G.R. No.
78059 August 31, 1987 That I am the OIC Governor of Rizal having been appointed as such on March 20,
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of
Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of
Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin
respondents from replacing them from their respective positions as Barangay
Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay,
Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition,
and petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was
elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta.
Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay
Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum
antedated December 1, 1986 but signed by respondent OIC Governor Benjamin
Esguerra on February 8, 1987 designating respondent Florentino G. Magno as
Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the
OIC Governor was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum,
antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z.
Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members
of the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of
respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
1986;
That as being OIC Governor of the Province of Rizal and in the performance of my
duties thereof, I among others, have signed as I did sign the unnumbered
memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be
declared null and void and that respondents be prohibited from taking over their
positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners
maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg.
222), their terms of office "shall be six (6) years which shall commence on June 7,
1982 and shall continue until their successors shall have elected and shall have
qualified," or up to June 7, 1988. It is also their position that with the ratification of the
1987 Constitution, respondent OIC Governor no longer has the authority to replace
them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional
Constitution, promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.
By reason of the foregoing provision, respondents contend that the terms of office
of elective and appointive officials were abolished and that petitioners continued in
office by virtue of the aforequoted provision and not because their term of six years
had not yet expired; and that the provision in the Barangay Election Act fixing the
term of office of Barangay officials to six (6) years must be deemed to have been
repealed for being inconsistent with the aforequoted provision of the Provisional
Constitution.
Examining the said provision, there should be no question that petitioners, as
elective officials under the 1973 Constitution, may continue in office but should
vacate their positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no
proclamation or executive order terminating the term of elective Barangay officials.
Thus, the issue for resolution is whether or not the designation of respondents to
replace petitioners was validly made during the one-year period which ended on
February 25, 1987.
Until the term of office of barangay officials has been determined by law, therefore,
the term of office of six (6) years provided for in the Barangay Election Act of 1982 5
should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the
term of six (6) years for elective Barangay officials and the 1987 Constitution, and
the same should, therefore, be considered as still operative, pursuant to Section 3,
Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters of
instructions, and other executive issuances not inconsistent, with this Constitution
shall remain operative until amended, repealed or revoked.

Considering the candid Affidavit of respondent OIC Governor, we hold that
February 8, 1977, should be considered as the effective date of replacement and
not December 1,1986 to which it was ante dated, in keeping with the dictates of
justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the
aforequoted provision in the Provisional Constitution must be deemed to have been
overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8,
1987 designating respondents as the Barangay Captain and Barangay Councilmen,
respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal
force and effect; and (2) the Writ of Prohibition is granted enjoining respondents
perpetually from proceeding with the ouster/take-over of petitioners' positions
subject of this Petition. Without costs.
SO ORDERED.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date,
therefore, the Provisional Constitution must be deemed to have been superseded.
Having become inoperative, respondent OIC Governor could no longer rely on
Section 2, Article III, thereof to designate respondents to the elective positions
occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially

considering that the Barangay Election Act of 1982 declares it "a policy of the State
to guarantee and promote the autonomy of the barangays to ensure their fullest
development as self-reliant communities.2 Similarly, the 1987 Constitution ensures
the autonomy of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general supervision"
over local governments. 4 Relevantly, Section 8, Article X of the same 1987
Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...
G.R. No. L-28196 November 9, 1967 the ratification of the constitutional amendments proposed in Joint Resolutions Nos.
1 and 3 of the two Houses of Congress of the Philippines, approved on March 16,
1967; (b) the Director of Printing from printing ballots, pursuant to said Act and
Resolutions; and (c) the Auditor General from passing in audit any disbursement
RAMON A. GONZALES, petitioner,
from the appropriation of funds made in said Republic Act No. 4913; and
vs.
2) declaring said Act unconstitutional and void.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL,
The main facts are not disputed. On March 16, 1967, the Senate and the House of
respondents.
Representatives passed the following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of

the Constitution of the Philippines, be amended so as to increase the membership
G.R. No. L-28224 November 9, 1967
of the House of Representatives from a maximum of 120, as provided in the present
Constitution, to a maximum of 180, to be apportioned among the several provinces
as nearly as may be according to the number of their respective inhabitants,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, although each province shall have, at least, one (1) member;

vs. 2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution,

the convention to be composed of two (2) elective delegates from each
COMMISSION ON ELECTIONS, respondent. representative district, to be "elected in the general elections to be held on the
second Tuesday of November, 1971;" and
No. 28196:
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be
Ramon A. Gonzales for and in his own behalf as petitioner.
amended so as to authorize Senators and members of the House of Representatives
Juan T. David as amicus curiae to become delegates to the aforementioned constitutional convention, without
forfeiting their respective seats in Congress.
Office of the Solicitor General for respondents.
Subsequently, Congress passed a bill, which, upon approval by the President, on
No. 28224: June 17, 1967, became Republic Act No. 4913, providing that the amendments to
the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be
Salvador Araneta for petitioner. submitted, for approval by the people, at the general elections which shall be held
on November 14, 1967.
Office of the Solicitor General for respondent.
The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on
CONCEPCION, C.J.: October 28, 1967, the Solicitor General appeared on behalf of respondents.
Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association
G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.
— hereinafter referred to as the PHILCONSA — were allowed to argue as amici
Petitioner therein prays for judgment: curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that
the decision in this case be deferred until after a substantially identical case brought
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. by said organization before the Commission on Elections,1 which was expected to
4913, or from performing any act that will result in the holding of the plebiscite for decide it any time, and whose decision would, in all probability, be appealed to this
Court — had been submitted thereto for final determination, for a joint decision on
the identical issues raised in both cases. In fact, on October 31, 1967, the
PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review by
certiorari of the resolution of the Commission on Elections2 dismissing the petition
therein. The two (2) cases were deemed submitted for decision on November 8,
1967, upon the filing of the answer of respondent, the memorandum of the
petitioner and the reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a
taxpayer, and a voter. He claims to have instituted case L-28196 as a class unit, for
and in behalf of all citizens, taxpayers, and voters similarly situated. Although
respondents and the Solicitor General have filed an answer denying the truth of this
allegation, upon the ground that they have no knowledge or information to form a
belief as to the truth thereof, such denial would appear to be a perfunctory one. In
fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor
of a judicial determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized
and existing under the laws of the Philippines, and a civic, non-profit and non-
partisan organization the objective of which is to uphold the rule of law in the
Philippines and to defend its Constitution against erosions or onslaughts from
whatever source. Despite his aforementioned statement in L-28196, in his answer in
L-28224 the Solicitor General maintains that this Court has no jurisdiction over the
subject-matter of L-28224, upon the ground that the same is "merely political" as
held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared
before the Commission on Elections and filed an opposition to the PHILCONSA
petition therein, was allowed to appear before this Court and objected to said
petition upon the ground: a) that the Court has no jurisdiction either to grant the
relief sought in the petition, or to pass upon the legality of the composition of the
House of Representatives; b) that the petition, if granted, would, in effect, render in
operational the legislative department; and c) that "the failure of Congress to enact
a valid reapportionment law . . . does not have the legal effect of rendering illegal
the House of Representatives elected thereafter, nor of rendering its acts null and
void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking through one of
the leading members of the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the
only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or
constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court
characterizing the issue submitted thereto as a political one, declined to pass upon
the question whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution — which was being submitted to the
people for ratification — satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however, by
Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we held that the
officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second,
this Court proceeded to determine the number of Senators necessary for a quorum
in the Senate; in the third, we nullified the election, by Senators belonging to the
party having the largest number of votes in said chamber, purporting to act on
behalf of the party having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second party, of the,
Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the House of
Representatives, upon the ground that the apportionment had not been made as
may be possible according to the number of inhabitants of each province. Thus we
rejected the theory, advanced in these four (4) cases, that the issues therein raised
were political questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress.10 It is part of the
inherent powers of the people — as the repository of sovereignty in a republican
state, such as ours11 — to make, and, hence, to amend their own Fundamental
Law. Congress may propose amendments to the Constitution merely because the
same explicitly grants such power.12 Hence, when exercising the same, it is said that
Senators and Members of the House of Representatives act, not as members of
Congress, but as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the Constitution, unlike
the people, when performing the same function,13 for their authority does not
emanate from the Constitution — they are the very source of all powers of
government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the Constitution,
the members of Congress derive their authority from the Fundamental Law, it
follows, necessarily, that they do not have the final say on whether or not their acts
are within or beyond constitutional limits. Otherwise, they could brush aside and set
the same at naught, contrary to the basic tenet that ours is a government of laws,
not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the
fact that, the Constitution expressly confers upon the Supreme Court,14 the power
to declare a treaty unconstitutional,15 despite the eminently political character of
treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a constituent
assembly — violates the Constitution essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent that this view may be inconsistent with
the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-fourths of all the Members
of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted to the
people for their ratification.
Pursuant to this provision, amendments to the Constitution may be proposed, either
by Congress, or by a convention called by Congress for that purpose. In either case,
the vote of "three-fourths of all the members of the Senate and of the House of
Representatives voting separately" is necessary. And, "such amendments shall be
valid as part of" the "Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been
approved by a vote of three-fourths of all the members of the Senate and of the
House of Representatives voting separately. This, notwithstanding, it is urged that
said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments, as well
as the resolution calling a convention to propose amendments, are, at best, de
facto Congressmen;
2. Congress may adopt either one of two alternatives propose — amendments or
call a convention therefore but may not avail of both — that is to say, propose
amendment and call a convention — at the same time;
3. The election, in which proposals for amendment to the Constitution shall be
submitted for ratification, must be a special election, not a general election, in
which officers of the national and local governments — such as the elections
scheduled to be held on November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which proposals for
amendment shall be submitted to the people for ratification, must be held under
such conditions — which, allegedly, do not exist — as to give the people a
reasonable opportunity to have a fair grasp of the nature and implications of said
amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution, which
provides:
The House of Representatives shall be composed of not more than one hundred
and twenty Members who shall be apportioned among the several provinces as
nearly as may be according to the number of their respective inhabitants, but each
province shall have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every enumeration, and not
otherwise. Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for
the National Assembly, who shall be elected by the qualified electors from the
present Assembly districts. Each representative district shall comprise, as far as
practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no
apportionment having been made within three (3) years thereafter, the Congress of
the Philippines and/or the election of its Members became illegal; that Congress
and its Members, likewise, became a de facto Congress and/or de facto
congressmen, respectively; and that, consequently, the disputed Resolutions,
proposing amendments to the Constitution, as well as Republic Act No. 4913, are
null and void.
It is not true, however, that Congress has not made an apportionment within three
years after the enumeration or census made in 1960. It did actually pass a bill, which
became Republic Act No. 3040,17 purporting to make said apportionment. This Act
was, however, declared unconstitutional, upon the ground that the apportionment
therein undertaken had not been made according to the number of inhabitants of
the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the failure of
Congress to make a valid apportionment within the period stated in the
Constitution, Congress became an "unconstitutional Congress" and that, in
consequence thereof, the Members of its House of Representatives are de facto
officers. The major premise of this process of reasoning is that the constitutional
provision on "apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress is under
legal obligation to make said apportionment does not justify, however, the
conclusion that failure to comply with such obligation rendered Congress illegal or
unconstitutional, or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935, Congress has not
made a valid apportionment as required in said fundamental law. The effect of this
omission has been envisioned in the Constitution, pursuant to which:
. . . Until such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present Assembly
districts. . . . .
The provision does not support the view that, upon the expiration of the period to
make the apportionment, a Congress which fails to make it is dissolved or becomes
illegal. On the contrary, it implies necessarily that Congress shall continue to function
with the representative districts existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held in 1935.
This theory assumes that an apportionment had to be made necessarily before the
first elections to be held after the inauguration of the Commonwealth of the
Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there had
been no enumeration in 1935, and nobody could foretell when it would be made.
Those who drafted and adopted the Constitution in 1935 could be certain,
therefore, that the three-year period, after the earliest possible enumeration, would
expire after the elections in 1938.
What is more, considering that several provisions of the Constitution, particularly
those on the legislative department, were amended in 1940, by establishing a
bicameral Congress, those who drafted and adopted said amendment,
incorporating therein the provision of the original Constitution regarding the
apportionment of the districts for representatives, must have known that the three-
year period therefor would expire after the elections scheduled to be held and
actually held in 1941.
Thus, the events contemporaneous with the framing and ratification of the original
Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that
the provision concerning said apportionment and the effect of the failure to make it
were expected to be applied to conditions obtaining after the elections in 1935 and
1938, and even after subsequent elections.
Then again, since the report of the Director of the Census on the last enumeration
was submitted to the President on November 30, 1960, it follows that the three-year
period to make the apportionment did not expire until 1963, or after the Presidential
elections in 1961. There can be no question, therefore, that the Senate and the
House of Representatives organized or constituted on December 30, 1961, were de
jure bodies, and that the Members thereof were de jure officers. Pursuant to the
theory of petitioners herein, upon expiration of said period of three years, or late in
1963, Congress became illegal and its Members, or at least, those of the House of
Representatives, became illegal holder of their respective offices, and were de
facto officers.
Petitioners do not allege that the expiration of said three-year period without a
reapportionment, had the effect of abrogating or repealing the legal provision
creating Congress, or, at least, the House of Representatives, and are not aware of
any rule or principle of law that would warrant such conclusion. Neither do they
allege that the term of office of the members of said House automatically expired
or that they ipso facto forfeited their seats in Congress, upon the lapse of said
period for reapportionment. In fact, neither our political law, nor our law on public
officers, in particular, supports the view that failure to discharge a mandatory duty,
whatever it may be, would automatically result in the forfeiture of an office, in the
absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law relative to the
election of Members of Congress in 1965 were not repealed in consequence of the
failure of said body to make an apportionment within three (3) years after the
census of 1960. Inasmuch as the general elections in 1965 were presumably held in
conformity with said Election Law, and the legal provisions creating Congress — with
a House of Representatives composed of members elected by qualified voters of
representative districts as they existed at the time of said elections — remained in
force, we can not see how said Members of the House of Representatives can be
regarded as de facto officers owing to the failure of their predecessors in office to
make a reapportionment within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the President,
the Vice-President, the Justices of the Supreme Court and the Auditor General for,
inter alia, culpable violation of the Constitution,20 the enforcement of which is, not
only their mandatory duty, but also, their main function. This provision indicates that,
despite the violation of such mandatory duty, the title to their respective offices
remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction
rendered in accordance with Article IX of the Constitution. In short, the loss of office
or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are merely de
facto officers, it would not follow that the contested resolutions and Republic Act
No. 4913 are null and void. In fact, the main reasons for the existence of the de
facto doctrine is that public interest demands that acts of persons holding, under
color of title, an office created by a valid statute be, likewise, deemed valid insofar
as the public — as distinguished from the officer in question — is concerned.21
Indeed, otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to the
positions they hold, before dealing with them, or before recognizing their authority
or obeying their commands, even if they should act within the limits of the authority
vested in their respective offices, positions or employments.22 One can imagine this
great inconvenience, hardships and evils that would result in the absence of the de
facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It
may not be contested except directly, by quo warranto proceedings. Neither may
the validity of his acts be questioned upon the ground that he is merely a de facto
officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the
title to the office; and (2) the acts of a de facto officer, if within the competence of
his office, are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the
acts therein involved have not been completed and petitioners herein are not third
parties. This pretense is untenable. It is inconsistent with Tayko vs. Capistrano.25 In
that case, one of the parties to a suit being heard before Judge Capistrano
objected to his continuing to hear the case, for the reason that, meanwhile, he had
reached the age of retirement. This Court held that the objection could not be
entertained, because the Judge was at least, a de facto Judge, whose title can not
be assailed collaterally. It should be noted that Tayko was not a third party insofar as
the Judge was concerned. Tayko was one of the parties in the aforementioned suit.
Moreover, Judge Capistrano had not, as yet, finished hearing the case, much less
rendered decision therein. No rights had vested in favor of the parties, in
consequence of the acts of said Judge. Yet, Tayko's objection was overruled.
Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions
herein contested and Republic Act No. 4913, are complete. Congress has nothing
else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under consideration is
untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose
amendments to the Constitution or call a convention for that purpose, but it can
not do both, at the same time. This theory is based upon the fact that the two (2)
alternatives are connected in the Constitution by the disjunctive "or." Such basis is,
however, a weak one, in the absence of other circumstances — and none has
brought to our attention — supporting the conclusion drawn by the amicus curiae.
In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when
the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the
constitutional provision on Congress, to be submitted to the people for ratification
on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to
consider proposals for amendment to the Constitution, in general. In other words,
the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3.
Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted
for ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the three (3)
resolutions were passed on the same date, they were taken up and put to a vote
separately, or one after the other. In other words, they were not passed at the same
time.
In any event, we do not find, either in the Constitution, or in the history thereof
anything that would negate the authority of different Congresses to approve the
contested Resolutions, or of the same Congress to pass the same in, different
sessions or different days of the same congressional session. And, neither has any
plausible reason been advanced to justify the denial of authority to adopt said
resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to
propose amendments, why not let the whole thing be submitted to said convention,
instead of, likewise, proposing some specific amendments, to be submitted for
ratification before said convention is held? The force of this argument must be
conceded. but the same impugns the wisdom of the action taken by Congress, not
its authority to take it. One seeming purpose thereof to permit Members of Congress
to run for election as delegates to the constitutional convention and participate in
the proceedings therein, without forfeiting their seats in Congress. Whether or not
this should be done is a political question, not subject to review by the courts of
justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in a General
Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted to the
people for their ratification.
There is in this provision nothing to indicate that the "election" therein referred to is a
"special," not a general, election. The circumstance that three previous
amendments to the Constitution had been submitted to the people for ratification
in special elections merely shows that Congress deemed it best to do so under the
circumstances then obtaining. It does not negate its authority to submit proposed
amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the proposed
amendments, that the same be submitted to the people's approval independently
of the election of public officials. And there is no denying the fact that an adequate
appraisal of the merits and demerits proposed amendments is likely to be
overshadowed by the great attention usually commanded by the choice of
personalities involved in general elections, particularly when provincial and
municipal officials are to be chosen. But, then, these considerations are addressed
to the wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either alternative, as
implied in the term "election" used, without qualification, in the abovequoted
provision of the Constitution. Such authority becomes even more patent when we
consider: (1) that the term "election," normally refers to the choice or selection of
candidates to public office by popular vote; and (2) that the word used in Article V
of the Constitution, concerning the grant of suffrage to women is, not "election," but
"plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the
Constitution, should be construed as meaning a special election. Some members of
the Court even feel that said term ("election") refers to a "plebiscite," without any
"election," general or special, of public officers. They opine that constitutional
amendments are, in general, if not always, of such important, if not transcendental
and vital nature as to demand that the attention of the people be focused
exclusively on the subject-matter thereof, so that their votes thereon may reflect no
more than their intelligent, impartial and considered view on the merits of the
proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not
insidious factors, let alone the partisan political considerations that are likely to
affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which
should be promoted. The ideal conditions are, however, one thing. The question
whether the Constitution forbids the submission of proposals for amendment to the
people except under such conditions, is another thing. Much as the writer and those
who concur in this opinion admire the contrary view, they find themselves unable to
subscribe thereto without, in effect, reading into the Constitution what they believe
is not written thereon and can not fairly be deduced from the letter thereof, since
the spirit of the law should not be a matter of sheer speculation.
The majority view — although the votes in favor thereof are insufficient to declare
Republic Act No. 4913 unconstitutional — as ably set forth in the opinion penned by
Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People Violate the
Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March 16,
1967, so that, by November 14, 1967, our citizenry shall have had practically eight
(8) months to be informed on the amendments in question. Then again, Section 2 of
Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues of the
Official Gazette, at least twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building and in
every polling place not later than October 14, 1967," and that said copy "shall
remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling place,
to be made available for examination by the qualified electors during election
day;"
(4) that "when practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the principal native
languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots
which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably inadequate
to comply with the constitutional requirement that proposals for amendment be
"submitted to the people for their ratification," and that said measures are manifestly
insufficient, from a constitutional viewpoint, to inform the people of the amendment
sought to be made.
These were substantially the same means availed of to inform the people of the
subject submitted to them for ratification, from the original Constitution down to the
Parity Amendment. Thus, referring to the original Constitution, Section 1 of Act No.
4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be published in the
Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen
days prior to said election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous place in each
municipal and provincial government office building and in each polling place not
later than the twenty-second day of April, nineteen hundred and thirty-five, and
shall remain posted therein continually until after the termination of the election. At
least ten copies of the Constitution with the Ordinance appended thereto, in English
and in Spanish, shall be kept at each polling place available for examination by the
qualified electors during election day. Whenever practicable, copies in the
principal local dialects as may be determined by the Secretary of the Interior shall
also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth Act No.
34, reading:
Said Article V of the Constitution shall be published in the Official Gazette, in English
and in Spanish, for three consecutive issues at least fifteen days prior to said
election, and the said Article V shall be posted in a conspicuous place in each
municipal and provincial office building and in each polling place not later than the
twenty-second day of April, nineteen and thirty-seven, and shall remain posted
therein continually until after the termination of the plebiscite. At least ten copies of
said Article V of the Constitution, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors during the
plebiscite. Whenever practicable, copies in the principal native languages, as may
be determined by the Secretary of the Interior, shall also be kept in each polling
place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments,
is of the following tenor:
The said amendments shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed
copy thereof shall be posted in a conspicuous place in every municipal, city, and
provincial government office building and in every polling place not later than May
eighteen, nineteen hundred and forty, and shall remain posted therein until after
the election. At least ten copies of said amendments shall be kept in each polling
place to be made available for examination by the qualified electors during
election day. When practicable, copies in the principal native languages, as may
be determined by the Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect
that:
The said amendment shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed
copy thereof shall be posted in a conspicuous place in every municipal, city, and
provincial government office building and in every polling place not later than
February eleven, nineteen hundred and forty-seven, and shall remain posted
therein until after the election. At least, ten copies of the said amendment shall be
kept in each polling place to be made available for examination by the qualified
electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on Elections, shall also be
kept in each polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law enacted therefor.
The difference springs from the circumstance that the major political parties had
taken sides on previous amendments to the Constitution — except, perhaps, the
woman's suffrage — and, consequently, debated thereon at some length before
the plebiscite took place. Upon the other hand, said political parties have not
seemingly made an issue on the amendments now being contested and have,
accordingly, refrained from discussing the same in the current political campaign.
Such debates or polemics as may have taken place — on a rather limited scale —
on the latest proposals for amendment, have been due principally to the initiative
of a few civic organizations and some militant members of our citizenry who have
voiced their opinion thereon. A legislation cannot, however, be nullified by reason
of the failure of certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors than those
existing at the time of the enactment thereof, unaffected by the acts or omissions of
law enforcing agencies, particularly those that take place subsequently to the
passage or approval of the law.
Referring particularly to the contested proposals for amendment, the sufficiency or
insufficiency, from a constitutional angle, of the submission thereof for ratification to
the people on November 14, 1967, depends — in the view of those who concur in
this opinion, and who, insofar as this phase of the case, constitute the minority —
upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise
the people of the gist, the main idea or the substance of said proposals, which is —
under R. B. H. No. 1 — the increase of the maximum number of seats in the House of
Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to
the members of Congress to run for delegates to the Constitutional Convention and,
if elected thereto, to discharge the duties of such delegates, without forfeiting their
seats in Congress. We — who constitute the minority — believe that Republic Act
No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed
maximum of representative districts are actually apportioned by R. B. H. No. 1
among the provinces in the Philippines. It is not improbable, however, that they are
not interested in the details of the apportionment, or that a careful reading thereof
may tend in their simple minds, to impair a clear vision thereof. Upon the other
hand, those who are more sophisticated, may enlighten themselves sufficiently by
reading the copies of the proposed amendments posted in public places, the
copies kept in the polling places and the text of contested resolutions, as printed in
full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or
envisage the effect of R. B. H. No. 3 upon the work of the Constitutional Convention
or upon the future of our Republic. But, then, nobody can foretell such effect with
certainty. From our viewpoint, the provisions of Article XV of the Constitution are
satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to
retain their seats as legislators, even if they should run for and assume the functions
of delegates to the Convention.
We are impressed by the factors considered by our distinguished and esteemed
brethren, who opine otherwise, but, we feel that such factors affect the wisdom of
Republic Act No. 4913 and that of R. B. H. Nos. 1 and 3, not the authority of
Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down
acts of the Executive or of Congress transcending the confines set forth in the
fundamental laws is not in derogation of the principle of separation of powers,
pursuant to which each department is supreme within its own sphere. The
determination of the conditions under which the proposed amendments shall be
submitted to the people is concededly a matter which falls within the legislative
sphere. We do not believe it has been satisfactorily shown that Congress has
exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could
have done something better to enlighten the people on the subject-matter thereof.
But, then, no law is perfect. No product of human endeavor is beyond
improvement. Otherwise, no legislation would be constitutional and valid. Six (6)
Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate
the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act
4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two
(2) cases must be, as they are hereby, dismiss and the writs therein prayed for
denied, without special pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on the
question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some additional
observations in connection with my concurrence. Sections 2 and 4 of Republic Act
No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be
posted in a conspicuous place in every municipality, city and provincial office
building and in every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until after the election. At
least five copies of the said amendments shall be kept in each polling place to be
made available for examination by the qualified electors during election day. When not intrinsic in the law but in its implementation. The same manner of submitting the
practicable, copies in the principal native languages, as may be determined by the proposed amendments to the people for ratification may, in a different setting, be
Commission on Elections, shall be kept in each polling place. The Commission on sufficient for the purpose. Yet I cannot conceive that the constitutionality or
Elections shall make available copies of each amendments in English, Spanish and, unconstitutionality of a law may be made to depend willy-nilly on factors not
whenever practicable, in the principal native languages, for free distribution. inherent in its provisions. For a law to be struck down as unconstitutional it must be so
by reason of some irreconcilable conflict between it and the Constitution. Otherwise
xxx xxx xxx a law may be either valid or invalid, according to circumstances not found in its
provisions, such as the zeal with which they are carried out. To such a thesis I cannot
Sec. 4. The ballots which shall be used in the election for the approval of said
agree. The criterion would be too broad and relative, and dependent upon
amendments shall be printed in English and Pilipino and shall be in the size and form
individual opinions that at best are subjective. What one may regard as sufficient
prescribed by the Commission on Elections: Provided, however, That at the back of
compliance with the requirement of submission to the people, within the context of
said ballot there shall be printed in full Resolutions of both Houses of Congress
the same law, may not be so to another. The question is susceptible of as many
Numbered One and Three, both adopted on March sixteen, nineteen hundred and
views as there are viewers; and I do not think this Court would be justified in saying
sixty-seven, proposing the amendments: Provided, further, That the questionnaire
that its own view on the matter is the correct one, to the exclusion of the opinions of
appearing on the face of the ballot shall be as follows:
others.
Are you in favor of the proposed amendment to Section five of Article VI of our
On the other hand, I reject the argument that the ratification must necessarily be in
Constitution printed at the back of this ballot?
a special election or plebiscite called for that purpose alone. While such procedure
is highly to be preferred, the Constitution speaks simply of "an election at which the
Are you in favor of the proposed amendment to section sixteen of Article VI of our
amendments are submitted to the people for their ratification," and I do not
Constitution printed at the back of this ballot?
subscribe to the restrictive interpretation that the petitioners would place on this
To vote for the approval of the proposed amendments, the voter shall write the provision, namely, that it means only a special election.
word "yes" or its equivalent in Pilipino or in the local dialect in the blank space after
BENGZON, J.P., J., concurring:
each question; to vote for the rejection thereof, he shall write the word "No" or its
equivalent in Pilipino or in the local dialect.
It is the glory of our institutions that they are founded upon law, that no one can
exercise any authority over the rights and interests of others except pursuant to and
I believe that intrinsically, that is, considered in itself and without reference to
in the manner authorized by law.1 Based upon this principle, petitioners Ramon A.
extraneous factors and circumstances, the manner prescribed in the aforesaid
Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in
provisions is sufficient for the purpose of having the proposed amendments
separate petitions.
submitted to the people for their ratification, as enjoined in Section 1, Article XV of
the Constitution. I am at a loss to say what else should have been required by the
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation
Act to make it adhere more closely to the constitutional requirement. Certainly it
thru class suit of all citizens of this country, filed this suit for prohibition with preliminary
would have been out of place to provide, for instance, that government officials
injunction to restrain the Commission on Elections, Director of Printing and Auditor
and employees should go out and explain the amendments to the people, or that
General from implementing and/or complying with Republic Act 4913, assailing said
they should be the subject of any particular means or form of public discussion.
law as unconstitutional.
The objection of some members of the Court to Republic Act No. 4913 seems to me
Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the
predicated on the fact that there are so many other issues at stake in the coming
constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses
general election that the attention of the electorate, cannot be entirely focused on
Nos. 1 and 3 of March 16, 1967.
the proposed amendments, such that there is a failure to properly submit them for
ratification within the intendment of the Constitution. If that is so, then the defect is
Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino
people for approval the amendments to the Constitution of the Philippines
proposed by the Congress of the Philippines in Resolutions of Both Houses Numbered
1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner
of the election at which the aforesaid proposed amendments shall be voted upon
by the people, and appropriates funds for said election. Resolutions of Both Houses
Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec.
5, Art. VI, by increasing the maximum membership of the House of Representatives
from 120 to 180, apportioning 160 of said 180 seats and eliminating the provision that
Congress shall by law make an apportionment within three years after the return of
every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without forfeiting
their seats.
Since both petitions relate to the proposed amendments, they are considered
together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic
Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed
amendments to the Constitution, to the people for approval, at the general
election of 1967 instead of at a special election solely for that purpose; (2) Republic
Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed with the
3/4 vote in joint session required when Congress proposes amendments to the
Constitution, said Republic Act being a step in or part of the process of proposing
amendments to the Constitution; and (3) Republic Act 4913 violates the due
process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the
substance of the proposed amendments be stated on the face of the ballot or
otherwise rendering clear the import of the proposed amendments, such as by
stating the provisions before and after said amendments, instead of printing at the
back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for amending the
Constitution is concerned, the issue is cognizable by this Court under its powers to
review an Act of Congress to determine its conformity to the fundamental law. For
though the Constitution leaves Congress free to propose whatever Constitutional
amendment it deems fit, so that the substance or content of said proposed
amendment is a matter of policy and wisdom and thus a political question, the
Constitution nevertheless imposes requisites as to the manner or procedure of
proposing such amendments, e.g., the three-fourths vote requirement. Said
procedure or manner, therefore, from being left to the discretion of Congress, as a
matter of policy and wisdom, is fixed by the Constitution. And to that extent, all
questions bearing on whether Congress in proposing amendments followed the
procedure required by the Constitution, is perforce justiciable, it not being a matter
of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not
bear him on the point. It nowhere requires that the ratification be thru an election
solely for that purpose. It only requires that it be at "an election at which the
amendments are submitted to the people for their ratification." To join it with an
election for candidates to public office, that is, to make it concurrent with such
election, does not render it any less an election at which the proposed
amendments are submitted to the people for their ratification. To prohibition being
found in the plain terms of the Constitution, none should be inferred. Had the
framers of requiring Constitution thought of requiring a special election for the
purpose only of the proposed amendments, they could have said so, by qualifying
the phrase with some word such as "special" or "solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it would
not have been better to provide for a separate election exclusively for the
ratification of the proposed amendments. The point however is that such separate
and exclusive election, even if it may be better or wiser, which again, is not for this
Court to decide, is not included in the procedure required by the Constitution to
amend the same. The function of the Judiciary is "not to pass upon questions of
wisdom, justice or expediency of legislation".2 It is limited to determining whether the
action taken by the Legislative Department has violated the Constitution or not. On
this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having
been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 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 that purpose.
Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election to which the amendments are submitted to
the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the term
"propose amendment" is meant to determine WHAT said amendment shall be, then
Republic Act 4913 does not; Resolutions of Both Houses 1 and 3 already did that. If,
on the other hand, it means, or also means, to provide for how, when, and by what
means the amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended.
Said Section has two sentences: in the first, it requires the 3/4 voting in joint session,
for Congress to "propose amendments". And then in the second sentence, it
provides that "such amendments . . . shall be submitted to the people for their
ratification". This clearly indicates that by the term "propose amendments" in the first
sentence is meant to frame the substance or the content or the WHAT-element of
the amendments; for it is this and this alone that is submitted to the people for their
ratification. The details of when the election shall be held for approval or rejection
of the proposed amendments, or the manner of holding it, are not submitted for
ratification to form part of the Constitution. Stated differently, the plain language of
Section 1, Art. XV, shows that the act of proposing amendments is distinct from —
albeit related to — that of submitting the amendments to the people for their
ratification; and that the 3/4 voting requirement applies only to the first step, not to
the second one.
It follows that the submission of proposed amendments can be done thru an
ordinary statute passed by Congress. The Constitution does not expressly state by
whom the submission shall be undertaken; the rule is that a power not lodged
elsewhere under the Constitution is deemed to reside with the legislative body,
under the doctrine of residuary powers. Congress therefore validly enacted
Republic Act 4913 to fix the details of the date and manner of submitting the
proposed amendments to the people for their ratification. Since it does not
"propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution,
but merely provides for how and when the amendments, already proposed, are
going to be voted upon, the same does not need the 3/4 vote in joint session
required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an
appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its
provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills
shall originate exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session, reinforcing the
view that Sec. 1, Art. XV does not apply to such a measure providing for the holding
of the election to ratify the proposed amendments, which must perforce
appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against
substantive due process. An examination of the provisions of the law shows no
violation of the due process clause of the Constitution. The publication in the Official
Gazette at least 20 days before the election, the posting of notices in public
buildings not later than October 14, 1967, to remain posted until after the elections,
the placing of copies of the proposed amendments in the polling places, aside
from printing the same at the back of the ballot, provide sufficient opportunity to
the voters to cast an intelligent vote on the proposal. Due process refers only to
providing fair opportunity; it does not guarantee that the opportunity given will in
fact be availed of; that is the look-out of the voter and the responsibility of the
citizen. As long as fair and reasonable opportunity to be informed is given, and it is,
the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the printing of
the full proposed amendments at the back of the ballot instead of the substance
thereof at the face of the ballot, do not deprive the voter of fair opportunity to be
informed. The present wording of the Constitution is not being veiled or suppressed
from him; he is conclusively presumed to know them and they are available should
he want to check on what he is conclusively presumed to know. Should the voters
choose to remain ignorant of the present Constitution, the fault does not lie with
Congress. For opportunity to familiarize oneself with the Constitution as it stands has
been available thru all these years. Perhaps it would have been more convenient
for the voters if the present wording of the provisions were also to be printed on the
ballot. The same however is a matter of policy. As long as the method adopted
provides sufficiently reasonable chance to intelligently vote on the amendments,
and I think it does in this case, it is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed
amendments. These are for the people in their sovereign capacity to decide, not for
this Court.
Two arguments were further advanced: first, that Congress cannot both call a
convention and propose amendments; second, that the present Congress is a de
facto one, since no apportionment law was adopted within three years from the
last census of 1960, so that the Representatives elected in 1961 are de facto officers
only. Not being de jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or", however, is
frequently used as having the same meaning as "and" particularly in permissive,
affirmative sentences so that the interpretation of the word "or" as "and" in the
Constitution in such use will not change its meaning (Vicksburg S. & P. R. Co. v.
Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the
resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that
calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to
amend the Constitution before a convention called for is elected, it should not be
fettered from doing so. For our purposes in this case, suffice it to note that the
Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution
provides in part that "The Congress shall by law make an apportionment within three
years after the return of every enumeration, and not otherwise". It however further
states in the next sentence: "Until such apportionment shall have been made, the
House of Representatives shall have the same number of Members as that fixed by
law for the National Assembly, who shall be elected by the qualified electors from
the present assembly districts." The failure of Congress, therefore, to pass a valid
redistricting law since the time the above provision was adopted, does not render
the present districting illegal or unconstitutional. For the Constitution itself provides
for its continuance in such case, rendering legal and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic Act 4913,
and fully concur with the opinion of the Chief Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The opinion prepared by
the Chief Justice discusses the matter with a fullness that erases doubts and
misgivings and clarifies the applicable principles. A few words may however be
added.
We start from the premise that only where it can be shown that the question is to be
solved by public opinion or where the matter has been left by the Constitution to
the sole discretion of any of the political branches, as was so clearly stated by the
then Justice Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on
the issue before it. Whatever may be said about the present question, it is hard to
speak with certitude considering Article XV, that Congress may be entrusted with
the full and uncontrolled discretion on the procedure leading to proposals for an
amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice
Tuason followed Coleman v. Miller,3 in its holding that certain aspects of the
amending process may be considered political. His opinion quoted with approval
the view of Justice Black, to which three other members of the United States
Supreme Court agreed, that the process itself 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." In a sense that would
solve the matter neatly. The judiciary would be spared the at times arduous and in
every case soul-searching process of determining whether the procedure for
amendments required by the Constitution has been followed.
At the same time, without impugning the motives of Congress, which cannot be
judicially inquired into at any rate, it is not beyond the realm of possibility that a
failure to observe the requirements of Article XV would occur. In the event that
judicial intervention is sought, to rely automatically on the theory of political
question to avoid passing on such a matter of delicacy might under certain
circumstances be considered, and rightly so, as nothing less than judicial abdication
or surrender.
What appears regrettable is that a major opinion of an esteemed jurist, the late
Justice Tuason, would no longer be controlling. There is comfort in the thought that
the view that then prevailed was itself a product of the times. It could very well be
that considering the circumstances existing in 1947 as well as the particular
amendment sought to be incorporated in the Constitution, the parity rights
ordinance, the better part of wisdom in view of the grave economic situation then
confronting the country would be to avoid the existence of any obstacle to its
being submitted for ratification. Moreover, the Republic being less than a year old,
American Supreme Court opinions on constitutional questions were-invariably
accorded uncritical acceptance. Thus the approach followed by Justice Tuason is
not difficult to understand. It may be said that there is less propensity now, which is
all to the good, for this Court to accord that much deference to constitutional views
coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his
memory. For as he stated in another major opinion in Araneta v. Dinglasan,4 in
ascertaining the meaning to be given the Emergency Powers Act,5 one should not
ignore what would ensue if a particular mode of construction were followed. As he
so emphatically stated, "We test a rule by its results."
The consequences of a judicial veto on the then proposed amendment on the
economic survival of the country, an erroneous appraisal it turned out later,
constituted an effective argument for its submission. Why not then consider the
question political and let the people decide? That assumption could have been
indulged in. It could very well be the inarticulate major premise. For many it did bear
the stamp of judicial statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of this date
and in the foreseeable future judicial inquiry to assure the utmost compliance with
the constitutional requirement would be a more appropriate response.
SANCHEZ, J., in separate opinion:
Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto
O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the
substance and form of the opinion which follows.
Directly under attack in this, a petition for prohibition, is the constitutionality of
Republic Act 4913, approved on June 17, 1967. This Act seeks to implement
Resolutions 1 and 3 adopted by the Senate and the House of Representatives on
March 16, 1967 with the end in view of amending vital portions of the Constitution.
Since the problem here presented has its roots in the resolutions aforesaid of both
houses of Congress, it may just as well be that we recite in brief the salient features
thereof. Resolution No. 1 increases the membership of the House of Representatives
from 120 to 180 members, and immediately apportions 160 seats. A companion
resolution is Resolution No. 3 which permits Senators and Congressmen — without
forfeiting their seats in Congress — to be members of the Constitutional Convention1
to be convened, as provided in another resolution — Resolution No. 2.
Parenthetically, two of these proposed amendments to the Constitution (Resolutions
I and 3) are to be submitted to the people for their ratification next November 14,
1967. Resolution No. 2 just adverted to calls for a constitutional convention also to
propose amendments to the Constitution. The delegates thereto are to be elected
on the second Tuesday of November 1970; the convention to sit on June 1, 1971;
and the amendments proposed by the convention to be submitted to the people
thereafter for their ratification.
Of importance now are the proposed amendments increasing the number of
members of the House of representatives under Resolution No. 1, and that in
Resolution No. 3 which gives Senators and Congressmen the right to sit as members
of the constitutional convention to be convened on June 1, 1971. Because, these
are the two amendments to be submitted to the people in the general elections
soon to be held on November 14, 1967, upon the provisions of Section 1, Republic
Act 4913, which reads:
The amendments to the Constitution of the Philippines proposed by the Congress of
the Philippines in Resolutions of both Houses Numbered One and Three, both
adopted on March sixteen, nineteen hundred and sixty- seven, shall be submitted to
the people for approval at the general election which shall be held on November
fourteen, nineteen hundred and sixty- seven, in accordance with the provisions of
this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon us — the
manner in which the amendments proposed by Congress just adverted to be
brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed amendments
to the Constitution may become effective, Section 1, Article XV thereof commands
that such amendments must be "approved by a majority of the votes cast at an
election at which amendments are submitted to the people for their ratification."2
The accent is on two words complementing each other, namely, "submitted" and
"ratification."
1. We are forced to take a long hard look at the core of the problem facing us. And
this, because the amendments submitted are transcendental and encompassing.
The ceiling of the number of Congressmen is sought to be elevated from 120 to 180
members; and Senators and Congressmen may run in constitutional conventions
without forfeiting their seats. These certainly affect the people as a whole. The
increase in the number of Congressmen has its proportional increase in the people's
tax burdens. They may not look at this with favor, what with the constitutional
provision (Section 5, Article VI) that Congress "shall by law make an apportionment",
without the necessity of disturbing the present constitutionally provided number of
Congressmen. People in Quezon City, for instance, may balk at the specific
apportionment of the 160 seats set forth in Resolution No. 1, and ask for a
Congressman of their own, on the theory of equal representation. And then, people
may question the propriety of permitting the increased 180 Congressmen from
taking part in the forthcoming constitutional convention and future conventions for
fear that they may dominate its proceedings. They may entertain the belief that, if
at all, increase in the number of Congressmen should be a proper topic for
deliberation in a constitutional convention which, anyway, will soon take place.
They probably would ask: Why the hurry? These ponderables require the people's
close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the
constitutional directive that constitutional amendments be submitted to the people
for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a statute which
may suffer amendments three or more times in the same year, it is intended to stand
the test of time. It is an expression of the people's sovereign will.
And so, our approach to the problem of the mechanics of submission for ratification
of amendments is that reasoning on the basis of the spirit of the Constitution is just as
important as reasoning by a strict adherence to the phraseology thereof. We
underscore this, because it is within the realm of possibility that a Constitution
maybe overhauled. Supposing three-fourths of the Constitution is to be amended.
Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We
believe it to be beyond debate that in some such situations the amendments ought
to call for a constitutional convention rather than a legislative proposal. And yet,
nothing there is in the books or in the Constitution itself. which would require such
amendments to be adopted by a constitutional convention. And then, too, the
spirit of the supreme enactment, we are sure, forbids that proposals therefor be
initiated by Congress and thereafter presented to the people for their ratification.
In the context just adverted to, 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 in insidious
influences. We believe, the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform very 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.
Aptly had it been said:
. . . 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 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 the
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 a worse." Am. Law Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the people are
not sufficiently informed of the amendments to be voted upon, to conscientiously
deliberate thereon, to express their will in a genuine manner can it be said that in
accordance with the constitutional mandate, "the amendments are submitted to
the people for their ratification?" Our answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 — the statute that
submits to the people the constitutional amendments proposed by Congress in
Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of the
nature of the amendments throughout the country. There are five parts in said
Section 2, viz:
(1) The amendment shall be published in three consecutive issues of the Official
Gazette at least twenty days prior to the election.
(2) A printed copy thereof shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling place not later
than October fourteen, nineteen hundred and sixty-seven, and shall remain posted
therein until after the election.
(3) At least five copies of the said amendments shall be kept in each polling place
to be made available for examination by the qualified electors during election day.
(4) When practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall be kept in each polling place.
(5) The Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for
free distribution.
A question that comes to mind is whether the procedure for dissemination of
information regarding the amendments effectively brings the matter to the people.
A dissection of the mechanics yields disturbing thoughts. First, the Official Gazette is
not widely read. It does not reach the barrios. And even if it reaches the barrios, is it
available to all? And if it is, would all under stand English? Second, it should be
conceded that many citizens, especially those in the outlying barrios, do not go to
municipal, city and/or provincial office buildings, except on special occasions like
paying taxes or responding to court summonses. And if they do, will they notice the
printed amendments posted on the bulletin board? And if they do notice, such
copy again is in English (sample submitted to this Court by the Solicitor General) for,
anyway, the statute does not require that it be in any other language or dialect.
Third, it would not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts it, voting
time is not study time. And then, who can enter the polling place, except those who
are about to vote? Fourth, copies in the principal native languages shall be kept in
each polling place. But this is not, as Section 2 itself implies, in the nature of a
command because such copies shall be kept therein only "when practicable" and
"as may be determined by the Commission on Elections." Even if it be said that these
are available before election, a citizen may not intrude into the school building
where the polling places are usually located without disturbing the school classes
being held there. Fifth, it is true that the Comelec is directed to make available
copies of such amendments in English, Spanish or whenever practicable, in the
principal native languages, for free distribution. However, Comelec is not required
to actively distribute them to the people. This is significant as to people in the
provinces, especially those in the far-flung barrios who are completely unmindful of
the discussions that go on now and then in the cities and centers of population on
the merits and demerits of the amendments. Rather, Comelec, in this case, is but a
passive agency which may hold copies available, but which copies may not be
distributed at all. Finally, it is of common knowledge that Comelec has more than its
hands full in these pre-election days. They cannot possibly make extensive
distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot
submitted to this Court would show that only the amendments are printed at the
back. And this, in pursuance to Republic Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the proposed
amendments thru dissemination by publication in extenso. People do not have at
hand the necessary data on which to base their stand on the merits and demerits of
said amendments.
We, therefore, hold that there is no proper submission of the proposed constitutional
amendments within the meaning and intendment of Section 1, Article XV of the
Constitution.
4. Contemporary history is witness to the fact that during the present election
campaign the focus is on the election of candidates. The constitutional
amendments are crowded out. Candidates on the homestretch, and their leaders
as well as the voters, gear their undivided efforts to the election of officials; the
constitutional amendments cut no ice with them. The truth is that even in the ballot
itself, the space accorded to the casting of "yes" or "no" vote would give one the
impression that the constitutional amendments are but a bootstrap to the electoral
ballot. Worse still, the fortunes of many elective officials, on the national and local
levels, are inextricably intertwined with the results of the votes on the plebiscite. In a
clash between votes for a candidate and conscience on the merits and demerits of
the constitutional amendments, we are quite certain that it is the latter that will be
dented.
5. That proper submission of amendments to the people to enable them to equally
ratify them properly is the meat of the constitutional requirement, is reflected in the
sequence of uniform past practices. The Constitution had been amended thrice —
in 1939, 1940 and 1947. In each case, the amendments were embodied in
resolutions adopted by the Legislature, which thereafter fixed the dates at which
the proposed amendments were to be ratified or rejected. These plebiscites have
been referred to either as an "election" or "general election". At no time, however,
was the vote for the amendments of the Constitution held simultaneously with the
election officials, national or local. Even with regard to the 1947 parity amendment;
the record shows that the sole issue was the 1947 parity amendment; and the
special elections simultaneously held in only three provinces, Iloilo, Pangasinan and
Bukidnon, were merely incidental thereto.
In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to ask that
reasonable guarantee be made that in the matter of the alterations of the law of
the land, their true voice be heard? The answer perhaps is best expressed in the
following thoughts: "It must be remembered that the Constitution is the people's
enactment. No proposed change can become effective unless they will it so
through the compelling force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken down as in
violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
REYES, J.B.L., J., concurring:
I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a
mere proposal to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote
of all the members of each legislative chamber, the highest majority ever
demanded by the fundamental charter, one higher even than that required in
order to declare war (Sec. 24, Article VI), with all its dire consequences. If such an
overwhelming majority, that was evidently exacted in order to impress upon all and
sundry the seriousness of every constitutional amendment, is asked for a proposal to
amend the Constitution, 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
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 at an election wherein the people could devote undivided attention to
the subject. That this was the intention and the spirit of the provision is corroborated
in the case of all other constitutional amendments in the past, that were submitted
to and approved in special elections exclusively devoted to the issue whether the
legislature's amendatory proposals should be ratified or not.

