Republic of the Philippines After the adoption of said Res. No.
2 in 1967 but before the
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.
November elections of that year, Congress, acting as a
legislative body, enacted Republic Act No. 4914 implementing
the aforesaid Resolution No. 2 and practically restating in toto
the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent
Assembly, passed Resolution No. 4 amending the aforesaid
Resolution No. 2 of March 16, 1967 by providing that the
convention "shall be composed of 320 delegates apportioned
among the existing representative districts according to the
number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates,
who shall have the same qualifications as those required of
members of the House of Representatives,"1 "and that any other
details relating to the specific apportionment of delegates,
election of delegates to, and the holding of, the Constitutional
Convention shall be embodied in an implementing legislation:
Provided, that it shall not be inconsistent with the provisions of
this Resolution."2
On August 24, 1970, Congress, acting as a legislative body,
enacted Republic Act No. 6132, implementing Resolutions
Nos. 2 and 4, and expressly repealing R.A. No.
4914.3
Petitioner Raul M. Gonzales assails the validity of the entire law
as well as the particular provisions embodied in Sections 2, 4,
5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132
practically on the same grounds advanced by petitioner
Gonzales.
I
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.
V section may or will be violated. The right of a member of any
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
political party or association to support him or oppose his
opponent is preserved as long as such member acts individually.
The very party or organization to which he may belong or which
may be in sympathy with his cause or program of reforms, is
guaranteed the right to disseminate information about, or to
arouse public interest in, or to advocate for constitutional
reforms, programs, policies or constitutional proposals for
amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is
so narrow that the basic constitutional rights themselves remain
substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked
by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the
period for nomination of candidates in Sec. 50-A of R.A. No.
4880, thus:
The prohibition of too early nomination of
candidates presents a question that is not too
formidable in character. According to the act:
"It shall be unlawful for any political party,
political committee, or political group to
nominate candidates for any elective public
office voted for at large earlier than one
hundred and fifty days immediately
preceding an election, and for any other
elective public office earlier than ninety days
immediately preceding an election.
The right of association is affected. Political
parties have less freedom as to the time
during which they may nominate candidates;
the curtailment is not such, however, as to
render meaningless such a basic right. Their
scope of legitimate activities, save this one, is
not unduly narrowed. Neither is there
infringement of their freedom to assemble.
They can do so, but not for such a purpose.
 We sustain its validity. We do so
unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that
the period for the conduct of an election campaign or partisan
political activity may be limited without offending the
aforementioned constitutional guarantees as the same is
designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming
organizations, associations, clubs, committees or other group of
persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate;
(b) holding political conventions, caucuses, conferences,
meetings, rallies, parades or other similar assemblies for the
purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party; and (c) giving,
soliciting, or receiving contributions for election campaign
either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c),
R.A. 4880), the abridgment was still affirmed as constitutional
by six members of this Court, which could not "ignore ... the
legislative declaration that its enactment was in response to a
serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and
likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the
situation." 12;
Likewise, because four members dissented, this Court in said
case of Gonzales vs. Comelec, supra, failed to muster the
required eight votes to declare as unconstitutional the limitation
on the period for (a) making speeches, announcements or
commentaries or holding interviews for or against the election
of any party or candidate for public office; (b) publishing or
distributing campaign literature or materials; and (e) directly or
indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in
Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil
exists today and is one of the major compelling interests that
moved Congress into prescribing the total ban contained in par.
1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the
said Gonzales vs. Comelec case, this Court gave "due
recognition to the legislative concern to cleanse, and if possible,
render spotless, the electoral process," 14 impressed as it was by
the explanation made by the author of R.A. No. 4880, Sen.
Lorenzo Tañada, who appeared as amicus curiae, "that such
provisions were deemed by the legislative body to be part and
parcel of the necessary and appropriate response not merely to
a clear and present danger but to the actual existence of a grave
and substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has marred election
campaigns and partisan political activities in this country. He
did invite our attention likewise to the well-settled doctrine that
in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless
clearly repugnant to fundamental rights, be ignored or
disregarded." 15
But aside from the clear and imminent danger of the
debasement of the electoral process, as conceded by Senator
Pelaez, the basic motivation, according to Senate Majority
Floor Leader Senator Arturo Tolentino, the sponsor of the
Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of
R.A. No. 6132, is to assure the candidates equal protection of
the laws by according them equality of chances. 16 The primary
purpose of the prohibition then is also to avert the clear and
present danger of another substantive evil, the denial of the
equal protection of the laws. The candidates must depend on
their individual merits and not on the support of political parties
or organizations. Senator Tolentino and Senator Salonga
emphasized that under this provision, the poor candidate has an
even chance as against the rich candidate. We are not prepared
to disagree with them, because such a conclusion, predicated as
it is on empirical logic, finds support in our recent political
history and experience. Both Senators stressed that the
independent candidate who wins in the election against a
candidate of the major political parties, is a rare phenomenon in
this country and the victory of an independent candidate mainly
rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting
his opponent. This position is further strengthened by the
principle that the guarantee of social justice under Sec. V, Art.
II of the Constitution, includes the guarantee of equal
opportunity, equality of political rights, and equality before the
law enunciated by Mr. Justice Tuazon in the case Guido vs.
Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not
wrong per se it is equally true that Congress in the exercise of
its broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One
such act is the party or organization support proscribed in Sec.
8(a),which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be
better attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the
balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on
the threshold of rewriting its Constitution in
a hopeful endeavor to find a solution to the
grave economic, social and political
problems besetting the country. Instead of
directly proposing the amendments Congress
has chosen to call a Constitutional
Convention which shall have the task of
fashioning a document that shall embody the
aspirations and ideals of the people. Because
what is to be amended is the fundamental law
of the land, it is indispensable that the
Constitutional Convention be composed of
delegates truly representative of the people's
will. Public welfare demands that the
delegates should speak for the entire nation,
 and their voices be not those of a particular
segment of the citizenry, or of a particular
class or group of people, be they religious,
political, civic or professional in character.
Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional
Amendments, eloquently stated that "the
function of a constitution is not to represent
anyone in interest or set of interests, not to
favor one group at the expense or
disadvantage of the candidates — but to
encompass all the interests that exist within
our society and to blend them into one
harmonious and balanced whole. For the
constitutional system means, not the
predominance of interests, but the
harmonious balancing thereof."
So that the purpose for calling the
Constitutional Convention will not be
deflated or frustrated, it is necessary that the
delegatee thereto be independent, beholden to
no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to
prevent lies in the election of delegates who,
because they have been chosen with the aid
and resources of organizations, cannot be
expected to be sufficiently representative of
the people. Such delegates could very well be
the spokesmen of narrow political, religious
or economic interest and not of the great
majority of the people. 20
We likewise concur with the Solicitor General that the equal
protection of the laws is not unduly subverted in par. I of Sec.
8(a); because it does not create any hostile discrimination
against any party or group nor does it confer undue favor or
privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political
parties or social, civic, religious, or professional associations.
The ban is germane to the objectives of the law, which are to
avert the debasement of the electoral process, and to attain real
equality of chances among individual candidates and thereby
make real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-
in advantages because of their machinery and other facilities,
which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious
organizations cannot have a campaign machinery as efficient as
that of a political party, does not vary the situation; because it
still has that much built-in advantage as against the individual
candidate without similar support. Moreover, these civic
religious and professional organization may band together to
support common candidates, who advocates the reforms that
these organizations champion and believe are imperative. This
is admitted by petitioner Gonzales thru the letter of Senator
Ganzon dated August 17, 1970 attached to his petition as Annex
"D", wherein the Senator stated that his own "Timawa" group
had agreed with the Liberal Party in Iloilo to support petitioner
Gonzales and two others as their candidates for the convention,
which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and
working in joint collective effort" they cannot "exercise
effective control and supervision over our
leaders — the Women's League, the area commanders, etc.";
but with their joining with the LP's they "could have presented
a solid front with very bright chances of capturing all seats."
The civic associations other than political parties cannot with
reason insist that they should be exempted from the ban;
because then by such exemption they would be free to utilize
the facilities of the campaign machineries which they are
denying to the political parties. Whenever all organization
engages in a political activity, as in this campaign for election
of delegates to the Constitutional Convention, to that extent it
partakes of the nature of a political organization. This, despite
the fact that the Constitution and by laws of such civic,
religious, or professional associations usually prohibit the
association from engaging in partisan political activity or
supporting any candidate for an elective office. Hence, they
must likewise respect the ban.
The freedom of association also implies the liberty not to
associate or join with others or join any existing organization.
A person may run independently on his own merits without
need of catering to a political party or any other association for
support. And he, as much as the candidate whose candidacy
does not evoke sympathy from any political party or organized
group, must be afforded equal chances. As emphasized by
Senators Tolentino and Salonga, this ban is to assure equal
chances to a candidate with talent and imbued with patriotism
as well as nobility of purpose, so that the country can utilize
their services if elected.
Impressed as We are by the eloquent and masterly exposition of
Senator Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A.
No. 6132, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of Rights,
We are not persuaded to entertain the belief that the challenged
ban transcends the limits of constitutional invasion of such
cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied
and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph
1, thereof, cannot be declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court,
comprehensive in scope, persuasive in character and lucid in
expression, has much to recommend it. On the whole, I concur.
I find difficulty, however, in accepting the conclusion that there
is no basis for the challenge hurled against the validity of this
provision: "No candidate for delegate to the Convention shall
represent or allow himself to be represented as being a
candidate of any political party or any other organization, and
no political party, political group, political committee, civic,
religious, professional, or other organization or organized group
of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give
aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election: ..." 1 It is with
regret then that I dissent from that portion of the decision.
1. I find it difficult to reconcile the decision reached insofar as
the aforesaid ban on political parties and civic, professional and
other organizations is concerned with the explicit provision that
the freedom to form associations or societies for purposes not
contrary to law shall not be abridged.2 The right of an individual
to join others of a like persuasion to pursue common objectives
and to engage in activities is embraced within if not actually
encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its
origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of
such character, it is the view of Justice Douglas, in a 1963
article, that it is primarily the First Amendment of her
Constitution, which safeguards freedom of speech and of the
press, of assembly and of petition "that provides [associations]
with the protection they need if they are to remain viable and
continue to contribute to our Free Society." 3 Such is indeed the
case, for five years earlier the American Supreme Court had
already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an
inseparable aspect of the "liberty" [embraced in] freedom of
speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the
American Supreme Court could elaborate further on the scope
of the right of association as including "the right to express one's
attitudes or philosophies by membership in a group or by
affiliation with it or by other lawful means, Association in that
context is a form of expression of opinion; and while it is not
extremely included in the First Amendment its existence is
necessary in making the express guarantees fully
meaningful."5 Thus is further vitalized freedom of expression
which, for Justice Laurel, is at once the instrument" and the
guarantee and the bright consummate flower of all liberty"6 and,
for Justice Cardozo, "the matrix, the indispensable condition of
nearly every other form of freedom." 7
2. It is in the light of the above fundamental postulates that I
find merit in the plea of petitioners to annul the challenged
provision. There is much to be said for the point emphatically
stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the
effect that there is nothing unlawful in a candidate for delegate
to the Convention representing or allowing himself to be
represented as such of any political party or any other
organization as well as of such political party, political group,
political committee, civic, religious, professional or other
organization or organized group intervening in his nomination,
in the filing of his certificate of candidacy, or giving aid or
support, directly or indirectly, material or otherwise, favorable
to or against his campaign for election as such delegate. I find
the conclusion inescapabe therefore, that what the constitutional
provisions in question allow, more specifically the right to form
associations, is prohibited. The infirmity of the ban is thus
apparent on its face.
There is, to my mind, another avenue of approach that leads to
the same conclusion. The final proviso in the same section of
the Act forbids any construction that would in any wise "impair
or abridge the freedom of civic, political, religious,
professional, trade organizations or organized groups of
whatever nature to disseminate information about, or arouse
public interest in, the forthcoming Constitutional Convention,
or to advocate constitutional reforms, programs, policies or
proposals for amendment of the present Constitution, and no
prohibition contained herein shall limit or curtail the right of
their members, as long as they act individually, to support or
oppose any candidate for delegate to the Constitutional
Convention."8 It is regrettable that such an explicit recognition
of what cannot be forbidden consistently with the constitutional
guarantees of freedom of expression and freedom of association
falls short of according full respect to what is thus commanded,
by the fundamental law, as they are precluded by the very same
Act from giving aid or support precisely to the very individuals
who can carry out whatever constitutional reforms, programs,
policies or proposals for amendment they might advocate. As
thus viewed, the conviction I entertain as to its lack of validity
is further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear and
present danger of a substantive evil that would justify a
limitation on such cherished freedoms. Reference has been
made to Gonzales v. Commission on Elections.9 As repression
is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil
apprehended is to imminent that it may befall before there is
opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil
by the processes of education, the remedy to be applied is more
speech, not enforced silence. For him the apprehended evil must
be "relatively serious." For "[prohibition] of free speech and
assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm
to society." Justice Black would go further. He would require
that the substantive evil be "extremely serious." Only thus may
there be a realization of the ideal envisioned by Cardozo: "There
shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from
Holmes. Thus: "The question in every case is whether the words
used in such circumstances are of such a nature as to create a
clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
question of proximity and degree." " 10 The majority of the
Court would find the existence of a clear and present danger of
debasing the electoral process. With due respect, I find myself
unable to share such a view.
The assumption would, appear to be that there is a clear and
present danger of a grave substantive evil of partisanship
running riot unless political parties are thus restrained. There
would be a sacrifice then of the national interest involved. The
Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It
would appear though that what prompted such a ban is to assure
that the present majority party would not continue to play its
dominant role in the political life of the nation. The thought is
entertained that otherwise, we will not have a Convention truly
responsive to the needs of the hour and of the future insofar as
they may be anticipated.
To my mind, this is to lose sight of the fact that in the national
elections of 1946, 1953, 1961 and 1965, the presidency was
won by the opposition candidate. Moreover, in national
elections for senators alone, that of 1951, to mention only one
instance, saw a complete sweep of the field by the then minority
party. It would be unjustifiable, so I am led to believe to assume
that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed
amendments in 1967 indicate unmistakably that the people can,
if so minded, make their wishes prevail. There is thus no
assurance that the mere identification with party labels would
automatically insure the success of a candidacy. Even if it be
assumed that to guard against the evils of party spirit carried to
excess, such a ban is called for, still no such danger is presented
by allowing civil, professional or any other organization or
organized group of whatever nature to field its own candidates
or give aid or support, directly or indirectly material or
otherwise, to anyone running for the Convention. From such a
source, no such misgivings or apprehension need arise. Nor it
the fear that organizations could hastily be assembled or put up
to camouflage their true colors as satellites of the political
parties be valid. The electorate can see through such schemes
and can emphatically register its reaction. There is, moreover,
the further safeguard that whatever work the Convention may
propose is ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor
present. What causes me grave concern is that to guard against
such undesirable eventuality, which may not even come to pass,
a flagrant disregard of what the Constitution ordains is
minimized. A desirable end cannot be coerced by
unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter
so essentially political as the amendment or revision of an
existing Constitution, political parties or political groups are to
be denied the opportunity of launching the candidacy of their
choice. Well has it been said by Chief Justice Hughes: "The
greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and
violence, the more imperative is the need to preserve inviolate
the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the
will of the people and that changes, if desired, may be obtained
by peaceful means. Therein lies the security of the Republic, the
very foundation of constitutional government." 11 It is to carry
this essential process one step farther to recognize and to
implement the right of every political party or group to select
the candidates who, by their election, could translate into
actuality their hopes for the fundamental law that the times
demand. Moreover, is it not in keeping with the rights to
intellectual freedom so sedulously safeguarded by the
Constitution to remove all obstacles to organized civic groups
making their influence felt in the task of constitution framing,
the result of which has momentuous implications for the nation?
What is decisive of this aspect of the matter is not the character
of the association or organized group as such but the essentially
political activity thus carried out.
This is not to deny the wide latitude as to the choice of means
vested in Congress to attain a desirable goal. Nor can it be
successfully argued that the judiciary should display reluctance
in extending sympathy and understanding to such legislative
determination. This is merely to stress that however worthwhile
the objective, the Constitution must still be paid deference.
Moreover, it may not be altogether unrealistic to consider the
practical effects of the ban as thus worded as not lacking in
effectivity insofar as civic, religious, professional or other
organizations or organized group is concerned, but not
necessarily so in the case of political party, political group or
political committee. There is the commendable admission by
Senator Tolentino, appearing as amicus curiae, that the political
leaders of stature, in their individual capacity, could continue to
assert their influence. It could very well happen, then, in not a
few cases, assuming the strength of political parties, that a
candidate thus favored is sure of emerging the victor. What is
thus sought to be accomplished to guard against the evil of party
spirit prevailing could very well be doomed to futility. The high
hopes entertained by the articulate and vocal groups of young
people, intellectuals and workers, may not be realized. The
result would be that this unorthodox and novel provision could
assume the character of a tease, an illusion like a munificent
bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism,
then, to my mind, a radical approach to a problem possibly
tainted with constitutional infirmity cannot hurdle the judicial
test as to its validity. It is one thing to encourage a fresh and
untried solution to a problem of gravity when the probability of
its success may be assumed. It is an entirely different matter to
cut down the exercise of what otherwise are undeniable
constitutional rights, when as in this case, the outcome might
belie expectations. Considering the well-settled principle that
even though the governmental process be legitimate and
substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties, if the end can be narrowly
achieved, I am far from being persuaded that to preclude
political parties or other groups or associations from lending aid
and support to the candidates of men in whom they can repose
their trust is consistent with the constitutional rights of freedom
of association and freedom of expression. Here, the danger of
overbreadth, so clear and manifest as to be offensive to
constitutional standards, magnified by the probability that the
result would be the failure and not success of the statutory
scheme, cautions against the affixing of the imprimatur of
judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it
would follow that the holding of this Court in Gonzales v.
Comelec 12 does not compel the conclusion reached by the
majority sustaining the validity of this challenged provision.
What survived the test of constitutional validity in that case,
with the Court unanimous in its opinion, is the prohibition for
any political party, political committee or political group to
nominate candidates for any elective public office voted for at
large earlier than 150 days immediately preceding election and
for any other public office earlier than 90 days immediately
preceding such election. 13 A corollary to the above limitation,
the provision making it unlawful for any person, whether or not
a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage
in an election campaign or partisan political activity except
during the above periods successfully hurdled, the
constitutional test, although the restrictions as to the making of
speeches, announcements or commentaries or holding
interviews for or against the election of any party or candidate
for public office or the publishing or distributing of campaign
literature or materials or the solicitation or undertaking any
campaign or propaganda for or against any candidate or party,
directly or indirectly, survived by the narrow margin of one
vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee,
thus resulting in failing to muster the necessary two-thirds
majority for a declaration of invalidity. Insofar as election
campaign or partisan political activity would limit or restrict the
formation, of organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda for or against a party
or candidate or, the giving, soliciting, or receiving a
contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions,
caucuses, conferences, meetings, rallies, parades or other
similar assemblies, with a similar and in view, only five
members of this Court, a minority thereof voted, for their
unconstitutionality. What emerges clearly, then, is that definite
acts short of preventing the political parties from the choice of
their candidates and thereafter working for them in effect were
considered by this Court as not violative of the constitutional
freedoms of speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes
much farther. Political parties or any other organization or
organized group are precluded from selecting and supporting
candidates for delegates to the Constitutional Convention. To
my mind, this is to enter a forbidden domain, Congress
trespassing on a field hitherto rightfully assumed to be within
the sphere of liberty. Thus, I am unable to conclude that our
previous decision in Gonzales v. Commission on Elections
which already was indicative of the cautious and hesitant
judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of
belief, of expression, and of association lends support to the
decision reached by the majority insofar as this challenged
provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of
the Court. I am authorized to state that the Chief Justice is in
agreement with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in
concurrence with the majority, to sustain the validity of the
provisions of Republic Act 6132 impugned by petitioners in
these cases, except Section 4 and the portion of Section 8(a)
referring to political parties. As regards Section 4, I reiterate my
separate opinion in the cases of Subido and others. (G.R. Nos.
L-32436 and L-32439) With respect to Section 8(a), I hold that
the considerations which take the restraint on the freedoms of
association, assembly and speech involved in the ban on
political parties to nominate and support their own candidates,
reasonable and within the limits of the Constitution do not
obtain when it comes to civic or non-political organizations. As
I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve
the built-in advantages of political parties while at the same
time crippling completely the other kinds of associations. The
only way to accomplish the purported objective of the law of
equalizing the forces that will campaign in behalf of the
candidates to the constitutional convention is to maintain said
ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some
of their members have made necessary the imposition thereof.
Under the resulting set up embodied in the provision in
question, the individual candidates who have never had any
political party connections or very little of it would be at an
obvious disadvantage unless they are allowed to seek and use
the aid of civic organizations. Neither the elaborate provisions
of Republic Act 6132 regarding methods of campaign nor its
other provisions intended to minimize the participation of
political parties in the electorate processes of voting, counting
of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political
parties, particularly the major and established ones, as long as
the right to form other associations and the right of these
associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left
between now and election day.
The issues involved in the coming elections are grave and
fundamental ones that are bound to affect the lives, rights and
liberties of all the people of this country most effectively,
pervasively and permanently. The only insurance of the people
against political parties which may be inclined towards the
Establishment and the status quo is to organize themselves to
gain much needed strength and effectivity. To deny them this
right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to
particular candidates in an organized way, similarly as in the
use of platforms by political parties, cannot have any chance of
support and final adoption. Both men and issues are important,
but unrelated to each other, each of them alone is insignificant,
and the only way to relate them is by organization. Precisely
because the issues in this election of candidates are of
paramount importance second to none, it is imperative that all
of the freedoms enshrined in the constitution should have the
ampliest recognition for those who are minded to actively battle
for them and any attempt to curtail them would endanger the 2 The Constitution provides: "The right to form associations or
very purposes for which a new constitutional convention has societies for purposes not contrary to law shall not be abridged."
been conceived. Art. III, Sec. 1, par. 6.
3 Douglas, The Right of Association, 63 Col. Law Rev. 1363
Consistently with my separate opinion in the case of Gonzales (1963).
and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958)
and for the reasons therein stated, I maintain that the right of per Harlan, J. Cf. Bates v. Little Rock, 361 US 516 (1960);
suffrage which is the cornerstone of any democracy like ours is Shelton v. Tucker, 364 US 479. (1960); Louisiana ex rel.
meaningless when the right to campaign in any election therein Gremillon v. NAACP, 366 US. 293 (1961); Communist Party
is unreasonably and unnecessarily curtailed, restrained or v. Subversive Activities Control Board, 367 US 1 (1961);
hampered, as is being done under the statute in dispute. Scales v. United States, 367 US 203 (1961); NAACP v. Button,
371 US 415 (1963); Gibson v. Florida Legislative Investigation,
Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel.
It is, of course, understood that this opinion is based on my
considered view, contrary to that of the majority, that as Section State Bar 377 US 1 (1964); NAACP v. Alabama, 377 US 288
8(a) stands and taking into account its genesis, the ban against (1964).
5 Griswold v. Connecticut, 381 US 479, 483 (1965). In
political parties is separable from that against other associations
Elfbrandt v. Russel, 384 US 11, 18 (1966) he spoke of this right
within the contemplation of Section 21 of the Act which
as a "cherished freedom." Cf. Keyishan v. Board of Regents,
expressly refers to the separability of the application thereof to
385 US 589 (1967).
any "persons, groups or circumstances."
6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting
Wendell Philipps.
I reserve my right to expand this explanation of my vote in the 7 Palko v. Connecticut, 302 US 319, 323 (1937).
next few days. 8 Section 8(a), Republic Act No. 6132 (1970).
9 L-27833, April 18, 1969, 27 SCRA 835.
# Footnotes 10 Ibid., pp. 859-860.
11 De Jonge v. Oregon, 299 US 353, 365 (1937).
1 Sec. 1 of Res. No. 4. 12 L-27833, April 18, 1969, 27 SCRA -835.
2 Sec. 3, Res. No. 4. 13 Sec. 50(a) of Republic Act 4880 (1967).
3 Sec. 22, R.A. No. 6132.
4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec.
8(a) par. 2, R.A. 6132, G.R. No. L-32436, and In the matter of
the petition for declaratory relief re validity and
constitutionality of Sec. 4, R.A. 6132, Hon. Guardson Lood,
Judge, CFI, Pasig, Rizal et al., petitioners, G.R. No. L-32439,
Sept. 9, 1970.
5 Sec. 5, Art. VI, Constitution.
6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..
7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-
14864, Nov. 23, 1960.
8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27,
SCRA, p. 835, 858 et seq.; Justice Douglas in Elfbrandt v.
Russel, 384 US 11, 18-19, 1966.
9 27 SCRA, pp. 860-861.
10 27 SCRA, p. 865.
11 27 SCRA, p. 869.
12 27 SCRA, pp. 864-865, 868.
13 27 SCRA, pp. 869-870.
14 27 SCRA, p. 873.
15 27 SCRA, p. 872.
16 See his sponsorship speech of July 20, 1970.
17 84 Phil. 847, 852.
18 See his sponsorship speech on July 20, 1970.
19 See Justice Castro's separate opinion in Gonzales vs.
Comelec, supra, 27 SCRA, pp. 898-899 citing American
Communications Association vs. Douds, 339 U.S. 383, 94 L.
Ed., 925, 9437.
20 Pp. 4-5, 12, Answer in L-32432.

FERNANDO, J., concurring and dissenting:

1 Sec. 8(a), Republic Act No. 6132 (1970).
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 Peoples 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.
DECISION
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a
petition for prohibition under Rule 65 of the Rules of Court is
the right of the people to directly propose amendments to the
Constitution through the system of initiative under Section 2 of
Article XVII of the 1987 Constitution. Undoubtedly, this
demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original
proponent[1] and the main sponsor[2] of the proposed Article on
Amendments or Revision of the Constitution, characterized this
system as innovative.[3] Indeed it is, for both under the 1935 and
1973 Constitutions, only two methods of proposing
amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths
of all its members and (2) by a constitutional convention. [4] For
this and the other reasons hereafter discussed, we resolved to
give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S.
Delfin filed with public respondent Commission on Elections
(hereafter, COMELEC) a Petition to Amend the Constitution,
to Lift Term Limits of Elective Officials, by Peoples 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 Peoples 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,[7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of
the Constitution. Attached to the petition is a copy of a Petition
for Initiative on the 1987 Constitution[10] embodying the
proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and
with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF
ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING
FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will
first be submitted to the people, and after it is signed by at least
twelve per cent of the total number of registered voters in the
country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith
given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order[11] (a)
directing Delfin to cause the publication of the petition, together
with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment,
and the signature form), and the notice of hearing in three (3)
daily newspapers of general circulation at his own expense not
later than 9 December 1996; and (b) setting the case for hearing
on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December
1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the Peoples 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 peoples 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
Constitutional Amendments by Peoples 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
peoples 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 peoples 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 peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples
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 peoples 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 taxpayers and legislators 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 peoples 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-
SANTIAGOS 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-SANTIAGOS 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, peoples 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 latters 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
peoples 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 peoples
initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins 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
peoples 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 peoples 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 COMELECs 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 Commissions failure or refusal to
do so constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of
portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No.
21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989
on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed
their Consolidated Comments on the Petitions in Intervention
of Senator Roco, DIK and MABINI, and IBP.[23] The parties
thereafter filed, in due time, their separate memoranda. [24]
As we stated in the beginning, we resolved to give due
course to this special civil action.
For a more logical discussion of the formulated issues, we
shall first take up the fifth issue which appears to pose a
prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties
paid no serious attention to the fifth issue, i.e., whether it is
proper for this Court to take cognizance of this special civil
action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the
petition filed by private respondent Delfin. This being so, it
becomes imperative to stop the Comelec from proceeding any
further, and under the Rules of Court, Rule 65, Section 2, a
petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse
environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal
confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional law
is threatened by the political ambitions of man, only the
Supreme Court can save a nation in peril and uphold the
paramount majesty of the Constitution.[25]
It must be recalled that intervenor Roco filed with the
COMELEC a motion to dismiss the Delfin Petition on the
ground that the COMELEC has no jurisdiction or authority to
entertain the petition.[26] The COMELEC made no ruling
thereon evidently because after having heard the arguments of
Delfin and the oppositors at the hearing on 12 December 1996,
it required them to submit within five days their memoranda or
oppositions/memoranda.[27] Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin
Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting the case
for hearing. The COMELECs failure to act on Rocos 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 COMELECgravely 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 partys 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:
SECTION 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
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
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:
xxx
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
MR. ROMULO. But the Commissioners amendment does not
prevent the legislature from asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words,
the implementation of this particular right would be subject to
legislation, provided the legislature cannot determine anymore
the percentage of the requirement.
MR. ROMULO. But the procedures, including the
determination of the proper form for submission to the people,
may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to be
proposed by the legislative body must diminish or impair the
right conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes.[37]
Commissioner Davide also reaffirmed that his modified
amendment strictly confines initiative to AMENDMENTS to -
- NOT REVISION of -- the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner
Davide's proposed amendment on line 1 refers to
"amendment." Does it not cover the word "revision" as defined
by Commissioner Padilla when he made the distinction between
the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments"
and "revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not
"revision."[38]
Commissioner Davide further emphasized that the process
of proposing amendments through initiative must be more
rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this
proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily require
a proposal by the National Assembly by a vote of three-fourths;
and to call a constitutional convention would require a higher
number. Moreover, just to submit the issue of calling a
constitutional convention, a majority of the National Assembly
is required, the import being that the process of amendment
must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I
cannot agree to reducing the requirement approved by the
Committee on the Legislative because it would require another
voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a
proposal, by way of an amendment, when the Commission shall
take up the Article on the Legislative or on the National
Assembly on plenary sessions.[39]
The Davide modified amendments to Section 2 were
subjected to amendments, and the final version, which the
Commission approved by a vote of 31 in favor and 3 against,
reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF
THIS RIGHT.[40]
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.[41] Thereafter, upon
his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was
again approved on Second and Third Readings on 1 August
1986.[42]
However, the Committee on Style recommended that the
approved Section 2 be amended by changing percent to per
centum and thereof to therein and deleting the phrase by law in
the second paragraph so that said paragraph reads: The
Congress[43] shall provide for the implementation of the
exercise of this right.[44] This amendment was approved and is
the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system
of initiative on the Constitution under Section 2 of Article XVII
of the Constitution is not self-executory.
Has Congress provided for the implementation of the
exercise of this right? Those who answer the question in the
affirmative, like the private respondents and intervenor Senator
Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to
implement the exercise of the right than through the passage of
a statute or legislative act. This is the essence or rationale of the
last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then
reading:
The Congress[45] shall by law provide for the implementation of
the exercise of this right.
with
The Congress shall provide for the implementation of the
exercise of this right.
This substitute amendment was an investiture on Congress
of a power to provide for the rules implementing the exercise of
the right. The rules means the details on how [the right] is to be
carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals,
intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No.
21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to
it, viz., (a) House Bill No. 497,[47] which dealt with the initiative
and referendum mentioned in Sections 1 and 32 of Article VI
of the Constitution; and (b) House Bill No. 988,[48] which dealt
with the subject matter of House Bill No. 497, as well as with
initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article
XVII of the Constitution. Senate Bill No. 17[49] solely dealt with
initiative and referendum concerning ordinances or resolutions
of local government units. The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No.
21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate[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:
SECTION 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. (Underscoring
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. (Underscoring 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
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. (Underscoring
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. (Underscoring 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 peoples
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 bodys 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. R.A. 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 COMELECs
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
latter knew 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 the 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 on 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 hreby 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 Resolutions 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 against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan,
Hermosisima, Jr. and Torres Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-
counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring
opinions of Justices Puno, Francisco and Panganiban.
 Puno, Vitug, , Francisco and Panganiban, JJ., has SEC. 8. The term of office of elective local officials, except
separate opinions. barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall
[1]
not be considered as an interruption in the continuity
Commissioner Blas Ople. of his service for the full term for which he was
[2]
Commissioner Jose Suarez. elected.
[10]
[3]
I Record of the Constitutional Commission, 371, 378. Rollo, 19.
[11]
[4]
Section 1, Article XV of the 1935 Constitution and Section Annex B of Petition, Rollo, 25.
1(1), Article XVI of the 1973 Constitution. [12]
Order of 12 December 1996, Annex B-1 of Petition, Rollo,
[5]
Annex A of Petition, Rollo, 15. 27.
[13]
[6]
Later identified as the Peoples Initiative for Reforms, Id.
Modernization and Action, or PIRMA for brevity. [14]
Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v.
[7]
These sections read: COMELEC, 73 SCRA 333 [1976].
[15]
SEC. 4. The term of office of the Senators shall be six years and Rollo, 68.
shall commence, unless otherwise provided by law, at [16]
Rollo, 100.
noon on the thirtieth day of June next following their
[17]
election. Rollo, 130.
[18]
No Senator shall serve for more than two consecutive A Member of the 1986 Constitutional Commission.
terms. Voluntary renunciation of the office for any [19]
length of time shall not be considered as an Section 26, Article II, Constitution.
interruption in the continuity of his service for the full [20]
Citing Commissioner Ople of the Constitutional
term for which he was elected. Commission, I Record of the Constitutional
xxx Commission, 405.
[21]
SEC. 7. The Members of the House of Representatives shall be Rollo, 239.
elected for a term of three years which shall begin, [22]
Rollo, 304.
unless otherwise provided by law, at noon on the
[23]
thirtieth day of June next following their election. Rollo, 568.
[24]
No Member of the House of Representatives shall serve for These were submitted on the following dates:
more than three consecutive terms. Voluntary
(a) Private respondent Delfin - 31 January 1997 (Rollo, 429);
renunciation of the office for any length of time shall
(b) Private respondents Alberto and Carmen Pedrosa - 10
not be considered as an interruption in the continuity
February 1997 (Id., 446);
of his service for the full term for which he was
(c) Petitioners - 12 February 1997 (Id., 585);
elected.
(d) IBP - 12 February 1997 (Id., 476);
[8]
The section reads: (e) Senator Roco - 12 February 1997 (Id., 606);
(f) DIK and MABINI - 12 February 1997 (Id., 465);
SEC. 4. The President and the Vice-President shall be elected (g) COMELEC - 12 February 1997 (Id., 489);
by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June (h) LABAN - 13 February 1997 (Id., 553).
next following the day of the election and shall end at [25]
Rollo, 594.
noon of the same date six years thereafter. The
President shall not be eligible for any reelection. No [26]
Annex D of Rocos Motion for Intervention in this
person who has succeeded as President and has served case, Rollo, 184.
as such for more than four years shall be qualified for
[27]
election to the same office at any time. Rollo, 28.
[28]
No Vice-President shall serve for more than two successive 232 SCRA 110, 134 [1994].
terms. Voluntary renunciation of the office for any [29]
II The Constitution of the Republic of the Philippines, A
length of time shall not be considered as an Commentary 571 [1988].
interruption in the continuity of the service for the full
[30]
term for which he was elected. I Record of the Constitutional Commission 370-371.
[9] [31]
The section reads: Id., 371.
[32]
Id., 386.
[33]
Id., 391-392. (Underscoring supplied for emphasis).
[34]
Id., 386.
[35]
Id., 392.
[36]
Id., 398-399.
[37]
Id., 399. Underscoring supplied.
[38]
Id., 402-403.
[39]
Id., 401-402.
[40]
Id., 410.
[41]
Id., 412.
[42]
II Record of the Constitutional Commission 559-560.
[43]
The Congress originally appeared as The National
Assembly. The change came about as a logical
consequence of the amended Committee Report No.
22 of the Committee on Legislative which
changed The National Assembly to "The Congress of
the Philippines" in view of the approval of the
amendment to adopt the bicameral system (II Record
of the Constitutional Commission 102-105). The
proposed new Article on the Legislative Department
was, after various amendments approved on Second
and Third Readings on 9 October 1986 (Id., 702-703).
[44]
V Record of the Constitutional Commission 806.
[45]
See footnote No. 42.
[46]
As stated by Commissioner Bernas in his interpellation of
Commissioner Suarez, footnote 28.
[47]
Entitled "Initiative and Referendum Act of 1987, introduced
by then Congressmen Raul Roco, Raul del Mar and
Narciso Monfort.
[48]
Entitled An Act Implementing the Constitutional Provisions
on Initiative and Referendum and for Other Purposes,
introduced by Congressmen Salvador Escudero.
[49]
Entitled An Act Providing for a System of Initiative and
Referendum, and the Exceptions Therefrom, Whereby
People in Local Government Units Can Directly
Propose and Enact Resolutions and Ordinances or
Approve or Reject Any Ordinance or Resolution
Passed By the Local Legislative Body, introduced by
Senators Gonzales, Romulo, Pimentel, Jr., and Lina,
Jr.
[50]
IV Record of the Senate, No. 143, pp. 1509-1510.
[51]
VIII Journal and Record of the House of Representatives,
957-961.
[52]
That section reads:
Section 1. Statement of Policy. The power of the people under
a system of initiative and referendum to directly
propose and enact resolutions and ordinances or
approve or reject, in whole or in part, any ordinance or
resolution passed by any local legislative body upon
compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed.
[53]
It must be pointed out that Senate Bill No. 17 and House Bill
No. 21505, as approved on Third Reading, did not
contain any subtitles.
[54]
If some confusion attended the preparation of the subtitles
resulting in the leaving out of the more important and
paramount system of initiative on amendments to the
Constitution, it was because there was in the Bicameral
Conference Committee an initial agreement for the Senate panel
to draft that portion on local initiative and for the House of
Representatives panel to draft that portion covering national
initiative and initiative on the Constitution; eventually,
however, the Members thereof agreed to leave the drafting of
the consolidated bill to their staff. Thus:
CHAIRMAN GONZALES.
... All right, and we can agree, we can agree. So ang mangyayari
dito, ang magiging basic nito, let us not discuss
anymore kung alin ang magiging basic bill, ano,
whether it is the Senate Bill or whether it is the House
Bill. Logically it should be ours sapagkat una iyong sa
amin, eh. It is one of the first bills approved by the
Senate kaya ang number niyan, makikita mo, 17,
eh. Huwag na nating pag-usapan. Now, if you insist,
really iyong features ng national at
saka constitutional, okay. Pero gagawin na nating
consolidation of both bills. (TSN, proceedings of the
Bicameral Conference Committee on 6 June 1989
submitted by Nora, R, pp. I-4 - I-5).
xxx
HON. ROCO. So how do we proceed from this? The staff will
consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it to
the Chairman, kami na ang bahalang magconsult sa
aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early
tomorrow. Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung
mabigyan tayo ng kopya bukas and you are not
objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical
consolidation nga ito, eh. Yung mga provisions naman
namin wala sa inyo. (TSN, proceedings of Bicameral
Conference Committee of 6 June 1989, submitted by
E.S. Bongon, pp. III-4 - III-5).
[55]
Sec. 5(a & c), Sec. 8, Section 9(a).
[56]
Sections 13, 14, 15 and 16.
[57]
It would thus appear that the Senates cautious approach in
the implementation of the system of initiative as a mode of
proposing amendments to the Constitution, as expressed by
Senator Gonzales in the course of his sponsorship of Senate Bill
No. 17 in the Bicameral Conference Committee meeting and in
his sponsorship of the Committees Report, might have
insidiously haunted the preparation of the consolidated version
of Senate Bill No. 17 and House Bill No. 21505. In the first he
said:
Senate Bill No. 17 recognizes the initiatives and referendum are
recent innovations in our political system. And
recognizing that, it has adopted a cautious approach
by: first, allowing them only when the local legislative
body had refused to act; second, not more frequently
than once a year; and, third, limiting them to the
national level. (I Record of the Senate, No. 33, p. 871).
xxx
First, as I have said Mr. President, and I am saying for the nth
time, that we are introducing a novel and new system
in politics. We have to adopt first a cautious
approach. We feel it is prudent and wise at this point
in time, to limit those powers that may be the subject
of initiatives and referendum to those exercisable or
within the authority of the local government
units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new in our political
system, the Senate decided on a more cautious
approach and limiting it only to the local general units.
(TSN of the proceedings of the Bicameral Conference
Committee on 6 June 1989, submitted by stenographer
Nora R., pp. I-2 to I-3).
In the last he declared:
The initiatives and referendum are new tools of democracy;
therefore, we have decided to be cautious in our
approach. Hence, 1) we limited initiative and
referendum to the local government units; 2) that
initiative can only be exercised if the local legislative
cannot be exercised more frequently that once every
year. (IV Records of the Senate, No. 143, pp. 15-9-
1510).
[58]
Section 20, R.A. No. 6735.
[59]
People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A.
CRUZ, Philippine Political Law 86 [1996] (hereafter
CRUZ).
[60]
People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.
[61]
Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].
[62]
Edu v. Ericta, 35 SCRA 481, 497 [1970].
[63]
Sec. 7, COMELEC Resolution No. 2300.
[64]
Sec. 28, id.
[65]
Sec. 29, id.
[66]
Sec. 30, id.
 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.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ.,
concur.
Separate Opinions
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by
a sufficient majority of the Court on just one ground, which to
be sure achieves the result from the legal and constitutional
viewpoint. I entertain grave doubts as to the validity of the
premises postulated and conclusions reached in support of the
dispositive portion of the decision. However, considering the
urgent nature of this case, the lack of time to set down at length
my opinion on the particular issue upon which the decision is
made to rest, and the fact that a dissent on the said issue would
necessarily be inconclusive unless the other issues raised in the
petition are also considered and ruled upon — a task that would
be premature and pointless at this time — I limit myself to this
reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and
MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo
in his usual inimitable, forthright and vigorous style. Like him,
we do not express our individual views on the wisdom of the
proposed constitutional amendment, which is not in issue here
because it is a matter that properly and exclusively addresses
itself to the collective judgment of the people.
We must, however, articulate two additional objections of
constitutional dimension which, although they would seem to
be superfluous because of the reach of the basic constitutional
infirmity discussed in extenso in the main opinion, nevertheless
appear to us to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to
propose piecemeal amendments and submit each separately to
the people for ratification, we are nonetheless persuaded that (1)
that there is no proper submission of title proposed amendment
in question within the meaning and intendment of Section 1 of
Article XV of the Constitution, and (2) that the forthcoming
election is not the proper election envisioned by the same
provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs.
Commission on
Elections1 and Philippine Constitution Association vs.
Commission on Elections,2 expounded his view, with which we
essentially agree, on the minimum requirements that must be
met in order that there can be a proper submission to the people
of a proposed constitutional amendment. This is what he said:
... amendments must be fairly laid before the
people for their blessing or spurning. The
people are not to be mere rubber stamps.
They are not to vote blindly. They must be
afforded ample opportunity to mull over the
original provisions, compare them with the
proposed amendments, and try to reach a
conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous
or possibly insidious influences. We believe
the word "submitted" can only mean that the
government, within its maximum
capabilities, should strain every effort to
inform citizen of the provisions to be
amended, and the proposed amendments and
the meaning, nature and effects thereof. By
this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no
submission within the meaning of the word as
intended by the framers of the Constitution.
What the Constitution in effect directs is that
the government, in submitting an amendment
for ratification, should put every
instrumentality or agency within its structural
framework to enlighten the people, educate
them with respect to their act of ratification
or rejection. For we have earlier stated, one
thing is submission and another
is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by
one of the writers of this concurring opinion, in the following
words:
I find it impossible to believe that it was ever
intended by its framers that such amendment
should be submitted and ratified by just "a
majority of the votes cast at an election at
which the amendments are submitted to the
people for their ratification", if the
concentration of the people's attention
thereon is to be diverted by other extraneous
issues, such as the choice of local and
national officials. The framers of the
Constitution, aware of the fundamental
character thereof, and of the need of giving it
as much stability as is practicable, could have
only meant that any amendments thereto
should be debated, considered and voted
upon an election wherein the people could
devote undivided attention to the subject.4
True it is that the question posed by the proposed amendment,
"Do you or do you not want the 18-year old to be allowed to
vote?," would seem to be uncomplicated and innocuous. But it
is one of life's verities that things which appear to be simple
may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and
logically assail the average voter. Why should the voting age be
lowered at all, in the first place? Why should the new voting age
be precisely 18 years, and not 19 or 20? And why not 17? Or
even 16 or 15? Is the 18-year old as mature as the 21-year old
so that there is no need of an educational qualification to entitle
him to vote? In this age of permissiveness and dissent, can the
18-year old be relied upon to vote with judiciousness when the
21-year old, in the past elections, has not performed so well? If
the proposed amendment is voted down by the people, will the
Constitutional Convention insist on the said amendment? Why
is there an unseemly haste on the part of the Constitutional
Convention in having this particular proposed amendment
ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin
to subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year
old should now also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .
The above are just samplings from here, there and everywhere
— from a domain (of searching questions) the bounds of which
are not immediately ascertainable. Surely, many more questions
can be added to the already long litany. And the answers cannot
be had except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are
not, and by election time will not be, sufficiently informed of
the meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are
effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed
amendment by their traditional pervasive involvement in local
elections and politics. They cannot thus weigh in tranquility the
need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the
amendments are submitted to the people for their ratification,"
embodied in Section 1 of Article XV of the Constitution, has
not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by
Justice Barredo, characterized by clarity and vigor, its
manifestation of fealty to the rule of law couched in eloquent
language, that commands assent. As the Constitution occupies
the topmost rank in the hierarchy of legal norms, Congress and
Constitutional Convention alike, no less than this Court, must
bow to its supremacy. Thereby constitutionalism asserts itself.
With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as
far as the acceptance of the conclusion reached. The question
presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with
the express recognition in the Constitution of the powers of the
Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no
legal impediment that would call for its nullification. Such an
approach all the more commends itself to me considering that
what was sought to be done is to refer the matter to the people
in whom, according to our Constitution, sovereignty resides. It
is in that sense that, with due respect, I find myself unable to
join my brethren.
I. It is understandable then why the decisive issue posed could
not be resolved by reliance on, implicit in the petition and the
answer of intervenors, such concepts as legislative control of
the constitutional convention referred to by petitioner on the
one hand or, on the other, the theory of conventional
sovereignty favored by intervenors. It is gratifying to note that
during the oral argument of petitioner and counsel for
respondents and intervenors, there apparently was a retreat from
such extreme position, all parties, as should be the case,
expressly avowing the primacy of the Constitution, the
applicable provision of which as interpreted by this Court,
should be controlling on both Congress and the Convention. It
cannot be denied though that in at least one American state, that
is Pennsylvania, there were decisions announcing the doctrine
that the powers to be exercised by a constitutional convention
are dependent on a legislative grant, in the absence of any
authority conferred directly by the fundamental law. The result
is a convention that is subordinate to the lawmaking body. Its
field of competence is circumscribed. It has to look to the latter
for the delimitation of its permissible scope of activity. It is thus
made subordinate to the legislature. Nowhere has such a view
been more vigorously expressed than in the Pennsylvania case
of Wood's Appeal.1 Its holding though finds no support under
our constitutional provision.
It does not thereby follow that while free from legislative
control, a constitutional convention may lay claim to an
attribute sovereign in character. The Constitution is quite
explicit that it is to the people, and to the people alone, in whom
sovereignty resides.2 Such a prerogative is therefore withheld
from a convention. It is an agency entrusted with the
responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the
Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be
admitted that there are some American state decisions, the most
notable of which is Sproule v. Fredericks,3 a Mississippi case,
that dates back to 1892, that yield a different conclusion. The
doctrine therein announced cannot bind us. Our Constitution
makes clear that the power of a constitutional convention is not
sovereign. It is appropriately termed constituent, limited as it is
to the purpose of drafting a constitution or proposing revision
or amendments to one in existence, subject in either case to
popular approval.
The view that commends itself for acceptance is that legislature
and constitutional convention, alike recognized by the
Constitution, are coordinate, there being no superiority of one
over the other. Insofar as the constituent power of proposing
amendments to the Constitution is concerned, a constitutional
convention enjoys a wide sphere of autonomy consistently with
the Constitution which can be the only source of valid
restriction on its competence. It is true it is to the legislative
body that the call to a convention must proceed, but once
convened, it cannot in any wise be interfered with, much less
controlled by Congress. A contrary conclusion would impair its
usefulness for the delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of
separation of powers is supreme within its field and has
exclusive cognizance of matters properly subject to its
jurisdiction. A succinct statement of the appropriate principle
that should govern the relationship between a constitutional
convention and a legislative body under American law is that
found in Orfield's work. Thus: "The earliest view seems to have
been that a convention was absolute. The convention was
sovereign and subject to no restraint. On the other hand,
Jameson, whose views have been most frequently cited in
decisions, viewed a convention as a body with strictly limited
powers, and subject to the restrictions imposed on it by the
legislative call. A third and intermediate view is that urged by
Dodd — that a convention, though not sovereign, is a body
independent of the legislature; it is bound by the existing
constitution, but not by the acts of the legislature, as to the
extent of its constituent power. This view has become
increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as
so vigorously stressed in the opinion of the Court, that any
limitation on the power the Constitutional, Convention must
find its source. I turn to its Article XV. It reads: "The Congress
in joint session assembled, by a vote of three fourths of all the
Members of the Senate and of the House of Representatives
voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification."
Clearly, insofar as amendments, including revision, are
concerned, there are two steps, proposal and thereafter
ratification. Thus as to the former, two constituent bodies are
provided for, the Congress of the Philippines in the mode
therein provided, and a constitutional convention that may be
called into being. Once assembled, a constitutional convention,
like the Congress of the Philippines, possesses in all its
plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and
thereafter take all the steps necessary so that the approval or
disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the
necessary authority to assure that whatever amendments it seeks
to introduce would be submitted to the people at an election
called for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not withheld
from Congress as a constituent body would be to place it in an
inferior category. Such a proposition I do not find acceptable.
Congress and constitutional convention are agencies for
submitting proposals under the fundamental law. A power
granted to one should not be denied the other. No justification
for such a drastic differentiation either in theory or practice
exists.
Such a conclusion has for me the added reinforcement that to
require ordinary legislation before the convention could be
enabled to have its proposals voted on by the people would be
to place a power in the legislative and executive branches that
could, whether by act or omission, result in the frustration of the
amending process. I am the first to admit that such likelihood is
remote, but if such a risk even if minimal could be avoided, it
should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a
constitutional convention is not precluded from imposing
additional restrictions on the powers of either the executive or
legislative branches, or, for that matter, the judiciary, it would
appear to be the better policy to interpret Article XV in such a
way that would not sanction such restraint on the authority that
must be recognized as vested in a constitutional convention.
There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is
one way by which freed from pernicious abstractions, it would
be easier to accommodate a constitution to the needs of an
unfolding future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the
conclusion that the challenged resolution was well within the
power of the convention. That would be to brush aside the web
of unreality spun from a too-restrictive mode of appraising the
legitimate scope of its competence. That would be, for me, to
give added vigor and life to the conferment of authority vested
in it, attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence
of Article XV providing that such amendment shall be valid
when submitted and thereafter approved by the majority of the
votes cast by the people at an election is a bar to the proposed
submission. It is the conclusion arrived at by my brethren that
there is to be only one election and that therefore the petition
must be sustained as only when the convention has finished its
work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the
appropriate interpretation. It is true that the Constitution uses
the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do
not exert a compelling force in constitutional interpretation.
Meaning is to be sought not from specific language in the
singular but from the mosaic of significance derived from the
total context. It could be, if it were not thus, self-defeating. Such
a mode of construction does not commend itself. The words
used in the Constitution are not inert; they derive vitality from
the obvious purposes at which they are aimed. Petitioner's stress
on linguistic refinement, while not implausible does not, for me,
carry the day.
It was likewise argued by petitioner that the proposed
amendment is provisional and therefore is not such as was
contemplated in this article. I do not find such contention
convincing. The fact that the Constitutional Convention did
seek to consult the wishes of the people by the proposed
submission of a tentative amendatory provision is an argument
for its validity. It might be said of course that until impressed
with finality, an amendment is not to be passed upon by the
electorate. There is plausibility in such a view. A literal reading
of the Constitution would support it. The spirit that informs it
though would not, for me, be satisfied. From its silence I deduce
the inference that there is no repugnancy to the fundamental law
when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of
Thomas Reed Powel, is not silently silent but silently vocal.
What I deem the more important consideration is that while a
public official, as an agent, has to locate his source of authority
in either Constitution or statute, the people, as the principal, can
only be limited in the exercise of their sovereign powers by the
express terms of the Constitution. A concept to the contrary
would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people
alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope
of its authority, an action to restrain or prohibit respondent
Commission on Elections from conducting the plebiscite does
not lie. It should not be lost sight of that the Commission on
Elections in thus being charged with such a duty does not act in
its capacity as the constitutional agency to take charge of all
laws relative to the conduct of election. That is a purely
executive function vested in it under Article X of the
Constitution.5 It is not precluded from assisting the
Constitutional Convention if pursuant to its competence to
amend the fundamental law it seeks, as in this case, to submit a
proposal, even if admittedly tentative, to the electorate to
ascertain its verdict. At any rate, it may be implied that under
the 1971 Constitutional Convention Act, it is not to turn a deaf
ear to a summons from the Convention to aid it in the legitimate
discharge of its functions.6
The aforesaid considerations, such as they are, but which for me
have a force that I mind myself unable to overcome, leave me
no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the
conclusion arrived at by them cannot be characterized as in any
wise bereft of a persuasive quality of a high order.
Footnotes
1 Under Section 36, Rule 138 as amended, no one may appear
as amicus curiae unless invited or allowed, by the Court.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ.,
concurring:
1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817. conduct of elections and shall exercise all other functions which
may be conferred upon it by law." Cf. Abcede v. Imperial, 103
2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817. Phil. 136 (1958).

