Section 2, Article XVII of the Constitution.

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the
earliest cases that recognized the distinction described the fundamental difference in this manner:

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions
contained therein for its revision indicate the will of the people that the underlying principles upon
which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and
abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an improvement, or better carry out the
purpose for which it was framed.35 (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of
separation of powers or the system of checks-and-balances. There is also revision if the change alters the
substantial entirety of the constitution, as when the change affects substantial provisions of the constitution.
On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the
basic principle involved. Revision generally affects several provisions of the constitution, while amendment
generally affects only the specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our
Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative
test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety'
of the constitution by the deletion or alteration of numerous existing provisions." 36 The court examines only the
number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry
is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to
amount to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or
the fundamental powers of its Branches." 38 A change in the nature of the basic governmental plan also includes
changes that "jeopardize the traditional form of government and the system of check and balances." 39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the
Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire
Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential
to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches
of government in the present Constitution are reduced into two. This alters the separation of powers in the
Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a
revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of
government.

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers
and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters
the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary
system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is
beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is
readily apparent that the changes will radically alter the framework of government as set forth in the
Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original
intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or
of provisions of the document which have over-all implications for the entire document, to determine how and to
what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary
system would be a revision because of its over-all impact on the entire constitutional structure. So would a
switch from a bicameral system to a unicameral system be because of its effect on other important provisions
of the Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a
bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized
where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme
Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral
Legislature affects not only many other provisions of the Constitution but provides for a change in the
form of the legislative branch of government, which has been in existence in the United States Congress
and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a
more revolutionary change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this state and tear
apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to
carry on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the people at the
General Election and if the Legislature at its next session should fail to submit further amendments to
revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of
appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the
government of this State. The same result would obtain from an amendment, for instance, of Section 1 of
Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many sessions of the
Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to
give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear
very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition
here.43(Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's
initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and
legislative departments. The initiative in Adams did not even touch the executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected
by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105
provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo,
Sr.44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of
government than the initiative in Adams.

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure,
not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the
Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time
on the changes. However, the same substantive changes, when proposed through an initiative, are called
"amendments" because the changes are made by ordinary people who do not make an "occupation, profession,
or vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide for both
"amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same
provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the
apparent distinction is based on the actual experience of the people, that on one hand the common people in
general are not expected to work full-time on the matter of correcting the constitution because that is not
their occupation, profession or vocation; while on the other hand, the legislators and constitutional
convention delegates are expected to work full-time on the same matter because that is their occupation,
profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain
only to the process or procedure of coming up with the corrections, for purposes of interpreting the
constitutional provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in
the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed
changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute
a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino
Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution.
The Lambino Group trivializes the serious matter of changing the fundamental law of the land.

The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's
theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do
not deviate from such categorical intent and language.45 Any theory espousing a construction contrary to such intent
and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the
form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and
inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does not constitute a
revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to
advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by
initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the
legislature can propose a revision of the constitution, but it does not affect proposed revisions
initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that
cannot be enacted through the initiative process. They assert that the distinction between amendment and
revision is determined by reviewing the scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure
proposes far reaching changes outside the lines of the original instrument, including profound impacts on
existing fundamental rights and radical restructuring of the government's relationship with a defined group
of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic
principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII, section
2, and cannot appear on the ballot without the prior approval of the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by
initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may
not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing
Article XVII, section1, relating to proposed amendments, the court said:

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of
amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the
constitution." x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the
constitution which provides the means for constitutional revision and it excludes the idea that an individual,
through the initiative, may place such a measure before the electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the
plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end
red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there
is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where
revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three
co-equal departments of government, requiring far-reaching amendments in several sections and articles of the
Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other
section or article, the change may generally be considered an amendment and not a revision. For example, a change
reducing the voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change
reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a
revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is
an amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles of the Constitution other than
the specific provision being amended. These changes do not also affect the structure of government or the system of
checks-and-balances among or within the three branches. These three examples are located at the far green end of
the spectrum, opposite the far red end where the revision sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word
of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the
word "republican" with "monarchic" or "theocratic" in Section 1, Article II 50 of the Constitution radically overhauls
the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific
change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it
affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body
with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several
provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other
hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or
recorded proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be
amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained
and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be amended to conform with a
unicameral parliamentary form of government; x x x x (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later
law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section
2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of
government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which
requires a future separate constitutional amendment.

Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the
oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to
reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a
provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is
between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and
the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government."

Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to
― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries
with unicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government ― the British, French, Spanish, German, Italian, Canadian, Australian, or
Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize
that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for
amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires
harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's
initiative will only result in gross absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus,
the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to "[A]mendments to this Constitution."

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII
of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to
revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will
not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can
be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts
will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds. 51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend
the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of
the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the
Constitution even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative
on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as
signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006
filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra
signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories,
merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition
filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group
claims as valid.

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing
more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the
Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the
Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative
embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate.
Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail.

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling
in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For
following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the
public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March
19, 1997, and its Resolution of June 10, 1997.

5. Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of
this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the
clearly specified modes of amendment and revision laid down in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and
turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution
outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand
its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not
augur well for the rule of law in this country.

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes cast 53 − approved our
Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the
people, the full expression of the people's sovereign will. That approval included the prescribed modes for
amending or revising the Constitution.

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our
Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified
the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign
will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate
guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution,
which embodies the real sovereign will of the people.

Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific
modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution ― the
people's fundamental covenant that provides enduring stability to our society ― becomes easily susceptible to
manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases
to be the bedrock of the nation's stability.

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly
states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP
maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to
the agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of
incantations of "people's voice" or "sovereign will" in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which
embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the
Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter
basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Court's raison d'etre.

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

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

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


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

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

VICENTE M. GUZMAN, petitioner,


vs.
COMMISSION ELECTIONS, respondent.

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

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


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

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the
incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the
interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national
referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the
issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence,
the length of the period for tile exercise by the President of his present powers.1

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

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

The questions ask, to wit:

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


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

PROPOSED AMENDMENTS:

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

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

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

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

5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable
to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of
the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and
composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at
any time the government deems it necessary to ascertain the will of the people regarding any important matter
whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and
effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been
ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National
Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640
for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and
conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos.
991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031,
insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite
scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to
exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-
Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor
General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond
judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority
to exercise constituent power; the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was
instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the
interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President
cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is
untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short
period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the
people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution,
which confines the right of suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad)
possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is
now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by
one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing
for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an
officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4
The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry
out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the
same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority
upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of
judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question.
8This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the
constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions).
After that period, and the regular National Assembly in its active session, the power to propose amendments
becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute
itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the
proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very
Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991,
1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon.
Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty,
executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive
agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The
Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution
itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities to determine whether that power has been
discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political.
What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments
to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent
assembly. Whether the amending process confers on the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the actuation of the President would merely be
a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of
the President's authority to propose amendments and the regularity of the procedure adopted for submission of the
proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that
the people themselves, by their sovereign act, provided for the authority and procedure for the amending process
when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of
judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the
competence to determine whether the constitutional norms for amendments have been observed or not. And, this
inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the
Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic
of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political
one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the
Ratification Cases12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional
Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was
dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority
view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification
or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because,
they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our
authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending
the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in
Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by
the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially
the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths of all its Members, or by a constitutional
convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the question of calling
such a convention to the electorate in an election.

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

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred
with that amending power. Section 15 of the Transitory Provisions reads:

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

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and
period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a
vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the
National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that
prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the
majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim National Assembly, consistent
with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member
of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the
Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor,
Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V)
was rejected. The President's decision to defer the convening of the interim National Assembly soon found support
from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of the interim National Assembly. In the
referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question
of whether the interim National Assembly shall be initially convened was eliminated, because some of the members
of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I
interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had
already resolved against it.