Dizon, Angeles, Zaldivar and Castro, JJ., concur.

G.R. No. L-32432 September 11, 1970
MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR,
as members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE
VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL
CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General
Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de
Leon, Vicente A. Torres and Guillermo C. Nakar for respondents.
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici
curiae.
MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed pursuant to
Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales,
both members of the Bar, taxpayers and interested in running as candidates for
delegates to the Constitutional Convention. Both impugn the constitutionality of R.A.
No. 6132, claiming during the oral argument that it prejudices their rights as such
candidates. After the Solicitor General had filed answers in behalf the respondents,
hearings were held at which the petitioners and the amici curiae, namely Senator
Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator
Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent
Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which
among others called for a Constitutional Convention to propose constitutional
amendments to be composed of two delegates from each representative district
who shall have the same qualifications as those of Congressmen, to be elected on
the second Tuesday of November, 1970 in accordance with the Revised Election
Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of
that year, Congress, acting as a legislative body, enacted Republic Act No. 4914
implementing the aforesaid Resolution No. 2 and practically restating in toto the
provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed
Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by
providing that the convention "shall be composed of 320 delegates apportioned
among the existing representative districts according to the number of their
respective inhabitants: Provided, that a representative district shall be entitled to at
least two delegates, who shall have the same qualifications as those required of
members of the House of Representatives,"1 "and that any other details relating to
the specific apportionment of delegates, election of delegates to, and the holding
of, the Constitutional Convention shall be embodied in an implementing legislation:
Provided, that it shall not be inconsistent with the provisions of this Resolution."2
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act
No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914.
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.6 The fact that the lone and small congressional
district of Batanes, may be over-represented, because it is allotted two delegates
by R.A. No. 6132 despite the fact that it has a population very much less than
several other congressional districts, each of which is also allotted only two
delegates, and therefore under-represented, vis-a-vis Batanes alone, does not
vitiate the apportionment as not effecting proportional representation. Absolute
proportional apportionment is not required and is not possible when based on the
number of inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers, aggravated by
the constant movement of population, as well as daily death and birth. It is enough
that the basis employed is reasonable and the resulting apportionment is
substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a
congressional district.
While there may be other formulas for a reasonable apportionment considering the
evidence submitted to Congress by the Bureau of Census and Statistics, we are not
prepared to rule that the computation formula adopted by, Congress for
proportional representation as, directed in Res. No. 4 is unreasonable and that the
apportionment provided in R.A. No. 6132 does not constitute a substantially
proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law, which
was nullified as unconstitutional, granted more representatives to a province with
less population than the provinces with more inhabitants. Such is not the case here,
where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which
number is equal to the number of delegates accorded other provinces with more
population. The present petitions therefore do not present facts which fit the mould
of the doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by the
Constitution itself when it directs that the apportionment of congressional districts
among the various provinces shall be "as nearly as may be according to their
respective inhabitants, but each province shall have at least one member" (Sec. 5,
Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly as
may be according to their respective inhabitants" emphasizes the fact that the
human mind can only approximate a reasonable apportionment but cannot effect
an absolutely proportional representation with mathematical precision or
exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of
liberty without due process of law and denies the equal protection of the laws. Said
Sec. 5 disqualifies any elected delegate from running "for any public office in any
election" or from assuming "any appointive office or position in any branch of the
government government until after the final adjournment of the Constitutional
Convention."
That the citizen does not have any inherent nor natural right to a public office, is
axiomatic under our constitutional system. The State through its Constitution or
legislative body, can create an office and define the qualifications and
disqualifications therefor as well as impose inhibitions on a public officer.
Consequently, only those with qualifications and who do not fall under any
constitutional or statutory inhibition can be validly elected or appointed to a public
office. The obvious reason for the questioned inhibition, is to immunize the delegates
from the perverting influence of self-interest, party interest or vested interest and to
insure that he dedicates all his time to performing solely in the interest of the nation
his high and well nigh sacred function of formulating the supreme law of the land,
which may endure for generations and which cannot easily be changed like an
ordinary statute. With the disqualification embodied in Sec. 5, the delegate will not
utilize his position as a bargaining leverage for concessions in the form of an elective
or appointive office as long as the convention has not finally adjourned. The
appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his actuations
as delegate; otherwise the several provisions of the new Constitution may only
satisfy individual or special interests, subversive of the welfare of the general
citizenry. It should be stressed that the disqualification is not permanent but only
temporary only to continue until the final adjournment of the convention which may
not extend beyond one year. The convention that framed the present Constitution
finished its task in approximately seven months — from July 30, 1934 to February 8,
1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional
provision prohibiting a member of Congress, during the time for which he was
elected, from being appointed to any civil office which may have been created or
the emolument whereof shall have been increased while he was a member of the
Congress. (Sec. 16, Art. VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the
challenged disqualification, temporary in nature, is to compel the elected
delegates to serve in full their term as such and to devote all their time to the
convention, pursuant to their representation and commitment to the people;
otherwise, his seat in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise "designed to prevent
popular political figures from controlling elections or positions. Also it is a brake on
the appointing power, to curtail the latter's desire to 'raid' the convention of "talents"
or attempt to control the convention." (p. 10, Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid
limitation on the right to public office pursuant to state police power as it is
reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional Convention
is likewise constitutional; for it is based on a substantial distinction which makes for
real differences, is germane to the purposes of the law, and applies to all members
of the same class.7 The function of a delegate is more far-reaching and its effect
more enduring than that of any ordinary legislator or any other public officer. A
delegate shapes the fundamental law of the land which delineates the essential
nature of the government, its basic organization and powers, defines the liberties of
the people, and controls all other laws. Unlike ordinary statutes, constitutional
amendments cannot be changed in one or two years. No other public officer
possesses such a power, not even the members of Congress unless they themselves,
propose constitutional amendments when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution. The classification, therefore, is neither
whimsical nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to
insure that the proposed amendments are meaningful to the masses of our people
and not designed for the enhancement of selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who will be
elected on the second Tuesday of November, 1970.
V as long as such member acts individually. The very party or organization to which he
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative
of the constitutional guarantees of due process, equal protection of the laws,
freedom of expressions, freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of
the laws, peaceful assembly, free expression, and the right of association are neither
absolute nor illimitable rights; they are always subject to the pervasive and dormant
police power of the State and may be lawfully abridged to serve appropriate and
important public interests.8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger
test to determine whether a statute which trenches upon the aforesaid
Constitutional guarantees, is a legitimate exercise of police power.9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of any political party or
any other organization; and
2. any political party, political group, political committee, civic, religious,
professional or other organizations or organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in the filing of his
certificate, or
(b) from giving aid or support directly or indirectly, material or otherwise, favorable
to or against his campaign for election.
The ban against all political parties or organized groups of whatever nature
contained in par. 1 of Sec. 8(a), is confined to party or organization support or
assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its
provisos permits the candidate to utilize in his campaign the help of the members of
his family within the fourth civil degree of consanguinity or affinity, and a campaign
staff composed of not more than one for every ten precincts in his district. It allows
the full exercise of his freedom of expression and his right to peaceful assembly,
because he cannot be denied any permit to hold a public meeting on the pretext
that the provision of said section may or will be violated. The right of a member of
any political party or association to support him or oppose his opponent is preserved
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 very purposes for which a new constitutional convention has
been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao vs.
Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I
maintain that the right of suffrage which is the cornerstone of any democracy like
ours is meaningless when the right to campaign in any election therein is
unreasonably and unnecessarily curtailed, restrained or hampered, as is being done
under the statute in dispute.
It is, of course, understood that this opinion is based on my considered view,
contrary to that of the majority, that as Section 8(a) stands and taking into account
its genesis, the ban against political parties is separable from that against other
associations within the contemplation of Section 21 of the Act which expressly refers
to the separability of the application thereof to any "persons, groups or
circumstances."
I reserve my right to expand this explanation of my vote in the next few days.
# 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 very purposes for which a new constitutional convention has
been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao vs.
Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I
maintain that the right of suffrage which is the cornerstone of any democracy like
ours is meaningless when the right to campaign in any election therein is
unreasonably and unnecessarily curtailed, restrained or hampered, as is being done
under the statute in dispute.
It is, of course, understood that this opinion is based on my considered view,
contrary to that of the majority, that as Section 8(a) stands and taking into account
its genesis, the ban against political parties is separable from that against other
associations within the contemplation of Section 21 of the Act which expressly refers
to the separability of the application thereof to any "persons, groups or
circumstances."
I reserve my right to expand this explanation of my vote in the next few days.
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 It does not thereby follow that while free from legislative control, a constitutional
words, "at an election at which the amendments are submitted to the people for convention may lay claim to an attribute sovereign in character. The Constitution is
their ratification," embodied in Section 1 of Article XV of the Constitution, has not quite explicit that it is to the people, and to the people alone, in whom sovereignty
been met. 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
FERNANDO, J., concurring and dissenting: 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
There is much to be said for the opinion of the Court penned by Justice Barredo,
exaggerated pretension that it is an alter ego of the people. It is to be admitted
characterized by clarity and vigor, its manifestation of fealty to the rule of law
that there are some American state decisions, the most notable of which is Sproule
couched in eloquent language, that commands assent. As the Constitution
v. Fredericks,3 a Mississippi case, that dates back to 1892, that yield a different
occupies the topmost rank in the hierarchy of legal norms, Congress and
conclusion. The doctrine therein announced cannot bind us. Our Constitution
Constitutional Convention alike, no less than this Court, must bow to its supremacy.
makes clear that the power of a constitutional convention is not sovereign. It is
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable,
appropriately termed constituent, limited as it is to the purpose of drafting a
if not indeed required by the Constitution, my conformity does not extend as far as
constitution or proposing revision or amendments to one in existence, subject in
the acceptance of the conclusion reached. The question presented is indeed
either case to popular approval.
novel, not being controlled by constitutional prescription, definite and certain.
Under the circumstances, with the express recognition in the Constitution of the The view that commends itself for acceptance is that legislature and constitutional
powers of the Constitutional Convention to propose amendments, I cannot discern convention, alike recognized by the Constitution, are coordinate, there being no
any objection to the validity of its action there being no legal impediment that superiority of one over the other. Insofar as the constituent power of proposing
would call for its nullification. Such an approach all the more commends itself to me amendments to the Constitution is concerned, a constitutional convention enjoys a
considering that what was sought to be done is to refer the matter to the people in wide sphere of autonomy consistently with the Constitution which can be the only
whom, according to our Constitution, sovereignty resides. It is in that sense that, with source of valid restriction on its competence. It is true it is to the legislative body that
due respect, I find myself unable to join my brethren. 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
I. It is understandable then why the decisive issue posed could not be resolved by
impair its usefulness for the delicate, and paramount task assigned to it. A
reliance on, implicit in the petition and the answer of intervenors, such concepts as
convention then is to be looked upon as if it were one of the three coordinate
legislative control of the constitutional convention referred to by petitioner on the
departments which under the principle of separation of powers is supreme within its
one hand or, on the other, the theory of conventional sovereignty favored by
field and has exclusive cognizance of matters properly subject to its jurisdiction. A
intervenors. It is gratifying to note that during the oral argument of petitioner and
succinct statement of the appropriate principle that should govern the relationship
counsel for respondents and intervenors, there apparently was a retreat from such
between a constitutional convention and a legislative body under American law is
extreme position, all parties, as should be the case, expressly avowing the primacy
that found in Orfield's work. Thus: "The earliest view seems to have been that a
of the Constitution, the applicable provision of which as interpreted by this Court,
convention was absolute. The convention was sovereign and subject to no restraint.
should be controlling on both Congress and the Convention. It cannot be denied
On the other hand, Jameson, whose views have been most frequently cited in
though that in at least one American state, that is Pennsylvania, there were
decisions, viewed a convention as a body with strictly limited powers, and subject
decisions announcing the doctrine that the powers to be exercised by a
to the restrictions imposed on it by the legislative call. A third and intermediate view
constitutional convention are dependent on a legislative grant, in the absence of
is that urged by Dodd — that a convention, though not sovereign, is a body
any authority conferred directly by the fundamental law. The result is a convention
independent of the legislature; it is bound by the existing constitution, but not by the
that is subordinate to the lawmaking body. Its field of competence is circumscribed.
acts of the legislature, as to the extent of its constituent power. This view has
It has to look to the latter for the delimitation of its permissible scope of activity. It is
become increasingly prevalent in the state decisions."4
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.
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.
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.
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. 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
I 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
Justiciability of question raised.
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
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.
without the concurrence of at least ten Members. ..." The Supreme Court has the last
Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional
word in the construction not only of treaties and statutes, but also of the Constitution
premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule
itself The amending, like all other powers organized in the Constitution, is in form a
that the valid source of a stature Presidential Decrees are of such nature-may be
delegated and hence a limited power, so that the Supreme Court is vested with
contested by one who will sustain a direct injuries as a in result of its enforcement. At
that authorities to determine whether that power has been discharged within its
the instance of taxpayers, laws providing for the disbursement of public funds may
limits.
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
Political questions are neatly associated with the wisdom, of the legality of a
misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all
particular act. Where the vortex of the controversy refers to the legality or validity of
appropriation of Five Million Pesos for the effective implementation of its purposes. 5
the contested act, that matter is definitely justiciable or non-political. What is in the
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out
heels of the Court is not the wisdom of the act of the incumbent President in
its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful
proposing amendments to the Constitution, but his constitutional authority to
expenditure of these amounts of public money sufficiently clothes them with that
perform such act or to assume the power of a constituent assembly. Whether the
personality to litigate the validity of the Decrees appropriating said funds. Moreover,
amending process confers on the President that power to propose amendments is
as regards taxpayer's suits, this Court enjoys that open discretion to entertain the
therefore a downright justiciable question. Should the contrary be found, the
same or not. 7 For the present case, We deem it sound to exercise that discretion
actuation of the President would merely be a brutum fulmen. If the Constitution
affirmatively so that the authority upon which the disputed Decrees are predicated
provides how it may be amended, the judiciary as the interpreter of that
may be inquired into.
Constitution, can declare whether the procedure followed or the authority assumed
2. The Solicitor General would consider the question at bar as a pure political one, was valid or not.10
lying outside the domain of judicial review. We disagree. The amending process
We cannot accept the view of the Solicitor General, in pursuing his theory of non-
both as to proposal and ratification, raises a judicial question. 8 This is especially true
justiciability, that the question of the President's authority to propose amendments
in cases where the power of the Presidency to initiate the of normally exercised by
and the regularity of the procedure adopted for submission of the proposal to the
the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious
power to propose amendments o the constitution resides in the interim National
circle. Is it not that the people themselves, by their sovereign act, provided for the
Assembly in the period of transition (See. 15, Transitory provisions). After that period,
authority and procedure for the amending process when they ratified the present
and the regular National Assembly in its active session, the power to propose
Constitution in 1973? Whether, therefore, the constitutional provision has been
amendments becomes ipso facto the prerogative of the regular National Assembly
followed or not is the proper subject of inquiry, not by the people themselves of
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been
course who exercise no power of judicial but by the Supreme Court in whom the
followed. Rather than calling the National Assembly to constitute itself into a
people themselves vested that power, a power which includes the competence to
constituent assembly the incumbent President undertook the proposal of
determine whether the constitutional norms for amendments have been observed
amendments and submitted the proposed amendments thru Presidential Decree
or not. And, this inquiry must be done a prior not a posterior i.e., before the
1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the
submission to and ratification by the people.
regularity regularity of the procedure for amendments, written in lambent words in
the very Constitution sought to be amended, raises a contestable issue. The Indeed, the precedents evolved by the Court or, prior constitutional cases underline
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly the preference of the Court's majority to treat such issue of Presidential role in the
amending process as one of non-political impression. In the Plebiscite Cases, 11 the
contention of the Solicitor General that the issue on the legality of Presidential
Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification
or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases12 involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the
Filipino people of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they claimed,
it partook of a political nature, and We unanimously declared that the issue was a
justiciable one. With Identical unanimity. We overruled the respondent's contention
in the 1971 habeas corpus cases, questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential proclamation
suspending the privilege of the writ of habeas corpus on August 21, 1971, despite
the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales vs. Commission on Elections, the political-question
theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by
the Court. Chief Justice Concepcion continued: "The reasons adduced in support
thereof are, however, substantially the same as those given in support on the
political question theory advanced in said habeas corpus and plebiscite cases,
which were carefully considered by this Court and found by it to be legally unsound
and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normally, the
amending process may be initiated by the proposals of the (1) regular National
Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional
Convention called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may be submitted to
the electorate in an election voted upon by a majority vote of all the members of
the National Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the National Assembly upon special call by the
interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace and order in
the country." Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates to the Constitutional Convention
voted on the Transitory Provisions, they were aware of the fact that under the same,
the incumbent President was given the discretion as to when he could convene the
interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza;
as a matter of fact, the proposal that it be convened 'immediately', made by
Delegate Pimentel (V) was rejected. The President's decision to defer the convening
of the interim National Assembly soon found support from the people themselves. In
the plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of the interim
National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the proposed
question of whether the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates of the
Constitutional Convention, who were deemed automatically members of the I
interim National Assembly, were against its inclusion since in that referendum of
January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals
of amendment to a Constitution, that body is not in the usual function of
lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it
is exercising a peculiar power bestowed upon it by the fundamental charter itself. In
the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for
the regular National Assembly) or in Section 15 of the Transitory Provisions (for the
National Assembly). While ordinarily it is the business of the legislating body to
legislate for the nation by virtue of constitutional conferment amending of the
Constitution is not legislative in character. In political science a distinction is made
between constitutional content of an organic character and that of a legislative
character'. The distinction, however, is one of policy, not of law.17 Such being the
case, approval of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only to the ordinary
cases of legislation. The President has nothing to do with proposition or adoption of
amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis
government today are more or less concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as
imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any two or
more types of power, and certainly a total disregard of the separation of powers is,
as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal
times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of the state and its
independent existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even if this means
the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the
more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential
systems of government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must not
only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. 21 John Locke, on the other hand, claims for
the executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power
had not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a
conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus:23
The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and the powers vested in the President
and the Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall then
exercise their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative
powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is
an extremely important factor in any constitutional dictatorship which extends over
a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady
increase in executive power is not too much a cause for as the steady increase in
the magnitude and complexity of the problems the President has been called upon
by the Filipino people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis-a crisis greater than war. In short,
while conventional constitutional law just confines the President's power as
Commander-in-Chief to the direction of the operation of the national forces, yet the
facts of our political, social, and economic disturbances had convincingly shown
that in meeting the same, indefinite power should be attributed to tile President to
take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the
interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President opted to
defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the President
(See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign
will, the President decided not to call the interim National Assembly. Would it then
be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's
legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why
he cannot validly discharge the function of that Assembly to propose amendments
to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a
constituent assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency and the
Supreme Court in operation, the urges of absolute necessity render it imperative
upon the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and
decline to undertake the amending process would leave the governmental
machineries at a stalemate or create in the powers of the State a destructive
vacuum, thereby impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After
all, constituent assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of
January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President
of its present powers in a referendum to be held on October 16 .28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National Referendum-
Plebiscite on October 16.
V the proposed amendments, only those of voting age of 18 years may participate.
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
This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years
old and above which will have valid bearing on the results. The fact that the voting
populace are simultaneously asked to answer the referendum question and the
plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear
of commingled votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot
box for voters fifteen years of age and under eighteen shall be counted ahead of
the ballots of voters eighteen years and above contained in another ballot box.
And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of assessing
public reaction to the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the executive power of
the President.39 It is participated in by all citizens from the age of fifteen, regardless
of whether or not they are illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the election Literacy,
property or any other substantive requirement is not imposed. It is generally
associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, 41 is impressed with a
mild character recorded no State imposition for a muffled voice. To be sure, there
are restraints of the individual liberty, but on certain grounds no total suppression of
that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on
the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution,
which is already a settled matter.43 Even government employees have been held
by the Civil Service Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too
short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been living
with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's suffrage
amendment to the Constitution before the scheduled plebiscite on April 30, 1937
(Com. Act No. 34). The constitutional amendment to append as ordinance the
complicated Tydings-Kocialskowski was published in only three consecutive issues of
the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For
the 1940 Constitutional amendments providing for the bicameral Congress, the
reelection of the President and Vice President, and the creation of the Commission
on Elections, 20 days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the independence of
the Republic was publicized in three consecutive issues of the Official Gazette for 20
days prior to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held
not later than three months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second, it is only when there
is deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the approbation
of the people, hence, it must be done contemporaneously. 47 In the words of
Jameson, "(a)n alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as waived, and
not again to be voted upon, unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?
2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma,
Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the
question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative,
while Associate Justices Teehankee and Munoz Palma voted in the negative.
Associate Justice Fernando, conformably to his concurring and dissenting opinion in
Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus raising serious
doubts as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people.
Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and
Antonio are of the view that the question is political and therefore beyond the
competence and cognizance of this Court, Associate Justice Fernando adheres to
his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs.
COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold
that prescinding from the President's lack of authority to exercise the constituent
power to propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in opposition thereto, as well as the arguments
adduced by the counsels of the parties at the hearing had on October 7 and 8,
1976, three vital issues readily project themselves as the centers of controversy,
namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?
(2) During the present stage of the transition period, and under the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machineries and
prescribe the procedure for the ratification of his proposals by the people?
(3) Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper, submission"
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 I have thus no hesitancy in concluding that the question here presented is well
completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA within the periphery of judicial inquiry.
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 II
(Amendments) of the 1935 Constitution is inherently and essentially justiciable.
Second Issue
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil.
The main question stands on a different footing; it appears unprecedented both
1051)-
here and elsewhere. Its solution, I believe, can be found and unraveled only by a
... the term 'political question' connotes, in legal parlance, what it means in critical assessment of the existing legal order in the light of the prevailing political
ordinarily parlance, namely, a question of policy in matters concerning the and factual milieu.
government of a State, as a body politic. In other words, in the language of Corpus
To be sure, there is an impressive array of consistent jurisprudence on the proposition
Juris Secundum (supra), it refers to 'those questions which, under the Constitution,
that, normally or under normal conditions, a Constitution may be amended only in
are to be decided by the people in their sovereign capacity, or in regard to which
accord with the procedure set forth therein. Hence, if there be any such
full discretionary authority has been delegated to the Legislature or executive
prescription for the amendatory process as invariable there is because one of the
branch of the government.' It is concerned with issues dependent upon the wisdom,
essential parts of a Constitution is the so-called "constitution of sovereignty" which
not legality, of a particular measure.'
comprises the provision or provisions on the modes in accordance with which formal
Accordingly, when the grant of power is qualified, conditional or subject to changes in the fundamental law may be effected the same would ordinarily be the
limitations, the issue on whether or not the prescribed qualifications or conditions controlling criterion for the validity of the amendments sought.
have been met, or the limitations respected, is justiciable or non-political, the crux of
Unfortunately, however, during the present transition period of our political
the problem being one of legality or validity of the contested act, not its wisdom.
development, no express provision is extant in the Constitution regarding the
Otherwise, said qualifications, conditions or limitations - particularly those prescribed
agency or agent by whom and the procedure by which amendments thereto may
or imposed by the Constitution - would be set at naught." (Javellana vs. Executive
be proposed and ratified fact overlooked by those who challenge the validity of
Secretary, supra).
the presidential acts in the premises. This is so because there are at least two
So it is in the situation here presented. The basic issue is the constitutional validity of distinctly in the transition from the old system of government under the 1935
the presidential acts of proposing amendments to the Constitution and of calling a Constitution to the new one established by the 1973 Constitution.
referendum-plebiscite for the ratification of the proposals made. Evidently, the
The first stage comprises the period from the effectivity of the Constitution on
question does not concern itself with the wisdom of the exercise of the authority
January 17, 1973 to the time the National Assembly is convened by the incumbent
claimed or of the specific amendments proposed. Instead the inquiry vel non is
President and the interim President and the interim Prime Minister are chosen Article
focused solely on the existence of the said power in the President - a question purely
XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the
of legality determinable thru interpretation and construction of the letter and spirit
nation's political life was recognized by the Court in Aquino vs. Commission on
of the Constitution by the Court as the final arbiter in the delineation of
Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim
constitutional boundaries and the allocation of constitutional powers.
that, under the 1973 Constitution, the President was in duty bound to convene the
For the Court to shun cognizance of the challenge herein presented, especially in interim National Assembly soon after the Constitution took effect.
these parlous years, would be to abdicate its constitutional powers, shirk its
The second stage embraces the period from the date the interim National Assembly
constitutional responsibility, and deny the people their ultimate recourse for judicial
is convened to the date the Government described in Articles VII to IX of the
determination.
Constitution is inaugurated, following the election of the members of the regular
National Assembly (Article XVII, Section 1) and the election of the regular President
and Prime Minister,. This is as it should be because it is recognized that the President
has been accorded the discretion to determine when he shall initially convene the
interim National Assembly, and his decision to defer the convocation thereof has
found overwhelming support by the sovereign people in two previous referenda,
therein giving reality to an interregnum between the effectivity of the Constitution
and the initial convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the two sets of
provisions embodied in the Constitution on the amendatory process applied during
the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim Prime
Minister" limits the application thereof to the second stage of the transition period,
i.e.,., after the interim? National Assembly shall have been convened and the
interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit-
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.
SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or revision unequivocally
contemplate amendments after the regular Government shall have become fully
operative, referring as they do to the National Assembly which will come into being
only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the aforesaid first
stage and, if in the affirmative, by whom and in what manner such amendments
may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a
mere declaration of the traditions of a nation but more the embodiment of a
people's hopes and aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to the living social
organism they seek to fashion and govern. If it is conceded that "the political or
philosophical aphorism of one generation is doubted by the next and entirely
discarded by the third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive, progress and endure.
On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present -
which is understandably the most critical - the need for change may be most
pressing and imperative, and to disavow the existence of the right to amend the
Constitution would be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic conception of
the Constitution by depriving it of its means of growth. Such a result obviously could
not have been intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period would come to pass
before the convocation of the interim National Assembly was not anticipated,
hence, the omission of an express mandate to govern the said situation in so far as
amendments are concerned. But such omission through inadvertence should not,
because it cannot, negate the sovereign power of the people to amend the
fundamental charter that governs their lives and their future and perhaps even the
very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious
mode of amending the Constitution during the transition period. For, while under
Article XVI thereof, proposals for amendment may be made directly by the regular
National Assembly by a vote of at least three-fourths of all its members, under
Section 15 of Article XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the disparity in the vote
requirement are revealing. The can only signify a recognition of the need to
facilitate the adoption of amendments during the second stage of the transition
period so that the interim National Assembly will be able, in a manner of speaking,
to iron out the kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the establishment of the
regular Government. In this contest, therefore, it is inutile speculation to assume that
the Constitution was intended to render impotent or ar the effectuation of needful
change at an even more critical period - the first stage. With greater reason,
therefore, must the right and power to amend the Constitution during the first stage
of te transition period be upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only by
convening the interim National Assembly. That is to say and require that he said
stage must first be brought to an end before any amendment may be proposed
and ratified. Settled jurisprudence does not square with such a proposition. As aptly
noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly
because they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of martial law would last. Indeed, the
framers committed to the sound judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent such
a taint, the matter is solely in the keeping of the President. To thus content that only
by convening the interim National Assembly may the Constitution be amended at
this time would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore,
to sustain such a contention would not only negate the mandate so resoundingly
expressed by the people in two national referenda against the immediate
convening of the interim National Assembly, but as well deride their overwhelming
approval of the manner in which the President has exercised the legislative power
to issue proclamations, orders, decrees and instructions having the stature and force
of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom, then,
may proposals for the amendment of the Constitution be made and in what
manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confuse with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the proposition that, in
default of an express grant thereof, the legislature - traditionally the delegated
repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by
constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-making agency and at this stage of the transition
period the law-making authority is firmly recognized as being lodged in the
President, the said constituent power should now logically be in the hands of te
President who may thus exercise it in place of the interim National Assembly.
Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the
power to amend the Constitution or to propose amendments thereto
... is part of the inherent powers of the people - as the repository of sovereignty in a
republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown
that the people, inadvertently or otherwise, have not delegated that power to
inadvertently or otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it follows of necessity
that the same remains with them for them to exercise in the manner they see fit and
through the agency they choose. And, even if it were conceded that - as it is
reputedly the rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power delegated which
they may not thereafter unilaterally reclaim from the delegate, there would be no
violence donde to such rule, assuming it to be applicable here, inasmuch as that
power, under the environmental circumstance adverted to, has not been
delegated to anyone in the first place. The constituent power during the first stage
of the transition period belongs to and remains with the people, and accordingly
may be exercised by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious
immorality" of the unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso facto members of the
interim National Assembly by the mere fiat of voting for the transitory provisions of
the Constitution. and the stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a veritable drain on the
meager financial resources of a nation struggling for survival, have unequivocally
put their foot down, as it were, on the convocation thereof. But this patently salutary
decision of the people proved to be double-edged. It likewise bound the political
machinery of the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations
in the barangays and sanggunian assemblies, the instrumentalities through which
the people's voice is articulated in the unique system of participatory democracy in
the country today, the underpinnings for the hastening of the return to constitutional
normalcy quickly evolved into an overwhelming sentiment to amend the
Constitution in order to replace the discredited interim National Assembly with what
the people believe will be an appropriate agency to eventually take over the law-
making power and thus pave the way for the early lifting of martial rule. In pursuit of
this sentiment, and to translate its constraints into concrete action, the Pambansang
Katipunan ng Barangay, the Pambansang Katipunan ng mga Kabataang
Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang
Bayan, to a man and as one voice, have come forward with definitive proposals for
the amendment of the Constitution, and, choosing the President the only political
arm of the State at this time through which that decision could be implemented
and the end in view attained as their spokesman, proposed the amendments under
challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendum-
plebiscite are factually not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. The President merely
formalized the said proposals in Presidential Decree No. 1033. It being conceded in
all quarters that sovereignty resides in the people and it having been demonstrated
that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the
transition period of our political development, the conclusion is ineluctable that their
exertion of that residuary power cannot be vulnerable to any constitutional
challenge as being ultra vires. Accordingly, without venturing to rule on whether or
not the President is vested with constituent power as it does not appear necessary
to do so in the premises the proposals here challenged, being acts of the sovereign
people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is even
less vulnerable not only because the President, in exercising said authority has
acted as a mere alter ego of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of
the proposed amendments for ratification from the standpoint of time. The thesis
cannot be disputed that a fair submission presupposes an adequate time lapse to
enable the people to be sufficiently enlightened on the merits or demerits of the
amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the crystallization of sentiments
that for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence, unlike
proposals emanating from a legislative body, the same cannot but be said to have
been mulled over, pondered upon, debated, discussed and sufficiently understood
by the great masses of the nation long before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973 Constitution was submitted to the people for ratification,
an all-out campaign, in which all the delegates of the Constitutional Convention
reportedly participated, was launched to acquaint the people with the
ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in general
have since acquired, in the least, a working knowledge of the entirety of the
Constitution. The changes now proposed the most substantial of which being
merely the replacement of the interim National assembly with another legislative
arm for the Government during the transition period until the regular National
Assembly shall have been constituted do not appear to be of such complexity as to
require considerable time to be brought home to the full understanding of the
people. And, in fact, the massive and wide-ranging informational and educational
campaign to this end has been and still is in full swing, with all the media the
barangay, the civic and sectoral groups, and even the religious all over the land in
acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote could
very well mean an understanding of the proposals which they reject; while an
affirmative vote could equally be indicative Of such understanding and/or an
abiding credence in the fidelity with which the President has kept the trust they
have confided to him as President and administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass judgment
upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at
bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in Javellana v.
Executive Secretary and followed successively in three crucial decisions, Aquino v.
Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military Commission,5
manifest to the same degree the delicate and awesome character of the function
of judicial review. While previous rulings supply guidance and enlightenment, care is
to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the
urgencies of the times. It is inappropriate to resolve the complex problems of a
critical period without full awareness of the consequences that flow from whatever
decision is reached. Jural norms must be read in the context of social facts, There is
need therefore of adjusting inherited principles to new needs. For law, much more
so constitutional law, is simultaneously a reflection of and a force in the society that
it controls. No quality then can be more desirable in constitutional adjudication than
that intellectual and imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they must become It must
inquire into the specific problem posed not only in terms of the teaching of the past
but also of the emerging political and legal theory, especially so under a leadership
notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that
this Court must be conscious of the risk inherent in its being considered as a mere
subservient instrument of government policy however admittedly salutary or
desirable. There is still the need to demonstrate that the conclusion reached by it in
cases appropriate for its determination has support in the law that must be applied.
To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that based
on my reading of past decisions, both Philippine and American, and more
specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the
proposition set forth in the able and scholarly opinion of Justice Martin that there is
concentration of power in the President during a crisis government. Consequently, I
cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the very least, serious doubts could be
entertained on the matter.
1. With due respect then, I have to dissociate myself from my brethren who would
rule that governmental powers in a crisis government, following Rossiter, "are more
or less concentrated in the President." Adherence to my concurring and dissenting
opinion in Aquino v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines supplied by our
past decisions to point the way to what I did consider the appropriate response to
the basic issue raised in the Aquino and the other habeas corpus petitions resolved
jointly, it was only in the latter portion of my opinion that reference was made to
United States Supreme Court pronouncements on martial law, at the most
persuasive in character and rather few in number "due no doubt to the, absence in
the American Constitution of any provision concerning it." 7 It was understandable
then that it was only after the landmark Ex parte Milligan case, that commentators
like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the
subject." It was next set forth that in the works on American constitutional law
published in this century specially after the leading cases of cases Sterling v.
Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the
question of martial law While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick, came
out earlier with a similar appraisal.10 Thus: "So called martial law, except in
occupied territory of an enemy is merely the calling in of the aid of military forces by
the executive, who is charged with the enforcement of the law, with or without
special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of one's ordinary
rights. The right to call out the military forces to maintain order and enforce the law
is simply part of the Police power, It is only justified when it reasonably appears
necessary, and only justifies such acts as reasonably appear necessarily to meet the
exigency, including the arrest, or in extreme cases the. killing of those who create
the disorder or oppose the authorities. When the exigency is over the members of
the military forces are criminally and civilly habit for acts done beyond the scope of
reasonable necessity. When honestly and reasonably coping with a situation of
insurrection or riot a member of the military forces cannot be made liable for his
acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited
Willoughby's concept of martial law, stress was laid on his being "Partial to the claims
of liberty."12 This is evident in the explicit statement from his work quoted by me:
"There is, then, strictly speaking, no such thing in American law as a declaration of
martial law whereby military law is substituted for civil law. So-called declarations of
martial law are, indeed, often made but their legal effect goes no further than to
warn citizens that the military powers have been called upon by the executive to
assist him in the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of
law. Some of the authorities stating substantially this doctrine are quoted in the
footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial
law proper, that is, military law in case of insurrection, riots, and invasions, is not a
substitute for the civil law, but is rather an aid to the execution of civil law.
Declarations of martial law go no further than to warn citizens that the executive
has called upon the military power to assist him in the maintenance of law and
order. While martial law is in force, no new powers are given to the executive and
no civil rights of the individual, other than the writ of habeas corpus, are suspended.
The relations between the citizen and his stature unchanged."14
The conclusion reached by me as to the state of American federal law on the
question of martial law was expressed thus: 4'1 It is readily evident that even when
Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be
surprising if his opinion were otherwise. After Duncan, such an approach becomes
even more strongly fortified. Schwartz, whose treatise is the latest to be published,
has this summary of what he considers the present state of American law: 'The
Milligan and Duncan cases show plainly that martial law is the public law of
necessity. Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the high Court
has affirmed, an unbending rule of law that the exercise of military power, where
the rights of the citizen are concerned, may, never be pushed beyond what the
exigency requires. If martial law rule survive the necessities on which alone it rests,
for even a single minute it becomes a mere exercise of lawless violence.' Further:
Sterling v. Constantin is of basic importance. Before it, a number of decisions,
including one the highest Court, went or on the theory that the executive had a
free hand in taking martial law measures. Under them, it has been widely supposed
that in proclamation was so far conclusive that any action taken under it was
immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them. Under Sterling v.
Constantin, where martial law measures impinge upon personal or property rights-
normally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is
not of itself conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is the legal effect of
martial law being expressly provided for in the Constitution rather than being solely
predicated on the common law power based on the urgent need for it because of
compelling circumstances incident to the state of actual clash of arms: "It is not to
be lost sight of that the basis for the declaration of martial law in the Philippines is
not mere necessity but an explicit constitutional provision. On the other hand,
Milligan, which furnished the foundation for Sterling and Duncan had its roots in the
English common law. There is pertinence therefore in ascertaining its significance
under that system. According to the noted English author, Dicey: 'Martial law,' in the
proper sense of that term, , in which - it means the suspension of ordinary law and
the temporary government of a country or parts of it be military tribunals, is unknown
to the law of England. We have nothing equivalent to what is called in France the
"Declaration of the State of Siege," under which the authority ordinarily vested in the
civil power for the maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the permanent supremacy of the
law under our constitution. There was this qualification: 'Martial law is sometimes
employed as a name for the common law right of the Crown and its servants to
repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very existence of