3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P.
Dizon, Calixto O. Zaldivar, Fred Ruiz Castro and Eugenio
Angeles.
4 21 SCRA 821.
FERNANDO, J., concurring and dissenting:
6 "According to Sec. 14 of the 1971 Constitutional Convention
Act (1970):"Administration and Technical Assistance. -- All
government entities, agencies and instrumentalities, including
the Senate and House of Representatives, shall place at the
disposal of the Convention such personnel premises, and
furniture thereof as can, in their judgment be spared without
detriment to public service, without cost, refund or additional
pay."

1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and

Laurel. Cases in Constitutional Law, pp. 1, 4-5 (1936). It was
therein stated: "In a governmental and proper sense, law is the
highest act of a people's sovereignty while their government and
Constitution remain unchanged. It is the supreme will of the
people expressed in the forms and by the authority of their
Constitution. It is their own appointed mode through which they
govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all
legislative power, these laws are supreme over all subjects
unforbidden by the instrument itself. The calling of a
convention, and regulating its action by law, is not forbidden in
the Constitution. It is a conceded manner, through which the
people may exercise the rights reserved in the bill of rights. ...
The right of the people to restrain their delegates by law cannot
be denied, unless the power to call a convention by law, and the
right of self protection be also denied."

2 According to Sec. 1 of Art. II: "Sovereignty resides in the

people and all government authority emanates from them." .

3 11 So. 472. The following excerpt appears in the opinion: "We

have spoken of the constitutional convention as a sovereign
body, and that characterization perfectly defines the correct
view, in our opinion, of the real nature of that august assembly.
It is the highest legislative body known to freemen in a
representative government. It is supreme in its sphere. It wields
the powers of sovereignty, specially delegated to it, for the
purpose and the occasion, by the whole electoral body, for the
good of the whole commonwealth. The sole limitation upon its
powers is that no change in the form of government shall be
done or attempted. The spirit of republicanism must breathe
through every part of the framework, but the particular
fashioning of the parts of this framework is confided to the
wisdom the faithfulness, and the patriotism of this great
convocation, representing the people in their sovereignty." The
Sproule decision was cited with approval four years later by the
Mississippi Supreme Court anew in Dickson v. State, 20 So.
841. A 1908 decision of the Southern State of Oklahoma, State
v. Scales, 97 P. 584, admitted the controversial character of the
Sproule dictum.

4 Orfield on The Amending of the Federal Constitution, 45-46

(1942).