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

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or
less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a
democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation
of powers. In most free states it has generally been regarded as imperative that the total power of the government be
parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a
total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of
tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By
this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf
of the state and its independent existence. There are moments in the life of any government when all powers must
work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative,
and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system,
the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of
the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important
harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential
dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from
the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive
in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers
of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis
may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear
authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

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

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

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

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

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

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

The People is Sovereign

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

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

VI

Referendum-Plebiscite not
rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued?
- is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the
Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in
pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of
voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the
new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will
have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the
referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots
of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age
and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead
of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-
plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in
character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their
consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It
is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding
the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to
dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is
impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of
the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-
plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself
had announced that he would not countenance any suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus,
the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled
matter.43 Even government employees have been held by the Civil Service Commission free to participate in public
discussion and even campaign for their stand on the referendum-plebiscite issues.44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The
people have been living with them since the proclamation of martial law four years ago. The referendums of 1973
and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not
without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30,
1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-
Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral
Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20
days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep.
Act No. 73)."45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the
plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such
amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which
"are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the
time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but
as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time;
second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and disposed of presently, and third,
ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In
the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt
needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

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

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

3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient
and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio
Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of
the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and
Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in
the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile
(59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive
during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and
Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification
by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and
therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate
Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the
constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the
controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted
to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando
concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is
immediately executory.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-36142 March 31, 1973

JOSUE JAVELLANA, petitioner,


vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF
JUSTICE AND THE SECRETARY OF FINANCE, respondents.

G.R. No. L-36164 March 31, 1973

VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U.


MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE,
THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION
ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON
ELECTIONS AND THE COMMISSIONER OF CIVIL SERVICE, respondents.

G.R. No. L-36165 March 31, 1973.

GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON


V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity
as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed
Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as Secretary General Services; Senator
GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as President
Pro Tempore of the of the Senate, respondents.

G.R. No. L-36236 March 31, 1973

EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.

G.R. No. L-36283 March 31, 1973

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.

Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al.

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.

Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for
other respondents.

RESOLUTION

CONCEPCION, C.J.:

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.

Background of the Plebiscite Cases.

The factual setting thereof is set forth in the decision therein rendered, from which We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions
of which the election of delegates to said Convention was held on November 10, 1970, and the
1971 Constitutional Convention began to perform its functions on June 1, 1971. While the
Convention was in session on September 21, 1972, the President issued Proclamation No. 1081
placing the entire Philippines under Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the Philippines. The next day, November
30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the
Filipino people for ratification or rejection the Constitution of the Republic of the Philippines
proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as
setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15,
1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential
Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to be used and the question
to be answered by the voters, and the appropriation of public funds for the purpose, are, by the
Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people
of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press
and assembly, and there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez,
et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942);
on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of
the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by
Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-
35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the
Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case
G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their
answers "not later than 12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing
was continued on December 19, 1972. By agreement of the parties, the aforementioned last case
— G.R. No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they desire to stress." Said
notes were filed on different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending
the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order
No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after consultation with, among
others, the leaders of Congress and the Commission on Elections — the Court deemed it more
imperative to defer its final action on these cases.

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible,
preferably not later than January 15, 1973." It was alleged in said motion, inter alia:
"6. That the President subsequently announced the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or
oppose —

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and when (the
tentative new dates given following the postponement of the plebiscite from the
original date of January 15 are February 19 and March 5);

[4] The opening of the regular session slated on January 22 in accordance with
the existing Constitution despite Martial Law." [Bulletin Today, January 3,
1973.]

"8. That it was later reported that the following are to be the forms of the questions to be asked to
the Citizens Assemblies: —

[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?

[4] How soon would you like the plebiscite on the new Constitution to be held?
[Bulletin Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take place during the
period from January 10 to January 15, 1973;

"10. That on January 10, 1973, it was reported that on more question would be added to the four
(4) question previously announced, and that the forms of the question would be as follows: —

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional
question.]

"11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to
the so-called Citizens Assemblies: —
[1] Do you approve of the citizens assemblies as the base of popular government
to decide issues of national interests?

[2] Do you approve of the new Constitution?

[3] Do you want a plebiscite to be called to ratify the new Constitution?

[4] Do you want the elections to be held in November, 1973 in accordance with
the provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to be
called?

[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied]

"12. That according to reports, the returns with respect to the six (6) additional questions quoted
above will be on a form similar or identical to Annex "A" hereof;

"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and
which reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in


government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be


convened at all, it should not be done so until after at least seven (7) years from
the approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite
on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of so
many debates and so much expenses.

QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be
enough for stability to be established in the country, for reforms to take root and
normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to


exercise his powers with more authority. We want him to be strong and firm so
that he can accomplish all his reform programs and establish normalcy in the
country. If all other measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution without the ad
interim Assembly."

"Attention is respectfully invited to the comments on "Question No. 3," which reads: —

QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on the
New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the
President announced that the limited freedom of debate on the proposed Constitution was being
withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the last list
of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the


New Constitution? —

in relation to the question following it: —

Do you still want a plebiscite to be called to


ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the question
of the validity of the plebiscite on the proposed Constitution is now pending;

"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the
two questions just referred to will be reported then this Honorable Court and the entire nation will
be confronted with a fait accompli which has been attained in a highly unconstitutional and
undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of the people approving the
proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court could, to all
intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the
basis of such supposed expression of the will of the people through the Citizens Assemblies, it
would be announced that the proposed Constitution, with all its defects, both congenital and
otherwise, has been ratified;

"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people and their officials will not know which
Constitution is in force.

"20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately
decide and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion on the
proposed Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No.
73, the opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now
collapsed and that a free plebiscite can no longer be held."

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in
L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A.
Ordoñez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying —

"... that a restraining order be issued enjoining and restraining respondent


Commission on Elections, as well as the Department of Local Governments and
its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee
and its Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned such task,
from collecting, certifying, and announcing and reporting to the President or
other officials concerned, the so-called Citizens' Assemblies referendum results
allegedly obtained when they were supposed to have met during the period
comprised between January 10 and January 15, 1973, on the two questions
quoted in paragraph 1 of this Supplemental Urgent Motion."

In support of this prayer, it was alleged —

"3. That petitioners are now before this Honorable Court in order to ask further that this Honorable
Court issue a restraining order enjoining herein respondents, particularly respondent Commission
on Elections as well as the Department of Local Governments and its head, Secretary Jose Roño;
the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National
Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the
President the supposed Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period between January 10 and January 15, 1973,
particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void
particularly insofar as such proceedings are being made the basis of a supposed consensus for the
ratification of the proposed Constitution because: —

[a] The elections contemplated in the Constitution, Article XV, at which the
proposed constitutional amendments are to be submitted for ratification, are
elections at which only qualified and duly registered voters are permitted to
vote, whereas, the so called Citizens' Assemblies were participated in by persons
15 years of age and older, regardless of qualifications or lack thereof, as
prescribed in the Election Code;

[b] Elections or plebiscites for the ratification of constitutional amendments


contemplated in Article XV of the Constitution have provisions for the secrecy
of choice and of vote, which is one of the safeguards of freedom of action, but
votes in the Citizens' Assemblies were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and honest
elections, and such provisions are a minimum requirement for elections or
plebiscites for the ratification of constitutional amendments, but there were no
similar provisions to guide and regulate proceedings of the so called Citizens'
Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more than a
handful of the so called Citizens' Assemblies have been actually formed,
because the mechanics of their organization were still being discussed a day or
so before the day they were supposed to begin functioning: —

"Provincial governors and city and municipal mayors had been


meeting with barrio captains and community leaders since last
Monday [January 8, 1973) to thresh out the mechanics in the
formation of the Citizens Assemblies and the topics for
discussion." [Bulletin Today, January 10, 1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of
the year [Daily Express, January 1, 1973], and considering the lack of experience of the local
organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is
too much to believe that such assemblies could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended petition to include the additional
officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion
could not be completed because, as noted in the Urgent Motion of January 12, 1973, the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973. But be that as it may, the said additional officials and agencies may
be properly included in the petition at bar because: —

[a] The herein petitioners have prayed in their petition for the annulment not
only of Presidential Decree No. 73, but also of "any similar decree,
proclamation, order or instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed
Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case,
and those who enforce, implement, or carry out the said Presidential Decree No. 86. and the
instructions incidental thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of preliminary
injunction restraining not only the respondents named in the petition but also
their "agents" from implementing not only Presidential Decree No. 73, but also
"any other similar decree, order, instruction, or proclamation in relation to the
holding of a plebiscite on January 15, 1973 for the purpose of submitting to the
Filipino people for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November 30,
1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and equitable. [p.
39, Petition].