orderly government, and is most assuredly recognized in the most ample manner by
the law of England. It is a power which has in itself no special connection with the
existence of an armed force. The Crown has the right to put down breaches of the
peace. Every subject, whether a civilian or a soldier, whether what is called a
servant of the government,' such for example as a policeman, or a person in no
way connected with the administration, not only has the right, but is, as a matter of
legal duty, bound to assist in putting down breaches of the peace. No doubt
policemen or soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to suppress a riot, but it is
clear that all loyal subjects are bound to take their part in the suppression of riots."16
Commitment to such an approach results in my inability to subscribe to the belief
that martial law in terms of what is provided both in the 1935 and the present
Constitution, affords sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering the juristic theory on
which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact that
before the former Congress could meet in regular session anew, the present
Constitution was adopted, abolishing it and providing for an interim National
Assembly, which has not been convened.18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he spoke
of martial rule as "a device designed for use in the crisis of invasion or rebellion. It
may be most precisely defined as an extension of military government to the civilian
population, the substitution of the will of a military commander for the will of the
people's elected government."19 Since, for me at least, the Rossiter characterization
of martial law has in it more of the common law connotation, less than duly mindful
of the jural effects of its inclusion in the Constitution itself as a legitimate device for
coping with emergency conditions in times of grave danger, but always subject to
attendant limitations in accordance with the fundamental postulate of a charter's
supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration
of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis,
Schwartz formulations paying due regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian
in scope, has been adopted, even on the assumption that it can be reconciled with
our Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution
and that the validity of acts taken there under could be passed upon by the
Supreme court. For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity, which puts a
premium on freedom."20
3. Candor and accuracy compel the admission that such a conclusion his to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on
Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that
as Commander-in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees during the period
Martial Law essential to the security and preservation of the Republic, to the
defense of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the
threat thereof as well as to meet the impact of a worldwide recession, inflation or
economic crisis which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses Juristic
significant in this jurisdiction. What, for me at least, gives caused for concern is that
with the opinion of the Court this intrusion of what I would consider an alien element
in the limited concept of martial law as set forth in the Constitution would be
allowed further incursion into the corpus of the law, with the invocation of the view
expressed in the last chapter of his work approving tile "concentration of
governmental power in a democracy [as] a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers." 22 It is to the credit of the late
Professor Rossiter as an objective scholar that in the very same last chapter, just
three pages later, he touched explicitly on the undesirable aspect of a
constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A
declaration of martial law or the passage of an enabling act is a step which must
always be feared and sometimes bitterly resisted, for it is at once an admission of
the incapacity of democratic institutions to defend the order within which they
function and a too conscious employment of powers and methods long ago
outlawed as destructive of constitutional government. Executive legislation, state
control of popular liberties, military courts, and arbitrary executive action were
governmental features attacked by the men who fought for freedom not because
they were inefficient or unsuccessful, but because they were dangerous and
oppressive. The reinstitution of any of these features is a perilous matter, a step to be
taken only when the dangers to a free state will be greater if the dictatorial
institution is not adopted."23
4. It is by virtue of such considerations that I find myself unable to share the view of
those of my brethren who would accord recognition to the Rossiter concept of
concentration of governmental power in the Executive during periods of crisis. This is
not to lose sight of the undeniable fact that in this country through the zeal, vigor,
and energy lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be found in a
recent address of the First Lady before the delegates to the 1976 international
Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has
been done in so brief a time. Since September 1972, when President Marcos
established the crisis government, peace and order have been restored in a
country once avoided as one of the most unsafe in the world. We have liberated
millions of Filipino farmers from the bondage of tenancy, in the most vigorous and
extensive implementation of agrarian reform."24 Further, she said: "A dynamic
economy has replaced a stagnant order, and its rewards are distributed among the
many, not hoarded by a few. Our foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed isolation, now travels the broad
expressways of friendship and constructive interaction with the whole world, these in
a new spirit of confidence and self-reliance. And finally, forced to work out our own
salvation, the Filipino has re-discovered the well-springs of his strength and resilience
As Filipinos, we have found our true Identity. And having broken our crisis of Identity,
we are no longer apologetic and afraid. "25 The very Idea of a crisis, however,
signifies a transitory, certainly not a permanent, state of things. President Marcos
accordingly has not been hesitant in giving utterance to his conviction that full
implementation of the modified parliamentary system under the present
Constitution should not be further delayed. The full restoration of civilian rule can
thus be expected. That is more in accord with the imperatives of a constitutional
order. It should not go unnoticed either that the President has referred to the
present regime as one of "constitutional authoritarianism." That has a less
objectionable ring, authority being more Identified with the Idea of law, as based
on right, the very antithesis of naked force, which to the popular mind is associated
with dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of
the Court, while no doubt a partisan of d strong Presidency, was not averse to
constitutional restraints even during periods of crisis. So I would interpret this excerpt
from the fourth edition of his classic treatise on the Presidency: "A regime of martial
law may be compendiously, if not altogether accurately, defined as one in which
the ordinary law, as administered by the ordinary courts, is superseded for the time
being by the will of a military commander. It follows that, when martial law is
instituted under national authority, it rests ultimately on the will of the President of the
United States in his capacity as Commander-in-Chief. It should be added at once,
nevertheless, that the subject is one in which the record of actual practice fails
often to support the niceties of theory. Thus, the employment of the military arm in
the enforcement of the civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section, soldiers are often
placed simply at the disposal and direction of the civil authorities as a kind of
supplementary police, or posse comitatus on the other hand be reason of the
discretion that the civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an employment of the
military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into military government
and the other into the situation just described, in which the civil authority remains
theoretically in control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War, when the privilege
of the writ of habeas corpus was suspended as to certain classes of suspects,
although other characteristics of martial law were generally absent."26
It is by virtue of the above considerations that, with due respect to the opinion of my
brethren, I cannot yield assent to the Rossiter view of concentration of
governmental powers in the Executive during martial law.
5 There is necessity then, for me at least, that the specific question raised in all three
petitions be squarely faced. It is to the credit of the opinion of the Court that it did
so. The basic issue posed concerns the boundaries of the power of the President
during this period of martial law, more precisely whether it covers proposing
amendments to the Constitution. There is the further qualification if the stand of
respondents be taken into account that the interim National Assembly has not been
convened and is not likely to be called into session in deference to the wishes of the
people as expressed in three previous referenda. It is the ruling of the majority that
the answer be in the affirmative, such authority being well within the area of
presidential competence. Again I find myself unable to join readily in that
conviction. It does seem to me that the metes and bounds of the executive
domain, while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction
of the principle that underlies Aquino v. Commission on Elections as to the validity of
the exercise of the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been reached. I
cannot simply ignore the vigorous plea of petitioners that there is a constitutional
deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team
National Assembly.27 The learned advocacy reflected in the pleadings as well as
the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the
grave doubts in my mind that the Aquino doctrine as to the possession of legislative
competence by the President during this period of transition with the interim
lawmaking body not called into session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach would
lose sight of the distinction between matters legislative and constituent. That is
implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In
their casebook published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known authority on
the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the
general grant of legislative power for such grant does not carry with it the right 'to
erect the state, institute the form of its government,' which is considered a function
inherent in the people. Congressional law- making authority is limited to the power
of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that
distinction be preserved, then for me the aforecited Aquino decision does not
reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar
as well as that of the then Justice, now Chief Justice, Castro, support for the ruling
that the President cannot be deemed as devoid of legislative power during this
transition stage is supplied by implications from explicit constitutional provisions.13
That is not the case with the power to propose amendments. It is solely the interim
National Assembly that is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a
dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel confident therefore that a negative
vote on my part would be warranted. What would justify the step taken by the
President, even if no complete acceptance be accorded to the view that he was a
mere conduit of the barangays on this matter, is that as noted in both qualified
concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the
legislative and appropriately powers are concerned, is the necessity that unless
such authority be recognized, there may be paralyzation of governmental activities,
While not squarely applicable, such an approach has, to my mind, a persuasive
quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle that
judicial review goes no further than to checking clear infractions of the fundamental
law, except in the field of human rights where a much greater vigilance is required,
That is to make of the Constitution a pathway to rather than a barrier against a
desirable objective. -As shown by my concurring and dissenting opinion in Tolentino
Commission on Elections '34 a pre-martial law decision, the fundamental postulate
that sovereignty resides in the people exerts a compelling force requiring the
judiciary to refrain as much as possible from denying the people the opportunity to
make known their wishes on matters of the utmost import for the life of the nation,
Constitutional amendments fall in that category. I am fortified in that conviction by
the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting
opinion in Aytona v. Castillo,17 Which I consider applicable to the present situation.
These are his words "It is well settled that the granting of writs of prohibition and
mandamus is ordinarily within the sound discretion of the courts, to be exercised on
equitable principles, and that said writs should be issued when the right to the relief
is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand,
no injunction was issued. This was evident in the dispositive portion where judgment
was rendered "declaring that respondent Executive Secretary had and has no
power to authorize the importation in question; that he exceeded his jurisdiction in
granting said authority; that said importation is not sanctioned by law and is
contrary to its provisions; and that, for lack of the requisite majority, the injunction
prayed for must be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on my part would
necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle
in any way the action taken by petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the rule of law. Even if their contention as
to lack of presidential power be accepted in their entirety, however, there is still
discretion that may be exercised on the matter, prohibition being an equitable
remedy. There are, for me, potent considerations that argue against acceding to
the plea. With the prospect of the interim National Assembly being convened being
dim, if not non- existent, if only because of the results in three previous referenda,
there would be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for adoption. Of even
greater weight, to my mind, is the pronouncement by the President that the
plebiscite is intended not only to solve a constitutional anomaly with the country
devoid of a legislative body but also to provide. the machinery be which the
termination of martial law could be hastened. That is a consummation devoutly to
be wished. That does militate strongly against the stand of petitioners. The
obstruction they would pose may be fraught with pernicious consequences. It may
not be amiss to refer anew to what I deem the cardinal character of the jural
postulate explicitly affirmed in both the 1935 and the present Constitutions that
sovereignty resides in the people. So I made clear in Tolentino v. Commission on
Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and
my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country
lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of
the essence. Nonetheless, it is their will, if given expression in a manner sanctioned
by law and with due care that there be no mistake in its appraisal, that should be
controlling. There is all the more reason then to encourage their participation in the
power process. That is to make the regime truly democratic. Constitutional
orthodoxy requires, however, that the fundamental law be followed. So I would
interpret Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its commitment to
the principle that the amending process gives rise to a justiciable rather than a
political question. So, it has been since the leading case of Gonzales v. Commission
on Election S.48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The
Executive Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in Mabanag v.
Lopez Vito. 52 This is not to deny that the federal rule in the United States as set forth
in the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent
State court decisions, supply ammunition to such a contention.,51 That may be the
case in the United States, but certainly not in this jurisdiction. Philippine constitutional
tradition is to the contrary. It can trace its origin to these words in the valedictory
address before the 1934-35 Constitutional Convention by the illustrious Claro M.
Recto: "It is one of the paradoxes a democracy that the people of times place
more confidence in instrumentalities of the State other than those directly chosen
by them for the exercise of their sovereignty It can be said with truth, therefore, that
there has invariably been a judicial predisposition to activism rather than self-
restraint. The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere
interpreter; it did exercise at times creative power. It has to that extent participated
in the molding of policy, It has always recognized that in the large and undefined
field of constitutional law, adjudication partakes of the quality of statecraft. The
assumption has been that just because it cannot by itself guarantee the formation,
much less the perpetuation of democratic values or, realistically, it cannot prevail
against the pressure of political forces if they are bent in other directions. it does not
follow that it should not contribute its thinking to the extent that it can. It has been
asked, it will continue to be asked, to decide momentous questions at each critical
stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties in an
era of transformation and change. A society in flux calls for dynamism in "he law,
which must be responsive to the social forces at work. It cannot remain static. It
must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must
resist the temptation of allowing in the wasteland of meaningless abstractions. It
must face stubborn reality. It has to have a feel for the complexities of the times. This
is not to discount the risk that it may be swept too far and too fast in the surge of
novel concepts. The past too is entitled to a hearing; it cannot just be summarily
ignored. History still has its uses. It is not for this Court to renounce the virtue of
systematic jural consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what appears to
be a splintered society. It should strive to be a factor for unity under a rule of law.
There must be, on its part, awareness of the truth that a new juridical age born
before its appointed time may be the cause of unprecedented travail that may not
end at birth. It is by virtue of such considerations that I did strive for a confluence of
principle and practicality. I must confess that I did approach the matter with some
misgivings and certainly without any illusion of omniscience. I am comforted by the
thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my
studies on the subject of constitutional law and, much more so, by previous judicial
opinions to concur in the dismissal of the petitions. If I gave expression to byes not
currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the
first to recognize the worth of' the social and economic reforms so needed by the
troubled present that have been introduced and implemented. There is no thought
then of minimizing, much less of refusing to concede, the considerable progress that
has been made and the benefits that have been achieved under this
Administration. Again, to reiterate one of my cherished convictions, I certainly
approve of the adherence to the fundamental principle of popular sovereignty
which, to be meaningful however, requires both freedom in its manifestation and
accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a
distinction was made between two aspects of the coming poll, the referendum and
the plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my concurrence in
Aquino v. Commission on Elections,56 full respect for free speech and press, free
assembly and free association. There should be no thought of branding the
opposition as the enemy and the expression of its views as anathema, Dissent, it is
fortunate to note, has been encouraged. It has not been Identified with disloyalty.
That ought to be the case, and not solely due to presidential decrees. Constructive
criticism is to be welcomed not so much because of the right to be heard but
because there may be something worth hearing. That is to ensure a true ferment of
Ideas, an interplay of knowledgeable minds. There are though well- defined limits,
One may not advocate disorder in the name of protest, much less preach rebellion
under the cloak of dissent.. What I mean to stress is that except on a showing of
clear and present danger, there must be respect for the traditional liberties that
make a society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit
and vote to grant the petitions for the following reasons and considerations: 1. It is
undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the
incumbent President the constituent power to propose and approve amendments
to the Constitution to be submitted to the people for ratification in a plebiscite. The
1935 Constitution expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call a constitutional
convention for the purpose The 1973 Constitution expressly vests the constituent
power in the regular National Assembly to propose amendments (by a three-fourths
vote of all its members) or "call a constitutional convention" (by a two-thirds vote of
all its members) or "submit the question of calling such convention to the electorate
in an election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the constituent
power during the period of transition in the interim National Assembly "upon special
call be the Prime Minister (the incumbent President 3)... by a majority ore of all its
members (to) propose amendments."
Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the
President's questioned decrease proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and
legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case
at bar In therein declaring null and void the acts of the 1971 Constitutional
Convention and of the Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from 21 years to 18
years, and issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the people
As long as an amendment is formulated and submitted under the aegis of the
present Charter, any proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court ;8
The real issue here cannot be whether or not the amending process delineated by
the present Constitution may be disregarded in favor of allowing the sovereign
people to express their decision on the proposed amendments, if only because it is
evident that the very Idea of departing from the fundamental law is anachronistic in
the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9
and
-Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendments and the manner of its submission to
the people for ratification or rejection" did not "conform with the mandate of the
people themselves in such regard, as expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending process as set forth in the Article on
Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is
clear that where the proposed amendments are violative of the Constitutional
mandate on the amending process not merely for being a "partial amendment" of
a "temporary or provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it
is only the interim National Assembly, upon special call of the interim Prime Minister,
bu a majority vote of all its members that may propose the amendments, the Court
must declare the amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount law, unchangeable by
ordinary means" 11 but only by the particular mode and manner prescribed therein
by the people. As stressed by Cooley, "by the Constitution which they establish, (the
people) not only tie up the hands of their official agencies but their own hands as
well; and neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the legislative body
(the regular National Assembly) or the interim National Assembly during the
transition period) or in a constitutional convention called for the purpose is in
accordance with universal practice. "From the very necessity of the case" Cooley
points out "amendments to an existing constitution, or entire revisions of it, must be
prepared and matured by some body of representatives chosen for the purpose. It
is obviously impossible for the whole people to meet, prepare, and discuss the
proposed alterations, and there seems to be no feasible mode by which an
expression of their will can be obtained, except by asking it upon the single point of
assent or disapproval." This body of representatives vested with the constituent -
power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for ratification or
rejection.13
5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in denying reconsideration in paraphrase of the late
Claro M. Recto declared that "let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental purportedly in order to attain
some laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the Constitution the
victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his
dissenting opinion in the Ratification cases 14 that "we will be opening the gates for
a similar disregard to the Constitution in the future. What I mean is that if this Court
now declares that a new Constitution is now in force because the members of the
citizens assemblies had approved said new Constitution, although that approval
was not in accordance with the procedure and the requirements prescribed in the
1935 Constitution, it can happen again in some future time that some amendments
to the Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendments is submitted to the
people in any manner and what will matter is that a basis is claimed that there was
approval by the people. There will not be stability in our constitutional system, and
necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to so
overrule) to accept the proposed; amendments as valid notwithstanding their
being "not in conformity with the letter, spirit and intent of the provision of the
Charter for effecting amendments" on the reasoning that "If the President has been
legitimately discharging the legislative functions of the interim National Assembly,
there is no reason why he cannot validly discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec16, this Court speaking through
now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power
to Congress"17 or to the National Assembly.18 Where it not for the express grant in
the Transitory Provisions of the constituent power to the interim National Assembly,
the interim National Assembly could not claim the power under the general grant of
legislative power during the transition period.
The majority's ruling in the Referendum cases19 that the Transitory Provision in section
3(2) recognized the existence of the authority to legislate in favor of the incumbent
President during the period of martial law manifestly cannot be stretched to
encompass the constituent power as expressly vested in the interim National
Assembly in derogation of the allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of the
settled maxims of constitutional law, 20 the contituent power has been lodged by
the sovereign power of the people with the interim National Assembly during the
transition period and there it must remain as the sole constitutional agency until the
Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs.
Electoral Commissioner21, "(T)he Constitution sets forth in no uncertain language
and restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution are real as
they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the
people against the convening of the interim National Assembly and to have no
elections for "at least seven (7) years" Concededly could not ament the Constitution
insofar as the interim National Assembly is concerned (since it admittendly came
into existence "immediately" upon the proclamation of ratification of the 1973
Constitution), much less remove the constituent power from said interim National
Assembly.
As stressed in the writer's separate opinion in the Referendum cases22, "(W)hile it has
been advanced that the decision to defer the initial convocation of the interim
National Assembly was supported by the results of the referendum in January, 1973
when the people voted against the convening of the interim National Assembly for
at least seven years, such sentiment cannot be given any legal force and effect in
the light of the State's admission at the hearing that such referendums are merely
consultative and cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim National Assembly to
'give priority to measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures enumerated in section 5
thereof".
While the people reportedly expressed their mandate against the convening of the
interim National Assembly to dischange its legislative tasks during the period of
transition under martial law, they certainly had no opportunity and did not express
themselves against convening the interim National Assembly to discharge the
constituent power to propose amendments likewise vested in it by the people's
mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions proposed
by the sanggunian and barangay national executive committies for the referendum
was the convening of the interim National Assembly.23
It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the President), the members of the cabinet, and the
security council" and that the barangays felt, notwithstanding the previous
referenda on the convening of the interim National Assembly that "it is time to again
ask the people's opinion of this matter "24
8. If proposals for constitutional amendments are now deemed necessary to be
discussed and adopted for submittal to the people, strict adherence with the
mandatory requirements of the amending process as provided in the Constitution
must be complied with. This means, under the teaching of Tolentino that the
proposed amendments must validly come from the constitutional agency vested
with the constituent power to do so, namely, the interim National Assembly, and not
from the executive power as vested in the Prime Minister (the incumbent President)
with the assistance of the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the people for
as was aptly stated by Cooley "Me voice of the people, acting in their sovereign
capacity, can be of legal force only when expressed at the times and under the
conditions which they themselves have prescribed and pointed out by the
Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest
order (and directly elected by the people to speak their voice) is sovereign, in as
such, its acts impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may
be amended, but it is our will that the amendment must be proposed and
submitted to Us for ratification only in the manner herein provided'".27
This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power, second to none, of the
people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignity, ever constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and study.
It is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation;" and that "written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original constitutions carry
with them limitations and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment."28
9. The convening of the interim National Assembly to exercise the constituent power
to proposed amendments is the only way to fulfill the express mandate of the
Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting as in of a Comelec resolution banning the use of political taped jingles by
candidates for Constitutional Convention delegates int he special 1970 elections,
"the concept of the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the highest official or the
lowest functionary, is a postulate of our system of government. That is to amnifst
fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal heirarchy. The three departments of government in the discharge
of the functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental law."
This is but to give meaning to the plan and clear mandate of section 15 of the
Transitory Provisions (which allows of no other interpretation) that during the stage of
transition the interim National Assembly alone exercises the constituent power to
propose amendments, upon special call therefor. This is reinforced by the fact that
the cited section does not grant to the regular National Assembly of calling a
constitutional convention, thus expressing the will of the Convention (and
presumably of the people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the interim National
Assembly alone would discharge the task and no constitutional convention could
be call for the purpose.
As to the alleged costs involved in convening the interim National Assembly to
propose amendments, among them its own abolition, (P24 million annually in
salaries alone for its 400 members at P600,000.00 per annum per member, assuming
that its deliberations could last for one year), suffice it to recall this Court's
pronouncement in Tolentino (in reflecting a similar argument on the costs of holding
a plebiscite separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or thrown to
waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or
even more is not too much a price to pay for fealty and loyalty to the Constitution ...
" 30 and that "while the financial costs of a separate plebiscite may be high, it can
never be as much as the dangers involved in disregarding clear mandate of the
Constitution, no matter how laudable the objective" and "no consideration of
financial costs shall deter Us from adherence to the requirements of the
Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis a crisis greater than war") 32 cited
by the majority opinion as justifying the concentration of powers in the President,
and the recognition now of his exercising the constituent power to propose
amendments to the Fundamental Law "as agent for and in behalf of the people"33
has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and should not
create power. In our democracy the hope and survival of the nation lie in the
wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the
Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12 , as
stressed by the writer in his separate opinion in the Referendum Cases,14 "is a
verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and
provides for the imposition of martial law only 'in case of invasion, resurrection or
rebellion, or imminent danger thereof, when the public safety requires it and hence
the use of the legislative power or more accurately 'military power' under martial
rule is limited to such necessary measures as will safeguard the Republic and
suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the
majority in the Referendum Cases to be the recognition or warrant for the exercise
of legislative power by the President during the period of martial law is but a
transitory provision. Together with the martial law clause, they constitute but two
provisions which are not to be considered in isolation from the Constitution but as
mere integral parts thereof which must be harmonized consistently with the entire
Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to conflict,
the courts must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may
make some words Idle and nugatory.
This rule is applicable with special force to written constitutions, in which the people
will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as
little as possible to implication. It is scarcelly conceivable that a case can arise
where a court would bye justified in declaring any portion of a written constitution
nugatory because of ambiguity. One part may qualify another so as to restrict its
operation, or apply it otherwise than the natural construction would require if it
stood by itself; but one part is not to be allowed to defeat another, if by any
reasonable construction the two can be made to stand together. 36
The transcendental constituent power to propose and approve amendments to the
Constitution as well as set up the machinery and prescribe the procedure for the
ratification of his proposals has been withheld from the President (Prime Minister) as
sole repository of the Executive Power, presumably in view of the immense powers
already vested in him by the Constitution but just as importantly, because by the
very nature of the constituent power, such amendments proposals have to be
prepared, deliberated and matured by a deliberative assembly of representatives
such as the interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation of
the l971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power (Congress
or the Constitutional Convention) really determined the amendments to the
Constitution since the proposals were invariably ratified by the people 37 thus:
"although the people have the reserved power to ratify or reject the action taken
by the Convention, such power is not, in view of the circumstances attending its
exercise, as effective as one might otherwise think: that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be
determined by the Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of delegates thereto ...
"38
12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive,
Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve and to
maintain the Republic against the dangers that threaten it. Such premise imposes
constraints and limitations. For the martial law regime fulfills the constitutional
purpose only if, by reason of martial law measures, the Republic is preserved. If by
reason of such measures the Republic is so transformed that it is changed in its
nature and becomes a State other than republican, then martial law is a failure;
worse, martial law would have become the enemy of the Republic rather than its
defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the constitutionality of the
questioned presidential decrees: let it be underscored that the Court has long set at
rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs. Electoral
Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's
"climactic phrase" that "we must never forget that it is a Constitution we are
expounding" and declared the Court's "solemn and sacred" constitutional obligation
of judicial review and laid down the doctrine that the Philippine Constitution as "a
definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that
"when the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments . . . but only asserts the solemn and
sacred obliteration entrusted to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them".
At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which are intended by the Constitutional and
relevant laws to be conclusively determined by the "political", i.e. branches of
government (namely, the Executive and the Legislative) are outside the Court's
jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the required
constitutional majority), the Court has since consistently ruled that when proposing
and approving amendments to the Constitution, the members of Congress. acting
as a constituent assembly or the members of the Constitutional Convention elected
directly for the purpose by not have the final say on whether or not their acts are
within or beyond constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that outs is it government of lawsom
not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the
fact that, the Constitution expressly confers upon the Supreme Court, the power to
declare a treaty unconstitutional, despite the eminently political character of
treaty-making power".44
As amplified by former Chief Justice Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified, conditional
or subject to limitations. the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations by expected, is justiciable or non-
political, the crux of the problem being one of legality or validity of the contested
act, not its wisdom Otherwise, said qualifications, conditions and limitations-
particularly those prescribed or imposed by the Constitution would be set at
naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable since as
stressed even in Javellana the issue of validity of the President's proclamation of
ratification of the Constitution presented a justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a constituent
assembly or the Constitutional Convention called fol- the purpose, in proposing
amendments to the people for ratification followed the constitutional procedure
and on the amending process is perforce a justiciable question and does not raise a
political question of police or wisdom of the proposed amendments, which if
Submitted, are reserved for the people's decision.
The substantive question presented in the case at bar of whether the President may
legally exercise the constituent power vested in the interim National Assembly
(which has not been granted to his office) and propose constitutional amendments
is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social disquietude or
political excitement, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is
the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or
constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a political
question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writer's view of the
nullity of the questioned decree of lack of authority on the President's part to
excercise the constituent power, I hold that the doctrine of fair and proper
submission first enunciated by a simple majority of by Justices in Gonzales and
subsequently officially adopted by the required constitutional two-thirds majority of
the Court in is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino where "the proposed amendment
in question is expressly saddled with reservations which naturally impair, in great
measures, its very essence as a proposed constitutional amendment" and where
"the way the proposal is worded, read together with the reservations tacked to it by
the Convention thru Section 3 of the questioned resolution, it is too much of a
speculation to assume what exactly the amendment would really amount lo in the
end. All in all, as already pointed out in our discussion of movants' first ground, if this
kind of amendment is allowed, the Philippines will appear before the world to be in
the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force", there
can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck
down by this Court which ruled that "in order that a plebiscite for the ratification of
an amendment to the Constitution may be validly held, it must provide the voter
not only sufficient time but ample basis for an intelligent appraisal of the nature of
the amendment per se as well as its relation to the other parts of the Constitution
with which it has to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of reference they can
base their judgment on.
2. The now Chief Justice and Mr. Justice Makasiar with two other members 46
graphically pointed out in their joint separate opinion that the solitary question
"would seem to be uncomplicated and innocuous. But it is one of life's verities that
things which appear to be simple may turn out not to be so simple after all".47
They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez'
separate opinion in Gonzales "on the minimum requirements that must be met in
order that there can be a proper submission to the people of a proposed
constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that is
legislation direct from the people, an expression of their sovereign will - is that it can
only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly laid
before the people for their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word submitted' can only mean that the government, within its
maximum capabilities, should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, we are not to be understood as saying that, if
one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or
agency within its structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For, as we have earlier stated, one
thing is submission and another is ratification. There must be fair submission,
intelligent. consent or rejection. If with all these safeguards the people still approve
the amendment no matter how prejudicial it is to them, then so be it. For the people
decree their own fate.48
Justice Sanchez therein ended the passage with an apt citation that " ... " The great
men who builded the structure of our state in this respect had the mental vision of a
good Constitution voiced by Judge Cooley, who has said 'A good Constitution
should be beyond the reach of temporary excitement and. popular caprice or
passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is to be safe,
can be allowed efficiency. xxx xxx xxx Changes in government are to be feared
unless the benefit is certain. As Montaign says: All great mutations shake and
disorder state. Good does not necessarily succeed evil ;another evil may succeed
and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper submission "if the people are not sufficiently
affirmed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner. ... .." 50
3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications
reported in the daily newspapers, it is manifest that there is no proper submission of
the proposed amendments. Nine (9) proposed constitutional amendments were
officially proposed and made known as per Presidential Decree No. 1033 dated,
September 22, 1976 for submittal at the "referendum-plebiscite" called for this
coming Saturday, October 16, 1976 wherein the 15-year and under 18-year- olds are
enjoined to vote notwithstanding their lack of qualification under Article VI of the
Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of
the highest order, was reported by the newspapers last October 3 to have observed
that "there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter changes be
modified instead of asking the people to vote on hurriedly prepared amendments".
He further pointed out that "apart from lacking the parliamentary style in the body
of the Constitution, they do not indicate what particular provisions are being
repealed or amended".52
As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others the proposed granting of dual legislative powers
to both the President and the Batasang Pambansa and remarking that "This dual
legislative authority can give rise to confusion and serious constitutional
questions".53
Aside from the inadequacy of the limited time given for the people's consideration
of the proposed amendments, there can be no proper submission because the
proposed amendments are not in proper form and violate the cardinal rule of
amendments of written constitutions that the specific provisions of the Constitution
being repealed or amended as well as how the specific provisions as amended
would read, should be clearly stated in careful and measured terms. There can be
no proper submission because the vagueness and ambiguity of the proposals do
not sufficiently inform the people of the amendments for, conscientious deliberation
and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that the
principal thrust of the proposals is to substitute the interim National Assembly with an
interim Batasang Pambansa, a serious study thereof in detail would lead to the
conclusion that the whole context of the 1973 Constitution proper would be
affected and grave amendments and modifications thereof -would apparently be
made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim Batasang
Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld
from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim Batasang
Pambansa within 30 days from the election and selection of the members (for which
there is no fixed date) the incumbent President apparently becomes a regular
President and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet
in the Constitution such as the prohibition against the holding of more than one
office in the government including government-owned or -controlled corporations
would appear to be eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative powers
until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the
President and the interim Batasang Pambansa as well as the regular National
Assembly, as pointed out by Senator Tolentino, with the President continuing to
exercise legislative powers in case of "grave emergency or a threat or imminence
thereof" (without definition of terms) or when said Assemblies "fail or are unable to
act adequately on any matter for any reason that in his judgment requires
immediate action", thus radically affecting provisions of the Constitution governing
the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be
constitutionalized, although their functions, power and composition may be altered
by law. Referendums (which are not authorized in the present 1973 Constitution)
would also be constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the
Constitution may thereafter be effected by referendum, rather than by the rigid
and strict amending process provided presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of these
amendments" shall continue in full force and effect; and Under Amendment No. 9.
the incumbent President is authorized to proclaim the ratification of the
amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may
not be voted upon separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner and with
due circumspection on the proposed amendments amidst the constraints of martial
law is yet another question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and discussion. The facilities
for free debate and discussion over the mass media, print and otherwise are
wanting. The President himself is reported to have observed the timidity of the
media under martial law and to have directed the press to air the views of the
opposition.54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing model
of conscientious deliberation, as our youth analyzes the issues "which will affect
generations yet to come" and urge the people to mull over the pros and cons very
carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important national
issues - the creation of a new legislative body and the lifting of martial law.
On the first issue, it is almost sure that the interim National Assembly will not be
convened, primarily because of its membership. Majority of the members of the
defunct Congress, who are mandated by the Constitution to become members of
the interim National Assembly, have gained so widespread a notoriety that the
mere mention of Congress conjures the image of a den of thieves who are out to
fool the people most of the time. Among the three branches of government, it was
the most discredited. In fact, upon the declaration of martial law, some people
were heard to mutter that a 'regime that has finally put an end to such
congressional shenanigans could not be all that bad'.
A substitute legislative body is contemplated to help the President in promulgating
laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate
constant amendments. But care should be taken that this new legislative body
would not become a mere rubber stamp akin to those of other totalitarian
countries. It should be given real powers, otherwise we will just have another
nebulous creation having the form but lacking the substance. Already the President
has expressed the desire that among the powers he would like to have with regard
to the proposed legislative body is that of abolishing it in case 'there is a need to do
so'. As to what would occasion such a need, only the President himself can
determine. This would afford the Chief Executive almost total power over the
legislature, for he could always offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed ambivalent attitudes.
Some of them, remembering the turmoil that prevailed before the declaration of
martial law, have expressed the fear that its lifting might precipitate the revival of
the abuses of the past, and provide an occasion for evil elements to resurface with
their usual tricks. Others say that it is about time martial law was lifted since the
peace and order situation has already stabilized and the economy seems to have
been parked up.
The regime of martial law has been with us for four years now. No doubt, martial law
has initially secured some reforms for the country The people were quite willing to
participate in the new experiment, thrilled by the novelty of it all. After the euphoria,
however, the people seem to have gone back to the old ways, with the exception
that some of our freedoms were taken away, and an authoritarian regime
established.
We must bear in mind that martial law was envisioned only to cope with an existing
national crisis, It was not meant to be availed of for a long period of time, otherwise
it would undermine our adherence to a democratic form of government. In the
words of the Constitution. martial law shall only be declared in times of 'rebellion,
insurrection,. invasion, or imminent danger thereof, when the public safety requires
it'. Since we no longer suffer from internal disturbances of a gargantuan scale, it is
about time we seriously rethink the 'necessity' of prolonging the martial law regime.
If we justify the continuance of martial by economic or other reasons other than the
foregoing constitutional grounds, then our faith in the Constitution might be
questioned. Even without martial law,. the incumbent Chief Executive still holds vast
powers under the constitution. After all, the gains of the New Society can be
secured without sacrificing the freedom of our people. If the converse is true, then
we might have to conclude that the Filipinos deserve a dictatorial form of
government. The referendum results will show whether the people themselves have
adopted this sad conclusion.
The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."
6. This opinion by written in the same spirit as the President's exhortations on the first
anniversary of proclamation of the 1973 Constitution that we "let the Constitution
remain firm and stable" so that it may "guide the people", and that we "remain
steadfast on the rule of law and the Constitution" as he recalled his rejection of the
"exercise (of) power that can be Identified merely with a revolutionary government"
that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to have, whether in
government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to discover for ourselves
what our role is in the successful implementation of that Constitution. With this
thought, therefore, we can agree on one thing and that is: Let all of us age, let all of
us then pass away as a pace in the development of our country. but let the
Constitution remain firm and stable and let institutions grow in strength from day to
day, from achievement to achievement, and so long as that Constitution stands,
whoever may the man in power be, whatever may his purpose be, that Constitution
will guide the people and no man, however, powerful he may be, will dare to
destroy and wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law, having been
often induced to exercise power that can be Identified merely with a revolutionary
government, have remained steadfast or the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to the
Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours,
"to accept invitations to act as resource speakers under Section 5 of Presidential
Decree No. 991, as amended, as well as to take sides in discussions and debates on
the referendum-plebiscite questions under Section 7 of the same Decree."55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had
dissented from the majority resolution, with all due respect, on the ground that the
non-participation of judges in such public discussions and debates on the
referendum-plebiscite questions would preserve the traditional non-involvement of
the judiciary in public discussions of controversial issues. This is essential for the
maintenance and enhancement of the people's faith and confidence in the
judiciary. The questions of the validity of the scheduled referendum- plebiscite and
of whether there is proper submission of the proposed amendments were precisely
subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate
might blemish the image and independence of the judiciary. Aside from the fact
that the fixing of a time limit for the acceptance of their courtesy resignations to
avoid an indefinite state of insecurity of their tenure in office still spends litigants and
their relatives and friends as well as a good sector of the public would be hesitant to
air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have agreed
that we make them of record here, since we understand that the permission given
in the resolution is nevertheless addressed to the personal decision and conscience
of each judge, and these views may he of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the herein
petitions should be dismissed, as in fact I vote for their dismissal, I deem it imperative
that I should state separately the considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who
have doubts as to whether or not I should have taken part in the consideration and
resolution of these cases. Indeed, it would not be befitting my position in this Highest
Tribunal of the land for me to leave unmentioned the circumstances which have
given cause, I presume, for others to feel apprehensive that my participation in
these proceedings might detract from that degree of faith in the impartiality that
the Court's judgment herein should ordinarily command. In a way, it can be said, of
course, that I am the one most responsible for such a rather problematical situation,
and it is precisely for this reason that I have decided to begin this opinion with a
discussion of why I have not inhibited myself, trusting most confidently that what I
have to say will be taken in the same spirit of good faith, sincerity and purity of
purpose in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents of
the official report of the Executive Committee of the Katipunan ng mga
Sanggunian submitted to the Katipunan itself about the proceedings held on
August 14, 1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out
when the President express his desire to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution
Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo
proposed on July 28, the establishment of 'Sangguniang Pambansa' or 'Batasang
Pambansa' which would help the President in the performance of his legislative
functions. The proposed new body will take the place of the interim National
Assembly which is considered not practical to convene at this time considering the
constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000 barangay
assemblies on August 1 suggested that the people be consulted on a proposal to
create a new legislative body to replace the interim assembly provided for by the
Constitution. The suggestion of the barangay units was made through their national
association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z.
Patines. She said that the people have shown in at least six instances including in the
two past referenda that they are against the convening of the interim National
Assembly. She also said that since the people had ruled out the calling of such
assembly and that they have once proposed that the President create instead the
Sangguniang Pambansa or a legislative advisory body, then the proposal to create
a new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like their elder
counterparts in the Katipunan ng mga Barangay also asserted their own right to be
heard on whatever plans are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held to discuss
matters pertaining to the stand of the PKB with regards to the convening of a new
legislative body. The stand of the PKB is to create a legislative advisory council in
place of the old assembly. Two days after, August 8, the Kabataang Barangay held
a symposium and made a stand which is the creation of a body with full legislative other alternative procedure of amending the Constitution for the purpose intended
powers. had borne fruit.