5 According to Sec. 2 of Article X of the Constitution: "The

Commission on Elections shall have exclusive charge of its
enforcement and administration of all laws relative to the
 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.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-
44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that
the valid source of a stature Presidential Decrees are of such
nature-may be contested by one who will sustain a direct
injuries as a in result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds
may be enjoined, upon the theory that the expenditure of public
funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds.
4 The breadth of Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public
money sufficiently clothes them with that personality to litigate
the validity of the Decrees appropriating said funds. Moreover,
as regards taxpayer's suits, this Court enjoys that open
discretion to entertain the same or not. 7 For the present case,
We deem it sound to exercise that discretion affirmatively so
that the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a
pure political one, lying outside the domain of judicial review.
We disagree. The amending process both as to proposal and
ratification, raises a judicial question. 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.
V to them for ratification of proposed constitutional amendments.
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
The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes
for every barangay center, one containing the ballots of voters
fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The
ballots in the ballot box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen
years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared
for the age groupings, i.e., ballots contained in each of the two
boxes.38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in
character. It is simply a means of assessing public reaction to
the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the
executive power of the President.39 It is participated in by all
citizens from the age of fifteen, regardless of whether or not
they are illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the constituent act of
those "citizens of the Philippines not otherwise disqualified by
law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding
the election Literacy, property or any other substantive
requirement is not imposed. It is generally associated with the
amending process of the Constitution, more particularly, the
ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the
regime of martial law stultifies in main the freedom to dissent.
That speaks of a bygone fear. The martial law regime which, in
the observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To
be sure, there are restraints of the individual liberty, but on
certain grounds no total suppression of that liberty is aimed at.
The for the referendum-plebiscite on October 16 recognizes all
the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance
any suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the
dissenters soon found their way to the public forums, voicing
out loud and clear their adverse views on the proposed
amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter.43 Even
government employees have been held by the Civil Service
Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3
weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They
are the issues of the day. The people have been living with them
since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial
law. That notwithstanding, the contested brief period for
discussion is not without counterparts in previous plebiscites for
constitutional amendments. Justice Makasiar, in the
Referendum Case, recalls: "Under the old Society, 15 days were
allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the
Constitution before the scheduled plebiscite on April 30, 1937
(Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was
published in only three consecutive issues of the Official
Gazette for 10 days prior to the scheduled plebiscite (Com. Act
492). For the 1940 Constitutional amendments providing for the
bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20
days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting
the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for
20 days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes
no provision as to the specific date when the plebiscite shall be
held, but simply states that it "shall be held not later than three
months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that
this matter of submission involves "an appraisal of a great
variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix
the time within which the people may act. This is because
proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second,
it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication
being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the
expression of the approbation of the people, hence, it must be
done contemporaneously. 47 In the words of Jameson, "(a)n
alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified
early while that sentiment may fairly be supposed to exist. it
ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under,
the environmental circumstances now obtaining, does the
President possess power to propose amendments to the
Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by
the people?
3. Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper
submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and
Associate Justices Enrique M. Fernando, Claudio Teehankee,
Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the
question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.
Upon the second issue, Chief Justice Castro and Associate
Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and dissenting
opinion in Aquino vs. Enrile (59 SCRA 183), specifically
dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising
serious doubts as to the power of the President to propose
amendments.
Upon the third issue, Chief Justice Castro and Associate
Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin
are of the view that there is a sufficient and proper submission
of the proposed amendments for ratification by the people.
Associate Justices Barredo and Makasiar expressed the hope,
however that the period of time may be extended. Associate
Justices Fernando, Makasiar and Antonio are of the view that
the question is political and therefore beyond the competence
and cognizance of this Court, Associate Justice Fernando
adheres to his concurrence in the opinion of Chief Justice
Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold
that prescinding from the President's lack of authority to
exercise the constituent power to propose the amendments, etc.,
as above stated, there is no fair and proper submission with
sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41
SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss
the three petitions at bar. For reasons as expressed in his
separate opinion, Associate Justice Fernando concurs in the
result. Associate Justices Teehankee and Munoz Palma voted to
grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said
petitions are hereby dismissed. This decision is immediately
executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar
and the grounds advanced be the Solicitor General in opposition
thereto, as well as the arguments adduced by the counsels of the
parties at the hearing had on October 7 and 8, 1976, three vital
issues readily project themselves as the centers of controversy,
namely:
(1) Is the question of the constitutionality of Presidential
Decrees Nos. 991, 1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under
the environmental circumstances now obtaining, does the
President possess power to propose amendments to the
Constitution as well as set up the required machineries and
prescribe the procedure for the ratification of his proposals by
the people?
(3) Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper,
submission"
I
First Issue
The threshold question is not at all one of first impression
Specifically on the matter of proposals to amend the
Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil.
1), inceptively announced the dictum that-
Proposal to amend the Constitution is a
highly political function performed by the
Congress in its sovereign legislative capacity
and committed to its charges by the
Constitution itself. The exercise of this power
is even independent of any intervention by
the Chief Executive. If on grounds of
expediency scrupulous attention of the
judiciary be needed to safeguard public
interest, there is less reason for judicial
inquiry into the validity of a proposal than
into that of a ratification.
In time, however, the validity of the said pronouncement was
eroded. In the assessment of the Court itself-
The force of this precedent has been weakened, however, by
Suanes vs. Chief Accountant of the Senate (81 Phil. 818),
Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada
vs. Cuenco (L-10520, February 28, 1957), and Macias vs.
Commission on Elections (L-18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-
acting as a constituent assembly-violates the Constitution is
essentially justiciable, not political, and, hence, subject to
judicial review, and, to the extent this view may be inconsistent
with the stand taken in Mabanag vs. Lopez Vito the latter should
be deemed modified accordingly. The Members of the Court
are unanimous on this point." (Gonzales vs. Commission on
Elections, et al, L-28196, November 9, 1967, 21 SCRA 774,
786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine
appears to have been completed when, in Javellana vs.
Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six
members of the Court concurred in the view that the question
of whether the 1973 Constitution was ratified in accordance
with the provisions of Article XV (Amendments) of the 1935
Constitution is inherently and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada
vs. Cuenco (103 Phil. 1051)-
... the term 'political question' connotes, in
legal parlance, what it means in ordinarily
parlance, namely, a question of policy in
matters concerning the government of a
State, as a body politic. In other words, in the
language of Corpus Juris Secundum (supra),
it refers to 'those questions which, under the
Constitution, are to be decided by the people
in their sovereign capacity, or in regard to
which full discretionary authority has been
delegated to the Legislature or executive
branch of the government.' It is concerned
with issues dependent upon the wisdom, not
legality, of a particular measure.'
Accordingly, when the grant of power is qualified, conditional
or subject to limitations, the issue on whether or not the
prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of
the problem being one of legality or validity of the contested
act, not its wisdom. Otherwise, said qualifications, conditions
or limitations - particularly those prescribed or imposed by the
Constitution - would be set at naught." (Javellana vs. Executive
Secretary, supra).
So it is in the situation here presented. The basic issue is the
constitutional validity of the presidential acts of proposing
amendments to the Constitution and of calling a referendum-
plebiscite for the ratification of the proposals made. Evidently,
the question does not concern itself with the wisdom of the
exercise of the authority claimed or of the specific amendments
proposed. Instead the inquiry vel non is focused solely on the
existence of the said power in the President - a question purely
of legality determinable thru interpretation and construction of
the letter and spirit of the Constitution by the Court as the final
arbiter in the delineation of constitutional boundaries and the
allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein
presented, especially in these parlous years, would be to
abdicate its constitutional powers, shirk its constitutional
responsibility, and deny the people their ultimate recourse for
judicial determination.
I have thus no hesitancy in concluding that the question here
presented is well within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears
unprecedented both here and elsewhere. Its solution, I believe,
can be found and unraveled only by a critical assessment of the
existing legal order in the light of the prevailing political and
factual milieu.
To be sure, there is an impressive array of consistent
jurisprudence on the proposition that, normally or under normal
conditions, a Constitution may be amended only in accord with
the procedure set forth therein. Hence, if there be any such
prescription for the amendatory process as invariable there is
because one of the essential parts of a Constitution is the so-
called "constitution of sovereignty" which comprises the
provision or provisions on the modes in accordance with which
formal changes in the fundamental law may be effected the
same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of
our political development, no express provision is extant in the
Constitution regarding the agency or agent by whom and the
procedure by which amendments thereto may be proposed and
ratified fact overlooked by those who challenge the validity of
the presidential acts in the premises. This is so because there are
at least two distinctly in the transition from the old system of
government under the 1935 Constitution to the new one
established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the
Constitution on January 17, 1973 to the time the National
Assembly is convened by the incumbent President and the
interim President and the interim Prime Minister are chosen
Article XVII, Sections 1 and 3[1]. The existence of this stage as
an obvious fact of the nation's political life was recognized by
the Court in Aquino vs. Commission on Elections, et al. (L-
40004, January 31, 1975, 62 SCRA 275), when it rejected the
claim that, under the 1973 Constitution, the President was in
duty bound to convene the interim National Assembly soon
after the Constitution took effect.
The second stage embraces the period from the date the interim
National Assembly is convened to the date the Government
described in Articles VII to IX of the Constitution is
inaugurated, following the election of the members of the
regular National Assembly (Article XVII, Section 1) and the
election of the regular President and Prime Minister,. This is as
it should be because it is recognized that the President has been
accorded the discretion to determine when he shall initially
convene the interim National Assembly, and his decision to
defer the convocation thereof has found overwhelming support
by the sovereign people in two previous referenda, therein
giving reality to an interregnum between the effectivity of the
Constitution and the initial convocation of the interim National
Assembly, which interregnum, as aforesaid, constitutes the first
stage in the transition period.
Against this factual backdrop, it is readily discernible that
neither of the two sets of provisions embodied in the
Constitution on the amendatory process applied during the said
first stage. Thus, Section 15, Article XVII (Transitory
Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by
the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with
Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and
the "interim Prime Minister" limits the application thereof to the
second stage of the transition period, i.e.,., after the interim?
National Assembly shall have been convened and the interim
Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI
(Amendments), to wit-
SECTION 1. (1) Any amendment to, or
revision of, this Constitution may be
proposed by the National Assembly upon a
vote of three-fourths of all its Members, or by
a constitutional convention.
(2) The National Assembly may, by a vote of
two-thirds of all its Members, call a
constitutional convention or, by a majority
vote of all its Members, submit the question
of ceiling such a convention to the electorate
in an election.
SEC. 2. Any amendment to, or revision of,
this Constitution shall be valid when ratified
by a majority of the votes cast in a plebiscite
which shall be held not later than three
months after the approval of such amendment
or revision.
unequivocally contemplate amendments after the regular
Government shall have become fully operative, referring as
they do to the National Assembly which will come into being
only at that time.
In the face of this constitutional hiatus, we are confronted with
the dilemma whether amendments to the Constitution may be
effected during the aforesaid first stage and, if in the
affirmative, by whom and in what manner such amendments
may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal
Constitution. Not being a mere declaration of the traditions of a
nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to
the living social organism they seek to fashion and govern. If it
is conceded that "the political or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the
third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive,
progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the
Government is at present - which is understandably the most
critical - the need for change may be most pressing and
imperative, and to disavow the existence of the right to amend
the Constitution would be sheer political heresy. Such view
would deny the people a mechanism for effecting peaceful
change, and belie the organic conception of the Constitution by
depriving it of its means of growth. Such a result obviously
could not have been intended by the framers of the fundamental
law.
It seems, however, that the happenstance that the first period
would come to pass before the convocation of the interim
National Assembly was not anticipated, hence, the omission of
an express mandate to govern the said situation in so far as
amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign
power of the people to amend the fundamental charter that
governs their lives and their future and perhaps even the very
survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions
on the amendatory process that the intent was, instead, to
provide a simpler and more expeditious mode of amending the
Constitution during the transition period. For, while under
Article XVI thereof, proposals for amendment may be made
directly by the regular National Assembly by a vote of at least
three-fourths of all its members, under Section 15 of Article
XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the
disparity in the vote requirement are revealing. The can only
signify a recognition of the need to facilitate the adoption of
amendments during the second stage of the transition period so
that the interim National Assembly will be able, in a manner of
speaking, to iron out the kinks in the new Constitution, remove
imperfections therein, and provide for changed or changing
circumstances before the establishment of the regular
Government. In this contest, therefore, it is inutile speculation
to assume that the Constitution was intended to render impotent
or ar the effectuation of needful change at an even more critical
period - the first stage. With greater reason, therefore, must the
right and power to amend the Constitution during the first stage
of te transition period be upheld, albeit within its express and
implied constraints.
Neither can it be successfully argued, in the same context and
in the present posture, that the Constitution may be amended
during the said first stage only by convening the interim
National Assembly. That is to say and require that he said stage
must first be brought to an end before any amendment may be
proposed and ratified. Settled jurisprudence does not square
with such a proposition. As aptly noted in Aquino vs.
Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim
National Assembly because they could not have foreseen how
long the crises which impelled the proclamation and justify the
continued state of martial law would last. Indeed, the framers
committed to the sound judgment is not subject to judicial
review, save possibly to determine whether arbitrariness has
infected such exercise; absent such a taint, the matter is solely
in the keeping of the President. To thus content that only by
convening the interim National Assembly may the Constitution
be amended at this time would effectively override the
judgement vested in the President, even in default of any he has
acted arbitrarily or gravely abuse his discretion. Furthermore, to
sustain such a contention would not only negate the mandate so
resoundingly expressed by the people in two national referenda
against the immediate convening of the interim National
Assembly, but as well deride their overwhelming approval of
the manner in which the President has exercised the legislative
power to issue proclamations, orders, decrees and instructions
having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself
for resolution is: By whom, then, may proposals for the
amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent
power is not to be confuse with legislative power in general
because the prerogative to propose amendments to the
Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the
proposition that, in default of an express grant thereof, the
legislature - traditionally the delegated repository thereof - may
not claim it under a general grant of legislative authority. In the
same vein, neither would it be altogether unassailable to say that
because by constitutional tradition and express allocation the
constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-
making authority is firmly recognized as being lodged in the
President, the said constituent power should now logically be in
the hands of te President who may thus exercise it in place of
the interim National Assembly. Instead,, as pointed out in
Gonzales vs. Commission on Elections, et al., supra, the power
to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people
- as the repository of sovereignty in a
republican state, such as ours - t o make, and,
hence, to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign
people, either directly by themselves or through their chosen
delegate, can wield. Since it has been shown that the people,
inadvertently or otherwise, have not delegated that power to
inadvertently or otherwise, have not delegated that power to any
instrumentality during the current stage of our hegira from crisis
to normalcy, it follows of necessity that the same remains with
them for them to exercise in the manner they see fit and through
the agency they choose. And, even if it were conceded that - as
it is reputedly the rule in some jurisdictions - a delegation of the
constituent authority amounts to a complete divestiture from the
people of the power delegated which they may not thereafter
unilaterally reclaim from the delegate, there would be no
violence donde to such rule, assuming it to be applicable here,
inasmuch as that power, under the environmental circumstance
adverted to, has not been delegated to anyone in the first place.
The constituent power during the first stage of the transition
period belongs to and remains with the people, and accordingly
may be exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary
political ferment in the country proves revelatory. The people,
shocked and revolted by the "obvious immorality" of the
unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso
facto members of the interim National Assembly by the mere
fiat of voting for the transitory provisions of the Constitution.
and the stark reality that the unwieldy political monstrosity that
the interim Assembly portended to be would have proven to be
a veritable drain on the meager financial resources of a nation
struggling for survival, have unequivocally put their foot down,
as it were, on the convocation thereof. But this patently salutary
decision of the people proved to be double-edged. It likewise
bound the political machinery of the Government in a virtual
straight-jacket and consigned the political evolution of the
nation into a state of suspended animation. Faced with the
ensuing dilemma, the people understandably agitated for a
solution. Through consultations in the barangays and
sanggunian assemblies, the instrumentalities through which the
people's voice is articulated in the unique system of
participatory democracy in the country today, the
underpinnings for the hastening of the return to constitutional
normalcy quickly evolved into an overwhelming sentiment to
amend the Constitution in order to replace the discredited
interim National Assembly with what the people believe will be
an appropriate agency to eventually take over the law-making
power and thus pave the way for the early lifting of martial rule.
In pursuit of this sentiment, and to translate its constraints into
concrete action, the Pambansang Katipunan ng Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay, the
Lupong Tagapagpaganap of the Katipunan ng mga Barangay,
the Pambansang Katipunan ng mga Kabataang Barangay the
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
and finally the Batasang Bayan, to a man and as one voice, have
come forward with definitive proposals for the amendment of
the Constitution, and, choosing the President the only political
arm of the State at this time through which that decision could
be implemented and the end in view attained as their
spokesman, proposed the amendments under challenge in the
cases at bar.
In the light of this milieu and its imperatives, one thing is
inescapable: the proposals now submitted to the people for their
ratification in the forthcoming referendum-plebiscite are
factually not of the President; they are directly those of the
people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said
proposals in Presidential Decree No. 1033. It being conceded in
all quarters that sovereignty resides in the people and it having
been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any
instrumentality of the Government during the present stage of
the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as
being ultra vires. Accordingly, without venturing to rule on
whether or not the President is vested with constituent power as
it does not appear necessary to do so in the premises the
proposals here challenged, being acts of the sovereign people
no less, cannot be said to be afflicted with unconstitutionality.
A fortiori, the concomitant authority to call a plebiscite and to
appropriate funds therefor is even less vulnerable not only
because the President, in exercising said authority has acted as
a mere alter ego of the people who made the proposals, but
likewise because the said authority is legislative in nature rather
than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety
of the submission of the proposed amendments for ratification
from the standpoint of time. The thesis cannot be disputed that
a fair submission presupposes an adequate time lapse to enable
the people to be sufficiently enlightened on the merits or
demerits of the amendments presented for their ratification or
rejection. However, circumstances there are which
unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of
Presidential Decree No. 1033 on September 22, 1976, they are
actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political
hierarchy. Hence, unlike proposals emanating from a legislative
body, the same cannot but be said to have been mulled over,
pondered upon, debated, discussed and sufficiently understood
by the great masses of the nation long before they ripened into
formal proposals.
Besides. it is a fact of which judicial notice may well be taken
that in the not so distant past when the 1973 Constitution was
submitted to the people for ratification, an all-out campaign, in
which all the delegates of the Constitutional Convention
reportedly participated, was launched to acquaint the people
with the ramifications and working of the new system of
government sought to be inaugurated thereunder. It may thus
well be assumed that the people in general have since acquired,
in the least, a working knowledge of the entirety of the
Constitution. The changes now proposed the most substantial
of which being merely the replacement of the interim National
assembly with another legislative arm for the Government
during the transition period until the regular National Assembly
shall have been constituted do not appear to be of such
complexity as to require considerable time to be brought home
to the full understanding of the people. And, in fact, the massive
and wide-ranging informational and educational campaign to
this end has been and still is in full swing, with all the media the
barangay, the civic and sectoral groups, and even the religious
all over the land in acting and often enthusiastic if not frenetic
involvement.
Indeed, when the people cast their votes on October 16, a
negative vote could very well mean an understanding of the
proposals which they reject; while an affirmative vote could
equally be indicative Of such understanding and/or an abiding
credence in the fidelity with which the President has kept the
trust they have confided to him as President and administrator
of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this
court to pass judgment upon is posed. Accordingly, I vote for
the outright dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from
Planas v. Commission on Elections continuing with the epochal
resolution in Javellana v. Executive Secretary and followed
successively in three crucial decisions, Aquino v. Ponce Enrile
Aquino v. Commission on Elections, and Aquino v Military
Commission,5 manifest to the same degree the delicate and
awesome character of the function of judicial review. While
previous rulings supply guidance and enlightenment, care is to
be taken to avoid doctrinaire rigidity unmindful of altered
circumstances and the urgencies of the times. It is inappropriate
to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever
decision is reached. Jural norms must be read in the context of
social facts, There is need therefore of adjusting inherited
principles to new needs. For law, much more so constitutional
law, is simultaneously a reflection of and a force in the society
that it controls. No quality then can be more desirable in
constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they
must become It must inquire into the specific problem posed not
only in terms of the teaching of the past but also of the emerging
political and legal theory, especially so under a leadership
notable for its innovative approach to social problems and the
vigor of its implementation. This, on the one side. It must
equally be borne in mind through that this Court must be
conscious of the risk inherent in its being considered as a mere
subservient instrument of government policy however
admittedly salutary or desirable. There is still the need to
demonstrate that the conclusion reached by it in cases
appropriate for its determination has support in the law that
must be applied. To my mind that was the norm followed, the
conclusion reached being that the three petitions be dismissed.
I am in agreement. It is with regret however that based on my
reading of past decisions, both Philippine and American, and
more specifically my concurring opinion in Aquino v. Ponce
Enrile, I must dissent from the proposition set forth in the able
and scholarly opinion of Justice Martin that there is
concentration of power in the President during a crisis
government. Consequently, I cannot see my way clear to
accepting the view that the authority to propose amendments is
not open to question. At the very least, serious doubts could be
entertained on the matter.
1. With due respect then, I have to dissociate myself from my
brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated
in the President." Adherence to my concurring and dissenting
opinion in Aquino v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of
doctrines supplied by our past decisions to point the way to what
I did consider the appropriate response to the basic issue raised
in the Aquino and the other habeas corpus petitions resolved
jointly, it was only in the latter portion of my opinion that
reference was made to United States Supreme Court
pronouncements on martial law, at the most persuasive in
character and rather few in number "due no doubt to the,
absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only
after the landmark Ex parte Milligan case, that commentators
like Cooley in 1868 and Watson in 1910 paid attention, minimal
by that, to the subject." It was next set forth that in the works on
American constitutional law published in this century specially
after the leading cases of cases Sterling v. Constant in and
Duncan v. Kahanamoku, "there was a fuller treatment of the
question of martial law While it is the formulation of
Willoughby that for me is most acceptable, my opinion did take
note that another commentator, Burdick, came out earlier with
a similar appraisal.10 Thus: "So called martial law, except in
occupied territory of an enemy is merely the calling in of the
aid of military forces by the executive, who is charged with the
enforcement of the law, with or without special authorization
by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise
of one's ordinary rights. The right to call out the military forces
to maintain order and enforce the law is simply part of the
Police power, It is only justified when it reasonably appears
necessary, and only justifies such acts as reasonably appear
necessarily to meet the exigency, including the arrest, or in
extreme cases the. killing of those who create the disorder or
oppose the authorities. When the exigency is over the members
of the military forces are criminally and civilly habit for acts
done beyond the scope of reasonable necessity. When honestly
and reasonably coping with a situation of insurrection or riot a
member of the military forces cannot be made liable for his acts,
and persons reasonably arrested under such circumstances will
not, during the insurrection or riot, be free by writ of habeas
corpus." 11 When the opinion cited Willoughby's concept of
martial law, stress was laid on his being "Partial to the claims
of liberty."12 This is evident in the explicit statement from his
work quoted by me: "There is, then, strictly speaking, no such
thing in American law as a declaration of martial law whereby
military law is substituted for civil law. So-called declarations
of martial law are, indeed, often made but their legal effect goes
no further than to warn citizens that the military powers have
been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment not commit
any acts which will in any way render more difficult the
restoration of order and the enforcement of law. Some of the
authorities stating substantially this doctrine are quoted in the
footnote below Nor did I stop there. The words of Willis were
likewise cited: "Martial law proper, that is, military law in case
of insurrection, riots, and invasions, is not a substitute for the
civil law, but is rather an aid to the execution of civil law.
Declarations of martial law go no further than to warn citizens
that the executive has called upon the military power to assist
him in the maintenance of law and order. While martial law is
in force, no new powers are given to the executive and no civil
rights of the individual, other than the writ of habeas corpus, are
suspended. The relations between the citizen and his stature
unchanged."14
The conclusion reached by me as to the state of American
federal law on the question of martial law was expressed thus:
4'1 It is readily evident that even when Milligan supplied the
only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling.
It would indeed be surprising if his opinion were otherwise.
After Duncan, such an approach becomes even more strongly
fortified. Schwartz, whose treatise is the latest to be published,
has this summary of what he considers the present state of
American law: 'The Milligan and Duncan cases show plainly
that martial law is the public law of necessity. Necessities alone
calls it forth, necessity justifies its exercise; and necessities
measures the extended degree to which it may be It is, the high
Court has affirmed, an unbending rule of law that the exercise
of military power, where the rights of the citizen are concerned,
may, never be pushed beyond what the exigency requires. If
martial law rule survive the necessities on which alone it rests,
for even a single minute it becomes a mere exercise of lawless
violence.' Further: Sterling v. Constantin is of basic importance.
Before it, a number of decisions, including one the highest
Court, went or on the theory that the executive had a free hand
in taking martial law measures. Under them, it has been widely
supposed that in proclamation was so far conclusive that any
action taken under it was immune from judicial scrutiny.
Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them.
Under Sterling v. Constantin, where martial law measures
impinge upon personal or property rights-normally beyond the
scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the
executive's ipse dixit is not of itself conclusive of the
necessity.'"15
There was likewise an effort on my part to show what for me is
the legal effect of martial law being expressly provided for in
the Constitution rather than being solely predicated on the
common law power based on the urgent need for it because of
compelling circumstances incident to the state of actual clash of
arms: "It is not to be lost sight of that the basis for the
declaration of martial law in the Philippines is not mere
necessity but an explicit constitutional provision. On the other
hand, Milligan, which furnished the foundation for Sterling and
Duncan had its roots in the English common law. There is
pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: 'Martial
law,' in the proper sense of that term, , in which - it means the
suspension of ordinary law and the temporary government of a
country or parts of it be military tribunals, is unknown to the
law of England. We have nothing equivalent to what is called
in France the "Declaration of the State of Siege," under which
the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the
permanent supremacy of the law under our constitution. There
was this qualification: 'Martial law is sometimes employed as a
name for the common law right of the Crown and its servants
to repel force by force in the case of invasion, insurrection, riot,
or generally of any violent resistance to the law. This right, or
power, is essential to the very existence of orderly government,
and is most assuredly recognized in the most ample manner by
the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown
has the right to put down breaches of the peace. Every subject,
whether a civilian or a soldier, whether what is called a servant
of the government,' such for example as a policeman, or a
person in no way connected with the administration, not only
has the right, but is, as a matter of legal duty, bound to assist in
putting down breaches of the peace. No doubt policemen or
soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to
suppress a riot, but it is clear that all loyal subjects are bound to
take their part in the suppression of riots." 16
Commitment to such an approach results in my inability to
subscribe to the belief that martial law in terms of what is
provided both in the 1935 and the present Constitution, affords
sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that
expressed by Justice Black in Duncan v. Kahanamoku:
"Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If
there has been no observance of such a cardinal concept at the
present, it is due to the fact that before the former Congress
could meet in regular session anew, the present Constitution
was adopted, abolishing it and providing for an interim National
Assembly, which has not been convened.18 So I did view the
matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile
opinion. Reference was made to the first chapter on his work on
Constitutional Dictatorship where he spoke of martial rule as "a
device designed for use in the crisis of invasion or rebellion. It
may be most precisely defined as an extension of military
government to the civilian population, the substitution of the
will of a military commander for the will of the people's elected
government."19Since, for me at least, the Rossiter
characterization of martial law has in it more of the common
law connotation, less than duly mindful of the jural effects of
its inclusion in the Constitution itself as a legitimate device for
coping with emergency conditions in times of grave danger, but
always subject to attendant limitations in accordance with the
fundamental postulate of a charter's supremacy, I felt justified
in concluding: "Happily for the Philippines, the declaration of
martial law lends itself to the interpretation that the Burdick,
Willoughby, Willis, Schwartz formulations paying due regard
to the primacy of liberty possess relevance. lt cannot be said that
the martial rule concept of Rossiter, latitudinarian in scope, has
been adopted, even on the assumption that it can be reconciled
with our Constitution. What is undeniable is that President
Marcos has repeatedly maintained that Proclamation No. 1081
was precisely based on the Constitution and that the validity of
acts taken there under could be passed upon by the Supreme
court. For me that is quite reassuring, persuaded as I am
likewise that the week- of Rossiter is opposed to the
fundamental concept of our polity, which puts a premium on
freedom."20
3. Candor and accuracy compel the admission that such a
conclusion his to be qualified. For in the opinion of the Court in
the aforecited Aquino v. Commission on Elections, penned by
Justice Makasiar, the proposition was expressly affirmed "that
as Commander-in-Chief and enforcer or administrator of
martial law, the incumbent President of the Philippines can
reclamations, orders and decrees during the period Martial Law
essential to the security and preservation of the Republic, to the
defense of the political and social liberties of the people and to
the institution of reforms to prevent the resurgence of rebellion
or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic
crisis which presently threatens all nations including highly
developed countries." 21 To that extent, Rossiter's view mainly
relied upon, now possesses Juristic significant in this
jurisdiction. What, for me at least, gives caused for concern is
that with the opinion of the Court this intrusion of what I would
consider an alien element in the limited concept of martial law
as set forth in the Constitution would be allowed further
incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work approving tile
"concentration of governmental power in a democracy [as] a
corrective to the crisis inefficiencies inherent in the doctrine of
the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same
last chapter, just three pages later, he touched explicitly on the
undesirable aspect of a constitutional dictatorship. Thus:
"Constitutional Dictatorship is a dangerous thing. A declaration
of martial law or the passage of an enabling act is a step which
must always be feared and sometimes bitterly resisted, for it is
at once an admission of the incapacity of democratic institutions
to defend the order within which they function and a too
conscious employment of powers and methods long ago
outlawed as destructive of constitutional government.
Executive legislation, state control of popular liberties, military
courts, and arbitrary executive action were governmental
features attacked by the men who fought for freedom not
because they were inefficient or unsuccessful, but because they
were dangerous and oppressive. The reinstitution of any of
these features is a perilous matter, a step to be taken only when
the dangers to a free state will be greater if the dictatorial
institution is not adopted."23
4. It is by virtue of such considerations that I find myself unable
to share the view of those of my brethren who would accord
recognition to the Rossiter concept of concentration of
governmental power in the Executive during periods of crisis.
This is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy lavished on projects
conducive to the general welfare, considerable progress has
been achieved under martial rule. A fair summary may be found
in a recent address of the First Lady before the delegates to the
1976 international Monetary Fund-World Bank Joint Annual
Meeting: "The wonder is that so much has been done in so brief
a time. Since September 1972, when President Marcos
established the crisis government, peace and order have been
restored in a country once avoided as one of the most unsafe in
the world. We have liberated millions of Filipino farmers from
the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24Further, she said: "A
dynamic economy has replaced a stagnant order, and its rewards
are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow
alley of self-imposed isolation, now travels the broad
expressways of friendship and constructive interaction with the
whole world, these in a new spirit of confidence and self-
reliance. And finally, forced to work out our own salvation, the
Filipino has re-discovered the well-springs of his strength and
resilience As Filipinos, we have found our true Identity. And
having broken our crisis of Identity, we are no longer apologetic
and afraid. "25 The very Idea of a crisis, however, signifies a
transitory, certainly not a permanent, state of things. President
Marcos accordingly has not been hesitant in giving utterance to
his conviction that full implementation of the modified
parliamentary system under the present Constitution should not
be further delayed. The full restoration of civilian rule can thus
be expected. That is more in accord with the imperatives of a
constitutional order. It should not go unnoticed either that the
President has referred to the present regime as one of
"constitutional authoritarianism." That has a less objectionable
ring, authority being more Identified with the Idea of law, as
based on right, the very antithesis of naked force, which to the
popular mind is associated with dictatorship, even if referred to
as "constitutional."
For me likewise, that equally eminent scholar Corwin, also
invoked in the opinion of the Court, while no doubt a partisan
of d strong Presidency, was not averse to constitutional
restraints even during periods of crisis. So I would interpret this
excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may be compendiously,
if not altogether accurately, defined as one in which the ordinary
law, as administered by the ordinary courts, is superseded for
the time being by the will of a military commander. It follows
that, when martial law is instituted under national authority, it
rests ultimately on the will of the President of the United States
in his capacity as Commander-in-Chief. It should be added at
once, nevertheless, that the subject is one in which the record of
actual practice fails often to support the niceties of theory. Thus,
the employment of the military arm in the enforcement of the
civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section,
soldiers are often placed simply at the disposal and direction of
the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the
civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is
frequently any but a hard and fast one. And partly because of
these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into
military government and the other into the situation just
described, in which the civil authority remains theoretically in
control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil
War, when the privilege of the writ of habeas corpus was
suspended as to certain classes of suspects, although other
characteristics of martial law were generally absent."26
It is by virtue of the above considerations that, with due respect
to the opinion of my brethren, I cannot yield assent to the
Rossiter view of concentration of governmental powers in the
Executive during martial law.
5 There is necessity then, for me at least, that the specific
question raised in all three petitions be squarely faced. It is to
the credit of the opinion of the Court that it did so. The basic
issue posed concerns the boundaries of the power of the
President during this period of martial law, more precisely
whether it covers proposing amendments to the Constitution.
There is the further qualification if the stand of respondents be
taken into account that the interim National Assembly has not
been convened and is not likely to be called into session in
deference to the wishes of the people as expressed in three
previous referenda. It is the ruling of the majority that the
answer be in the affirmative, such authority being well within
the area of presidential competence. Again I find myself unable
to join readily in that conviction. It does seem to me that the
metes and bounds of the executive domain, while still
recognizable, do appear blurred. This is not to assert that there
is absolutely no basis for such a conclusion, sustained as it is by
a liberal construction of the principle that underlies Aquino v.
Commission on Elections as to the validity of the exercise of
the legislative prerogative by the President as long as the
interim National Assembly is not For me, the stage of certitude
has not been reached. I cannot simply ignore the vigorous plea
of petitioners that there is a constitutional deficiency consisting
in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring
it on the by team National Assembly.27 The learned advocacy
reflected in the pleadings as well as the oral discourse of
Solicitor General Estelito P. Mendoza 21 failed to erase the
grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during
this period of transition with the interim lawmaking body not
called into session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will
explain why.
The way for me, is beset with obstacles. In the first place, such
an approach would lose sight of the distinction between matters
legislative and constituent. That is implicit in the treatise on the
1935 Constitution by Justices Malcolm and Laurel In their
casebook published the same year, one of the four decisions on
the subject of constitutional amendments is Ellingham v. Dye
31 which categorically distinguished between constituent and
legislative powers. Dean Sinco, a well-known authority on the
subject, was quite explicit. Thus: "If there had been no express
provision in the Constitution granting Congress the power to
propose amendments, it would be outside its authority to
assume that power. Congress may not claim it under the general
grant of legislative power for such grant does not carry with it
the right 'to erect the state, institute the form of its government,'
which is considered a function inherent in the people.
Congressional law- making authority is limited to the power of
approving the laws 'of civil conduct relating to the details and
particulars of the government instituted,' the government
established by the people."12 If that distinction be preserved,
then for me the aforecited Aquino decision does not reach the
heart of the matter. Nor is this all. In the main opinion of Justice
Makasiar as well as that of the then Justice, now Chief Justice,
Castro, support for the ruling that the President cannot be
deemed as devoid of legislative power during this transition
stage is supplied by implications from explicit constitutional
provisions.13 That is not the case with the power to propose
amendments. It is solely the interim National Assembly that is
mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather
than registering a dissent on this point, it is solely because of
the consideration, possessed of weight and significance, that
there may be indeed in this far-from-quiescent and static period
a need for al. amendments. I do not feel confident therefore that
a negative vote on my part would be warranted. What would
justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit
of the barangays on this matter, is that as noted in both qualified
concurrences by Justices Teehankee and Munoz Palma in
Aquino, as far as the legislative and appropriately powers are
concerned, is the necessity that unless such authority be
recognized, there may be paralyzation of governmental
activities, While not squarely applicable, such an approach has,
to my mind, a persuasive quality as far as the power to propose
amendments is concerned.
Thus I would confine myself to the expression of serious doubts
on the question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free
to concur in the result that the petitions be dismissed. That is to
accord respect to the principle that judicial review goes no
further than to checking clear infractions of the fundamental
law, except in the field of human rights where a much greater
vigilance is required, That is to make of the Constitution a
pathway to rather than a barrier against a desirable objective. -
As shown by my concurring and dissenting opinion in
Tolentino Commission on Elections '34 a pre-martial law
decision, the fundamental postulate that sovereignty resides in
the people exerts a compelling force requiring the judiciary to
refrain as much as possible from denying the people the
opportunity to make known their wishes on matters of the
utmost import for the life of the nation, Constitutional
amendments fall in that category. I am fortified in that
conviction by the teaching of persuasive American decisions
There is reinforcement to such a conclusion from retired Chief
Justice Concepcion's concurring and dissenting opinion in
Aytona v. Castillo,17 Which I consider applicable to the present
situation. These are his words: "It is well settled that the
granting of writs of prohibition and mandamus is ordinarily
within the sound discretion of the courts, to be exercised on
equitable principles, and that said writs should be issued when
the right to the relief is clear * * by As he noted in his ponencia
in the later case of Gonzales v. Hechanova,19 an action for
prohibition, while petitioner was sustained in his stand, no
injunction was issued. This was evident in the dispositive
portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to
authorize the importation in question; that he exceeded his
jurisdiction in granting said authority; that said importation is
not sanctioned by law and is contrary to its provisions; and that,
for lack of the requisite majority, the injunction prayed for must
be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on
my part would necessarily compel that I vote for the relief
prayed for. Certainly this is not to belittle in any way the action
taken by petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the rule of law. Even
if their contention as to lack of presidential power be accepted
in their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy.
There are, for me, potent considerations that argue against
acceding to the plea. With the prospect of the interim National
Assembly being convened being dim, if not non- existent, if
only because of the results in three previous referenda, there
would be no constitutional agency other than the Executive who
could propose amendments, which, as noted. may urgently
press for adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended
not only to solve a constitutional anomaly with the country
devoid of a legislative body but also to provide. the machinery
be which the termination of martial law could be hastened. That
is a consummation devoutly to be wished. That does militate
strongly against the stand of petitioners. The obstruction they
would pose may be fraught with pernicious consequences. It
may not be amiss to refer anew to what I deem the cardinal
character of the jural postulate explicitly affirmed in both the
1935 and the present Constitutions that sovereignty resides in
the people. So I made clear in Tolentino v. Commission on
Elections and thereafter in my dissent in Javellana v. The
Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It
is crucial it is of the essence. Nonetheless, it is their will, if
given expression in a manner sanctioned by law and with due
care that there be no mistake in its appraisal, that should be
controlling. There is all the more reason then to encourage their
participation in the power process. That is to make the regime
truly democratic. Constitutional orthodoxy requires, however,
that the fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has
affirmed its commitment to the principle that the amending
process gives rise to a justiciable rather than a political question.
So, it has been since the leading case of Gonzales v.
Commission on Election S.48 It has since then been followed in
Tolentino v. Commission on Elections 49 Planas v. Commission
on Elections," and lastly, in Javellana v. The Executive
Secretary This Court did not heed the vigorous plea of the
Solicitor General to resurrect the political question doctrine
announced in Mabanag v. Lopez Vito. 52 This is not to deny that
the federal rule in the United States as set forth in the leading
case of Coleman v. Miller , 53 a 1939 decision, and relatively
recent State court decisions, supply ammunition to such a
contention.,51 That may be the case in the United States, but
certainly not in this jurisdiction. Philippine constitutional
tradition is to the contrary. It can trace its origin to these words
in the valedictory address before the 1934-35 Constitutional
Convention by the illustrious Claro M. Recto: "It is one of the
paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other than those
directly chosen by them for the exercise of their sovereignty It
can be said with truth, therefore, that there has invariably been
a judicial predisposition to activism rather than self-restraint.
The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the
role of a mere interpreter; it did exercise at times creative
power. It has to that extent participated in the molding of policy,
It has always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot
by itself guarantee the formation, much less the perpetuation of
democratic values or, realistically, it cannot prevail against the
pressure of political forces if they are bent in other directions. it
does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked,
to decide momentous questions at each critical stage of this
nation's life.
There must be, however, this caveat. Judicial activism gives rise
to difficulties in an era of transformation and change. A society
in flux calls for dynamism in "he law, which must be responsive
to the social forces at work. It cannot remain static. It must be
sensitive to life. This Court then must avoid the rigidity of legal
Ideas. It must resist the temptation of allowing in the wasteland
of meaningless abstractions. It must face stubborn reality. It has
to have a feel for the complexities of the times. This is not to
discount the risk that it may be swept too far and too fast in the
surge of novel concepts. The past too is entitled to a hearing; it
cannot just be summarily ignored. History still has its uses. It is
not for this Court to renounce the virtue of systematic jural
consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of
what appears to be a splintered society. It should strive to be a
factor for unity under a rule of law. There must be, on its part,
awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that
may not end at birth. It is by virtue of such considerations that
I did strive for a confluence of principle and practicality. I must
confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted
by the thought that immortality does not inhere in judicial
opinions. 8. 1 am thus led by my studies on the subject of
constitutional law and, much more so, by previous judicial
opinions to concur in the dismissal of the petitions. If I gave
expression to byes not currently fashionable, it is solely due to
deeply-ingrained beliefs. Certainly, I am the first to recognize
the worth of' the social and economic reforms so needed by the
troubled present that have been introduced and implemented.
There is no thought then of minimizing, much less of refusing
to concede, the considerable progress that has been made and
the benefits that have been achieved under this Administration.
Again, to reiterate one of my cherished convictions, I certainly
approve of the adherence to the fundamental principle of
popular sovereignty which, to be meaningful however, requires
both freedom in its manifestation and accuracy in ascertaining
what it wills. Then, too, it is fitting and proper that a distinction
was made between two aspects of the coming poll, the
referendum and the plebiscite. It is only the latter that is
impressed with authoritative force. So the Constitution requires.
Lastly, there should be, as I did mention in my concurrence in
Aquino v. Commission on Elections,56 full respect for free
speech and press, free assembly and free association. There
should be no thought of branding the opposition as the enemy
and the expression of its views as anathema, Dissent, it is
fortunate to note, has been encouraged. It has not been
Identified with disloyalty. That ought to be the case, and not
solely due to presidential decrees. Constructive criticism is to
be welcomed not so much because of the right to be heard but
because there may be something worth hearing. That is to
ensure a true ferment of Ideas, an interplay of knowledgeable
minds. There are though well- defined limits, One may not
advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent.. What I mean to stress is
that except on a showing of clear and present danger, there must
be respect for the traditional liberties that make a society truly
free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the
petitions for lack of merit and vote to grant the petitions for the
following reasons and considerations: 1. It is undisputed that
neither the 1935 Constitution nor the 1973 Constitution grants
to the incumbent President the constituent power to propose and
approve amendments to the Constitution to be submitted to the
people for ratification in a plebiscite. The 1935 Constitution
expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call
a constitutional convention for the purpose The 1973
Constitution expressly vests the constituent power in the regular
National Assembly to propose amendments (by a three-fourths
vote of all its members) or "call a constitutional convention" (by
a two-thirds vote of all its members) or "submit the question of
calling such convention to the electorate in an election" (by a
majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing
vest the constituent power during the period of transition in the
interim National Assembly "upon special call be the Prime
Minister (the incumbent President 3)... by a majority ore of all
its members (to) propose amendments."
Since the Constitution provides for the organization of the
essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of
such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it
follows that the President's questioned decrease proposing and
submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of
constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is
controlling in the case at bar In therein declaring null and void
the acts of the 1971 Constitutional Convention and of the
Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting
for the people's ratification an advance amendment reducing the
voting age from 21 years to 18 years, and issuing writs of
prohibition and injunction against the holding of the plebiscite,
this Court speaking through Mr. Justice Barredo ruled that --
The Constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the
government, (land) are no less binding upon the people
As long as an amendment is formulated and
submitted under the aegis of the present
Charter, any proposal for such amendment
which is not in conformity with the letter,
spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of
this Court ;8
The real issue here cannot be whether or not the amending
process delineated by the present Constitution may be
disregarded in favor of allowing the sovereign people to express
their decision on the proposed amendments, if only because it
is evident that the very Idea of departing from the fundamental
law is anachronistic in the realm of constitutionalism and
repugnant to the essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature,
since "the provisional nature of the proposed amendments and
the manner of its submission to the people for ratification or
rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution
itself', 10 i.e. the mandatory requirements of the amending
process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar,
mutatis, mutandis, it is clear that where the proposed
amendments are violative of the Constitutional mandate on the
amending process not merely for being a "partial amendment"
of a "temporary or provisional character" (as in Tolentino) but
more so for not being proposed and approved by the department
vested by the Constitution with the constituent power to do so,
and hence transgressing the substantive provision that it is only
the interim National Assembly, upon special call of the interim
Prime Minister, bu a majority vote of all its members that may
propose the amendments, the Court must declare the
amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount
law, unchangeable by ordinary means" 11 but only by the
particular mode and manner prescribed therein by the people.
As stressed by Cooley, "by the Constitution which they
establish, (the people) not only tie up the hands of their official
agencies but their own hands as well; and neither the officers of
the State, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in
the legislative body (the regular National Assembly) or the
interim National Assembly during the transition period) or in a
constitutional convention called for the purpose is in
accordance with universal practice. "From the very necessity of
the case" Cooley points out "amendments to an existing
constitution, or entire revisions of it, must be prepared and
matured by some body of representatives chosen for the
purpose. It is obviously impossible for the whole people to
meet, prepare, and discuss the proposed alterations, and there
seems to be no feasible mode by which an expression of their
will can be obtained, except by asking it upon the single point
of assent or disapproval." This body of representatives vested
with the constituent - power "submits the result of their
deliberations" and "puts in proper form the questions of
amendment upon which the people are to pass"-for ratification
or rejection.13
5. The Court in Tolentino thus rejected the argument "that the
end sought to be achieved is to be desired" and in denying
reconsideration in paraphrase of the late Claro M. Recto
declared that "let those who would put aside, invoking grounds
at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in
mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice
Calixto O. Zaldivar in his dissenting opinion in the Ratification
cases 14 that "we will be opening the gates for a similar
disregard to the Constitution in the future. What I mean is that
if this Court now declares that a new Constitution is now in
force because the members of the citizens assemblies had
approved said new Constitution, although that approval was not
in accordance with the procedure and the requirements
prescribed in the 1935 Constitution, it can happen again in some
future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution
and the law, and then said proposed amendments is submitted
to the people in any manner and what will matter is that a basis
is claimed that there was approval by the people. There will not
be stability in our constitutional system, and necessarily no
stability in our government."
6. It is not legally tenable for the majority, without overruling
the controlling precedent of Tolentino (and without mustering
the required majority vote to so overrule) to accept the
proposed; amendments as valid notwithstanding their being
"not in conformity with the letter, spirit and intent of the
provision of the Charter for effecting amendments" on the
reasoning that "If the President has been legitimately
discharging the legislative functions of the interim National
Assembly, there is no reason why he cannot validly discharge
the functions."15
In the earlier leading case of Gonzales vs. Comelec16, this Court
speaking through now retired Chief Justice Roberto
Concepcion, pointer out that "Indeed, the power to
Congress"17 or to the National Assembly.18 Where it not for the
express grant in the Transitory Provisions of the constituent
power to the interim National Assembly, the interim National
Assembly could not claim the power under the general grant of
legislative power during the transition period.
The majority's ruling in the Referendum cases19 that the
Transitory Provision in section 3(2) recognized the existence of
the authority to legislate in favor of the incumbent President
during the period of martial law manifestly cannot be stretched
to encompass the constituent power as expressly vested in the
interim National Assembly in derogation of the allotment of
powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power
as one of the settled maxims of constitutional law, 20the
contituent power has been lodged by the sovereign power of the
people with the interim National Assembly during the transition
period and there it must remain as the sole constitutional agency
until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936
landmak case of Angara vs. Electoral Commissioner21, "(T)he
Constitution sets forth in no uncertain language and restrictions
and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied
in our Constitution are real as they should be in any living
Constitution".
7. Neither is the justification of "constitutional impasses"
tenable. The sentiment of the people against the convening of
the interim National Assembly and to have no elections for "at
least seven (7) years" Concededly could not ament the
Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence
"immediately" upon the proclamation of ratification of the 1973
Constitution), much less remove the constituent power from
said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum
cases22, "(W)hile it has been advanced that the decision to defer
the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973
when the people voted against the convening of the interim
National Assembly for at least seven years, such sentiment
cannot be given any legal force and effect in the light of the
State's admission at the hearing that such referendums are
merely consultative and cannot amend the Constitution or
Provisions which call for the 'immediate existence' and 'initial
convening of the interim National Assembly to 'give priority to
measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures
enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the
convening of the interim National Assembly to dischange its
legislative tasks during the period of transition under martial
law, they certainly had no opportunity and did not express
themselves against convening the interim National Assembly to
discharge the constituent power to propose amendments
likewise vested in it by the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976
referendum was first announced, the newspapers reported that
among the seven questions proposed by the sanggunian and
barangay national executive committies for the referendum was
the convening of the interim National Assembly.23
It was further reported that the proposals which were termed
tentative "will be discussed and studied by (the President), the
members of the cabinet, and the security council" and that the
barangays felt, notwithstanding the previous referenda on the
convening of the interim National Assembly that "it is time to
again ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed
necessary to be discussed and adopted for submittal to the
people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be
complied with. This means, under the teaching of Tolentino that
the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do
so, namely, the interim National Assembly, and not from the
executive power as vested in the Prime Minister (the incumbent
President) with the assistance of the Cabinet 25 from whom such
power has been withheld.
It will not do to contend that these proposals represent the voice
of the people for as was aptly stated by Cooley "Me voice of the
people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions
which they themselves have prescribed and pointed out by the
Constitution. ... ."26
The same argument was put forward and rejected by this Court
in Tolentino which rejected the contention that the "Convention
being a legislative body of the highest order (and directly
elected by the people to speak their voice) is sovereign, in as
such, its acts impugned by petitioner are beyond the control of
Congress and the Courts" and ruled that the constitutional
article on the amending process" is nothing more than a part of
the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said,
"The Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for
ratification only in the manner herein provided'".27
This Court therein stressed that "This must be so, because it is
plain to Us that the framers of the Constitution took care that
the process of amending the same should not be undertaken
with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such
as the one our founding fathers have chosen for this nation, and
which we of the succeeding generations generally cherish. And
because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people
within the country and those subject to its sovereignity, ever
constitution worthy of the people for which it is intended must
not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the
Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written
constitutions are supposed to be designed so as to last for some
time, if not for ages, or for, at least, as long as they can be
adopted to the needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by
the people themselves, in regard to the process of their
amendment."28
9. The convening of the interim National Assembly to exercise
the constituent power to proposed amendments is the only way
to fulfill the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
Comelec 29 in the setting as in of a Comelec resolution banning
the use of political taped jingles by candidates for
Constitutional Convention delegates int he special 1970
elections, "the concept of the Constitution as the fundamental
law, setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is
to amnifst fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal heirarchy. The
three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield
obedience to its commands. Whatever limits it imposes must be
observed. Congress in the enactment of statutes must ever be on
guart lest the restrictions on its authority, whether substantive
or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task
of applying the law to the facts as found in deciding cases, the
judiciary is called upon the maintain inviolate what is decreed
by the fundamental law."
This is but to give meaning to the plan and clear mandate of
section 15 of the Transitory Provisions (which allows of no
other interpretation) that during the stage of transition the
interim National Assembly alone exercises the constituent
power to propose amendments, upon special call therefor. This
is reinforced by the fact that the cited section does not grant to
the regular National Assembly of calling a constitutional
convention, thus expressing the will of the Convention (and
presumably of the people upon ratification) that if ever the need
to propose amendments arose during the limited period of
transition, the interim National Assembly alone would
discharge the task and no constitutional convention could be
call for the purpose.
As to the alleged costs involved in convening the interim
National Assembly to propose amendments, among them its
own abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that
its deliberations could last for one year), suffice it to recall this
Court's pronouncement in Tolentino (in reflecting a similar
argument on the costs of holding a plebiscite separately from
the general elections for elective officials) that "it is a matter of
public knowledge that bigger amounts have been spent or
thrown to waste for many lesser objectives. ... Surely, the
amount of seventeen million pesos or even more is not too much
a price to pay for fealty and loyalty to the Constitution ...
" 30 and that "while the financial costs of a separate plebiscite
may be high, it can never be as much as the dangers involved in
disregarding clear mandate of the Constitution, no matter how
laudable the objective" and "no consideration of financial costs
shall deter Us from adherence to the requirements of the
Constitution".11
10. The imposition of martial law (and "the problems of
rebellion, subversion, secession, recession, inflation and
economic crisis a crisis greater than war") 32 cited by the
majority opinion as justifying the concentration of powers in the
President, and the recognition now of his exercising the
constituent power to propose amendments to the Fundamental
Law "as agent for and in behalf of the people" 33 has no
constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice
Ricardo Paras reaffirmed for the Court the principle that
emergency in itself cannot and should not create power. In our
democracy the hope and survival of the nation lie in the wisdom
and unselfish patriotism of all officials and in their faithful
'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article
IX, section 12 , as stressed by the writer in his separate opinion
in the Referendum Cases,14 "is a verbatim reproduction of
Article VII, section 10 (2) of the 1935 Constitution and provides
for the imposition of martial law only 'in case of invasion,
resurrection or rebellion, or imminent danger thereof, when the
public safety requires it and hence the use of the legislative
power or more accurately 'military power' under martial rule is
limited to such necessary measures as will safeguard the
Republic and suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which
has been held by the majority in the Referendum Cases to be
the recognition or warrant for the exercise of legislative power
by the President during the period of martial law is but a
transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to be considered in
isolation from the Constitution but as mere integral parts thereof
which must be harmonized consistently with the entire
Constitution.
As Cooley restated the rule: "effect is to be given, if possible,
to the whole instrument, and to every section and clause. If
different portions seem to conflict, the courts must harmonize
them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which
may make some words Idle and nugatory.
This rule is applicable with special force to
written constitutions, in which the people will
be presumed to have expressed themselves in
careful and measured terms, corresponding
with the immense importance of the powers
delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a
case can arise where a court would bye
justified in declaring any portion of a written
constitution nugatory because of ambiguity.
One part may qualify another so as to restrict
its operation, or apply it otherwise than the
natural construction would require if it stood
by itself; but one part is not to be allowed to
defeat another, if by any reasonable
construction the two can be made to stand
together. 36
The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery
and prescribe the procedure for the ratification of his proposals
has been withheld from the President (Prime Minister) as sole
repository of the Executive Power, presumably in view of the
immense powers already vested in him by the Constitution but
just as importantly, because by the very nature of the constituent
power, such amendments proposals have to be prepared,
deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and
hence may not be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before
the elevation of the l971 Constitutional Convention that the
records of past plebiscites show that the constitutional agency
vested with the exercise of the constituent power (Congress or
the Constitutional Convention) really determined the
amendments to the Constitution since the proposals were
invariably ratified by the people 37 thus: "although the people
have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances
attending its exercise, as effective as one might otherwise think:
that, despite the requisite ratification by the people, the actual
contents of our fundamental law will really be determined by
the Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of
delegates thereto ... "38
12. Martial law concededly does not abrogate the Constitution
nor obliterate its constitutional boundaries and allocation of
powers among the Executive, Legislative and Judicial
Departments. 39
It has thus been aptly observed that "Martial law is an
emergency regime, authorized by and subject to the
Constitution. Its basic premise is to preserve and to maintain the
Republic against the dangers that threaten it. Such premise
imposes constraints and limitations. For the martial law regime
fulfills the constitutional purpose only if, by reason of martial
law measures, the Republic is preserved. If by reason of such
measures the Republic is so transformed that it is changed in its
nature and becomes a State other than republican, then martial
law is a failure; worse, martial law would have become the
enemy of the Republic rather than its defender and preserver." 40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of
Angara vs. Electoral Commission when Justice Jose P. Laurel
echoed U.S. Chief Justice Marshall's "climactic phrase" that
"we must never forget that it is a Constitution we are
expounding" and declared the Court's "solemn and sacred"
constitutional obligation of judicial review and laid down the
doctrine that the Philippine Constitution as "a definition of the
powers of government" placed upon the judiciary the great
burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other departments . . . but only asserts the
solemn and sacred obliteration entrusted to it by the
Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and
guarantees to them".
At the same time, the Court likewise adhered to the
constitutional tenet that political questions, i.e. questions which
are intended by the Constitutional and relevant laws to be
conclusively determined by the "political", i.e. branches of
government (namely, the Executive and the Legislative) are
outside the Court's jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court) and in
Tolentino43 (by the required constitutional majority), the Court
has since consistently ruled that when proposing and approving
amendments to the Constitution, the members of Congress.
acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by
not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside
and set the same at naught, contrary to the basic tenet that outs
is it government of lawsom not of men, and to the rigid nature
of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the
power to declare a treaty unconstitutional, despite the eminently
political character of treaty-making power".44
As amplified by former Chief Justice Concepcion in Javellana
vs Executive Secretary 45 (by a majority vote), "when the grant
of power is qualified, conditional or subject to limitations. the
issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations by expected, is
justiciable or non-political, the crux of the problem being one
of legality or validity of the contested act, not its wisdom
Otherwise, said qualifications, conditions and limitations-
particularly those prescribed or imposed by the Constitution
would be set at naught".
The fact that the proposed amendments are to be submitted to
the people for ratification by no means makes the question
political and non- justiciable since as stressed even in Javellana
the issue of validity of the President's proclamation of
ratification of the Constitution presented a justiciable and non-
political question
Stated otherwise, the question of whether the Legislative acting
as a constituent assembly or the Constitutional Convention
called fol- the purpose, in proposing amendments to the people
for ratification followed the constitutional procedure and on the
amending process is perforce a justiciable question and does not
raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's
decision.
The substantive question presented in the case at bar of whether
the President may legally exercise the constituent power vested
in the interim National Assembly (which has not been granted
to his office) and propose constitutional amendments is
preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of
social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department
is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
departments and among the integral or constituent units
thereof".
To follow the easy way out by disclaiming jurisdiction over the
issue as a political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper
submittal of the proposed amendments to the people:
Prescinding from the writer's view of the nullity of the
questioned decree of lack of authority on the President's part to
excercise the constituent power, I hold that the doctrine of fair
and proper submission first enunciated by a simple majority of
by Justices in Gonzales and subsequently officially adopted by
the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the
proposed amendments. As ruled by this Court in Tolentino
where "the proposed amendment in question is expressly
saddled with reservations which naturally impair, in great
measures, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read
together with the reservations tacked to it by the Convention
thru Section 3 of the questioned resolution, it is too much of a
speculation to assume what exactly the amendment would
really amount lo in the end. All in all, as already pointed out in
our discussion of movants' first ground, if this kind of
amendment is allowed, the Philippines will appear before the
world to be in the absurd position of being the only country with
a constitution containing a provision so ephemeral no one
knows until when it will bet actually in force", there can be no
proper submission.
In Tolentino a solitary amendment reducing the voting age to
18 years was struck down by this Court which ruled that "in
order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter
not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its
relation to the other parts of the Constitution with which it has
to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of
reference they can base their judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two
other members 46 graphically pointed out in their joint separate
opinion that the solitary question "would seem to be
uncomplicated and innocuous. But it is one of life's verities that
things which appear to be simple may turn out not to be so
simple after all".47
They further expressed "essential agreement" with Mr. Justice
Conrado V. Sanchez' separate opinion in Gonzales "on the
minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed
constitutional amendment" which reads thus:
... we take the view that the words 'submitted
to the people for their ratification', if
construed in the light of the nature of the
Constitution a fundamental charter that is
legislation direct from the people, an
expression of their sovereign will - is that it
can only be amended by the people
expressing themselves according to the
procedure ordained by the Constitution.
Therefore, amendments must be fairly laid
before the people for their blessing or
spurning. The people are not to be mere
rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to
mull over the original provisions, compare
them with the proposed amendments, and try
to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of
extraneous or possibly insidious influences.
We believe the word submitted' can only
mean that the government, within its
maximum capabilities, should strain every
effort to inform every citizen of the
provisions to be amended, and the proposed
amendments and the meaning, nature and
effects thereof. By this, we are not to be
understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be
reached, then there is no submission within
the meaning of the word as intended by the
framers of the Constitution. What the
Constitution in effect directs is that the
government, in submitting an amendment for
ratification, should put every instrumentality
or agency within its structural framework to
enlighten the people, educate them with
respect to their act of ratification or rejection.
For, as we have earlier stated, one thing is
submission and another is ratification. There
must be fair submission, intelligent. consent
or rejection. If with all these safeguards the
people still approve the amendment no matter
how prejudicial it is to them, then so be it. For
the people decree their own fate.48
Justice Sanchez therein ended the passage with an apt citation
that " ... " The great men who builded the structure of our state
in this respect had the mental vision of a good Constitution
voiced by Judge Cooley, who has said 'A good Constitution
should be beyond the reach of temporary excitement and.
popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. xxx xxx
xxx Changes in government are to be feared unless the benefit
is certain. As Montaign says: All great mutations shake and
disorder state. Good does not necessarily succeed evil ;another
evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the
Court in Tolentino that there is no proper submission "if the
people are not sufficiently affirmed of the amendments to be
voted upon, to conscientiously deliberate thereon, to express
their will in a genuine manner. ... .." 50
3. From the complex and complicated proposed amendments
set forth in the challenged decree and the plethora of confused
and confusing clarifications reported in the daily newspapers, it
is manifest that there is no proper submission of the proposed
amendments. Nine (9) proposed constitutional amendments
were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds
are enjoined to vote notwithstanding their lack of qualification
under Article VI of the Constitution. Former Senator Arturo
Tolentino, an acknowledged parliamentarian of the highest
order, was reported by the newspapers last October 3 to have
observed that "there is no urgency in approving the proposed
amendments to the Constitution and suggested that the question
regarding charter changes be modified instead of asking the
people to vote on hurriedly prepared amendments". He further
pointed out that "apart from lacking the parliamentary style in
the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended". 52
As of this writing, October 11, 1976, the paper today reported
his seven-page analysis questioning among others the proposed
granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative
authority can give rise to confusion and serious constitutional
questions".53
Aside from the inadequacy of the limited time given for the
people's consideration of the proposed amendments, there can
be no proper submission because the proposed amendments are
not in proper form and violate the cardinal rule of amendments
of written constitutions that the specific provisions of the
Constitution being repealed or amended as well as how the
specific provisions as amended would read, should be clearly
stated in careful and measured terms. There can be no proper
submission because the vagueness and ambiguity of the
proposals do not sufficiently inform the people of the
amendments for, conscientious deliberation and intelligent
consent or rejection.
4. While the press and the Solicitor General at the hearing have
stated that the principal thrust of the proposals is to substitute
the interim National Assembly with an interim Batasang
Pambansa, a serious study thereof in detail would lead to the
conclusion that the whole context of the 1973 Constitution
proper would be affected and grave amendments and
modifications thereof -would apparently be made, among
others, as follows:
Under Amendment No. 1, the qualification age of members of
the interim Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the
interim Batasang Pambansa within 30 days from the election
and selection of the members (for which there is no fixed date)
the incumbent President apparently becomes a regular President
and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on
members of the Cabinet in the Constitution such as the
prohibition against the holding of more than one office in the
government including government-owned or -controlled
corporations would appear to be eliminated, if not prescribed by
the President;
Under Amendment No. 5, the President shall continue to
exercise legislative powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative
authority given the President and the interim Batasang
Pambansa as well as the regular National Assembly, as pointed
out by Senator Tolentino, with the President continuing to
exercise legislative powers in case of "grave emergency or a
threat or imminence thereof" (without definition of terms) or
when said Assemblies "fail or are unable to act adequately on
any matter for any reason that in his judgment requires
immediate action", thus radically affecting provisions of the
Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians
would apparently be constitutionalized, although their
functions, power and composition may be altered by law.
Referendums (which are not authorized in the present 1973
Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged
at the hearing, that amendments to the Constitution may
thereafter be effected by referendum, rather than by the rigid
and strict amending process provided presently in Article XVI
of the Constitution;
Under Amendment No. 8, there is a general statement in general
that the unspecified provisions of the Constitution "not
inconsistent with any of these amendments" shall continue in
full force and effect; and Under Amendment No. 9. the
incumbent President is authorized to proclaim the ratification of
the amendments by the majority of votes cast. It has likewise
been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a
genuine manner and with due circumspection on the proposed
amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and
discussion. The facilities for free debate and discussion over the
mass media, print and otherwise are wanting. The President
himself is reported to have observed the timidity of the media
under martial law and to have directed the press to air the views
of the opposition.54
Indeed, the voice of the studentry as reflected in the editorial of
the Philippine Collegian issue of September 23, 1976 comes as
a welcome and refreshing model of conscientious deliberation,
as our youth analyzes the issues "which will affect generations
yet to come" and urge the people to mull over the pros and cons
very carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to
decide on two important national issues - the
creation of a new legislative body and the
lifting of martial law.
On the first issue, it is almost sure that the
interim National Assembly will not be
convened, primarily because of its
membership. Majority of the members of the
defunct Congress, who are mandated by the
Constitution to become members of the
interim National Assembly, have gained so
widespread a notoriety that the mere mention
of Congress conjures the image of a den of
thieves who are out to fool the people most of
the time. Among the three branches of
government, it was the most discredited. In
fact, upon the declaration of martial law,
some people were heard to mutter that a
'regime that has finally put an end to such
congressional shenanigans could not be all
that bad'.
A substitute legislative body is contemplated
to help the President in promulgating laws,
and perhaps minimize the issuance of ill-
drafted decrees which necessitate constant
amendments. But care should be taken that
this new legislative body would not become
a mere rubber stamp akin to those of other
totalitarian countries. It should be given real
powers, otherwise we will just have another
nebulous creation having the form but
lacking the substance. Already the President
has expressed the desire that among the
powers he would like to have with regard to
the proposed legislative body is that of
abolishing it in case 'there is a need to do so'.
As to what would occasion such a need, only
the President himself can determine. This
would afford the Chief Executive almost total
power over the legislature, for he could
always offer the members thereof a carrot and
a stick.
On the matter of lifting martial law the people
have expressed ambivalent attitudes. Some of
them, remembering the turmoil that prevailed
before the declaration of martial law, have
expressed the fear that its lifting might
precipitate the revival of the abuses of the
past, and provide an occasion for evil
elements to resurface with their usual tricks.
Others say that it is about time martial law
was lifted since the peace and order situation
has already stabilized and the economy seems
to have been parked up.
The regime of martial law has been with us
for four years now. No doubt, martial law has
initially secured some reforms for the country
The people were quite willing to participate
in the new experiment, thrilled by the novelty
of it all. After the euphoria, however, the
people seem to have gone back to the old
ways, with the exception that some of our
freedoms were taken away, and an
authoritarian regime established.
We must bear in mind that martial law was
envisioned only to cope with an existing
national crisis, It was not meant to be availed
of for a long period of time, otherwise it
would undermine our adherence to a
democratic form of government. In the words
of the Constitution. martial law shall only be
declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when
the public safety requires it'. Since we no
longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously
rethink the 'necessity' of prolonging the
martial law regime. If we justify the
continuance of martial by economic or other
reasons other than the foregoing
constitutional grounds, then our faith in the
Constitution might be questioned. Even
without martial law,. the incumbent Chief
Executive still holds vast powers under the
constitution. After all, the gains of the New
Society can be secured without sacrificing the
freedom of our people. If the converse is true,
then we might have to conclude that the
Filipinos deserve a dictatorial form of
government. The referendum results will
show whether the people themselves have
adopted this sad conclusion.
The response of the people to the foregoing
issues will affect generations yet to come, so
they should mull over the pros and cons very
carefully."
6. This opinion by written in the same spirit as the President's
exhortations on the first anniversary of proclamation of the
1973 Constitution that we "let the Constitution remain firm and
stable" so that it may "guide the people", and that we "remain
steadfast on the rule of law and the Constitution" as he recalled
his rejection of the "exercise (of) power that can be Identified
merely with a revolutionary government" that makes its own
law, thus:
. . . Whoever he may be and whatever
position he may happen to have, whether in
government or outside government, it is
absolutely necessary now that we look
solemnly and perceptively into the
Constitution and try to discover for ourselves
what our role is in the successful
implementation of that Constitution. With
this thought, therefore, we can agree on one
thing and that is: Let all of us age, let all of us
then pass away as a pace in the development
of our country. but let the Constitution remain
 firm and stable and let institutions grow in
strength from day to day, from achievement
to achievement, and so long as that
Constitution stands, whoever may the man in
power be, whatever may his purpose be, that
Constitution will guide the people and no
man, however, powerful he may be, will dare
to destroy and wreck the foundation of such a
Constitution.
These are the reasons why I personally,
having proclaimed martial law, having been
often induced to exercise power that can be
Identified merely with a revolutionary
government, have remained steadfast or the
rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976
which in reply to the Comelec query allowed by a vote of 7 to
3, judges of all courts, after office hours, "to accept invitations
to act as resource speakers under Section 5 of Presidential
Decree No. 991, as amended, as well as to take sides in
discussions and debates on the referendum-plebiscite questions
under Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice
Munoz Palma had dissented from the majority resolution, with
all due respect, on the ground that the non-participation of
judges in such public discussions and debates on the
referendum-plebiscite questions would preserve the traditional
non-involvement of the judiciary in public discussions of
controversial issues. This is essential for the maintenance and
enhancement of the people's faith and confidence in the
judiciary. The questions of the validity of the scheduled
referendum- plebiscite and of whether there is proper
submission of the proposed amendments were precisely
subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public
discussion and debate might blemish the image and
independence of the judiciary. Aside from the fact that the
fixing of a time limit for the acceptance of their courtesy
resignations to avoid an indefinite state of insecurity of their
tenure in office still spends litigants and their relatives and
friends as well as a good sector of the public would be hesitant
to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these
views have agreed that we make them of record here, since we
understand that the permission given in the resolution is
nevertheless addressed to the personal decision and conscience
of each judge, and these views may he of some guidance to
them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren
that the herein petitions should be dismissed, as in fact I vote
for their dismissal, I deem it imperative that I should state
separately the considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the
minds of those who have doubts as to whether or not I should
have taken part in the consideration and resolution of these
cases. Indeed, it would not be befitting my position in this
Highest Tribunal of the land for me to leave unmentioned the
circumstances which have given cause, I presume, for others to
feel apprehensive that my participation in these proceedings
might detract from that degree of faith in the impartiality that
the Court's judgment herein should ordinarily command. In a
way, it can be said, of course, that I am the one most responsible
for such a rather problematical situation, and it is precisely for
this reason that I have decided to begin this opinion with a
discussion of why I have not inhibited myself, trusting most
confidently that what I have to say will be taken in the same
spirit of good faith, sincerity and purity of purpose in which I
am resolved to offer the same.
Plain honesty dictates that I should make of record here the
pertinent contents of the official report of the Executive
Committee of the Katipunan ng mga Sanggunian submitted to
the Katipunan itself about the proceedings held on August 14,
1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE
CONVENING OF A LEGISLATIVE body
came out when the President express his
desire to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine
Constitution Association (PHILCONSA) headed by Supreme
Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang
Pambansa' which would help the President in the performance
of his legislative functions. The proposed new body will take