"Therefore, viewing the case from all angles, the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
Elections has under our laws the power, among others, of: —

(a) Direct and immediate supervision and control over national, provincial, city,
municipal and municipal district officials required by law to perform duties
relative to the conduct of elections on matters pertaining to the enforcement of
the provisions of this Code ..." [Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on Elections,
together with the officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or
announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies,
irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause
of freedom an democracy, and the petitioners herein because:

[a] After the result of the supposed voting on the questions mentioned in
paragraph 1 hereof shall have been announced, a conflict will arise between
those who maintain that the 1935 Constitution is still in force, on the one hand,
and those who will maintain that it has been superseded by the proposed
Constitution, on the other, thereby creating confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack because
the advocates of the theory that the proposed Constitution has been ratified by
reason of the announcement of the results of the proceedings of the so-called
Citizens' Assemblies will argue that, General Order No. 3, which shall also be
deemed ratified pursuant to the Transitory Provisions of the proposed
Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach
and jurisdiction of this Honorable Court."

On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents
in said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M.,
Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30
a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of
Justice called on the writer of this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which
had just been signed by the President. Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection
therewith was still going on — and the public there present that the President had, according to
information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE


CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional


Convention is subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards


in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least six months, fifteen years of
age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of
citizen participation in the democratic process and to afford ample opportunity for the citizenry to
express their views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-
A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one
(14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; while on the question as to whether or not the people would
still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a
plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new Constitution,
the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of


the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of
the Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.

(Sgd.) FERDINAND E. MARCOS


"President of the Philippines
"By the President:

"ALEJANDRO MELCHOR
"Executive Secretary"

Such is the background of the cases submitted determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way affirmative defenses: 1) that the "questions raised"
in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and
had plenary authority to propose not only amendments but a Constitution which would supersede
the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of
funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a
plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague
and incomplete, makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ...
without merit." Identical defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the
opinions attached hereto, except that, instead of writing their separate opinions, some Members
have preferred to merely concur in the opinion of one of our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after which he
recapitulated the views of the Members of the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree
No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot
and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of
said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law.
In effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore,
grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are
of the opinion that issue involves questions of fact which cannot be predetermined, and that
Martial Law per se does not necessarily preclude the factual possibility of adequate freedom, for
the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and


myself are of the opinion that the question of validity of said Proclamation has
not been properly raised before the Court, which, accordingly, should not pass
upon such question.

b. Justice Barredo holds that the issue on the constitutionality of Proclamation


No. 1102 has been submitted to and should be determined by the Court, and that
the "purported ratification of the Proposed Constitution ... based on the
referendum among Citizens' Assemblies falls short of being in strict conformity
with the requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related relevant
circumstances, ... the new Constitution is legally recognizable and should be
recognized as legitimately in force."

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has


not been ratified in accordance with Article XV of the 1935 Constitution, and
that, accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue
whether the Proposed Constitution has been ratified by the people or not, "in the
absence of any judicially discoverable and manageable standards," since the
issue "poses a question of fact.

7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as
regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable
period of time within which to file appropriate pleadings should they wish to contest the legality
of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the
petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect,
that the Court should go farther and decide on the merits everyone of the cases under
consideration.

Accordingly, the Court — acting in conformity with the position taken by six (6) of its members, 1 with three (3)
members dissenting,2 with respect to G.R. No. L-35948, only and another member3 dissenting, as regards all of the
cases dismissed the same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary
and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or
agents from implementing any of the provisions of the propose Constitution not found in the present Constitution"
— referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and
registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite
cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution,
thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in
implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the
Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is without power to proclaim the ratification by
the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was
not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo,
Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive Secretary, the Secretaries of
Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman
of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections
and the Commissioner of Civil Service4 on February 3, 1973, by Eddie Monteclaro, personally and as President of
the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the
Auditor General, the Budget Commissioner and the National Treasurer 5 and on February 12, 1973, by Napoleon V.
Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the
Secretary of National Defense, the Budget Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon
V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate,"
and others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the
Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General
Services, the President and the President Pro Tempore of the Senate. In their petition — as amended on January 26,
1973 — petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned
petitioners8 would expire on December 31, 1975, and that of the others 9 on December 31, 1977; that pursuant to our
1935 Constitution, "which is still in force Congress of the Philippines "must convene for its 8th Session on Monday,
January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session"; that "on said day, from
10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prevented from
using the Senate Session Hall, the same having been closed by the authorities in physical possession and control the
Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building
were ordered cleared by the same authorities, and no one was allowed to enter and have access to said premises";
that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we
asked by petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully
refrained and continue to refrain from doing so"; that the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent Secretary of National Defense, Executive
Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from performing
their duties as duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the Philippines
Building ... are occupied by and are under the physical control of the elements military organizations under the
direction of said respondents"; that, as per "official reports, the Department of General Services ... is now the
civilian agency in custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded
and prevented, and continue to so exclude and prevent" the petitioners "from the performance of their sworn duties,
invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens'
Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and
issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities
for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably
unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully refrained
and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and
functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the
Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions
therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons
specified in the petition as amended; that, by acting as they did, the respondents and their "agents, representatives
and subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session,
assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue such inaction up
to this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties and functions
specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the
petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking
the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory
injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well
as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to
deliver physical possession of the same to the President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree, proclamation
having the same import and objective, issuing writs of prohibition and mandamus, as prayed for against above-
mentioned respondents, and making the writ injunction permanent; and that a writ of mandamus be issued against
the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate."

Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave
Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the
same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged lack
impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged
lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose submitting to them the matter of ratification of the new
Constitution," the alleged "improper or inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to
act on these petitions"; 2) the questions raised therein are "political in character and therefore nonjusticiable"; 3)
"there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted
the people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the election, is
conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that
"(t)he subject matter" of said case "is a highly political question which, under the circumstances, this ...Court would
not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this
Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further
proceedings in this case may only be an academic exercise in futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition
therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30
a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases
G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases for
hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same
be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-
36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only
that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted
up to February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments, as
well as the documents required of them or whose presentation was reserved by them. The same resolution granted
the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners
in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was
granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in
G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved and were granted an extension of time,
to expire on March 10, 1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor
General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a Supplemental
Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners'
Replies."

After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve
a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were
cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his
aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the
votes cast by them in these cases.

Writer's Personal Opinion

I.

Alleged academic futility of further proceedings in G.R. L-36165.

This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also,
by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo
had expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately
supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not
feel "that this Court competent to act" in said cases "in the absence of any judicially discoverable and manageable
standards" and because "the access to relevant information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been promulgated and great interests have already
arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr. Justice
Esguerra had postulated that "(w)ithout any competent evidence ... about the circumstances attending the holding" of
the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that,
accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by
satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that
he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November
30, 1972, has been duly ratified.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote
or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes
required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R.
No.
L-36165.

I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the
hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite
cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with
the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners
herein succeeded in convincing him that their view should be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8)
votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is
borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:

All cases involving the constitutionality of a treaty or law shall be heard and decided by the
Supreme Court in banc, and no treaty or law may be declared unconstitutional without the
concurrence of two thirds of all the members of the Court.

Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required only to
declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then
Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:

... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an executive order issued by the President. It is very
significant that in the previous drafts of section 10, Article VIII of the Constitution, "executive
order" and "regulation" were included among those that required for their nullification the vote of
two-thirds of all the members of the Court. But "executive order" and "regulation" were
later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp.
495, 496), and thus a mere majority of six members of this Court is enough to nullify them. 11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was
made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the
government — the Executive and the Legislative — is present, which circumstance is absent in the case of rules,
regulations and executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of the
President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the concurrence of the Senate, 13 which is not
required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to
nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or
treaty.

Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies
with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the
same is governed by section 63 of the Revised Administrative Code, which provides:

Administrative acts and commands of the (Governor-General) President of the Philippines


touching the organization or mode of operation of the Government or rearranging or readjusting
any of the districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public employees or disposing of
issues of general concern shall be made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to
(have) effect and any information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive proclamation, with all the
force of an executive order. 14

In fact, while executive order embody administrative acts or commands of the President, executive proclamations
are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy
maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that,
for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number
of votes needed to invalidate an executive order, rule or regulation — namely, six (6) votes — would suffice.