A nationwide clamor for the holding of meeting in their respective localities to I must hasten to add at this point, however, that in a larger sense, the initiative for all
discuss more intellegently the proposal to create a new legislative body was made I have done, was not altogether mine alone. The truth of the matter is that
by various urban and rural Sangguniang Bayans. 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
Numerous requests made by some members coming from 75 provincial and 61 city Marcos, that when the appropriate time does come, the President would somehow
SB assemblies, were forwarded to the Department of Local Government and make it known that in his judgment, the situation has already so improved as to
Community Development (DLGCD). permit the implementation, if gradual, of the constitutionally envisioned evolution of
our government from its present state to a parliamentary one. Naturally, this would
On August 7, Local Government Secretary, Jose A. Rono granted the request by
inevitably involve the establishment of a legislative body to replace the abortive
convening the 91 member National Executive Committee of the Pambansang
interim National Assembly. I have kept tract of all the public and private
Katipunan ng mga Sanggunian on August 14 which was held at Session Hall,
pronouncements of the President, and it was the result of my reading thereof that
Quezon City. Invited also to participate were 13 Regional Federation Presidents
furnished the immediate basis for my virtually precipitating, in one way or another,
each coming from the PKB and the PKKB
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
Actually, the extent of my active participation in the events and deliberations that
opportune for me to articulate my own feelings and Ideas as to how the nation can
have culminated in the holding of the proposed referendum- plebiscite on October
move meaningfully towards normalization and to publicly raise the issues that have
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 been ventilated by the parties in the instant cases.
probably the first person to publicly articulate the need for the creation of an interim
I would not be human, if I did not consider myself privileged in having been
legislative body to take the place of. the interim National Assembly provided for in
afforded by Divine Providence the opportunity to contribute a modest share in the
the Transitory Provisions of the Constitution, as suggested in the above report, I might
formulation of the steps that should lead ultimately to the lifting of martial law in our
say that I was the one most vehement and persistent in publicly advocating and
country. Indeed, I am certain every true Filipino is anxiously looking forward to that
urging the authorities concerned to directly submit to the people in a plebiscite
eventuality. And if for having voiced the sentiments of our people, where others
whatever amendments of the Constitution might be considered necessary for the
would have preferred to be comfortably silent, and if for having made public what
establishment of such substitute interim legislature. In the aforementioned session of
every Filipino must have been feeling in his heart all these years, I should be singled
the Executive Committee of the Katipunan, I discourse on the indispensability of a
out as entertaining such preconceived opinions regarding the issues before the
new interim legislative body as the initial step towards the early lifting of martial law
Court in the cases at bar as to preclude me from taking part in their disposition, I
and on the fundamental considerations why in our present situation a constitutional
can only say that I do not believe there is any other Filipino in and out of the Court
convention would be superfluous in amending the Constitution.
today who is not equally situated as I am .
Moreover, it is a matter of public knowledge that in a speech I delivered at the
The matters that concern the Court in the instant petitions do not involve merely the
Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in
individual interests of any single person or group of persons. Besides, the stakes in
no uncertain terms the plan to call a constitutional convention. I reiterated the
these cases affect everyone commonly, not individually. The current of history that
same views on September 7, 1976 at the initial conference called by the Comelec
has passed through the whole country in the wake of martial law has swept all of us,
in the course of the information and educational campaign it was enjoined to
sparing none, and the problem of national survival and of restoring democratic
conduct on the subject. And looking back at the subsequent developments up to
institutions and Ideals is seeking solution in the minds of all of us. That I have
September 22, 1976, when the Batasang Bayan approved and the President signed
preferred to discuss publicly my own thoughts on the matter cannot mean that my
the now impugned Presidential Decree No. 1033, it is but human for me to want to
colleagues in the Court have been indifferent and apathetic about it, for they too
believe that to a certain extent my strong criticisms and resolute stand against any
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 interpretation.
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
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the
ratification by state legislatures of a constitutional amendment is a political
question. On the question of whether the State Legislature could constitutionally
relative an amendment, after the same had been previously rejected by it, it was
held that the ultimate authority over the question was in Congress in the exercise of
its control over the promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its, vitality
through the lapse of time, the Court held that the question was likewise political,
involving "as it does ... an appraisal of a great variety of relevant conditions,
political, social and economic, which can hardly be said to be within the
appropriate range of evidence receivable in a court of justice and as to which it
would be an extravagant extension of juridical authority to assert judicial notice as
the basis of deciding a controversy with respect to the validity of an amendment
actually ratified. On the other hand, these conditions are appropriate for the
consideration of the political departments of the Government. The questions they
involve are essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed
that:
The Constitution grants Congress exclusive power to control submission off
constitutional amendments. Final determination by Congress their ratification by
three-fourths of the States has taken place 'is conclusive upon the courts.' In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, A whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the Constitution, call for
decisions by apolitical department of questions of a t@ which this Court has
frequently designated 'political.' And decision of a 'political question' by the political
department' to which the Constitution has committed it 'conclusively binds the
judges, as well as all other officers, citizens and subjects of ... government.
Proclamation under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has taken place as
the Constitution commands. Upon this assurance a proclaimed amendment must
be accepted as a part of the Constitution, learning to the judiciary its traditional
authority of interpretation. To the extent that the Court's opinion in the present case
even by implieding assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and by ratification of
amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in
Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the
process of constitutional amendment, involving proposal and ratification, is a
political question. In the Mabang case, the petitioners sought to prevent the
enforcement of a resolution of Congress proposing the "Parity Amendment" to the
Philippine Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required be Article XV of the 1935
Constitution. It was claimed that three (3) Senators and eight (8) members of the
House of Representatives had been suspended and that their membership was not
considered in the determination of the three- fourths %- ore In dismissing the petition
on the ground that the question of the validity of the proposal was political, the
Court stated:
"If ratification of an amendment is a political question, a proposal which leads to
ratification has to be a political question. The question to steps complement each
other in a scheme intended to achieve a single objective. It is to be noted that
amendatory process as provided in Section I of Article XV of the Philippine
Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is
no logic in attaching political character to one and withholding that character from
the other. Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and committed to its
charge by the Constitution itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not
a Resolution of Congress, acting as a constituent assembly - violates the Constitution
is essentially justiciable, not political, and hence, subject to judicial review." What
was involved in Gonzales, however, was not a proposed What was involved in
Gonzales, however, was not a proposed amendment to the Constitution but an act
of Congress,9 submitting proposed amendments to the Constitution. Similarly, in
Tolentino v. Commission an Elections, 10 what was involved was not the validity of
the proposal to lower the voting age but rather that of the resolution of the
Constitutional Convention submitting the proposal for ratification. The question was
whether piecemeal amendments to the Constitution could submitted to the people
for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in
behalf of the people in proposing the amendment. there can be no question that in
the referendums of January, 1973 and in the subsequent referendums the people
had clearly and categorically rejected the calling of the interim National Assembly.
As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng
mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, the Kabataang Barangay organizations and the various sectoral
groups had proposed the replacement of the interim National Assembly. These
barangays and the Sanggunian assemblies are effective instrumentalities through
which the desires of the people are articulated and expressed. The Batasang Bayan
(Legislative Council), composed of nineteen (19) cabinet members and nine (9)
officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang
Bayani voted in their special session to submit directly to the people in a plebiscite
on October 16, 1976 the afore-mentioned constitutional amendments. Through the
Pambansang Katipunan by Barangay and the Pampurok ng Katipunan
Sangguniang Bayan, the people have expressed their desire not only to abolish the
interim National Assembly, but to replace it with a more representative body
acceptable to them in order to effect the desirable constitutional changes
necessary to hasten the political evolution of the government towards the
parliamentary system, while at the same time ensuring that the gains of the New
Society, which are vital to the welfare of the people, shall be safeguarded. The
proposed constitutional amendments, therefore, represent a consensus of the
people.
It would be futile to insist that the intemi National Assembly should have been
convened to propose those amendments pursuant to Section 15 of Article XVII of
the Constitution. This Court, in the case of Aquino v. Commission or Elections,11 took
judicial notice of the fact that in the referendum of January, 1973, a majority of
those who approved the new Constitution conditioned their votes on the demand
that the interim National Assembly provided in the Transitory Provisions should not be
and the President "in deference to the sovereign will of the Filipino people" declared
that the convening of said body shall be suspended.12 As this Court observed in the
Aquino case:
His decision to defer the initial convocation of the byiitttit National Assembly was
supported by the sovereign people at the by referendum in January, 1973 when the
people voted to postpone the convening of the interim National Assembly until
after at least seven (7) years from the approval of the new Constitution. And the
reason why the same question was eliminated from the questions to be submitted
at the referendum on February 27, 1975, is that even some members of the
Congress and delegates of the Constitutional Convention, who are already byjso
ofitto members of the intetini National Assembly are against such inclusion; because
the issue was already bycciled in the January, 1973 referendum by the sovereign
people indicating thereby their disenchantment with any Assembly as the former
Congress failed to institutionalize the reforms they demanded and wasted public
funds through endless debates without relieving the suffering of the general mass of
citizenry (p. 302.) The action of the President in suspending the convening of the
interim National Assembly has met the overwhelming approval of the people in
subsequent referenda.
Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be accepted as a necessary consequence that their
objection against the immediate convening of the interim National Assembly must
be respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people and all
government authority emanates from them."13 The term "People" as sovereign is
comprehensive in its context. The people, as sovereign creator of all political reality,
is not merely the enfranchised citizens but the political unity of the people. 14 It
connotes, therefore, a people which exists not only in the urgent present but in the
continuum of history. The assumption that the opinion of The People as voters can
be treated as the expression of the interests of the People as a historic community
was, to the distinguished American journalist and public philosopher, Walter
Lipunan, unwarranted.
Because of the discrepancy between The People as Voters and the People as the
corporate nation, the voters have no title to consider themselves the proprietors of
the commonwealth and to claim that their interests are Identical to the public
interest. A prevailing plurality of the voters are not The People. The claim that they
are is a bogus title invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by demagogue
politicians. In fact demagoguery can be described as the sleight of hand by which
a faction of The People as voters are invested with the authority of The People. That
is why so many crimes are committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to
propose amendments or to amend the Constitution is part of the inherent power of
the people as the repository of sovereignty in a republican state. While Congress
may propose amendments to the Constitution, it acts pursuant to authority granted
to it by the people through the Constitution. Both the power to propose and the
authority to approve, therefore, inhere in the people as the bearer of the
Constitution making power.
Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority to exercise constituent powers, it follows
from necessity that either the people should exercise that power themselves or
through any other instrumentality they may choose. For Law, like Nature, abhors a
vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for the people in
submitting such proposals for ratification at the plebiscite of October 16. The
political character of the question is, therefore, particularly manifest, considering
that ultimately it is the people who will decide whether the President has such
authority. It certainly involves a matter which is to be exercised by the people in
their sovereign capacity, hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confuse with legislative power
in general because the prerogative to propose amendments is not embraced
within the context of ordinary lawmaking, it must be noted that the proposals to be
submitted for ratification in the forthcoming referendum are, in the final analysis,
actually not of the President but directly of the people themselves, speaking
through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it
having been demonstrated that their constituent power to amend the Constitution
has not been delegated by them to any instrumentality of the Government during
the present stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power cannot be
vulnerable to any constitutional challenge as beingultravires. Accordingly, without
venturing to rule on whether or not the President is vested with constituent power -
as it does not appear necessary to do so in the premises - the proposals here
challenged, being acts of the sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not only
because the President, in exercising said authority, has acted as a mere ofiffet byf
of the people who made the proposals, but likewise because the said authority is
legislative in nature rather than constituent.
This is but a recognition that the People of the Philippines have the inherent, sole
and exclusive right of regulating their own government, and of altering or abolishing
their Constitution whenever it may be necessary to their safety or happiness. There
appears to be no justification, under the existing, circumstances, for a Court to
create by implication a limitation on - the sovereign power of the people. As has
been clearly explained in a previous case:
There is nothing in the nature of the submission which should cause the free exercise
of it to be obstructed, or that could render it dangerous to the stability of the
government; because the measure derives all its vital force from the action of the
people at the ballot box, and there can never be danger in submitting in an
established form to a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to trammel the
exercise of the right. Difficulties and embarrassments in its exercise are in derogation
of the right of free government, which is inherent in the people; and the best
security against tumult and revolution is the free and unobstructed privilege to the
people of the State to change their constitution in the mode prescribed by the
instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing opinion is
the necessity of ensuring popular control over the constituent power. "If the people
are to control the constituent power - the power to make and change the
fundamental law of the State," observed Wheeler," "the process of Constitutional
change must not be based too heavily upon existing agencies of government."
Indeed, the basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is time that the
people should be accorded the fullest opportunity to decide the laws that shall
provide for their governance. For in the ultimate analysis, the success of the national
endeavor shall depend on the vision, discipline and I by ininess of the moqqqtai will
of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting opinion
of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief
statement it is only to unburden myself of some thoughts which trouble my mind and
leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely and at
times precarious road, the burden byeing lightened only by the thought that in this
grave task of administering justice, when matters of conscience are at issue, one
must be prepared to espouse and embrace a rightful cause however unpopular it
may be.
1. That sovereignty resides in the people and all government authority emanates
from them is a fundamental, basic principle of government which cannot be
disputed, but when the people have opted to govern themselves under the mantle
of a written Constitution, each and every citizen, from the highest to the lowliest, has
the sacred duty to respect and obey the Character they have so ordained.
By the Constitution which they establish, they not only tie up he hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take action in opposition to
this fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge Cooley
although based on declarations of law of more than a century ago, lays down a
principle which to my mind is one of the enduring cornerstones of the Rule of Law. it
is a principle with which I have been familiar as a student of law under the tutelage
of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I
pray will prevail at all times to ensure the existence of a free, stable, and civilized
society.
The Filipino people,. wanting to ensure to themselves a democratic republican form
of government, have promulgated a Constitution whereby the power to govern
themselves has been entrusted to and distributed among three branches of
government; they have also mandated in clear and unmistakable terms the
method by which provisions in their fundamental Charter may be amended or
revised. Having done so, the people are bound by these constitutional limitations.
For while there is no surrender or abdication of the people's ultimate authority to
amend, revise, or adopt a new Constitution, sound reason demands that they keep
themselves within the procedural bounds of the existing fundamental law. The right
of the people to amend or change their Constitution if and when the need arises is
not to be denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and
legitimate processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General that the
people, being sovereign, have the authority to amend the Constitution even in a
manner different from and contrary to that expressly provided for in that instrument,
and that the amendatory process is intended more as a limitation of a power rather
than a grant of power to a particular agency and it should not be construed as
limiting the ultimate sovereign will of the people to decide on amendments to the
Constitution .2 Such a view will seriously undermine the very existence of a
constitutional government and will permit anarchy and/or mob rule to set afoot and
prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a
prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution,
Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of sovereighty' because
they define the constitutional meaning of 'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine Constitution, is not extreme popular
sovereignty. As one American writer put it:
A constitution like the American one serves as a basic check upon the popular will
at any given time. It is the distinctive function of such written document to classify
certain things as legal fundamentals; these fundamentals may not be changed
except by the slow and cumbersome process of amendment. The people
themselves have decided, in constitutional convention assembled, to limit
themselves ana future generations in the exercise of the sovereign power which
they would otherwise possess. And it is precisely such limitation that enables those
subject to governmental authority to appeal from the people drunk to the people
sober in time of excitement and hysteria. The Constitution, in the neat phrase of the
Iowa court, is the protector of the people against injury by the .people. *
Truly, what need is there for providing in the Constitution a process by which the
fundamental law may be amended if, after all, the people by themselves can set
the same at naught even in times of peace when civil authority reigns supreme? To
go along with the respondents' theory in this regard is to render written Constitutions
useless or mere "ropes of sand allowing for a government of men instead of one of
laws. For it cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a demagogue,
and where passion overpowers reason, and mass action overthrows legal
processes. History has recorded such instances, and I can think of no better
example than that of Jesus Christ of Judea who was followed and loved by the
people while curing the sick, making the lame walk and the blind see, but shortly
was condemned by the same people turned into fanatic rabble crying out "Crucify
Him, Crucify Him" upon being incited into action by chief priests and elders of
Jerusalem. Yes, to quote once more from Judge Cooley:
A good Constitution should be beyond the reason of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be sale can be allowed efficiency. .... Changes in government are
to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1,
15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159
N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution may be introduced in disregard of
its provisions; that if the majority of the people desire a change the majority must be
respected, no matter how the change may be effected; and that the change, if
revolution, is peaceful resolution. ...
We fear that the advocates of this new doctrine, in a zeal to accomplish an end
which the majority of the people desire, have looked at but one phase of the
question, and have not fully considered the terrible consequences which would
almost certainly follow a recognition of the doctrine for which they contend. It may
be that the incorporation of this amendment in the constitution, even if the
constitution has to be broken to accomplish it, would not of itself produce any
serious results. But if it should be done by sanctioning the doctrine contended for, a
precedent would be set which would plague the state for all future time. A
Banquo's ghost would arise at our incantation which would not down at our
bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so fraught with danger to
republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the
staff This section is a portion of the bill of rights, and is as follows: 'All political power is
inherent in the people. Government is instituted for the protection, security, and
benefit of of the people; and they have the right at all times to alter or reform the
same, whenever the public good may require.' Abstractly considered, there can
bye no doubt of the correctness of the propositions embraced in this suction. These
principles are older than constitutions and older than governments. The people did
not derive the rights referred to by on the constitution. and, in their nature, thee are
such that the people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-
plebiscite on October 16, 1976 for the purpose, among other things, of amending
certain provisions of the 1973 Constitution are null and void as they contravene the
express provisions on the amending process of the 1973 Constitution laid down in
Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter
which applies during the present transition period. The Opinion of Justice Teehankee
discusses in detail this particular matter.
I would just wish to stress the point that although at present there is no by tterint
National Assembly which may propose amendments to the Constitution, the
existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the
constitutional provisions on the manner of amending the fundamental law. We
cannot cure one infirmity - the existence of a "vacuum" caused by the non-
convening of the interim National Assembly - with another infirmity, that is, doing
violence to the Charter.
All great mutations shake and disorder a state. Good does not necessarily succeed
evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in
Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the purpose
indicated is a step necessary to restore the state of normalcy in the country. To my
mind, the only possible measure that will lead our country and people to a
condition of normalcy is the lifting or ending of the state of martial law. If I am
constrained to make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with the impression
that for petitioners to contest the holding of the October 16 referendum-plebiscite is
for them to assume a position of blocking or installing the lifting of martial law, which
I believe is unfair to the petitioners. Frankly, I cannot see the connection between
the two. My esteemed colleagues should pardon me therefore if I had ventured to
state that the simple solution to the simple solution to the present dilemma is the
lifting of martial law and the implementation of the constitutional provisions which
will usher in the parliamentary form of government ordained in the Constitution,
which, as proclaimed in Proclamation 1102, the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by
their act and cannot escape from the pretended unfavorable consequences
thereof, the only y being to set in motion the constitutional machinery by which the
supposed desired amendments may properly be adopted and submitted to the
electorate for ratification. Constitutional processes are to be observed strictly, if we
have to maintain and preserve the system of government decreed under the
fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission
on Elections
... The concept of the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the highest official or the
lowest funcitonary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of Chief
Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty
and popular sovereignty are not meant to give rein to passion or thoughtless
impulse but to allow the exercise of power by the people for the general good by
tistlercoitaitt restraints of law.3 . The true question before Us is is one of power. Does
the incumbent President of the Philippines possess constituent powers? Again, the
negative answer is explained in detail in the dissenting opinion of Justice
Teehankee.
Respondents would justify the incumbent President's exercise of constituent powers
on theory that he is vested with legislative powers as held by this Court in Benigno S.
Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. 1
wish to stress that although in my separate opinion in said case I agreed that
Section 3 (2) of the Transitory provisions grants to the incumbent President legislative
powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited legislative qqqjwwel of the President
continues by exist even after the ratification of the Constitution is a matter which I
am not ready to concede at the moment, and which at any rate I believe is not
essential in resolving this Petition for reasons to be given later. Nonetheless, I hold the
view that the President is empowered to issue proclamations, orders, decrees, etc.
to carry out and implement the objectives of the proclamation of martial law be it
under the 1935 or 1973 Constitution, and for the orderly and efficient functioning of
the government, its instrumentalities, and agencies. This grant of legislative power is
necessary to fill up a vacuum during the transition period when the interim National
Assembly is not yet convened and functioning, for otherwise, there will be a
disruption of official functions resulting in a collapse of the government and of the
existing social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in the
Charter, and the 1973 Constitution contains provisions in this regard. This is well-
explained in Justice Teehankee's Opinion. The state of necessity brought about by
the current political situation, invoked by the respondents, provides no source of
power to propose amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by inflicting upon it a
wound which nothing can heal commit one assault after the other "until all respect
for the fundamental law is lost and the powers of government are just what those in
authority please to call them?'"5 Or can we now ignore what this Court, speaking
through Justice Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly by order to attain some laudable
objective bear in mind that someday somehow others with purportedly more
laudable objectives may take advantages of the precedent in continue the
destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of their
own folly. 6
Respondents emphatically assert that the final word is the people's word and that
ultimately it is in the hands of the people where the final decision rests. (Comment,
pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of the
will of the people a normal political situation and not under the aegis of martial rule
for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a
plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of
fear as it entails a wide area of curtailment and infringement of individual rights,
such as, human liberty, property rights, rights of free expression and assembly,
protection against unreasonable searches and seizures, liberty of abode and of
travel, and so on.
4. The other issues such as the sufficiency and proper submission of the proposed
amendments for ratification by the people are expounded in Justice Teehankee's
Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the
proposed amendments is the abolition of the interim National Assembly and its
substitution with an "interim Batasang Pambansa their in by in Proposed amendment
No. 6 will permit or allow the concentration of power in one man - the Executive -
Prime Minister or President or whatever you may call him - for it gives him expressly
(which the 1973 Constitution or the 1935 Constitution does not) legislative powers
even during the existence of the appropriate legislative body, dependent solely on
the executive's judgment on the existence of a grave emergency or a threat or
imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted however by
what can happen in the future, when we shall all be gone. Verily, this is a matter of
grave concern which necessitates full, mature, sober deliberation of the people but
which they can do only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional
Convention which drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a written constitution in order that their
government may be called constitutional. To be deserving of this name, and to
drive away all lanirer of anarchy as well as of dictatorship whether by one man or a
few, it is necessary that both the government authorities and the people faithfully
observe and obey the constitution, and that the citizens be duly conversant not
only with their rights but also with their duties...7
Jose P. Laurel who served his people as Justice of the Supreme Court of this country
gave this reminder; the grave and perilous task of halting transgressions and
vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the
Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the
basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033
unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to those
questions which, under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is
concerned with the issues dependent upon the wisdom, not legality, of a particular
measure.1
Here, the question raised is whether the President has authority to propose to the
people amendments to the Constitution which the petitioners claim is vested solely
upon the National Assembly, the constitutional convention called for the purpose,
and the by the National Assembly. This is not a political question since it involves the
determination of conflicting claims of authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a
Resolution of Congress, acting as a constituent assembly, violates the Constitution,
ruled that the question is essentially justiciable, not political, and hence, subject to
judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position
regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting
as a constituent assembly, as well as those of a constitutional convention called for
the purpose of proposing amendments to the constitution. Insofar as observance of
constitutional provisions on the procedure for amending the constitution is
concerned, the issue is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendum-
plebiscite will help resolve the issue. It is to be noted that under the 1973
Constitution, an interim National Assembly was organized to bring about an orderly
transition from the presidential to the parliamentary system of government.' The
people, however, probably distrustful of the members who are old time politicians
and constitutional delegates who had voted themselves by to membership in the
interim National Assembly, voted against the convening of the said interim assembly
for at least seven years thus creating a political stalemate and a consequent delay'
in the transformation of the government into the parliamentary system. To resolve
the impasse, the President, at the instance of the barangays and sanggunian
assemblies through their duly authorized instrumentalities who recommended a
study of the feasibility of abolishing and replacing the by interim National Assembly
with another interim body truly representative of the people in a reformed society,
issued Presidential Decree No. 991, on September 2, 1976, calling for a national
referendum on October -16, 1976 to ascertain the wishes of the people as to the
ways and means that may be available to attain the objective; providing for a
period of educational and information campaign on the issues; and establishing the
mechanics and manner for holding thereof. But the people, through their
barangays, addressed resolutions to the Batasang Bayan, expressing their desire to
have the constitution amended, thus prompting the President to issue Presidential
Decree No. 1033, stating the questions to @ submitted to the people in the
referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed from the
interim National Assembly and transferred to the seat of sovereignty itself. Since the
Constitution emanates from the people who are the repository of all political
powers, their authority to amend the Constitution through the means they have
adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not
much reflection is also needed to show that the President did not exercise his
martial law legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry out the will of the
people. Neither could he convene the interim National Assembly, as suggested by
the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at
least seven years.
3. The period granted to the people to consider the proposed amendments is
reasonably long and enough to afford intelligent discussion of the issues to be voted
upon. PD 991 has required the barangays to hold assemblies or meetings to discuss
and debate on the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the representatives of the
people themselves, the people must have already formed a decision by this time on
what stand to take on the proposed amendments come the day for the plebiscite.
Besides, the Constitution itself requires the holding of a plebiscite for the ratification
of an amendment not later than three (3) months after the approval of such
amendment or revision but without setting a definite period within which such
plebiscite shall not be held. From this I can only conclude that the framers of the
Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.
G.R. No. L-56350 April 2, 1981 Thereafter, both cases were set for hearing and were duly argued on March 26 by
petitioners and Solicitor General Estelito P. Mendoza for respondents. With the
SAMUEL C. OCCENA, petitioner, submission of pertinent data in amplification of the oral argument, the cases were
deemed submitted for decision.
vs.

THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL

TREASURER, THE DIRECTOR OF PRINTING, respondents. It is the ruling of the Court, as set forth at the outset, that the petitions must be
dismissed.
G.R. No. L-56404 April 2, 1981

1. It is much too late in the day to deny the force and applicability of the 1973
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY
Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6
ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
dismissing petitions for prohibition and mandamus to declare invalid its ratification,
this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This
vs.
being the vote of the majority, there is no further judicial obstacle to the new
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents. Constitution being considered in force and effect." 9 Such a statement served a
useful purpose. It could even be said that there was a need for it. It served to clear
the atmosphere. It made manifest that, as of January 17, 1973, the present
Constitution came into force and effect. With such a pronouncement by the
FERNANDO, C.J.: Supreme Court and with the recognition of the cardinal postulate that what the
Supreme Court says is not only entitled to respect but must also be obeyed, a factor
The challenge in these two prohibition proceedings against the validity of three
for instability was removed. Thereafter, as a matter of law, all doubts were resolved.
Batasang Pambansa Resolutions 1 proposing constitutional amendments, goes
The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be
further than merely assailing their alleged constitutional infirmity. Petitioners Samuel
too strongly stressed is that the function of judicial review has both a positive and a
Occena and Ramon A. Gonzales, both members of the Philippine Bar and former
negative aspect. As was so convincingly demonstrated by Professors Black 10 and
delegates to the 1971 Constitutional Convention that framed the present
Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what
Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions
the law is, it may not only nullify the acts of coordinate branches but may also
is the assertion that the 1973 Constitution is not the fundamental law, the Javellana
sustain their validity. In the latter case, there is an affirmation that what was done
2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach
cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of
has the arresting charm of novelty – but nothing else. It is in fact self defeating, for if
this character suffices. That is the meaning of the concluding statement in
such were indeed the case, petitioners have come to the wrong forum. We sit as a
Javellana. Since then, this Court has invariably applied the present Constitution. The
Court duty-bound to uphold and apply that Constitution. To contend otherwise as
latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During
was done here would be, quite clearly, an exercise in futility. Nor are the arguments
the first year alone of the effectivity of the present Constitution, at least ten cases
of petitioners cast in the traditional form of constitutional litigation any more
may be cited. 13
persuasive. For reasons to be set forth, we dismiss the petitions.

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to
The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4
propose amendments and how it may be exercised. More specifically as to the
On March 10 and 13 respectively, respondents were required to answer each within
latter, the extent of the changes that may be introduced, the number of votes
ten days from notice. 5 There was a comment on the part of the respondents.
necessary for the validity of a proposal, and the standard required for a proper
submission. As was stated earlier, petitioners were unable to demonstrate that the
challenged resolutions are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The
applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it
reads thus: "The Interim Batasang Pambansa shall have the same powers and its
Members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National Assembly
and the Members thereof." 14 One of such powers is precisely that of proposing
amendments. The 1973 Constitution in its Transitory Provisions vested the Interim
National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance
with the Article on Amendments. 15 When, therefore, the Interim Batasang
Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos,
met as a constituent body it acted by virtue Of such impotence Its authority to do
so is clearly beyond doubt. It could and did propose the amendments embodied in
the resolutions now being assailed. It may be observed parenthetically that as far as
petitioner Occena is Concerned, the question of the authority of the Interim
Batasang Pambansa to propose amendments is not new. In Occena v. Commission
on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a
question was involved although not directly passed upon. To quote from the opinion
of the Court penned by Justice Antonio in that case: "Considering that the
proposed amendment of Section 7 of Article X of the Constitution extending the
retirement of members of the Supreme Court and judges of inferior courts from sixty-
five (65) to seventy (70) years is but a restoration of the age of retirement provided
in the 1935 Constitution and has been intensively and extensively discussed at the
Interim Batasang Pambansa, as well as through the mass media, it cannot,
therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the amendments proposed
are so extensive in character that they go far beyond the limits of the authority
conferred on the Interim Batasang Pambansa as Successor of the Interim National
Assembly. For them, what was done was to revise and not to amend. It suffices to
quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v.
Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the
Constitutional Convention will only propose amendments to the Constitution or
entirely overhaul the present Constitution and propose an entirely new Constitution
based on an Ideology foreign to the democratic system, is of no moment; because
the same will be submitted to the people for ratification. Once ratified by the
sovereign people, there can be no debate about the validity of the new
Constitution. 4. The fact that the present Constitution may be revised and replaced
with a new one ... is no argument against the validity of the law because
'amendment' includes the 'revision' or total overhaul of the entire Constitution. At
any rate, whether the Constitution is merely amended in part or revised or totally
changed would become immaterial the moment the same is ratified by the
sovereign people." 19 There is here the adoption of the principle so well-known in
American decisions as well as legal texts that a constituent body can propose
anything but conclude nothing. 20 We are not disposed to deviate from such a
principle not only sound in theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to propose amendments as
well as the standard for proper submission. Again, petitioners have not made out a
case that calls for a judgment in their favor. The language of the Constitution
supplies the answer to the above questions. The Interim Batasang Pambansa, sitting
as a constituent body, can propose amendments. In that capacity, only a majority
vote is needed. It would be an indefensible proposition to assert that the three-
fourth votes required when it sits as a legislative body applies as well when it has
been convened as the agency through which amendments could be proposed.
That is not a requirement as far as a constitutional convention is concerned. It is not
a requirement either when, as in this case, the Interim Batasang Pambansa
exercises its constituent power to propose amendments. Moreover, even on the
assumption that the requirement of three- fourth votes applies, such extraordinary
majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a
foreign country to own a limited area of land for residential purposes was approved
by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime
Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1
abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the
alleged infirmity? As to the requisite standard for a proper submission, the question
may be viewed not only from the standpoint of the period that must elapse before
the holding of the plebiscite but also from the standpoint of such amendments
having been called to the attention of the people so that it could not plausibly be
maintained that they were properly informed as to the proposed changes. As to the
period, the Constitution indicates the way the matter should be resolved. There is no
ambiguity to the applicable provision: "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the approval of such
amendment or revision." 21 The three resolutions were approved by the Interim
Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In
the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is
thus within the 90-day period provided by the Constitution. Thus any argument to
the contrary is unavailing. As for the people being adequately informed, it cannot
be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio,
where the amendment restored to seventy the retirement age of members of the
judiciary, the proposed amendments have "been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, [
so that ] it cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the application for a
temporary restraining order enjoining the plebiscite scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity
of the October 1976 amendments proposals to the 1973 Constitution for not having
been proposed nor adopted in accordance with the mandatory provisions thereof,
as restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 ,
questioning the validity of the December 17, 1977 referendum – exercise as to the
continuance in office as incumbent President and to be Prime Minister after the
organization of the Interim Batasang Pambansa as provided for in Amendment No.
3 of the 1976 Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose and
approve amendments to the Constitution as well as to set up the machinery and
prescribe the procedure for the ratification of the amendments proposals has been
withheld by the Constitution from the President (Prime Minister) as sole repository of
executive power and that so long as the regular National Assembly provided for in
Article VIII of the Constitution had not come to existence and the proposals for
constitutional amendments were 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 prevailing doctrine of Tolentino vs. Comelec 4
that the proposed amendments to be valid must come from the constitutional
agency vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have to be
convened and not from the executive power as vested in the President (Prime
Minister) from whom such constituent power has been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of
Tolentino, the October 1976 constitutional amendments which created the Interim
Batasang Pambansa in lieu of the Interim National Assembly were invalid since as
ruled by the Court therein, 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 (and) are no less
binding upon the people" and "the very Idea of deparcing from the fundamental
law is anachronistic in the realm of constitutionalism and repugnant to the essence
of the rule of law." The proposed amendments at bar having been adopted by the
Interim Batasang Pambansa as the fruit of the invalid October, 1976 amendments
must necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand in Sanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Court prior to the 1973 Constitution which increased the official composition of the
Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by
the required constitutional two-thirds majority vote of the Court (of eight votes, then)
in Tolentino is fully applicable in the case at bar. The three resolutions proposing
complex, complicated and radical amendments of our very structure of
government were considered and approved by the Interim Batasang Pambansa
sitting as a constituent assembly on February 27, 1981. It set the date of the
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and
far short of the ninety-day period fixed by the Constitution for submittal to the
people to "sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine manner." 6
4. "The minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" as stated by
retired Justice Conrado V. Sanchez in his separate opinion in Gonzales bears
repeating as follows: "... 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 short to inform every citizen of
the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. ... 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 amendments no matter how prejudicial it is to them, then so be it. For
the people decree their own fate."
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 efficacy ... Changes in government are to be feard unless benefit is
certain.' As Montaign says: 'All great mutation shake and disorder a state. Good
does not necessarily succeed evil; another evil may succeed and a worse."'
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the application for a
temporary restraining order enjoining the plebiscite scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity
of the October 1976 amendments proposals to the 1973 Constitution for not having
been proposed nor adopted in accordance with the mandatory provisions thereof,
as restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 ,
questioning the validity of the December 17, 1977 referendum – exercise as to the
continuance in office as incumbent President and to be Prime Minister after the
organization of the Interim Batasang Pambansa as provided for in Amendment No.
3 of the 1976 Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to propose and
approve amendments to the Constitution as well as to set up the machinery and
prescribe the procedure for the ratification of the amendments proposals has been
withheld by the Constitution from the President (Prime Minister) as sole repository of
executive power and that so long as the regular National Assembly provided for in
Article VIII of the Constitution had not come to existence and the proposals for
constitutional amendments were now deemed necessary to be discussed and
adopted for submittal to the people, strict adherence with the mandatory 4. "The minimum requirements that must be met in order that there can be a proper
requirements of the amending process as provided in the Constitution must be submission to the people of a proposed constitutional amendment" as stated by
complied with. This means, under the prevailing doctrine of Tolentino vs. Comelec 4 retired Justice Conrado V. Sanchez in his separate opinion in Gonzales bears
that the proposed amendments to be valid must come from the constitutional repeating as follows: "... we take the view that the words 'submitted to the people
agency vested with the constituent power to do so, i.e. in the Interim National for their ratification,' if construed in the light of the nature of the Constitution – a
Assembly provided in the Transitory Article XVII which would then have to be fundamental charter that is legislation direct from the people, an expression of their
convened and not from the executive power as vested in the President (Prime sovereign will – is that it can only be amended by the people expressing themselves
Minister) from whom such constituent power has been withheld. 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
2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of
proposed amendments, and try to reach a conclusion as the dictates of their
Tolentino, the October 1976 constitutional amendments which created the Interim
conscience suggest, free from the incubus of extraneous or possibly insidious
Batasang Pambansa in lieu of the Interim National Assembly were invalid since as
influences. We believe the word 'submitted' can only mean that the government,
ruled by the Court therein, constitutional provisions on amendments "dealing with
within its maximum capabilities, should strain every short to inform every citizen of
the procedure or manner of amending the fundamental law are binding upon the
the provisions to be amended, and the proposed amendments and the meaning,
Convention and the other departments of the government (and) are no less
nature and effects thereof. ... What the Constitution in effect directs is that the
binding upon the people" and "the very Idea of deparcing from the fundamental
government, in submitting an amendment for ratification, should put every
law is anachronistic in the realm of constitutionalism and repugnant to the essence
instrumentality or agency within its structural framework to enlighten the people,
of the rule of law." The proposed amendments at bar having been adopted by the
educate them with respect to their act of ratification or rejection. For, as we have
Interim Batasang Pambansa as the fruit of the invalid October, 1976 amendments
earlier stated, one thing is submission and another is ratification. There must be fair
must necessarily suffer from the same Congenital infirmity.
submission, intelligent consent or rejection. If with all these safeguards the people still
approve the amendments no matter how prejudicial it is to them, then so be it. For
the people decree their own fate."
3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand in Sanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Justice Sanchez therein ended the passage with an apt citation that "... The great
Court prior to the 1973 Constitution which increased the official composition of the
men who builded the structure of our state in this respect had the mental vision of a
Court to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by
good Constitution voiced by Judge Cooley, who has said 'A good Constitution
the required constitutional two-thirds majority vote of the Court (of eight votes, then)
should be beyond the reach of temporary excitement and popular caprice or
in Tolentino is fully applicable in the case at bar. The three resolutions proposing
passion. It is needed for stability and steadiness; it must yield to the thought of the
complex, complicated and radical amendments of our very structure of
people; not to the whim of the people, or the thought evolved in excitement, or hot
government were considered and approved by the Interim Batasang Pambansa
blood, but the sober second thought, which alone if the government is to be safe,
sitting as a constituent assembly on February 27, 1981. It set the date of the
can be allowed efficacy ... Changes in government are to be feard unless benefit is
plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and
certain.' As Montaign says: 'All great mutation shake and disorder a state. Good
far short of the ninety-day period fixed by the Constitution for submittal to the
does not necessarily succeed evil; another evil may succeed and a worse."'
people to "sufficiently inform them of the amendments to be voted upon, to
conscientiously deliberate thereon and to express their will in a genuine manner." 6
G.R. No. 127325 March 19, 1997 On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative"
(hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN,
petitioners,

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

COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,

in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents. 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;

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

MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. 3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG Petitioners and volunteers, in establishing signing stations at the time and on the
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors. dates designated for the purpose.

DAVIDE, JR., J.: Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative,6 a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
The heart of this controversy brought to us by way of a petition for prohibition under
Constitution granted under Section 2, Article XVII of the Constitution; that the
Rule 65 of the Rules of Court is the right of the people to directly propose
exercise of that power shall be conducted in proceedings under the control and
amendments to the Constitution through the system of initiative under Section 2 of
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as
signature stations shall be established all over the country, with the assistance of
this system of initiative was unknown to the people of this country, except perhaps
municipal election registrars, who shall verify the signatures affixed by individual
to a few scholars, before the drafting of the 1987 Constitution. The 1986
signatories; that before the Movement and other volunteers can gather signatures,
Constitutional Commission itself, through the original proponent1 and the main
it is necessary that the time and dates to be designated for the purpose be first fixed
sponsor2 of the proposed Article on Amendments or Revision of the Constitution,
in an order to be issued by the COMELEC; and that to adequately inform the
characterized this system as "innovative".3 Indeed it is, for both under the 1935 and
people of the electoral process involved, it is likewise necessary that the said order,
1973 Constitutions, only two methods of proposing amendments to, or revision of,
as well as the Petition on which the signatures shall be affixed, be published in
the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths
newspapers of general and local circulation, under the control and supervision of
of all its members and (2) by a constitutional convention.4 For this and the other
the COMELEC.
reasons hereafter discussed, we resolved to give due course to this petition.

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 X9 of
the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the
1987 Constitution" 10 embodying the proposed amendments which consist in the
deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION
4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-
037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the attached
Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in
three (3) daily newspapers of general circulation at his own expense" not later than
9 December 1996; and (b) setting the case for hearing on 12 December 1996 at
10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for
Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers, and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12
Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the
ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed this
deficiency in the law in his privilege speech delivered before the Senate in 1994:
"There is not a single word in that law which can be considered as implementing
[the provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national
and local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not to revision
thereof. Extending or lifting of term limits constitutes a revision and is, therefore,
outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither
the COMELEC nor any other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners
allege that in the event the COMELEC grants the Delfin Petition, the people's
initiative spearheaded by PIRMA would entail expenses to the national treasury for
general re-registration of voters amounting to at least P180 million, not to mention
the millions of additional pesos in expenses which would be incurred in the conduct
of the initiative itself. Hence, the transcendental importance to the public and the
nation of the issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure and calling for
the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain,
speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further
orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING
SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT
TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE
COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF
THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE
CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND.
ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment
16 which starts off with an assertion that the instant petition is a "knee-jerk reaction
to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed
yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory
Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power
and function. On the substantive allegations of the petitioners, Delfin maintains as
follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of
a subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an
initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of
the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution.
Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees
that power; and its Section 3, which enumerates the three systems of initiative,
includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly mentions
initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included
in the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein
was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as
well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by
Senator Raul Roco and allowed him to file his Petition in Intervention not later than
20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI),
filed a Motion for Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of,
the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve
a change from a political philosophy that rejects unlimited tenure to one that
accepts unlimited tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on synchronization of elections
and on the State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision cannot be done by initiative
which, by express provision of Section 2 of Article XVII of the Constitution, is limited to
amendments.
(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of
governance, "to open up the political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to break the concentration of
political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the
common good"; hence, to remove the term limits is to negate and nullify the noble
vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the people's initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the role of the COMELEC in
the verification of the signatures and the sufficiency of the petition, (h) the appeal
from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

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 (4) The petition seeks, in effect a revision of the Constitution, which can be
people's right to initiate constitutional amendments. This law is a consolidation of proposed only by Congress or a constitutional convention. 22
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.
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
2300. Nevertheless, he contends that the respondent Commission is without
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
jurisdiction to take cognizance of the Delfin Petition and to order its publication
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
because the said petition is not the initiatory pleading contemplated under the
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
and of the IBP; (c) requiring the respondents to file within a nonextendible period of
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
five days their Consolidated Comments on the aforesaid Petitions in Intervention;
petition for initiative which is signed by the required number of registered voters. He
and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
also submits that the proponents of a constitutional amendment cannot avail of the
period of three days from notice, and the respondents to comment thereon within a
authority and resources of the COMELEC to assist them is securing the required
nonextendible period of five days from receipt of the said Petition in Intervention.
number of signatures, as the COMELEC's role in an initiative on the Constitution is
limited to the determination of the sufficiency of the initiative petition and the call
and supervision of a plebiscite, if warranted.
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:
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
The following day, the IBP filed a Motion for Intervention to which it attached a
Referendum and Appropriating Funds Therefor, was intended to include or cover
Petition in Intervention raising the following arguments:
initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers such initiative.

(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.
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.
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.
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 For a more logical discussion of the formulated issues, we shall first take up the fifth
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 issue which appears to pose a prejudicial procedural question.
Constitution.

I
5. Whether it is proper for the Supreme Court to take cognizance of the petition
when there is a pending case before the COMELEC.
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.
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.
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
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the petitioners provide an affirmative answer. Thus:
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of
action and that the Commission's failure or refusal to do so constituted grave abuse
28. The Comelec has no jurisdiction to take cognizance of the petition filed by
of discretion amounting to lack of jurisdiction.
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.
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
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
proceedings of the Bicameral Conference Committee, Committee on Suffrage and
superior jurisdiction and directed to an inferior court, for the purpose of preventing
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
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 the instant case may likewise be treated as a special civil action for certiorari under
political instability begs for judicial statesmanship. Section I of Rule 65 of the Rules of Court.

30. In the final analysis, when the system of constitutional law is threatened by the In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
political ambitions of man, only the Supreme Court Court may brush aside technicalities of procedure in

can save a nation in peril and uphold the paramount majesty of the Constitution. 25 cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona,
Jr. 28

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 A party's standing before this Court is a procedural technicality which it may, in the
to entertain the petition. 26 The COMELEC made no ruling thereon evidently exercise of its discretion, set aside in view of the importance of issues raised. In the
because after having heard the arguments of Delfin and the oppositors at the landmark Emergency Powers Cases, this Court brushed aside this technicality
hearing on 12 December 1996, it required them to submit within five days their because the transcendental importance to the public of these cases demands that
memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December they be settled promptly and definitely, brushing aside, if we must, technicalities of
1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause procedure.
the publication of the petition, together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to
II
the petition rendered ripe and viable the instant petition under Section 2 of Rule 65
of the Rules of Court, which provides:

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

THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
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 Section 2 of Article XVII of the Constitution provides:
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. 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
It must also be noted that intervenor Roco claims that the COMELEC has no this section shall be authorized within five years following the ratification of this
jurisdiction over the Delfin Petition because the said petition is not supported by the Constitution nor oftener than once every five years thereafter.
required minimum number of signatures of registered voters. LABAN also asserts that
the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition,
which does not contain the required number of signatures. In light of these claims,
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the
1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions of the 1986 Constitutional Commission in its Committee Report
No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the
Members of the Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2
are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent,
there are no details in the provision on how to carry this out. Do we understand,
therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.

MR. SUAREZ. That is absolutely correct, 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?
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
MR. SUAREZ. That matter was also taken up during the committee hearing, draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy
especially with respect to the budget appropriations which would have to be of legal mandate, constituent power has primacy over all other legal mandates?
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 MR. SUAREZ. The Commissioner is right, Madam President.
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
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
power. 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?
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. That proposition is nondebatable.

MR. SUAREZ. No, it does not exclude that possibility because even the legislature
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
itself as a body could propose that amendment, maybe individually or collectively,
have a separate article in the constitution that would specifically cover the process
if it fails to muster the three-fourths vote in order to constitute itself as a constituent
and the modes of amending the Constitution?
assembly and submit that proposal to the people for ratification through the process
of an initiative.

MR. SUAREZ. That is right, Madam President.

xxx xxx xxx

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
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
mechanics of amending the Constitution by people's initiative?
to vest constituent power in the people to amend the Constitution?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands
of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND — not to REVISE — the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year,
has to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand
into a revision which contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF
THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee Report
No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section
2 clearly showed that it was a legislative act which must implement the exercise of
the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines
initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment
on line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the initiative
on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the National Assembly
is required, the import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary legislation or putting an
end to a law proposed by the National Assembly by way of a referendum. I cannot
agree to reducing the requirement approved by the Committee on the Legislative
because it would require another voting by the Committee, and the voting as This amendment was approved and is the text of the present second paragraph of
precisely based on a requirement of 10 percent. Perhaps, I might present such a Section 2.
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 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.
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:
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.
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
There is, of course, no other better way for Congress to implement the exercise of
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
the right than through the passage of a statute or legislative act. This is the essence
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF.
or rationale of the last minute amendment by the Constitutional Commission to
NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
substitute the last paragraph of Section 2 of Article XVII then reading:
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.

The Congress 45 shall by law provide for the implementation of the exercise of this
right.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

with

The entire proposed Article on Amendments or Revisions was approved on second

reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
The Congress shall provide for the implementation of the exercise of this right.
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
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
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 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to
propose amendments to the Constitution. The Act is a consolidation of House Bill No.
21505 and Senate Bill No. 17. The former was prepared by the Committee on
Suffrage and Electoral Reforms of the House of Representatives on the basis of two
House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative
and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48
which dealt with the subject matter of House Bill No. 497, as well as with initiative
and referendum under Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely
dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill
No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
"provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:
Sec. 2. Statement and Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body
upon compliance with the requirements of this Act is hereby affirmed, recognized
and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That
word is neither germane nor relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals to AMEND. The
people are not accorded the power to "directly propose, enact, approve, or reject,
in whole or in part, the Constitution" through the system of initiative. They can only
do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on
local initiative and referendum and appropriately used the phrases "propose and
enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems of
initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But
unlike in the case of the other systems of initiative, the Act does not provide for the
contents of a petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be. It does not
include, as among the contents of the petition, the provisions of the Constitution
sought to be amended, in the case of initiative on the Constitution. Said paragraph
(c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
 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
c.4 that it is not one of the exceptions provided therein; Act, which we quote for emphasis and clearer understanding:

c.5 signatures of the petitioners or registered voters; and Sec. 3. Definition of terms —

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

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

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. a.1 Initiative on the Constitution which refers to a petition proposing 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 a.2 Initiative on Statutes which refers to a petition proposing to enact a national
initiative on the Constitution. This conspicuous silence as to the latter simply means legislation; and
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
a.3 Initiative on local legislation which refers to a petition proposing to enact a
subtitle therefor, considering that in the order of things, the primacy of interest, or
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
hierarchy of values, the right of the people to directly propose amendments to the
(Emphasis supplied).
Constitution is far more important than the initiative on national and local laws.

Hence, to complete the classification under subtitles there should have been a
We cannot accept the argument that the initiative on amendments to the
subtitle on initiative on amendments to the Constitution. 53
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 A further examination of the Act even reveals that the subtitling is not accurate.
on its nature and character. It is "national initiative," if what is proposed to be Provisions not germane to the subtitle on National Initiative and Referendum are
adopted or enacted is a national law, or a law which only Congress can pass. It is placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
"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
(b) The proposition in an initiative on the Constitution approved by the majority of local legislation thereby giving them special attention, it failed, rather intentionally,
the votes cast in the plebiscite shall become effective as to the day of the to do so on the system of initiative on amendments to the Constitution. Anent the
plebiscite. initiative on national legislation, the Act provides for the following:

(c) A national or local initiative proposition approved by majority of the votes cast in (a) The required percentage of registered voters to sign the petition and the
an election called for the purpose shall become effective fifteen (15) days after contents of the petition;
certification and proclamation of the Commission. (Emphasis supplied).

(b) The conduct and date of the initiative;

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

(c) The submission to the electorate of the proposition and the required number of
votes for its approval;
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies. . . .
(d) The certification by the COMELEC of the approval of the proposition;

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
(e) The publication of the approved proposition in the Official Gazette or in a
findings of sufficiency or insufficiency of the petition for initiative or referendum,
newspaper of general circulation in the Philippines; and
which could be petitions for both national and local initiative and referendum.

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

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

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 (a) The preliminary requirement as to the number of signatures of registered voters
this Act for violation of the Constitution or want of capacity of the local legislative for the petition;
body to enact the said measure.

(b) The submission of the petition to the local legislative body concerned;
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
(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have
been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution"
in Section 2; (b) defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite"
as the process by which the proposition in an initiative on the Constitution may be
approved or rejected by the people; (d) reiterates the constitutional requirements
as to the number of voters who should sign the petition; and (e) provides for the
date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the
system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive matter
are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such
rules and regulations as may be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in
a Latin maxim: potestas delegata non delegari potest. 59 The recognized
exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article
VI of the Constitution;
(3) Delegation to the people at large;

(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation,
there must be a showing that the delegation itself is valid. It is valid only if the law (a)
is complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable — to which the delegate must conform
in the performance of his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative
command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations
referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or
that it has validly vested upon the COMELEC the power of subordinate legislation
and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without
jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735,
a petition for initiative on the Constitution must be signed by at least 12% of the total
number of registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits that he has not yet
gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The
petition then is the initiatory pleading. Nothing before its filing is cognizable by the
COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to
issue through its Election Records and Statistics Office a certificate on the total
number of registered voters in each legislative district; 64 (3) to assist, through its
election registrars, in the establishment of signature stations; 65 and (4) to verify,
through its election registrars, the signatures on the basis of the registry list of voters,
voters' affidavits, and voters' identification cards used in the immediately preceding
election. 66
WHEREFORE, judgment is hereby rendered

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 a) GRANTING the instant petition;
the COMELEC. The respondent Commission must have known that the petition does
not fall under any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not assign to the
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
petition a docket number. Hence, the said petition was merely entered as UND,
amendments to the Constitution, and to have failed to provide sufficient standard
meaning, undocketed. That petition was nothing more than a mere scrap of paper,
for subordinate legislation;
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, c) DECLARING void those parts of Resolution No. 2300 of the Commission on
and resources. Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and

The foregoing considered, further discussion on the issue of whether the proposal to
lift the term limits of elective national and local officials is an amendment to, and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition
not a revision of, the Constitution is rendered unnecessary, if not academic. (UND-96-037).

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

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

SO ORDERED.