the place of the interim National Assembly which is considered
not practical to convene at this time considering the constitution
of its membership.
Upon learning the proposal of Justice Barredo, the country's
42,000 barangay assemblies on August 1 suggested that the
people be consulted on a proposal to create a new legislative
body to replace the interim assembly provided for by the
Constitution. The suggestion of the barangay units was made
through their national association, Pambansang Katipunan ng
mga Barangay headed by Mrs. Nora Z. Patines. She said that
the people have shown in at least six instances including in the
two past referenda that they are against the convening of the
interim National Assembly. She also said that since the people
had ruled out the calling of such assembly and that they have
once proposed that the President create instead the Sangguniang
Pambansa or a legislative advisory body, then the proposal to
create a new legislative must necessarily be referred to the
people.
The federation of Kabataang Barangay, also numbering 42,000
units like their elder counterparts in the Katipunan ng mga
Barangay also asserted their own right to be heard on whatever
plans are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was
held to discuss matters pertaining to the stand of the PKB with
regards to the convening of a new legislative body. The stand
of the PKB is to create a legislative advisory council in place of
the old assembly. Two days after, August 8, the Kabataang
Barangay held a symposium and made a stand which is the
creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their
respective localities to discuss more intellegently the proposal
to create a new legislative body was made by various urban and
rural Sangguniang Bayans.
Numerous requests made by some members coming from 75
provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community
Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono
granted the request by convening the 91 member National
Executive Committee of the Pambansang Katipunan ng mga
Sanggunian on August 14 which was held at Session Hall,
Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the
PKKB
Actually, the extent of my active participation in the events and
deliberations that have culminated in the holding of the
proposed referendum- plebiscite on October 16, 1976, which
petitioners are here seeking to enjoin, has been more substantial
and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to
publicly articulate the need for the creation of an interim
legislative body to take the place of. the interim National
Assembly provided for in the Transitory Provisions of the
Constitution, as suggested in the above report, I might say that
I was the one most vehement and persistent in publicly
advocating and urging the authorities concerned to directly
submit to the people in a plebiscite whatever amendments of the
Constitution might be considered necessary for the
establishment of such substitute interim legislature. In the
aforementioned session of the Executive Committee of the
Katipunan, I discourse on the indispensability of a new interim
legislative body as the initial step towards the early lifting of
martial law and on the fundamental considerations why in our
present situation a constitutional convention would be
superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I
delivered at the Coral Ballroom of the Hilton Hotel in the
evening of August 17, 1976, I denounced in no uncertain terms
the plan to call a constitutional convention. I reiterated the same
views on September 7, 1976 at the initial conference called by
the Comelec in the course of the information and educational
campaign it was enjoined to conduct on the subject. And
looking back at the subsequent developments up to September
22, 1976, when the Batasang Bayan approved and the President
signed the now impugned Presidential Decree No. 1033, it is
but human for me to want to believe that to a certain extent my
strong criticisms and resolute stand against any other alternative
procedure of amending the Constitution for the purpose
intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense,
the initiative for all I have done, was not altogether mine alone.
The truth of the matter is that throughout the four years of this
martial law government, it has always been my faith, as a result
of casual and occasional exchanges of thought with President
Marcos, that when the appropriate time does come, the
President would somehow make it known that in his judgment,
the situation has already so improved as to permit the
implementation, if gradual, of the constitutionally envisioned
evolution of our government from its present state to a
parliamentary one. Naturally, this would inevitably involve the
establishment of a legislative body to replace the abortive
interim National Assembly. I have kept tract of all the public
and private pronouncements of the President, and it was the
result of my reading thereof that furnished the immediate basis
for my virtually precipitating, in one way or another, the
materialization of the forthcoming referendum-plebiscite. In
other words, in the final analysis, it was the President's own
attitude on the matter that made it opportune for me to articulate
my own feelings and Ideas as to how the nation can move
meaningfully towards normalization and to publicly raise the
issues that have been ventilated by the parties in the instant
cases.
I would not be human, if I did not consider myself privileged in
having been afforded by Divine Providence the opportunity to
contribute a modest share in the formulation of the steps that
should lead ultimately to the lifting of martial law in our
country. Indeed, I am certain every true Filipino is anxiously
looking forward to that eventuality. And if for having voiced
the sentiments of our people, where others would have preferred
to be comfortably silent, and if for having made public what
every Filipino must have been feeling in his heart all these
years, I should be singled out as entertaining such preconceived
opinions regarding the issues before the Court in the cases at
bar as to preclude me from taking part in their disposition, I can
only say that I do not believe there is any other Filipino in and
out of the Court today who is not equally situated as I am .
The matters that concern the Court in the instant petitions do
not involve merely the individual interests of any single person
or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history
that has passed through the whole country in the wake of martial
law has swept all of us, sparing none, and the problem of
national survival and of restoring democratic institutions and
Ideals is seeking solution in the minds of all of us. That I have
preferred to discuss publicly my own thoughts on the matter
cannot mean that my colleagues in the Court have been
indifferent and apathetic about it, for they too are Filipinos.
Articulated or not, all of us must have our own preconceived
Ideas and notions in respect to the situation that confronts the
country. To be sure, our votes and opinions in the- major
political cases in the recent past should more or less indicate our
respective basic positions relevant to the issues now before Us.
Certainly, contending counsels cannot be entirely in the dark in
this regard. I feel that it must have been precisely because of
such awareness that despite my known public participation in
the discussion of the questions herein involved, none of the
parties have sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I
have never allowed my preconceptions and personal
inclinations to affect the objectivity needed in the resolution of
any judicial question before the Court. I feel I have always been
able to appreciate, fully consider and duly weigh arguments and
points raised by all counsels, even when they conflict with my
previous views. I am never beyond being convinced by good
and substantial ratiocination. Nothing has delighted me more
than to discover that somebody else has thought of more
weighty arguments refuting my own, regardless of what or
whose interests are at stake. I would not have accepted my
position in the Court had I felt I would not be able to be above
my personal prejudices. To my mind, it is not that a judge has
preconceptions that counts, it is his capacity and readiness to
absorb contrary views that are indispensable for justice to
prevail. That suspicions of prejudgment may likely arise is
unavoidable; but I have always maintained that whatever
improper factors might influence a judge will unavoidably
always appear on the face of the decision. In any event, is there
better guarantee of justice when the preconceptions of a judge
are concealed?
Withal, in point of law, I belong to the school of thought that
regards members of the Supreme Court as not covered by the
general rules relative to disqualification and inhibition of judges
in cases before them. If I have in practice actually refrained
from participating in some cases, it has not been because of any
legal ground founded on said rules, but for purely personal
reasons, specially because, anyway, my vote would not have
altered the results therein.
It is my considered opinion that unlike in the cases of judges in
the lower courts, the Constitution does not envisage compulsory
disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court
"composed of a Chief Justice and fourteen Associate Justices",
with the particular qualifications therein set forth and to be
appointed in the manner therein provided. Nowhere in the
Constitution is there any indication that the legislature may
designate by law instances wherein any of the justices should
not or may not take part in the resolution of any case, much less
who should take his place. Members of the Supreme Court are
definite constitutional officers; it is not within the power of the
lawmaking body to replace them even temporarily for any
reason. To put it the other way, nobody who has not been duly
appointed as a member of the Supreme Court can sit in it at any
time or for any reason. The Judicial power is vested in the
Supreme Court composed as the Constitution ordains - that
power cannot be exercised by a Supreme Court constituted
otherwise. And so, when as in the instant where, if any of the
member of Court is to abstain from taking part, there would be
no quorum - and no court to render the decision - it is the
includible duty of all the incumbent justices to participate in the
proceedings and to cast their votes, considering that for the
reasons stated above, the provisions of Section 9 of the
Judiciary Act do not appear to conform with the concept of the
office of Justice of the Supreme Court contemplated in the
Constitution.
The very nature of the office of Justice of the Supreme Court as
the tribunal of last resort and bulwark of the rights and liberties
of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity,
mental and otherwise, must be by everyone who is appointed
thereto. The moral character of every member of the Court must
be assumed to be such that in no case whatsoever. regardless of
the issues and the parties involved, may it be feared that
anyone's life, liberty or property, much less the national
interests, would ever be in jeopardy of being unjustly and
improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of
rising above himself in every case and of having full control of
his emotions and prejudices, such that with the legal training
and experience he must of necessity be adequately equipped
with, it would be indubitable that his judgment cannot be but
objectively impartial, Indeed, even the appointing power, to
whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All
appointments to the Court are based on these considerations,
hence the ordinary rules on inhibition and disqualification do
not have to be applied to its members.
With the preliminary matter of my individual circumstances out
of the way, I shall now address myself to the grave issues
submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in
the petitions herein are political or justiciable, suffice it for me
to reiterate the fundamental position I took in the Martial Law
cases,1 thus
As We enter the extremely delicate task of
resolving the grave issues thus thrust upon
Us. We are immediately encountered by
absolute verities to guide Us all the way. The
first and most important of them is that the
Constitution (Unless expressly stated
otherwise, all references to the Constitution
in this discussion are to both the 1935 and
1973 charters, since, after all, the pertinent
provisions are practically Identical in both is
the supreme law of the land. This means
among other things that all the powers of the
government and of all its officials from the
President down to the lowest emanate from it.
None of them may exercise any power unless
it can be traced thereto either textually or by
natural and logical implication. "The second
is that it is settled that the Judiciary
provisions of the Constitution point to the
Supreme Court as the ultimate arbiter of all
conflicts as to what the Constitution or any
part thereof means. While the other
Departments may adopt their own
construction thereof, when such construction
is challenged by the proper party in an
appropriate case wherein a decision would be
impossible without determining the correct
construction, the Supreme Court's word on
the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the
Executive power conferred upon the
Executive by the Constitution is complete,
total and unlimited, so also, the judicial
power vested in the Supreme Court and the
inferior courts, is the very whole of that
power, without any limitation or
qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it
results, first of all, that the main question
before Us is not in reality one of jurisdiction,
for there can be no conceivable controversy,
especially one involving a conflict as to the
correct construction of the Constitution, that
is not contemplated to be within the judicial
authority of the courts to hear and decide. The
judicial power of the courts being unlimited
and unqualified, it extends over all situations
that call for the as certainment and protection
of the rights of any party allegedly violated,
even when the alleged violator is the highest
official of the land or the government itself.
It is, therefore, evidence that the Court's
jurisdiction to take cognizance of and to
decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne
in mind that in the form of government
envisaged by the framers of the Constitution
and adopted by our people, the Court's
indisputable and plenary authority to decide
does not necessarily impose upon it the duty
to interpose its fiat as the only means of
settling the conflicting claims of the parties
before it. It is ingrained in the distribution of
powers in the fundamental law that hand in
hand with the vesting of the judicial power
upon the Court, the Constitution has coevally
conferred upon it the discretion to determine,
in consideration of the constitutional
prerogatives granted to the other
Departments, when to refrain from imposing
judicial solutions and instead defer to the
judgment of the latter. It is in the very nature
of republican governments that certain
matters are left in the residual power of the
people themselves to resolve, either directly
at the polls or thru their elected
representatives in the political Departments
of the government. And these reserved
matters are easily distinguishable by their
very nature, when one studiously considers
the basic functions and responsibilities
entrusted by the charter to each of the great
Departments of the government. To cite an
obvious example, the protection, defense and
preservation of the state against internal or
external aggression threatening its very
existence is far from being within the ambit
of judicial responsibility. The distinct role
then of the Supreme Court of being the final
arbiter in the determination of constitutional
controversies does not have to be asserted in
such contemplated situations, thereby to give
way to the ultimate prerogative of the people
articulated thru suffrage or thru the acts of
their political representatives they have
elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at
the base of what is known in American constitutional law as the
political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law,
exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power,
upon the theory that unless the courts intervene injustice might
prevail. It has been invoked and applied by this Court in varied
forms and mode of projection in several momentous instances
in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs.
Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil.
612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs.
Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil.
882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of
Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is
the main support of the stand of the Solicitor General on the
issue of jurisdiction in the cases at bar. It is also referred to as
the doctrine of judicial self-restraint or abstention. But as the
nomenclatures themselves imply, activism and self- restraint
are both subjective attitudes, not inherent imperatives. The
choice of alternatives in any particular eventuality is naturally
dictated by what in the Court's considered opinion is what the
Constitution envisions should be by in order to accomplish the
objectives of government and of nationhood. And perhaps it
may be added here to avoid confusion of concepts, that We are
not losing sight of the traditional approach based on the doctrine
of separation of powers. In truth, We perceive that even under
such mode of rationalization, the existence of power is
secondary, respect for the acts of a co-ordinate, co-equal and
independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of
functions but alleged abuse of a Department's own basic
prerogatives. (59 SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold
that the Court has jurisdiction to pass on the merits of the
various claims of petitioners. At the same time, however, I
maintain that the basic nature of the issues herein raised requires
that the Court should exercise its constitutionally endowed
prerogative to refrain from exerting its judicial authority in the
premises.
Stripped of incidental aspects, the constitutional problem that
confronts Us stems from the absence of any clear and definite
express provision in the Charter applicable to the factual milieu
herein involved. The primary issue is, to whom, under the
circumstances, does the authority to propose amendments to the
Constitution property belong? To say, in the light of Section 15
of Article XVII of the Charter, that that faculty lies in the
interim National Assembly is to beg the main question. Indeed,
there could be no occasion for doubt or debate, if it could ' only
be assumed that the interim National Assembly envisaged in
Sections 1 and 2 of the same Article XVII may be convoked.
But precisely, the fundamental issue We are called upon to
decide is whether or not it is still constitutionally possible to
convene that body. And relative to that question, the inquiry
centers on whether or not the political developments since the
ratification of the Constitution indicate that the people have in
effect enjoined the convening of the interim National Assembly
altogether. On this score, it is my assessment that the results of
the referenda of January 10-15, 1973, July 27-28, 1973 and
February 27, 1975 clearly show that the great majority of our
people, for reasons plainly obvious to anyone who would
consider the composition of that Assembly, what with its more
than 400 members automatically voted into it by the
Constitutional Convention together with its own members, are
against its being convoked at all.
Whether or not such a manifest determination of the sentiments
of the people should be given effect without a formal
amendment of the Constitution is something that constitutional
scholars may endlessly debate on. What cannot be disputed,
however, is that the government and the nation have acquiesced
to, it and have actually operated on the basis thereof.
Proclamation 1103 which, on the predicate that the
overwhelming majority of the people desire that the interim
Assembly be not convened, has ordained the suspension of its
convocation, has not been assailed either judicially or otherwise
since the date of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to
determine what, under these circumstances, is the constitutional
relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion
that in resolving that question, the Court must have to grapple
with the problem of what to do with the will of the people,
which although manifested in a manner not explicitly provided
for in the Constitution, was nevertheless official, and reliable,
and what is more important clear and unmistakable, despite the
known existence of well-meaning, if insufficiently substantial
dissent. Such being the situation, I hold that it is not proper for
the Court to interpose its judicial authority against the evident
decision of the people and should leave it to the political
department of the government to devise the ways and means of
resolving the resulting problem of how to amend the
Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people
themselves in a well- ordered plebiscite as required by the
fundamental law.
-2-
Assuming We have to inquire into the merits of the issue
relative to the constitutional authority behind the projected
amendment of the Charter in the manner provided in
Presidential Decree 1033, I hold that in the peculiar situation in
which the government is today, it is not incompatible with the
Constitution for the President to propose the subject
amendments for ratification by the people in a formal plebiscite
under the supervision of the Commission on Elections. On the
contrary, in the absence of any express prohibition in the letter
of the Charter, the Presidential Decree in question is entirely
consistent with the spirit and the principles underlying the
Constitution. The correctness of this conclusion should become
even more patent, when one considers the political
developments that the people have brought about since the
ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in
a speech I delivered on the occasion of the celebration of Law
Day on September 18, 1975 before the members of the
Philippine Constitution Association and their guests:
To fully comprehend the constitutional
situation in the Philippines today, one has to
bear in mind that, as I have mentioned earlier,
the martial law proclaimed under the 1935
Constitution overtook the drafting of the new
charter by the Constitutional Convention of
1971. It was inevitable, therefore, that the
delegates had to take into account not only
the developments under it but, most of all, its
declared objectives and what the President, as
its administrator, was doing to achieve them.
In this connection, it is worthy of mention
that an attempt to adjourn the convention was
roundly voted down to signify the
determination of the delegates to finish
earliest their work, thereby to accomplish the
mission entrusted to them by the people to
introduce meaningful reforms in our
government and society. Indeed, the
constituent labors gained rapid tempo, but in
the process, the delegates were to realize that
the reforms they were formulating could be
best implemented if the martial law powers of
the President were to be allowed to subsist
even after the ratification of the Constitution
they were approving. This denouement was
unusual. Ordinarily, a constitution born out of
a crisis is supposed to provide all the needed
cures and can, therefore, be immediately in
full force and effect after ratification. Not so,
with our 1973 Constitution, Yes, according to
the Supreme Court, 'there is no more judicial
obstacle to the new Constitution being
considered in force and effect', but in truth, it
is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be
careful to distinguish between the body or main part thereof and
its transitory provisions. It is imperative to do so because the
transitory provisions of our Constitution are extraordinary in the
sense that obviously they have been designed to provide not
only for the transition of our government from the presidential
form under the past charter to a parliamentary one as envisaged
in the new fundamental law, but also to institutionalize,
according to the President, the reforms introduced thru the
exercise of his martial law powers. Stated differently, the
transitory provisions, as it has turned out, has in effect
established a transition government, not, I am sure, perceived
by many. It is a government that is neither presidential nor
parliamentary. It is headed, of course, by President Marcos who
not on retains all his powers under the 1935 Constitution but
enjoys as well those of the President and the Prime Minister
under the new Constitution. Most importantly, he can and does
legislate alone. But to be more accurate, I should say that he
legislates alone in spite of the existence of the interim National
Assembly unequivocally ordained by the Constitution, for the
simple reason that he has suspended the convening of said
assembly by issuing Proclamation No. 1103 purportedly 'in
deference to the sovereign will of the Filipino people' expressed
in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification.
The whole Constitution was submitted for approval or
disapproval of the people, and after the votes were counted and
the affirmative majority known, we were told that the resulting
ratification was subject to the condition that the interim
National Assembly evidently established in the Constitution as
the distinctive and indispensable element of a parliamentary
form of government should nevertheless be not convened and
that no elections should be held for about seven years, with the
consequence that we have now a parliamentary government
without a parliament and a republic without any regular election
of its officials. And as you can see, this phenomenon came into
being not by virtue of the Constitution but of the direct mandate
of the sovereign people expressed in a referendum. In other
words, in an unprecedented extra-constitutional way, we have
established, wittingly or unwittingly, a direct democracy
through the Citizens Assemblies created by Presidential Decree
No. 86, which later on have been transformed into barangays, a
system of government proclaimed by the President as 'a real
achievement in participatory democracy.' What I am trying to
say, my friends, is that as I perceive it, what is now known as
constitutional authoritarianism means, in the final analysis, that
the fundamental source of authority of our existing government
may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums
conducted by the Commission on Elections in a manner well
known to all of us This, as I see it, is perhaps what the President
means by saying that under the new Constitution he has extra-
ordinary powers independently of martial law - powers
sanctioned directly by the people which may not even be read
in the language of the Constitution. in brief, when we talk of the
rule of law nowadays, our frame of reference should not
necessarily be the Constitution but the outcome of referendums
called from time to time by the President. The sooner we imbibe
this vital concept the more intelligent will our perspective be in
giving our support and loyalty to the existing government. What
is more, the clearer will it be that except for the fact that all the
powers of government are being exercised by the President, we
- do not in reality have a dictatorship but an experimental type
of direct democracy."
In the foregoing disquisition, I purposely made no mention of
the referendum of February 27, 1975. It is important to note,
relative to the main issue now before Us, that it was originally
planned to ask the people in that referendum whether or not they
would like the interim National Assembly to convene, but the
Comelec to whom the task of preparing the questions was
assigned was prevailed upon not to include any -such question
anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members
of the old Congress concerned that that matter had already been
finally resolved in the previous referenda of January and July
1973 in the sense that. the Assembly should not be convened
comparable to res adjudicata.
It is my position that as a result of the political developments
since January 17, 1973 the transitory provisions envisioning the
convening of the interim National Assembly have been
rendered legally inoperative. There is no doubt in my mind that
for the President to convoke the interim National Assembly as
such would be to disregard the will of the people - something
no head of a democratic republican state like ours should do.
And I find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly - the unusually
large and unmanageable number of its members and the
controversial morality of its automatic composition consisting
of all the incumbent elective national executive and legislative
officials under the Old Constitution who would agree to join it
and the delegates themselves to the Convention who had voted
in favor of the Transitory Provisions - apply not only to the
Assembly as an ordinary legislature but perhaps more to its
being a constituent body. And to be more realistic, it is but
natural to conclude that since the people are against politicians
in the old order having anything to do with the formulation of
national policies, there must be more reasons for them to frown
on said politicians taking part in amendment of the fundamental
law, specially because the particular amendment herein
involved calls for the abolition of the interim National
Assembly to which they belong and its substitution by the
Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification
of a constitution is not contemplated. I disagree. It is
inconsistent with the plenary power of the people to give or
withhold their assent to a proposed Constitution to maintain that
they can do so only wholly. I cannot imagine any sound
principle that can be invoked to support the theory that the
proposing authority can limit the power of ratification of the
people. As long as there are reliable means by which only
partial approval can be manifested, no cogent reason exists why
the sovereign people may not do so. True it is that no proposed
Constitution can be perfect and it may therefore be taken with
the good and the bad in it, but when there are feasible ways by
which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its
purported office to render the final authority - the people
impotent to act according to what they deem best suitable to
their interests.
In any event, I feel it would be of no consequence to debate at
length regarding the legal feasibility of qualified ratification.
Proclamation 1103 categorically declares that:
 WHEREAS, fourteen million nine hundred
seventy six thousand five hundred sixty-one
(14,976.561) members of all the Barangays
voted for the adoption of the proposed
Constitution, as against seven hundred forty-
three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; but a
majority of those who approved the new
Constitution conditioned their votes on the
demand that the interim National Assembly
provided in its Transitory Provisions should
not be convened.
and in consequence, the President has acted accordingly by not
convening the Assembly. The above factual premises of
Proclamation 1103 is not disputed by petitioners. Actually, it is
binding on the Court, the same being a political act of a
coordinate department of the government not properly assailed
as arbitrary or whimsical. At this point, it must be emphasized
in relation to the contention that a referendum is only
consultative, that Proclamation 1103, taken together with
Proclamation 1102 which proclaimed the ratification of the
Constitution, must be accorded the same legal significance as
the latter proclamation, as indeed it is part and parcel if the Act
of ratification of the Constitution, hence not only persuasive but
mandatory. In the face of the incontrovertible fact that the
sovereign people have voted against the convening of the
interim National Assembly, and faced with the problem of
amending the Constitution in order precisely to implement the
people's rejection of that Assembly, the problem of
constitutional dimension that confronts Us, is how can any such
amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office
or body designed by the constitutional convention to perform
the constituent function of formulating proposed amendments
has been rendered inoperative by the people themselves, the
people have thereby foreclosed the possibility of amending the
Constitution no matter how desirable or necessary this might
be. In this connection, I submit that by the very nature of the
office of the Presidency in the prevailing scheme of government
we have - it being the only political department of the
government in existence - it is consistent with basic principles
of constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or
body lodged with the prerogative to exercise such function.
There is another consideration that leads to the same
conclusion. It is conceded by petitioners that with the non-
convening of the interim Assembly, the legislative authority has
perforce fallen into the hands of the President, if only to avoid
a complete paralysis of law-making and resulting anarchy and
chaos. It is likewise conceded that the provisions of Section 3
(2) of Article XVII invest the President with legislative power
for the duration of the transition period. From these premises, it
is safe to conclude that in effect the President has been
substituted by the people themselves in place of the interim
Assembly. Such being the case, the President should be deemed
as having been granted also the cognate prerogative of
proposing amendments to the Constitution. In other words, the
force of necessity and the cognate nature of the act justify that
the department exercising the legislative faculty be the one to
likewise perform the constituent function that was attached to
the body rendered impotent by the people's mandate.
Incidentally, I reject most vehemently the proposition that the
President may propose amendments to the Constitution in the
exercise of his martial law powers. Under any standards, such a
suggestion cannot be reconciled with the Ideal that a
Constitution is the free act of the people.
It was suggested during the oral, argument that instead of
extending his legislative powers by proposing the amendment
to create a new legislative body, the President should issue a
decree providing for the necessary apportionment of the seats
in the Regular National Assembly and call for an election of the
members thereof and thus effect the immediate normalization
of the parliamentary government envisaged in the Constitution.
While indeed procedurally feasible, the suggestion overlooks
the imperative need recognized by the constitutional convention
as may be inferred from the obvious purpose of the transitory
provisions, for a period of preparation and acquaintance by all
concerned with the unfamiliar distinctive features and practices
of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there
should be an interim parliament under the present leadership,
which will take the corresponding measures to effectuate the
efficient and smooth transition from the present system to the
new one. I do not believe this pattern set by the convention
should be abandoned.
The alternative of calling a constitutional convention has also
been mentioned. But, in the first place, when it is considered
that whereas, under Section 1 (1) and (2) of Article XVI, the
regular National Assembly may call a Constitutional
Convention or submit such a call for approval of the people,
Section 15 of Article XVII, in reference to interim National
Assembly, does not grant said body the prerogative of calling a
convention, one can readily appreciate that the spirit of the
Constitution does not countenance or favor the calling of a
convention during the transition, if only because such a
procedure would be time consuming, cumbersome and
expensive. And when it is further noted that the requirement as
to the number of votes needed for a proposal is only a majority,
whereas it is three-fourths in respect to regular Assembly, and,
relating this point to the provision of Section 2 of Article XVI
to the effect that all ratification plebiscites must be held "not
later than three months after the approval" of the proposed
amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in
the assailed Presidential Decree 1033 suggests itself as the one
most in accord with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on
the letter of the Constitution for the purpose of amending or
changing the same. To cite but one important precedent, as
explained by Mr. Justice Makasiar in his concurring opinion in
Javellana 2, the present Constitution of the United States was
neither proposed nor ratified in the manner ordained by the
original charter of that country, the Articles of Confederation
and Perpetual Union.
In brief. if the convening and operation of the interim National
Assembly has been effectuated through a referendum-plebiscite
in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975,
why may not a duly held plebiscite suffice for the purpose of
creating a substitute for that Assembly? It should be borne in
mind that after all, as indicated in the whereas of the impugned
Presidential Decree, actually, the proposed amendments were
initiated by the barangays and sanggunian members. In other
words, in submitting the amendments for ratification, the
President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan
ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the
approval of the people as a whole of the amendments in
question. If all these mean that the sovereign people have
arrogated unto themselves the functions relative to the
amendment to the Constitution, I would regard myself as totally
devoid of legal standing to question it, having in mind that the
most fundamental tenet on which our whole political structure
rests is that "sovereignty resides in the people and all
government authority emanates from them."
In the light of the foregoing considerations, I hold that
Presidential Decree No. 1033 does not infringe the Constitution,
if only because the specific provision it is supposed to infringe
does not exist in legal contemplation since it was coevally made
inoperative when the people ratified the Constitution on January
17, 1973. I am fully convinced that there is nothing in the
procedure of amendment contained in said decree that is
inconsistent with the fundamental principles of
constitutionalism. On the contrary, I find that the Decree, in
issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too
proximate to enable the people to sufficiently comprehend the
issues and intelligently vote in the referendum and plebiscite set
by Presidential Decree 1033, all I can say is that while perhaps
my other colleagues are right in holding that the period given to
the people is adequate, I would leave it to the President to
consider whether or not it would be wiser to extend the same.
Just to avoid adverse comments later I wish the President orders
a postponement. But whether such postponement is ordered or
not, date of the referendum- plebiscite anywhere from October
16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is
to be decided ultimately by the people in their sovereign
capacity, the question is political as the term is defined in
Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar
to any judicial inquiry, for the reasons stated in Our opinion in
Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan,
et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs
Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs'
Executive Secretary, et al. (@36236); and Ditag et al. vs.
Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA
30, 204-283). The procedure for amendment is not important
Ratification by the people is all that is indispensable to validate
an amendment. Once ratified, the method of making the
proposal and the period for submission become relevant.
The contrary view negates the very essence of a republican
democracy - that the people are sovereign - and renders
meaningless the emphatic declaration in the very first provision
of Article II of the 1973 Constitution that the Philippines is a
republican state, sovereignty resides in the people and all
government authority emanates from them. It is axiomatic that
sovereignty is illimitable The representatives cannot dictate to
the sovereign people. They may guide them; but they cannot
supplant their judgment, Such an opposite view likewise
distrusts the wisdom of the people as much as it despises their
intelligence. It evinces a presumptuous pretension to
intellectual superiority. There are thousands upon thousands
among the citizenry, who are not in the public service, who are
more learned and better skilled than many of their elected
representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et
al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the
President as enforcer or administrator of martial rule during the
period of martial law can legislate; and that he has the discretion
as to when the convene the interim National Assembly
depending on prevailing conditions of peace and order. In view
of the fact that the interim National Assembly has not been
convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains
the lone law-making authority while martial law subsists.
Consequently, he can also exercise the power of the interim
National Assembly to propose amendments to the New
Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner
Vicente Guzman (L-44684), former delegate to the 1971
Constitutional Convention which drafted the 1973 Constitution.
the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a
constituent power, it stands to reason that the President can
likewise legally propose amendments to the fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political
question". It must be noted that this device has been utilized by
the judiciary "to avoid determining questions it is ill equipped
to determine or that could be settled in any event only with the
effective support of the political branches." 1 According to
Weston, judges, whether "personal representatives of a truly
sovereign king, or taking their seats as the creatures of a largely
popular sovereignty speaking through a written constitution,
derive their power by a delegation, which clearly or obscurely
as the case may be, deliminates and delimits their delegated
jurisdiction.* * * Judicial questions * * * are those which the
sovereign has set to be decided in the courts. Political questions,
similarly, are those which the sovereign has entrusted to the so-
called political departments of government or has reserved to
be settled by its own extra-government or has reserved to be
settled by its own extra-governmental action."2 Reflecting a
similar concept, this Court has defined a "political question" as
a "matter which is to be exercised by the people in their primary
political capacity or that has been specifically delegated to some
other department or particular officer of the government, with
discretionary power to act." 3 In other words, it refers to those
questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of government.4
In determining whether an issue falls within the political
question category, the absence of satisfactory creterion for a
judicial determination or the appropriateness of attributing
finality to the action of the political departments of government
is a dominant consideration. This was explained by Justice
Brennan in Baker v. Carr,5 thus :
Prominent on the surface of any case held to
involve political question is found a textually
demonstrable constitutional lack of judicially
discoverrable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a
kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political
decision already made; or the potentiality of
embarrassment from from multifarious
pronouncements by various departments on
one question. . . .
To decide whether a matter has in a measure been committed
by the Constitution to another branch of government or retained
be the people to be decided by them in their sovereign capacity,
or whether that branch exceeds whatever authority has been
committed, is indeed a delicate exercise in constitutional
interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held
that the efficacy of the ratification by state legislatures of a
constitutional amendment is a political question. On the
question of whether the State Legislature could constitutionally
relative an amendment, after the same had been previously
rejected by it, it was held that the ultimate authority over the
question was in Congress in the exercise of its control over the
promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment
has lost its, vitality through the lapse of time, the Court held that
the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions, political,
social and economic, which can hardly be said to be within the
appropriate range of evidence receivable in a court of justice
and as to which it would be an extravagant extension of juridical
authority to assert judicial notice as the basis of deciding a
controversy with respect to the validity of an amendment
actually ratified. On the other hand, these conditions are
appropriate for the consideration of the political departments of
the Government. The questions they involve are essentially
political and not justiciable." '
In their concurring opinions, Justices Black, Roberts,
Frankfurter and Douglas stressed that:
The Constitution grants Congress exclusive
power to control submission off
constitutional amendments. Final
determination by Congress their ratification
by three-fourths of the States has taken place
'is conclusive upon the courts.' In the exercise
of that power, Congress, of course, is
governed by the Constitution. However, A
whether submission, intervening procedure
for Congressional determination of
ratification conforms to the commands of the
Constitution, call for decisions by apolitical
department of questions of a t@ which this
Court has frequently designated 'political.'
And decision of a 'political question' by the
political department' to which the
Constitution has committed it 'conclusively
binds the judges, as well as all other officers,
citizens and subjects of ... government.
Proclamation under authority of Congress
that an amendment has been ratified will
carry with it a solemn assurance by the
Congress that ratification has taken place as
the Constitution commands. Upon this
assurance a proclaimed amendment must be
accepted as a part of the Constitution,
learning to the judiciary its traditional
authority of interpretation. To the extent that
the Court's opinion in the present case even
by implieding assumes a power to make
judicial interpretation of the exclusive
constitutional authority of Congress over
submission and by ratification of
amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra
this Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr.
Justice Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification, is a political
question. In the Mabang case, the petitioners sought to prevent
the enforcement of a resolution of Congress proposing the
"Parity Amendment" to the Philippine Constitution on the
ground that it had not been approved by the three-fourths vote
of all the members of each house as required be Article XV of
the 1935 Constitution. It was claimed that three (3) Senators and
eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the
determination of the three- fourths %- ore In dismissing the
petition on the ground that the question of the validity of the
proposal was political, the Court stated:
"If ratification of an amendment is a political question, a
proposal which leads to ratification has to be a political
question. The question to steps complement each other in a
scheme intended to achieve a single objective. It is to be noted
that amendatory process as provided in Section I of Article XV
of the Philippine Constitution 'consists of (only) two distinct
parts: proposal and ratification.' There is no logic in attaching
political character to one and withholding that character from
the other. Proposal to amend the Constitution is a highly
political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the
Constitution itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the
issue whether or not a Resolution of Congress, acting as a
constituent assembly - violates the Constitution is essentially
justiciable, not political, and hence, subject to judicial review."
What was involved in Gonzales, however, was not a proposed
What was involved in Gonzales, however, was not a proposed
amendment to the Constitution but an act of
Congress,9 submitting proposed amendments to the
Constitution. Similarly, in Tolentino v. Commission an
Elections, 10 what was involved was not the validity of the
proposal to lower the voting age but rather that of the resolution
of the Constitutional Convention submitting the proposal for
ratification. The question was whether piecemeal amendments
to the Constitution could submitted to the people for approval
or rejection.
II
Here, the point has been stressed that the President is acting as
agent for and in behalf of the people in proposing the
amendment. there can be no question that in the referendums of
January, 1973 and in the subsequent referendums the people
had clearly and categorically rejected the calling of the interim
National Assembly. As stated in the main opinion, the Lupang
Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, the Kabataang Barangay organizations and the
various sectoral groups had proposed the replacement of the
interim National Assembly. These barangays and the
Sanggunian assemblies are effective instrumentalities through
which the desires of the people are articulated and expressed.
The Batasang Bayan (Legislative Council), composed of
nineteen (19) cabinet members and nine (9) officials with
cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng
mga Sangguniang Bayani voted in their special session to
submit directly to the people in a plebiscite on October 16, 1976
the afore-mentioned constitutional amendments. Through the
Pambansang Katipunan by Barangay and the Pampurok ng
Katipunan Sangguniang Bayan, the people have expressed their
desire not only to abolish the interim National Assembly, but to
replace it with a more representative body acceptable to them
in order to effect the desirable constitutional changes necessary
to hasten the political evolution of the government towards the
parliamentary system, while at the same time ensuring that the
gains of the New Society, which are vital to the welfare of the
people, shall be safeguarded. The proposed constitutional
amendments, therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly
should have been convened to propose those amendments
pursuant to Section 15 of Article XVII of the Constitution. This
Court, in the case of Aquino v. Commission or Elections,11 took
judicial notice of the fact that in the referendum of January,
1973, a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be
and the President "in deference to the sovereign will of the
Filipino people" declared that the convening of said body shall
be suspended.12 As this Court observed in the Aquino case:
His decision to defer the initial convocation
of the byiitttit National Assembly was
supported by the sovereign people at the by
referendum in January, 1973 when the people
voted to postpone the convening of the
interim National Assembly until after at least
seven (7) years from the approval of the new
Constitution. And the reason why the same
question was eliminated from the questions to
be submitted at the referendum on February
27, 1975, is that even some members of the
Congress and delegates of the Constitutional
Convention, who are already byjso ofitto
members of the intetini National Assembly
are against such inclusion; because the issue
was already bycciled in the January, 1973
referendum by the sovereign people
indicating thereby their disenchantment with
any Assembly as the former Congress failed
to institutionalize the reforms they demanded
and wasted public funds through endless
debates without relieving the suffering of the
general mass of citizenry (p. 302.) The action
of the President in suspending the convening
of the interim National Assembly has met the
overwhelming approval of the people in
subsequent referenda.
Since it was the action by the people that gave binding force and
effect to the new Constitution, then it must be accepted as a
necessary consequence that their objection against the
immediate convening of the interim National Assembly must be
respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides
in the people and all government authority emanates from
them."13 The term "People" as sovereign is comprehensive in
its context. The people, as sovereign creator of all political
reality, is not merely the enfranchised citizens but the political
unity of the people. 14 It connotes, therefore, a people which
exists not only in the urgent present but in the continuum of
history. The assumption that the opinion of The People as voters
can be treated as the expression of the interests of the People as
a historic community was, to the distinguished American
journalist and public philosopher, Walter Lipunan,
unwarranted.
Because of the discrepancy between The
People as Voters and the People as the
corporate nation, the voters have no title to
consider themselves the proprietors of the
commonwealth and to claim that their
interests are Identical to the public interest. A
prevailing plurality of the voters are not The
People. The claim that they are is a bogus title
 invoked to justify the usurpation of the
executive power by representative assemblies
and the intimidation of public men by
demagogue politicians. In fact demagoguery
can be described as the sleight of hand by
which a faction of The People as voters are
invested with the authority of The People.
That is why so many crimes are committed in
the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized
that the power to propose amendments or to amend the
Constitution is part of the inherent power of the people as the
repository of sovereignty in a republican state. While Congress
may propose amendments to the Constitution, it acts pursuant
to authority granted to it by the people through the Constitution.
Both the power to propose and the authority to approve,
therefore, inhere in the people as the bearer of the Constitution
making power.
Absent an interim National Assembly upon whom the people,
through the Constitution, have delegated the authority to
exercise constituent powers, it follows from necessity that
either the people should exercise that power themselves or
through any other instrumentality they may choose. For Law,
like Nature, abhors a vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act
for the people in submitting such proposals for ratification at
the plebiscite of October 16. The political character of the
question is, therefore, particularly manifest, considering that
ultimately it is the people who will decide whether the President
has such authority. It certainly involves a matter which is to be
exercised by the people in their sovereign capacity, hence, it is
essentially political, not judicial.
While it is true that the constituent power is not to be confuse
with legislative power in general because the prerogative to
propose amendments is not embraced within the context of
ordinary lawmaking, it must be noted that the proposals to be
submitted for ratification in the forthcoming referendum are, in
the final analysis, actually not of the President but directly of
the people themselves, speaking through their authorized
instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in
this case:
... The President merely formalized the said
proposals in Presidential Decree No. 1033. It
being conceded in all quarters that
sovereignty resides in the people and it
having been demonstrated that their
constituent power to amend the Constitution
has not been delegated by them to any
instrumentality of the Government during the
present stage of the transition period of our
political development, the conclusion is
ineluctable that their exertion of that
residuary power cannot be vulnerable to any
constitutional challenge as beingultravires.
Accordingly, without venturing to rule on
whether or not the President is vested with
constituent power - as it does not appear
necessary to do so in the premises - the
proposals here challenged, being acts of the
sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori,
the concomitant authority to call a plebiscite
and to appropriate funds therefor is even less
vulnerable not only because the President, in
exercising said authority, has acted as a mere
ofiffet byf of the people who made the
proposals, but likewise because the said
authority is legislative in nature rather than
constituent.
This is but a recognition that the People of the
Philippines have the inherent, sole and
exclusive right of regulating their own
government, and of altering or abolishing
their Constitution whenever it may be
necessary to their safety or happiness. There
appears to be no justification, under the
existing, circumstances, for a Court to create
by implication a limitation on - the sovereign
power of the people. As has been clearly
explained in a previous case:
There is nothing in the nature of the
submission which should cause the free
exercise of it to be obstructed, or that could
render it dangerous to the stability of the
government; because the measure derives all
its vital force from the action of the people at
the ballot box, and there can never be danger
in submitting in an established form to a free
people, the proposition whether they will
change their fundamental law The means
provided for the exercise of their Sovereign
right of changing their constitution should
receive such a construction as not to trammel
the exercise of the right. Difficulties and
embarrassments in its exercise are in
derogation of the right of free government,
which is inherent in the people; and the best
security against tumult and revolution is the
free and unobstructed privilege to the people
of the State to change their constitution in the
mode prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the
foregoing opinion is the necessity of ensuring popular control
over the constituent power. "If the people are to control the
constituent power - the power to make and change the
fundamental law of the State," observed Wheeler," "the process
of Constitutional change must not be based too heavily upon
existing agencies of government." Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man. can
be trusted to determine his political destiny. Therefore, it is time
that the people should be accorded the fullest opportunity to
decide the laws that shall provide for their governance. For in
the ultimate analysis, the success of the national endeavor shall
depend on the vision, discipline and I by ininess of the moqqqtai
will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We
vote to dismiss the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of
him) dissenting opinion of my distinguished colleague, Justice
Claudio Teehankee. If I am writing this brief statement it is only
to unburden myself of some thoughts which trouble my mind
and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court
takes a lonely and at times precarious road, the burden byeing
lightened only by the thought that in this grave task of
administering justice, when matters of conscience are at issue,
one must be prepared to espouse and embrace a rightful cause
however unpopular it may be.
1. That sovereignty resides in the people and all government
authority emanates from them is a fundamental, basic principle
of government which cannot be disputed, but when the people
have opted to govern themselves under the mantle of a written
Constitution, each and every citizen, from the highest to the
lowliest, has the sacred duty to respect and obey the Character
they have so ordained.
By the Constitution which they establish,
they not only tie up he hands of their official
agencies, but their own hands as well; and
neither the officers of the state, nor the whole
people as an aggregate body, are at liberty to
take action in opposition to this fundamental
law. (Cooley's Constitutional Limitations,
7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author
Judge Cooley although based on declarations of law of more
than a century ago, lays down a principle which to my mind is
one of the enduring cornerstones of the Rule of Law. it is a
principle with which I have been familiar as a student of law
under the tutelage of revered Professors, Dr. Vicente G. Sinco
and Justice Jose P. Laurel, and which I pray will prevail at all
times to ensure the existence of a free, stable, and civilized
society.
The Filipino people,. wanting to ensure to themselves a
democratic republican form of government, have promulgated
a Constitution whereby the power to govern themselves has
been entrusted to and distributed among three branches of
government; they have also mandated in clear and unmistakable
terms the method by which provisions in their fundamental
Charter may be amended or revised. Having done so, the people
are bound by these constitutional limitations. For while there is
no surrender or abdication of the people's ultimate authority to
amend, revise, or adopt a new Constitution, sound reason
demands that they keep themselves within the procedural
bounds of the existing fundamental law. The right of the people
to amend or change their Constitution if and when the need
arises is not to be denied, but we assert that absent a
revolutionary state or condition in the country the change must
be accomplished through the ordinary, regular and legitimate
processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor
General that the people, being sovereign, have the authority to
amend the Constitution even in a manner different from and
contrary to that expressly provided for in that instrument, and
that the amendatory process is intended more as a limitation of
a power rather than a grant of power to a particular agency and
it should not be construed as limiting the ultimate sovereign will
of the people to decide on amendments to the Constitution .2
Such a view will seriously undermine the very existence of a
constitutional government and will permit anarchy and/or mob
rule to set afoot and prevail. Was it the Greek philosopher Plato
who warned that the rule of the mob is a prelude to the rule of
the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973
Philippine Constitution, Notes and Cases" as relevant to my
point:
. . . the amendatory provisions are called a
'constitution of sovereighty' because they
define the constitutional meaning of
'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine
Constitution, is not extreme popular
sovereignty. As one American writer put it:
A constitution like the American one serves
as a basic check upon the popular will at any
given time. It is the distinctive function of
such written document to classify certain
things as legal fundamentals; these
fundamentals may not be changed except by
the slow and cumbersome process of
amendment. The people themselves have
decided, in constitutional convention
assembled, to limit themselves ana future
generations in the exercise of the sovereign
power which they would otherwise possess.
And it is precisely such limitation that
enables those subject to governmental
authority to appeal from the people drunk to
the people sober in time of excitement and
hysteria. The Constitution, in the neat phrase
of the Iowa court, is the protector of the
people against injury by the .people. *
Truly, what need is there for providing in the Constitution a
process by which the fundamental law may be amended if, after
all, the people by themselves can set the same at naught even in
times of peace when civil authority reigns supreme? To go
along with the respondents' theory in this regard is to render
written Constitutions useless or mere "ropes of sand allowing
for a government of men instead of one of laws. For it cannot
be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence
of a demagogue, and where passion overpowers reason, and
mass action overthrows legal processes. History has recorded
such instances, and I can think of no better example than that of
Jesus Christ of Judea who was followed and loved by the people
while curing the sick, making the lame walk and the blind see,
but shortly was condemned by the same people turned into
fanatic rabble crying out "Crucify Him, Crucify Him" upon
being incited into action by chief priests and elders of
Jerusalem. Yes, to quote once more from Judge Cooley:
A good Constitution should be beyond the
reason of temporary excitement and popular
caprice or passion. It is needed for stability
and steadiness; it must yield to the thought of
the people; not to the whim of the people, or
the thought evolved in excitement or hot
blood, but the sober second thought, which
alone, if the government is to be sale can be
allowed efficiency. .... Changes in
government are to be feared unless the benefit
is certain." (quoted in Ellingham v. Dye, 99
N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas.
1914B, 916; State v. Hall, 159 N.W., 281; Opinion of Marshall,
J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the
constitution may be introduced in disregard
of its provisions; that if the majority of the
people desire a change the majority must be
respected, no matter how the change may be
effected; and that the change, if revolution, is
peaceful resolution. ...
We fear that the advocates of this new
doctrine, in a zeal to accomplish an end which
the majority of the people desire, have looked
at but one phase of the question, and have not
fully considered the terrible consequences
which would almost certainly follow a
recognition of the doctrine for which they
contend. It may be that the incorporation of
this amendment in the constitution, even if
the constitution has to be broken to
accomplish it, would not of itself produce any
serious results. But if it should be done by
sanctioning the doctrine contended for, a
precedent would be set which would plague
the state for all future time. A Banquo's ghost
would arise at our incantation which would
not down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a
doctrine so fraught with danger to republican
institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the
constitution of the staff This section is a portion of the bill of
rights, and is as follows: 'All political power is inherent in the
people. Government is instituted for the protection, security,
and benefit of of the people; and they have the right at all times
to alter or reform the same, whenever the public good may
require.' Abstractly considered, there can bye no doubt of the
correctness of the propositions embraced in this suction. These
principles are older than constitutions and older than
governments. The people did not derive the rights referred to by
on the constitution. and, in their nature, thee are such that the
people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a
national referendum-plebiscite on October 16, 1976 for the
purpose, among other things, of amending certain provisions of
the 1973 Constitution are null and void as they contravene the
express provisions on the amending process of the 1973
Constitution laid down in Article XVI, Section 1 (1) and Article
XVII, Section 15, more particularly the latter which applies
during the present transition period. The Opinion of Justice
Teehankee discusses in detail this particular matter.
I would just wish to stress the point that although at present
there is no by tterint National Assembly which may propose
amendments to the Constitution, the existence of a so-called
"vacuum" or "hiatus" does not justify a transgression of the
constitutional provisions on the manner of amending the
fundamental law. We cannot cure one infirmity - the existence
of a "vacuum" caused by the non-convening of the interim
National Assembly - with another infirmity, that is, doing
violence to the Charter.
All great mutations shake and disorder a
state. Good does not necessarily succeed evil;
another evil may succeed and a worse. (Am.
Law Rev. 1889, p. 311., quoted in Ellingham
v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-
plebiscite for the purpose indicated is a step necessary to restore
the state of normalcy in the country. To my mind, the only
possible measure that will lead our country and people to a
condition of normalcy is the lifting or ending of the state of
martial law. If I am constrained to make this statement it is
because so much stress was given during the hearings of these
cases on this particular point, leaving one with the impression
that for petitioners to contest the holding of the October 16
referendum-plebiscite is for them to assume a position of
blocking or installing the lifting of martial law, which I believe
is unfair to the petitioners. Frankly, I cannot see the connection
between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the
simple solution to the present dilemma is the lifting of martial
law and the implementation of the constitutional provisions
which will usher in the parliamentary form of government
ordained in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then
they are bound by their act and cannot escape from the
pretended unfavorable consequences thereof, the only y being
to set in motion the constitutional machinery by which the
supposed desired amendments may properly be adopted and
submitted to the electorate for ratification. Constitutional
processes are to be observed strictly, if we have to maintain and
preserve the system of government decreed under the
fundamental Charter. As said by Justice Enrique Fernando in
Mutuc vs. Commission on Elections
... The concept of the Constitution as the
fundamental law, setting forth the criterion
for the validity of any public act whether
proceeding from the highest official or the
lowest funcitonary, is a postulate of our
system of government. That is to manifest
fealty to the rule of law, with priority
accorded to that which occupies the topmost
rung in the legal hierarchy. ... (36 SCRA, 228,
234, italics Ours)
A contrary view would lead to disastrous consequences for, in
the words of Chief Justice Cox of the Supreme Court of Indiana
in Ellingham v. Dye, (supra, p. 7) liberty and popular
sovereignty are not meant to give rein to passion or thoughtless
impulse but to allow the exercise of power by the people for the
general good by tistlercoitaitt restraints of law.3 . The true
question before Us is is one of power. Does the incumbent
President of the Philippines possess constituent powers? Again,
the negative answer is explained in detail in the dissenting
opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise
of constituent powers on theory that he is vested with legislative
powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1
wish to stress that although in my separate opinion in said case
I agreed that Section 3 (2) of the Transitory provisions grants to
the incumbent President legislative powers, I qualified my
statement as follows:
.... As to, whether, or not, this unlimited
legislative qqqjwwel of the President
continues by exist even after the ratification
of the Constitution is a matter which I am not
ready to concede at the moment, and which at
any rate I believe is not essential in resolving
this Petition for reasons to be given later.
Nonetheless, I hold the view that the
President is empowered to issue
proclamations, orders, decrees, etc. to carry
out and implement the objectives of the
proclamation of martial law be it under the
1935 or 1973 Constitution, and for the
orderly and efficient functioning of the
government, its instrumentalities, and
agencies. This grant of legislative power is
necessary to fill up a vacuum during the
transition period when the interim National
Assembly is not yet convened and
functioning, for otherwise, there will be a
disruption of official functions resulting in a
collapse of the government and of the
existing social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially
different from constituent power; one does not encompass the
other unless so specified in the Charter, and the 1973
Constitution contains provisions in this regard. This is well-
explained in Justice Teehankee's Opinion. The state of necessity
brought about by the current political situation, invoked by the
respondents, provides no source of power to propose
amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by
inflicting upon it a wound which nothing can heal commit one
assault after the other "until all respect for the fundamental law
is lost and the powers of government are just what those in
authority please to call them?'"5 Or can we now ignore what this
Court, speaking through Justice Barredo, said in Tolentino vs.
Comelec:
... let those who would put aside, invoking
grounds at best controversial, any mandate of
the fundamental law purportedly by order to
attain some laudable objective bear in mind
that someday somehow others with
purportedly more laudable objectives may
take advantages of the precedent in continue
the destruction of the Constitution, making
those who laid down the precedent of
justifying deviations from the requirements
of the Constitution the victims of their own
folly. 6
Respondents emphatically assert that the final word is the
people's word and that ultimately it is in the hands of the people
where the final decision rests. (Comment, pp. 18, 19, 22)
Granting in gratia argument that it is so, let it be an expression
of the will of the people a normal political situation and not
under the aegis of martial rule for as I have stated in Aquino vs.
Comelec, et al., supra, a referendum (and now a plebiscite) held
under a regime of martial law can be of no far reaching
significance because it is being accomplished under an
atmosphere or climate of fear as it entails a wide area of
curtailment and infringement of individual rights, such as,
human liberty, property rights, rights of free expression and
assembly, protection against unreasonable searches and
seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper
submission of the proposed amendments for ratification by the
people are expounded in Justice Teehankee's Opinion. I wish to
stress indeed that it is incorrect to state that the thrust of the
proposed amendments is the abolition of the interim National
Assembly and its substitution with an "interim Batasang
Pambansa their in by in Proposed amendment No. 6 will permit
or allow the concentration of power in one man - the Executive
- Prime Minister or President or whatever you may call him -
for it gives him expressly (which the 1973 Constitution or the
1935 Constitution does not) legislative powers even during the
existence of the appropriate legislative body, dependent solely
on the executive's judgment on the existence of a grave
emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am
haunted however by what can happen in the future, when we
shall all be gone. Verily, this is a matter of grave concern which
necessitates full, mature, sober deliberation of the people but
which they can do only in a climate of freedom without the
restraints of martial law. I close, remembering what Claro M.
Recto, President of the Constitutional Convention which
drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a
written constitution in order that their
government may be called constitutional. To
be deserving of this name, and to drive away
all lanirer of anarchy as well as of
dictatorship whether by one man or a few, it
is necessary that both the government
authorities and the people faithfully observe
and obey the constitution, and that the
citizens be duly conversant not only with
their rights but also with their duties...7
Jose P. Laurel who served his people as Justice of the Supreme
Court of this country gave this reminder; the grave and perilous
task of halting transgressions and vindicating cherished rights
is reposed mainly oil the Judiciary and therefore let the Courts
be the vestal keepers of the purity and sanctity of our
Constitution.' On the basis of the foregoing, I vote to declare
Presidential Decrees Nos. 991 and 1033 unconstitutional and
enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously
defined, refers to those questions which, under the constitution,
are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the
wisdom, not legality, of a particular measure.1
Here, the question raised is whether the President has authority
to propose to the people amendments to the Constitution which
the petitioners claim is vested solely upon the National
Assembly, the constitutional convention called for the purpose,
and the by the National Assembly. This is not a political
question since it involves the determination of conflicting
claims of authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of
whether or not a Resolution of Congress, acting as a constituent
assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to
judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all
doubts as to its position regarding its jurisdiction vis-a-vis the
constitutionality of the acts of Congress, acting as a constituent
assembly, as well as those of a constitutional convention called
for the purpose of proposing amendments to the constitution.
Insofar as observance of constitutional provisions on the
procedure for amending the constitution is concerned, the issue
is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the
referendum-plebiscite will help resolve the issue. It is to be
noted that under the 1973 Constitution, an interim National
Assembly was organized to bring about an orderly transition
from the presidential to the parliamentary system of
government.' The people, however, probably distrustful of the
members who are old time politicians and constitutional
delegates who had voted themselves by to membership in the
interim National Assembly, voted against the convening of the
said interim assembly for at least seven years thus creating a
political stalemate and a consequent delay' in the transformation
of the government into the parliamentary system. To resolve the
impasse, the President, at the instance of the barangays and
sanggunian assemblies through their duly authorized
instrumentalities who recommended a study of the feasibility of
abolishing and replacing the by interim National Assembly with
another interim body truly representative of the people in a
reformed society, issued Presidential Decree No. 991, on
September 2, 1976, calling for a national referendum on
October -16, 1976 to ascertain the wishes of the people as to the
ways and means that may be available to attain the objective;
providing for a period of educational and information campaign
on the issues; and establishing the mechanics and manner for
holding thereof. But the people, through their barangays,
addressed resolutions to the Batasang Bayan, expressing their
desire to have the constitution amended, thus prompting the
President to issue Presidential Decree No. 1033, stating the
questions to @ submitted to the people in the referendum-
plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was
removed from the interim National Assembly and transferred to
the seat of sovereignty itself. Since the Constitution emanates
from the people who are the repository of all political powers,
their authority to amend the Constitution through the means
they have adopted, aside from those mentioned in the
Constitution, cannot be gainsaid. Not much reflection is also
needed to show that the President did not exercise his martial
law legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry
out the will of the people. Neither could he convene the interim
National Assembly, as suggested by the petitioners, without
doing violence to the people's will expressed overwhelmingly
when they decided against convening the interim assembly for
at least seven years.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent
discussion of the issues to be voted upon. PD 991 has required
the barangays to hold assemblies or meetings to discuss and
debate on the referendum questions, which in fact they have
been doing. Considering that the proposed amendments came
from the representatives of the people themselves, the people
must have already formed a decision by this time on what stand
to take on the proposed amendments come the day for the
plebiscite. Besides, the Constitution itself requires the holding
of a plebiscite for the ratification of an amendment not later than
three (3) months after the approval of such amendment or
revision but without setting a definite period within which such
plebiscite shall not be held. From this I can only conclude that
the framers of the Constitution desired that only a short period
shall elapse from the approval of such amendment or resolution
to its ratification by the people.
Footnotes
1 Sec. 3, PD 991, September 2, 1976.
2 SEC. 4 Who shall participate.-Every
Filipino citizen, literate or not, fifteen years
of age or over who has resided in the
barangay for at least six months shall
participate in the consultation in his
barangay. Provided, however, That any
person who may not be able to participate in
the consultations of his barangay may do so
in any barangay member shall participate in
more than one barangay consultation.
3 SEC. 15. The 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
thereof."
4 Pascual v. Secretary of Public Works, 110
Phil. 331 (1960).
5 Section 18.
6 Section 5.
7 Tan v. Macapagal, L-34161, Feb. 29, 1972,
43 SCRA 677, Fernando, J., ponente. See
also Standing to Secure Judicial Review,
Jaffe, 74 Harvard Law Review 1265 (May
1961).
8 Concurring and dissenting opinion of
Justice Fernando in the Plebiscite Cases
(Planas v. Comelec, 49 SCRA 105). See
Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 152.
9 Orfield Amending the Federal Constitution,
111.
10 Separate Opinion of Justice Concepcion in
the Ratification Casts v. the Executive
Secretary 50 SCRA 30), Martial Law and the
New Society in the Philippines, 1976,
Supreme Court, 210-224, quoting Tanada v.
Cuenco, 103 Phil. 1051.
11 See Martial Law and the New Society in
the Philippines, Supreme Court, 1976, at 121.
12 Idem, at 210.
13 The view of the Chief Justice was shared
by Justices Makalintal (later Chief Justice),
Zaldivar, Castro (present Chief Justice),
Fernando, and Teehankee. Justice Barredo
qualified his vote, stating that "inasmuch as it
is claimed that 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 its hands-
off out of respect to the people's will, but, in
the negative, the Court may determine from
both factual and legal angles whether or not
Article XV of the 1935 Constitution has been
complied with." Justices Makasiar, Antonio
and Esguerra hold that the issue is political
and "beyond the ambit of judicial inquiry."
14 62 SCRA 275, Referendum Case, Martial
Law and the New Society in the Philippines,
Supreme Court, 1976, at 1071.
15 Idem, at 10791081.
16 In the United States, all amendments to the
Federal constitution, except the Twenty-first
Amendment, had been proposed by the U.S.
Congress, Modern Constitutional Law,
Antieau Vol. 2,1969 ed., at 482.
17 The Amending of the Federal Constitution
by Orfield 1942, 48-53; 103-105.
18 Black's Constitutional Law, Hornkbook
series, at 42.
19 Hollingsworth v. Virginia, 3 Dall 378.
20 There are 3 types of crisis in the life of a
democratic nation. First is particularly a war
to repel invasions, when a state must convert
its peacetime political and social order into a
wartime fighting machine and overmatch the
skill and efficiency of the enemy. Second, is
rebellion, when the authority of a
constitutional government is resisted openly
by a large numbers of its citizens who are
engaged in violent insurrection against the
enforcement of its laws or are bent on
capturing it illegally or even destroying it
altogether. Third is economic depression-a
crisis greater than war. Rossiter,
Constitutional Dictatorship, at 6.
21 Constitutional Dictatorship by Clinton
Rossiter, 288-290.
22 Corwin, The President Office and Powers,
at 371.
23 See Separate Opinion of the Chief Justice
(the Justice Castro in the Referendum Case
(Aquino v. Comelec), at p. 1084, Martial Law
and the New Society in the Philippines,
Supreme Court, 1976.
26 Orfield, Amending the Federal
Constitution, at 55.
27 Daily Express, Sept. 27,1976; Times
Journal, Sept. 17, 1976.
28 Sunday Express, September 23, 1976.
29 Daily Express, September 23, 1976.
30 Section 1, Article II, 1973 Constitution.
31 See Orfield, Amending the Federal
Constitution, 140-143. The first meaning
includes all persons. living within the state
during the whole time of the existence of the
state; the second, the sum of all individuals as
an organized group living within the state at
the same time: and the third, the organized
group of individuals living the state with the
exception of the government.
32 Friedrich, The Philosophy of Law in
Historical Perspective, 1963, at 221.
33 Orfield Amending the Federal
Constitution, at 105.
34 Abrams v. United States, 250 U.S. 616,
630.
35 Op Cit., at 221.
39 Separate opinion of Justice Palma in the
Referendum Case (Aquino v. COMELEC), at
1135, Martial Law and the New Society in the
Philippines, 1976, Supreme Court.
40 Separate opinion of Justices Makalintal
and Castro in the Ratification Case (Javellana
v. The Executive Secretary, 50 SCRA 30), at
292-293, Martial Law and the New Society in
the Philippines
41 Sec. 1, Article VI, 1973 Constitution.
42 Daily Express, September 29, 1976.
43 See Times Journal, September 30, 1976.
44 Times journal, October 2, 1976.
45 See Martial Law and the New Society,
1976, Supreme Court, at 1082-83.
46 307 U.S. 433, see Cases in Constitutional
Law, 3rd ed., Cushman and Cushman, 12-13.
47 Dillon v. Gloss, 256 U.S. 368.
48 Willoughby on the Constitution of the
Untied States, Vol. 1,595-96.
L-35925, January 22, 1973, 49 SCRA 105.
The other cases disposed of by the Court are
not referred to.
2 L-36142, March 31, 1973, 50 SCRA 30.
Again, no reference is made to the other
petitions raising the same question as to te
validity of Proclamation No. 1102
announcing the ratification of the
Constitution proposed by the Constitutional
Convention.
3 L-35546, September 17, 1974, 59 SCRA
183. It must be noted that there were other
petitions decided likewise seeking the
nullification of Proclamation No. 1081
declaring martial law.
4 L-4004, January 31, 1975, 62 SCRA 275.
This decision affirmed the power of the
incumbent President to issue decrees having
the force and effect of law. There was in the
main opinion in this case, penned by Justice
Makasiar, an explicit recognition that the
incumbent President possesses legislative
competence so that during the period of
Martial Law he could assure "the security and
preservation of the Republic, ... the defense
of the political and social liberties of the
people and... the institution of reforms to
prevent the resurgence of rebellion or
insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide
recession, inflation or economic crisis which
presently threatens all nations including
highly developed countries ..." (At 298)
Justices Antonio, Esguerra, Fernandez,
Munoz Palma and Aquino concurred,
although in a separate opinion, Justice Munoz
Palma qualified it by saying that the grant of
legislative power "is necessarily to fill up a
vacuum during the transition period when the
interim National Assembly is not yet
convened and functioning, for otherwise,
there will be a disruption of official functions
resulting in a collapse of the government and
of the existing social order." (At 347) There
was likewise a concurring opinion by the then
Justice, now Chief Justice Justice Makalintal
and Justices Barredo, Antonio, Esguerra and
Fernandez concurred with this opinion. In a
concurring and dissenting opinion, Justice
Teehankee would confine "his legislative and
appropriation powers under martial law ... to
the law of necessity of preservation of the
state which gave rise to its proclamation
(including appropriations for operations of
the government and its agencies and
instrumentalities)." (At 316-317) The writer
of this opinion had his own concurrence and
predicated his vote without an expression of
his views as to the grant of legislative power
to the President. "
5 L-37364, May 9,1975, 63 SCRA 546. The
Court ruled in this case that military
commissions may try civilians for certain
specified offenses according to applicable
presidential decrees.
6 SCRA 183, 281-309.
7 Ibid, 301.
8 Ex parte Milligan is reported in 4 Wall. 2
(1966). It was likewise noted that Story, the
first eminent commentator in American
constitutional law made no reference to
martial law. Cooley's work, now in its 8th
edition, is entitled Constitutional Limitations
while that of Watson bears the title of
Constitution of the United States. At 302
9 Ibid. Sterling is found in 287 US 378 (1932)
and Duncan in 327 US 304 (1946). Among
the casebooks on constitutional law referred
to are those by Dodd (1949), Dowling (1950),
Sholley (1951), Frank (1932), Freund and
Associates (1954), Barrett and Associates
(1963), Kauper (1966), Lockhart and
Associates (1970).
10 Ibid. It may be observed parenthetically
that when I collaborated with Senator
Lorenzo M. Tanada in the Constitution of the
Philippines Annotated published almost
thirty Nears ago in 1947 (at 588-589) with
two later editions that came out in 1949 (at
694-695) and 1993 (at 1013-1014), it was
Willoughby's view that was cited.
11 Ibid. 302-303. This was the formulation of
Burdick in his The Law of the American
Constitution, 261 (1922).
12 Ibid. 303.
13 Ibid. The citation is from Willoughby on
the Constitution of the United States, 2nd ed.
1591 (1929).
14 Ibid. The excerpt is from Williams on
Constitutional Law, 449 (1936). It is to be
made clear that in our Constitution, it is only
the privilege of the writ, not the writ itself that
is suspended.
15 Ibid. :30:3-304. The quotation is from
volume 2 of the treatise of Schwartz on the
American Constitution, entitled The Powers
of Government 244 (1963) that the citation
came from.
16 Ibid. The reference is to Dicey on the Law
of the Constitution, 287-288 (1962).
17 327 US 304, 322.
18 Cf. Aquino v. Commission on Elections,
62 SCRA 275.
19 Ibid, 305. The citation from Rossiter is
from the first chapter of his work on
Constitutional Dictatorship. 9 (1948).
20 Ibid. 306.
21 SCRA 275, 298. Justice Makasiar cited
pages 7 and 303 of Rossiter's Constitutional
Dictatorship.
22 The extensive citation in the opinion of
Justice martin is found in Chapter XIX of
Rossiter's opus entitled Constitutional
Dictatorship: The Forms, the Dangers, the
Criteria, the Future. that is the last chapter of
his work, after a rather exhaustive discussion
of what are referred to by him as
Constitutional Dictatorship in Germany
(Chapters III to V), Crisis Government in the
French Republic (Chapters VI to IX), Crisis
Government in the United States (chapters
XIV to XVII).
23 Ibid. 294.
24 Imelda Romualdez Marcos, The Filipino
Between Two Worlds, Philippines Daily
Express lo, October 9,1976.
25 Ibid.
26 Corwin, The President Office and Powers,
4th rev. ed., 139-140 (1957).
27 According to Art XVII, Sec. 15 of the
present Constitution: The interim National
upon special call by the interim Prime
Minister, a majority vote of all its Members,
propose to amendments to this Constitution.
Such amendments shall take effect when
ratified in accordance with Article Sixteen
hereof."
28 He was assisted by Assistant Solicitor
General Hugo E. Gutierrez Jr. and Trial
Attorney Nannette R. de Castro.
29 Malcolm and Laurel, Philippine
Constitutional Law, 3rd ed., 20-21 (1936).
30 Malcolm and Laurel, Cases on
Constitutional Law (1936).
31 Ibid. Ellingham v. Dye is reported in 99
NE 1 (1912).
32 Philippine Political Law, llth ed. 63
(1962). It is precisely Ellingham v. Dye that
was cited.
33 Justice Makasiar referred to Article XVII,
Sec. 3, par. 2 of the present Constitution. The
present Chief Justice would include
paragraph 1 to the above. Vide in. 4.
34 L-34150, October 16,1951, 41 SCRA 702.
35 According to Article 11, Section 1 of the
present Constitution: The Philippines is a
republican state. Sovereignty resides in the
people and all government authority
emanates from them."
36 Cf. Crammer v. Thorson 68 NE 202
(1896): Edwards v. Lesueur 83 SW 1130
(1896); People v. Mills, 70 P. 322 (1902);
Treadgill v. Cross, 109 P 558 (1910); Scott v.
James, 76 SE 283 (1912); Weinland v. Fulton
121 NE 816 (1918); Gray v. Mass, 156 So.
262 (1934); Gray v. Winthrop, 156 So. 270
(1934); State v. Burns, 172 SW 259 (1943),
Hillman v. Stockett 39 A2 803 (1944).
37 L-19313, January 19,1962,4 SCRA 1.
38 Ibid, 17-18.
39 L-21897, October 22, 1964, 9 SCRA 230.
40 Ibid, 244.
41 50 SCRA 30, 310-333 (1973).
42 59 SCRA 275, 306-315 (1974).
43 Laski, Grammar of Politics, 4th ed., 34
(1937).
44 Corwin, The Higher Law Background of
American Constitutional Law, Selected
Essays on Constitutional Law 3 (1938).
45 Lerner, Ideas are Weapons, 470 (1939).
46 Bryn-Jones, Toward a Democratic New
Order 23 (1945).
47 McIver, The Web of Government 84
(1947).
48 L-28916, November 9, 1967, 21 SCRA
774.
49 L-23415, October 16, 1971, 41 SCRA
702.
50 L-35925, January 22, 1973, 49 SCRA 105.
51 L-36142, March 31, 1973, 50 SCRA 30. If
I read correctly the concurring opinion of the
then Chief Justice Makalintal and the now
Chief Justice Castro, then an Associate
Justice, where the question raised concerns
the adoption and enforcement of a new
Constitution, then it may be looked upon as
political.
52 78 Phil. 1 (1947). To be more precise,
there were only five Justices, headed by
Justice Tuason, with the then Chief Justice
Moran and the then Justices Paras, later
himself a Chief Justice, Hilado, Pablo and
Hontiveros, who were of that persuasion. The
other two votes necessary for a majority for
dismissing the prohibition petition were
supplied by Justice, also later a Chief Justice,
Bengzon and Justice Padilla.
53 307 U.S. 433. In the concurring opinion of
Justice Black, with Justices Roberts,
Frankfurther and Douglas in agreement, he
made the categorial statement that such
process "is 'political' in its entirety, from
submission until an amendment becomes part
of the Constitution, and is not subject to
judicial guidance, control or interference at
any point." At 459.
54 Cf. Hatcher v. Meredith, 173 SW 2d 665
(1943); In re Application of Borg, 35 A2d
220 (1944); Renck v. Superior Court of
Maricopa County, 187 P2d 656 (1947); In re
Opinion of Justices, 47 SO2d 643 (1950);
Funk v. Fielder, 243 SW2d 474 (1951);
Baum v. Newbry 267 P2d 220 (1954); Boe v.
Foss, 77 NW2d 1 (1956); Goldner v, Adams,
167 SO2d 575 (1964); Hamilton v. City of
Shreveport, 174 SO2d 529 (1965).
55 Laurel, S., ed., VII Proceedings of the
Philippine Constitutional Convention (1934-
1935), Appendix L, 800.
56 SCRA 275, 306-315.
1 Article XV, section 1.
2 Article XVI, section 1, paragraphs (1) and
(2).
3 Article XVII. section 3 (1).
4 Article XVII, section 15.
5 P.D. No. 991 dated Sept. 2, 1976, as
amended by P.D. No. 1031 dated Sept. 22,
1976 and P.D. No. 1033 dated Sept. 22, 1976
"Stating the questions to be submitted to te
people i the referendum-plebiscite on
October 16, 1976".
6 Art. XV, sec. 1, 1935 Constitution (see Art.
XVI, secs. 1 and 2, 1973 Constitution).
7 Resolution on motion for reconsideration in
Tolentino vs. Comelec dated Nov. 4, 1971, at
page 3.
8 Idem, at page 4.
9 Idem, at page 4
10 Idem, at page 4.
11 Marshall, C.J. in Marburg vs. Madison, 1
Cranch 137(1803).
12 Cooley's Constitutional Limitations, 8th
Ed., Vol. 1, p. 81
13 Idem, pp. 87-88.
14 Javellana vs' Exec. Secretary, 50 SCRA 30
(1973).
15 Majority opinion at p.20.
16 21 SCRA 774(1967)
17 Citing Sec.1,Art.VI,1935 Constitution
18 See sec.1,Art. VIII,1973 Constitution
19 Aquino vs. Comelec, 62 SCRA 275 (Jan.
31, 1975);see also Gonzales vs. Comelec, L-
40117, Feb. 22, 1975
20 Cooley, Constitutional Limitations, 8th
Ed., Vol. 1, p. 224
21 63 Phil. 134(1936).
23 Sunday Express (and Times Journal)
issues of August 29, 1976 reported that "(A)s
proposed by the sanggunian and barangay
national executive committees, the following
questions will be submitted in the discussions
and referendums:
1 Do you want martial law to be lifted?
2 Do you want to call the interim National
Assembly?
3 If not, do you want to call a body with
legislative powers?
4 Do you want such body to have full
legislative powers?
5 If not, do you want such body to have
limited legislative powers as may be
determined by the President in a presidential
decree?
6 If you want to call a body with certain
legislative powers, do you want to grant such
body authority to propose amendments to the
Constitution to make it conform with the
aims to the New Society?
7 If you want to call the body referred to
questions 4, 5, and 6, do you want the
members of such body elected by the people
through the barangays in accordance with an
election code to be promulgated in a decree
by the President?
"The barangay and sanggunian executive
committees informed the President that it was
'the thing of the barangays to undertake the
referendum on an informal manner and that
they opted to devise their own ballots, tally
sheets, and all other necessary from.'
"As proposed, and approved by the President,
the referendum will be done by secret ballot,
except in small barangays where the residents
can be gathered in one assembly to decide on
the issues by roll call vote if desired by
residents.
"The canvassing will be done by the barangay
referendum committee."
24 "The other issue to be taken up in the
public discussions is the question on whether
the interim national assembly should be
convened or not.
"This question was asked in two previous
referenda-in 1973 and 1975 - and was
rejected each time by the people
"The barangays, however, of feel it is time to
again ask the people's opinion of this matter."
(Phil. Express issue of Aug. 30,1976).
25 Art. IX, see. 1, 1973 Constitution.
26 Cooleys Constitutional Limitations, 8th
Ed. Vol. 2, p. 1349, citing Chief Justice Davis
in Gibson vs. Mason, 5 Nev. 293, 291 thus;
"The maxim which lies at the foundation of
our government is that all political power
originates with the people. But since the
organization of government it cannot be
claimed that either the legislative, executive,
or judicial powers, either wholly or in part,
can be exercised by them. By the institution
of government the people surrender the
exercise of all these sovereign functions of
government to agents chosen by themselves,
who at least theoretically represent the
supreme will of their constituents. Thus all
power possessed by the people themselves is
given and centered in their chosen
representatives
27 See fns. 8-10: note in parenthesis supplied.
28 Tolentino vs. Comelec, 41 SCRA 702,
725; emphasis supplied.
29 36 SCRA 228 234 (1970).
30 Resolution denying motion for
reconsideration dated Nov. 4, 1971, at page
13.
31 Idem, at page 16 fn. 6.
32 Majority opinion, at page 19.
33 Idem, at page 20.
33* Rodriguez vs. Gella 92 Phil. 603 (1953);
see also Araneta vs. Dinglasan, 84 Phil. 368
(1949).
34 Gonzales vs. Comelec, L-40117,
Resolution of Feb. 22,1975.
35 In re Egan 8 Fed. Cas. 367, holding that
"Martial law is neither more nor less than the
will of the general in command of the army-
It overreaches and supersedes, all civil law by
the exercise of military power.." as cited in
the Secretary of Justice's outline of a study on
the exercise of Legislative Power by the
President under Martial Law, dated Dec. 27,
1972, as reported in Lawyers' Journal, March
31, 1973 issue, p. 90.
36 Cooley's Constitutional Limitations. 8th
Ed., Vol. 1, pp.128-129.
37 With the exception of the proposed
amendments increasing the membership of
the House of Representatives from 120 to 180
and authorizing members of Congress to
become Con-Con delegates, which were
widely publicized as a result of the court
proceedings and decision in Gonzales vs.
Comelec, 21 SCRA 774.
38 "Perspectives and Dimensions of
Constitutional Reforms" delivered as keynote
speech at the National Conference on
Constitutional Amendments, July 27,1970.
39 Articles VIII, IX and X, 1973
Constitution.
40 U.P. Professor Perfecto V. Fernandez:
Civil Liberties under Martial Law.
41 Louis H. Pollale The Constitution and the
Supreme Court, Vol. 1, page 191.
42 Supra, fn. 16.
43 Supra, fn. 28.
44 Sec. Art. VIII, sec. 2 1935 Constitution;
Art. X, sec. 5, 1973 Constitution
45 SCRA 30 (1973) and cases cited.
46 Now retired Justices J.B.L. Reyes and
Calixto 0. Zaldivar.
47 SCRA at p. 733.
48 21 SCRA at pages 816-817, emphasis
copied.
49 From Am. Law Review, 1889, p. 311,
citing Ellingham vs. Dye 99 N.E. pp. 4,15;
emphasis copied.
50 21 SCRA at p. 817.
51 Phil. Daily Express issue of Oct. 11, 1976
reporting the Comelec's stand that "Young
voters, from age 15 to below 18 can vote not
only on the question of martial law but also
on the question regarding the proposed
constitutional amendments".
52 Phil. Daily Express issue of Oct. 3, 1976.
53 Times journal and Phil. Daily Express
issues of Oct. 11, 1976.
54 In the Bulletin Today issue of October 2,
1976, the President is quoted as himself
abstaining from the debates: "I am trying to
steer clear of the debates because it involves
martial law, and it involves, of course, me
personally. So the less I say about it, the
better, I guess, from my point of view".
54* Pres. Marcos' address on observance of
the first anniversary of the 1973 Constitution
on Jan. 17, 1974; Phil. Labor Relations
Journal, Vol. VII, Jan. 1974, p. 6.
55 The resolution gave the same permission
to court personnel by a 9 to 1 vote with
Justice Makasiar and the writer presenting no
objection in the case of personnel as
classified civil service employees, while
Justice Munoz Palma maintained the same
negative vote.
1 Aquino, J. vs Ponce Enrile and other cases,
59 SCRA 183.
2 50 SCRA 30, 209 et seq.
1 Carl Brent Swisher. The Supreme Court in
the Modern Role, 1958 ed., p. 173.
2 Melville Fuller Weston, Political questions,
38 Harv. L. Rev., 296, Italics supplied.
3 Tanada v. Cuenco, 103 Phil. 1051, 1057,
citing in re McConoughy, 119 NW 408.
Italics supplied.
4 16 C.J.s. 413.
5 369 U.S. 186, 217.
6 307 U.S. 433.
7 78 Phil, 1 (1947).
8 21 SCRA 774.
9 Republic Act No. 413.
10 41 SCRA 702,
11 L-40004, January 3l, 1975. 62 SCRA 275.
12 Proclamation No. 1103, January 17,1973.
13 Section 1, Article II, Constitution.
14 Leibholz: Politics and Law, p. 24.
15 Todays Revolution: Democracy, Marcos,
pp. 87-88.
16 Mabanag v. Lopez Vito, supra, at page 5,
citing Green v. Weller, 32 Miss., 650; note,
10 L.r.a., n.s., 150.
17 John P. wheeler, Jr., Changing the
fundamental Law SALIENT ISSUES OF
CONSTITUTIONAL REVISION; 1961 ed.
18 Sinco. Philippine Political Law, 10th Ed.
p. 48
19 T.S.N. of hearing, October 8,1976, pp.
8,11,12,15.
* p. 716, 1974 Ed., citing B. Schwartz, I The
Powers of Government (1963) 10.
xxx xxx xxx
It is well that the powers of the people and 5 Aquino vs.. Comelec, L-40004, Jan. 31,
their relations to organized society should be 1975, 62 SCRA 275, 302.
understood. No heresy has ever been taught
in this country so fraught with evil as the 9 Idem, at page 4.
doctrine that the people have a constitutional
right to disregard the constitution, and that
10 Idem, at page 4.
they can set themselves above the
instrumentalities appointed by the
constitution for the administration of law. It 11 Marshall, C.J. in Marburg vs. Madison, I
tends directly to the encouragement of Cranch 137 (1803).
revolution and anarchy. It is incumbent upon
all who influence and mold public opinion to 12 Cooley's Constitutional Limitations, 8th
repudiate and discountenance so dangerous a Ed., Vol. 1, p. 81.
doctrine before it bears fruits destructive of
republican institutions. It will be well if the
people come to understand the difference
between natural and constitutional freedom. Indeed, I cannot characterize as a “grave abuse of discretion”
before license becomes destructive of liberty the COMELEC’s obedience and respect to the pronouncement
." (pp. 611-616) of this Court in Santiago.