As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional
Convention, in the determination of the question whether or not it is now in force, it is obvious that such question
depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the
1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the
proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be
settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old
Constitution. 16

II

Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-
justiciable question?

The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof,
he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from
which — he claims — "this Court now derives its authority"; that "nearly 15 million of our body politic from the age
of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in
reliance on it caution against interposition of the power of judicial review"; that "in the case of the New
Constitution, the government has been recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new charter"; that "foreign governments have
taken note of it"; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and
ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is not to
abdicate duty."

At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What
petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached by the
Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the
same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said
Article XV has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to
dispensewith said election or plebiscite; that the proceedings before the Citizens' Assemblies did not constitute and
may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned
Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in
any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution
proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said
Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the
Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in
said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violation
of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No.
20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution,
impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in many instances, as well
as their ability to have a reasonable knowledge of the contents of the document on which they were allegedly called
upon to express their views.

Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken
by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is
inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States
of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935
Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been
advanced to warrant a departure from said position, consistently with the form of government established under said
Constitution..

Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or
rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because,
they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With
identical unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, 19 questioning Our
authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending
the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court
in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified,
in Gonzales v. Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez
Vito. 23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and
follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24

The reasons adduced in support thereof are, however, substantially the same as those given in support of the
political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in
the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added
weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable, not political, is
plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle
of separation of powers — characteristic of the Presidential system of government — the functions of which are
classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of
laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives
that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere —
but only within such sphere — each department is supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also,
to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by
the other departments — provided that such acts, measures or decisions are within the area allocated thereto by the
Constitution. 25

This principle of separation of powers under the presidential system goes hand in hand with the system of checks
and balances, under which each department is vested by the Fundamental Law with some powers to forestall,
restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing
power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to
special sessions and even to prescribe or limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof — such as the commission on Appointments —
may approve or disapprove some appointments made by the President. It, also, has the power of appropriation, to
"define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon the
other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior courts as
may be established by law," may settle or decide with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a private individual or entity, on the one hand, and an
officer or branch of the government, on the other, or between two (2) officers or branches of service, when the latter
officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And so, when
a power vested in said officer or branch of the government is absolute or unqualified, the acts in the exercise of such
power are said to be political in nature, and, consequently, non-justiciable or beyond judicial review. Otherwise,
courts of justice would be arrogating upon themselves a power conferred by the Constitution upon another branch of
the service to the exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted with approval from In re
McConaughy, 27 the following:

"At the threshold of the case we are met with the assertion that the questions involved are political,
and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final, regardless of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it has been so often decided contrary to the view
contended for by the Attorney General that it would seem to be finally settled.

xxx xxx xxx

"... What is generally meant, when it is said that a question is political, and not judicial, is that it is
a matter which is to be exercised by the people in their primary political capacity, or that it has
been specifically delegated to some other department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In
re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep.
220. Thus the Legislature may in its discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The courts have no judicial control over such
matters, not merely because they involve political questions, but because they are matters which
the people have by the Constitution delegated to the Legislature. The Governor may exercise the
powers delegated him, free from judicial control, so long as he observes the laws act within the
limits of the power conferred. His discretionary acts cannot be controllable, not primarily because
they are of a politics nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under constitutional government must act accordingly
to law and subject its restrictions, and every departure therefrom or disregard thereof must
subject him to that restraining and controlling power of the people, acting through the agency of
the judiciary; for it must be remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative as the other, and the
judiciary is the department which is charged with the special duty of determining the limitations
which the law places upon all official action. The recognition of this principle, unknown except in
Great Britain and America, is necessary, to "the end that the government may be one of laws and
not of men" — words which Webster said were the greatest contained in any written constitutional
document." (Emphasis supplied.)

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

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not
the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political,
the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations — particularly those prescribed or imposed by the Constitution — would be
set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of
courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion
to decline passing upon said issue, but are under the ineluctable obligation — made particularly more exacting and
peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution — to
settle it. This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to
determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the Constitution provides how it may be amended — as it is in
our 1935 Constitution — "then, unless the manner is followed, the judiciary as the interpreter of that constitution,
will declare the amendment invalid." 29 In fact, this very Court — speaking through Justice Laurel, an outstanding
authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the
Convention that drafted the 1935 Constitution — declared, as early as July 15, 1936, that "(i)n times of social
disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only constitutional organwhich can be called
upon to determine the proper allocation of powers between the several departments" of the government. 30

The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is
non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal
Supreme Court has any similarity with or bearing on the cases under consideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against
Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England, alleged in their defense that they had
acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy
to overthrow the government by force and the state had been placed by competent authority under Martial Law.
Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for —
unlike other states which adopted a new Constitution upon secession from England — Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature, as were
necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when
Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying the
Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by
them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed
— by those who belonged to this segment of the population — which eventually resulted in a convention called for
the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention
was not authorized by any law of the existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared
that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and
Constitution of Rhode Island.

The charter government, which was supported by a large number of citizens of the state, contested, however, the
validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the
new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support
him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures
to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in
the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel
government — which was never able to exercise any authority in the state — broke into his house.

Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by a convention held under the authority of the charter
government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were
to be given, the persons who were to receive and return them, and the qualifications of the voters having all been
previously authorized and provided for by law passed by the charter government," the latter formally surrendered all
of its powers to the new government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of
armed men under his command at Chepatchet in the June following, which dispersed upon approach of the troops of
the old government, no further effort was made to establish" his government. "... until the Constitution of 1843" —
adopted under the auspices of the charter government — "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience throughout the state ... ."

Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of
the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the
case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:

It is worthy of remark, however, when we are referring to the authority of State decisions, that the
trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges
who decided that case held their authority under that constitution and it is admitted on all hands
that it was adopted by the people of the State, and is the lawful and established government. It is
the decision, therefore, of a State court, whose judicial authority to decide upon the constitution
and laws of Rhode Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the sanction and laws of the
charter government.

The point, then, raised here has been already decided by the courts of Rhode Island. The question
relates, altogether, to the constitution and laws of that State, and the well settled rule in this court
is, that the courts of the United States adopt and follow the decisions of the State courts in
questions which concern merely the constitution and laws of the State.

Upon what ground could the Circuit Court of the United States which tried this case have
departed from this rule, and disregarded and overruled the decisions of the courts of Rhode
Island? Undoubtedly the courts of the United States have certain powers under the Constitution
and laws of the United States which do not belong to the State courts. But the power of
determining that a State government has been lawfully established, which the courts of the State
disown and repudiate, is not one of them. Upon such a question the courts of the United States are
bound to follow the decisions of the State tribunals, and must therefore regard the charter
government as the lawful and established government during the time of this contest. 32

It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question, but
one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State
tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government.
Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that
rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a
measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary
form of government, under which our local governments derive their authority from the national government.
Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no provision on the
manner, procedure or conditions for its amendment.

Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on
recognition of constitution, and there is a fundamental difference between these two (2) types of recognition, the
first being generally conceded to be a political question, whereas the nature of the latter depends upon a number of
factors, one of them being whether the new Constitution has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former, which
is essentially a justiciable question. There was, in Luther v. Borden, a conflict between two (2) rival governments,
antagonistic to each other, which is absent in the present cases. Here, the Government established under the 1935
Constitution is the very same government whose Executive Department has urged the adoption of the new or revised
Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the people.

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on
matters otherthan those referring to its power to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even
persuasive in the present cases, having as the Federal Supreme Court admitted — no authority whatsoever to pass
upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court
of Minnessota had the following to say:

Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have
no power to determine questions of a political character. It is interesting historically, but it has not
the slightest application to the case at bar. When carefully analyzed, it appears that it merely
determines that the federal courts will accept as final and controlling a decision of the highest
court of a state upon a question of the construction of the Constitution of the state. ... . 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the
General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection
clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but,
after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed
decision and held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has
in any measure been committed by the Constitution to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate interpreter of the Constitution ... ."

Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a
decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action
for a declaratory judgment declaring thereunder that he — whose qualifications were uncontested — had been
unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia,
that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to
the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.