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,
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres,
energy and strength. Congress should not tarry any longer in complying with the
Jr., JJ., concur.
constitutional mandate to provide for the implementation of the right of the people
under that system.
Padilla, J., took no part. xxx xxx xxx

Separate Opinions

PUNO, J., concurring and dissenting: SPONSORSHIP REMARKS OF MR. ROCO

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide
insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I
cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are At the outset, Mr. Roco provided the following backgrounder on the constitutional
legally defective and cannot implement the people's initiative to amend the basis of the proposed measure.
Constitution. I likewise submit that the petition with respect to the Pedrosas has no
leg to stand on and should be dismissed. With due respect:
1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of
I powers.

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to 2. While under the parliamentary system of the 1973 Constitution the principle
initiate amendments to the Constitution thru initiative. Our effort to discover the remained applicable, the 1981 amendments to the Constitution of 1973 ensured
meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. presidential dominance over the Batasang Pambansa.
A knowledge of this intent is critical for the intent of the legislature is the law and the
controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the
law, the spirit which gives life to its enactment.2
Constitutional history then saw the shifting and sharing of legislative powers
between the Legislature and the Executive departments. Transcending changes in
the exercise of legislative power is the declaration in the Philippine Constitution that
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to the Philippines is a republican state where sovereignty resides in the people and all
cover initiative to propose amendments to the Constitution." It ought to be so for this sovereignty emanates from them.
intent is crystal clear from the history of the law which was a consolidation of House
Bill No. 215053 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act
Providing for a System of Initiative and Referendum and the Exception Therefrom,
3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
Whereby People in Local Government Units Can Directly Propose and Enact
however, to institutionalize direct action of the people as exemplified in the 1986
Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution
Revolution, the Constitution recognizes the power of the people, through the system
Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not
of initiative and referendum.
include people's initiative to propose amendments to the Constitution. In checkered
contrast, House Bill No. 21505 5 expressly included people's initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship
remarks:6 As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill
on referendum and initiative, and to share its legislative powers with the people.
 said, is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people
the power to directly propose amendments to the Constitution through initiative,
upon petition of at least 12 percent of the total number of registered voters.
He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an
instrument which can be used should the legislature show itself to be indifferent to
Stating that House Bill No. 21505 is the Committee's response to the duty imposed on the needs of the people. This is the reason, he claimed, why now is an opportune
Congress to implement the exercise by the people of the right to initiative and time to pass the Bill even as he noted the felt necessity of the times to pass laws
referendum, Mr. Roco recalled the beginnings of the system of initiative and which are necessary to safeguard individual rights and liberties.
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power of initiative and referendum. He At this juncture Mr. Roco explained the process of initiative and referendum as
added that the holding of barangay plebiscites and referendum are likewise advocated in House Bill No. 21505. He stated that:
provided in Sections 100 and 101 of the same Code.

1. Initiative means that the people, on their own political judgment, submit a Bill for
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the the consideration of the general electorate.
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
He then cited examples of initiative and referendum similar to those contained in Congress; and the initiative to amend local ordinances.
the instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
project any existing law or parts thereof in a referendum. These states, he said, are
3. The instant Bill gives a definite procedure and allows the Commission on Elections
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
(COMELEC) to define rules and regulations on the power of initiative.
practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which
initiative and referendum apply is also without limitation, except for emergency
measures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirements of
a certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he
4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which is a mode
of plebiscite by presenting a petition therefor, but under certain limitations, such as
the signing of said petition by at least 10 percent of the total of registered voters at
which every legislative district is represented by at least three percent of the
registered voters thereof. Within 30 days after receipt of the petition, the COMELEC
shall determine the sufficiency of the petition, publish the same, and set the date of
the referendum within 45 to 90-day period.
6. When the matter under referendum or initiative is approved by the required
number of votes, it shall become effective 15 days following the completion of its
publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to
approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative to amend
the Constitution was stressed by then Congressman (now Secretary of Agriculture)
Salvador Escudero III in his sponsorship remarks, viz:7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly
popular democracy ever since, especially in the so-called parliament of the streets.
A substantial segment of the population feels, he said, that the form of democracy
is there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will
hasten the politization of the citizenry, aid the government in forming an
enlightened public opinion, and produce more responsive legislation. The passage
of the Bill will also give street parliamentarians the opportunity to articulate their
ideas in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were
threshed out in a Bicameral Conference Committee.8 In the meeting of the
Committee on June 6, 1989,9 the members agreed that the two (2) bills should be
consolidated and that the consolidated version should include people's initiative to
amend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. 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 government units because even with that stage where . . . at least
this has been quite popular, ano? It has been attempted on a national basis.
Alright. There has not been a single attempt. Now, so, kami limitado doon. And,
second, we consider also that it is only fair that the local legislative body should be
given a chance to adopt the legislation bill proposed, right? Iyong sinasabing
indirect system of initiative. If after all, the local legislative assembly or body is willing THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.
to adopt it in full or in toto, there ought to be any reason for initiative, ano for
initiative. And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people, thru initiative,
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
cannot enact any ordinance that is beyond the scope of authority of the local
between Senate Bill No. 21505 which refers to the system providing for the initiative
legislative body, otherwise, my God, mag-aassume sila ng power that is broader
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
and greater than the grant of legislative power to the Sanggunians. And Number 5,
House versions, so both versions are totally intact in the bill. The Senators ironically
because of that, then a proposition which has been the result of a successful
provided for local initiative and referendum and the House Representatives
initiative can only carry the force and effect of an ordinance and therefore that
correctly provided for initiative and referendum on the Constitution and on national
should not deprive the court of its jurisdiction to declare it null and void for want of
legislation.
authority. Ha, di ba? I mean it is beyond powers of local government units to enact.
Iyon ang main essence namin, so we concentrated on that. And that is why . . . so
ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh
. . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in I move that we approve the consolidated bill.
effect become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill.
MR. ALBANO. Mr. Speaker.
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 pagusapan. Now, if you insist, really iyong features ng national at saka
constitutional, okay. ____ gagawin na natin na consolidation of both bills. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

HON. ROCO. Yes, we shall consolidate. MR. ALBANO. Will the distinguished sponsor answer just a few questions?

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10 THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

When the consolidated bill was presented to the House for approval, then MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
Congressman Roco upon interpellation by Congressman Rodolfo Albano, again that in the Senate version there was a provision for local initiative and referendum,
confirmed that it covered people's initiative to amend the Constitution. The record whereas the House version has none.
of the House Representative states: 11

xxx xxx xxx

MR. ROCO. In fact, the Senate version provide purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation. MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.

MR. ALBANO. Is it our understanding therefore, that the two provisions were MR. ALBANO. Therefore, basically, there was no substantial difference between the
incorporated? two versions?

MR. ROCO. Yes, Mr. Speaker. MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.

MR. ALBANO. So that we will now have a complete initiative and referendum both
in the constitutional amendment and national legislation. MR. ALBANO. And the two bills were consolidated?

MR. ROCO. That is correct. MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. And provincial as well as municipal resolutions? MR. ALBANO. Thank you, Mr. Speaker.

MR. ROCO. Down to barangay, Mr. Speaker. APPROVAL OF C.C.R.

ON S.B. NO. 17 AND H.B. NO. 21505

MR. ALBANO. And this initiative and referendum is in consonance with the provision (The Initiative and Referendum Act)
of the Constitution whereby it mandates this Congress to enact the enabling law, so
that we shall have a system which can be done every five years. Is it five years in the
provision of the Constitution?
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on
Senate Bill No. 17 and House Bill No. 21505.

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
Is there any objection? (Silence. The Chair hears none; the motion is approved.

MR. ALBANO. For every five years, Mr. Speaker?

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's years from the ratification of the 1987 Constitution and only once every five (5) years
initiative to amend the Constitution, it is our bounden duty to interpret the law as it thereafter.
was intended by the legislature. We have ruled that once intent is ascertained, it
must be enforced even if it may not be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also held that where a law is
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states
susceptible of more than one interpretation, that interpretation which will most tend
that "(t)he proposition in an initiative on the Constitution approved by a majority of
to effectuate the manifest intent of the legislature will be adopted. 12
the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its
intent to implement the people's initiative to amend the Constitution. To be sure, we
It is unfortunate that the majority decision resorts to a strained interpretation of R.A.
need not torture the text of said law to reach the conclusion that it implements
No. 6735 to defeat its intent which it itself concedes is to implement people's
people's initiative to amend the Constitution. R.A. No. 6735 is replete with references
initiative to propose amendments to the Constitution. Thus, it laments that the word
to this prerogative of the people.
"Constitution" is neither germane nor relevant to the policy thrust of section 2 and
that the statute's subtitling is not accurate. These lapses are to be expected for laws
are not always written in impeccable English. Rightly, the Constitution does not
First, the policy statement declares: require our legislators to be word-smiths with the ability to write bills with poetic
commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has
always been our good policy not to refuse to effectuate the intent of a law on the
ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us:
Sec. 2. Statement of Policy. — The power of the people under a system of initiative
"Many laws contain words which have not been used accurately. But the use of
and referendum to directly propose, enact, approve or reject, in whole or in part,
inapt or inaccurate language or words, will not vitiate the statute if the legislative
the Constitution, laws, ordinances, or resolutions passed by any legislative body
intention can be ascertained. The same is equally true with reference to awkward,
upon compliance with the requirements of this Act is hereby affirmed, recognized
slovenly, or ungrammatical expressions, that is, such expressions and words will be
and guaranteed. (emphasis supplied)
construed as carrying the meaning the legislature intended that they bear,
although such a construction necessitates a departure from the literal meaning of
the words used.
Second, the law defines "initiative" as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an
election called for the purpose," and "plebiscite" as "the electoral process by which
In the same vein, the argument that R.A. No. 7535 does not include people's
an initiative on the Constitution is approved or rejected by the people.
initiative to amend the Constitution simply because it lacks a sub-title on the subject
should be given the weight of helium. Again, the hoary rule in statutory construction
is that headings prefixed to titles, chapters and sections of a statute may be
Third, the law provides the requirements for a petition for initiative to amend the consulted in aid of interpretation, but inferences drawn therefrom are entitled to
Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 very little weight, and they can never control the plain terms of the enacting
Constitution must have at least twelve per centum (12%) of the total number of clauses. 14
registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein." It
also states that "(i)nitiative on the Constitution may be exercised only after five (5)
All said, it is difficult to agree with the majority decision that refuses to enforce the
manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to
amend the Constitution. It blatantly disregards the rule cast in concrete that the
letter of the law must yield to its spirit for the letter of the law is its body but its spirit is
its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure
on how to exercise the people's initiative to amend the Constitution. This is in accord
with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC
which expressly states: "The Commission is hereby empowered to promulgate such
rules and regulations as may be necessary to carry out the purposes of this Act." By
no means can this delegation of power be assailed as infirmed. In the benchmark
case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto
Concepcion laid down the test to determine whether there is undue delegation of
legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power
to fill details in the execution, enforcement or administration of a law, it is essential,
to forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in
the performance of his functions. Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also — and this is
worse — to unmake it, by adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very
foundation of our republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to.
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, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for
initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22
when the amendment takes effect 23 and what matters may not be the subject of
any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is
intended to map out the boundaries of the delegates' authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued
and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power
to enact the law implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided the procedure to
effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend
the Constitution. The debates 26 in the Constitutional Commission make it clear that
the rules of procedure to enforce the people's initiative can be delegated, thus:

MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. 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.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise
affirmed: "In response to questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it could for instance,
prescribe the 'proper form before (the amendment) is submitted to the people,' it
could authorize another body to check the proper form. It could also authorize the
COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: '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.'" Quite clearly, the prohibition against
the legislature is to impair the substantive right of the people to initiate amendments
to the Constitution. It is not, however, prohibited from legislating the procedure to
enforce the people's right of initiative or to delegate it to another body like the
COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from
invalidating administrative rules on the ground of lack of adequate legislative
standard to guide their promulgation. As aptly perceived by former Justice Cruz,
"even if the law itself does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to which
orders of the military commander are to conform, or require findings to be made as
a prerequisite to any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They were parts of a single
program and must be judged as such. The Act of March 21, 1942, was an adoption
by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A
20-20 look at the law cannot miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found in no less than section 2,
Article XVII of the Constitution on Amendments or Revisions. There is thus no reason
to hold that the standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as "simplicity and
dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33
"justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36
"public policy", 37 "greater national interest", 38 "protect the local consumer by
stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the
legislature, a co-equal and coordinate branch of government, should counsel this
Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with respect to
the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The
records show that the case at bar started when respondent Delfin alone and by
himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term
Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition.
It was Senator Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC could resolve the
Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners
sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their
capacities as founding members of the People's Initiative for Reform, Modernization
and Action (PIRMA). The suit is an original action for prohibition with prayer for
temporary restraining order and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The only
allegation against the Pedrosas is that they are founding members of the PIRMA
which proposes to undertake the signature drive for people's initiative to amend the
Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a
respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from
conducting a signature drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for
the majority to lift the temporary restraining order against the Pedrosas. It should
dismiss the petition and all motions for contempt against them without
equivocation.
One need not draw a picture to impart the proposition that in soliciting signatures to
start a people's initiative to amend the Constitution the Pedrosas are not engaged
in any criminal act. Their solicitation of signatures is a right guaranteed in black and
white by section 2 of Article XVII of the Constitution which provides that ". . .
amendments to this Constitution may likewise be directly proposed by the people
through initiative. . ." This right springs from the principle proclaimed in section 1,
Article II of the Constitution that in a democratic and republican state "sovereignty
resides in the people and all government authority emanates from them." The
Pedrosas are part of the people and their voice is part of the voice of the people.
They may constitute but a particle of our sovereignty but no power can trivialize
them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the
people and their organizations to effective and reasonable participation at all
levels of social, political and economic decision-making shall not be abridged. The
State shall by law, facilitate the establishment of adequate consultation
mechanisms." This is another novel provision of the 1987 Constitution strengthening
the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process
of our people. The Constitution says their right cannot be abridged without any ifs
and buts. We cannot put a question mark on their right.
Over and above these new provisions, the Pedrosas' campaign to amend the
Constitution is an exercise of their freedom of speech and expression and their right
to petition the government for redress of grievances. We have memorialized this
universal right in all our fundamental laws from the Malolos Constitution to the 1987
Constitution. We have iterated and reiterated in our rulings that freedom of speech
is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let
think. For this reason, the Constitution encourages speech even if it protects the
speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a people's
initiative to amend the Constitution does not depend on any law, much less on R.A.
6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the
people to an undesirable status quo. To be sure, there are no irrepealable laws just
as there are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change. Mankind has long recognized the truism that the only
constant in life is change and so should the majority.
parties. What is essential at this time would only be to resolve whether or not the
petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a
"founding member of the Movement for People's Initiative" and seeking through a
people initiative certain modifications on the 1987 Constitution, can properly be
regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof provides:

IV
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
In a stream of cases, this Court has rhapsodized people power as expanded in the
by at least three per centum of the registered voters therein. No amendment under
1987 Constitution. On October 5, 1993, we observed that people's might is no longer
this section shall be authorized within five years following the ratification of this
a myth but an article of faith in our Constitution. 41 On September 30, 1994, we
Constitution nor oftener than once every five years thereafter.
postulated that people power can be trusted to check excesses of government
and that any effort to trivialize the effectiveness of people's initiatives ought to be
rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of
policy and doctrine will exert every effort to nurture, protect and promote their The Congress shall provide for the implementation of the exercise of this right.
legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous
decision, 44 we allowed a recall election in Caloocan City involving the mayor and
ordered that he submits his right to continue in office to the judgment of the tribunal
The Delfin petition is thus utterly deficient. Instead of complying with the
of the people. Thus far, we have succeeded in transforming people power from an
constitutional imperatives, the petition would rather have much of its burden passed
opaque abstraction to a robust reality. The Constitution calls us to encourage
on, in effect, to the COMELEC. The petition would require COMELEC to schedule
people empowerment to blossom in full. The Court cannot halt any and all signature
"signature gathering all over the country," to cause the necessary publication of the
campaigns to amend the Constitution without setting back the flowering of people
petition "in newspapers of general and local circulation," and to instruct "Municipal
empowerment. More important, the Court cannot seal the lips of people who are
Election Registrars in all Regions of the Philippines to assist petitioners and volunteers
pro-change but not those who are anti-change without concerting the debate on
in establishing signing stations at the time and on the dates designated for the
charter change into a sterile talkaton. Democracy is enlivened by a dialogue and
purpose.
not by a monologue for in a democracy nobody can claim any infallibility.

I submit, even then, that the TRO earlier issued by the Court which, consequentially,
Melo and Mendoza, JJ., concur.
is made permanent under the ponencia should be held to cover only the Delfin
VITUG, J., concurring and dissenting: petition and must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a right is clearly
The COMELEC should have dismissed, outrightly, the Delfin Petition. implicit in the constitutional mandate on people initiative.

It does seem to me that there is no real exigency on the part of the Court to The distinct greatness of a democratic society is that those who reign are the
engross, let alone to commit, itself on all the issues raised and debated upon by the governed themselves. The postulate is no longer lightly taken as just a perceived
myth but a veritable reality. The past has taught us that the vitality of government
lies not so much in the strength of those who lead as in the consent of those who
are led. The role of free speech is pivotal but it can only have its true meaning if it
comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and substance, it
behooves the Court, I most respectfully submit, to yet refrain from resolving the
question of whether or not Republic Act No. 6735 has effectively and sufficiently
implemented the Constitutional provision on right of the people to directly propose
constitutional amendments. Any opinion or view formulated by the Court at this
point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that the
TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of
their right to campaign for constitutional amendments.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared
a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his
view that R. A. No. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them.1 Unlike our previous constitutions, the
present 1987 Constitution has given more significance to this declaration of principle
for the people are now vested with power not only to propose, enact or reject any
act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well.2 To implement these constitutional edicts,
Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative
and Referendum Act". This law, to my mind, amply covers an initiative on the
constitution. The contrary view maintained by petitioners is based principally on the
alleged lack of sub-title in the law on initiative to amend the constitution and on
their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication.3
which allegation manifests petitioners' selective interpretation of the law, for under
Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing that:
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.
It is a rule that every part of the statute must be interpreted with reference the
context, i.e., that every part of the statute must be construed together with the
other parts and kept subservient to the general intent of the whole enactment. 4
Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The
legislative intent behind every law is to be extracted from the statute as a whole.5
In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the
people to propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose".6 The same section, in
enumerating the three systems of initiative, included an "initiative on the constitution
which refers to a petition proposing amendments to the constitution"7 Paragraph
(e) again of Section 3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people" And as to the
material requirements for an initiative on the Constitution, Section 5(b) distinctly
enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the 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 years thereafter. THE SPEAKER PRO TEMPORE. What does the sponsor say?

These provisions were inserted, on purpose, by Congress the intent being to provide MR. ROCO. Willingly, Mr. Speaker.
for the implementation of the right to propose an amendment to the Constitution
by way of initiative. "A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly, meaningless, in the sense
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
of adding nothing to the law or having no effect whatsoever thereon". 8 That this is
the legislative intent is further shown by the deliberations in Congress, thus:

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
. . . More significantly, in the course of the consideration of the Conference
whereas the House version has none.
Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill
No. 21505, it was noted:

MR. ROCO. In fact, the Senate version provided purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
constitutional legislation.
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to
the system providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are totally
intact in the bill. The Senators ironically provided for local initiative and referendum MR. ALBANO. Is it our understanding, therefore, that the two provisions were
and the House of Representatives correctly provided for initiative and referendum incorporated?
an the Constitution and on national legislation.

MR. ROCO. Yes, Mr. Speaker.

I move that we approve the consolidated bill.

MR. ALBANO. So that we will now have a complete initiative and referendum both
MR. ALBANO, Mr. Speaker. in the constitutional amendment and national legislation.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ROCO. That is correct.

MR. ALBANO. Will the distinguished sponsor answer just a few questions? MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker. 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
MR. ALBANO. And this initiative and referendum is in consonance with the provision
five (5) years from the ratification of the 1987 Constitution and only once every five
of the Constitution to enact the enabling law, so that we shall have a system which
(5) years thereafter.
can be done every five years. Is it five years in the provision of the Constitution?

Here private respondents' petition is unaccompanied by the required signatures.

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987
This defect notwithstanding, it is without prejudice to the refiling of their petition
Constitution, it is every five years." (Id. [Journal and Record of the House of
once compliance with the required percentage is satisfactorily shown by private
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
respondents. In the absence, therefore, of an appropriate petition before the
SCRA 279, 292-293 [1994]; emphasis supplied)
Commission on Elections, any determination of whether private respondents'
proposal constitutes an amendment or revision is premature.

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
ACCORDINGLY, I take exception to the conclusion reached in the ponencia that
approved and enacted into law, the proposal included initiative on both the
R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose
Constitution and ordinary laws.9
amendments to the Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for initiative before
public respondent Commission on Elections until the same be supported by proof of
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any strict compliance with Section 5 (b) of R.A. No. 6735.
other construction as what petitioners foist upon the Court constitute a betrayal of
the intent and spirit behind the enactment.

Melo and Mendoza, JJ., concur.

At any rate, I agree with the ponencia that the Commission on Elections, at present, PANGANIBAN, J., concurring and dissenting:
cannot take any action (such as those contained in the Commission's orders dated
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority,
December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already
holds that:
assumed jurisdiction over private respondents' petition. This is so because from the
tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of
the required percentage of registered voters at the time the petition for initiative is
filed, is a jurisdictional requirement. (1) The Comelec acted without jurisdiction or with grave abuse of discretion in
entertaining the "initiatory" Delfin Petition.

Thus:
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA 6735 is
"incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the
conduct of initiative on amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can show the
required number of signatures — in this case, 12% of all the registered voters in the
Philippines with at least 3% in every legislative district — no public funds may be
spent and no government resources may be used in an initiative to amend the
Constitution. Verily, the Comelec cannot even entertain any petition absent such
signatures. However, I dissent most respectfully from the majority's two other rulings.
Let me explain.
Under the above restrictive holdings espoused by the Court's majority, the
Constitution cannot be amended at all through a people's initiative. Not by Delfin,
not by Pirma, not by anyone, not even by all the voters of the country acting
together. This decision will effectively but unnecessarily curtail, nullify, abrogate and
render inutile the people's right to change the basic law. At the very least, the
majority holds the right hostage to congressional discretion on whether to pass a
new law to implement it, when there is already one existing at present. This right to
amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of
the Constitution, as follows:
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.
With all due respect, I find the majority's position all too sweeping and all too
extremist. It is equivalent to burning the whole house to exterminate the rats, and to
killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to
do we should reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact that the Delfin
Petition proposes a misuse of initiative does not justify a ban against its proper use.
Indeed, there is a right way to do the right thing at the right time and for the right
reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was — as the majority openly concedes
— intended by the legislature to cover and, I respectfully submit, it contains enough
provisions to effectuate an initiative on the Constitution.1 I completely agree with
the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice
Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs.
Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally
construed to effectuate their purposes, to facilitate and not hamper the exercise by
the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300
on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern
the conduct of initiative on the Constitution and initiative and referendum on
national and local laws," not by the incumbent Commission on Elections but by one
then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg
Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired
from the Commission, and thus we cannot ascribe any vile motive unto them, other
than an honest, sincere and exemplary effort to give life to a cherished right of our
people.
The majority argues that while Resolution 2300 is valid in regard to national laws and
local legislations, it is void in reference to constitutional amendments. There is no
basis for such differentiation. The source of and authority for the Resolution is the
same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and realize our
people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
Initiative, like referendum and recall, is a new and treasured feature of the Filipino
constitutional system. All three are institutionalized legacies of the world-admired
EDSA people power. Like elections and plebiscites, they are hallowed expressions of
popular sovereignty. They are sacred democratic rights of our people to be used as
their final weapons against political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand,
their misuse and abuse must be resolutely struck down, on the other, their legitimate
exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority. I
also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar
as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising
their right to free speech in proposing amendments to the Constitution.

I am glad the majority decided to heed our plea to lift the temporary restraining Melo and Mendoza, JJ., concur.
order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner
Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I
believe that such restraining order as against private respondents should not have
Separate Opinions
been issued, in the first place. While I agree that the Comelec should be stopped
from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right
of initiative. The right to propose amendments to the Constitution is really a species PUNO, J., concurring and dissenting:
of the right of free speech and free assembly. And certainly, it would be tyrannical
and despotic to stop anyone from speaking freely and persuading others to
conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide
what you say, but I will defend to the death your right to say it." After all, freedom is
insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I
not really for the thought we agree with, but as Justice Holmes wrote, "freedom for
cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are
the thought that we hate."5
legally defective and cannot implement the people's initiative to amend the
Constitution. I likewise submit that the petition with respect to the Pedrosas has no
leg to stand on and should be dismissed. With due respect:
Epilogue

I powers.
First, I submit that R.A. No. 6735 sufficiently implements the right of the people to
initiate amendments to the Constitution thru initiative. Our effort to discover the
meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers.
A knowledge of this intent is critical for the intent of the legislature is the law and the
controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the
law, the spirit which gives life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to
cover initiative to propose amendments to the Constitution." It ought to be so for this
intent is crystal clear from the history of the law which was a consolidation of House
Bill No. 215053 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act
Providing for a System of Initiative and Referendum and the Exception 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." Beyond doubt, Senate Bill No. 17 did not
include people's initiative to propose amendments to the Constitution. In checkered
contrast, House Bill No. 21505 5 expressly included people's initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship
remarks:6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the constitutional
basis of the proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced
by the 1935 Constitution saw the application of the principle of separation of
2. While under the parliamentary system of the 1973 Constitution the principle
remained applicable, the 1981 amendments to the Constitution of 1973 ensured
presidential dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers
between the Legislature and the Executive departments. Transcending changes in
the exercise of legislative power is the declaration in the Philippine Constitution that
the Philippines is a republican state where sovereignty resides in the people and all
sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress;
however, to institutionalize direct action of the people as exemplified in the 1986
Revolution, the Constitution recognizes the power of the people, through the system
of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have
plenary powers since reserve powers are given to the people expressly. Section 32
of the same Article mandates Congress to pass at the soonest possible time, a bill
on referendum and initiative, and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people
the power to directly propose amendments to the Constitution through initiative,
upon petition of at least 12 percent of the total number of registered voters.
Stating that House Bill No. 21505 is the Committee's response to the duty imposed on
Congress to implement the exercise by the people of the right to initiative and
referendum, Mr. Roco recalled the beginnings of the system of initiative and
referendum under Philippine Law. He cited Section 99 of the Local Government
Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang At this juncture Mr. Roco explained the process of initiative and referendum as
Barangay, all of which are variations of the power of initiative and referendum. He advocated in House Bill No. 21505. He stated that:
added that the holding of barangay plebiscites and referendum are likewise
provided in Sections 100 and 101 of the same Code.
1. Initiative means that the people, on their own political judgment, submit a Bill for
the consideration of the general electorate.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the
subject which he will later submit to the Secretary of the House be incorporated as
part of his sponsorship speech.
2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the
Constitution once every five years; the initiative to amend statutes approved by
Congress; and the initiative to amend local ordinances.
He then cited examples of initiative and referendum similar to those contained in
the instant Bill among which are the constitutions of states in the United States which
recognize the right of registered voters to initiate the enactment of any statute or to
3. The instant Bill gives a definite procedure and allows the Commission on Elections
project any existing law or parts thereof in a referendum. These states, he said, are
(COMELEC) to define rules and regulations on the power of initiative.
Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which
initiative and referendum apply is also without limitation, except for emergency
measures, which are likewise incorporated in House Bill No. 21505. He added that
the procedure provided by the Bill from the filing of the petition, the requirements of
a certain percentage of supporters to present a proposition, to the submission to
electors are substantially similar to the provisions in American laws. Although an
infant in Philippine political structure, the system of initiative and referendum, he
said, is a tried and tested system in other jurisdictions, and the Bill is patterned after
American experience.
4. Referendum means that the legislators seek the consent of the people on
measures that they have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which is a mode
of plebiscite by presenting a petition therefor, but under certain limitations, such as
the signing of said petition by at least 10 percent of the total of registered voters at
which every legislative district is represented by at least three percent of the
registered voters thereof. Within 30 days after receipt of the petition, the COMELEC
shall determine the sufficiency of the petition, publish the same, and set the date of
the referendum within 45 to 90-day period.

He further explained that the bill has only 12 sections, and recalled that the
Constitutional Commissioners saw the system of the initiative and referendum as an 6. When the matter under referendum or initiative is approved by the required
instrument which can be used should the legislature show itself to be indifferent to number of votes, it shall become effective 15 days following the completion of its
the needs of the people. This is the reason, he claimed, why now is an opportune publication in the Official Gazette.
time to pass the Bill even as he noted the felt necessity of the times to pass laws
which are necessary to safeguard individual rights and liberties.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot
ignore the people's call for initiative and referendum and urged the Body to
approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech
together with the footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bill's intent to implement people's initiative to amend
the Constitution was stressed by then Congressman (now Secretary of Agriculture)
Salvador Escudero III in his sponsorship remarks, viz:7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly
popular democracy ever since, especially in the so-called parliament of the streets.
A substantial segment of the population feels, he said, that the form of democracy
is there, but not the reality or substance of it because of the increasingly elitist
approach of their representatives to the country's problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means
whereby the people can exercise the reserved power of initiative to propose
amendments to the Constitution, and requested that Sections 1 and 32, Article VI;
Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of
his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited
Constitutional provisions. While the enactment of the Bill will give way to strong
competition among cause-oriented and sectoral groups, he continued, it will
hasten the politization of the citizenry, aid the government in forming an
enlightened public opinion, and produce more responsive legislation. The passage
of the Bill will also give street parliamentarians the opportunity to articulate their
ideas in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so
that it can be initially used for the Agrarian Reform Law. He said that the passage of
House Bill No. 21505 will show that the Members can set aside their personal and
political consideration for the greater good of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were
threshed out in a Bicameral Conference Committee.8 In the meeting of the
Committee on June 6, 1989,9 the members agreed that the two (2) bills should be
consolidated and that the consolidated version should include people's initiative to
amend the Constitution as contemplated by House Bill No. 21505. The transcript of
the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. 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 government units because even with that stage where . . . at least
this has been quite popular, ano? It has been attempted on a national basis.
Alright. There has not been a single attempt. Now, so, kami limitado doon. And,
second, we consider also that it is only fair that the local legislative body should be
given a chance to adopt the legislation bill proposed, right? Iyong sinasabing
indirect system of initiative. If after all, the local legislative assembly or body is willing
to adopt it in full or in toto, there ought to be any reason for initiative, ano for
initiative. And, number 3, we feel that there should be some limitation on the
frequency with which it should be applied. Number 4, na the people, thru initiative,
cannot enact any ordinance that is beyond the scope of authority of the local
legislative body, otherwise, my God, mag-aassume sila ng power that is broader
and greater than the grant of legislative power to the Sanggunians. And Number 5,
because of that, then a proposition which has been the result of a successful
initiative can only carry the force and effect of an ordinance and therefore that
should not deprive the court of its jurisdiction to declare it null and void for want of correctly provided for initiative and referendum on the Constitution and on national
authority. Ha, di ba? I mean it is beyond powers of local government units to enact. legislation.
Iyon ang main essence namin, so we concentrated on that. And that is why . . . so
ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh
. . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in
I move that we approve the consolidated bill.
effect become a dead statute. Alright, and we can agree, we can agree. So ang
mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and
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 MR. ALBANO. Mr. Speaker.
approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na
nating pagusapan. Now, if you insist, really iyong features ng national at saka
constitutional, okay. ____ gagawin na natin na consolidation of both bills.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

HON. ROCO. Yes, we shall consolidate.