4 Green castle Township v. Black, 5 Ind.,557,

56,5.
5 Oakley vs. Aspinwall, 3 N.Y., 547,568.
6 Resolution on Motion for Reconsideration,
L-34150, November 4, 1971, per Barredo, J.,
pp 19-20, Supreme Court Decisions,
November 1971
6 Whenever in the judgment of the President
(Prime Minister there exists a brave
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. (Taken from the
Barangay Ballot Form distributed by
COMELEC for Referendum-Plebiscite,
October 16, 1976)
7 Speech upon conferment of the Doctor of
Laws, Honoris Causa, by the Manila
University, the Lawyers' Journal, June 15,
1936, italics Ours.
II
The doctrine of stare decisis bars the re-examination of
Santiago
It cannot be denied that in Santiago, a majority of the members
of this Court or eight (8) Justices (as against five (5) Justices)
concurred in declaring R.A. No. 6735 an insufficient law. When
the motion for reconsideration was denied via an equally-
divided Court or a 6-6 vote, it does not mean that the Decision
was overturned. It only shows that the opposite view fails to
muster enough votes to modify or reverse the majority ruling.
Therefore, the original Decision was upheld.13 In Ortigas and
Company Limited Partnership vs. Velasco,14 this Court ruled
that the denial of a motion or reconsideration signifies that the
ground relied upon have been found, upon due deliberation, to
be without merit, as not being of sufficient weight to warrant a
modification of the judgment or final order.
With Santiago being the only impediment to the instant petition
for initiative, petitioners persistently stress that the doctrine of
stare decisis does not bar its re-examination.

8 The Lawyers' Journal, March 15, 1936,

1 Tagada & by Macapagal v. Cuenco, et al..
103 Phil. 1051
2 L-28196. Nov. 9,1967; 21 SCRA 774.
3 L-34150, Oct. 16, 1971, 41 SCRA 702.
I am not convinced.
The maxim stare decisis et non quieta movere translates “stand
by the decisions and disturb not what is settled.”15 As used in
our jurisprudence, it means that “once this Court has laid down
a principle of law as applicable to a certain state of facts, it

4 Article XVII, Section 1, Constitution.

_______________ be an infringement, material and moral, of my rights.’
Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed
administration of justice in the courts.”17
13 Separate Opinion of Justice Ricardo J. Francisco, G.R. No.
129754, September 23, 1997.

That the doctrine of stare decisis is related to justice and fairness

may be appreciated by considering the observation of American
14 G.R. No. 109645, March 4, 1996, 254 SCRA 234.
philosopher William K. Frankena as to what constitutes
injustice:

15 Philippine National Bank v. Palma, G.R. No. 157279,

August 9, 2005, 466 SCRA 307, citing Moreno, Philippine Law
Dictionary (1988), 3rd ed. (citing Santiago v. Valenzuela, 78
Phil. 397, [1947]).
396
“The paradigm case of injustice is that in which there are two
similar individuals in similar circumstances and one of them is
treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or group;
and unless that agent or group can establish that there is some
relevant dissimilarity after all

396 _______________

SUPREME COURT REPORTS ANNOTATED 16 Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183,
March 25, 1999, 305 SCRA 303, citing Government v.
Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840.

Lambino vs. Commission on Elections

17 Benjamin N. Cardozo, The Nature of the Judicial Process

(New Haven and London: Yale University Press, 1921), pp. 33-
would adhere to that principle and apply it to all future cases in
34.
which the facts are substantially the same as in the earlier
controversy.”16

397

There is considerable literature about whether this doctrine of

stare decisis is a good or bad one, but the doctrine is usually
justified by arguments which focus on the desirability of VOL. 505, OCTOBER 25, 2006
stability and certainty in the law and also by notions of justice
and fairness. Justice Benjamin Cardozo in his treatise, The
Nature of the Judicial Process stated:
397

“It will not do to decide the same question one way between one
Lambino vs. Commission on Elections
set of litigants and the opposite way between another. ‘If a
group of cases involves the same point, the parties expect the
same decision. It would be a gross injustice to decide alternate
cases on opposite principles. If a case was decided against me between the individuals concerned and their circumstances, he
yesterday when I was a defendant, I shall look for the same or they will be guilty as charged.”18
judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would
Although the doctrine of stare decisis does not prevent
reexamining and, if need be, overruling prior decisions, “It is x
x x a fundamental jurisprudential policy that prior applicable
precedent usually must be followed even though the case, if
considered anew, might be decided differently by the current
justices. This policy x x x ‘is based on the assumption that
certainty, predictability and stability in the law are the major
objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with
reasonable assurance of the governing rules of law.19
Accordingly, a party urging overruling a precedent faces a
rightly onerous task, the difficulty of which is roughly
proportional to a number of factors, including the age of the
precedent, the nature and extent of public and private reliance
on it, and its consistency or inconsistency with other related
rules of law. Here, petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March
19, 1997 or more than nine (9) years ago. During that span of
time, the Filipino people, specifically the law practitioners, law
professors, law students, the entire judiciary and litigants have
recognized this Court’s Decision as a precedent. In fact, the
Santiago doctrine was applied by this Court in the subsequent
case of PIRMA. Even the legislature has relied on said
Decision, thus, several bills have been introduced in both
Houses of Congress to cure the deficiency. I cannot fathom why
it should be overturned or set aside merely on the basis of the
petition of Lambino, et al. Indeed, this Court’s conclusion in
Santiago 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 remains a
precedent and must be upheld.
_______________
18 William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs,
N.J.: Prentice Hall Inc.,) 1973, p. 49.
19 Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46
Cal.3d 287, 296.
398
398
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
III
The proposed constitutional changes constitute Revisions and
not mere amendments
Article XVII of the 1987 Constitution lays down the means for
its amendment and revision. Thus:
Section 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.
Section 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 votes (sic), of which every legislative district must be
represented by at least three per centum of the registered voters
therein. x x x. (Emphasis supplied)
At the outset, it must be underscored that initiative and
referendum, as means by which the people can directly propose
changes to the Constitution, were not provided for in the 1935
and 1973 Constitutions. Thus, under these two (2)
Constitutions, there was no demand to draw the distinction
between an amendment and a revision, both being governed by
a uniform process. This is not so under our present Constitution.
The distinction between an amendment and a revision becomes
crucial because only amendments are allowed under the system
of people’s initiative. Revisions are within the exclusive
domain of Congress, upon a vote of three-fourths of all its
members, or of a Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is
explicit that Section 2, Article XVII covers only amendments,
thus:
 MR. DAVIDE: With pleasure, Madam President.

The sponsor, Commissioner Suarez, is recognized.

MR. MAAMBONG: My first question, Commissioner

MR. SUAREZ: Thank you, Madam President. May we
respectfully call the attention of the Members of the
Commission that pursuant to the mandate given us last night,
we submitted this afternoon a complete Committee Report No.
7
Davide’s proposed amendment on line I 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
399 initiative is concerned, it can only relate to “amendments” not
“revision”

VOL. 505, OCTOBER 25, 2006

MR. MAAMBONG: Thank you.20

399
Considering that the initiative on the Constitution only permits
amendments, it is imperative to examine whether petitioners’
Lambino vs. Commission on Elections proposed changes partake of the nature of amendments, not
revisions.

which embodies the proposed provision governing initiative.

This is now covered by Section 2 of the complete committee The petition for initiative filed with the COMELEC by
report. With the permission of the Members, may I quote Lambino, et al. sought to amend the following provisions of the
Section 2: 1987 Constitution:

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 20 July 9, 1986. Records of the Constitutional Commission, No.
Report No. 7. This proposal was suggested on the theory that 26.
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 400
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 400
proposed Article on Amendment or Revision.

xxx xxx xxx

SUPREME COURT REPORTS ANNOTATED

MR. MAAMBONG: Madam President, will the distinguished

proponent of the amendment yield to a few questions? Lambino vs. Commission on Elections
Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII (The
Executive Department). It further includes Article XVIII
(Transitory Provisions) for the purpose of insuring an orderly
transition from the bicameralpresidential to a unicameral-
parliamentary form of government.
Succinctly, the proposals envision a change in the form of
government, from bicameral-presidential to unicameral-
parliamentary; conversion of the present Congress of the
Philippines to an Interim National Assembly; change in the
terms of Members of Parliament; and the election of a Prime
Minister who shall be vested with executive power.
Petitioners contend that the proposed changes are in the nature
of amendments, hence, within the coverage of a “people’s
initiative.”
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who
was also a member of the 1986 Constitutional Commission,
characterized an amendment and a revision to the Constitution
as follows:
“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 overall implications for the document to
determine how and to what extent they should be altered.”21
Obviously, both “revision” and amendment” connote change;
any distinction between the two must be based upon the degree
of change contemplated. In Kelly v. Laing,22 the Supreme
Court of Michigan made the following comparison of the two
terms:
_______________
21 Bernas, THE 1987 CONSTITUTION OF THE
PHILIPPINES: A COMMENTARY, 1996 Ed., p. 1161.
22 242 N. W. 891 259 Mich 212.
401
VOL. 505, OCTOBER 25, 2006
401
Lambino vs. Commission on Elections
“ “Revision” and “amendment” have the common
characteristics of working changes in the charter, and are
sometimes used in exactly the same sense but there is an
essential difference between them.”
“Revision” implies a re-examination of the whole law and a
redraft without obligation to maintain the form, scheme, or
structure of the old. As applied to fundamental law, such as a
constitution or charter, it suggests a convention to examine the
whole subject and to prepare and submit a new instrument
whether the desired changes from the old are few or many.
Amendment implies continuance of the general plan and
purpose of the law, with corrections to better accomplish its
purpose. Basically, revision suggests fundamental change,
while amendment is a correction of detail.
Although there are some authorities which indicate that a
change in a city’s form of government may be accomplished by
a process of “amendment,” the cases which so hold seem to
involve statutes which only distinguish between amendment
and totally new charters.23 However, as in Maine law, where
the statute authorizing the changes distinguishes between
“charter amendment” and “charter revision,” it has been held
that “(a) change in the form of government of a home rule city
may be made only by revision of the city charter, not by its
amendment.”24

In summary, it would seem that any major change in
governmental form and scheme would probably be interpreted
as a “revision” and should be achieved through the more
thorough process of deliberation.
Although, at first glance, petitioners’ proposed changes appear
to cover isolated and specific provisions only, however, upon
careful scrutiny, it becomes clear that the proposed changes will
alter the very structure of our government and create
multifarious ramifications. In other words, the proposed
changes will have a “domino effect” or, more appropriately,
“ripple effect” on other provisions of the Constitution.
_______________
23 State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People
v. Perkins 137, p. 55.
24 City of Midland v. Arbury, 38 Mich. App. 771, 197 N.W. 2d
134.
402
402
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
At this juncture, it must be emphasized that the power reserved
to the people to effect changes in the Constitution includes the
power to amend any section in such a manner that the proposed
change, if approved, would “be complete within itself, relate to
one subject and not substantially affect any other section or
article of the Constitution or require further amendments to the
Constitution to accomplish its purpose.”25 This is clearly not
the case here.
Firstly, a shift from a presidential to a parliamentary form of
government affects the well-enshrined doctrine of separation of
powers of government, embodied in our Constitution, by
providing for an Executive, Legislative and Judiciary Branches.
In a Parliamentary form of government, the Executive Branch
is to a certain degree, dependent on the direct or indirect support
of the Parliament, as expressed through a “vote of confidence.”
To my mind, this doctrine of separation of powers is so
interwoven in the fabric of our Constitution, that any change
affecting such doctrine must necessarily be a revision.
In McFadden vs. Jordan,26 the California Supreme Court ruled
as follows:
“It is thus clear that 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 x x x. Consequently, if the scope of the proposed
initiative 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. x x x.”
Secondly, the shift from a bicameral to a unicameral form of
government is not a mere amendment, but is in actuality a
revision, as set forth in Adams v. Gunter:27
_______________
25 Adams v. Gunter Fla, 238 So. 2d 824.
26 196 P.2d 787.
27 Adams v. Gunter Fla. 238 So.2d 824.
403
VOL. 505, OCTOBER 25, 2006
403
Lambino vs. Commission on Elections
“The proposal here to amend Section I 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 the 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.”
Thirdly, the proposed changes, on their face, signify revisions
rather than amendments, especially, with the inclusion of the
following “omnibus provision”:
C.For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamnetary form of
government, there shall be a new Article XVIII, entitled
“Transitory Provisions” which shall read, as follows:
xxx xxx xxx
Section 3.Upon the expiration of the term of the incumbent
President and Vice-President, with the exceptions of Section
1,2,3 and 4 of Article VII of the 1987 Constitution which are
hereby amended x x x x x x and all other Sections of Article VII
shall be retained and numbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section
1 hereof, in which case they shall be deemed amended so as to
conform to a unicameral Parliamentary system of government
xxxxxx.
xxx xxx xxx
Section 4.(1) x x x
(3)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.
The above provisions will necessarily result in a “ripple effect”
on the other provisions of the Constitution to make them
conform to the qualities of unicameral-parliamentary form of
government. With one
404
404
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
sweeping stroke, these proposed provisions automatically
revise some provisions of the Constitution. In McFadden, the
same practice was considered by the Court to be in the nature
of substantial revision, necessitating a constitutional
convention. I quote the pertinent portion of its ruling, thus:
“There is in the measure itself, no attempt to enumerate the
various and many articles and sections of our present
Constitution which would be affected, replaced or repealed. It
purports only to add one new article but its framers found it
necessary to include the omnibus provision (subdivision (7) of
section XII) that “If any section, subsection, sentence, clause or
phrase of the constitution is in conflict with any of the
provisions of this article, such section, subsection, sentence,
clause, or phrase is to the extent of such conflict hereby
repealed. x x x Consequently, if the scope of the proposed
intitiative measure now before us is so broad that if such
measure become law a substantial revision of our present state
Constitution would be 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.”28
Undoubtedly, the changes proposed by the petitioners are not than a rebuilding of the Philippine constitutional structure. Who
mere amendments which will only affect the Articles or were involved in formulating the structure? What debates
Sections sought to be changed. Rather, they are in the nature of ensued? What records are there for future use in interpreting the
revisions which will affect considerable portions of the provisions which may be found to be unclear?
Constitution resulting in the alteration of our form of
government. The proposed changes cannot be taken in isolation
since these are connected or “interlocked” with the other
In a deliberative body like Congress or a Constitutional
provisions of our Constitution. Accordingly, it has been held
Convention, decisions are reached after much purifying debate.
that: “If the changes attempted are so sweeping that it is
And while the deliberations proceed, the public has the
necessary to include the provisions interlocking them, then it is
opportunity to get involved. It is only after the work of an
plain that the plan would constitute a recasting of the whole
authorized body has been completed that it is presented to the
Constitution and this, we think, it was intended to be
electorate for final judgment. Careful debate is important
accomplished only by a convention under Section 2 which has
because the electorate tends to accept what is presented to it
not yet been disturbed.”29
even sight unseen.”30

_______________
IV

R.A. No. 6735 is insufficient to implement the People’s

28 Mc Fadden v. Jordan, supra. initiative

Section 2, Article XVII of the 1987 Constitution reads:

29 Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).

Section 2. Amendments to this Constitution may likewise be

directly proposed by the people through initiative upon a
405 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
VOL. 505, OCTOBER 25, 2006
within five years following the ratification of this Constitution
nor oftener than once every five years thereafter.

405
_______________

Lambino vs. Commission on Elections

30 Joaquin Bernas, Sounding Board: AMENDMENT OR
REVISION, Philippine Daily Inquirer, September 25, 2006.
I therefore conclude that since the proposed changes partake of
the nature of a revision of the Constitution, then they cannot be
the subject of an initiative. On this matter, Father Bernas
406
expressed this insight:

406
“But why limit initiative and referendum to simple
amendments? The answer, which one can easily glean from the
rather long deliberation on initiative and referendum in the 1986
Constitutional Commission, is practicality. In other words, who SUPREME COURT REPORTS ANNOTATED
is to formulate the revision or how is it to be formulated?
Revision, as concretely being proposed now, is nothing less
Lambino vs. Commission on Elections
The Congress shall provide for the implementation of the
exercise of this right.
On its face, Section 2 is not a self-executory provision. This
means that an enabling law is imperative for its implementation.
Thus, Congress enacted R.A. No. 6735 in order to breathe life
into this constitutional provision. However, as previously
narrated, this Court struck the law in Santiago for being
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned.
The passage of time has done nothing to change the
applicability of R.A. No. 6735. Congress neither amended it nor
passed a new law to supply its deficiencies.
Notwithstanding so, this Court is being persuaded to take a
360degree turn, enumerating three (3) justifications why R.A.
No. 6735 must be considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references to the
right of people to initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear
intent of the lawmakers to use it as instrument to implement the
people’s initiative; and
3) The sponsorship speeches by the authors of R.A. No. 6735
demonstrate the legislative intent to use it as instrument to
implement people’s initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion
that it covers only initiatives on national and local legislation.
Its references to initiatives on the Constitution are few, isolated
and misplaced. Unlike in the initiatives on national and local
legislation, where R.A. No. 6735 provides a detailed, logical,
and exhaustive enumeration on their implementation,31
however, as regards initiative on the Constitution, the law
merely:
_______________
31 See Sections 8-12 for national initiative and referendum, and
sections 13-19 for local initiative and referendum.
407
VOL. 505, OCTOBER 25, 2006
407
Lambino vs. Commission on Elections
(a) mentions the word “Constitution” in Section 2;32
(b) defines “initiative on the Constitution” and includes it in the
enumeration of the three systems of initiative in Section 3;33
(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;34
(d) reiterates the constitutional requirements as to the number
of voters who should sign the petition;35 and
(e) provides the date for the effectivity of the approved
proposition.36
In other words, R.A. No. 6735 does not specify the procedure
how initiative on the Constitution may be accomplished. This is
not the enabling law contemplated by the Constitution. As
pointed out by oppositor-intervenor Alternative Law Groups
Inc., since the promulgation of the Decision in Santiago, various
bills have been introduced in both Houses of Congress
providing for a complete and adequate process for people’s
initiative, such as:
_______________
32 Section 2. Statement of 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.
33 Section 3. Definition of terms.—
xxx
a.1. Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
xxx
34 See Section 3(e).
35 Section 5 (b)—A 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, of which every
legislative district must be represented by at least three per
centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five
(5) years thereafter.
xxx
36 Section 9 (b)—The proposition in an initiative on the
Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
408
408
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
• Names, signatures and addresses of petitioners who shall be
registered voters;
• A statement of the provision of the Constitution or any part
thereof sought to be amended and the proposed amendment;
• The manner of initiation—in a congressional district through
a petition by any individual, group, political party or coalition
with members in the congressional district;
• The language used: the petition should be printed in English
and translated in the local language;
• Signature stations to be provided for;
• Provisions pertaining to the need and manner of posting, that
is, after the signatures shall have been verified by the
Commission, the verified signatures shall be posted for at least
thirty days in the respective municipal and city halls where the
signatures were obtained;
• Provisions pertaining to protests allowed any protest as to the
authenticity of the signatures to be filed with the COMELEC
and decided within sixty (60) days from the filing of said
protest. None of the above necessary details is provided by R.A.
No. 6735, thus, demonstrating its incompleteness and
inadequacy.
V
Petitioners are not Proper Parties to File the Petition for
Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not
Comply with Section 2, Article XVII of the Constitution and
R.A. No. 6735
I shall discuss the above issues together since they are
interrelated and inseparable. The determination of whether
petitioners are proper parties to file the petition for initiative in
behalf of the alleged 6.3 million voters will require an
examination of whether they have complied with the provisions
of Section 2, Article XVII of the Constitution.
409
VOL. 505, OCTOBER 25, 2006
409
Lambino vs. Commission on Elections
To reiterate, Section 2, Article XVII of the Constitution
provides:
Section 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. (Italics supplied)
The mandate of the above constitutional provisions is definite
and categorical. For a people’s initiative to prosper, the
following requisites must be present:
1. It is “the people” themselves who must “directly propose”
“amendments” to the Constitution;
2. The proposed amendments must be contained in “a petition
of at least twelve per centum of the total number of registered
voters”; and
3. The required minimum of 12% of the total number of
registered voters “must be represented by at least three per
centum of the registered voters” of “every legislative district.”
In this case, however, the above requisites are not present.
The petition for initiative was filed with the COMELEC by
petitioners Lambino and Aumentado, two registered voters. As
shown in the “Verification/Certification with Affidavit of Non-
Forum Shopping” contained in their petition, they alleged under
oath that they have caused the preparation of the petition in their
personal capacity as registered voters “and as representatives”
of the supposed 6.3 million registered voters. This goes to show
that the questioned petition was not initiated directly by the 6.3
million people who allegedly comprised at least 12% of the total
number of registered voters, as required by Section 2.
Moreover, nowhere in the petition itself could be found the
signatures of the 6.3 million registered voters. Only the
signatures of petitioners Lambino and Aumentado
410
410
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
were affixed therein “as representatives” of those 6.3 million
people. Certainly, that is not the petition for people’s initiative
contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority
whatsoever to file the petition “as representatives” of the
alleged 6.3 million registered voters. Such act of representation
is constitutionally proscribed. To repeat, Section 2 strictly
requires that amendments to the Constitution shall be “directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered
voters.” Obviously, the phrase “directly proposed by the
people” excludes any person acting as representative or agent
of the 12% of the total number of registered voters. The
Constitution has bestowed upon the people the right to directly
propose amendments to the Constitution. Such right cannot be
usurped by anyone under the guise of being the people’s
representative. Simply put, Section 2 does not recognize acts of
representation. For it is only “the people” (comprising the
minimum of 12% 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) who are the
proper parties to initiate a petition proposing amendments to the
Constitution. Verily, the petition filed with the COMELEC by
herein petitioners Lambino and Aumentado is not a people’s
initiative. Necessarily, it must fail.
Corollarily, the plea that this Court should “hear” and “heed”
“the people’s voice” is baseless and misleading. There is no
people’s voice to be heard and heeded as this petition for
initiative is not truly theirs, but only of petitioners Lambino and
Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153,
vehemently argue that: (1) “[t]he validity of the exercise of the
right of the sovereign people to amend the Constitution and
their will, as ex-
411
VOL. 505, OCTOBER 25, 2006
411
Lambino vs. Commission on Elections
pressed by the fact that over six million registered voters
indicated their support of the Petition for initiative is a purely
political question;” and (2) “[t]he power to propose
amendments to the Constitution is a right explicitly bestowed
upon the sovereign people. Hence, the determination by the
people to exercise their right to propose amendments under the
system of initiative is a sovereign act and falls squarely within
the ambit of a political question.”
The “political question doctrine” was first enunciated by the US
Supreme Court in Luther v. Borden.37 Faced with the difficult
question of whether the Supreme Court was the appropriate
institution to define the substantive content of republicanism,
the US Supreme Court, speaking thru Mr. Justice Roger B.
Taney, concluded that “the sovereignty in every State resides in
the people, as to how and whether they exercised it, was under
the circumstances of the case, a political question to be settled
by the political power.” In other words, the responsibility of
settling certain constitutional questions was left to the
legislative and executive branches of the government.
The Luther case arose from the so-called “Dorr Rebellion” in
the State of Rhode Island. Due to increased migration brought
about by the Industrial Revolution, the urban population of
Rhode Island increased. However, under the 1663 Royal
Charter which served as the State Constitution, voting rights
were largely limited to residents of the rural districts. This
severe mal-apportionment of suffrage rights led to the “Dorr
Rebellion.” Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage
reformers invoked their rights under the American Declaration
of Independence to “alter or abolish” the government and to
institute a new one. The reformers proceeded to call for and
hold an extralegal constitutional convention, drafted a new
State Constitution, submitted the document for popular
ratification, and held elections under it. The State government,
however, refused to cede power, leading to an anomalous
situation in that for a few months in 1842, there were two
opposing
_______________
37 7 How (48 US) 1 (1849).
412
412
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
state governments contending for legitimacy and possession of
state of offices.
The Rhode Island militia, under the authority of martial law,
entered and searched the house of Martin Luther, a Dorr
supporter. He brought suit against Luther Borden, a militiaman.
Before the US Supreme Court, Luther’s counsel argued that
since the State’s archaic Constitution prevented a fair and
peaceful address of grievances through democratic processes,
the people of Rhode Island had instead chosen to exercise their
inherent right in popular sovereignty of replacing what they saw
as an oppressive government. The US Supreme Court deemed Lambino vs. Commission on Elections
the controversy as non-justiciable and inappropriate for judicial
resolution.

policy. It is concerned with issues dependent upon the wisdom,

not legality, of a particular measure.
In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined
the phrase “political thicket” to describe situations where
Federal courts should not intervene in political questions which
In Aquino v. Enrile,41 this Court adopted the following
they have neither the competence nor the commission to decide.
guidelines laid down in Baker v. Carr42 in determining whether
In Colgrove, the US Supreme Court, with a narrow 4-3 vote
a question before it is political, rather than judicial in nature, to
branded the apportionment of legislative districts in Illinois “as
wit:
a political question and that the invalidation of the districts
might, in requiring statewide elections, create an evil greater
than that sought to be remedied.”
1) there is a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or
While this Court has adopted the use of Frankfurter’s “political 2) there is a lack of judicially discoverable and manageable
thicket,” nonetheless, it has sought to come up with a definition standards for resolving it; or
of the term “political question.” Thus, in Vera v. Avelino,39 this
Court ruled that properly, political questions are “those 3) there is the sheer impossibility of deciding the matter without
questions which, under the Constitution, are to be decided by an initial policy determination of a kind clearly for non-judicial
the people in their sovereign capacity or in regard to which full discretion; or
discretionary authority has been delegated to the legislative or
executive branch of the government.” In Tañada and Macapagal 4) there is the sheer impossibility of the Court’s undertaking an
v. Cuenco,40 the Court held that the term political question independent resolution without expressing lack of respect due
connotes, in legal parlance, what it means in ordinary parlance, the coordinate branches of government; or
namely, a question of
5) there is an unusual need for unquestioning adherence to a
political decision already made; or

_______________ 6) there exists the potentiality of embarrassment arising from

multifarious pronouncements by various departments on one
question.

38 328 US 549 (1946). None of the foregoing standards is present in the issues raised
before this Court. Accordingly, the issues are justiciable. What
is at stake here is the legality and not the wisdom of the act
complained of.
39 77 Phil. 192 (1946).

Moreover, even assuming arguendo that the issues raised before

40 103 Phil. 1051 (1957).
this Court are political in nature, it is not precluded from
resolving them under its expanded jurisdiction conferred upon
it by Section 1, Article VIII of the Constitution, following Daza
413 v. Singson.43 As pointed out in Marcos v. Manglapus,44 the
present Constitution limits resort to the political question
doctrine and broadens the scope of judicial power which the
Court, under previous charters, would have normally and
VOL. 505, OCTOBER 25, 2006
ordinarily left to the political departments to decide.

413
_______________

41 G.R. No. 35546, September 17, 1974, 50 SCRA 559.
42 369 US 186 (1962).
Constitution. The Court concluded, among others, that the viva
voce voting in the Citizens’ Assemblies “was and is null and
void ab initio.” That was during martial law when perhaps
majority of the justices were scared of the dictator. Luckily at
present, we are not under a martial law regime. There is,
therefore, no reason why this Court should allow itself to be
used as a legitimizing authority by the so-called people’s
initiative for those who want to perpetuate themselves in power.

43 G.R. No. 85344, December 21, 1989, 180 SCRA 496.

At this point, I can say without fear that there is nothing wrong
with our present government structure. Consequently, we must
44 G.R. No. 88211, September 15, 1989, 177 SCRA 668. not change it. America has a presidential type of government.
Yet, it thrives ideally and has become a super power. It is then
safe to conclude that what we should change are some of the
414 people running the government, NOT the SYSTEM.

414 _______________

SUPREME COURT REPORTS ANNOTATED 45 Nos. L-36142, L-36164, L-36165, L-36236, and L-36283,
March 31, 1973, 50 SCRA 30.

Lambino vs. Commission on Elections

415

CONCLUSION
VOL. 505, OCTOBER 25, 2006
In fine, considering the political scenario in our country today,
it is my view that the so-called people’s initiative to amend our
Constitution from bicameral-presidential to unicameral-
415
parliamentary is actually not an initiative of the people, but an
initiative of some of our politicians. It has not been shown by
petitioners, during the oral arguments in this case, that the 6.3
million registered voters who affixed their signatures Lambino vs. Commission on Elections
understood what they signed. In fact, petitioners admitted that
the Constitutional provisions sought to be amended and the
proposed amendments were not explained to all those registered
According to petitioners, the proposed amendment would effect
voters. Indeed, there will be no means of knowing, to the point
a more efficient, more economical and more responsive
of judicial certainty, whether they really understood what
government.
petitioners and their group asked them to sign.

Is there hope that a new breed of politicians, more qualified and

Let us not repeat the mistake committed by this Court in
capable, may be elected as members and leaders of the
Javellana v. The Executive Secretary.45 The Court then ruled
unicameralparliament? Or will the present members of the
that “This being the vote of the majority, there is no further
Lower House continue to hold their respective positions with
judicial obstacle to the new Constitution being considered in
limitless terms?
force and effect,” although it had notice that the Constitution
proposed by the 1971 Constitutional Convention was not
validly ratified by the people in accordance with the 1935
Will the new government be more responsive to the needs of
the poor and the marginalized? Will it be able to provide homes
for the homeless, food for the hungry, jobs for the jobless and
protection for the weak?
This is a defining moment in our history. The issue posed before
us is crucial with transcendental significance. And history will
judge us on how we resolve this issue—shall we allow the
revision of our Constitution, of which we are duty bound to
guard and revere, on the basis of a doubtful people’s initiative?
Amending the Constitution involving a change of government
system or structure is a herculean task affecting the entire
Filipino people and the future generations. Let us, therefore,
entrust this duty to more knowledgeable people elected as
members of a Constitutional Convention.
Yes, the voice of the people is the voice of God. But under the
circumstances in this case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No.
174153 and to GRANT the petition in G.R. No. 174299.
DISSENTING OPINION
CORONA, J.:
The life of the law is not logic but experience.1 Our collective
experience as a nation breathes life to our system of laws,
especially to the Constitution. These cases promise to
significantly contribute to our collective experience as a nation.
Fealty to the primary constitutional principle that the
Philippines is not merely a republican State
_______________
1 Abrams v. United States, 250 U.S. 616.
416
416
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
but a democratic one as well behooves this Court to affirm the
right of the people to participate directly in the process of
introducing changes to their fundamental law. These petitions
present such an opportunity. Thus, this is an opportune time for
this Court to uphold the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has
sufficiently explained the rationale for upholding the people’s
initiative. However, I wish to share my own thoughts on certain
matters I deem material and significant.
Santiago Does Not Apply to This Case But Only to the 1997
Delfin Petition
The COMELEC denied the petition for initiative filed by
petitioners purportedly on the basis of this Court’s ruling in
Santiago v. COMELEC2 that: (1) RA 6753 was inadequate to
cover the system of initiative regarding amendments to the
Constitution and (2) the COMELEC was permanently enjoined
from entertaining or taking cognizance of any petition for
initiative regarding amendments to the Constitution until a
sufficient law was validly enacted to provide for the
implementation of the initiative provision.
However, Santiago should not apply to this case but only to the
petition of Delfin in 1997. It would be unreasonable to make it
apply to all petitions which were yet unforeseen in 1997. The
fact is that Santiago was focused on the Delfin petition alone.
Those who oppose the exercise of the people’s right to initiate
changes to the Constitution via initiative claim that Santiago
barred any and all future petitions for initiative by virtue of the
doctrines of stare decisis and res judicata. The argument is
flawed.
The ponencia of Mr. Justice Puno has amply discussed the for initiative was barred by Santiago and, on that ground,
arguments relating to stare decisis. Hence, I will address the dismissed the petition.
argument from the viewpoint of res judicata.

The present petition and that in Santiago are materially different

Res judicata is the rule that a final judgment rendered by a court from each other. They are not based on the same facts. There is
of competent jurisdiction on the merits is conclusive as to the thus no cogent reason to frustrate and defeat the present direct
rights of action of the people to exercise their sovereignty by proposing
changes to their fundamental law.

_______________
People’s Initiative Should Not Be Subjected to Conditions

People’s initiative is an option reserved by the people for

2 336 Phil. 848; 270 SCRA 106 (1997). themselves exclusively. Neither Congress nor the COMELEC
has the power to curtail or defeat this exclusive power of the
people to change
417

_______________
VOL. 505, OCTOBER 25, 2006

3 Santos v. Court of Appeals, G.R. No. 134787, 15 November

417 2005, 475 SCRA 1.

Lambino vs. Commission on Elections 4 Feria and Noche, CIVIL PROCEDURE ANNOTATED, vol.
I, 2001 edition, p. 419.

the parties and their privies and, as to them, constitutes an

absolute bar to a subsequent action involving the same claim, 418
demand or cause of action.3 It has the following requisites: (1)
the former judgment or order must be final; (2) it must have
been rendered by a court having jurisdiction of the subject 418
matter and of the parties; (3) it must be a judgment or order on
the merits and (4) there must be identity of parties, of subject
matter, and of cause of action between the first and second
actions.4 SUPREME COURT REPORTS ANNOTATED

There is no identity of parties in Santiago and the instant case. Lambino vs. Commission on Elections
While the COMELEC was also the respondent in Santiago, the
petitioners in that case and those in this case are different. More
significantly, there is no identity of causes of action in the two the Constitution. Neither should the exercise of this power be
cases. Santiago involved amendments to Sections 4 and 7 of made subject to any conditions, as some would have us accept.
Article VI, Section 4 of Article VII and Section 8 of Article X
of the Constitution while the present petition seeks to amend
Sections 1 to 7 of Article VI and Sections 1 to 4 of the 1987
Constitution. Clearly, therefore, the COMELEC committed Oppositors to the people’s initiative point out that this Court
grave abuse of discretion when it ruled that the present petition ruled in Santiago that RA 6735 was inadequate to cover the
system of initiative on amendments to the Constitution and,
thus, no law existed to enable the people to directly propose
changes to the Constitution. This reasoning is seriously
objectionable.
The pronouncement on the insufficiency of RA 6735 was, to
my mind, out of place. It was unprecedented and dangerously
transgressed the domain reserved to the legislature.
While the legislature is authorized to establish procedures for
determining the validity and sufficiency of a petition to amend
the constitution,5 that procedure cannot unnecessarily restrict
the initiative privilege.6 In the same vein, this Court cannot
unnecessarily and unreasonably restrain the people’s right to
directly propose changes to the Constitution by declaring a law
inadequate simply for lack of a sub-heading and other
grammatical but insignificant omissions. Otherwise, the
constitutional intent to empower the people will be severely
emasculated, if not rendered illusory.
People’s Right and Power to Propose Changes to the
Constitution Directly Should not be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are
mere representative bodies, can propose changes to the
Constitution, there is no reason why the supreme body politic
itself—the people—may not do so directly.
Resort to initiative to amend the constitution or enact a statute
is an exercise of “direct democracy” as opposed to
“representative democracy.” The system of initiative allows
citizens to directly propose
_______________
5 Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d
380, citing State ex rel. Stenberg v. Beermann, 240 Neb. 754,
485 N.W. 2d 151 (1992).
6 Id., citing Coalition for Political Honesty v. State Board of
Elections, 83 Ill. 2d 236, 47 Ill. Dec. 363, 415 N.E. 2d 368
(1980).
419
VOL. 505, OCTOBER 25, 2006
419
Lambino vs. Commission on Elections
constitutional amendments for the general electorate to adopt or
reject at the polls, particularly in a plebiscite. While
representative government was envisioned to “refine and
enlarge the public views, by passing them through the medium
of a chosen body of citizens, whose wisdom may best discern
the true interest of their country, and whose patriotism and love
of justice will be least likely to sacrifice it to temporary or
partial considerations,”7 the exercise of “direct democracy”
through initiative reserves direct lawmaking power to the
people by providing them a method to make new laws via the
constitution, or alternatively by enacting statutes.8 Efforts of
the represented to control their representatives through
initiative have been described as curing the problems of
democracy with more democracy.9
The Constitution celebrates the sovereign right of the people
and declares that “sovereignty resides in the people and all
government authority emanates from them.”10 Unless the
present petition is granted, this constitutional principle will be
nothing but empty rhetoric, devoid of substance for those whom
it seeks to empower.
The right of the people to pass legislation and to introduce
changes to the Constitution is a fundamental right and must be
jealously guarded.11 The people should be allowed to directly
seek redress of the
_______________
7 Balitzer, Alfred, The Initiative and Referendum: A Study and
Evaluation of Direct Legislation, The California Roundtable 13
(1981). The American Founding Fathers recognized that direct
democracy posed a profound threat to individual rights and
liberty. The U.S. Constitution was “designed to provide a
system of government that would prevent either a tyranny of the
majority or a tyranny of the few.” James Madison “warned
against the power of a majority or a minority of the population
‘united and actuated by some common impulse of passion, or
of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interest of the community.’
8 Gilbert Hahn & Steven C. Morton, Initiative and
Referendum—Do They Encourage or Impair Better State
Government? 5 FLA. ST. U. L. REV. 925, 927 (1977).
9 Florida Advisory Council on Intergovernmental Relations,
Initiatives and Referenda: Issues in Citizen Lawmaking (1986).
10 Sec. 1, Article II, Constitution.
11 In re Initiative Petition No. 362 State Question 669, 899 P.2d
1145 (Okla. 1995).
420
420
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
problems of society and representative democracy with the
constitutional tools they have reserved for their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
SEPARATE CONCURRING OPINION
CALLEJO, SR., J.:
I am convinced beyond cavil that the respondent Commission
on Elections (COMELEC) did not commit an abuse of its
discretion in dismissing the amended petition before it. The
proposals of petitioners incorporated in said amended petition
are for the revision of the 1987 Constitution. Further, the
amended petition before the respondent COMELEC is
insufficient in substance.
The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B.
Aumentado filed with the COMELEC a petition entitled “IN
THE MATTER OF PROPOSING AMENDMENTS TO THE
1987 CONSTITUTION THROUGH A PEOPLE’S
INITIATIVE: A SHIFT FROM A BICAMERAL
PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY
GOVERNMENT BY AMENDING ARTICLES VI AND VII;
AND PROVIDING TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE
PARLIAMENTARY SYSTEM.” The case was docketed as
EM (LD)-06-01. On August 30, 2006, petitioners filed an
amended petition. For brevity, it is referred to as the petition for
initiative.
Petitioners alleged therein, inter alia, that they filed their
petition in their own behalf and together with those who have
affixed their signatures to the signature sheets appended thereto
who are Filipino citizens, residents and registered voters of the
Philippines, and they constitute at least twelve percent (12%) of
all the registered voters in the country, wherein each legislative
district is represented by at least three percent (3%) of all the
registered voters therein.
Petitioners further alleged therein that the filing of the petition
for initiative is based on their constitutional right to propose
amend-
421
VOL. 505, OCTOBER 25, 2006
421
Lambino vs. Commission on Elections
 c.5. signatures of the petitioners or registered voters; and

ments to the 1987 Constitution by way of people’s initiative, as _______________

recognized in Section 2, Article XVII thereof, which provides:

1 Entitled An Act Providing for a System of Initiative and

“SEC. 2. Amendments to this Constitution may likewise be Referendum and Appropriating Funds Therefor.
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
422
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. 422

The Congress shall provide for the implementation of the SUPREME COURT REPORTS ANNOTATED
exercise of this right.”

Lambino vs. Commission on Elections

According to petitioners, while the above provision states that
“(T)he Congress shall provide for the implementation of the
exercise of this right,” the provisions of Section 5(b) and (c),
c.6. an abstract or summary in not more than one hundred (100)
along with Section 7 of Republic Act (RA) 6735,1 are sufficient
words which shall be legibly written or printed at the top of
enabling details for the people’s exercise of the power. The said
every page of the petition.
sections of RA 6735 state:
xxxx

Sec. 7. Verification of Signatures.—The Election Registrar

Sec. 5. Requirements.—(a) To exercise the power x x x
shall verify the signatures on the basis of the registry list of
voters, voters’ affidavits and voters identification cards used in
the immediately preceding election.
(b) A 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, of which every legislative
They also alleged that the COMELEC has the authority,
district must be represented by at least three per centum (3%)
mandate and obligation to give due course to the petition for
of the registered voters therein. Initiative on the Constitution
initiative, in compliance with the constitutional directive for the
may be exercised only after five (5) years from the ratification
COMELEC to “enforce and administer all laws and regulations
of the 1987 Constitution and only once every five (5) years
relative to the conduct of an election, plebiscite, initiative,
thereafter.
referendum and recall.”2

(c) The petition shall state the following:

Petitioners incorporated in their petition for initiative the
c.1. contents or text of the proposed law sought to be enacted, changes they proposed to be incorporated in the 1987
approved or rejected, amended or repealed, as the case may be; Constitution and prayed that the COMELEC issue an order:

c.2. the proposition;

c.3. the reason or reasons therefor; 1. Finding the Petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
c.4. that it is not one of the exceptions provided herein;
2. Directing the publication of the Petition in Filipino and
English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later
than ninety days after the Certification by this Honorable
Commission of the sufficiency of this Petition, to allow the
Filipino people to express their sovereign will on the
proposition.
Petitioners pray for such other reliefs deemed just and equitable
in the premises.
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed
Resolution denying due course and dismissing the petition for
initiative. The COMELEC ruled that:
_______________
2 Section 2(1), Article IX-C, 1987 Constitution.
423
VOL. 505, OCTOBER 25, 2006
423
Lambino vs. Commission on Elections
“We agree with the petitioners that this Commission has the
solemn Constitutional duty to enforce and administer all laws
and regulations relative to the conduct of, as in this case,
initiative.
This mandate, however, should be read in relation to the other
provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 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. x x x.
The Congress shall provide for the implementation of the
exercise of this right.”
The aforequoted provision of the Constitution being a non-
selfexecutory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolution, Congress
enacted RA 6735.
However, the Supreme Court, in the landmark case of Santiago
v. Commission on Elections struck down the said law for being
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned.
The Supreme Court, likewise, declared that this Commission
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.
Thus, even if the signatures in the instant Petition appear to
meet the required minimum per centum of the total number of
registered voters, of which every legislative district is
represented by at least three per centum of the registered voters
therein, still the Petition cannot be given due course since the
Supreme Court categorically declared RA 6735 as inadequate
to cover the system of initiative on amendments to the
Constitution.
This Commission is not unmindful of the transcendental
importance of the right of the people under a system of
initiative. However, neither can we turn a blind eye to the
pronouncement of the High Court that in the absence of a valid
enabling law, this right of the people remains nothing but an THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735,
“empty right,” and that this Commission is permanently REPUBLIC ACT NO. 8189 AND EXISTING
enjoined from entertaining or taking cognizance of any petition APPROPRIATION OF THE COMELEC PROVIDE FOR
for initiative on amendments to the Constitution. (Citations SUFFICIENT DETAILS AND AUTHORITY FOR THE
omitted.) EXERCISE OF PEOPLE’S INITIATIVE, THUS, EXISTING
LAWS TAKEN TOGETHER ARE ADEQUATE AND
COMPLETE.

424

III.