After an, exhaustive analysis of the cases on this subject, the Court concluded:

The authorities are thus practically uniform in holding that whether a constitutional amendment
has been properly adopted according to the requirements of an existing Constitution is a judicial
question. There can be little doubt that the consensus of judicial opinion is to the effect that it is
the absolute dutyof the judiciary to determine whether the Constitution has been amended in the
manner required by the Constitution, unless a special tribunal has been created to determine the
question; and even then many of the courts hold that the tribunal cannot be permitted to illegally
amend the organic law. ... . 36

In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or
procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted
by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and
non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court's
bounden duty to decide such question.

The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no law suit' "
— because it allegedly involves a political question — "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority." 37

III

Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution?

Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority to create
the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified;
that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is without
power to proclaim the ratification by the Filipino people of the proposed Constitution"; and 4) that "the election held
(in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election, hence null and void."

Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend:
1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed new
Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or revised
Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for ... submission the people;" 3) that "(t)he period of time between
November 1972 when the 1972 draft was approved and January 11-15, 1973," when the Citizens' Assemblies
supposedly ratified said draft, "was too short, worse still, there was practically no time for the Citizens' Assemblies
to discuss the merits of the Constitution which the majority of them have not read a which they never knew would
be submitted to them ratification until they were asked the question — "do you approve of the New Constitution?"
during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no opportunity to
concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens'
Assemblies for ratification."

Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled
press, there can never be a fair and proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution
was not followed."

Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases, the
petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the
Constitution was a deception upon the people since the President announced the postponement of the January 15,
1973 plebiscite to either February 19 or March 5, 1973." 38

The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier
in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-
36165 by counsel for therein respondents Gil J. Puyat and Jose Roy — although more will be said later about them
— and by the Solicitor General, on behalf of the other respondents in that case and the respondents in the other
cases.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:

1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that
purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";

2. That such amendments be "submitted to the people for their ratification" at an "election"; and

3. That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the
authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised
Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements
have been complied with.

2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification
conformably to Art. XV of the Constitution?

In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into
account, namely, section I of Art. V and Art. X of said Constitution. The former reads:

Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified
by law, who are twenty-one years of age or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality wherein they propose to vote for at
least six months preceding the election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question.

Sections 1 and 2 of Art. X of the Constitution ordain in part:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and


two other Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. ...

xxx xxx xxx

Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections and shall exercise all other functions
which may be conferred upon it by law. It shall decide, save those involving the right to
vote, all administrative questions, affecting elections, including the determination of the number
and location of polling places, and the appointment of election inspectors and of other election
officials. All law enforcement agencies and instrumentalities of the Government, when so required
by the Commission, shall act as its deputiesfor the purpose of insuring fee, orderly, and honest
elections. The decisions, orders, and rulings of the Commission shall be subject to review by the
Supreme Court.

xxx xxx xxx 39

a. Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who
are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six months preceding the election," may
exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said
provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none
of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in
persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of the language — "(s)uffrage may be
exercised" — used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter,
Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen
years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may
participate as such in the plebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of
suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne
out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of
the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted
said Constitution which report was, in turn, "strongly influenced by the election laws then in force in the Philippines
... ." 40 " Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of
the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be
made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by
way of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second
sentence thereof imposing upon the National Assembly established by the original Constitution — instead of the
bicameral Congress subsequently created by amendment said Constitution — the duty to "extend the right of
suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this
Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question." 41

The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was
rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first sentence of
said Art. V. Despite some debates on the age qualification — amendment having been proposed to reduce the same
to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of
the right of suffrage — the second recommendation limiting the right of suffrage to those who could "read and
write" was — in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily
approved in the Convention without any dissenting vote," although there was some debate on whether the
Fundamental Law should specify the language or dialect that the voter could read and write, which was decided in
the negative. 43

What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to
be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications
therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be
dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a
right is necessarily a negation of the authority of Congress or of any other branch of the Government to deny said
right to the subject of the grant — and, in this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.

At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of
the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election
Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and
incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the
Administrative Code of 1917 — Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below. 44 In all of these legislative acts, the
provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of
suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and possessed any of the
statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the
same conferred — not guaranteed — the authority to persons having the qualifications prescribed therein and none
of disqualifications to be specified in ordinary laws and, necessary implication, denied such right to those lacking
any said qualifications, or having any of the aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a
plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age
from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of
this Court in Tolentino v. Commission on Elections, 45 granting the writs, of prohibition and injunction therein
applied for, upon the ground that, under the Constitution, all of the amendments adopted by the Convention should
be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the
proposed amendment sought to be submitted to a plebiscite was not even a complete amendment, but a "partial
amendment" of said section 1, which could be amended further, after its ratification, had the same taken place, so
that the aforementioned partial amendment was, for legal purposes, no more than
a provisional or temporary amendment. Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not
exercise the right of suffrage, without a previous amendment of the Constitution.

Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly
plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said
section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assembly members" (which
include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is
necessary for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax
ordinances," whereas, according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly
registered barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be
citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during
the six months immediately preceding election, duly registered in the list of voters" and " otherwise disqualified ..."
— just like the provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution
— "may vote in the plebiscite."

I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly,
not only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a
Constitution — particularly of a written and rigid one, like ours generally accorded a mandatory status — unless the
intention to the contrary is manifest, which is not so as regards said Art. V — for otherwise they would not have
been considered sufficiently important to be included in the Fundamental Law of the land. 48 Besides, it would be
illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most important measures for which it
demands — in addition to favorable action of the barrio council — the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite
need not be held.

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to
apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental
Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications
for such ratification, notwithstanding the fact that the object thereof much more important — if not fundamental,
such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life
of the nation — and, accordingly, demands greater experience and maturity on the part of the electorate than that
required for the election of public officers, 49 whose average term ranges from 2 to 6 years.

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed
the other qualifications laid down in both the Constitution and the present Election Code, 50 and of whether or not
they are disqualified under the provisions of said Constitution and Code, 51 or those of Republic Act No.
3590, 52have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised
Constitution drafted by the 1971 Constitutional Convention.

In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire
Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56
"members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against
... 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite
to be called to ratify the new Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that
the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is
conceded that the number of people who allegedly voted at the Citizens' Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say on this point in
subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1
of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the
proceedings in the Citizens' Assemblies must be considered null and void. 53

It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossible to
ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the
illegal or spurious ... ." 54

In Usman v. Commission on Elections, et al., 55 We held:

Several circumstances, defying exact description and dependent mainly on the factual milieu of
the particular controversy, have the effect of destroying the integrity and authenticity of disputed
election returns and of avoiding their prima facie value and character. If satisfactorily proven,
although in a summary proceeding, such circumstances as alleged by the affected or interested
parties, stamp the election returns with the indelible mark of falsity and irregularity, and,
consequently, of unreliability, and justify their exclusion from the canvass.

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the
Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.

The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64
Minn. 16, to have been used as an equivalent of "ballots cast." 56

The word "cast" is defined as "to deposit formally or officially." 57

It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word
"cast" means "deposit (a ballot) formally or officially ... .

... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the
voter on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising
— by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American
regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official
ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records
that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from
1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.

b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)

Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The
point to be stressed here is the term "independent." Indeed, why was the term used?

In the absence of said constitutional provision as to the independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the
Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature,
and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature
essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to
section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting
therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent
principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional
organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive
Bureau, one of the offices under the supervision and control of said Department. The same — like other departments
of the Executive Branch of the Government — was, in turn, under the control of the Chief Executive, before the
adoption of the 1935 Constitution, and had been — until the abolition of said Department, sometime ago — under
the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the Department of the Interior and its Executive
Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the
opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by the establishment of the Commission on
Elections as a constitutional body independent primarily of the President of the Philippines.