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

When the consolidated bill was presented to the House for approval, then
Congressman Roco upon interpellation by Congressman Rodolfo Albano, again MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
confirmed that it covered people's initiative to amend the Constitution. The record that in the Senate version there was a provision for local initiative and referendum,
of the House Representative states: 11 whereas the House version has none.

xxx xxx xxx MR. ROCO. In fact, the Senate version provide purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

MR. ALBANO. Is it our understanding therefore, that the two provisions were
incorporated?
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact in the bill. The Senators ironically MR. ROCO. Yes, Mr. Speaker.
provided for local initiative and referendum and the House Representatives
MR. ALBANO. So that we will now have a complete initiative and referendum both
in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution whereby it mandates this Congress to enact the enabling law, so
that we shall have a system which can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there was no substantial difference between the
two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on
Senate Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's
initiative to amend the Constitution, it is our bounden duty to interpret the law as it
was intended by the legislature. We have ruled that once intent is ascertained, it
must be enforced even if it may not be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also held that where a law is
susceptible of more than one interpretation, that interpretation which will most tend
to effectuate the manifest intent of the legislature will be adopted. 12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its
intent to implement the people's initiative to amend the Constitution. To be sure, we
need not torture the text of said law to reach the conclusion that it implements
people's initiative to amend the Constitution. R.A. No. 6735 is replete with references
to this prerogative of the people.
First, the policy statement declares:
Sec. 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. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an
election called for the purpose," and "plebiscite" as "the electoral process by which
an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend the
Constitution. Section 5(b) states that "(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." It
also states that "(i)nitiative 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.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states
that "(t)he 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.
It is unfortunate that the majority decision resorts to a strained interpretation of R.A.
No. 6735 to defeat its intent which it itself concedes is to implement people's
initiative to propose amendments to the Constitution. Thus, it laments that the word
"Constitution" is neither germane nor relevant to the policy thrust of section 2 and
that the statute's subtitling is not accurate. These lapses are to be expected for laws
are not always written in impeccable English. Rightly, the Constitution does not
require our legislators to be word-smiths with the ability to write bills with poetic
commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has
always been our good policy not to refuse to effectuate the intent of a law on the
ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us:
"Many laws contain words which have not been used accurately. But the use of
inapt or inaccurate language or words, will not vitiate the statute if the legislative
intention can be ascertained. The same is equally true with reference to awkward,
slovenly, or ungrammatical expressions, that is, such expressions and words will be
construed as carrying the meaning the legislature intended that they bear,
although such a construction necessitates a departure from the literal meaning of
the words used.
In the same vein, the argument that R.A. No. 7535 does not include people's
initiative to amend the Constitution simply because it lacks a sub-title on the subject
should be given the weight of helium. Again, the hoary rule in statutory construction
is that headings prefixed to titles, chapters and sections of a statute may be
consulted in aid of interpretation, but inferences drawn therefrom are entitled to
very little weight, and they can never control the plain terms of the enacting
clauses. 14
All said, it is difficult to agree with the majority decision that refuses to enforce the
manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to
amend the Constitution. It blatantly disregards the rule cast in concrete that the
letter of the law must yield to its spirit for the letter of the law is its body but its spirit is
its soul. 15
II
COMELEC Resolution No. 2300, 16 promulgated under the stewardship of
Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure
on how to exercise the people's initiative to amend the Constitution. This is in accord
with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC
which expressly states: "The Commission is hereby empowered to promulgate such
rules and regulations as may be necessary to carry out the purposes of this Act." By
no means can this delegation of power be assailed as infirmed. In the benchmark
case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto
Concepcion laid down the test to determine whether there is undue delegation of
legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power
to fill details in the execution, enforcement or administration of a law, it is essential,
to forestall a violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate — and (b) to fix standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in
the performance of his functions. Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also — and this is
worse — to unmake it, by adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very
foundation of our republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled
requirements for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to.
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, 18 directs how initiative proceeding is
commenced, 19 what the COMELEC should do upon filing of the petition for
initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22
when the amendment takes effect 23 and what matters may not be the subject of
any initiative. 24 By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is
intended to map out the boundaries of the delegates' authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued
and effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the delegate." 25 In
enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power
to enact the law implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided the procedure to
effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend
the Constitution. The debates 26 in the Constitutional Commission make it clear that
the rules of procedure to enforce the people's initiative can be delegated, thus:
MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. 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.
In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise
affirmed: "In response to questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it could for instance,
prescribe the 'proper form before (the amendment) is submitted to the people,' it
could authorize another body to check the proper form. It could also authorize the
COMELEC, for instance, to check the authenticity of the signatures of petitioners.
Davide concluded: '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.'" Quite clearly, the prohibition against
the legislature is to impair the substantive right of the people to initiate amendments
to the Constitution. It is not, however, prohibited from legislating the procedure to
enforce the people's right of initiative or to delegate it to another body like the
COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from
invalidating administrative rules on the ground of lack of adequate legislative
standard to guide their promulgation. As aptly perceived by former Justice Cruz,
"even if the law itself does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the statute, if it can, from
constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to which
orders of the military commander are to conform, or require findings to be made as
a prerequisite to any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They were parts of a single
program and must be judged as such. The Act of March 21, 1942, was an adoption
by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order — the necessity
of protecting military resources in the designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A
20-20 look at the law cannot miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found in no less than section 2,
Article XVII of the Constitution on Amendments or Revisions. There is thus no reason
to hold that the standards provided for in R.A. No. 6735 are insufficient for in other
cases we have upheld as adequate more general standards such as "simplicity and
dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33
"justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36
"public policy", 37 "greater national interest", 38 "protect the local consumer by
stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity,
economy and efficiency in government." 40 A due regard and respect to the
legislature, a co-equal and coordinate branch of government, should counsel this
Court to refrain from refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with respect to
the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The
records show that the case at bar started when respondent Delfin alone and by
himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term
Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition.
It was Senator Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC could resolve the
Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners
sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their
capacities as founding members of the People's Initiative for Reform, Modernization
and Action (PIRMA). The suit is an original action for prohibition with prayer for
temporary restraining order and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The only
allegation against the Pedrosas is that they are founding members of the PIRMA
which proposes to undertake the signature drive for people's initiative to amend the
Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a
respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from
conducting a signature drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a
signature drive for people's initiative to amend the Constitution." It is not enough for
the majority to lift the temporary restraining order against the Pedrosas. It should
dismiss the petition and all motions for contempt against them without
equivocation.
One need not draw a picture to impart the proposition that in soliciting signatures to
start a people's initiative to amend the Constitution the Pedrosas are not engaged
in any criminal act. Their solicitation of signatures is a right guaranteed in black and
white by section 2 of Article XVII of the Constitution which provides that ". . .
amendments to this Constitution may likewise be directly proposed by the people
through initiative. . ." This right springs from the principle proclaimed in section 1,
Article II of the Constitution that in a democratic and republican state "sovereignty
resides in the people and all government authority emanates from them." The
Pedrosas are part of the people and their voice is part of the voice of the people.
They may constitute but a particle of our sovereignty but no power can trivialize
them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the
people and their organizations to effective and reasonable participation at all
levels of social, political and economic decision-making shall not be abridged. The
State shall by law, facilitate the establishment of adequate consultation
mechanisms." This is another novel provision of the 1987 Constitution strengthening
the sinews of the sovereignty of our people. In soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decision-making process
of our people. The Constitution says their right cannot be abridged without any ifs
and buts. We cannot put a question mark on their right.
Over and above these new provisions, the Pedrosas' campaign to amend the
Constitution is an exercise of their freedom of speech and expression and their right
to petition the government for redress of grievances. We have memorialized this
universal right in all our fundamental laws from the Malolos Constitution to the 1987
Constitution. We have iterated and reiterated in our rulings that freedom of speech
is a preferred right, the matrix of other important rights of our people. Undeniably,
freedom of speech enervates the essence of the democratic creed of think and let
think. For this reason, the Constitution encourages speech even if it protects the
speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a people's
initiative to amend the Constitution does not depend on any law, much less on R.A.
6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the
people to an undesirable status quo. To be sure, there are no irrepealable laws just
as there are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change. Mankind has long recognized the truism that the only
constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded in the
1987 Constitution. On October 5, 1993, we observed that people's might is no longer
a myth but an article of faith in our Constitution. 41 On September 30, 1994, we
postulated that people power can be trusted to check excesses of government
and that any effort to trivialize the effectiveness of people's initiatives ought to be
rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of
policy and doctrine will exert every effort to nurture, protect and promote their
legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous
decision, 44 we allowed a recall election in Caloocan City involving the mayor and
ordered that he submits his right to continue in office to the judgment of the tribunal
of the people. Thus far, we have succeeded in transforming people power from an
opaque abstraction to a robust reality. The Constitution calls us to encourage
people empowerment to blossom in full. The Court cannot halt any and all signature
campaigns to amend the Constitution without setting back the flowering of people
empowerment. More important, the Court cannot seal the lips of people who are
pro-change but not those who are anti-change without concerting the debate on
charter change into a sterile talkaton. Democracy is enlivened by a dialogue and
not by a monologue for in a democracy nobody can claim any infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to
engross, let alone to commit, itself on all the issues raised and debated upon by the
parties. What is essential at this time would only be to resolve whether or not the
petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a
"founding member of the Movement for People's Initiative" and seeking through a
people initiative certain modifications on the 1987 Constitution, can properly be
regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof 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.
The Delfin petition is thus utterly deficient. Instead of complying with the
constitutional imperatives, the petition would rather have much of its burden passed
on, in effect, to the COMELEC. The petition would require COMELEC to schedule
"signature gathering all over the country," to cause the necessary publication of the
petition "in newspapers of general and local circulation," and to instruct "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.
I submit, even then, that the TRO earlier issued by the Court which, consequentially,
is made permanent under the ponencia should be held to cover only the Delfin
petition and must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a right is clearly
implicit in the constitutional mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are the
governed themselves. The postulate is no longer lightly taken as just a perceived
myth but a veritable reality. The past has taught us that the vitality of government
lies not so much in the strength of those who lead as in the consent of those who
are led. The role of free speech is pivotal but it can only have its true meaning if it
comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form and substance, it
behooves the Court, I most respectfully submit, to yet refrain from resolving the
question of whether or not Republic Act No. 6735 has effectively and sufficiently
implemented the Constitutional provision on right of the people to directly propose
constitutional amendments. Any opinion or view formulated by the Court at this
point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the
TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of
their right to campaign for constitutional amendments.
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared
a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his
view that R. A. No. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all
government authority emanates from them.1 Unlike our previous constitutions, the
present 1987 Constitution has given more significance to this declaration of principle
for the people are now vested with power not only to propose, enact or reject any
act or law passed by Congress or by the local legislative body, but to propose
amendments to the constitution as well.2 To implement these constitutional edicts,
Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative
and Referendum Act". This law, to my mind, amply covers an initiative on the
constitution. The contrary view maintained by petitioners is based principally on the
alleged lack of sub-title in the law on initiative to amend the constitution and on
their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not
constitutional amendments, because constitutional amendments take effect upon
ratification not after publication.3
which allegation manifests petitioners' selective interpretation of the law, for under
Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing that:
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.
It is a rule that every part of the statute must be interpreted with reference the
context, i.e., that every part of the statute must be construed together with the
other parts and kept subservient to the general intent of the whole enactment. 4
Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The
legislative intent behind every law is to be extracted from the statute as a whole.5
In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the
people to propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose".6 The same section, in
enumerating the three systems of initiative, included an "initiative on the constitution
which refers to a petition proposing amendments to the constitution"7 Paragraph
(e) again of Section 3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people" And as to the
material requirements for an initiative on the Constitution, Section 5(b) distinctly
enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of the 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 years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to provide
for the implementation of the right to propose an amendment to the Constitution
by way of initiative. "A legal provision", the Court has previously said, "must not be
construed as to be a useless surplusage, and accordingly, meaningless, in the sense
of adding nothing to the law or having no effect whatsoever thereon". 8 That this is
the legislative intent is further shown by the deliberations in Congress, thus: THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

. . . More significantly, in the course of the consideration of the Conference MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill that in the Senate version there was a provision for local initiative and referendum,
No. 21505, it was noted: whereas the House version has none.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions MR. ROCO. In fact, the Senate version provided purely for local initiative and
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to referendum, whereas in the House version, we provided purely for national and
the system providing for the initiative and referendum, fundamentally, Mr. Speaker, constitutional legislation.
we consolidated the Senate and the House versions, so both versions are totally
intact in the bill. The Senators ironically provided for local initiative and referendum
and the House of Representatives correctly provided for initiative and referendum
MR. ALBANO. Is it our understanding, therefore, that the two provisions were
an the Constitution and on national legislation.
incorporated?

I move that we approve the consolidated bill.

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both
in the constitutional amendment and national legislation.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ROCO. That is correct.

MR. ALBANO. Will the distinguished sponsor answer just a few questions?
MR. ALBANO. And provincial as well as municipal resolutions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ROCO. Willingly, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision registered voters therein. Initiative on the Constitution may be exercised only after
of the Constitution to enact the enabling law, so that we shall have a system which five (5) years from the ratification of the 1987 Constitution and only once every five
can be done every five years. Is it five years in the provision of the Constitution? (5) years thereafter.

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987
Constitution, it is every five years." (Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis supplied)
Here private respondents' petition is unaccompanied by the required signatures.
This defect notwithstanding, it is without prejudice to the refiling of their petition
once compliance with the required percentage is satisfactorily shown by private
respondents. In the absence, therefore, of an appropriate petition before the
Commission on Elections, any determination of whether private respondents'
proposal constitutes an amendment or revision is premature.

. . . The Senate version of the Bill may not have comprehended initiatives on the
Constitution. When consolidated, though, with the House version of the Bill and as
approved and enacted into law, the proposal included initiative on both the ACCORDINGLY, I take exception to the conclusion reached in the ponencia that
Constitution and ordinary laws.9 R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose
amendments to the Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for initiative before
public respondent Commission on Elections until the same be supported by proof of
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any
strict compliance with Section 5 (b) of R.A. No. 6735.
other construction as what petitioners foist upon the Court constitute a betrayal of
the intent and spirit behind the enactment.

Melo and Mendoza, JJ., concur.

At any rate, I agree with the ponencia that the Commission on Elections, at present,
cannot take any action (such as those contained in the Commission's orders dated
December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already
assumed jurisdiction over private respondents' petition. This is so because from the
tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of
the required percentage of registered voters at the time the petition for initiative is
PANGANIBAN, J., concurring and dissenting:
filed, is a jurisdictional requirement.

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority,
Thus:
holds that:

A petition for an initiative on the 1987 Constitution must have at least twelve per
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in
centum (12%) of the total number of registered voters as signatories, of which every
entertaining the "initiatory" Delfin Petition.
legislative district must be represented by at least three per centum (3%) of the
(2) While the Constitution allows amendments to "be directly proposed by the
people through initiative," there is no implementing law for the purpose. RA 6735 is
"incomplete, inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the
conduct of initiative on amendments to the Constitution, is void."
With all due respect, I find the majority's position all too sweeping and all too
extremist. It is equivalent to burning the whole house to exterminate the rats, and to
killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to
do we should reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact that the Delfin
Petition proposes a misuse of initiative does not justify a ban against its proper use.
Indeed, there is a right way to do the right thing at the right time and for the right
reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec
I concur with the first item above. Until and unless an initiatory petition can show the
Resolution 2300 Are Sufficient to Implement Constitutional Initiatives
required number of signatures — in this case, 12% of all the registered voters in the
Philippines with at least 3% in every legislative district — no public funds may be
spent and no government resources may be used in an initiative to amend the
Constitution. Verily, the Comelec cannot even entertain any petition absent such While RA 6735 may not be a perfect law, it was — as the majority openly concedes
signatures. However, I dissent most respectfully from the majority's two other rulings. — intended by the legislature to cover and, I respectfully submit, it contains enough
Let me explain. provisions to effectuate an initiative on the Constitution.1 I completely agree with
the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice
Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements
the right of the people to initiate amendments to the Constitution. Such views,
Under the above restrictive holdings espoused by the Court's majority, the
which I shall no longer repeat nor elaborate on, are thoroughly consistent with this
Constitution cannot be amended at all through a people's initiative. Not by Delfin,
Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs.
not by Pirma, not by anyone, not even by all the voters of the country acting
Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally
together. This decision will effectively but unnecessarily curtail, nullify, abrogate and
construed to effectuate their purposes, to facilitate and not hamper the exercise by
render inutile the people's right to change the basic law. At the very least, the
the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any
majority holds the right hostage to congressional discretion on whether to pass a
"effort to trivialize the effectiveness of people's initiatives ought to be rejected."
new law to implement it, when there is already one existing at present. This right to
amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of
the Constitution, as follows:
No law can completely and absolutely cover all administrative details. In
recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to
promulgate such rules and regulations as may be necessary to carry out the
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300
people through initiative upon a petition of at least twelve per centum of the total
on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern
number of registered voters, of which every legislative district must be represented
the conduct of initiative on the Constitution and initiative and referendum on
by at least three per centum of the registered voters therein. No amendment under
national and local laws," not by the incumbent Commission on Elections but by one
this section shall be authorized within five years following the ratification of this
then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg
Constitution nor oftener than once every five years thereafter.
Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed Resolution 2300 have retired
from the Commission, and thus we cannot ascribe any vile motive unto them, other
than an honest, sincere and exemplary effort to give life to a cherished right of our
people.
The majority argues that while Resolution 2300 is valid in regard to national laws and
local legislations, it is void in reference to constitutional amendments. There is no
basis for such differentiation. The source of and authority for the Resolution is the
same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and realize our
people's power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion.
Initiative, like referendum and recall, is a new and treasured feature of the Filipino
constitutional system. All three are institutionalized legacies of the world-admired
EDSA people power. Like elections and plebiscites, they are hallowed expressions of
popular sovereignty. They are sacred democratic rights of our people to be used as
their final weapons against political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand,
their misuse and abuse must be resolutely struck down, on the other, their legitimate
exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority. I
also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar
as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising
their right to free speech in proposing amendments to the Constitution.

I am glad the majority decided to heed our plea to lift the temporary restraining
order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner
Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I
believe that such restraining order as against private respondents should not have
been issued, in the first place. While I agree that the Comelec should be stopped
from using public funds and government resources to help them gather signatures, I
firmly believe that this Court has no power to restrain them from exercising their right
of initiative. The right to propose amendments to the Constitution is really a species
of the right of free speech and free assembly. And certainly, it would be tyrannical
and despotic to stop anyone from speaking freely and persuading others to
conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with
what you say, but I will defend to the death your right to say it." After all, freedom is
not really for the thought we agree with, but as Justice Holmes wrote, "freedom for
the thought that we hate."5
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952
REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR.,
Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN
MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO
UNO represented by its Secretary General Joel Maglunsod, HEAD represented by
its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM
represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General
Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen.
Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman,
LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay,
JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-
BARAQUEL, Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA,
TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
MR. VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR.,
Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO
L. SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.
OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG,
Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS,
SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe
and Peter Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition to
amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section
5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters, with
each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory Provisions."6
These proposed changes will shift the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government. The Lambino Group prayed that
after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions)
of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari
and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to
compel the COMELEC to give due course to their initiative petition. The Lambino
Group contends that the COMELEC committed grave abuse of discretion in
denying due course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the parties to that
case, and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited
in contempt for the COMELEC's verification of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction in Santiago. The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes
with the petitioners, urging the Court to grant the petition despite the Santiago
ruling. The Solicitor General proposed that the Court treat RA 6735 and its
implementing rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold
the view that the COMELEC committed grave abuse of discretion in relying on
Santiago. On the other hand, the opposing intervenors11 hold the contrary view
and maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of
the signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters supporting
an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the
nature of the proposed changes as revisions and not mere amendments as
provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino
Group's compliance with the requirement in Section 10(a) of RA 6735 limiting
initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties' memoranda, the Court considered the case
submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a people's
initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to implement
the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due
course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to revisit
Santiago, as the present petition warrants dismissal based alone on the Lambino
Group's glaring failure to comply with the basic requirements of the Constitution. For
following the Court's ruling in Santiago, no grave abuse of discretion is attributable
to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that
allows a people's initiative to propose amendments to the Constitution. This section
states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters of which every legislative district must be represented
by at least three per centum of the registered voters therein. x x x x (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an
amendment "directly proposed by the people through initiative upon a petition,"
thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose
a constitutional amendment. Is the draft of the proposed constitutional amendment
ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them
and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them." The framers also "envisioned" that the people should
sign on the proposal itself because the proponents must "prepare that proposal and
pass it around for signature."
The essence of amendments "directly proposed by the people through initiative
upon a petition" is that the entire proposal on its face is a petition by the people. This
means two essential elements must be present. First, the people must author and
thus sign the entire proposal. No agent or representative can sign on their behalf.
Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition that
contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of signatories
to the petition had seen the full text of the proposed amendments before signing.
Otherwise, it is physically impossible, given the time constraint, to prove that every
one of the millions of signatories had seen the full text of the proposed amendments
before signing.
The framers of the Constitution directly borrowed14 the concept of people's
initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States15 which allow initiative petitions, the unbending
requirement is that the people must first see the full text of the proposed
amendments before they sign to signify their assent, and that the people must sign
on an initiative petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents of
an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not
be to the signer's liking. This danger seems particularly acute when, in this case, the
person giving the description is the drafter of the petition, who obviously has a
vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of full
text of amended constitutional provision required because it is "essential for the
elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature
and effect of that which is proposed" and failure to do so is "deceptive and
misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. However, the deliberations
of the framers of our Constitution clearly show that the framers intended to adopt
the relevant American jurisprudence on people's initiative. In particular, the
deliberations of the Constitutional Commission explicitly reveal that the framers
intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full
text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum City/Municipality:
Act that the Lambino Group invokes as valid, requires that the people must sign the
"petition x x x as signatories."
No. of

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

Thus, there is no presumption that the proponents observed the constitutional

requirements in gathering the signatures. The proponents bear the burden of Barangay:
proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full text
of the proposed amendments.

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII

The Lambino Group did not attach to their present petition with this Court a copy of
the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet20 after the oral arguments of 26
September 2006 when they filed their Memorandum on 11 October 2006. The
signature sheet with this Court during the oral arguments was the signature sheet
attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce
below the signature sheet in full:
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM
OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My
signature herein which shall form part of the petition for initiative to amend the
Constitution signifies my support for the filing thereof.
Precinct Number

Province: Name
 Witness
Last Name, First Name, M.I. (Print Name and Sign)

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

MM/DD/YY

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

1
2
3 Petitioner Atty. Lambino, however, explained that during the signature-gathering
4 from February to August 2006, the Lambino Group circulated, together with the
5 signature sheets, printed copies of the Lambino Group's draft petition which they
6 later filed on 25 August 2006 with the COMELEC. When asked if his group also
circulated the draft of their amended petition filed on 30 August 2006 with the
7
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty.
8
Lambino changed his answer and stated that what his group circulated was the
9
draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006
10
petition.

Barangay Official
(Print Name and Sign)
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February 2006
_________________ when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August
Witness
2006 amended petition, filed with the COMELEC, states as follows:
(Print Name and Sign)

__________________ I have caused the preparation of the foregoing [Amended] Petition in my personal
capacity as a registered voter, for and on behalf of the Union of Local Authorities of
the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the "Official Website of the Union of Local Authorities of
the Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP)
to adopt a common stand on the approach to support the proposals of the
People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the
ULAP Joint Declaration for Constitutional Reforms signed by the members of the
ULAP and the majority coalition of the House of Representatives in Manila Hotel
sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by
Her Excellency to recommend amendments to the 1987 Constitution has submitted
its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress
which militates against the use of the expeditious form of amending the 1987
Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of
Congress to amend the Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue
the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-
LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT
THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON
CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare
the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the
COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory Provisions.
The proposed revisions have profound impact on the Judiciary and the National
Patrimony provisions of the existing Constitution, provisions that the Lambino Group's
proposed changes do not touch. The Lambino Group's proposed changes purport
to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does
not establish that ULAP or the Lambino Group caused the circulation of the draft
petition, together with the signature sheets, six months before the filing with the
COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section 4
and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated
and failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because
the amended petition was what they had shown to the people during the February
to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their
proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of
the draft petition together with the signature sheets. Likewise, the Lambino Group
did not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature sheets
do not also contain any indication that the draft petition is attached to, or
circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the
Lambino Group first claimed that they circulated the "petition for initiative filed with
the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of the
act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the
registered voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not
contain the text of the proposed changes. In their Consolidated Reply, the Lambino
Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the
oral arguments that what they circulated was the draft of the amended petition of
30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a referendum petition cannot question
his signature on the ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition
itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must
be incorporated with, or attached to, the initiative petition signed by the people. In
the present initiative, the Lambino Group's proposed changes were not
incorporated with, or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the
petition or amended petition they filed later with the COMELEC. The Lambino Group
are less than candid with this Court in their belated claim that they printed and
circulated, together with the signature sheets, the petition or amended petition.
Nevertheless, even assuming the Lambino Group circulated the amended petition
during the signature-gathering period, the Lambino Group admitted circulating only
very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print
additional copies of the draft petition but he could not state with certainty how
many additional copies the other supporters printed. Atty. Lambino could only
assure this Court of the printing of 100,000 copies because he himself caused the
printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the
Lambino Group expressly admits that "petitioner Lambino initiated the printing and
reproduction of 100,000 copies of the petition for initiative x x x."25 This admission
binds the Lambino Group and establishes beyond any doubt that the Lambino
Group failed to show the full text of the proposed changes to the great majority of
the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with
certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have circulated with the
petition. Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the attached petition,
the maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for
all or a great majority of the 6.3 million signatories to have seen the petition before
they signed the signature sheets. The inescapable conclusion is that the Lambino
Group failed to show to the 6.3 million signatories the full text of the proposed
changes. If ever, not more than one million signatories saw the petition before they
signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment
with an indication in the signature sheet of such attachment. Petitioner Atty.
Lambino admitted this during the oral arguments, and this admission binds the
Lambino Group. This fact is also obvious from a mere reading of the signature sheet.
This omission is fatal. The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the
people through initiative upon a petition." The signature sheet is not the "petition"
envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets
did not see the full text of the proposed changes before signing. They could not
have known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who
are almost all the present members of Congress, decide to call for new
parliamentary elections. Thus, the members of the interim Parliament will determine
the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea
that they were proposing these amendments. These three proposed changes are
highly controversial. The people could not have inferred or divined these proposed
changes merely from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group
assured the people during the signature-gathering that the elections for the regular
Parliament would be held during the 2007 local elections if the proposed changes
were ratified before the 2007 local elections. However, the text of the proposed
changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of all
local government officials." This would have insured that the elections for the regular
Parliament would be held in the next local elections following the ratification of the
proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously with
any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own
term of office. This allows incumbent members of the House of Representatives to
hold office beyond their current three-year term of office, and possibly even
beyond the five-year term of office of regular members of the Parliament. Certainly,
this is contrary to the representations of Atty. Lambino and his group to the 6.3
million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million signatories had to rely on
the verbal representations of Atty. Lambino and his group because the signature
sheets did not contain the full text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led to believe that the proposed
changes would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to
make further amendments or revisions to the Constitution. The proposed Section
4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage"
and the Court and the people should simply ignore it. Far from being a surplusage,
this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma
since they can answer only either yes or no to the entire proposition, forcing them to
sign a petition that effectively contains two propositions, one of which they may find
unacceptable.
likelihood of an initiative's passage, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties clearly distinguish the initiative
from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
Under American jurisprudence, the effect of logrolling is to nullify the entire
constituent assembly. The people who signed the signature sheets could not have
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29
known that their signatures would be used to propose an amendment mandating
the Supreme Court of Florida declared:
the interim Parliament to propose further amendments or revisions to the
Constitution.

Combining multiple propositions into one proposal constitutes "logrolling," which, if

our judicial responsibility is to mean anything, we cannot permit. The very broadness
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
of the proposed amendment amounts to logrolling because the electorate cannot
interim Parliament to amend or revise again the Constitution within 45 days from
know what it is voting on - the amendment's proponents' simplistic explanation
ratification of the proposed changes, or before the May 2007 elections. In the
reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair
absence of the proposed Section 4(4), the interim Parliament has the discretion
notice of the proposed amendment being voted on. x x x x The ballot language in
whether to amend or revise again the Constitution. With the proposed Section 4(4),
the instant case fails to do that. The very broadness of the proposal makes it
the initiative proponents want the interim Parliament mandated to immediately
impossible to state what it will affect and effect and violates the requirement that
amend or revise again the Constitution.
proposed amendments embrace only one subject. (Emphasis supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30
the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in
logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that
the single-subject rule was enacted to prevent are exacerbated. There is a greater
danger of logrolling, or the deliberate intermingling of issues to increase the
However, the signature sheets do not explain the reason for this rush in amending or
revising again so soon the Constitution. The signature sheets do not also explain
what specific amendments or revisions the initiative proponents want the interim
Parliament to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the
proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended
petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions
states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will all
end on 30 June 2007, three years earlier than that of half of the present Senators.
Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will
come only from the present members of the House of Representatives to the
exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3
million people who signed the signature sheets could not have known that their
signatures would be used to discriminate against the Senators. They could not have
known that their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and
can operate as a gigantic fraud on the people. That is why the Constitution requires
that an initiative must be "directly proposed by the people x x x in a petition" -
meaning that the people must sign on a petition that contains the full text of the
proposed amendments. On so vital an issue as amending the nation's fundamental
law, the writing of the text of the proposed amendments cannot be hidden from
the people under a general or special power of attorney to unnamed, faceless,
and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the members
of this Court do not personally know the people who sign the petition. However, this
trust emanates from a fundamental assumption: the full text of the proposed
amendment is first shown to the people before they sign the petition, not after they
have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of
the Constitution and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the Constitution. Article
XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
 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
(1) The Congress, upon a vote of three-fourths of all its Members, or percent of the registered voters.

(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution.
The first mode is through Congress upon three-fourths vote of all its Members. The
second mode is through a constitutional convention. The third mode is through a
people's initiative.
This completes the blanks appearing in the original Committee Report No. 7. This
proposal was suggested on the theory that this matter of initiative, which came
about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1.
The committee members felt that this system of initiative should be limited to
amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. x x x x
xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
separate section in the Article on Amendment. Would the sponsor be amenable to
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII,
accepting an amendment in terms of realigning Section 2 as another
referring to the third mode, applies only to "[A]mendments to this Constitution." This
subparagraph (c) of Section 1, instead of setting it up as another separate section
distinction was intentional as shown by the following deliberations of the
as if it were a self-executing provision?
Constitutional Commission:

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this
MR. SUAREZ: Thank you, Madam President.
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.
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
MS. AQUINO: In other words, the Committee was attempting to distinguish the
governing the matter of initiative. This is now covered by Section 2 of the complete
coverage of modes (a) and (b) in Section 1 to include the process of revision;
committee report. With the permission of the Members, may I quote Section 2:
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment
on line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between "amendment" and "revision" of the Constitution.
The framers intended, and wrote, that only Congress or a constitutional convention
may propose revisions to the Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the Constitution. Where the
intent and language of the Constitution clearly withhold from the people the power
to propose revisions to the Constitution, the people cannot propose revisions even
as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and
amendments to the Constitution' and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution may be
accomplished only through ratification by the people of a revised constitution
proposed by a convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention, and the writ sought by petitioner
should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may
be amended or revised, it can be altered by those who favor amendments,
revision, or other change only through the use of one of the specified means. The
constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question
that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the
revision of the constitution drafted by the 'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote
of both houses required by Article XVII, Section 2, and hence failed of adoption, x x
x.
While differing from that document in material respects, the measure sponsored by
the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be
submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x
xxx
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only
propose amendments to the Constitution since the Constitution itself limits initiatives
to amendments. There can be no deviation from the constitutionally prescribed
modes of revising the Constitution. A popular clamor, even one backed by 6.3
million signatures, cannot justify a deviation from the specific modes prescribed in
the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in
the manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to
adopt a constitution and to change their own work at will, they must, in doing so,
act in an orderly manner and according to the settled principles of constitutional
law. And where the people, in adopting a constitution, have prescribed the
method by which the people may alter or amend it, an attempt to change the
fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x
x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution,
cannot shirk from its solemn oath and duty to insure compliance with the clear
command of the Constitution ― that a people's initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision,
then the present petition should be dismissed for being outside the scope of Section
2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described
the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding
nature, and the provisions contained therein for its revision indicate the will of the
people that the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature. On the
other hand, the significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an improvement, or
better carry out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system of checks-and-
balances. There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the constitution.
On the other hand, amendment broadly refers to a change that adds, reduces, or
deletes without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the
proposed change is "so extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or alteration of numerous
existing provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in
the constitution. The main inquiry is whether the change will "accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a proper
subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes
changes that "jeopardize the traditional form of government and the system of
check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Group's
proposed changes overhaul two articles - Article VI on the Legislature and Article VII
on the Executive - affecting a total of 105 provisions in the entire Constitution.40
Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when
the three great co-equal branches of government in the present Constitution are
reduced into two. This alters the separation of powers in the Constitution. A shift from
the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a
revision of the Constitution. Merging the legislative and executive branches is a
radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power
alters the separation of powers and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress alters the system of
checks-and-balances within the legislature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a
revision, not a mere amendment. On the face alone of the Lambino Group's
proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable
provisions. The guiding original intention of an amendment is to improve specific
parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch from the
presidential system to a parliamentary system would be a revision because of its
over-all impact on the entire constitutional structure. So would a switch from a
bicameral system to a unicameral system be because of its effect on other
important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida
State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the]
proposed amendment would x x x affect several other provisions of [the]
Constitution." The Supreme Court of Florida, striking down the initiative as outside the
scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions of the
Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of
the states of the nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only radically change the
whole pattern of government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on
government.
xxxx
We conclude with the observation that if such proposed amendment were
adopted by the people at the General Election and if the Legislature at its next
session should fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of appropriate
amendments the people should refuse to adopt them, simple chaos would prevail
in the government of this State. The same result would obtain from an amendment,
for instance, of Section 1 of Article V, to provide for only a Supreme Court and
Circuit Courts-and there could be other examples too numerous to detail. These
examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and
many sessions of the Legislature in bringing about the Constitution of 1968 was to
eliminate inconsistencies and conflicts and to give the State a workable,
accordant, homogenous and up-to-date document. All of this could disappear
very quickly if we were to hold that it could be amended in the manner proposed in
the initiative petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo
J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks
far more radical changes in the structure of government than the initiative in
Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group posits that
when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative
body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are
made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly
provide for both "amendment" and "revision" when it speaks of legislators and
constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or procedure of coming up
with the corrections, for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention
had drafted the same proposed changes that the Lambino Group wrote in the
present initiative, the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in the present initiative
constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the Constitution. The XVII, section 2, and cannot appear on the ballot without the prior approval of the
Lambino Group trivializes the serious matter of changing the fundamental law of the legislature.
land.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit
The express intent of the framers and the plain language of the Constitution revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court
contradict the Lambino Group's theory. Where the intent of the framers and the concluded that a revision of the constitution may not be accomplished by initiative,
language of the Constitution are clear and plainly stated, courts do not deviate because of the provisions of Article XVII, section 2. After reviewing Article XVII,
from such categorical intent and language.45 Any theory espousing a construction section1, relating to proposed amendments, the court said:
contrary to such intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the
and inviting inconsistencies in the Constitution, only exposes the flimsiness of the
initiative as a means of amending the Oregon Constitution, but it contains no similar
Lambino Group's position. Any theory advocating that a proposed change
sanction for its use as a means of revising the constitution." x x x x
involving a radical structural change in government does not constitute a revision
justly deserves rejection.

It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only
section of the constitution which provides the means for constitutional revision and it
The Lambino Group simply recycles a theory that initiative proponents in American
excludes the idea that an individual, through the initiative, may place such a
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46
measure before the electorate." x x x x
the Supreme Court of Oregon rejected this theory, thus:

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not
Mabon argues that Article XVII, section 2, does not apply to changes to the
apply to constitutional revisions proposed by initiative. (Emphasis supplied)
constitution proposed by initiative. His theory is that Article XVII, section 2 merely
provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Similarly, this Court must reject the Lambino Group's theory which negates the
express intent of the framers and the plain language of the Constitution.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to
the constitution that cannot be enacted through the initiative process. They assert
that the distinction between amendment and revision is determined by reviewing We can visualize amendments and revisions as a spectrum, at one end green for
the scope and subject matter of the proposed enactment, and that revisions are amendments and at the other end red for revisions. Towards the middle of the
not limited to "a formal overhauling of the constitution." They argue that this ballot spectrum, colors fuse and difficulties arise in determining whether there is an
measure proposes far reaching changes outside the lines of the original instrument, amendment or revision. The present initiative is indisputably located at the far end
including profound impacts on existing fundamental rights and radical restructuring of the red spectrum where revision begins. The present initiative seeks a radical
of the government's relationship with a defined group of citizens. Plaintiffs assert overhaul of the existing separation of powers among the three co-equal
that, because the proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it violated Article
departments of government, requiring far-reaching amendments in several sections conventions to undertake revisions. On the other hand, constitutions allow people's
and articles of the Constitution. initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.

Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
considered an amendment and not a revision. For example, a change reducing Provisions states:
the voting age from 18 years to 15 years47 is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass media companies from 100
percent to 60 percent is an amendment and not a revision.48 Also, a change
Section 2. Upon the expiration of the term of the incumbent President and Vice
requiring a college degree as an additional qualification for election to the
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987
Presidency is an amendment and not a revision.49
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
The changes in these examples do not entail any modification of sections or articles Parliamentary system of government, in which case, they shall be amended to
of the Constitution other than the specific provision being amended. These changes conform with a unicameral parliamentary form of government; x x x x (Emphasis
do not also affect the structure of government or the system of checks-and- supplied)
balances among or within the three branches. These three examples are located at
the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Group's draft of Section 2 of the
However, there can be no fixed rule on whether a change is an amendment or a Transitory Provisions turns on its head this rule of construction by stating that in case
revision. A change in a single word of one sentence of the Constitution may be a of such irreconcilable inconsistency, the earlier provision "shall be amended to
revision and not an amendment. For example, the substitution of the word conform with a unicameral parliamentary form of government." The effect is to
"republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the freeze the two irreconcilable provisions until the earlier one "shall be amended,"
Constitution radically overhauls the entire structure of government and the which requires a future separate constitutional amendment.
fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions,
as well as how it affects the structure of government, the carefully crafted system of
Realizing the absurdity of the need for such an amendment, petitioner Atty.
checks-and-balances, and the underlying ideological basis of the existing
Lambino readily conceded during the oral arguments that the requirement of a
Constitution.
future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in
case of irreconcilable inconsistency. However, it is not as simple as that.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not only several provisions, but
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
also the altered principles with those that remain unaltered. Thus, constitutions
Transitory Provisions is not between a provision in Article VI of the 1987 Constitution
normally authorize deliberative bodies like constituent assemblies or constitutional
and a provision in the proposed changes. The inconsistency is between a provision Constitution. An affirmation or reversal of Santiago will not change the outcome of
in Article VI of the 1987 Constitution and the "Parliamentary system of government," the present petition. Thus, this Court must decline to revisit Santiago which
and the inconsistency shall be resolved in favor of a "unicameral parliamentary form effectively ruled that RA 6735 does not comply with the requirements of the
of government." Constitution to implement the initiative clause on amendments to the Constitution.