424

THE HONORABLE PUBLIC RESPONDENT COMELEC

COMMITTED GRAVE ABUSE OF DISCRETION IN
SUPREME COURT REPORTS ANNOTATED
REFUSING TO TAKE COGNIZANCE OF, AND IN
REFUSING TO GIVE DUE COURSE TO THE PETITION
FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
Lambino vs. Commission on Elections CONSTITUTIONAL MANDATE AND DISREGARDING
AND CONTRAVENING THE WILL OF THE PEOPLE.

Aggrieved, petitioners elevated the case to this Court on a

petition for certiorari and mandamus under Rule 65 of the Rules A.
of Court.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT

The Petitioners’ Case APPLICABLE TO THE INSTANT PETITION FOR
INITIATIVE FILED BY THE PETITIONERS.
In support of their petition, petitioners alleged, inter alia, that:

425
I.

VOL. 505, OCTOBER 25, 2006

THE HONORABLE PUBLIC RESPONDENT COMELEC
COMMITTED GRAVE ABUSE OF DISCRETION IN
REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE, 425
BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE
MAJORITY OPINION OF THE SUPREME COURT EN Lambino vs. Commission on Elections
BANC, CONSIDERING THAT UPON ITS
RECONSIDERATION AND FINAL VOTING ON 10 JUNE
1997, NO MAJORITY VOTE WAS SECURED TO
DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE, 1.
INCOMPLETE AND INSUFFICIENT IN STANDARD.

THE FRAMERS OF THE CONSTITUTION INTENDED TO

II. GIVE THE PEOPLE THE POWER TO PROPOSE
AMENDMENTS AND THE PEOPLE THEMSELVES ARE
NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
 IT IS THE DISPOSITIVE PORTION OF THE DECISION
AND NOT OTHER STATEMENTS IN THE BODY OF THE
2. DECISION THAT GOVERNS THE RIGHTS IN
CONTROVERSY.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19

MARCH 1997, THE RIGHT OF THE PEOPLE TO IV.
EXERCISE THE SOVEREIGN POWER OF INITIATIVE
AND RECALL HAS BEEN INVARIABLY UPHELD

THE HONORABLE PUBLIC RESPONDENT FAILED OR

NEGLECTED TO ACT OR PERFORM A DUTY
3. MANDATED BY LAW.

THE EXERCISE OF THE INITIATIVE TO PROPOSE 426

AMENDMENTS IS A POLITICAL QUESTION WHICH
SHALL BE DETERMINED SOLELY BY THE SOVEREIGN
PEOPLE.
426

4.
SUPREME COURT REPORTS ANNOTATED

BY SIGNING THE SIGNATURE SHEETS ATTACHED TO

THE PETITION FOR INITIATIVE DULY VERIFIED BY Lambino vs. Commission on Elections
THE ELECTION OFFICERS, THE PEOPLE HAVE
CHOSEN TO PERFORM THIS SACRED EXERCISE OF
THEIR SOVEREIGN POWER. A.

B. THE MINISTERIAL DUTY OF THE COMELEC IS TO SET

THE INITIATIVE FOR PLEBISCITE.3

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT

APPLICABLE TO THE INSTANT PETITION FOR Petitioners Failed to Allege and Demonstrate All the Essential
INITIATIVE FILED BY THE PETITIONERS Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:

C.

Sec. 1. Petition for certiorari.—When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO
without or in excess of its or his jurisdiction, or with grave abuse
V. COMELEC ONLY APPLIES TO THE DELFIN
of discretion amounting to lack or excess of jurisdiction, and
PETITION.
there is no appeal, or any 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
1. certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of
the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the
third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following
requirements are set out in the petition and established:
(1) the writ is directed against a tribunal, a board or any officer
exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law. x x x4
_______________
3 Petition, pp. 12-14.
4 Land Bank of the Philippines v. Court of Appeals, G.R. No.
129368, August 25, 2003, 409 SCRA 455, 480.
427
VOL. 505, OCTOBER 25, 2006
427
Lambino vs. Commission on Elections
The Court has invariably defined “grave abuse of discretion,”
thus:
“By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and it must be shown that the discretion was
exercised arbitrarily or despotically. For certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of
power, the very antithesis of the judicial prerogative in
accordance with centuries of both civil law and common law
traditions.”5
There is thus grave abuse of discretion on the part of the
COMELEC when it acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of its judgment amounting to
lack of jurisdiction. Mere abuse of discretion is not enough.6
The only question involved is jurisdiction, either the lack or
excess thereof, and abuse of discretion warrants the issuance of
the extraordinary remedy of certiorari only when the same is
grave, as when the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility. A
writ of certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment.7 An error of
judgment is one in which the court may commit in the exercise
of its jurisdiction, which error is reversible only by an appeal.8
In the present case, it appears from the assailed Resolution of
the COMELEC that it denied the petition for initiative solely in
obedience to the mandate of this Court in Santiago v.
Commission on Elections.9 In said case, the Court En Banc
permanently enjoined the COMELEC 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. When
the COMELEC denied the petition for initiative,
_______________
5 Rodson Philippines, Inc. v. Court of Appeals, G.R. No.
141857, June 9, 2004, 431 SCRA 469, 480.
6 People v. Court of Appeals, G.R. No. 144332, June 10, 2004,
431 SCRA 610.
7 Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares
Construction Co., G.R. No. L-35630, November 25, 1982, 118
SCRA 664.
8 People v. Court of Appeals, supra.
9 G.R. No. 127325, March 19, 1997, 270 SCRA 106.
“Whatever was before the Court, and is disposed of, is
considered as finally settled. The inferior court is bound by the
judgment or decree as the law of the case, and must carry it into
execution according to the mandate. The inferior court cannot
vary it, or judicially examine it for any other purpose than
execution. It can give no other or further relief as to any matter
decided by the Supreme Court even where there is error
apparent; or in any manner

428 _______________

428 10 Article 8, New Civil Code provides that “[j]udicial decisions

applying or interpreting the laws or the Constitution shall form
part of the legal system of the Philippines.”

SUPREME COURT REPORTS ANNOTATED

11 Suson v. Court of Appeals, G.R. No. 126749, August 27,

1997, 278 SCRA 284.
Lambino vs. Commission on Elections

12 Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208

there was as yet no valid law enacted by Congress to provide SCRA 254.
for the implementation of the system.

13 974 S.W.2d 451 (1998).

It is a travesty for the Court to declare the act of the COMELEC
in denying due course to the petition for initiative as
“capricious, despotic, oppressive or whimsical exercise of
judgment as is equivalent to lack of jurisdiction.” In fact, in so 429
doing, the COMELEC merely followed or applied, as it ought
to do, the Court’s ruling in Santiago to the effect that Section 2,
Article XVII of the Constitution on the system of initiative is a VOL. 505, OCTOBER 25, 2006
non self-executory provision and requires an enabling law for
its implementation. In relation thereto, RA 6735 was found by
the Court to be “incomplete, inadequate, or wanting in essential
terms and conditions” to implement the constitutional provision 429
on initiative. Consequently, the COMELEC was “permanently
enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a Lambino vs. Commission on Elections
sufficient law shall have been validly enacted to provide for the
implementation of the system.” The decision of the Court En
Banc interpreting RA 6735 forms part of the legal system of the
Philippines.10 And no doctrine or principle laid down by the intermeddle with it further than to execute the mandate and
Court En Banc may be modified or reversed except by the Court settle such matters as have been remanded, not adjudicated by
En Banc,11 certainly not by the COMELEC. Until the Court En the Supreme Court….
Banc modifies or reverses its decision, the COMELEC is bound
to follow the same.12 As succinctly held in Fulkerson v.
Thompson:13
The principles above stated are, we think, conclusively
established by the authority of adjudged cases. And any further
departure from them would inevitably mar the harmony of the
whole judiciary system, bring its parts into conflict, and
produce therein disorganization, disorder, and incalculable
mischief and confusion. Besides, any rule allowing the inferior
courts to disregard the adjudications of the Supreme Court, or
to refuse or omit to carry them into execution would be
repugnant to the principles established by the constitution, and
therefore void.”14
At this point, it is well to recall the factual context of Santiago
as well as the pronouncement made by the Court therein. Like
petitioners in the instant case, in Santiago, Atty. Jesus Delfin,
the People’s Initiative for Reforms, Modernization and Action
(PIRMA), et al., invoked Section 2, Article XVII of the
Constitution as they filed with the COMELEC a “Petition to
Amend the Constitution, to Lift Term Limits of Elective
Officials, By People’s Initiative” (the Delfin petition). They
asked the COMELEC to issue an order fixing the time and date
for signature gathering all over the country; causing the
necessary publications of said order and their petition in
newspapers of general and local circulation and instructing
municipal election registrars in all regions all over the country
and to assist petitioners in establishing signing stations. Acting
thereon, the COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court
a petition for prohibition to enjoin the COMELEC from
implementing its order. The Court, speaking through Justice
Hilario G. Davide, Jr. (later Chief Justice), granted the petition
as it declared:
1. RA 6735 “incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned”;
_______________
14 Id., at p. 453.
430
430
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
2. COMELEC Resolution No. 230015 invalid insofar as it
prescribed rules and regulations on the conduct of initiative on
amendments to the Constitution because the COMELEC is
without authority to promulgate the 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; and
3. The Delfin petition insufficient as it did not contain the
required number of signatures of registered voters.
The Court concluded in Santiago that “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.” The
dispositive portion of the decision reads:
“WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 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 December 18,
1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.”16
The Court reiterated its ruling in Santiago in another petition
which was filed with the Court by PIRMA and the spouses
Alberto
_______________ The Court dismissed outright, by a unanimous vote, the petition
filed by PIRMA and the spouses Albert Pedrosa. The Court
declared that the COMELEC merely complied with the
dispositions in the decision of the Court in Santiago and, hence,
15 Entitled In Re: Rules and Regulations Governing the
cannot be held to have committed a grave abuse of its discretion
Conduct of Initiative in the Constitution, and Initiative and
in dismissing the petition before it:
Referendum on National and Local Laws.

“The Court ruled, first, by a unanimous vote, that no grave

16 Supra note 10, p. 157.
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
431 Decision of this Court in G.R. No. 127325, promulgated on
March 19, 1997, and its Resolution of June 10, 1997.

VOL. 505, OCTOBER 25, 2006

The Court next considered the question of whether there was
need to resolve the second issue posed by the petitioners,
namely, that the Court reexamine its ruling as regards R.A.
431
6735. On this issue, the Chief Justice and six (6) other members
of the Court, namely, Regalado, Davide, Romero, Bel-

Lambino vs. Commission on Elections

_______________

and Carmen Pedrosa (who were parties in Santiago) docketed

as PIRMA v. Commission on Elections.17 The said petitioners,
17 G.R. No. 129754.
undaunted by Santiago and claiming to have gathered 5,793,213
signatures, filed a petition with the COMELEC praying, inter
alia, that COMELEC officers be ordered to verify all the
signatures collected in behalf of the petition and, after due 432
hearing, that it (COMELEC) declare the petition sufficient for
the purpose of scheduling a plebiscite to amend the
Constitution. Like the Delfin petition in Santiago, the PIRMA
432
petition proposed to submit to the people in a plebiscite the
amendment to the Constitution on the lifting of the term limits
of elected officials.
SUPREME COURT REPORTS ANNOTATED

The opinion of the minority that there was no doctrine

enunciated by the Court in PIRMA has no basis. The Lambino vs. Commission on Elections
COMELEC, in its Resolution dated July 8, 1997, dismissed the
PIRMA petition citing the permanent restraining order issued
against it by the Court in Santiago. PIRMA and the spouses
losillo, Kapunan and Torres, JJ., voted that there was no need
Pedrosa forthwith elevated the matter to the Court alleging
to take it up. Vitug, J., agreed that there was no need for re-
grave abuse of discretion on the part of the COMELEC in
examination of said second issue since the case a bar is not the
refusing to exercise jurisdiction over, and thereby dismissing,
proper vehicle for that purpose. Five (5) other members of the
their petition for initiative to amend the Constitution.
Court, namely, Melo, Puno, Francisco, Hermosisima and
Panganiban, JJ., opined that there was need for such a re-
examination. x x x
WHEREFORE, the petition is DISMISSED.”18 (Italics VOL. 505, OCTOBER 25, 2006
supplied.)

433
In the present case, the Office of the Solicitor General (OSG)
takes the side of petitioners and argues that the COMELEC
should not have applied the ruling in Santiago to the petition for
Lambino vs. Commission on Elections
initiative because the permanent injunction therein referred
only to the Delfin petition. The OSG buttresses this argument
by pointing out that the Temporary Restraining Order dated
December 18, 1996 that was made permanent in the dispositive idly enacted. Clearly, the COMELEC, in denying due course to
portion referred only to the Delfin petition. the present petition for initiative on amendments to the
Constitution conformably with the Court’s ruling in Santiago
did not commit grave abuse of discretion. On the contrary, its
actuation is in keeping with the salutary principle of hierarchy
The OSG’s attempt to isolate the dispositive portion from the
of courts. For the Court to find the COMELEC to have abused
body of the Court’s decision in Santiago is futile. It bears
its discretion when it dismissed the amended petition based on
stressing that the dispositive portion must not be read separately
the ruling of this Court in Santiago would be sheer judicial
but in connection with the other portions of the decision of
apostasy.
which it forms a part. To get to the true intent and meaning of a
decision, no specific portion thereof should be resorted to but
the same must be considered in its entirety. Hence, a resolution
or ruling may and does appear in other parts of the decision and As eloquently put by Justice J.B.L. Reyes, “there is only one
not merely in the fallo thereof.19 Supreme Court from whose decisions all other courts should
take their bearings.”20 This truism applies with equal force to
the COMELEC as a quasi-judicial body for, after all, judicial
decisions applying or interpreting laws or the Constitution
The pronouncement in the body of the decision in Santiago
“assume the same authority as the statute itself and, until
permanently enjoining the COMELEC “from entertaining or
authoritatively abandoned, necessarily become, to the extent
taking cognizance of any petition for initiative on amendments
that they are applicable, the criteria which must control the
to the Constitution until a sufficient law shall have been validly
actuations not only of those called upon to abide thereby but
enacted to provide for the implementation of the system” is thus
also of those duty bound to enforce obedience thereto.”21
as much a part of the Court’s decision as its dispositive portion.
The ruling of this Court is of the nature of an in rem judgment
barring any and all Filipinos from filing a petition for initiative
on amendments to the Constitution until a sufficient law shall Petitioners Cannot Ascribe Grave Abuse of Discretion on the
have been val- COMELEC Based on the Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members

of the Court, not the opinion of the minority, prevails. As a
_______________ corollary, the decision of the majority cannot be modified or
reversed by the minority of the members of the Court.

18 Minute Resolution, September 23, 1997, pp. 1-2.

19 Republic v. De los Angeles, No. L-26112, October 4, 1971,
41 SCRA 422.
However, to eschew the binding effect of Santiago, petitioners
argue, albeit unconvincingly, that the Court’s declaration
therein on the inadequacy, incompleteness and insufficiency of
RA 6735 to implement the system of initiative to propose
constitutional amendments

433
_______________
20 Albert v. Court of First Instance of Manila, No. L-26364,
May 29, 1968, 23 SCRA 948.
21 Philippine Constitution Association v. Enriquez, G.R. No.
113105, August 19, 1994, 235 SCRA 506.
434
434
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
did not constitute the majority opinion. This contention is
utterly baseless.
Santiago was concurred in, without any reservation, by eight
Justices,22 or the majority of the members of the Court, who
actually took part in the deliberations thereon. On the other
hand, five Justices,23 while voting for the dismissal of the
Delfin petition on the ground of insufficiency, dissented from
the majority opinion as they maintained the view that RA 6735
was sufficient to implement the system of initiative.
Given that a clear majority of the members of the Court, eight
Justices, concurred in the decision in Santiago, the
pronouncement therein that RA 6735 is “incomplete,
inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned”
constitutes a definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for
reconsideration of the Santiago decision were denied with
finality as only six Justices, or less than the majority, voted to
grant the same. The Resolution expressly stated that the motion
for reconsideration failed “to persuade the requisite majority of
the Court to modify or reverse the Decision of 19 March
1977.”24 In fine, the pronouncement in Santiago as embodied
in the Decision of March 19, 1997 remains the definitive ruling
on the matter.
_______________
22 Then Chief Justice Andres R. Narvasa, Justices Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo,
Santiago M. Kapunan and Justo P. Torres, Jr. fully concurred in
the ponencia of Justice Davide.
23 Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S.
Puno, Ricardo J. Francisco, Jr. and Artemio V. Panganiban
(now Chief Justice).
24 The voting on the motion for reconsideration was as follows:
Six Justices, namely, Chief Justice Narvasa, and Justices
Regalado, Davide, Jr., Romero, Bellosillo and Kapunan, voted
to deny the motions for lack of merit; and six Justices, namely,
Justices Melo, Puno, Mendoza, Francisco, Jr., Regino C.
Hermosisima and Panganiban voted to grant the same. Justice
Vitug maintained his opinion that the matter was not ripe for
judicial adjudication. Justices Teodoro R. Padilla and Torres
inhibited from participation in the deliberations.
435
VOL. 505, OCTOBER 25, 2006
435
Lambino vs. Commission on Elections
It bears stressing that in PIRMA, petitioners prayed for the
Court to resolve the issue posed by them and to re-examine its
ruling as regards RA 6735. By a vote of seven members of the
Court, including Justice Justo P. Torres, Jr. and Justice Jose C.
Vitug, the Court voted that there was no need to resolve the
issue. Five members of the Court opined that there was a need
for the re-examination of said ruling. Thus, the pronouncement
of the Court in Santiago remains the law of the case and binding
on petitioners.
If, as now claimed by the minorty, there was no doctrine
enunciated by the Court in Santiago, the Court should have
resolved to set aside its original resolution dismissing the
petition and to grant the motion for reconsideration and the
petition. But the Court did not. The Court positively and
unequivocally declared that the COMELEC merely followed
the ruling of the Court in Santiago in dismissing the petition
before it. No less than Senior Justice Reynato S. Puno concurred
with the resolution of the Court. It behooved Justice Puno to
dissent from the ruling of the Court on the motion for
reconsideration of petitioners precisely on the ground that there
was no doctrine enunciated by the Court in Santiago. He did
not. Neither did Chief Justice Artemio V. Panganiban, who was
a member of the Court.
That RA 6735 has failed to validly implement the people’s right
to directly propose constitutional amendments through the
system of initiative had already been conclusively settled in
Santiago as well as in PIRMA. Heeding these decisions, several
lawmakers, including no less than Solicitor General Antonio
Eduardo Nachura when he was then a member of the House of
Representatives,25 have filed separate bills to implement the
system of initiative under Section 2, Article XVII of the
Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills
are pending. In the Senate, the three (3) pending bills are: Senate
Bill No. 119 entitled An Act Providing for People’s Initiative to
Amend the Constitution introduced by Senator Luisa “Loi” P.
Ejercito Estrada; Senate Bill No. 2189 entitled An Act
Providing for People’s Initiative
_______________
25 House Bill No. 457 filed by then Rep. Nachura during the
Twelfth Congress.
436
436
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
to Amend the Constitution introduced by Senator Miriam
Defensor Santiago; and Senate Bill No. 2247 entitled An Act
Providing for a System of People’s Initiative to Propose
Amendments to the Constitution introduced by Senator Richard
Gordon.
In the House of Representatives, there are at least four (4)
pending bills: House Bill No. 05281 filed by Representative
Carmen Cari, House Bill No. 05017 filed by Representative
Imee Marcos, House Bill No. 05025 filed by Representative
Roberto Cajes, and House Bill No. 05026 filed by
Representative Edgardo Chatto. These House bills are similarly
entitled An Act Providing for People’s Initiative to Amend the
Constitution.
The respective explanatory notes of the said Senate and House
bills uniformly recognize that there is, to date, no law to govern
the process by which constitutional amendments are introduced
by the people directly through the system of initiative. Ten (10)
years after Santiago and absent the occurrence of any
compelling supervening event, i.e., passage of a law to
implement the system of initiative under Section 2, Article
XVII of the Constitution, that would warrant the reexamination
of the ruling therein, it behooves the Court to apply to the
present case the salutary and well-recognized doctrine of stare
decisis. As earlier shown, Congress and other government
agencies have, in fact, abided by Santiago. The Court can do no
less with respect to its own ruling.
Contrary to the stance taken by petitioners, the validity or
constitutionality of a law cannot be made to depend on the
individual opinions of the members who compose it—the
Supreme Court, as an institution, has already determined RA
6735 to be “incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned” and therefore the same remains to be
so regardless of any change in the Court’s composition.26
Indeed, it is vital that there be stability in the courts in adhering
to decisions deliberately made after ample consideration.
Parties should not be encouraged to seek re-examination of
determined
 “Section 1. (1) The legislative and executive powers shall be
vested in a unicameral Parliament which shall be composed of
_______________ as many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in
accordance with the number of their respective inhabitants, with
26 See Pagdayawon v. Secretary of Justice, G.R. No. 154569, at least three hundred thousand inhabitants per district, and on
September 23, 2002, 389 SCRA 480. the basis of a uniform and progressive ratio. Each district shall
comprise, as far as practicable, contiguous, compact and
adjacent territory, and each province must have at least one
member.
437

_______________
VOL. 505, OCTOBER 25, 2006

27 London Street Tramways Co., Ltd. v. London County

437 Council, [1898] A.C. 375, cited in COOLEY, A TREATISE
ON THE CONSTITUTIONAL LIMITATIONS 117-118.

Lambino vs. Commission on Elections

438

principles and speculate on fluctuation of the law with every

change in the expounders of it.27 438

Proposals to Revise the Constitution, As in the Case of the SUPREME COURT REPORTS ANNOTATED
Petitioners’ Proposal to Change the Form of Government,
Cannot be Effected Through the System of Initiative, Which by
Express Provision of Section 2, Article XVII of the
Constitution, is Limited to Amendments Lambino vs. Commission on Elections

Even granting arguendo the Court, in the present case, abandons

its pronouncement in Santiago and declares RA 6735, taken
“(2) Each Member of Parliament shall be a natural-born citizen
together with other extant laws, sufficient to implement the
of the Philippines, at least twenty-five years old on the day of
system of initiative, still, the amended petition for initiative
the election, a resident of his district for at least one year prior
cannot prosper. Despite the denomination of their petition, the
thereto, and shall be elected by the qualified voters of his district
proposals of petitioners to change the form of government from
for a term of five years without limitation as to the number
the present bicameralpresidential to a unicameral-parliamentary
thereof, except those under the party-list system which shall be
system of government are actually for the revision of the
provided for by law and whose number shall be equal to twenty
Constitution.
per centum of the total membership coming from the
parliamentary districts.”

Petitioners propose to “amend” Articles VI and VII of the

Constitution in this manner:
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution
are hereby amended to read, as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended “Section 1. There shall be a President who shall be the Head of
to read as follows: State. The executive power shall be exercised by a Prime
Minister, with the assistance of the Cabinet. The Prime Minister
shall be elected by a majority of all the Members of Parliament
from among themselves. He shall be responsible to the
Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled
“Transitory Provisions,” which shall read as follows:
Section 1. (1) The incumbent President and Vice President shall
serve until the expiration of their term at noon on the thirtieth
day of June 2010 and shall continue to exercise their powers
under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or
removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both
the incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.
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; provided,
however, that any and all references therein to “Congress,”
“Senate,” “House of Representatives” and
439
VOL. 505, OCTOBER 25, 2006
439
Lambino vs. Commission on Elections
“House of Congress,” “Senator[s] or “Member[s] of the House
of Representatives” and “House of Congress” shall be changed
to read “Parliament”; that any and all references therein to
“Member[s] of the House of Representatives” shall be changed
to read as “Member[s] of Parliament” and any and all references
to the “President” and or “Acting President” shall be changed
to read “Prime Minister.”
Section 3. “Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1,
2, 3 and 4 of Article VII of the 1987 Constitution which are
hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are
hereby deleted, all other Sections of Article VII shall be retained
and renumbered sequentially as Section 2, ad seriatim up to 14,
unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a
unicameral Parliamentary System of government; provided,
however, that any and all references therein to “Congress,”
“Senate,” “House of Representatives” and “Houses of
Congress” shall be changed to read “Parliament”; that any and
all references therein to “Member[s] of Congress,” “Senator[s]”
or “Member[s] of the House of Parliament” and any and all
references to the “President” and of “Acting President” shall be
changed to read “Prime Minister.”
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until
the Members of the regular Parliament shall have been elected
and shall have qualified. It shall be composed of the incumbent
Members of the Senate and the House of Representatives and
the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a
Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and
shall preside over its session for the election of the interim
Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament
from among themselves.
(3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of June
2010.
(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.
voters therein. Certifications allegedly executed by the
respective COMELEC Election Registrars of each municipality
and city verifying these signatures were attached to the petition
for initiative. The verification was allegedly done on the basis
of the list of registered voters contained in the official
COMELEC list used in the immediately preceding election.

“Section 5. (1) The incumbent President, who is the Chief

Executive, shall nominate, from among the members of the The proposition, as formulated by petitioners, to be submitted
interim Parliament, an to the Filipino people in a plebiscite to be called for the said
purpose reads:

440
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI
AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT
440
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
SUPREME COURT REPORTS ANNOTATED ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?29

Lambino vs. Commission on Elections

_______________

interim Prime Minister, who shall be elected by a majority vote

of the members thereof. The interim Prime Minister shall 28 Amended Petition for Initiative, pp. 4-7.
oversee the various ministries and shall perform such powers
and responsibilities as may be delegated to him by the
incumbent President.”
29 Id., at p. 7.

(2) The interim Parliament shall provide for the election of the
441
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government
officials. [Thereafter, the VicePresident, as Member of
Parliament, shall immediately convene the Parliament and shall VOL. 505, OCTOBER 25, 2006
initially preside over its session for the purpose of electing the
Prime Minister, who shall be elected by a majority vote of all
its members, from among themselves.] The duly-elected Prime
441
Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until
the expiration of the term of the incumbent President and Vice
President.”28 Lambino vs. Commission on Elections

Petitioners claim that the required number of signatures of
registered voters have been complied with, i.e., the signatories
to the petition constitute twelve percent (12%) of all the
registered voters in the country, wherein each legislative district
is represented by at least three percent (3%) of all the registered
According to petitioners, the proposed amendment of Articles
VI and VII would effect a more efficient, more economical and
more responsive government. The parliamentary system would
allegedly ensure harmony between the legislative and executive
branches of government, promote greater consensus, and
provide faster and more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 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.
SECTION 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.
It can be readily gleaned that the above provisions set forth
different modes and procedures for proposals for the
amendment and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision
of, the Constitution may be proposed by—
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the
Constitution may be likewise directly proposed by the people
through initiative.
The framers of the Constitution deliberately adopted the terms
“amendment” and “revision” and provided for their respective
modes
442
442
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
and procedures for effecting changes of the Constitution fully
cognizant of the distinction between the two concepts.
Commissioner Jose E. Suarez, the Chairman of the Committee
on Amendments and Transitory Provisions, explained:
“MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is,
“amendment.” However, the Committee finally agreed to use
the terms—“amendment” or “revision” when our attention was
called by the honorable Vice-President to the substantial
difference in the connotation and significance between the said
terms. As a result of our research, we came up with the
observations made in the famous—or notorious—Javellana
doctrine, particularly the decision rendered by Honorable
Justice Makasiar, wherein he made the following distinction
between “amendment” and “revision” of an existing
Constitution: “Revision” may involve a rewriting of the whole
Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The
intention of an act to amend is not the change of the entire
Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of
new conditions or the elimination of parts already considered
obsolete or unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.
So, the Committee finally came up with the proposal that these
two terms should be employed in the formulation of the Article
governing amendments or revisions to the new Constitution.”30
Further, the framers of the Constitution deliberately omitted the
term “revision” in Section 2, Article XVII of the Constitution
because it was their intention to reserve the power to propose a
revision of the Constitution to Congress or the constitutional
convention. Stated in another manner, it was their manifest
intent that revision thereof shall not be undertaken through the
system of initiative. Instead, the revision of the Constitution
shall be done either by Congress or by a constitutional
convention.
_______________
30 I RECORDS OF THE CONSTITUTIONAL
COMMISSION 373.
443
VOL. 505, OCTOBER 25, 2006
443
Lambino vs. Commission on Elections
It is significant to note that, originally, the provision on the
system of initiative was included in Section 1 of the draft Article
on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions. The original draft
provided:
“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
However, after deliberations and interpellations, the members
of the Commission agreed to remove the provision on the
system of initiative from Section 1 and, instead, put it under a
separate provision, Section 2. It was explained that the removal
of the provision on initiative from the other “traditional modes”
of changing the Constitution was precisely to limit the former
(system of initiative) to amendments to the Constitution. It was
emphasized that the system of initiative should not extend to
revision.
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
_______________
31 Id., at p. 371.
444
444 which contemplates a total overhaul of the Constitution. That
was the sense conveyed by the Committee.

SUPREME COURT REPORTS ANNOTATED

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
Lambino vs. Commission on Elections
initiation to amend, which is given to the public, would only
apply to amendments?

as embodied in Section 1. The committee members felt that this

system of initiative should be limited to amendments to the
MR. SUAREZ. That is right. Those were the terms envisioned
Constitution and should not extend to the revision of the entire
by the Committee.33
Constitution, so we removed it from the operation of Section 1
of the proposed Article on Amendment or Revision. x x x32

_______________

The intention to exclude “revision” of the Constitution as a

mode that may be undertaken through the system of initiative
was reiterated and made clear by Commissioner Suarez in 32 Id., at p. 386.
response to a suggestion of Commissioner Felicitas Aquino:

33 Id., at p. 392.
MR. SUAREZ. Section 2 must be interpreted together with the
provisions of Section 4, except that in Section 4, as it is
presently drafted, there is no take-off date for the 60-day and
445
90-day periods.

VOL. 505, OCTOBER 25, 2006

MS. AQUINO. Yes. In other words, Section 2 is another
alternative mode of proposing amendments to the Constitution
which would further require the process of submitting it in a
plebiscite, in which case it is not selfexecuting. 445

MR. SUAREZ. No, not unless we settle and determine the take- Lambino vs. Commission on Elections
off period.

Then Commissioner Hilario P. Davide, Jr. (later Chief Justice)

MS. AQUINO. In which case, I am seriously bothered by also made the clarification with respect to the observation of
providing this process of initiative as a separate section in the Commissioner Regalado Maambong:
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
MR. MAAMBONG. My first question: Commissioner
another separate section as if it were a self-executing provision?
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
MR. SUAREZ. We would be amenable except that, as we the words “amendments” and “revision”?
clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a 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.”34
After several amendments, the Commission voted in favor of
the following wording of 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.
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(3) The Congress, upon a vote of three-fourths of all its
Members; or
(4) A constitutional convention.
SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative, upon a
petition of at least twelve
_______________
34 Id., at pp. 402-403.
446
446
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
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.
The final text of Article XVII on Amendments or Revisions
clearly makes a substantial differentiation not only between the
two terms but also between two procedures and their respective
fields of application. Ineluctably, the system of initiative under
Section 2, Article XVII as a mode of effecting changes in the
Constitution is strictly limited to amendments—not to a
revision—thereof.
As opined earlier, the framers of the Constitution, in providing
for “amendment” and “revision” as different modes of changing
the fundamental law, were cognizant of the distinction between
the two terms. They particularly relied on the distinction made
by Justice Felix Antonio in his concurring opinion in Javellana
v. Executive Secretary,35 the controversial decision which gave
imprimatur to the 1973 Constitution of former President
Ferdinand E. Marcos, as follows:

“There is clearly a distinction between revision and amendment
of an existing constitution. Revision may involve a rewriting of
the whole constitution. The act of amending a constitution, on
the other hand, envisages a change of only specific provisions.
The intention of an act to amend is not the change of the entire
constitution, but only the improvement of specific parts of the
existing constitution of the addition of provisions deemed
essential as a consequence of new conditions or the elimination
of parts already considered obsolete or unresponsive to the
needs of the times. The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and
economic concepts.”36
Other elucidation on the distinction between “amendment” and
“revision” is enlightening. For example, Dean Vicente G.
Sinco, an
_______________
35 No. L-36142, March 31, 1973, 50 SCRA 30.
36 Id., at p. 367.
447
VOL. 505, OCTOBER 25, 2006
447
Lambino vs. Commission on Elections
eminent authority on political law, distinguished the two terms
in this manner:
“Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the
factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
The act of amending a constitution, on the other hand, envisages
a change of only a few specific provisions. The intention of an
act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The
intention rather is to improve the specific parts of the existing
constitution or to add to it provisions deemed essential on
account of changed conditions or to suppress portions of it that
seemed obsolete, or dangerous, or misleading in their effect.”37
In the United States, the Supreme Court of Georgia in Wheeler
v. Board of Trustees38 had the occasion to make the distinction
between the two terms with respect to Ga.L. 1945, an
instrument which “amended” the 1877 Constitution of Georgia.
It explained the term “amendment:”
“Amendment” of a statute implies its survival and not
destruction. It repeals or changes some provision, or adds
something thereto. A law is amended when it is in whole or in
part permitted to remain, and something is added to or taken
from it, or it is in some way changed or altered to make it more
complete or perfect, or to fit it the better to accomplish the
object or purpose for which it was made, or some other object
or purpose.”39
On the other hand, the term “revision” was explained by the said
US appellate court:
_______________
37 SINCO, PHILIPPINEPOLITICAL LAW 43-44.
38 37 S.E.2d 322 (1946).
39 Id., at p. 330. It is thus clear that what distinguishes revision from amendment
is not the quantum of change in the document. Rather, it is the
fundamental qualitative alteration that effects revision. Hence,
I must reject the puerile argument that the use of the plural form
448
of “amendments” means that a revision can be achieved by the
introduction of a multiplicity of amendments!”41

448
Given that revision necessarily entails a more complex,
substantial and far-reaching effects on the Constitution, the
SUPREME COURT REPORTS ANNOTATED framers thereof wisely withheld the said mode from the system
of initiative. It should be recalled that it took the framers of the
present Constitution four

Lambino vs. Commission on Elections

_______________

“x x x When a house is completely demolished and another is

erected on the same location, do you have a changed, repaired
and altered house, or do you have a new house? Some of the 40 Id.
materials contained in the old house may be used again, some
of the rooms may be constructed the same, but this does not
alter the fact that you have altogether another or a new house.
41 Sounding Board, Philippine Daily Inquirer, April 3, 2006.
We conclude that the instrument as contained in Ga.L. 1945,
pp. 8 to 89, inclusive, is not an amendment to the constitution
of 1877; but on the contrary it is a completely revised or new
constitution.”40 449

Fairly recently, Fr. Joaquin Bernas, SJ, a member of the VOL. 505, OCTOBER 25, 2006
Constitutional Commission, expounded on the distinction
between the two terms thus:

449

“An amendment envisages an alteration of one or a few specific

and separable provisions. The guiding original intention of an
Lambino vs. Commission on Elections
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 months from June 2, 1986 until October 15, 1986 to come up
guiding original intention and plan contemplate a re- with the draft Constitution which, as described by the venerable
examination of the entire document—or of provisions of the Justice Cecilia Muñoz Palma, the President of the
document (which have overall implications for the entire Constitutional Commission of 1986, “gradually and
document or for the fundamental philosophical underpinnings painstakingly took shape through the crucible of sustained
of the document)—to determine how and to what extent it sometimes passionate and often exhilarating debates that
should be altered. Thus, for instance, a switch from the intersected all dimensions of the national life.”42
presidential system to a parliamentary system would be a
revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral
Evidently, the framers of the Constitution believed that a
system to a unicameral system because of its effect on other
revision thereof should, in like manner, be a product of the same
important provisions of the Constitution.
extensive and intensive study and debates. Consequently, while
providing for a system of initiative where the people would
directly propose amendments to the Constitution, they entrusted
the formidable task of its revision to a deliberative body, the
Congress or Constituent Assembly.
The Constitution is the fundamental law of the state, containing
the principles upon which the government is founded, and
regulating the division of sovereign powers, directing to what
persons each of those powers is to be confided and the manner
in which it is to be exercised.43 The Philippines has followed
the American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a
written organic instrument, under which governmental powers
are both conferred and circumscribed.44
The Constitution received its force from the express will of the
people. An overwhelming 16,622,111, out of 21,785,216 votes
cast during the plebiscite, or 76.30% ratified the present
Constitution on February 2, 1987.45 In expressing that will, the
Filipino people have incorporated therein the method and
manner by which the same can be amended and revised, and
when the electorate have incorporated into the fundamental law
the particular manner in which the same may be altered or
changed, then any course which
_______________
42 Introduction to the Journal of the Constitutional
Commission.
43 BLACK, CONSTITUTIONAL LAW 1-2, citing 1 BOUV.
INST. 9.
44 SCHWARTZ, CONSTITUTIONAL LAW 1.
45 Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June
8, 1987.
450
450
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
disregards that express will is a direct violation of the
fundamental law.46
Further, these provisions having been incorporated in the
Constitution, where the validity of a constitutional amendment
or revision depends upon whether such provisions have been
complied with, such question presents for consideration and
determination a judicial question, and the courts are the only
tribunals vested with power under the Constitution to determine
such question.47
Earlier, it was mentioned that Article XVII, by the use of the
terms “amendment” and “revision,” clearly makes a
differentiation not only between the two terms but also between
two procedures and their respective fields of application. On
this point, the case of McFadden v. Jordan48 is instructive. In
that case, a “purported initiative amendment” (referred to as the
proposed measure) to the State Constitution of California, then
being proposed to be submitted to the electors for ratification,
was sought to be enjoined. The proposed measure, denominated
as “California Bill of Rights,” comprised a single new article
with some 208 subsections which would repeal or substantially
alter at least 15 of the 25 articles of the California State
Constitution and add at least four new topics. Among the likely
effects of the proposed measure were to curtail legislative and
judicial functions, legalize gaming, completely revise the
taxation system and reduce the powers of cities, counties and
courts. The proposed measure also included diverse matters as
ministers, mines, civic centers, liquor control and naturopaths.
The Supreme Court of California enjoined the submission of the
proposed measure to the electors for ratification because it was
not an “amendment” but a “revision” which could only be
proposed by a convention. It held that from an examination of
the proposed measure itself, considered in relation to the terms
of the California State Constitution, it was clear that the
proposed initiative enactment amounted substantially to an
attempted revision, rather than
_______________ difficulty that the force needed to induce action is sufficient also
to explode the machine. Hence, the problem of the Constitution
maker is, in this particular, one of the most difficult in our whole
system, to reconcile the requisites for progress with the
46 See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).
requisites for safety.50

47 Id.
Like in McFadden, the present petition for initiative on
amendments to the Constitution is, despite its denomination,
one for its revision. It purports to seek the amendment only of
48 196 P.2d 787 (1948). Articles VI and VII of the Constitution as well as to provide
transitory provisions. However, as will be shown shortly, the
amendment of these two provisions will necessarily affect other
numerous provisions of the Constitution particularly those
451
pertaining to the specific powers of Congress and the President.
These powers would have to be transferred to the Parliament
and the Prime Minister and/or President, as the
VOL. 505, OCTOBER 25, 2006

_______________
451

49 Id., at p. 798.
Lambino vs. Commission on Elections

50 Ellingham v. Dye, 99 N.E. 1 (1912).

amendment, thereof; and that inasmuch as the California State
Constitution specifies (Article XVIII §2 thereof) that it may be
revised by means of constitutional convention but does not
452
provide for revision by initiative measure, the submission of the
proposed measure to the electorate for ratification must be
enjoined.
452

As piercingly enunciated by the California State Supreme Court

in McFadden, the differentiation required (between amendment SUPREME COURT REPORTS ANNOTATED
and revision) is not merely between two words; more accurately
it is between two procedures and between their respective fields
of application. Each procedure, if we follow elementary
Lambino vs. Commission on Elections
principles of statutory construction, must be understood to have
a substantial field of application, not to be a mere alternative
procedure in the same field. Each of the two words, then, must
be understood to denote, respectively, not only a procedure but case may be. More than one hundred (100) sections will be
also a field of application appropriate to its procedure.49 affected or altered thereby:

Provisions regulating the time and mode of effecting organic
changes are in the nature of safety-valves—they must not be so
adjusted as to discharge their peculiar function with too great
facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such
1. Section 19 of Article III (Bill of Rights) on the power of
Congress to impose the death penalty for compelling reasons
involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress
to provide for securing the secrecy and sanctity of the ballot as
well as a system for absentee voting;
3. All 32 Sections of Article VI on the Legislative Department;
4. All 23 Sections of Article VII on the Executive Department;
5. The following Sections of Article VIII (Judicial Department):
—Section 2 on power of Congress to define, prescribe and
apportion the jurisdiction of various courts;
—Section 7 on the power of Congress to prescribe the
qualifications of judges of lower courts;
—Section 8 on the composition of Judicial Bar Council (JBC)
which includes representatives of Congress as ex officio
members and on the power of the President to appoint the
regular members of the JBC;
—Section 9 on the power of the President to appoint the
members of the Supreme Court and judges of lower courts;
—Section 16 on duty of Supreme Court to make annual report
to the President and Congress.
6. The following Sections of Article IX (Constitutional
Commissions);
—(B) Section 3 on duty of Civil Service Commission to make
annual report to the President and Congress;
—(B) Section 5 on power of Congress to provide by law for the
standardization of compensation of government officials;
—(B) Section 8 which provides in part that “no public officer
shall accept, without the consent of Congress, any present,
emolument, etc. x x x”
—(C) Section 1 on the power of the President to appoint the
Chairman and Commissioners of the Commission on Elections
with the consent of the Commission on Appointments;
—(C) Section 2 (7) on the power of the COMELEC to
recommend to Congress measures to minimize election
spending x x x;
453
VOL. 505, OCTOBER 25, 2006
453
Lambino vs. Commission on Elections
—(C) Section 2 (8) on the duty of the COMELEC to
recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action x x x;
—(C) Section 2 (9) on the duty of the COMELEC to submit to
the President and Congress a report on the conduct of election,
plebiscite, etc.;
—(C) Section 5 on the power of the President, with the
favorable recommendation of the COMELEC, to grant pardon,
amnesty, parole, or suspension of sentence for violation of
election laws, rules and regulations;
—(C) Section 7 which recognizes as valid votes cast in favor of
organization registered under party-list system;
—(C) Section 8 on political parties, organizations or coalitions
under the party-list system;
—(D) Section 1 (2) on the power of the President to appoint the
Chairman and Commissioners of the Commission on Audit
(COA) with the consent of the Commission of Appointments;
—Section 4 on duty of the COA to make annual report to the —Section 19 on the duty of the first Congress elected under the
President and Congress. Constitution to pass the organic act for autonomous regions in
Muslim Mindanao and the Cordilleras.

7. The following Sections of Article X (Local Government):

8. The following Sections of Article XI (Accountability of
—Section 3 on the power of Congress to enact a local Public Officers):
government code;
—Section 2 on the impeachable officers (President,
VicePresident, etc.);

—Section 4 on the power of the President to exercise general

supervision over local government units (LGUs);
—Section 3 on impeachment proceedings (exclusive power of
the House to initiate complaint and sole power of the Senate to
try and decide impeachment cases);
—Section 5 on the power of LGUs to create their own sources
of income x x x, subject to such guidelines as Congress may
provide;
—Section 9 on the power of the President to appoint the
Ombudsman and his deputies;

—Section 11 on the power of Congress to create special

metropolitan political subdivisions;
—Section 16 which provides in part that “x x x no loans or
guaranty shall be granted to the President, Vice-President, etc.

—Section 14 on the power of the President to provide for

regional development councils x x x;
—Section 17 on mandatory disclosure of assets and liabilities
by public officials including the President, Vice-President, etc.
—Section 16 on the power of the President to exercise general
supervision over autonomous regions;
9. The following Sections of Article XII (National Economy
and Patrimony):

—Section 18 on the power of Congress to enact organic act for —Section 2 on the power of Congress to allow, by law, small-
each autonomous region as well as the power of the President scale utilization of natural resources and power of the President
to appoint the representatives to the regional consultative to enter into agreements with foreign-owned corporations and
commission; duty to notify Congress of every contract;

454 —Section 3 on the power of Congress to determine size of lands

of public domain;

454
—Section 4 on the power of Congress to determine specific
limits of forest lands;
SUPREME COURT REPORTS ANNOTATED

—Section 5 on the power of Congress to provide for

Lambino vs. Commission on Elections applicability of customary laws;
—Section 9 on the power of Congress to establish an
independent economic and planning agency to be headed by the
President; —Section 4 on the power of Congress to prescribe retention
limits in agrarian reform;

—Section 10 on the power of Congress to reserve to Filipino

citizens or domestic corporations (at least 60% Filipino-owned) —Section 18 (6) on the duty of the Commission on Human
certain areas of investment; Rights to recommend to Congress effective measures to
promote human rights;

—Section 11 on the sole power of Congress to grant franchise

for public utilities; —Section 19 on the power of Congress to provide for other
cases to fall within the jurisdiction of the Commission on
Human Rights.

455

11. The following Sections of Article XIV (Education, Science

and Technology, etc.):
VOL. 505, OCTOBER 25, 2006
—Section 4 on the power of Congress to increase Filipino
equity participation in educational institutions;
455

—Section 6 which provides that subject to law and as Congress

may provide, the Government shall sustain the use of Filipino
Lambino vs. Commission on Elections
as medium of official communication;

—Section 15 on the power of Congress to create an agency to

—Section 9 on the power of Congress to establish a national
promote viability of cooperatives;
language commission;

—Section 16 which provides that Congress shall not, except by

—Section 11 on the power of Congress to provide for incentives
general law, form private corporations;
to promote scientific research.

—Section 17 on the salaries of the President, Vice-President,

12. The following Sections of Article XVI (General
etc. and the power of Congress to adjust the same;
Provisions):

—Section 2 on the power of Congress to adopt new name for

—Section 20 on the power of Congress to establish central the country, new national anthem, etc.;
monetary authority.

—Section 5 (7) on the tour of duty of the Chief of Staff which

10. The following Sections of Article XIII (Social Justice and may be extended by the President in times of war or national
Human Rights): emergency declared by Congress;

—Section 1 on the mandate of Congress to give highest priority

to enactment of measures that protect and enhance the right of
456
people x x x
 to a consideration of the entire constitution and the procedure
for effecting such change; while amendment refers only to
456 particular provisions to be added to or to be altered in a
constitution.52

SUPREME COURT REPORTS ANNOTATED

For clarity and accuracy, however, it is necessary to reiterate
below Dean Sinco’s more comprehensive differentiation of the
Lambino vs. Commission on Elections terms:

—Section 11 on the power of Congress to regulate or prohibit
monopolies in mass media;
—Section 12 on the power of Congress to create consultative
body to advise the President on indigenous cultural
communities.
“Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may
_______________

13. The following Sections of Article XVII (Amendments or

Revisions): 51 Dissenting Opinion of Justice Puno, p. 36.

—Section 1 on the amendment or revision of Constitution by

Congress;
52 Id., at p. 39.

—Section 2 on the duty of Congress to provide for the

457
implementation of the system of initiative;

VOL. 505, OCTOBER 25, 2006

—Section 3 on the power of Congress to call constitutional
convention to amend or revise the Constitution.

457

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that “the big bulk
of the 1987 Constitution will not be affected.”51 Petitioners’
proposition, while purportedly seeking to amend only Articles
VI and VII of the Constitution and providing transitory
provisions, will, in fact, affect, alter, replace or repeal other
numerous articles and sections thereof. More than the
quantitative effects, however, the revisory character of
petitioners’ proposition is apparent from the qualitative effects
it will have on the fundamental law.
Lambino vs. Commission on Elections
produce, the factor that characterizes it as an act of revision is
the original intention and plan authorized to be carried out. That
intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be
altered or suppressed or whether the whole document should be
replaced with an entirely new one.

I am not impervious to the commentary of Dean Vicente G.

Sinco that the revision of a constitution, in its strict sense, refers
The act of amending a constitution, on the other hand, envisages SUPREME COURT REPORTS ANNOTATED
a change of only a few specific provisions. The intention of an
act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The
Lambino vs. Commission on Elections
intention rather is to improve the specific parts of the existing
constitution or to add to it provisions deemed essential on
account of changed conditions or to suppress portions of it that
seemed obsolete, or dangerous, or misleading in their effect.”53 Under a unicameral-parliamentary system, however, the
tripartite separation of power is dissolved as there is a fusion
between the executive and legislative powers. Essentially, the
President becomes a mere “symbolic head of State” while the
A change in the form of government from bicameral-
Prime Minister becomes the head of government who is elected,
presidential to unicameral-parliamentary, following the above
not by direct vote of the people, but by the members of the
distinction, entails a revision of the Constitution as it will
Parliament. The Parliament is a unicameral body whose
involve “alteration of different portions of the entire document”
members are elected by legislative districts. The Prime
and “may result in the rewriting of the whole constitution, or
Minister, as head of government, does not have a fixed term of
the greater portion of it, or perhaps only some of its important
office and may only be removed by a vote of confidence of the
provisions.”
Parliament. Under this form of government, the system of
checks and balances is emasculated.

More importantly, such shift in the form of government will,

without doubt, fundamentally change the basic plan and
Considering the encompassing scope and depth of the changes
substance of the present Constitution. The tripartite system
that would be effected, not to mention that the Constitution’s
ordained by our fundamental law divides governmental powers
basic plan and substance of a tripartite system of government
into three distinct but coequal branches: the legislative,
and the principle of separation of powers underlying the same
executive and judicial. Legislative power, vested in Congress
would be altered, if not entirely destroyed, there can be no other
which is a bicameral body consisting of the House of
conclusion than that the proposition of petitioners Lambino, et
Representatives and the Senate, is the power to make laws and
al. would constitute a revision of the Constitution rather than an
to alter them at discretion. Executive power, vested in the
amendment or “such an addition or change within the lines of
President who is directly elected by the people, is the power to
the original instrument as will effect an improvement or better
see that the laws are duly executed and enforced. Judicial
carry out the purpose for which it was framed.”54 As has been
power, vested in the Supreme Court and the lower courts, is the
shown, the effect of the adoption of the petitioners’ proposition,
power to construe and apply the law when controversies arise
rather than to “within the lines of the original instrument”
concerning what has been done or omitted under it. This
constitute “an improvement or better carry out the purpose for
separation of powers furnishes a system of checks and balances
which it was framed,” is to “substantially alter the purpose and
which guards against the establishment of an arbitrary or
to attain objectives clearly beyond the lines of the Constitution
tyrannical government.
as now cast.”55

_______________
To paraphrase McFadden, petitioners’ contention that any
change less than a total one is amendatory would reduce to the
rubble of absurdity the bulwark so carefully erected and
53 Supra note 38. preserved. A case might, conceivably, be presented where the
question would be occasion to undertake to define with nicety
the line of demarcation; but we have no case or occasion here.