The independence of the Commission was sought to be strengthened by the long term of office of its members —
nine (9) years, except those first appointed 59 — the longest under the Constitution, second only to that of the
Auditor General 60; by providing that they may not be removed from office except by impeachment, placing them, in
this respect, on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the
Auditor General; that they may not be reappointed; that their salaries, "shall be neither increased nor diminished
during their term of office"; that the decisions the Commission "shall be subject to review by the Supreme Court"
only 61; that "(n)o pardon, parole, or suspension sentence for the violation of any election law may be granted
without the favorable recommendation of the Commission" 62; and, that its chairman and members "shall not, during
the continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may affected by the functions of their office; nor
shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or
instrumentality thereof." 63 Thus, the framers of the amendment to the original Constitution of 1935 endeavored to
do everything possible protect and insure the independence of each member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections
shall have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart
from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall
decide, save those involving the right to vote, all administrative question affecting elections, including the
determination of the number and location of polling places, and the appointment of election inspectors and of other
election officials." And, to forests possible conflicts or frictions between the Commission, on one hand, and the
other offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law
enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as
its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in
effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the
Supreme Court.

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as
the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants
additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64 Moreover,
said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the
establishment of election precincts; the designation and arrangement of polling places, including voting booths, to
protect the secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication
thereof; the establishment of municipal, provincial and files of registered voters; the composition and appointment
of board of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to
insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the
rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and
operation of municipal, provincials and national boards of canvassers; the presentation of the political parties and/or
their candidates in each election precinct; the proclamation of the results, including, in the case of election of public
officers, election contests; and the jurisdiction of courts of justice in cases of violation of the provisions of said
Election Code and the penalties for such violations.

Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and
honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional
and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have
been given, or even sought to be given therefor. In many, if not most, instances, the election were held a viva voce,
thus depriving the electorate of the right to vote secretly — one of the most, fundamental and critical features of our
election laws from time immemorial — particularly at a time when the same was of utmost importance, owing to
the existence of Martial Law.

In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of the law
pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and
that if they "could legally dispense with such requirement ... they could with equal propriety dispense with all of
them, including the one that the vote shall be by secret ballot, or even by ballot
at all ... ."

Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971
Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which — which
was contested in the plebiscite cases, as well as in the 1972 habeas corpus cases 66 — We need not, in the case of
bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for ratification or rejection; directing the publication of said proposed
Constitution; and declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding right and obligations of political parties and candidates"
— "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that "(a)ll
elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to be
held on January 15, 1973," said nothing about the procedure to be followed in plebiscite to take place at such notice,
and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provisions of
Presidential Decree 73, insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential
Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This
specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or instructions — and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the
proposed Constitution — remained in force, assuming that said Decree is valid.

It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below 67 — the Executive
declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the
formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national issues ... like the holding of the plebiscite on
the new Constitution ... and others in the future, which shall serve as guide or basis for action or decision by the
national government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973,
a referendum on important national issues, including those specified in paragraph 2 hereof, and submit the results
thereof to the Department of Local Governments and Community Development immediately thereafter, ... ." As in
Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional
supervisory power of the Commission on Elections or its participation in the proceedings in said Assemblies, if the
same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The
provision of Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local
Governments Community Development is not necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its "exclusive authority over the enforcement and
administration of all laws to the conduct of elections," if the proceedings in the Assemblies would partake of the
nature of an "election" or plebiscite for the ratification or rejection of the proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973,
ordering "that important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies)
for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum
include the matter of ratification of the Constitution by the 1971 Constitutional Convention" and that "(t)he
Secretary of the Department of Local Governments and Community Development shall insure the implementation
of this order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude exercise of the powers vested by the 1935 Constitution in the Commission on Elections, even if the
Executive had the authority to repeal Art. X of our Fundamental Law — which he does not possess. Copy of
Presidential Decree No. 86-B is appended hereto as Annex B hereof.

The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission
on Elections, and without complying with the provisions of the Election Code of 1971 or even of those of
Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of
the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said
officers and agencies of the 1935 Constitution would be favored thereby, owing to the practical indefinite extension
of their respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the
proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there
is no reasonable means of checking the accuracy of the returns files by the officers who conducted said plebiscites.
This is another patent violation of Art. of the Constitution which can hardly be sanctioned. And, since the provisions
of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the
"free, orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and void
the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have
ratified the revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that
the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a
choosing or as election by those having a right to participate (in the selection) of those who shall fill the offices, or
of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton,
25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68

IV

Has the proposed Constitution aforementioned


been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being
contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at
least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified,
approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus
been "substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No.
1102, not only because such question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from its
power are derived.

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put
it —

... every officer under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom or disregard thereof must subject him to the restraining
and controlling of the people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the executive or the
Legislature. One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations which the law
places upon all official action. ... .

Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he
certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of
all the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect."

In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said
proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the
power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections,"
and, hence, whether the elections are for the choice or selection of public officers or for the ratification or rejection
of any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also,
referred to in said Art. XV as "elections".

The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each
municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that
the president of each such municipal association formed part of a provincial or city association of presidents of such
municipal associations; that the president of each one of these provincial or city associations in turn formed part of a
National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco
Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal
associations had reported the results of the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results of the voting in the to the Department
of Local Governments and Community Development, which tabulated the results of the voting in the citizens'
assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting
President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Governments and Community Development) to the Chief Executive,
who, accordingly, issued Proclamation No. 1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could
possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward
citizens' assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such
provincial or city associations.

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of
same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or
circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal,
provincial and national associations, but neither a copy of alleged report to the President, nor a copy of any
"(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No.
1102, to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by
the people, can not possibly have any legal effect or value.

The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive
and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In
fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the
Philippines as provided in the Constitution, 69 is not conclusive upon the courts. It is no more than prima
facie evidence of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an
election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and
declare, in accordance therewith, who was duly elected to the office involved. 71 If prior to the creation of the
Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress
declaring who had been elected President or Vice-President was conclusive upon courts of justice, but because there
was no law permitting the filing of such protest and declaring what court or body would hear and decide the same.
So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has
been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial
inquiry, in direct proceedings therefor — such as the cases at bar — and the issue raised therein may and should be
decided in accordance with the evidence presented.

The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state"
— of Minnessota — "all taxes were required to be raised under the system known as the 'general property tax.'
Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of
raising revenue induced the Legislature to submit to the people an amendment to the Constitution which provided
merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by the state canvassing board and
proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the amendment had
become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a
mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The
district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme Court was
"required to determine the correctness of that conclusion."

Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of
theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more
than tabulate the reports received from the various county board and add up and certify the results. State v. Mason,
45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares
that the decisions of the board shall be final" — and there is no such law in the cases at bar. "... The correctness of
the conclusion of the state board rests upon the correctness of the returns made by the county boards and it
is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the
actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the
action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as
found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."

In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order
that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections,
"the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive,
and there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies
relied upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of
the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens' assemblies all over the Philippines — it follows necessarily that, from a
constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged
ratification of the proposed Constitution.

Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding
topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with
said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage
being eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting,
which was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the
proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of
an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens' Assemblies. 75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense
— which, if true, should be within their peculiar knowledge — is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or
are not prepared to say whether or not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases,
require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent
evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon
the petitioners the burden of disproving a defense set up by the respondents, who have not so far established the
truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that
many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held,
plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite
cases, We said, inter alia:

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending
the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken
until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order
No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution.

In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after consultation with, among
others, the leaders of Congress and the Commission on Elections — the Court deemed it more
imperative to defer its final action on these cases.

And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 — four (4) days
after the last hearing of said cases 76 — the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and
the leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed
Constitution into some local dialects and to comply with some pre-electoral requirements, as well as to afford the
people a reasonable opportunity to be posted on the contents and implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to
be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of
the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be the
plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite" postponed by
General Order No. 20? Under these circumstances, it was only reasonable for the people who attended such
assemblies to believe that the same were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.

And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to decide issues
of national interests?

[7] Do you approve of the new Constitution?

[8] Do you want a plebiscite to be called to ratify the new Constitution?

[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of
the 1935 Constitution?

[10] If the elections would not be held, when do you want the next elections to be called?

[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 —
"Do you approve the new Constitution?" One approves "of" the act of another which does not need such approval
for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of
the majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as
part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or
negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would
have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority
of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were
in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in
the affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions — apart from the other questions adverted to
above — indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for
the ratification or rejection of the proposed Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the
people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that
there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of
the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive,
the former reported:

... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the Summary of
Results thereof for each municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five questions.
Consequently, when we received an instruction on January 10 to change the questions, we
urgently suspended all scheduled Citizens Assembly meetings on that day and called all Mayors,
Chiefs of Offices and other government officials to another conference to discuss with them the
new set of guidelines and materials to be used.

On January 11, ... another instruction from the top was received to include the original five
questions among those to be discussed and asked in the Citizens' Assembly meetings. With this
latest order, we again had to make modifications in our instructions to all those managing and
supervising the holding of the Citizens' Assembly meetings throughout the province. ... Aside
from the coordinators we had from the Office of the Governor, the splendid cooperation and
support extended by almost all government officials and employees in the province, particularly of
the Department of Education, PC and PACD personnel, provided us with enough hands to trouble
shoot and implement sudden changes in the instructions anytime and anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their preference and
readiness to accept this new method of government to people consultation in shaping up
government policies.

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings
..." and call all available officials "... to discuss with them the new set of guidelines and materials to be used ... ."
Then, "on January 11 ... another instruction from the top was received to include the original five questions among
those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make
modifications in our instructions to all those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their preference and
readiness to accept the new method of government to people consultation in shaping up government policies."

This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss —
not put into operation — means and ways to carry out the changing instructions from the top on how to organize the
citizens' assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies;
2) that the assemblies would involve no more than consultations or dialogues between people and government —
not decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government
policies" and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once
the proposed Constitution shall have been ratified.

If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11, 1973, one can
easily imagine the predicament of the local officials and people in the remote barrios in northern and southern
Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including
those of their immediate families and their household, although duly registered voters in the area of Greater Manila,
were not even notified that citizens' assemblies would be held in the places where their respective residences were
located. In the Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the United
States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when
the validity of the law depends upon the truth of what is declared."

In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved
otherwise than in the negative.

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the
Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has
recognized said revised Constitution; that our foreign relations are being conducted under such new or revised
Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their
acts or omissions, indicated their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices
under the Executive Department. In a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in devising administrative means and ways to better carry
into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or
impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican
is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive
Department — specially under a written, rigid Constitution with a republican system of Government like ours — the
role of that Department is inherently, basically and fundamentally executive in nature — to "take care that the laws
be faithfully executed," in the language of our 1935 Constitution. 79

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in
line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized
the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even
normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity
with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law.
Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all
powers of Government — although some question his authority to do so — and, consequently, there is hardly
anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 — declaring that the
Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the
people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its personnel, which said proposed Constitution would place
under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine
matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status
quo in connection therewith pending final determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands of a superior officer or office, under
whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it
acted otherwise, would just be guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by respondents herein in support of the theory of
the people's acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called
by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by —

1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";

2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution
ordained by the Convention ...";

3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating
under it and putting its provisions into
operation ...";

4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and

5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for
their representatives in the Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the
people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely, the Governor; the Legislature — not merely by
individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the
people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of
the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the
contested amendment was not contested judicially until about one (1) year after the amendment had been put into
operation in all branches of the Government, and complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or
five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January
17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20, issued on January 7,
1972, formally and officially suspending the plebiscite until further notice — was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102.

It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in
the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established
in the Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as
well as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its
members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is no
such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become
necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in
the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions
under said Constitution, could have met in any other place, the building in which they perform their duties being
immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact
that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as
provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in
issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of
that date, 82 likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed".
Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups
involved in a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I have not exercised."

No matter how good the intention behind these statement may have been, the idea implied therein was too clear
an ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress,
not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to
him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet
since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.

For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial
Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or instructions — some or many of which have
admittedly had salutary effects — issued subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law
connotespower of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use
the gun against those who comply with the orders of the party wielding the weapon does not detract from the
intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of
the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not
without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is
specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new
form of government introduced in the proposed Constitution, with the particularity that it is not even identical to that
existing in England and other parts of the world, and that even experienced lawyers and social scientists find it
difficult to grasp the full implications of some provisions incorporated therein.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a
document certified to the President — for his action under the Constitution — by the Senate President and the
Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the
House of Representatives, concerning legislative measures approved by the two Houses of Congress. The argument
of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it
is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed
legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of
said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association,
particularly, its aforementioned president — whose honesty and integrity are unquestionable — were present at the
deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply
thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as
non-existent.

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community
Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the
Philippines — and the records do not show that any such certification, to the President of the Philippines or to the
President Federation or National Association of presidents of Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of citizens — would not, legally and constitutionally, be worth
the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the
Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to Article X
of the Constitution, should not and must not be all participate in said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that courts
"will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85

I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed
Constitution.

VI

Are the Parties entitled to any relief?

Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases.
In this connection, it should be noted that the Court has not decided whether or not to give due course to the
petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment
on the respective petitions — with three (3) members of the voting to dismiss them outright — and then considers
comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due
to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and
the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same,
according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the
cases could readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was
demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits
of the issues posed on account of the magnitude of the evil consequences, it was claimed, which would result from a
decision thereon, if adverse to the Government.

As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and
academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before
the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the
aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits
thereof. On the other hand, three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed
separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935
Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by
virtue of Proclamation 1102." 86 When the petitions at bar were filed, the same three (3) members of the Court,
consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share,
however, either view, believing that the main question that arose before the rendition of said judgment had not been
sufficiently discussed and argued as the nature and importance thereof demanded.

The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and
discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning
and afternoon, or a total of exactly 26 hours and 31 minutes — the respective counsel filed extensive notes on their
or arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in
addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions,
or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and
the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if
— disregarding forms — the petitions had been given due course and the cases had been submitted for decision.

Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages hereof,
despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.

In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-
36236 and L-36283, my vote is that the petitions therein should be given due course, there being more than prima
facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the
Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the
Revised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of
"judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not
probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of priority.

We must realize that the New Society has many achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic,
fundamental and essential parts of statesmanship itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as
appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the
votes cast by each of them.

It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was
agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes.
It was further agreed of course that each member of the Court would expound in his individual opinion and/or
concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or
jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.

The five questions thus agreed upon as reflecting the basic issues herein involved are the following:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not
strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in their respect
opinions and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102
presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this
question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of
whether or not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off out
of respect to the people's will, but, in negative, the Court may determine from both factual and legal angles whether
or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3)
members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry."

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated
in only by qualified and duly registered voters. 87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified
pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of
said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported
and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing
to recognize as a judge that factually there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I
am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to
have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence,
it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has
been in effect substantial compliance with the constitutional requirements for valid ratification.

3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have
already accepted the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and
there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or
repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the
doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this
stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and
the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law." 88

Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices
Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with
the free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the
point of judicial certainty, whether the people have accepted the Constitution." 89

4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases to resolve which considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny
respondents' motion to dismiss and to give due course to the petitions.

5. On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their votes on the third question that they could not state
with judicial certainty whether the people have accepted or not accepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention is not in force;

with the result that there are not enough votes to declare that the new Constitution is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force and effect.

It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

ANNEX A

PERTINENT PORTIONS

OF THE

MINNESSOTA SUPREME COURT

DECISION

ON THE CASE
IN RE McCONAUGHY

"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments. It has
been judicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v.
St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744,
881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V.
Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional requirement that every amendment must be separately
submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891;
State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v.
Cook, 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v.
Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the
failure to enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v.
Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State,
50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3
Am. St. Rep. 895); whether the description of the amendment and the form of the ballot are sufficient (Russell v.
Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v.
Attorney General [Mich.] 112 N.W. 127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D.
44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a
notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo.
69, 63 S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538;
Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v.
Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the amendment be submitted (People v. Curry, 130
Cal. 82, 62 Pac. 516).

In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the determination
of the question whether an amendment to the Constitution has been carried involves the exercise of political, and not
judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by the judiciary; but, with reference to the
conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by
courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the state no
amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as
essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be
adopted by the requisite vote. ... It is the fact of a majority vote which makes the amendment a part of the
Constitution."