458

_______________

458

54 McFadden v. Jordan, supra note 48.

 1. Contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
55 Id., at p. 799.
2. The proposition;

3. The reason or reasons therefor;

459
4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

VOL. 505, OCTOBER 25, 2006
_______________

459
56 Supra note 41.

Lambino vs. Commission on Elections

460

As succinctly by Fr. Joaquin Bernas, “a switch from the

presidential system to a parliamentary system would be a 460
revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral
system to a unicameral system because of its effect on other
SUPREME COURT REPORTS ANNOTATED
important provisions of the Constitution. It is thus clear that
what distinguishes revision from amendment is not the quantum
of change in the document. Rather, it is the fundamental
qualitative alteration that effects revision.”56 Lambino vs. Commission on Elections

The petition for initiative on amendments to the Constitution
filed by petitioners Lambino, et al., being in truth and in fact a
proposal for the revision thereof, is barred from the system of
initiative upon any legally permissible construction of Section
2, Article XVII of the Constitution.
6. An abstract or summary proposition in not more than one
hundred (100) words which shall be legibly written or printed
at the top of every page of the petition.
Section 7 thereof requires that the signatures be verified in this
wise:

The Petition for Initiative on Amendments to the Constitution

is, on its Face, Insufficient in Form and Substance
Again, even granting arguendo RA 6735 is declared sufficient
to implement the system of initiative and that COMELEC
Resolution No. 2300, as it prescribed rules and regulations on
the conduct of initiative on amendments to the Constitution, is
valid, still, the petition for initiative on amendments to the
Constitution must be dismissed for being insufficient in form
and substance.
Section 5 of RA 6735 requires that a petition for initiative on
the Constitution must state the following:
SEC. 7. Verification of Signatures.—The Election Registrar
shall verify the signatures on the basis of the registry list of
voters, voters’ affidavits and voters’ identification cards used in
the immediately preceding election.
The law mandates upon the election registrar to personally
verify the signatures. This is a solemn and important duty
imposed on the election registrar which he cannot delegate to
any other person, even to barangay officials. Hence, a
verification of signatures made by persons other than the
election registrars has no legal effect.
In patent violation of the law, several certifications submitted IBRAHIM M. MACADATO
by petitioners showed that the verification of signatures was
made, not by the election registrars, but by barangay officials. Election Officer
For example, the certification of the election officer in
Lumbatan, Lanao del Sur reads in full:
(Italics supplied)

LOCAL ELECTION OFFICER’S CERTIFICATION57

The ineffective verification in almost all the legislative districts
in the Autonomous Region of Muslim Mindanao (ARMM)
THIS IS TO CERTIFY that based on the verifications made by alone is shown by the certifications, similarly worded as above-
the Barangay Officials in this City/Municipality, as attested to quoted, of the election registrars of Buldon, Maguindanao;58
by two (2) witnesses from the same Barangays, which is part of Cotabato City (Special Province);59 Datu Odin Sinsuat,
the 2nd Legislative District of the Province of Lanao del Sur, Maguindanao;60 Matanog, Maguindanao;61 Parang,
the names appearing on the attached signature sheets relative to Maguindanao;62 Kabantalan, Maguindanao;63 Upi,
the proposed initiative on Amendments to the 1987 Maguinadano (sic);64 Barira, Maguindanao;65 Sultan,
Constitution, are those of bonafide resident of the said Mastura;66 Ampatuan, Maguindanao;67 Buluan,
Barangays and correspond to the names found in the official list Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang,
of registered voters of the Commission on Elections and/or Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan,
voters’ affidavit and/or voters’ identification cards. Maguindanao;72 Talayan, Maguindanao;73 Gen. S.K.
Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75
Talitay, Maguindanao;76 Guindulungan, Maguindanao;77
Datu Saudi Ampatuan, Maguin-
It is further certified that the total number of signatures of the
registered voters for the City/Municipality of LUMBATAN,
LANAO DEL SUR as appearing in the affixed signatures sheets
is ONE THOUSAND ONE HUNDRED EIGHTY (1,180). _______________

_______________ 58 Annex “1368.”

57 Annex “1363.” 59 Annex “1369.”

461 60 Annex “1370.”

VOL. 505, OCTOBER 25, 2006 61 Annex “1371.”

461 62 Annex “1372.”

Lambino vs. Commission on Elections 63 Annex “1374.”

April 2, 2006 64 Annex “1375.”

65 Annex “1376.”

Lambino vs. Commission on Elections

66 Annex “1377.”

danao;78 Datu Unsay, Maguindanao;79 Pagagawan,

Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan,
67 Annex “1378.” Sulu;82 Jolo, Sulu;83 Maimbung, Sulu;84 Hadji Panglima,
Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan
Caluang, Sulu;88 Luuk, Sulu;89 Panamao, Sulu;90 Pata,
68 Annex “1379.” Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino, Sulu;94
Lugus, Sulu;95 and Pandami, Sulu.96

69 Annex “1380.”
Section 7 of RA 6735 is clear that the verification of signatures
shall be done by the election registrar, and by no one else,
including the barangay officials. The foregoing certifications
70 Annex “1381.” submitted by petitioners, instead of aiding their cause, justify
the outright dismissal of their petition for initiative. Because of
the illegal verifications made by barangay officials in the
71 Annex “1382.” above-mentioned legislative districts, it necessarily follows that
the petition for initiative has failed to comply with the requisite
number of signatures, i.e., at least twelve percent (12%) of the
total number of registered voters, of which every legislative
72 Annex “1383.” district must be represented by at least three percent (3%) of the
registered voters therein.

73 Annex “1385.”
_______________

74 Annex “1387.”
78 Annex “1392.”

75 Annex “1388.”
79 Annex “1393.”

76 Annex “1389.”
80 Annex “1395.”

77 Annex “1391.”
81 Annex “1396.”

462
82 Annex “1397.”

462
83 Annex “1398.”

SUPREME COURT REPORTS ANNOTATED

84 Annex “1399.”

Lambino vs. Commission on Elections

85 Annex “1400.”

Petitioners cannot disclaim the veracity of these damaging

certifications because they themselves submitted the same to
86 Annex “1401.” the COMELEC and to the Court in the present case to support
their contention that the requirements of RA 6735 had been
complied with and that their petition for initiative is on its face
87 Annex “1402.” sufficient in form and substance. They are in the nature of
judicial admissions which are conclusive and binding on
petitioners.97 This being the case, the Court must forthwith
order the dismissal of the petition for initiative for being, on its
88 Annex “1404.” face, insufficient in form and substance. The Court should make
the adjudication entailed by the facts here and now, without
further proceedings, as it has done in other cases.98
89 Annex “1405.”

It is argued by petitioners that, assuming arguendo that the

90 Annex “1406.” COMELEC is correct in relying on Santiago that RA 6735 is
inadequate to cover initiative to the Constitution, this cannot be
used to legitimize its refusal to heed the people’s will. The fact
that there is no enabling law should not prejudice the right of
91 Annex “1407.” the sovereign people to propose amendments to the
Constitution, which right has already been exercised by
6,327,952 voters. The collective and resounding act of the
92 Annex “1408.” particles of sovereignty must not be set aside. Hence, the
COMELEC should be ordered to comply with Section 4, Article
XVII of the 1987 Constitution via a writ of mandamus. The
submission of petitioners, however, is unpersuasive.
93 Annex “1409.”

Mandamus is a proper recourse for citizens who act to enforce

94 Annex “1410.” a public right and to compel the persons of a public duty most
especially when mandated by the Constitution.99 However,
under Section 3, Rule 65 of the 1997 Rules of Court, for a
95 Annex “1411.” petition for mandamus to prosper, it must be shown that the
subject of the petition is a ministerial act or duty and not purely
discretionary on the part of the board, officer or person, and that
petitioner has a well-defined, clear and certain right to warrant
96 Annex “1412.” the grant thereof. A purely ministerial act or

463 _______________

VOL. 505, OCTOBER 25, 2006 97 Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004,
421 SCRA 423.

463
98 See, for example, Mendoza v. Court of Appeals, No. L- Other oppositors-intervenors have alleged that the signatories
62089, March 9, 1988, 158 SCRA 508. did not fully understand what they have signed as they were
misled into signing the signature sheets.

99 Licaros v. Sandiganbayan, G.R. No. 145851, November 22,

2001, 370 SCRA 394. According to the dissenting opinion, the sufficiency of the
petition for initiative and its compliance with the requirements
of RA 6735 on initiative and its implementing rules is a question
that should be
464

_______________
464

100 Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10,

SUPREME COURT REPORTS ANNOTATED
2002, 393 SCRA 639.

Lambino vs. Commission on Elections

101 Teope v. People, G.R. No. 149687, April 14, 2004, 427
SCRA 540.

duty is one which an officer or tribunal performs in a given state

of facts, in a prescribed manner, in obedience to the mandate of
465
a legal authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public official and gives him the
right to decide how or when the duty should be performed, such VOL. 505, OCTOBER 25, 2006
duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the
exercise of an official discretion nor judgment.100
465

To stress, in a petition for mandamus, petitioner must show a

Lambino vs. Commission on Elections
well defined, clear and certain right to warrant the grant
thereof.101 In this case, petitioners failed to establish their right
to a writ of mandamus as shown by the foregoing disquisitions.
resolved by the COMELEC at the first instance. It thus remands
the case to the COMELEC for further proceedings.
Remand of the Case to the COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
To my mind, the remand of the case to the COMELEC is not
The dissenting opinion posits that the issue of whether or not warranted. There is nothing in RA 6735, as well as in
the petition for initiative has complied with the requisite COMELEC Resolution No. 2300, granting that it is valid to
number of signatures of at least twelve percent (12%) of the implement the former statute, that authorizes the COMELEC to
total number of registered voters, of which every legislative conduct any kind of hearing, whether full-blown or trial-type
district must be represented by at least three percent (3%) of the hearing, summary hearing or administrative hearing, on a
registered voters therein, involves contentious facts. The petition for initiative.
dissenting opinion cites the petitioners’ claim that they have
complied with the same while the oppositors-intervenors have
vigorously refuted this claim by alleging, inter alia, that the
signatures were not properly verified or were not verified at all.
Section 41 of COMELEC Resolution No. 2300 provides that
“[a]n initiative shall be conducted under the control and
supervision of the Commission in accordance with Article III
hereof.” Pertinently, Sections 30, 31 and 32 of Article III of the
said implementing rules provide as follows:
Sec. 30. Verification of signatures.—The Election Registrar
shall verify the signatures on the basis of the registry list of
voters, voters’ affidavits and voters’ identification cards used in
the immediately preceding election.
Sec. 31. Determination by the Commission.—The Commission
shall act on the findings of the sufficiency or insufficiency of
the petition for initiative or referendum.
If it should appear that the required number of signatures has
not been obtained, the petition shall be deemed defeated and the
Commission shall issue a declaration to that effect.
If it should appear that the required number of signatures has
been obtained, the Commission shall set the initiative or
referendum in accordance with the succeeding sections.
Sec. 32. Appeal.—The decision of the Commission on the
findings of the sufficiency and insufficiency of the petition for
initiative or referendum may be appealed to the Supreme Court
within thirty (30) days from notice hereof.
Clearly, following the foregoing procedural rules, the
COMELEC is not authorized to conduct any kind of hearing to
receive any evidence for or against the sufficiency of the
petition for initiative. Rather, the foregoing rules require of the
COMELEC to determine the sufficiency or insufficiency of the
petition for initiative on its face. And it has already been shown,
by the annexes submitted by the petitioners
466
466
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
themselves, their petition is, on its face, insufficient in form and
substance. The remand of the case to the COMELEC for
reception of evidence of the parties on the contentious factual
issues is, in effect, an amendment of the abovequoted rules of
the COMELEC by this Court which the Court is not empowered
to do.
The Present Petition Presents a Justiciable Controversy; Hence,
a Non-Political Question. Further, the People, Acting in their
Sovereign Capacity, Have Bound Themselves to Abide by the
Constitution
Political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of
government.102 A political question has two aspects: (1) those
matters that are to be exercised by the people in their primary
political capacity; and (2) matters which have been specifically
designated to some other department or particular office of the
government, with discretionary power to act.103
In his concurring and dissenting opinion in Arroyo v. De
Venecia,104 Senior Associate Justice Reynato S. Puno
explained the doctrine of political question vis-à-vis the express
mandate of the present Constitution for the courts to determine
whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the Government:
“In the Philippine setting, there is more compelling reason for
courts to categorically reject the political question defense when
its interposition will cover up abuse of power. For Section 1,
Article VIII of our Constitution was intentionally cobbled to
empower courts “... to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.” This
_______________
102 Tañada v. Cuenco, 103 Phil. 1051 (1957). Even if the present petition involves the act, not of a
governmental body, but of purportedly more than six million
registered voters who have signified their assent to the proposal
to amend the Constitution, the same still constitutes a justiciable
103 Id.
controversy, hence, a nonpolitical question. There is no doubt
that the Constitution, under Article XVII, has explicitly
provided for the manner or method to effect amendments
104 G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311- thereto, or revision thereof. The question, therefore, of whether
312. there has been compliance with the terms of the Constitution is
for the Court to pass upon.105

467
In the United States, in In re McConaughy,106 the State
Supreme Court of Minnesota exercised jurisdiction over the
petition questioning the result of the general election holding
VOL. 505, OCTOBER 25, 2006
that “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
467 constitutional amendments.” The cases cited were Day-

Lambino vs. Commission on Elections _______________

power is new and was not granted to our courts in the 1935 and 105 Dissenting Opinion of Justice Fernando in Javellana v.
1972 Constitutions. It was also not xeroxed from the US Executive Secretary, supra note 36.
Constitution or any foreign state constitution. The CONCOM
[Constitutional Commission] granted this enormous power to
our courts in view of our experience under martial law where
106 119 N.W. 408 (1909).
abusive exercises of state power were shielded from judicial
scrutiny by the misuse of the political question doctrine. Led by
the eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers of the 468
judiciary vis-à-vis the Executive and the Legislative
departments of government. In cases involving the
proclamation of martial law and suspension of the privilege of
468
habeas corpus, it is now beyond dubiety that the government
can no longer invoke the political question defense.

SUPREME COURT REPORTS ANNOTATED

xxxx

Lambino vs. Commission on Elections

To a great degree, it diminished its [political question doctrine]

use as a shield to protect other abuses of government by
allowing courts to penetrate the shield with new power to ton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State
review acts of any branch or instrumentality of the government v. Powell,110 among other cases.
“. . . to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction.”

There is no denying that “the Philippines is a democratic and

republican State. Sovereignty resides in the people and all
government authority emanates from them.”111 However, I 113 COOLEY, ATREATISE ON THE CONSTITUTIONAL
find to be tenuous the asseveration that “the argument that the LIMITATIONS 56, cited in Ellingham v. Dye, supra.
people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty in its
head. At the very least, the submission constricts the democratic
114 Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
space for the exercise of the direct sovereignty of the
people.”112 In effect, it is theorized that despite the
unambiguous text of Section 2, Article XVII of the Constitution
withholding the power to revise it from the system of initiative, 469
the people, in their sovereign capacity, can conveniently
disregard the said provision.

VOL. 505, OCTOBER 25, 2006

I strongly take exception to the view that the people, in their

sovereign capacity, can disregard the Constitution altogether.
469
Such a view directly contravenes the fundamental constitutional
theory that while indeed “the ultimate sovereignty is in the
people, from whom springs all legitimate authority”;
nonetheless, “by the Constitution which they establish, they not Lambino vs. Commission on Elections
only tie up the hands of their official agencies, but their own
hands as well; and neither the officers of the state, nor the whole
people as an aggregate body, are at liberty to take action in
“Through constitutionalism we placed limits on both our
opposition to this fundamental law.”113 The Constitution, it
political institutions and ourselves, hoping that democracies,
should be remembered, “is the protector of the people, placed
historically always turbulent, chaotic and even despotic, might
on guard by them to save the rights of the people against injury
now become restrained, principled, thoughtful and just. So we
by the people.”114 This is the essence of constitutionalism:
bound ourselves over to a law that we made and promised to
keep. And though a government of laws did not displace
governance by men, it did mean that now men, democratic men,
_______________ would try to live by their word.”115

107 22 Minn. 400 (1876). Section 2, Article XVII of the Constitution on the system of
initiative is limited only to proposals to amend to the
Constitution, and does not extend to its revision. The Filipino
people have bound themselves to observe the manner and
108 96 S.W. 396 (1906).
method to effect the changes of the Constitution. They opted to
limit the exercise of the right to directly propose amendments
to the Constitution through initiative, but did not extend the
109 63 N.J. Law 289. same to the revision thereof. The petition for initiative, as it
proposes to effect the revision thereof, contravenes the
Constitution. The fundamental law of the state prescribes the
limitations under which the electors of the state may change the
110 77 Miss. 543 (1900).
same, and, unless such course is pursued, the mere fact that a
majority of the electors are in favor of a change and have so
expressed themselves, does not work a change. Such a course
111 Section 1, Article II, 1987 Constitution. would be revolutionary, and the Constitution of the state would
become a mere matter of form.116

112 Dissenting Opinion of Justice Puno, p. 49.

The very term Constitution implies an instrument of a
permanent and abiding nature, and the provisions contained
therein for its revision indicated 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.117
The Filipino people have incorporated the safety valves of
amendment and revision in Article XVII of the Constitution.
The Court is mandated to ensure that these safety valves
embodied in the Constitution to guard against improvident and
hasty changes thereof are not easily trifled with. To be sure, by
having overwhelmingly ratified
_______________
115 ALTMAN, ARGUING ABOUTTHELAW 94 (2001),
citing AGRESTO, THE SUPREME
COURTANDCONSTITUTIONAL DEMOCRACY (1984)
116 McBee v. Brady, 100 P. 97 (1909).
117 McFadden v. Jordan, supra note 48.
470
470
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
the Constitution, the Filipino people believed that it is “a good
Constitution” and in the words of the learned Judge Cooley:
“x x x should be beyond the reach of temporary excitement and
popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. Changes in
government are to be feared unless the benefit is certain. As
Montaign says: “All great mutations shake and disorder a state.
Good does not necessarily succeed evil; another evil may
succeed and worse.”118
Indisputably, the issues posed in the present case are of
transcendental importance. Accordingly, I have approached and
grappled with them with full appreciation of the responsibilities
involved in the present case, and have given to its consideration
the earnest attention which its importance demands. I have
sought to maintain the supremacy of the Constitution at
whatever hazard. I share the concern of Chief Justice Day in
Koehler v. Hill:119 “it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be
interposed for the protection of majorities even against
themselves. Constitutions are adopted in times of public repose,
when sober reason holds her citadel, and are designed to check
the surging passions in times of popular excitement. But if
courts could be coerced by popular majorities into a disregard
of their provisions, constitutions would become mere ‘ropes of
sand,’ and there would be an end of social security and of
constitutional freedom. The cause of temperance can sustain no
injury from the loss of this amendment which would be at all
comparable to the injury to republican institutions which a
violation of the constitution would inflict. That large and
respectable class of moral reformers which so justly demands
the observance and enforcement of law, cannot afford to take
its first reformatory
_______________
118 Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v.
Dye, supra.
119 15 N.W. 609 (1883).
471
VOL. 505, OCTOBER 25, 2006
471
Lambino vs. Commission on Elections authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

step by a violation of the constitution. How can it consistently

demand of others obedience to a constitution which it violates _______________
itself? The people can in a short time re-enact the amendment.
In the manner of a great moral reform, the loss of a few years is
nothing. The constitution is the palladium of republican
120 Id., at p. 630.
freedom. The young men coming forward upon the stage of
political action must be educated to venerate it; those already
upon the stage must be taught to obey it. Whatever interest may
be advanced or may suffer, whoever or whatever may be ‘voted 472
up or voted down,’ no sacrilegious hand must be laid upon the
constitution.”120

472

WHEREFORE, I vote to DISMISS the petition in G.R. No.

174153 and to GRANT the petition in G.R. No. 174299.
SUPREME COURT REPORTS ANNOTATED

SEPARATE OPINION
Lambino vs. Commission on Elections
AZCUNA, J.:

The Congress shall provide for the implementation of the

“Why, friends, you go to do you know not what.” exercise of this right.

—Shakespeare, Julius Caesar, Act III, Sc. 2.

Sec. 3. The Congress may, by a vote of two-thirds of all its

Members, call a constitutional convention, or by a majority vote
Article XVII of the Constitution states: of all its Members, submit to the electorate the question of
calling such a convention.

AMENDMENTS OR REVISIONS
Sec. 4. Any amendment to, or revision of, this Constitution
under Section 1 hereof shall be valid when ratified by a majority
of the votes cast in a plebiscite which shall be held not earlier
Section 1. Any amendment to, or revision of, this Constitution
than sixty days nor later than ninety days after the approval of
may be proposed by:
such amendment or revision.

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

Any amendment under Section 2 hereof shall be valid when
members; or
ratified by a majority of the votes cast in a plebiscite which shall
(2) A constitutional convention. be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the
Sec. 2. Amendments to this Constitution may likewise be sufficiency of the petition.
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
This Article states the procedure for changing the Constitution.
represented by at least three per centum of the registered votes
(sic) therein. No amendment under this section shall be
Constitutions have three parts—the Constitution of Liberty,
which states the fundamental rights of the people; the
Constitution of Government, which establishes the structure of
government, its branches and their operation; and the
Constitution of Sovereignty, which provides how the
Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent
powers. So when Congress acts under this provision, it acts not
as a legislature exercising legislative powers. It acts as a
constituent body exercising constituent powers.
The rules, therefore, governing the exercise of legislative
powers do not apply, or do not apply strictly, to the actions
taken under Article XVII.
Accordingly, since Article XVII states that Congress shall
provide for the implementation of the exercise of the people’s
right directly to propose amendments to the Constitution
through initiative, the act of Congress pursuant thereto is not
strictly a legislative action but partakes of a constituent act.
473
VOL. 505, OCTOBER 25, 2006
473
Lambino vs. Commission on Elections
As a result, Republic Act No. 6735, the act that provides for the
exercise of the people of the right to propose a law or
amendments to the Constitution is, with respect to the right to
propose amendments to the Constitution, a constituent measure,
not a mere legislative one.
The consequence of this special character of the enactment,
insofar as it relates to proposing amendments to the
Constitution, is that the requirements for statutory enactments,
such as sufficiency of standards and the like, do not and should
not strictly apply. As long as there is a sufficient and clear intent
to provide for the implementation of the exercise of the right, it
should be sustained, as it is simply a compliance of the mandate
placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735
relating to the procedure for proposing amendments to the
Constitution, can and should be upheld, despite shortcomings
perhaps in legislative headings and standards.
For this reason, I concur in the view that Santiago v. Comelec1
should be re-examined and, after doing so, that the
pronouncement therein regarding the insufficiency or
inadequacy of the measure to sustain a people’s initiative to
amend the Constitution should be reconsidered in favor of
allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima,2
penned by Justice J.B.L. Reyes, in relation to Article 8 of the
Civil Code, that a decision of this Court interpreting a law forms
part of the law interpreted as of the time of its enactment,
Republic Act No. 6735 should be deemed sufficient and
adequate from the start.
This next point to address, there being a sufficient law, is
whether the petition for initiative herein involved complies with
the requirements of that law as well as those stated in Article
XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the
Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where
our people
_______________
1 G.R. No. 127325, March 19, 1997 and June 10, 1997; 270
SCRA 106.
2 100 Phil. 501 (1956). The reason why revisions are not allowed through direct
proposals by the people through initiative is a practical one,
namely, there is no one to draft such extensive changes, since
6.3 million people cannot conceivably come up with a single
474
extensive document through a direct proposal from each of
them. Someone would have to draft it and that is not authorized
as it would not be a direct proposal from the people. Such
474 indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a
Constitutional Convention created under the same provision.
Furthermore, there is a need for such deliberative bodies for
SUPREME COURT REPORTS ANNOTATED
revisions because their proceedings and debates are duly and
officially recorded, so that future cases of interpretations can be
properly aided by resort to the record of their proceedings.
Lambino vs. Commission on Elections

475
directly exercise their sovereign powers, new features set forth
in this People Power Charter, namely, the powers of recall,
initiative and referendum.
VOL. 505, OCTOBER 25, 2006

Nevertheless, this democratic nature of our polity is that of a

475
democracy under the rule of law. This equally important point
is emphasized in the very Preamble to the Constitution, which
states:
Lambino vs. Commission on Elections

“. . . the blessings of . . . democracy under the rule of law . . . .”

Even a cursory reading of the proposed changes contained in
the petition for initiative herein involved will show on its face
that the proposed changes constitute a revision of the
Such is the case with respect to the power to initiate changes in
Constitution. The proposal is to change the system of
the Constitution. The power is subject to limitations under the
government from that which is bicameral-presidential to one
Constitution itself, thus: The power could not be exercised for
that is unicameral-parliamentary.
the first five years after the Constitution took effect and
thereafter can only be exercised once every five years; the
power only extends to proposing amendments but not revisions;
and the power needs an act of Congress providing for its While purportedly only Articles VI, VII, and XVIII are
implementation, which act is directed and mandated. involved, the fact is, as the petition and text of the proposed
changes themselves state, every provision of the Constitution
will have to be examined to see if they conform to the nature of
a unicameralparliamentary form of government and changed
The question, therefore, arises whether the proposed changes in
accordingly if they do not so conform to it. For example, Article
the Constitution set forth in the petition for initiative herein
VIII on Judicial Department cannot stand as is, in a
involved are mere amendments or rather are revisions.
parliamentary system, for under such a system, the Parliament
is supreme, and thus the Court’s power to declare its act a grave
abuse of discretion and thus void would be an anomaly.
Revisions are changes that affect the entire Constitution and not
mere parts of it.
Now, who is to do such examination and who is to do such
changes and how should the changes be worded? The proposed
initiative does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a
prohibited revision but it also suffers from being incomplete
and insufficient on its very face.
It, therefore, in that form, cannot pass muster the very limits
contained in providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which
states in Section 10 that not more than one subject shall be
proposed as an amendment or amendments to the Constitution.
The petition herein would propose at the very least two
subjects—a unicameral legislature and a parliamentary form of
government. Again, for this clear and patent violation of the
very act that provides for the exercise of the power, the
proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view,
separable in nature—a unicameral legislature is one; a
parliamentary form of government is another. The first is a mere
amendment and contains only one subject matter. The second is
clearly a revision that
476
476
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
affects every article and every provision in the Constitution to
an extent not even the proponents could at present fully
articulate. Petitioners Lambino, et al. thus go about proposing
changes the nature and extent of which they do not as yet know
exactly what.
The proposal, therefore, contained in the petition for initiative,
regarding a change in the legislature from a bicameral or two-
chamber body to that of a unicameral or one-chamber body, is
sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this
proposal, the changes are simply one of deletion and insertions,
the wordings of which are practically automatic and non-
discretionary.
As an example, I attach to this opinion an Appendix “A”
showing how the Constitution would read if we were to change
Congress from one consisting of the Senate and the House of
Representatives to one consisting only of the House of
Representatives. It only affects Article VI on the Legislative
Department, some provisions on Article VII on the Executive
Department, as well as Article XI on the Accountability of
Public Officers, and Article XVIII on Transitory Provisions.
These are mere amendments, substantial ones indeed but still
only amendments, and they address only one subject matter.
Such proposal, moreover, complies with the intention and
rationale behind the present initiative, which is to provide for
simplicity and economy in government and reduce the
stalemates that often prevent needed legislation.
For the nonce, therefore, I vote to DISMISS the petition,
without prejudice to the filing of an appropriate initiative to
propose amendments to the Constitution to change Congress
into a unicameral body. This is not say that I favor such a
change. Rather, such a proposal would come within the purview
of an initiative allowed under Article XVII of the Constitution
and its implementing Republic Act, and should, therefore, be
submitted to our people in a plebiscite for them to decide in their
sovereign capacity. After all is said and done, this is what
democracy under the rule of law is about.
477
VOL. 505, OCTOBER 25, 2006
477 regional, and sectoral parties or organizations, and the senators
whose term has not expired, until their term expires.

Lambino vs. Commission on Elections

xxx

APPENDIX “A”
Sec. 8. Unless otherwise provided by law, the regular election
of the Members of the House of Representatives shall be held
on the second Monday of May.
THE 1987

Sec. 9. In case of vacancy in the House of Representatives, a

CONSTITUTION OF THE REPUBLIC OF THE
special election may be called to fill such vacancy in the manner
PHILIPPINES
prescribed by law, but the Member of the House of
Representatives thus elected shall serve only for the unexpired
term.
ARTICLE VI

Sec. 10. The salaries of Members of the House of

THE LEGISLATIVE DEPARTMENT
Section 1. The legislative power shall be vested in the Congress
of the Philippines which shall consist of a House of
Representatives, except to the extent reserved to the people by
the provision on initiative and referendum.
Representatives shall be determined by law. No increase in said
compensation shall take effect until after the expiration of the
full term of all the Members of the House of Representatives
approving such increase.
478

xxx 478

[Sec. 2. Deleted] SUPREME COURT REPORTS ANNOTATED

[Sec. 3. Deleted] Lambino vs. Commission on Elections

[Sec. 4. Deleted]
Section 5. (1) The House of Representatives shall be composed
of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
Sec. 11. A Member of the House of Representatives shall, in all
offenses punishable by not more than six years imprisonment,
be privileged from arrest while the Congress is in session. No
Member shall be questioned nor be held liable in any other place
for any speech or debate in the Congress or in any committee
thereof.
Sec. 12. All Members of the House of Representatives shall,
upon assumption of office, make a full disclosure of their
financial and business interests. They shall notify the House
concerned of a potential conflict of interest that may arise from (4) THE House shall keep a Journal of its proceedings, and from
the filing of a proposed legislation of which they are authors. time to time publish the same, excepting such parts as may, in
its judgment, affect

Sec. 13. No Member of the House of Representatives may hold

any other office or employment in the Government, or any 479
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. Neither
VOL. 505, OCTOBER 25, 2006
shall he be appointed to any office which may have been created
or the emoluments thereof increased during the term for which
he was elected.
479

Sec. 14. No Member of the House of Representatives may

personally appear as counsel before any court of justice or Lambino vs. Commission on Elections
before the Electoral Tribunal, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise
national security; and the yeas and nays on any question shall,
or special privilege granted by the Government, or any
at the request of one-fifth of the Members present, be entered in
subdivision, agency, or instrumentality thereof, including any
the Journal.
government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter
before any office of the Government for his pecuniary benefit
or where he may be called upon to act on account of his office. THE House shall also keep a Record of its proceedings.

xxx [Subsec. (5) deleted.]

Sec. 16. (1). The House of Representatives shall elect its xxx
Speaker by a majority vote of all its Members. THE House shall
choose such other officers as it may deem necessary.

Sec. 17. The House of Representatives shall have an Electoral

(2) A majority of THE House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day
and may compel the attendance of absent Members in such
manner, and under such penalties, as THE House may provide.
(3) THE House may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or expel
a Member. A penalty of suspension, when imposed, shall not
exceed sixty days.
Tribunal which shall be the sole judge of all contests relating to
the election, returns, and qualifications of its Members. THE
Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated
by the Chief Justice, and the remaining six shall be Members of
the House of Representatives, who shall be chosen on the basis
of proportional representation from the political parties and the
parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
Sec. 18. There shall be a Commission on Appointments
consisting of the Speaker of the House, as ex officio Chairman,
and TWENTY-FOUR (24) Members of the House of
Representatives, elected by THE House on the basis of
proportional representation from the political parties and parties
or organizations registered under the party-list system
represented therein. The chairman of the Commission shall not
vote, except in case of a tie. The Commission shall act on all
appointments submitted to it within thirty session days of the
Congress from their submission. The Commission shall rule by
a majority vote of all the Members.
Sec. 19. The Electoral Tribunal and the Commission on
Appointments shall be constituted within thirty days after the
House of Representatives shall have been organized with the
election of the Speaker. The Commission on Appointments
shall meet only while the Congress is in session, at the call of
its Chairman or a majority of all its Members, to discharge such
powers and functions as are herein conferred upon it.
xxx
Sec. 21. The House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The
rights of persons appearing in, or affected by, such inquiries
shall be respected.
Sec. 22. The heads of departments may, upon their own
initiative, with the consent of the President, or upon the request
of THE House, as the rules of THE House shall provide, appear
before and be heard by such House on any matter pertaining to
their departments. Written questions shall be submitted to the
Speaker of the House of Representatives at least three days
480
480
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
before their scheduled appearance. Interpellations shall not be
limited to written questions, but may cover matters related
thereto. When the security of the State or the public interest so
requires and the President so states in writing, the appearance
shall be conducted in executive session.
Sec. 23. (1) The Congress, by a vote of two-thirds, shall have
the sole power to declare the existence of a state of war.
xxx
[Sec. 24 deleted]
xxx
Sec. 25. (5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the Speaker of the
House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by
law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in
other items of their respective appropriations.
xxx
(2) No bill passed by THE House shall become a law unless it
has passed three readings on separate days, and printed copies
thereof in its final form have been distributed to its Members
three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote thereon
shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.
xxx
Sec. 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the
same he shall sign it; otherwise, he shall veto it and return the
same with his objections to the House OF
REPRESENTATIVES, which shall enter the objections at large
in its Journal and proceed to reconsider it. If, after such
reconsideration, twothirds of all the Members of THE House
shall agree to pass the bill, it shall become a law. In all such
cases, the votes of THE House shall be determined by yeas or
nays, and the names of the Members voting for or against shall
be entered in its Journal. The President shall communicate his
veto of any bill to the House OF REPRESENTATIVES within
thirty days after the date of receipt thereof, otherwise, it shall
become a law as if he had signed it.
xxx
481
VOL. 505, OCTOBER 25, 2006
481
Lambino vs. Commission on Elections
ARTICLE VII
EXECUTIVE DEPARTMENT
xxx
Sec. 4. The returns of every election for President and Vice-
President, duly certified by the board of canvassers of each
province or city, shall be transmitted to the Congress, directed
to the SPEAKER OF THE HOUSE OF REPRESENTATIVES.
Upon receipt of the certificates of canvass, the SPEAKER OF
THE HOUSE shall, not later than thirty days after the day of the
election, open all the certificates in the presence of the House
of Representatives in public session, and the Congress, upon
determination of the authenticity and due execution thereof in
the manner provided by law, canvass the votes.
xxx
Sec. 7. Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have died or
become permanently disabled, the Speaker of the House of
Representatives, shall act as President until a President or a
Vice-President shall have been chosen and qualified.
xxx
Sec. 8. In case of death, permanent disability, removal from
office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term. In case of
death, permanent disability, removal from office or resignation
of both the President and Vice-President, the Speaker of the
House of Representatives, shall then act as President until the
President or Vice-President shall have been elected and
qualified.
xxx
Sec. 9. Whenever there is a vacancy in the Office of the
VicePresident during the term for which he was elected, the
President shall nominate a Vice-President from among the
Members of the House of Representatives who shall assume
office upon confirmation by a majority vote of all the Members
of THE House.
xxx
Sec. 11. Whenever the President transmits to the Speaker of the
House of Representatives his written declaration that he is
unable to discharge the powers and duties of his office, and until
he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as
Acting President.
482
482
SUPREME COURT REPORTS ANNOTATED Sec. 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the HOUSE OF REPRESENTATIVES.

Lambino vs. Commission on Elections

xxx

Whenever a majority of all the Members of the Cabinet transmit

to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers ARTICLE XI
and duties of his office, the VicePresident shall immediately
assume the powers and duties of the office as Acting President.

ACCOUNTABILITY OF PUBLIC OFFICERS

Thereafter, when the President transmits to the Speaker of the

House of Representatives his written declaration that no
xxx
inability exists, he shall reassume the powers and duties of his
office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the Speaker of the House
of Representatives, their written declaration that the President 483
is unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
VOL. 505, OCTOBER 25, 2006
accordance with its rules and without need of call.

483
xxx

Lambino vs. Commission on Elections

Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of Sec. 3. (4) In case the verified complaint or resolution of
invasion or rebellion, when the public safety requires it, he may, impeachment is filed by at least one-third of all the Members of
for a period not exceeding sixty days, suspend the privilege of the House, the same shall constitute the Articles of
the writ of habeas corpus or place the Philippines or any part Impeachment, and trial shall forthwith proceed.
thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a report
xxx
in person or in writing to the Congress. The Congress, by a vote
of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the (6) The HOUSE OF REPRESENTATIVES shall have the sole
initiative of the President, the Congress may, in the same power to try and decide all cases of impeachment. When sitting
manner, extend such proclamation or suspension for a period to for that purpose, the MEMBERS shall be on oath or affirmation.
be determined by the Congress, if the invasion or rebellion shall When the President of the Philippines is on trial, the Chief
persist and public safety requires it. Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of
twothirds of all the Members.
xxx

xxx

ARTICLE XVIII
TRANSITORY PROVISIONS
xxx
Sec. 2. The Members of the House of Representatives, and the
local officials first elected under this Constitution shall serve
until noon of June 30, 1992.
xxx
Sec. 4. All existing treaties or international agreements which
have not been ratified shall not be renewed or extended without
the concurrence of at least two-thirds of all the Members of the
HOUSE OF REPRESENTATIVES.
xxx
Sec. 17. Until the Congress provides otherwise, the President
shall receive an annual salary of three hundred thousand pesos;
the VicePresident, the Speaker of the House of Representatives,
and the Chief Justice of the Supreme Court, two hundred forty
thousand pesos each; Members of the House of
Representatives, the Associate Justices of the Supreme Court,
and the Chairmen of the Constitutional Commissions, two
hundred four thousand pesos each; and the Members of the
Constitutional Commissions, one hundred eighty thousand
pesos each.
xxx
Sec. 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning military bases, foreign military bases,
troops, or facilities shall not be allowed
484
484
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
in the Philippines except under a treaty duly concurred in by the
HOUSE OF REPRESENTATIVES and, when the Congress so
requires; ratified by a majority of the votes cast by the people
in a national referendum held for that purpose, and recognized
as a treaty by the other contracting State. x x x
SEPARATE OPINION
TINGA, J.:
I join in full the opinion of Senior Associate Justice Puno. Its
enviable sang-froid, inimitable lucidity, and luminous
scholarship are all so characteristic of the author that it is hardly
a waste of pen and ink to write separately if only to express my
deep admiration for his disquisition. It is compelling because it
derives from the fundamental democratic ordinance that
sovereignty resides in the people, and it seeks to effectuate that
principle through the actual empowerment of the sovereign
people. Justice Puno’s opinion will in the short term engender
reactions on its impact on present attempts to amend the
Constitution, but once the political passion of the times have
been shorn, it will endure as an unequivocal message to the
taongbayan that they are to be trusted to chart the course of their
future.
Nothing that I inscribe will improve on Justice Puno’s opinion.
I only write separately to highlight a few other points which also
inform my vote to grant the petitions.
I.
I agree with Justice Puno that Santiago v. COMELEC1 and
PIRMA v. COMELEC2 had not acquired value as precedent
and should be reversed in any case. I add that the Court has long
been mindful of the rule that it necessitates a majority, and not Court to “fill the open spaces” in Santiago further highlights
merely a plurality, in order that a decision can stand as that decision’s status as an unfortunate aberration.
precedent. That principle has informed the members of this
Court as they deliberated and voted upon contentious petitions,
even if this consideration is not ultimately reflected on the final
I am mindful of the need to respect stare decisis, to the point of
draft released for promulgation.
having recently decried a majority ruling that was clearly
minded to reverse several precedents but refused to explicitly
say so.7 Yet the
_______________

_______________
1 G.R. No. 127325, 19 March 1997, 270 SCRA 106.

3 Petitioner Aumentado aptly refers to the comment of the late

2 G.R. No. 129754, 23 September 1997. Senator Raul Roco that the Santiago ruling “created a third
specie of invalid laws, a mongrel type of constitutional but
inadequate and, therefore, invalid law.” Memorandum for
Aumentado, p. 54.
485

4 See CIVIL CODE, Art. 9.

VOL. 505, OCTOBER 25, 2006

5 456 Phil. 1; 408 SCRA 560 (2003).

485

6 Id., at p. 10; p. 566; citing I ARTURO M. TOLENTINO,

Lambino vs. Commission on Elections
CIVIL CODE OF THE PHILIPPINES 43 (1990) and JUSTICE
BENJAMIN N. CARDOZO, THE NATURE OF
THEJUDICIAL PROCESS 113 (1921).
The curious twist to Santiago and PIRMA is that for all the
denigration heaped upon Rep. Act No. 6735 in those cases, the
Court did not invalidate any provision of the statute. All the
7 See Dissenting Opinion, Manila International Airport
Court said then was that the law was “inadequate”. Since this
Authority v. City of Parañaque, G.R. No. 155650, 20 July 2006,
“inadequate” law was not annulled by the Court, or repealed by
495 SCRA 591. In my ponencia in Globe Telecom v. NTC,
Congress, it remained part of the statute books.3
G.R. No. 143964, 26 July 2004, 435 SCRA 110, I further
observed that while an administrative agency was not enslaved
to obey its own precedent, it was “essential, for the sake of
I maintain that even if Rep. Act No. 6735 is truly “inadequate,” clarity and intellectual honesty, that if an administrative agency
the Court in Santiago should not have simply let the decides inconsistently with
insufficiency stand given that it was not minded to invalidate
the law itself. Article 9 of the Civil Code provides that “[n]o
judge or court shall decline to render judgment by reason of the
486
silence, obscurity or insufficiency of the laws.”4 As explained
by the Court recently in Reyes v. Lim,5 “[Article 9] calls for the
application of equity, which[, in the revered Justice Cardozo’s
words,] ‘fills the open spaces in the law.’”6 Certainly, any court 486
that refuses to rule on an action premised on Rep. Act No. 6735
on the ground that the law is “inadequate” would have been
found in grave abuse of discretion. The previous failure by the
SUPREME COURT REPORTS ANNOTATED

Lambino vs. Commission on Elections
principle is not immutable.8 The passionate words of Chief
Justice Panganiban in Osmeña v. COMELEC9 bear quoting:
“Before I close, a word about stare decisis. In the present case,
the Court is maintaining the ad ban to be consistent with its
previous holding in NPC vs. Comelec. Thus, respondent urges
reverence for the stability of judicial doctrines. I submit,
however, that more important than consistency and stability are
the verity, integrity and correctness of jurisprudence. As Dean
Roscoe Pound explains, “Law must be stable but it cannot stand
still.” Verily, it must correct itself and move in cadence with the
march of the electronic age. Error and illogic should not be
perpetuated. After all, the Supreme Court, in many cases, has
deviated from stare decisis and reversed previous doctrines and
decisions.10 It should do no less in the present case.”
_______________
previous action, that it explain thoroughly why a different result
is warranted, or if need be, why the previous standards should
no longer apply or should be overturned.” Id., at p. 144.
Happily, Justice Puno’s present opinion expressly elucidates
why Santiago should be reversed.
8 As Justice Frankfurter once wrote: “We recognize that stare
decisis embodies an important social policy. It represents an
element of continuity in law, and is rooted in the psychologic
need to satisfy reasonable expectations. But stare decisis is a
principle of policy and not a mechanical formula of adherence
to the latest decision, however recent and questionable, when
such adherence involves collision with a prior doctrine more
embracing in its scope, intrinsically sounder, and verified by
experience… This Court, unlike the House of Lords, has from
the beginning rejected a doctrine of disability at self-
correction.” Helvering v. Hallock, 309 U.S. 106, 119-121
(1940).
9 351 Phil. 692; 288 SCRA 447 (1998).
10 As Chief Justice Panganiban then cited: “For instance,
Ebralinag vs. Division Superintendent of Schools of Cebu, 219
SCRA 256, March 1, 1993, reversed the Court’s 34-year-old
doctrine laid down in Gerona vs. Secretary of Education, 106
Phil. 2, August 12, 1959, and upheld the right of Jehovah’s
Witnesses “to refuse to salute the Philippine flag on account of
their religious beliefs.” Similarly, Olaguer vs. Military
Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-
year-old ruling in Aquino, Jr. vs. Military Commission, 63
SCRA 546, May 9, 1975, which recognized the jurisdiction of
military tribunals to try civilians for offenses allegedly
committed during martial law. The Court likewise reversed
itself in EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when
it vacated its earlier ruling in National Housing Authority vs.
Reyes, 123 SCRA 245, June 29, 1983, on the validity of certain
presidential
487
VOL. 505, OCTOBER 25, 2006
487
Lambino vs. Commission on Elections
Santiago established a tenet that the Supreme Court may affirm
a law as constitutional, yet declare its provisions as inadequate
to accomplish the legislative purpose, then barred the
enforcement of the law. That ruling is erroneous, illogical, and
should not be perpetuated.11
II.
Following Justice Puno’s clear demonstration why Santiago
should not be respected as precedent, I agree that the
COMELEC’s failure to take cognizance of the petitions as
mandated by Rep. Act No. 6735 constitutes grave abuse of
discretion correctible through the petitions before this Court.
The Court has consistently held in cases such as Abes v.
COMELEC,12 Sanchez v. COMELEC,13 and Sambarani v.
COMELEC14 that “the functions of the COMELEC under the
Constitution are essentially executive and administrative in
nature.”15 More pertinently, in Buac v. COMELEC,16 the
Court held that the jurisdiction of the COMELEC relative to the
enforcement and administration of a law relative to a plebiscite
fell under the jurisdiction of the poll body under its
constitutional mandate “to enforce and administer all laws and
regulations relative to the conduct of a x x x plebiscite.”17
_______________
decrees regarding the determination of just compensation. In
the much earlier case of Philippine Trust Co. vs. Mitchell, 59
Phil. 30, December 8, 1933, the Court revoked its holding in
Involuntary Insolvency of Mariano Velasco & Co., 55 Phil.
353, November 29, 1930, regarding the relation of the
insolvency law with the then Code of Civil Procedure and with
the Civil Code. Just recently, the Court, in Kilosbayan vs.
Morato, 246 SCRA 540, July 17, 1995, also abandoned the
earlier grant of standing to petitioner-organization in
Kilosbayan vs. Guingona, 232 SCRA 110, May 5, 1994.” Id.,
at p. 780; p. 540.
11 Ibid.
12 129 Phil. 507, 516; 21 SCRA 1252, 1258 (1967).
13 G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987,
153 SCRA 67, 75.
14 G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15 Ibid.
16 G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17 Id., at p. 104. Relatedly, the Court held that “[c]ontests which
do not involve the election, returns and qualifications of elected
officials are not
488
488
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
Rep. Act No. 6735 is a law relative to the conduct of a
plebiscite. The primary task of the COMELEC under Rep. Act
No. 6735 is to enforce and administer the said law, functions
that are essentially executive and administrative in nature. Even
the subsequent duty of the COMELEC of determining the
sufficiency of the petitions after they have been filed is
administrative in character. By any measure, the COMELEC’s
failure to perform its executive and administrative functions
under Rep. Act No. 6735 constitutes grave abuse of discretion.
III.
It has been argued that the subject petitions for initiative are
barred under Republic Act No. 6735 as they allegedly embrace
more than one subject. Section 10 of Rep. Act No. 6735
classifies as a “prohibited measure,” a petition submitted to the
electorate that embraces more than one subject.18 On this point,
reliance is apparently placed on the array of provisions which
are to be affected by the amendments proposed in the initiative
petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-
enshrined constitutional principle that the laws passed by
Congress “shall embrace only one subject which shall be
expressed in the title thereof”.19 The one-subject requirement
under the Constitution is satisfied if all the parts of the statute
are related, and are germane to the subject matter expressed in
the title, or as long as they are not inconsistent with or foreign
to the general subject and title.20 An act having a single general
subject, indicated in the title, may contain any number of
provisions, no matter how diverse they may be, so long as they
are
_______________
subjected to the exercise of the judicial or quasi-judicial powers
of courts or administrative agencies”. Ibid.
18 See e.g., Memorandum of Oppositors-Intervenors Senators
Pimentel, Jr., et al., pp. 19-22; Memorandum for Intervenor
Senate of the Philippines, pp. 34-35.
19 See 1987 CONST., Art. VI, Sec. 26(1). See also Section
19[1]. 1987 CONST, Art. VIII.
20 See e.g., Sumulong v. Commission on Elections, 73 Phil.
288, 291 (1941); Cordero v. Hon. Jose Cabatuando, et al., 116
Phil. 736, 741; 6 SCRA 418, 422 (1962).
489
VOL. 505, OCTOBER 25, 2006
489
Lambino vs. Commission on Elections
not inconsistent with or foreign to the general subject, and may
be considered in furtherance of such subject by providing for
the method and means of carrying out the general object.21
The precedents governing the one-subject, one-title rule under
the Constitution should apply as well in the interpretation of
Section 10 of Rep. Act No. 6735. For as long as it can be
established that an initiative petition embraces a single general
subject, the petition may be allowed no matter the number of
constitutional provisions proposed for amendment if the
amendments are germane to the subject of the petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions
expressly propose the changing of the form of government from
bicameral-presidential to unicameral-parliamentary. Such a
proposal may strike as comprehensive, necessitating as it will
the reorganization of the executive and legislative branches of
government, nevertheless it ineluctably encompasses only a
single general subject still.
The 1987 Constitution (or any constitution for that matter) is
susceptible to division into several general spheres. To cite the
broadest of these spheres by way of example, Article III
enumerates the guaranteed rights of the people under the Bill of
Rights; Articles VI, VII and VIII provide for the organizational
structure of government; while Articles II, XII, XIII & XIV, XV
and XVI enunciate policy principles of the State. What would
clearly be prohibited under Section 10 of Rep. Act No. 6735 is
an initiative petition that seeks to amend provisions which do
not belong to the same sphere. For example, had a single
initiative petition sought not only to change the form of
government from presidential to parliamentary but also to
amend the Bill of Rights, said petition would arguably have
been barred under Section 10, as that petition ostensibly
embraces more than one subject, with each subject bearing no
functional relation to the other. But that is not the case with the
present initiative petitions.
_______________
21 See Tio v. Videogram Regulatory Board, G.R. No. L-75697,
18 June 1987, 151 SCRA 208, 214-215; citing Public Service
Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also
Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161,
10 December 2003, 417 SCRA 503, 519.
490
490
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
Neither can it be argued that the initiative petitions embrace
more than one subject since the proposed amendments seek to
affect two separate branches of government. The very purpose
of the initiative petitions is to fuse the powers of the executive
and legislative branches of government; hence, the amendments
intended to effect such general intent necessarily affects the two
branches. If it required that to propose a shift in government
from presidential to parliamentary, the amendments to Article
VII (Executive Branch) have to be segregated to a different
petition from that which would propose amendments to Article
VI (Legislative Branch), then the result would be two initiative
petitions—both subject to separate authentications,
consideration and even plebiscites, all to effect one general
proposition. This scenario, which entertains the possibility that
one petition would ultimately fail while the other succeeds,
could thus allow for the risk that the executive branch could be
abolished without transferring executive power to the
legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical
underpinnings of Section 10. The Constitution indubitably
grants the people the right to seek amendment of the charter
through initiative, and mandates Congress to “provide for the
implementation of the exercise of this right.” In doing so,
Congress may not restrict the right to initiative on grounds that
are not provided for in the Constitution. If for example the
implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that
prohibition should not be sustained. Congress is tasked with the
implementation, and not the restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided
for as a bar to amendment under the Constitution. Arguments
can be supplied for the merit of such a requirement, since it
would afford a measure of orderliness when the vital question
of amending the Constitution arises. The one-subject
requirement does allow the voters focus when deliberating
whether or not to vote for the amendments. These factors of
desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the
right to initiative not contemplated by the Constitution. Short of
invalidating the requirement, a better course of action would be
to
491
VOL. 505, OCTOBER 25, 2006
491
Lambino vs. Commission on Elections
insist upon its liberal interpretation. After all, the Court has
consistently adhered to a liberal interpretation of the one-
subject, one-title rule.22 There is no cause to adopt a stricter
interpretative rule with regard to the one-subject rule under
Section 10 of Rep. Act No. 6735.
IV.
During the hearing on the petitions, the argument was raised
that provisions of the Constitution amended through initiative
would not have the benefit of a reference source from the record
of a deliberative body such as Congress or a constitutional
convention. It was submitted that this consideration influenced
the Constitutional Commission as it drafted Section 2, Article
XVII, which expressly provided that only amendments, and not
revisions, may be the subject of initiative petitions.
This argument clearly proceeds from a premise that accords
supreme value to the record of deliberations of a constitutional
convention or commission in the interpretation of the charter.
Yet if the absence of a record of deliberations stands as so
serious a flaw as to invalidate or constrict processes which
change a constitution or its provisions, then the entire initiative
process authorized by the Constitution should be scarlet-
marked as well.
Even if this position can be given any weight in the
consideration of these petitions, I would like to point out that
resort to the records of deliberations is only one of many aids to
constitutional construction. For one, it should be abhorred if the
provision under study is itself clear, plain, and free from
ambiguity. As the Court held in Civil Liberties Union v.
Executive Secretary:23
“While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only
_______________
22 “As a policy, this Court has adopted a liberal construction of
the one title—one subject rule.” Tatad v. Secretary of
Department of Energy, 346 Phil. 321, 359; 282 SCRA 337, 349
(1997).
23 Civil Liberties Union v. Executive Secretary, G.R. Nos.
83896 & 83815; 22 February 1991, 194 SCRA 317.
492
492
_______________
24 Id., at p. 337. I have previously expressed my own doubts in
relying on the constitutional or legislative deliberations as a
definitive source of construction. “It is easy to selectively cite
passages, sometimes out of their proper context, in order to
assert a misleading interpretation. The effect can be dangerous.
Minority or solitary views, anecdotal ruminations, or even the
occasional crude witticisms, may improperly acquire the mantle
of legislative intent by the sole virtue of their publication in the
authoritative congressional record. Hence, resort to legislative
deliberations is allowable when the statute is crafted in such a
manner as to leave room for doubt on the real intent of the
legislature.” Southern Cross Cement Corporation v. Phil.
Cement Manufacturers, G.R. No. 158540, 8 July 2004, 434
SCRA 65, 95.

SUPREME COURT REPORTS ANNOTATED

25 77 Phil. 192 (1946).

Lambino vs. Commission on Elections

26 Id., at p. 215.

when other guides fail as said proceedings are powerless to vary

the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention “are of value as showing the 27 Civil Liberties Union v. Executive Secretary, supra note 23,
views of the individual members, and as indicating the reasons at p. 338; citing Household Finance Corporation v. Shaffner,
for their votes, but they give us no light as to the views of the 203 S.W. 2d 734, 356 Mo. 808.
large majority who did not talk . . . We think it safer to construe
the constitution from what appears upon its face.”24
493

Even if there is need to refer to extrinsic sources in aid of

constitutional interpretation, the constitutional record does not
VOL. 505, OCTOBER 25, 2006
provide the exclusive or definitive answer on how to interpret
the provision. The intent of a constitutional convention is not
controlling by itself, and while the historical discussion on the
floor of the constitutional convention is valuable, it is not 493
necessarily decisive. The Court has even held in Vera v.
Avelino25 that “the proceedings of the [constitutional]
convention are less conclusive of the proper construction of the
Lambino vs. Commission on Elections
fundamental law than are legislative proceedings of the proper
construction of a statute, since in the latter case it is the intent
of the legislature that courts seek, while in the former courts are
endeavoring to arrive at the intent of the people through the If there is fear in the absence of a constitutional record as guide
discussions and deliberations of their representatives.”26 The for interpretation of any amendments adopted via initiative,
proper interpretation of a constitution depends more on how it such absence would not preclude the courts from interpreting
was understood by the people adopting it than the framers’ such amendments in a manner consistent with how courts
understanding thereof.27 generally construe the Constitution. For example, reliance will
be placed on the other provisions of the Constitution to arrive
at a harmonized and holistic constitutional framework. The
constitutional record is hardly the Rosetta Stone that unlocks
the meaning of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the
sufficiency of the initiative petitions should be remanded to the
COMELEC. Rep. Act No. 6735 clearly reposes on the
COMELEC the task of determining the sufficiency of the
petitions, including the ascertainment of whether twelve percent
(12%) of all registered voters, including three percent (3%) of
registered voters in every legislative district have indeed signed
the initiative petitions.28 It should be remembered that the
COMELEC had dismissed the initiative petitions outright, and
had yet to undertake the determination of sufficiency as
required by law.
It has been suggested to the end of leading the Court to stifle the
initiative petitions that the Court may at this juncture pronounce
the initiative petitions as insufficient. The derivation of the
factual predicates leading to the suggestion is uncertain,
considering that the trier of facts, the COMELEC in this
instance, has yet to undertake the necessary determination. Still,
the premise has been floated that petitioners have made
sufficient admissions before this Court that purportedly
established the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental
question that we should ask, I submit, is whether it serves well
on the Court to usurp trier of facts even before the latter
exercises its functions? If the Court, at this stage, were to
declare the petitions as in-
_______________
28 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987
CONST., Sec. 2, Art. XVI.
494
494
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
sufficient, it would be akin to the Court pronouncing an accused
as guilty even before the lower court trial had began.
Matugas v. COMELEC29 inveighs against the propriety of the
Court uncharacteristically assuming the role of trier of facts,
and resolving factual questions not previously adjudicated by
the lower courts or tribunals:
“[P]etitioner in this case cannot “enervate” the COMELEC’s
findings by introducing new evidence before this Court, which
in any case is not a trier of facts, and then ask it to substitute its
own judgment and discretion for that of the COMELEC.
The rule in appellate procedure is that a factual question may
not be raised for the first time on appeal, and documents
forming no part of the proofs before the appellate court will not
be considered in disposing of the issues of an action. This is true
whether the decision elevated for review originated from a
regular court or an administrative agency or quasi-judicial
body, and whether it was rendered in a civil case, a special
proceeding, or a criminal case. Piecemeal presentation of
evidence is simply not in accord with orderly justice.”30
Any present determination by the Court on the sufficiency of
the petitions constitutes in effect a trial de novo, the Justices of
the Supreme Court virtually descending to the level of trial
court judges. This is an unbecoming recourse, and it simply is
not done.
VI.
The worst position this Court could find itself in is to acquiesce
to a plea that it make the choice whether to amend the
Constitution or not. This is a matter which should not be left to
fifteen magistrates who have not been elected by the people to
make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987
Constitution. It is merely a vote to allow the people to directly
exercise that option. In fact, the position of Justice Puno which
I share would not even guarantee that the Lambino and Sigaw
ng Bayan initiative petitions would be submitted to the people
in a referendum. The
_______________
29 G.R. No. 151944, January 20, 2004, 420 SCRA 365.
30 Id., at p. 377. Emphasis supplied.
495
VOL. 505, OCTOBER 25, 2006
495
Lambino vs. Commission on Elections
COMELEC will still have to determine the sufficiency of the
petition. Among the questions which still have to be determined
by the poll body in considering the sufficiency of the petitions
is whether twelve percent (12%) of all registered voters
nationwide, including three percent (3%) of registered voters in
every legislative district, have indeed signed the initiative
petitions.31
And even should the COMELEC find the initiative petitions
sufficient, the matter of whether the Constitution should be
amended would still depend on the choice of the electorate. The
oppositors are clearly queasy about some of the amendments
proposed, or the imputed motives behind the amendments. A
referendum, should the COMELEC find the petitions as
sufficient, would allow them to convey their uneasiness to the
public at large, as well as for the proponents of the amendment
to defend their proposal. The campaign period alone would
allow the public to be involved in the significant deliberation on
the course our nation should take, with the ensuing net benefit
of a more informed, more politically aware populace. And of
course, the choice on whether the Constitution should be
amended would lie directly with the people. The initiative
process involves participatory democracy at its most elemental;
wherein the consequential debate would not be confined to the
august halls of Congress or the hallowed chambers of this
Court, as it would spill over to the public squares and town
halls, the academic yards and the Internet blogosphere, the
dining areas in the homes of the affluent and the impoverished
alike.
The prospect of informed and widespread discussion on
constitutional change engaged in by a people who are actually
empowered in having a say whether these changes should be
enacted, gives fruition to the original vision of pure democracy,
as formulated in Athens two and a half millennia ago. The great
hero of Athenian democracy, Pericles, was recorded as saying
in his famed Funeral Oration, “We differ from other states in
regarding the man who keeps aloof from public life not as
‘private’ but as useless; we decide or debate, care-
_______________
31 See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987
CONST., Sec. 2, Art. XVI.
496
496
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
fully and in person all matters of policy, and we hold, not that
words and deeds go ill together, but that acts are foredoomed to
failure when undertaken undiscussed.”32
Unfortunately, given the highly politicized charge of the times,
it has been peddled that an act or vote that assists the initiative
process is one for the willful extinction of democracy or
democratic institutions. Such a consideration should of course
properly play its course in the public debates and deliberations
attendant to the initiative process. Yet as a result of the harum-
scarum, the temptation lies heavy for a member of this Court
perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure
that initiates the amendment or revision of the fundamental law,
even at the expense of the people’s will or what the Constitution
allows. A vote so oriented takes the conservative path of least
resistance, even as it may gain the admiration of those who do
not want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of
the Constitution and the elements of democracy on which our
rule of law is founded. Direct democracy, as embodied in the
initiative process, is but a culmination of the evolution over the
centuries of democratic rights of choice and self-governance.
The reemergence of the Athenian democratic ideal after
centuries of tyrannical rules arrived very slowly, the benefits
parceled out at first only to favored classes. The Magna Carta
granted limited rights to self-determination and selfgovernance
only to a few English nobles; the American Constitution was
originally intended to give a meaningful voice only to free men,
mostly Caucasian, who met the property-holding requirements
set by the states for voting. Yet even the very idea of popular
voting, limited as it may have already been within the first few
years of the American Union, met resistance from no less a
revered figure as Alexander Hamilton, to whom the progressive
historian Howard Zinn attributes these disconcerting words:
_______________
32 From the “Funeral Oration” by Pericles, as recorded by
Thucydides in the History of the Peloponnesian War.
497
VOL. 505, OCTOBER 25, 2006
497
Lambino vs. Commission on Elections
“The voice of the people has been said to be the voice of God;
and however generally this maxim has been quoted and
believed, it is not true in fact. The people are turbulent and
changing; they seldom judge or determine right. Give therefore
to the first class a distinct permanent share in the government…
Can a democratic assembly who annually revolve in the mass
of the people be supposed steadily to pursue the public good?
Nothing but a permanent body can check the imprudence of
democracy…”33
This utterly paternalistic and bigoted view has not survived into
the present age of modern democracy where a person’s poverty,
color, or gender no longer impedes the exercise of full
democratic rights. Yet a democracy that merely guarantees its
citizens the right to live their lives freely is incomplete if there
is no corresponding allowance for a means by which the people
have a direct choice in determining their country’s direction.
Initiative as a mode of amending a constitution may seem
incompatible with representative democracy, yet it embodies an
even purer form of democracy. Initiative, which our 1987
Constitution saw fit to grant to the people, is a progressive
measure that is but a continuation of the line of evolution of the
democratic ideal.
By allowing the sovereign people to directly propose and enact
constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under
law. This right granted to over sixty million Filipinos cannot be
denied by the votes of less than eight magistrates for reasons
that bear no cogitation on the Constitution.
I VOTE to GRANT the petitions.
DISSENTING OPINION
CHICO-NAZARIO, J.:
“The people made the constitution, and the people can unmake
it. It is the creature of their will, and lives only by their will. But
this supreme and irresistible power to make or unmake, resides
only in the whole body of the people; not in any subdivision of
them.”
_______________
33 H. Zinn, APEOPLE’SHISTORY OF THE UNITED
STATES (1980 ed.), at 95.
498
498
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
—Marshall, C.J., Cohens v. Virginia (1821, US) 6
Wheat 264, 389, 5 L ed. 257, 287.
I express my concurrence in the discussions and conclusions
presented in the persuasive and erudite dissent of Justice
Reynato S. Puno. However, I make some additional
observations in connection with my concurrence.
While it is but proper to accord great respect and reverence to
the Philippine Constitution of 1987 for being the supreme law
of the land, we should not lose sight of the truth that there is an
ultimate authority to which the Constitution is also
subordinate—the will of the people. No less than its very first
paragraph, the Preamble,1 expressly recognizes that the
Constitution came to be because it was ordained and
promulgated by the sovereign Filipino people. It is a principle
reiterated yet again in Article II, Section 1, of the Constitution,
which explicitly declares that “[t]he Philippines is a democratic
and republican State. Sovereignty resides in the people and all
government authority emanates from them.” Thus, the
resolution of the issues and controversies raised by the instant
Petition should be guided accordingly by the foregoing
principle.
If the Constitution is the expression of the will of the sovereign
people, then, in the event that the people change their will, so
must the Constitution be revised or amended to reflect such
change. Resultantly, the right to revise or amend the
Constitution inherently resides in the sovereign people whose
will it is supposed to express and embody. The Constitution
itself, under Article XVII, provides for the means by which the
revision or amendment of the Constitution may be proposed and
ratified.
_______________
1 The full text of the Preamble reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society and
establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop
our patrimony, and secure to ourselves and our posterity the
blessings of independence and democracy under the rule of law
and a regime of truth, justice, freedom, love, equality, and
peace, do ordain and promulgate this Constitution.
499
VOL. 505, OCTOBER 25, 2006
499
Lambino vs. Commission on Elections
Under Section 1 of the said Article, proposals to amend or
revise the Constitution may be made (a) by Congress, upon a
vote of threefourths of all its Members, or (b) by constitutional
convention. The Congress and the constitutional convention
possess the power to propose amendments to, or revisions of,
the Constitution not simply because the Constitution so
provides, but because the sovereign people had chosen to
delegate their inherent right to make such proposals to their
representatives either through Congress or through a
constitutional convention.
On the other hand, the sovereign people, well-inspired and
greatly empowered by the People Power Revolution of 1986,
reserved to themselves the right to directly propose
amendments to the Constitution through initiative, to wit—
“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.”2
The afore-quoted section does not confer on the Filipino people
the right to amend the Constitution because, as previously
discussed, such right is inherent in them. The section only
reduces into writing this right to initiate amendments to the
Constitution where they collectively and willfully agreed in the
manner by which they shall exercise this right: (a) through the
filing of a petition; (b) supported by at least twelve percent
(12%) of the total number of registered voters nationwide; (c)
with each legislative district represented by at least three
percent (3%) of the registered voters therein; (d) subject to the
limitation that no such petition may be filed within five years
after the ratification of the Constitution, and not oftener than
once every five years thereafter; and (e) a delegation to
Congress of the
_______________
2 Article XVII, Constitution.
500
500
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
authority to provide the formal requirements and other details
for the implementation of the right.
It is my earnest opinion that the right of the sovereign people to
directly propose amendments to the Constitution through
initiative is more superior than the power they delegated to
Congress or to a constitutional convention to amend or revise
the Constitution. The initiative process gives the sovereign
people the voice to express their collective will, and when the
people speak, we must be ready to listen. Article XVII, Section
2 of the Constitution recognizes and guarantees the sovereign
people’s right to initiative, rather than limits it. The enabling
law which Congress has been tasked to enact must give life to
the said provision and make the exercise of the right to initiative
possible, not regulate, limit, or restrict it in any way that would
render the people’s option of resorting to initiative to amend the
Constitution more stringent, difficult, and less feasible, as
compared to the other constitutional means to amend or revise
the Constitution. In fact, it is worth recalling that under Article
VI, Section 1 of the Constitution, the legislative power of
Congress is limited to the extent reserved to the people by the
provisions on initiative and referendum.
It is with this frame of mind that I review the issues raised in
the instant Petitions, and which has led me to the conclusions,
in support of the dissent of Justice Puno, that (a) The
Commission on Election (COMELEC) had indeed committed
grave abuse of discretion in summarily dismissing the petition
for initiative to amend the Constitution filed by herein
petitioners Raul L. Lambino and Erico B. Aumentado; (b) The
Court should revisit the pronouncements it made in Santiago v.
Commission on Elections;3 (c) It is the sovereign people’s
inherent right to propose changes to the Constitution, regardless
of whether they constitute merely amendments or a total
revision thereof; and (d) The COMELEC should take
cognizance of Lambino and Aumentado’s petition for initiative
and, in the exercise of its jurisdiction, determine the factual
issues raised by the oppositors before this Court.
_______________
3 G.R. No. 127325, 19 March 1997, 270 SCRA 106.
 constitutional mandate to provide for the implementation of the
right of the people under that system.
501

WHEREFORE, judgment is hereby rendered

VOL. 505, OCTOBER 25, 2006

a) GRANTING the instant petition;

501
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;
Lambino vs. Commission on Elections
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on
I the conduct of initiative or amendments to the Constitution; and

The COMELEC had indeed committed grave abuse of _______________

discretion when it summarily dismissed Lambino and
Aumentado’s petition for initiative entirely on the basis of the
Santiago case which, allegedly, permanently enjoined it from 4 Id., at p. 157.
entertaining or taking cognizance of any petition for initiative
to amend the Constitution in the absence of a sufficient law.

502

After a careful reading, however, of the Santiago case, I believe

in earnest that the permanent injunction actually issued by this
Court against the COMELEC pertains only to the petition for 502
initiative filed by Jesus S. Delfin, and not to all subsequent
petitions for initiative to amend the Constitution.
SUPREME COURT REPORTS ANNOTATED

The Conclusion4 in the majority opinion in the Santiago case

reads— Lambino vs. Commission on Elections

“CONCLUSION d) ORDERING the Commission on Elections to forthwith

DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996

This petition must then be granted, and the COMELEC should
is made permanent as against the Commission on Elections, but
be permanently enjoined from entertaining or taking
is LIFTED as against private respondents.
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.
Resolution on the matter of contempt is hereby reserved.”

We feel, however, that the system of initiative to propose

amendments to the Constitution should no longer be kept in the It is clear from the fallo, as it is reproduced above, that the Court
cold; it should be given flesh and blood, energy and strength. made permanent the Temporary Restraining Order (TRO) it
Congress should not tarry any longer in complying with the issued on 18 December 1996 against the COMELEC. The said
TRO enjoined the COMELEC from proceeding with the Delfin
Petition, and Alberto and Carmen Pedrosa from conducting a
signature drive for people’s initiative.5 It was this restraining
order, more particularly the portion thereof referring to the
Delfin Petition, which was expressly made permanent by the
Court. It would seem to me that the COMELEC and all other
oppositors to Lambino and Aumentado’s petition for initiative
gave unwarranted significance and weight to the first paragraph
of the Conclusion in the Santiago case. The first and second
paragraphs of the Conclusion, preceding the dispositive portion,
merely express the opinion of the ponente; while the definite
orders of the Court for implementation are found in the
dispositive portion.
We have previously held that—
“The dispositive portion or the fallo is what actually constitutes
the resolution of the court and which is the subject of execution,
although the other parts of the decision may be resorted to in
order to determine the ratio decidendi for such a resolution.
Where there is conflict between the dispositive part and the
opinion of the court contained in the text of the decision, the
former must prevail over the latter on the theory that the
dispositive portion is the final order while the opinion is merely
a statement ordering nothing. Hence execution must conform
more particularly to that ordained or decreed in the dispositive
portion of the decision.”6
_______________
5 Id., at p. 124.
6 Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213
SCRA 321, 328329; See also the more recent cases of Republic
v. Nolasco, G.R. No. 155108,
503
VOL. 505, OCTOBER 25, 2006
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Lambino vs. Commission on Elections
Is there a conflict between the first paragraph of the Conclusion
and the dispositive portion of the Santiago case? Apparently,
there is. The first paragraph of the Conclusion states that the
COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on
amendments to the Constitution until the enactment of a valid
law. On the other hand, the fallo only makes permanent the
TRO7 against COMELEC enjoining it from proceeding with
the Delfin Petition. While the permanent injunction
contemplated in the Conclusion encompasses all petitions for
initiative on amendments to the Constitution, the fallo is
expressly limited to the Delfin Petition. To resolve the conflict,
the final order of the Court as it is stated in the dispositive
portion or the fallo should be controlling.
Neither can the COMELEC dismiss Lambino and Aumentado’s
petition for initiative on the basis of this Court’s Resolution,
dated 23 September 1997, in the case of People’s Initiative for
Reform, Modernization and Action (PIRMA) v. The
Commission on Elections, et al.8 The Court therein found that
the COMELEC did not commit grave abuse of discretion in
dismissing the PIRMA Petition for initiative to amend the
Constitution for it only complied with the Decision in the
Santiago case.
It is only proper that the Santiago case should also bar the
PIRMA Petition on the basis of res judicata because PIRMA
participated in the proceedings of the said case, and had
knowledge of and, thus, must be bound by the judgment of the
Court therein. As explained by former Chief Justice Hilario G.
Davide, Jr. in his separate opinion to the Resolution in the
PIRMA case—
“First, it is barred by res judicata. No one aware of the pleadings
filed here and in Santiago v. COMELEC (G.R. No. 127325, 19
March 1997) may plead ignorance of the fact that the former is
substantially identical to the latter, except for the reversal of the
roles played by the principal parties and
_______________
27 April 2005, 457 SCRA 400; and PH Credit Corporation v.
Court of Appeals, 421 Phil. 821; 370 SCRA 155 (2001).

7 Supra note 2 at p. 124.
8 G.R. No. 129754.
504
504
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are
raised and prayed for in both cases.
The principal petitioner here is the PEOPLE’S INITIATIVE
FOR REFORM, MODERNIZATION, AND ACTION
(PIRMA) and Spouses ALBERTO PEDROSA and CARMEN
PEDROSA. PIRMA is self-described as “a nonstock, non-profit
organization duly organized and existing under Philippine laws
with office address at Suite 403, Fedman Suites, 199 Salcedo
Street, Legaspi Village, Makati City,” with “ALBERTO
PEDROSA and CARMEN PEDROSA” as among its
“officers.” In Santiago, the PEDROSAS were made
respondents as founding members of PIRMA which, as alleged
in the body of the petition therein, “proposes to undertake the
signature drive for a people’s initiative to amend the
Constitution.” In Santiago then, the PEDROSAS were sued in
their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was
duly represented at the hearing of the Delfin petition in the
COMELEC. In short, PIRMA was intervenor-petitioner
therein. Delfin alleged in his petition that he was a founding
member of the Movement for People’s Initiative, and under
footnote no. 6 of the decision, it was noted that said movement
was “[l]ater identified as the People’s Initiative for Reforms,
Modernization and Action, or PIRMA for brevity.” In their
Comment to the petition in Santiago, the PEDROSA’S did not
deny that they were founding members of PIRMA, and by their
arguments, demonstrated beyond a shadow of a doubt that they
had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners
PIRMA and the PEDROSAS, as well as the others joining them,
from the operation of the principle of res judicata, which needs
no further elaboration.”9
While the Santiago case bars the PIRMA case because of res
judicata, the same cannot be said to the Petition at bar. Res
judicata is an absolute bar to a subsequent action for the same
cause; and its requisites are: (a) the former judgment or order
must be final; (b) the judgment or order must be one on the
merits; (c) it must have been rendered by a court having
jurisdiction over the subject matter and
_______________
9 Separate Opinion of former Chief Justice Hilario G. Davide,
Jr. to the Resolution, dated 23 September 1997, in G.R. No.
129754, PIRMA v. Commission on Elections, pp. 2-3.
505
VOL. 505, OCTOBER 25, 2006
505
Lambino vs. Commission on Elections
parties; and (d) there must be between the first and second
actions, identity of parties, of subject matter and of causes of
action.10
Even though it is conceded that the first three requisites are
present herein, the last has not been complied with.
Undoubtedly, the Santiago case and the present Petition involve
different parties, subject matter, and causes of action, and the
former should not bar the latter.
In the Santiago case, the petition for initiative to amend the
Constitution was filed by Delfin alone. His petition does not
qualify as the initiatory pleading over which the COMELEC
can acquire jurisdiction, being unsupported by the required
number of registered voters, and actually imposing upon the
COMELEC the task of gathering the voters’ signatures. In the
case before us, the petition for initiative to amend the
Constitution was filed by Lambino and Aumentado, on behalf
of the 6.3 million registered voters who affixed their signatures
on the signature sheets attached thereto. Their petition prays
that the COMELEC issue an Order—
1. Finding the petition to be sufficient pursuant to Section 4,
Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and
English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later
than ninety days after the Certification by the COMELEC of the
sufficiency of the petition, to allow the Filipino people to
express their sovereign will on the proposition.
Although both cases involve the right of the people to initiate
amendments to the Constitution, the personalities concerned
and the other factual circumstances attendant in the two cases
differ. Also dissimilar are the particular prayer and reliefs
sought by the parties from the COMELEC, as well as from this
Court.
For these reasons, I find that the COMELEC acted with grave
abuse of discretion when it summarily dismissed the petition for
_______________
10 Mirpuri v. Court of Appeals, 376 Phil. 628, 650; 318 SCRA
516, 537 (1999).
506
506
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
initiative filed by Lambino and Aumentado. It behooves the
COMELEC to accord due course to a petition which on its face
complies with the rudiments of the law. COMELEC was openly
negligent in summarily dismissing the Lambino and
Aumentado petition. The haste by which the instant Petition
was struck down is characteristic of bad faith, which, to my
mind, is a patent and gross evasion of COMELEC’s positive
duty. It has so obviously copped out of its duty and
responsibility to determine the sufficiency thereof and sought
protection and justification for its craven decision in the
supposed permanent injunction issued against it by the Court in
the Santiago case. The COMELEC had seemingly expanded the
scope and application of the said permanent injunction, reading
into it more than what it actually states, which is surprising,
considering that the Chairman and majority of the members of
COMELEC are lawyers who should be able to understand and
appreciate, more than a lay person, the legal consequences and
intricacies of the pronouncements made by the Court in the
Santiago case and the permanent injunction issued therein.
No less than the Constitution itself, under the second paragraph
of Article XVII, Section 4, imposes upon the COMELEC the
mandate to set a date for plebiscite after a positive
determination of the sufficiency of a petition for initiative on
amendments to the Constitution, viz.—
SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the
sufficiency of the petition.
As a rule, the word “shall” commonly denotes an imperative
obligation and is inconsistent with the idea of discretion, and
that the presumption is that the word “shall” when used, is
mandatory.11 Under the above-quoted constitutional provision, Santiago case, especially as regards the supposed insufficiency
it is the mandatory or or inadequacy of Republic Act No. 6735 as the enabling law for
the implementation of the people’s right to initiative on
amendments to the Constitution.
_______________

The declaration of the Court that Republic Act No. 6735 is

insufficient or inadequate actually gave rise to more questions
11 Pioneer Texturizing Corporation v. National Labor Relations
rather than answers, due to the fact that there has never been a
Commission, G.R. No. 118651, 16 October 1997; 280 SCRA
judicial precedent wherein the Court invalidated a law for
806.
insufficiency or inadequacy. The confusion over such a
declaration thereby impelled former Chief Justice Davide, Jr.,
the ponente in the Santiago case, to provide the following
507 clarification in his separate opinion to the Resolution in the
PIRMA case, thus—

VOL. 505, OCTOBER 25, 2006

“Simply put, Santiago did, in reality, declare as unconstitutional
that portion of R.A. No. 6735 relating to Constitutional
initiatives for failure to comply with the “completeness and
507
sufficient standard tests” with respect to permissible delegation
of legislative power or subordinate legislation. How-

Lambino vs. Commission on Elections

508

imperative obligation of the COMELEC to (a) determine the

sufficiency of the petition for initiative on amendments to the
508
Constitution and issue a certification on its findings; and (b) in
case such petition is found to be sufficient, to set the date for
the plebiscite on the proposed amendments not earlier than 60
days nor later than 90 days after its certification. SUPREME COURT REPORTS ANNOTATED

The COMELEC should not be allowed to shun its constitutional Lambino vs. Commission on Elections
mandate under the second paragraph of Article XVII, Section
4, through the summary dismissal of the petition for initiative
filed by Lambino and Aumentado, when such petition is
ever petitioners attempt to twist the language in Santiago, the
supported by 6.3 million signatures of registered voters. Should
conclusion is inevitable; the portion of R.A. No. 6735 was held
all of these signatures be authentic and representative of the
to be unconstitutional.”
required percentages of registered voters for every legislative
district and the whole nation, then the initiative is a true and
legitimate expression of the will of the people to amend the
Constitution, and COMELEC had caused them grave injustice It is important to note, however, that while the Decision in the
by silencing their voice based on a patently inapplicable Santiago case pronounced repeatedly that Republic Act No.
permanent injunction. 6735 was insufficient and inadequate, there is no categorical
declaration therein that the said statute was unconstitutional.
The express finding that Republic Act No. 6735 is
unconstitutional can only be found in the separate opinion of
II
former Chief Justice Davide to the Resolution in the PIRMA
We should likewise take the opportunity to revisit the case, which was not concurred in by the other members of the
pronouncements made by the Court in its Decision in the Court.

Even assuming arguendo that the declaration in the Santiago
case, that Republic Act No. 6735 is insufficient and inadequate,
is already tantamount to a declaration that the statute is
unconstitutional, it was rendered in violation of established
rules in statutory construction, which state that—
[A]ll presumptions are indulged in favor of constitutionality;
one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt (Victoriano v.
Elizalde Rope Workers’ Union, 59 SCRA 54 [1974). In fact,
this Court does not decide questions of a constitutional nature
unless that question is properly raised and presented in
appropriate cases and is necessary to a determination of the
case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority, 152
SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well
avoided the issue of constitutionality of Republic Act No. 6735
by ordering the COMELEC to dismiss the Delfin petition for
the simple reason that it does not constitute an initiatory
pleading over which the COMELEC could acquire jurisdiction.
And second, the unconstitutionality of Republic Act No. 6735
has not been adequately shown. It was by and large merely
inferred or deduced from the way Republic Act No. 6735 was
worded and the provisions thereof arranged and organized by
Congress. The dissenting opinions rendered by several Justices
in the Santiago case reveal the other side to the argument,
adopting the more liberal interpretation that would allow the
Court to sustain the constitutionality of Republic Act No. 6735.
It would seem that the
509
VOL. 505, OCTOBER 25, 2006
509
Lambino vs. Commission on Elections
majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the
constitutionality of the statute.
The Court, acting en banc on the Petition at bar, can revisit its
Decision in the Santiago case and again open to judicial review
the constitutionality of Republic Act No. 6735; in which case, I
shall cast my vote in favor of its constitutionality, having
satisfied the completeness and sufficiency of standards tests for
the valid delegation of legislative power. I fully agree in the
conclusion made by Justice Puno on this matter in his dissenting
opinion12 in the Santiago case, that reads—
“R.A. No. 6735 sufficiently states the policy and the standards
to guide the COMELEC in promulgating the law’s
implementing rules and regulations of the law. As aforestated,
Section 2 spells out the policy of the law; viz.: “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.” Spread out
all over R.A. No. 6735 are the standards to canalize the
delegated power to the COMELEC to promulgate rules and
regulations from overflowing. Thus, the law states the number
of signatures necessary to start a people’s initiative, directs how
initiative proceeding is commenced, what the COMELEC
should do upon filing of the petition for initiative, how a
proposition is approved, when a plebiscite may be held, when
the amendment takes effect, and what matters may not be the
subject of any initiative. By any measure, these standards are
adequate.”
III
The dissent of Justice Puno has already a well-presented
discourse on the difference between an “amendment” and a
“revision” of the Constitution. Allow me also to articulate my
additional thoughts on the matter.
Oppositors to Lambino and Aumentado’s petition for initiative
argue that the proposed changes therein to the provisions of the
Consti-
_______________
12 Santiago v. Commission on Elections, supra note 2 at pp. republican state. It will still be a representative government
170-171. where officials continue to be accountable to the people and the
people maintain control over the government through the
election of members of the Parliament.
510

Furthermore, should the people themselves wish to change a

substantial portion or even the whole of the Constitution, what
510
or who is to stop them? Article XVII, Section 2 of the
Constitution which, by the way it is worded, refers only to their
right to initiative on amend-
SUPREME COURT REPORTS ANNOTATED

_______________
Lambino vs. Commission on Elections

13 Isagani A. Cruz, PHILIPPINE POLITICAL LAW, 1996 ed.,

tution already amount to a revision thereof, which is not allowed p. 352.
to be done through people’s initiative; Article XVII, Section 2
of the Constitution on people’s initiative refers only to
proposals for amendments to the Constitution. They assert the
511
traditional distinction between an amendment and a revision,
with amendment referring to isolated or piecemeal change only,
while revision as a revamp or rewriting of the whole
instrument.13 VOL. 505, OCTOBER 25, 2006

However, as pointed out by Justice Puno in his dissent, there is 511

no quantitative or qualitative test that can establish with
definiteness the distinction between an amendment and a
revision, or between a substantial and simple change of the
Lambino vs. Commission on Elections
Constitution.

ments of the Constitution? The delegates to the Constitutional

The changes proposed to the Constitution by Lambino and
Convention who, according to their deliberations, purposely
Aumentado’s petition for initiative basically affect only Article
limited Article XVII, Section 2 of the Constitution to
VI on the Legislative Department and Article VII on the
amendments? This Court which has the jurisdiction to interpret
Executive Department. While the proposed changes will
the provision? Bearing in mind my earlier declaration that the
drastically alter the constitution of our government by vesting
will of the sovereign people is supreme, there is nothing or no
both legislative and executive powers in a unicameral
one that can preclude them from initiating changes to the
Parliament, with the President as the Head of State and the
Constitution if they choose to do so. To reiterate, the
Prime Minister exercising the executive power; they would not
Constitution is supposed to be the expression and embodiment
essentially affect the other 16 Articles of the Constitution. The
of the people’s will, and should the people’s will clamor for a
100 or so changes counted by the oppositors to the other
revision of the Constitution, it is their will which should prevail.
provisions of the Constitution are constituted mostly of the
Even the fact that the people ratified the 1987 Constitution,
nominal substitution of one word for the other, such as
including Article XVII, Section 2 thereof, as it is worded,
Parliament for Congress, or Prime Minister for President. As
should not prevent the exercise by the sovereign people of their
eloquently pointed out in the dissent of Justice Puno, the
inherent right to change the Constitution, even if such change
changes proposed to transform our form of government from
would be tantamount to a substantial amendment or revision
bicameral-presidential to unicameral-parliamentary, would not
thereof, for their actual exercise of the said right should be a
affect the fundamental nature of our state as a democratic and
clear renunciation of the limitation which the said provision
imposes upon it. It is the inherent right of the people as
sovereign to change the Constitution, regardless of the extent
thereof. In short, I vote to GRANT the petition for Initiative of Lambino
and Aumentado.

IV
SEPARATE OPINION
Lastly, I fail to see the injustice in allowing the COMELEC to
give due course to and take cognizance of Lambino and VELASCO, JR., J.:
Aumentado’s petition for initiative to amend the Constitution. I
reiterate that it would be a greater evil if one such petition which
is ostensibly supported by the required number of registered Introduction
voters all over the country, be summarily dismissed.
The fate of every democracy, of every government based on the
Sovereignty of the people, depends on the choices it makes
between these opposite principles; absolute power on the one
Giving due course and taking cognizance of the petition would
hand, and on the other the restraints of legality and the authority
not necessarily mean that the same would be found sufficient
of tradition.
and set for plebiscite. The COMELEC still faces the task of
reviewing the petition to determine whether it complies with the
requirements for a valid exercise of the right to initiative.
Questions raised by the oppositors to the petition, such as those —John Acton
on the authenticity of the registered voters’ signatures or
compliance with the requisite number of registered voters for
every legislative district, are already factual in nature and
In this thorny matter of the people’s initiative, I concur with the
require the reception and evaluation of evidence of the
erudite and highly persuasive opinion of Justice Reynato S.
Puno upholding the people’s initiative and raise some points of
my own.
512

The issue of the people’s power to propose amendments to the

512 Constitution was once discussed in the landmark case of
Santiago v. COMELEC.1 Almost a decade later, the issue is
once again before the Court, and I firmly believe it is time to
reevaluate the pronouncements made in that case.
SUPREME COURT REPORTS ANNOTATED

The issue of Charter Change is one that has sharply divided the
Lambino vs. Commission on Elections
nation, and its proponents and opponents will understandably
take

parties. Such questions are best presented and resolved before

the COMELEC since this Court is not a trier of facts.
_______________

In view of the foregoing, I am of the position that the Resolution

1 G.R. No. 127535, March 19, 1997, 270 SCRA 106.
of the COMELEC dated 31 August 2006 denying due course to
the Petition for Initiative filed by Lambino and Aumentado be
reversed and set aside for having been issued in grave abuse of
discretion, amounting to lack of jurisdiction, and that the 513
Petition be remanded to the COMELEC for further
proceedings.
VOL. 505, OCTOBER 25, 2006 The decision in Santiago focused on what it perceived to be fatal
flaws in the drafting of the law, in the failings of the way the
law was structured, to come to the conclusion that the law was
inadequate. The Court itself recognized the legislators’ intent,
513
but disregarded this intent. The law was found wanting. The
Court then saw the in-

Lambino vs. Commission on Elections

_______________

all measures to advance their position and defeat that of their

opponents. The wisdom or folly of Charter Change does not
2 Id.
concern the Court. The only thing that the Court must review is
the validity of the present step taken by the proponents of
Charter Change, which is the People’s Initiative, as set down in
Article XVII, Sec. 2 of the 1987 Constitution: 514

Amendments to this Constitution may likewise be directly 514

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
SUPREME COURT REPORTS ANNOTATED
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. Lambino vs. Commission on Elections

The Congress shall provide for the implementation of the
exercise of this right.
In the Santiago case, the Court discussed whether the second
paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the
exercise of the people’s initiative, when it held that Republic
Act No. 6735, or “The Initiative and Referendum Act,” was
“inadequate to cover the system of initiative on amendments to
the Constitution, and to have failed to provide sufficient
standard for subordinate legislation.”2
clusion of the Constitution in RA 6735 as an afterthought.
However, it was included, and it should not be excluded by the
Court via a strained analysis of the law. The difficult
construction of the law should not serve to frustrate the intent
of the framers of the 1987 Constitution: to give the people the
power to propose amendments as they saw fit. It is a basic
precept in statutory construction that the intent of the legislature
is the controlling factor in the interpretation of a statute.3 The
intent of the legislature was clear, and yet RA 6735 was
declared inadequate. It was not specifically struck down or
declared unconstitutional, merely incomplete. The Court
focused on what RA 6735 was not, and lost sight of what RA
6735 was.

With all due respect to those Justices who made that declaration,
I must disagree.
Republic Act No. 6735 is the proper law for proposing
constitutional amendments and it should not have been
considered inadequate.
It is my view that the reading of RA 6735 in Santiago should
have been more flexible. It is also a basic precept of statutory
construction that statutes should be construed not so much
according to the letter that killeth but in line with the purpose
for which they have been enacted.4 The reading of the law
should not have been with the view of its defeat, but with the
goal of upholding it, especially with its avowed noble purpose.
Congress has done its part in empowering the people
themselves to propose amendments to the Constitution, in
accordance with the Constitution itself. It should not be the
Supreme Court that stifles the people, and lets their cries for
change go unheard, especially when the Constitution itself
grants them that power.
The court’s ruling in the Santiago case does not bar the present
petition because the fallo in the Santiago case is limited to the
Delfin petition.
The Santiago case involved a petition for prohibition filed by
Miriam Defensor-Santiago, et al., against the COMELEC, et al.,
_______________
3 Commission on Audit of the Province of Cebu v. Province of
Cebu, G.R. No. 141386, November 29, 2001, 371 SCRA 196,
202.
4 United Harbor Pilots’ Association of the Philippines, Inc. v.
Association of International Shipping Lines, Inc., G.R. No.
133763, November 13, 2002, 391 SCRA 522, 533.
515
VOL. 505, OCTOBER 25, 2006
515
Lambino vs. Commission on Elections
which sought to prevent the COMELEC from entertaining the
“Petition to Amend the Constitution, to Lift Term Limits of
Elective Officials, by People’s Initiative” filed by Atty. Jesus
Delfin. In the body of the judgment, the Court made the
following conclusion, viz.:
“This petition must then be granted and the COMELEC should
be permanently enjoined from entertaining or taking
cognizance of any petition or initiative on amendments on the
Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system
(emphasis supplied).
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.”
In the said case, the Court’s fallo states as follows:
“WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. 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 Resolutions 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 against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.”
The question now is if the ruling in Santiago is decisive in this
case. It is elementary that when there is conflict between the
dispositive portion or fallo of the decision and the opinion of
the court con-

516
516
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
tained in the text or body of the judgment, the former prevails
over the latter. An order of execution is based on the disposition,
not on the body, of the decision.5 The dispositive portion is its
decisive resolution; thus, it is the subject of execution. The other
parts of the decision may be resorted to in order to determine
the ratio decidendi for the disposition. Where there is conflict
between the dispositive part and the opinion of the court
contained in the text or body of the decision, the former must
prevail over the latter on the theory that the dispositive portion
is the final order, while the opinion is merely a statement
ordering nothing. Hence, the execution must conform with that
which is ordained or decreed in the dispositive portion of the
decision.6
A judgment must be distinguished from an opinion. The latter
is an informal expression of the views of the court and cannot
prevail against its final order or decision. While the two may be
combined in one instrument, the opinion forms no part of the
judgment. So there is a distinction between the findings and
conclusions of a court and its Judgment. While they may
constitute its decision and amount to the rendition of a
judgment, they are not the judgment itself. It is not infrequent
that the grounds of a decision fail to reflect the exact views of
the court, especially those of concurring justices in a collegiate
court. We often encounter in judicial decisions lapses, findings,
loose statements and generalities which do not bear on the
issues or are apparently opposed to the otherwise sound and
considered result reached by the court as expressed in the
dispositive part, so called, of the decision.7
Applying the foregoing argument to the Santiago case, it
immediately becomes apparent that the disposition in the latter
case categorically made permanent the December 18, 1996
Temporary Restraining Order issued against the COMELEC in
the Delfin petition but did NOT formally incorporate therein
any directive PERMA-
_______________
5 PH Credit Corporation v. Court of Appeals and Carlos M.
Farrales, G.R. No. 109648, November 22, 2001, 370 SCRA
155, 166-167.
6 Id.
7 Florentino v. Rivera, et al., G.R. No. 167968, January 23,
2006, 479 SCRA 522, 529.
517
VOL. 505, OCTOBER 25, 2006
517
Lambino vs. Commission on Elections
NENTLY enjoining the COMELEC “from entertaining or
taking cognizance of any petition for initiative on
amendments.” Undeniably, the perpetual proscription against
the COMELEC from assuming jurisdiction over any other
petition on Charter Change through a People’s Initiative is just
a conclusion and cannot bind the poll body, for such unending
ban would trench on its constitutional power to enforce and
administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the
COMELEC the jurisdiction to determine the sufficiency of the
petition on the initiative under Section 8, Rule 11 and the form
of the petition under Section 3, Rule I; hence, it cannot be barred
from entertaining any such petition.
In sum, the COMELEC still retains its jurisdiction to take
cognizance of any petition on initiative under RA 6735 and it
can rule on the petition and its action can only be passed upon
by the Court when the same is elevated through a petition for
certiorari. COMELEC cannot be barred from acting on said
petitions since jurisdiction is conferred by law (RA 6735) and
said law has not been declared unconstitutional and hence still
valid though considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent
case of PIRMA v. Commission on Elections8 confirmed the
statement of the Court in the Santiago case that the COMELEC
was “permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments.” Much
reliance is placed on the ruling contained in a Minute
Resolution which reads:
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 Decision of this Court in G.R. No. 127325, promulgated on
March 19, 1997, and its Resolution of June 10, 1997.
_______________
8 G.R. No. 129754, September 23, 1997.
518
518
SUPREME COURT REPORTS ANNOTATED
Lambino vs. Commission on Elections
Take note that the Court specifically referred to “dispositions”
in the March 19, 1997 Decision. To reiterate, the dispositions in
the Santiago case decision refer specifically to the December
18, 1996 TRO being made permanent against the COMELEC
but do not pertain to a permanent injunction against any other
petition for initiative on amendment. Thus, what was confirmed
or even affirmed in the Minute Resolution in the PIRMA case
pertains solely to the December 18, 1996 TRO which became
permanent, the declaration of the inadequacy of RA 6735, and
the annulment of certain parts of Resolution No. 2300 but
certainly not the alleged perpetual injunction against the
initiative petition. Thus, the resolution in the PIRMA case
cannot be considered res judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be
allowed under RA 6735, since only amendments to the
Constitution may be the subject of a people’s initiative.
The Lambino petition cannot be considered an act of revising
the Constitution; it is merely an attempt to amend it. The term
amendment has to be liberally construed so as to effectuate the
people’s efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,9
explained:
“Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the
greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the
factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions
of the constitution to determine which one should be altered or
suppressed or whether the whole document should be replaced
with an entirely new one.
_______________
9 Sinco, Vicente G., PHILIPPINE POLITICAL
LAW,PRINCIPLES AND CONCEPT 46 (1962).
519
VOL. 505, OCTOBER 25, 2006
 It is time to let the people’s voice be heard once again as it was
twenty years ago. And should this voice demand a change in the
519 Constitution, the Supreme Court should not be one to stand in
its way.

Lambino vs. Commission on Elections

520

The act of amending a constitution, on the other hand, envisages

a change of only a few specific provisions. The intention of an 520
act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The
intention rather is to improve specific parts of the existing
constitution or to add to it provisions deemed essential on SUPREME COURT REPORTS ANNOTATED
account of changed conditions or to suppress portions of it that
seem obsolete, or dangerous, or misleading in their effect.”
Lambino vs. Commission on Elections

In this case, the Lambino petition is not concerned with

rewriting the entire Constitution. It was never its intention to Petition in G.R. No. 174153 dismissed.
revise the whole Constitution. It merely concerns itself with
amending a few provisions in our fundamental charter.

Notes.—When the sovereignty of the people expressed thru the

When there are gray areas in legislation, especially in matters
that pertain to the sovereign people’s political rights, courts
must lean more towards a more liberal interpretation favoring
the people’s right to exercise their sovereign power.
ballot is at stake, it is not enough for the Supreme Court to make
a statement but it should do everything to have that sovereignty
obeyed by all—well done is always better than well said.
(Loong vs. Commission on Elections, 305 SCRA 832 [1999])

It is familiar learning that the legitimacy of a government sired

Conclusion by a successful revolution by people power is beyond judicial
scrutiny for that government automatically orbits out of the
Sovereignty residing in the people is the highest form of
constitutional loop. (Estrada vs. Desierto, 353 SCRA 452
sovereignty and thus deserves the highest respect even from the
[2001])
courts. It is not something that can be overruled, set aside,
ignored or stomped over by whatever amount of technicalities,
blurred or vague provisions of the law.
Ours is a representative democracy—as distinguished from a
direct democracy—in which the sovereign will of the people is
expressed through the ballot, whether in an election,
As I find RA 6735 to be adequate as the implementing law for
referendum, initiative, recall (in the case of local officials) or
the People’s Initiative, I vote to grant the petition in G.R. No.
plebiscite. (Justice Mendoza, Concurring in Estrada vs.
174153 and dismiss the petition in G.R. No. 174299. The
Desierto, 353 SCRA 452 [2001])
Amended Petition for Initiative filed by petitioners Raul L.
Lambino and Erico B. Aumentado should be remanded to the
COMELEC for determination whether or not the petition is
sufficient under RA 6735, and if the petition is sufficient, to The Supreme Court should never validate the action of a mob
schedule and hold the necessary plebiscite as required by RA and declare it constitutional. (Justice Ynares-Santiago, Separate
6735. Opinion in Estrada v. Desierto, 353 SCRA 452 [2001])
No doomsday scenario will ever justify the thrashing of the
Constitution—the Constitution is meant to be our rule both in
good times as in bad times. (Justice Puno, Concurring and
Dissenting Opinion in Abakada Guro Party List vs. Ermita, 469
SCRA 1 [2005])

Our people express their mighty sovereignty mainly thru the

election ballot where they decide, free from any fetter, who will
represent them in government—in a representative government,
the choice by the people of who will be their voice is nothing
less than sacred, hence, its desecration is unpardonable. (People
v. Hernandez, 499 SCRA 688 [2006])

Lambino vs. Commission on Elections, 505 SCRA 160, G.R.

No. 174153, G.R. No. 174299 October 25, 2006