"In considering the cases it is necessary to note whether in the particular case the court was called upon to determine
between rival governments, or whether the Legislature, or some board or official, had legally performed the duty
imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General Assembly, under the power granted by the Constitution, could change the Constitution only in the manner
prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been complied with.
In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in
convention or in a mode described by the Constitution itself, and that if the latter mode is adopted every requisite of
the Constitution must be observed. 'It has been said," says the court, "that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected; but to what purpose are these acts required, or these
requisitions enjoined, if the Legislature or any other department of the government can dispense with them. To do so
would be to violate the instrument which they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every amendment which is shown not to have been
made in accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an original Constitution, or abrogate
an old one and form a new one, at any time, without any political restriction, except the Constitution of the United
States, but if they undertake to add an amendment, by the authority of legislation to a Constitution already in
existence, they can do it only by the method pointed out by the Constitution to which the amendment is added. The
power to amend a Constitution by legislative action does not confer the power to break it, any more than it confers
the power to legislate on any other subject contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W.
785, it was held that no amendments can be made to the Constitution of the state without a compliance with the
provisions thereof, both in the passage of such amendment by the Legislature and the manner of submitting it to the
people. The courts have not all agreed as to the strictness of compliance which should be required.

"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to
the Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra,
that 'we entertain no doubt that, to change the Constitution in an other mode than by a convention, every requisite
which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment,'
the court held that, 'as substance of right is grander and more potent than methods of form,' there had been
substantial compliance with the constitutional requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the joint resolution making submission simply
provided that a proposition should be submitted to the electors at the general election of 1880. It did not declare that
the machinery of the general election law should control, or that any particular officers or board would receive,
count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received,
counted, and canvassed, and the result declared as fully as though it had been in terms so ordered. These methods
had been followed in the adoption of previous amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of the very
uncertainty of such provision the past legislative history of similar propositions, the universal prior acquiescence in
the same forms of procedure and the popular and unchallenged acceptance of the legal pendency before the people
of the question of the amendment for decision, and in view of the duty cast upon the court taking judicial knowledge
of anything affecting the existence and validity of any law or portion of the Constitution, it must be adjudged that the
proposed amendment became part of the Constitution. The effect was to hold that a provision of the Constitution
requiring the proposed amendment to be entered in full on the journals was directory, and not mandatory.
This liberal view was approved in State v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours,
31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted.

"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said: 'The
reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles,
but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument
is illogical, and based on premises which are without any sound foundation, and rests merely on assumption.' See,
also, the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede
the jurisdiction of the court to determine whether, in submitting a proposed amendment to the people, the
Legislature legally observed the constitutional provisions as to the manner of procedure. In Livermore v. Waite, 102
Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer, restrained the Secretary
of State from taking steps to submit to the people a proposed amendment to the Constitution agreed to by the
Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that the
proposed amendment was of such a character that it could not properly become a part of the Constitution. The
Supreme Court of Colorado, in People v. Sours, supra, refused to exercise this authority.

"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609.
The amendment, which concededly had been adopted by the people, had not, before its submission, been entered in
full upon the legislative journals, as required by the Constitution, and it was held that this was a material variance in
both form and substance from the constitutional requirements, and that the amendment did not, therefore, become a
part of the Constitution. As to the claim that the question was political, and not judicial, it was said that, while it is
not competent for courts to inquire into the validity of the Constitution and the form of government under which
they themselves exist, and from which they derive their powers, yet, where the existing Constitution prescribes a
method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that
method; and it is the duty of the courts in a proper case, when an amendment does not relate to their own power or
functions, to inquire whether, in the adoption of the amendment, the provisions of the existing Constitution have
been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v.
Brookhart, 113 Iowa, 250, 84 N.W. 1064.

"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution had been
legally adopted was treated as a judicial question. By the Constitution a proposed amendment was required to be
approved by Legislatures before its submission to the people. In this instance a bill was passed which contained 17
amendments. The next Legislature rejected 9 and adopted 8 of the amendments, and submitted them to the
people. The majority of the people voted for their adoption; but it was contended that the Constitution contemplated
and required that the same bill and the same amendments, without change, should approved by both Legislatures,
and that it did not follow because the second Legislature adopted separately 8 out of 17 amendments adopted by the
first Legislature, it would have adopted the 17, or any of them, if they had been voted upon the second in the form
adopted by the first body. The substance of the contention was that there had not been a concurrence of
the twoLegislatures on the same amendments, according to the letter and spirit of the Constitution. The court held
that the power of the Legislature in submitting amendments could not be distinguished from the powers of
convention, and that, as the people had spoken and ratified the amendments, they became a part of the Constitution.

"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed amendment to
Constitution could not be submitted to the people at any other than a general election; but, as the amendment under
consideration had been submitted after the Constitution been changed, it had been legally submitted and adopted.

"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution had been
legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The amendment
under consideration changed the Constitution by providing for an elective, instead of an appointive, judiciary. It was
contented that the amendments had been improperly submitted and adopted by a majority of the qualified voters
voting at election, as required by the Constitution. The law did direct how the result of the election should be
determined. The Legislature by joint resolution recited that the election had been duly held throughout the state, and,
as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643
votes against, the amendment, it resolved 'that said amendment be, and hereby is, inserted into the Constitution of
the state of Mississippi as a part of the Constitution.' In fact, the amendment was not submitted in the
manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters voting at the
election. It was argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature, and
from the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or
determined by these rules. Whether the question be political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of procedure, but of final judgment as well, confides to the
separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The
Legislature puts the question to the qualified electors. The qualified electors answer back to the Legislature. "If it
shall appear" to the Legislature that its question has been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no authority to speak at any stage of the
proceedings between the sovereign and the Legislature, and when the matter is thus concluded it is closed, and the
judiciary is as powerless to interfere as the executive.' But it was held that the question whether the proposition
submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the
requirements of the Constitution, and whether the proposition was in fact adopted, were all judicial, and not
political, questions. 'We do not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed
upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state
is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which, like all others, must be discharged."

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of the judicial
department of the government to determine whether the legislative department or its officers had observed the
constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so.
The case is an interesting and well-considered one. The Constitution provided the manner in which proposed
amendments should be submitted to the people, but did not provide a method for canvassing the votes. The
Legislature having agreed to certain proposed amendments, passed an act for submitting the same to the people. This
statute provided for the transmission to the Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time summon four or more Senators,
who, with the Governor, should constitute a board of state canvassers to canvass and estimate the votes for and
against each amendment. This board was to determine and declare which of the proposed amendments had been
adopted and to deliver a statement of the results to the Secretary of State, and "any proposed amendment, which by
said certificate and determination of the board of canvassers shall appear to have received in its favor the majority of
all the votes cast in the state for and against said proposed amendment, shall from the time of filing such certificate
be and become an amendment to and a part of the Constitution of the state; and it shall be the duty of the Governor
of the state forthwith, after such a determination, to issue a proclamation declaring which of the said proposed
amendments have been adopted by the people." This board was required to file a statement of the result of the
election, and the Governor to issue his proclamation declaring that the amendment had been adopted and become a
part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into
the court for review the statement of the results of the election made by the canvassing board, in order that it might
be judicially determined whether on the facts shown in that statement the board had legally determined that the
proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state
canvassers and the executive department of the government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the state. The Court of Appeals, after a full review of the
authorities, reversed this decision, and held that the questions were of a judicial nature, and properly determinable
by the court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that there was
present in the Supreme Court, and is now pending in this court, every element tending to maintain jurisdiction over
the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to
consider whether the legislative department and its agencies have observed constitutional injunctions in attempting
to amend the Constitution, and to annul their acts in case that they have not done so. That such a proposition is not
true seems to be indicated by the whole history of jurisprudence in this country.' The court, after considering the
case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in question
was legally submitted and adopted.

"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have under
consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of the House of
Representatives the power to determine whether an amendment had been adopted, and that the question was
political, and not judicial, the court observed: "The argument has often been made in similar cases to the courts, and
it is found in many dissenting opinions; but, with probably a few exceptions, it is not found in
any prevailing opinion."

"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of
publication of a proposed constitutional provision for three months prior to the election at which it is to be submitted
to the people is mandatory and that noncompliance therewith renders the adoption of an amendment of no effect."

ANNEX B

MALACAÑANG

MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays
(Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national
issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution proposed by the
1971 Constitutional Convention;

WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the
proposed Constitution to the Citizens Assemblies or Barangays should taken as a plebiscite in itself in view of the
fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and
that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens
Assemblies;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order that important national issues shall from time to time be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5,
1973 an that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971
Constitutional Convention.

The Secretary of the Department of Local Government and Community Development shall insure the
implementation of this Order.

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.

(SGD.) FERDINAND E.
MARCOS

By the President:

(SGD.) ALEJANDRO MELCHOR


Executive Secretary