Now, what "unicameral parliamentary form of government" do the Lambino Group's This Court must avoid revisiting a ruling involving the constitutionality of a statute if
proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand the case before the Court can be resolved on some other grounds. Such
models, which are among the few countries with unicameral parliaments? The avoidance is a logical consequence of the well-settled doctrine that courts will not
proposed changes could not possibly refer to the traditional and well-known pass upon the constitutionality of a statute if the case can be resolved on some
parliamentary forms of government ― the British, French, Spanish, German, Italian, other grounds.51
Canadian, Australian, or Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
government?
provision on initiatives to amend the Constitution, this will not change the result here
because the present petition violates Section 2, Article XVII of the Constitution. To be
a valid initiative, the present initiative must first comply with Section 2, Article XVII of
This drives home the point that the people's initiative is not meant for revisions of the the Constitution even before complying with RA 6735.
Constitution but only for amendments. A shift from the present Bicameral-
Presidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution. Revision of the Constitution through a
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that
people's initiative will only result in gross absurdities in the Constitution.
the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b) of
RA 6735 requires that the people must sign the "petition x x x as signatories."
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision
and not an amendment. Thus, the present initiative is void and unconstitutional
because it violates Section 2, Article XVII of the Constitution limiting the scope of a
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended
people's initiative to "[A]mendments to this Constitution."
petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
3. A Revisit of Santiago v. COMELEC is Not Necessary Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with"
the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC
did not even comply with the basic requirement of RA 6735 that the Lambino Group
The present petition warrants dismissal for failure to comply with the basic
claims as valid.
requirements of Section 2, Article XVII of the Constitution on the conduct and scope
of a people's initiative to amend the Constitution. There is no need to revisit this
Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to cover the system of initiative to amend the
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, "No petition embracing more than one (1) subject shall be submitted to the
electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating
the interim Parliament to propose further amendments or revisions to the
Constitution, is a subject matter totally unrelated to the shift in the form of
government. Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if
RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate its
unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could
be attributed to the public respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the Constitution
by cavalierly amending or revising it in blatant violation of the clearly specified
modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the
rule of law in this country.
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total
votes cast53 − approved our Constitution in a national plebiscite held on 11
February 1987. That approval is the unmistakable voice of the people, the full
expression of the people's sovereign will. That approval included the prescribed
modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that
the people, in their sovereign capacity, prescribed when they ratified the
Constitution. The alternative is an extra-constitutional change, which means
subverting the people's sovereign will and discarding the Constitution. This is one act
the Court cannot and should never do. As the ultimate guardian of the Constitution,
this Court is sworn to perform its solemn duty to defend and protect the Constitution,
which embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in
the Constitution itself. Otherwise, the Constitution ― the people's fundamental
covenant that provides enduring stability to our society ― becomes easily
susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that "ULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms." The Lambino Group thus admits that their "people's" initiative
is an "unqualified support to the agenda" of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of "people's voice"
or "sovereign will" in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution.
The Constitution, which embodies the people's sovereign will, is the bible of this
Court. This Court exists to defend and protect the Constitution. To allow this
constitutionally infirm initiative, propelled by deceptively gathered signatures, to
alter basic principles in the Constitution is to allow a desecration of the Constitution.
To allow such alteration and desecration is to lose this Court's raison d'etre.

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

SO ORDERED.
G.R. No. 122156 February 3, 1997 Pertinent provisions of the bidding rules prepared by respondent GSIS state —

MANILA PRINCE HOTEL petitioner, I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —

vs.

GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, 1. The Highest Bidder must comply with the conditions set forth below by October
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
COUNSEL, respondents. purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

BELLOSILLO, J.:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or
other type of contract specified by the Highest Bidder in its strategic plan for the
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
Manila Hotel. . . .
privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos,1 is in oked by petitioner in its bid to
acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the
historic Manila Hotel. Opposing, respondents maintain that the provision is not self- b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with
executing but requires an implementing legislation for its enforcement. Corollarily, GSIS . . . .
they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —

The controversy arose when respondent Government Service Insurance System

(GSIS), pursuant to the privatization program of the Philippine Government under
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
Proclamation No. 50 dated 8 December 1986, decided to sell through public
following conditions are met:
bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The
winning bidder, or the eventual "strategic partner," is to provide management
expertise and/or an international marketing/reservation system, and financial
support to strengthen the profitability and performance of the Manila Hotel.2 In a a. Execution of the necessary contracts with GSIS/MHC not later than October 23,
close bidding held on 18 September 1995 only two (2) bidders participated: 1995 (reset to November 3, 1995); and
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel) are obtained.3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner
and the execution of the necessary contracts, petitioner in a letter to respondent
GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered
by Renong Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs.
Renong Berhad . . .5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded
the tender of the matching bid and that the sale of 51% of the MHC may be
hastened by respondent GSIS and consummated with Renong Berhad, petitioner
came to this Court on prohibition and mandamus. On 18 October 1995 the Court
issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it
was referred to it by the First Division. The case was then set for oral arguments with
former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici
curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been identified with the Filipino nation and
has practically become a historical monument which reflects the vibrancy of
Philippine heritage and culture. It is a proud legacy of an earlier generation of
Filipinos who believed in the nobility and sacredness of independence and its
power and capacity to release the full potential of the Filipino people. To all intents
and purposes, it has become a part of the national patrimony.6 Petitioner also
argues that since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution,
applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot
be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the
1987 Constitution is merely a statement of principle and policy since it is not a self-
executing provision and requires implementing legislation(s) . . . Thus, for the said
provision to Operate, there must be existing laws "to lay down conditions under
which business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does not fall
under the term national patrimony which only refers to lands of the public domain,
waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in
its territorial sea, and exclusive marine zone as cited in the first and second
paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while
petitioner speaks of the guests who have slept in the hotel and the events that have
transpired therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only
51% of the outstanding shares of the corporation, not the hotel building nor the land
upon which the building stands. Certainly, 51% of the equity of the MHC cannot be
considered part of the national patrimony. Moreover, if the disposition of the shares
of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in
terms of price per share, is misplaced. Respondents postulate that the privilege of
submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong Berhad could
still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. 10 It prescribes the permanent
framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. 11 Under
the doctrine of constitutional supremacy, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by
the executive branch or entered into by private persons for private purposes is null
and void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed written in
every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles.
Their provisions command the legislature to enact laws and carry out the purposes
of the framers who merely establish an outline of government providing for the
different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. 12 A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the
legislature for action. 13
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive
codes of laws intended to operate directly upon the people in a manner similar to
that of statutory enactments, and the function of constitutional conventions has
evolved into one more like that of a legislative body. Hence, unless it is expressly
provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation instead of self-executing,
the legislature would have the power to ignore and practically nullify the mandate
of the fundamental law.14 This can be cataclysmic. That is why the prevailing view
is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of
the Constitution should be considered self-executing, as a contrary rule would give
the legislature discretion to determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the lawmaking body, which
could make them entirely meaningless by simply refusing to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission —
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS,"
can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are
not qualified. So, why do we not make it clear? To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom?
As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
"QUALIFIED" because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on the
setting up of other financial structures, et cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting other further laws to enforce
the constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without impairing the self-
executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
17 Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par.,
of Art. XII is implied from the tenor of the first and third paragraphs of the same
section which undoubtedly are not self-executing. 18 The argument is flawed. If the
first and third paragraphs are not self-executing because Congress is still to enact
measures to encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to regulate and
exercise authority over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second paragraph can only
be self-executing as it does not by its language require any legislation in order to
give preference to qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional provision may be
self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions
are merely statements of principles and policies, which are basically not self-
executing and only placed in the Constitution as moral incentives to legislation, not
as judicially enforceable rights — are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-
building 23 the promotion of social justice, 24 and the values of education. 25
Tolentino v. Secretary of Finance 26 refers to the constitutional provisions on social
justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato
29 cites provisions on the promotion of general welfare, 30 the sanctity of family life,
31 the vital role of the youth in nation-building 32 and the promotion of total human
liberation and development. 33 A reading of these provisions indeed clearly shows
that they are not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only principles
upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per se
judicially enforceable When our Constitution mandates that [i]n the grant of rights,
privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall
be preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if
there is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right there is a remedy. Ubi jus
ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission
34 explains —
The patrimony of the Nation that should be conserved and developed refers not
only to out rich natural resources but also to the cultural heritage of out race. It also
refers to our intelligence in arts, sciences and letters. Therefore, we should develop
not only our lands, forests, mines and other natural resources but also the mental
ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not only to
the natural resources of the Philippines, as the Constitution could have very well
used the term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine heritage.
While it was restrictively an American hotel when it first opened in 1912, it
immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930's. It was the site of the
festivities during the inauguration of the Philippine Commonwealth. Dubbed as the
Official Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart
and Memory of a City. 37 During World War II the hotel was converted by the
Japanese Military Administration into a military headquarters. When the American
forces returned to recapture Manila the hotel was selected by the Japanese
together with Intramuros as the two (2) places fro their final stand. Thereafter, in the
1950's and 1960's, the hotel became the center of political activities, playing host to
almost every political convention. In 1970 the hotel reopened after a renovation
and reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat
where an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs
and failures, loves and frustrations of the Filipinos; its existence is impressed with
public interest; its own historicity associated with our struggle for sovereignty,
independence and nationhood. Verily, Manila Hotel has become part of our
national economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual
control and management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice stands. MR. DAVIDE. Is that the intention?
Consequently, we cannot sustain respondents' claim that the Filipino First Policy
provision is not applicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the Hotel building nor the land upon which the
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
building stands. 38
preference should only be 100-percent Filipino.

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may
also includes corporations at least 60% of which is owned by Filipinos. This is very
refer only to individuals and not to juridical personalities or entities.
clear from the proceedings of the 1986 Constitutional Commission

MR. MONSOD. We agree, Madam President. 39

THE PRESIDENT. Commissioner Davide is recognized.

xxx xxx xxx

MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment.
And the amendment would consist in substituting the words "QUALIFIED FILIPINOS"
with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY MR. RODRIGO. Before we vote, may I request that the amendment be read again.
SUCH CITIZENS.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND
xxx xxx xxx CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as
intended by the proponents, will include not only individual Filipinos but also Filipino-
controlled entities or entities fully-controlled by Filipinos. 40
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we
have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do
we not give it preference?
The phrase preference to qualified Filipinos was explained thus —

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens? MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.

MR. MONSOD. At least 60 percent, Madam President.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and
a Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL — THE
STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
"Filipino First" policy. That means that Filipinos should be given preference in the
grant of concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding
the subject provision was still further clarified by Commissioner Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was never
found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the
pampering and preferential treatment to Filipino citizens or organizations that are
incompetent or inefficient, since such an indiscriminate preference would be
counter productive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has
to be made between a "qualified foreigner" end a "qualified Filipino," the latter shall
be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified
by respondent GSIS in accordance with its own guidelines so that the sole inference
here is that petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in another hotel
company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing legislation
is quite disturbing. The attempt to violate a clear constitutional provision — by the
government itself — is only too distressing. To adopt such a line of reasoning is to
renounce the duty to ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G.
Bernas, S.J., on constitutional government is apt —

The executive department has a constitutional duty to implement laws, including
the Constitution, even before Congress acts — provided that there are discoverable
legal standards for executive action. When the executive acts, it must be guided by
its own understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by
a constitutional command. That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State,
not to respondent GSIS which by itself possesses a separate and distinct personality.
This argument again is at best specious. It is undisputed that the sale of 51% of the
MHC could only be carried out with the prior approval of the State acting through
respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G.
Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and
MHC a "state action." In constitutional jurisprudence, the acts of persons distinct
from the government are considered "state action" covered by the Constitution (1)
when the activity it engages in is a "public function;" (2) when the government is so
significantly involved with the private actor as to make the government responsible
for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of "state action."
Without doubt therefore the transaction. although entered into by respondent GSIS,
is in fact a transaction of the State and therefore subject to the constitutional
command. 46
When the Constitution addresses the State it refers not only to the people but also to
the government as elements of the State. After all, government is composed of
three (3) divisions of power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the
State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet
the winning bidder. The bidding rules expressly provide that the highest bidder shall
only be declared the winning bidder after it has negotiated and executed the
necessary contracts, and secured the requisite approvals. Since the "Filipino First
Policy provision of the Constitution bestows preference on qualified Filipinos the
mere tending of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest bidder.
For in choosing the awardee respondents are mandated to abide by the dictates
of the 1987 Constitution the provisions of which are presumed to be known to all the
bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts
must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its submission
of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger
reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply Since petitioner has already matched the bid price tendered by Renong Berhad
disregarded. To ignore it would be to sanction a perilous skirting of the basic law. pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
This Court does not discount the apprehension that this policy may discourage
respondent GSIS to execute the corresponding documents with petitioner as
foreign investors. But the Constitution and laws of the Philippines are understood to
provided in the bidding rules after the latter has matched the bid of the Malaysian
be always open to public scrutiny. These are given factors which investors must
firm clearly constitutes grave abuse of discretion.
consider when venturing into business in a foreign jurisdiction. Any person therefore
desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as the ultimate guardian
of the Constitution will never shun, under any reasonable circumstance, the duty of
The argument of respondents that petitioner is now estopped from questioning the
upholding the majesty of the Constitution which it is tasked to defend. It is worth
sale to Renong Berhad since petitioner was well aware from the beginning that a
emphasizing that it is not the intention of this Court to impede and diminish, much
foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and
less undermine, the influx of foreign investments. Far from it, the Court encourages
foreigners alike were invited to the bidding. But foreigners may be awarded the sale
and welcomes more business opportunities but avowedly sanctions the preference
only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid
for Filipinos whenever such preference is ordained by the Constitution. The position
tendered by the foreign entity. In the case before us, while petitioner was already
of the Court on this matter could have not been more appropriately articulated by
preferred at the inception of the bidding because of the constitutional mandate,
Chief Justice Narvasa —
petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid did the latter have a As scrupulously as it has tried to observe that it is not its function to substitute its
cause of action. judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic progress and
development . . . in connection with a temporary injunction issued by the Court's
Besides, there is no time frame for invoking the constitutional safeguard unless
First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner,
perhaps the award has been finally made. To insist on selling the Manila Hotel to
certain statements were published in a major daily to the effect that injunction
foreigners when there is a Filipino group willing to match the bid of the foreign group
"again demonstrates that the Philippine legal system can be a major obstacle to
is to insist that government be treated as any other ordinary market player, and
doing business here.
bound by its mistakes or gross errors of judgment, regardless of the consequences to
the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we
would rather remedy the indiscretion while there is still an opportunity to do so than
let the government develop the habit of forgetting that the Constitution lays down Let it be stated for the record once again that while it is no business of the Court to
the basic conditions and parameters for its actions. intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48 Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nation's soul for some pieces
of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it
stands for — is sold to a non-Filipino? How much of national pride will vanish if the
Privatization of a business asset for purposes of enhancing its business viability and
nation's cultural heritage is entrusted to a foreign entity? On the other hand, how
preventing further losses, regardless of the character of the asset, should not take
much dignity will be preserved and realized if the national patrimony is safekept in
precedence over non-material values. A commercial, nay even a budgetary,
the hands of a qualified, zealous and well-meaning Filipino? This is the plain and
objective should not be pursued at the expense of national pride and dignity. For
simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
the Constitution enshrines higher and nobler non-material values. Indeed, the Court
this Court, heeding the clarion call of the Constitution and accepting the duty of
will always defer to the Constitution in the proper governance of a free society;
being the elderly watchman of the nation, will continue to respect and protect the
after all, there is nothing so sacrosanct in any economic policy as to draw itself
sanctity of the Constitution.
beyond judicial review when the Constitution is involved. 49

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA

Nationalism is inherent, in the very concept of the Philippines being a democratic
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
and republican state, with sovereignty residing in the Filipino people and from
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
whom all government authority emanates. In nationalism, the happiness and
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
welfare of the people must be the goal. The nation-state can have no higher
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purpose. Any interpretation of any constitutional provision must adhere to such
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00
basic concept. Protection of foreign investments, while laudible, is merely a policy. It
per share and thereafter to execute the necessary clearances and to do such other
cannot override the demands of nationalism. 50
acts and deeds as may be necessary for purpose.

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to
SO ORDERED.
be sold to the highest bidder solely for the sake of privatization. We are not talking
about an ordinary piece of property in a commercial district. We are talking about
a historic relic that has hosted many of the most important events in the short history
of the Philippines as a nation. We are talking about a hotel where heads of states
would prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it has
become truly a reflection of the Filipino soul — a place with a history of grandeur; a
most historical setting that has played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia
— to a total stranger. For, indeed, the conveyance of this epic exponent of the
G.R. No. 178160 February 26, 2009
BASES CONVERSION AND DEVELOPMENT AUTHORITY, Petitioner,
vs.
COMMISSION ON AUDIT, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 with prayer for the issuance of a temporary restraining
order and a writ of preliminary injunction. The petition seeks to nullify Decision No.
2007-0202 dated 12 April 2007 of the Commission on Audit (COA).
The Facts
On 13 March 1992, Congress approved Republic Act (RA) No. 72273 creating the
Bases Conversion and Development Authority (BCDA). Section 9 of RA No. 7227
states that the BCDA Board of Directors (Board) shall exercise the powers and
functions of the BCDA. Under Section 10, the functions of the Board include the
determination of the organizational structure and the adoption of a compensation
and benefit scheme at least equivalent to that of the Bangko Sentral ng Pilipinas
(BSP). Accordingly, the Board determined the organizational structure of the BCDA
and adopted a compensation and benefit scheme for its officials and employees.
On 20 December 1996, the Board adopted a new compensation and benefit
scheme which included a ₱10,000 year-end benefit granted to each contractual
employee, regular permanent employee, and Board member. In a memorandum4
dated 25 August 1997, Board Chairman Victoriano A. Basco (Chairman Basco)
recommended to President Fidel V. Ramos (President Ramos) the approval of the
new compensation and benefit scheme. In a memorandum5 dated 9 October
1997, President Ramos approved the new compensation and benefit scheme.
In 1999, the BSP gave a ₱30,000 year-end benefit to its officials and employees. In
2000, the BSP increased the year-end benefit from ₱30,000 to ₱35,000. Pursuant to
Section 10 of RA No. 7227 which states that the compensation and benefit scheme
of the BCDA shall be at least equivalent to that of the BSP, the Board increased the
year-end benefit of BCDA officials and employees from ₱10,000 to ₱30,000. Thus in
2000 and 2001, BCDA officials and employees received a ₱30,000 year-end benefit,
and, on 1 October 2002, the Board passed Resolution No. 2002-10-1936 approving
the release of a ₱30,000 year-end benefit for 2002.
Aside from the contractual employees, regular permanent employees, and Board
members, the full-time consultants of the BCDA also received the year-end benefit.
On 20 February 2003, State Auditor IV Corazon V. Españo of the COA issued Audit
Observation Memorandum (AOM) No. 2003-0047 stating that the grant of year-end
benefit to Board members was contrary to Department of Budget and
Management (DBM) Circular Letter No. 2002-2 dated 2 January 2002. In Notice of
Disallowance (ND) No. 03-001-BCDA-(02)8 dated 8 January 2004, Director IV Rogelio
D. Tablang (Director Tablang), COA, Legal and Adjudication Office-Corporate,
disallowed the grant of year-end benefit to the Board members and full-time
consultants. In Decision No. 2004-0139 dated 13 January 2004, Director Tablang
"concurred" with AOM No. 2003-004 and ND No. 03-001-BCDA-(02).
In a letter10 dated 20 February 2004, BCDA President and Chief Executive Officer
Rufo Colayco requested the reconsideration of Decision No. 2004-013. In a
Resolution11 dated 22 June 2004, Director Tablang denied the request. The BCDA
filed a notice of appeal12 dated 8 September 2004 and an appeal
memorandum13 dated 23 December 2004 with the COA.

The COA’s Ruling
In Decision No. 2007-020,14 the COA affirmed the disallowance of the year-end
benefit granted to the Board members and full-time consultants and held that the
presumption of good faith did not apply to them. The COA stated that:
The granting of YEB x x x is not without x x x limitation. DBM Circular Letter No. 2002-02
dated January 2, 2002 stating, viz:
"2.0 To clarify and address issues/requests concerning the same, the following
compensation policies are hereby reiterated:
2.1 PERA, ADCOM, YEB and retirement benefits, are personnel benefits granted in
addition to salaries. As fringe benefits, these shall be paid only when the basic salary
is also paid.
2.2 Members of the Board of Directors of agencies are not salaried officials of the
government. As non-salaried officials they are not entitled to PERA, ADCOM, YEB
and retirement benefits unless expressly provided by law.
2.3 Department Secretaries, Undersecretaries and Assistant Secretaries who serve as
Ex-officio Members of the Board of Directors are not entitled to any remuneration in
line with the Supreme Court ruling that their services in the Board are already paid
for and covered by the remuneration attached to their office." (underscoring ours)
Clearly, as stated above, the members and ex-officio members of the Board of
Directors are not entitled to YEB, they being not salaried officials of the government.
The same goes with full time consultants wherein no employer-employee
relationships exist between them and the BCDA. Thus, the whole amount paid to
them totaling ₱342,000 is properly disallowed in audit.
Moreover, the presumption of good faith may not apply to the members and ex-
officio members of the Board of Directors because despite the earlier clarification
on the matter by the DBM thru the issuance on January 2, 2002 of DBM Circular
Letter No. 2002-02, still, the BCDA Board of Directors enacted Resolution No. 2002-10-
93 on October 1, 2002 granting YEB to the BCDA personnel including themselves. Full
time consultants, being non-salaried personnel, are also not entitled to such
presumption since they knew from the very beginning that they are only entitled to
the amount stipulated in their contracts as compensation for their services. Hence,
they should be made to refund the disallowed YEB.15 (Boldfacing in the original)
Hence, this petition.
The Court’s Ruling
The Board members and full-time consultants of the BCDA are not entitled to the
year-end benefit.
First, the BCDA claims that the Board can grant the year-end benefit to its members
and full-time consultants because, under Section 10 of RA No. 7227, the functions of
the Board include the adoption of a compensation and benefit scheme.
The Court is not impressed. The Board’s power to adopt a compensation and
benefit scheme is not unlimited. Section 9 of RA No. 7227 states that Board members
are entitled to a per diem:
Members of the Board shall receive a per diem of not more than Five thousand
pesos (₱5,000) for every board meeting: Provided, however, That the per diem
collected per month does not exceed the equivalent of four (4) meetings: Provided,
further, That the amount of per diem for every board meeting may be increased by
the President but such amount shall not be increased within two (2) years after its
last increase. (Emphasis supplied)1awphi1
SECTION 2. Contract Price. For and in consideration of the services to be performed
by the CONSULTANT (16 hours/week), BCDA shall pay her the amount of TWENTY
THOUSAND PESOS and 00/100 (₱20,000.00), Philippine currency, per month.

Section 9 specifies that Board members shall receive a per diem for every board
meeting; limits the amount of per diem to not more than ₱5,000; and limits the total xxxx
amount of per diem for one month to not more than four meetings. In Magno v.
Commission on Audit,16 Cabili v. Civil Service Commission,17 De Jesus v. Civil Service
Commission,18 Molen, Jr. v. Commission on Audit,19 and Baybay Water District v.
SECTION 4. Employee-Employer Relationship. It is understood that no employee-
Commission on Audit,20 the Court held that the specification of compensation and
employer relationship shall exist between BCDA and the CONSULTANT.
limitation of the amount of compensation in a statute indicate that Board members
are entitled only to the per diem authorized by law and no other. In Baybay Water
District, the Court held that:
SECTION 5. Period of Effectivity. This CONTRACT shall have an effectivity period of
one (1) year, from January 01, 2002 to December 31, 2002, unless sooner terminated
by BCDA in accordance with Section 6 below.
By specifying the compensation which a director is entitled to receive and by
limiting the amount he/she is allowed to receive in a month, x x x the law quite
clearly indicates that directors x x x are authorized to receive only the per diem
authorized by law and no other compensation or allowance in whatever form.21 SECTION 6. Termination of Services. BCDA, in its sole discretion may opt to terminate
this CONTRACT when it sees that there is no more need for the services contracted
for. (Boldfacing in the original)

Also, DBM Circular Letter No. 2002-2 states that, "Members of the Board of Directors
of agencies are not salaried officials of the government. As non-salaried officials
they are not entitled to PERA, ADCOM, YEB and retirement benefits unless expressly
provided by law." RA No. 7227 does not state that the Board members are entitled
to a year-end benefit.
Since full-time consultants are not salaried employees of BCDA, they are not entitled
to the year-end benefit which is a "personnel benefit granted in addition to salaries"
and which is "paid only when the basic salary is also paid."

With regard to the full-time consultants, DBM Circular Letter No. 2002-2 states that, Second, the BCDA claims that the Board members and full-time consultants should
"YEB and retirement benefits, are personnel benefits granted in addition to salaries. be granted the year-end benefit because the granting of year-end benefit is
As fringe benefits, these shall be paid only when the basic salary is also paid." The consistent with Sections 5 and 18, Article II of the Constitution. Sections 5 and 18
full-time consultants are not part of the BCDA personnel and are not paid the basic state:
salary. The full-time consultants’ consultancy contracts expressly state that there is
no employer-employee relationship between the BCDA and the consultants, and
that the BCDA shall pay the consultants a contract price. For example, the
consultancy contract22 of a certain Dr. Faith M. Reyes states:
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all people of the blessings of democracy.
Section 18. The State affirms labor as a primary social economic force. It shall
protect the rights of workers and promote their welfare.
The Court is not impressed. Article II of the Constitution is entitled Declaration of
Principles and State Policies. By its very title, Article II is a statement of general
ideological principles and policies. It is not a source of enforceable rights.23 In
Tondo Medical Center Employees Association v. Court of Appeals,24 the Court held
that Sections 5 and 18, Article II of the Constitution are not self-executing provisions.
In that case, the Court held that "Some of the constitutional provisions invoked in the
present case were taken from Article II of the Constitution — specifically, Sections 5 x
x x and 18 — the provisions of which the Court categorically ruled to be non self-
executing."
Third, the BCDA claims that the denial of year-end benefit to the Board members
and full-time consultants violates Section 1, Article III of the Constitution.25 More
specifically, the BCDA claims that there is no substantial distinction between regular
officials and employees on one hand, and Board members and full-time consultants
on the other. The BCDA states that "there is here only a distinction, but no
difference" because both "have undeniably one common goal as humans, that is x
x x ‘to keep body and soul together’" or, "[d]ifferently put, both have mouths to feed
and stomachs to fill."
The Court is not impressed. Every presumption should be indulged in favor of the
constitutionality of RA No. 7227 and the burden of proof is on the BCDA to show that
there is a clear and unequivocal breach of the Constitution.26 In Abakada Guro
Party List v. Purisima,27 the Court held that:
A law enacted by Congress enjoys the strong presumption of constitutionality. To
justify its nullification, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and unequivocal one. To invalidate [a law] based on x
x x baseless supposition is an affront to the wisdom not only of the legislature that
passed it but also of the executive which approved it.
The BCDA failed to show that RA No. 7227 unreasonably singled out Board members
and full-time consultants in the grant of the year-end benefit. It did not show any
clear and unequivocal breach of the Constitution. The claim that there is no
difference between regular officials and employees, and Board members and full-
time consultants because both groups "have mouths to feed and stomachs to fill" is
fatuous. Surely, persons are not automatically similarly situated — thus, automatically
deserving of equal protection of the laws — just because they both "have mouths to
feed and stomachs to fill." Otherwise, the existence of a substantial distinction would
become forever highly improbable.
Fourth, the BCDA claims that the Board can grant the year-end benefit to its
members and the full-time consultants because RA No. 7227 does not expressly
prohibit it from doing so.
The Court is not impressed. A careful reading of Section 9 of RA No. 7227 reveals
that the Board is prohibited from granting its members other benefits. Section 9
states:
Members of the Board shall receive a per diem of not more than Five thousand
pesos (₱5,000) for every board meeting: Provided, however, That the per diem
collected per month does not exceed the equivalent of four (4) meetings: Provided,
further, That the amount of per diem for every board meeting may be increased by
the President but such amount shall not be increased within two (2) years after its
last increase. (Emphasis supplied)
Section 9 specifies that Board members shall receive a per diem for every board
meeting; limits the amount of per diem to not more than ₱5,000; limits the total
amount of per diem for one month to not more than four meetings; and does not
state that Board members may receive other benefits. In Magno,28 Cabili,29 De
Jesus,30 Molen, Jr.,31 and Baybay Water District,32 the Court held that the
specification of compensation and limitation of the amount of compensation in a
statute indicate that Board members are entitled only to the per diem authorized by
law and no other.
The specification that Board members shall receive a per diem of not more than
₱5,000 for every meeting and the omission of a provision allowing Board members to
receive other benefits lead the Court to the inference that Congress intended to
limit the compensation of Board members to the per diem authorized by law and
no other. Expressio unius est exclusio alterius. Had Congress intended to allow the
Board members to receive other benefits, it would have expressly stated so.33 For
example, Congress’ intention to allow Board members to receive other benefits
besides the per diem authorized by law is expressly stated in Section 1 of RA No.
9286:34
SECTION 1. Section 13 of Presidential Decree No. 198, as amended, is hereby
amended to read as follows:
"SEC. 13. Compensation. — Each director shall receive per diem to be determined
by the Board, for each meeting of the Board actually attended by him, but no
director shall receive per diems in any given month in excess of the equivalent of
the total per diem of four meetings in any given month.
Any per diem in excess of One hundred fifty pesos (₱150.00) shall be subject to the
approval of the Administration. In addition thereto, each director shall receive
allowances and benefits as the Board may prescribe subject to the approval of the
Administration." (Emphasis supplied)
The Court cannot, in the guise of interpretation, enlarge the scope of a statute or
insert into a statute what Congress omitted, whether intentionally or
unintentionally.35
When a statute is susceptible of two interpretations, the Court must "adopt the one
in consonance with the presumed intention of the legislature to give its enactments
the most reasonable and beneficial construction, the one that will render them
operative and effective."36 The Court always presumes that Congress intended to
enact sensible statutes.37 If the Court were to rule that the Board could grant the
year-end benefit to its members, Section 9 of RA No. 7227 would become
inoperative and ineffective — the specification that Board members shall receive a
per diem of not more than ₱5,000 for every meeting; the specification that the per
diem received per month shall not exceed the equivalent of four meetings; the
vesting of the power to increase the amount of per diem in the President; and the
limitation that the amount of per diem shall not be increased within two years from
its last increase would all become useless because the Board could always grant its
members other benefits.
With regard to the full-time consultants, DBM Circular Letter No. 2002-2 states that,
"YEB and retirement benefits, are personnel benefits granted in addition to salaries.
As fringe benefits, these shall be paid only when the basic salary is also paid." The
full-time consultants are not part of the BCDA personnel and are not paid the basic
salary. The full-time consultants’ consultancy contracts expressly state that there is
no employer-employee relationship between BCDA and the consultants and that
BCDA shall pay the consultants a contract price. Since full-time consultants are not
salaried employees of the BCDA, they are not entitled to the year-end benefit
which is a "personnel benefit granted in addition to salaries" and which is "paid only
when the basic salary is also paid."
Fifth, the BCDA claims that the Board members and full-time consultants are entitled
to the year-end benefit because (1) President Ramos approved the granting of the
benefit to the Board members, and (2) they have been receiving it since 1997.
The Court is not impressed. The State is not estopped from correcting a public
officer’s erroneous application of a statute, and an unlawful practice, no matter
how long, cannot give rise to any vested right.38
The Court, however, notes that the Board members and full-time consultants
received the year-end benefit in good faith. The Board members relied on (1)
Section 10 of RA No. 7227 which authorized the Board to adopt a compensation
and benefit scheme; (2) the fact that RA No. 7227 does not expressly prohibit Board
members from receiving benefits other than the per diem authorized by law; and
(3) President Ramos’ approval of the new compensation and benefit scheme which
included the granting of a year-end benefit to each contractual employee, regular
permanent employee, and Board member. The full-time consultants relied on
Section 10 of RA No. 7227 which authorized the Board to adopt a compensation
and benefit scheme. There is no proof that the Board members and full-time
consultants knew that their receipt of the year-end benefit was unlawful. In keeping
with Magno,39 De Jesus,40 Molen, Jr.,41 and Kapisanan ng mga Manggagawa sa
Government Service Insurance System (KMG) v. Commission on Audit,42 the Board
members and full-time consultants are not required to refund the year-end benefits
they have already received.

WHEREFORE, the petition is PARTIALLY GRANTED. Commission on Audit Decision No.

2007-020 dated 12 April 2007 is AFFIRMED with the MODIFICATION that the Board
members and full-time consultants of the Bases Conversion and Development
Authority are not required to refund the year-end benefits they have already
received.

SO ORDERED.
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors,
and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by
their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented
by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her
parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO
JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE
CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE
GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all
surnamed KING, minors, represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors,
represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and
REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO
and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their
parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH
JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and
VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of
action to "prevent the misappropriation or impairment" of Philippine rainforests and
"arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch
66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal petitioners, are all minors
duly represented and joined by their respective parents. Impleaded as an
additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging
in concerted action geared for the protection of our environment and natural
resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources (DENR). His
substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was
instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of
the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin tropical
forests." The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is impracticable
to bring them all before the Court." The minors further asseverate that they
"represent their generation as well as generations yet unborn."4 Consequently, it is
prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.
the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and operated for
the purpose of supplying water for domestic uses, irrigation and the generation of
electric power, and (k) the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and catastrophic climatic changes such
as the phenomenon of global warming, otherwise known as the "greenhouse
effect."

and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."5
Plaintiffs further assert that the adverse and detrimental consequences of continued
and deforestation are so capable of unquestionable demonstration that the same
may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.

The complaint starts off with the general averments that the Philippine archipelago
of 7,100 islands has a land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which varied, rare and unique As their cause of action, they specifically allege that:
species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since
CAUSE OF ACTION
time immemorial; scientific evidence reveals that in order to maintain a balanced
and healthful ecology, the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and 7. Plaintiffs replead by reference the foregoing allegations.
disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying
up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
and streams, (b) salinization of the water table as a result of the intrusion therein of
of rainforests constituting roughly 53% of the country's land mass.
salt water, incontrovertible examples of which may be found in the island of Cebu
and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential
loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
the size of the entire island of Catanduanes, (d) the endangering and extinction of hectares of said rainforests or four per cent (4.0%) of the country's land area.
the country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
resource productivity, (g) recurrent spells of drought as is presently experienced by rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and uneconomical secondary growth
forests.
11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached
as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if
not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of fact,
the environmental damages enumerated in paragraph 6 hereof are already being
felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may never see, use, benefit
from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office.
On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of the wonderful flora,
fauna and indigenous cultures which the Philippines had been abundantly blessed
with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to
the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life
of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's
is contradictory to the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article II,
id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain
that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss.7 In the said order, not only was the defendant's claim — that the
complaint states no cause of action against him and that it raises a political
question — sustained, the respondent Judge further ruled that the granting of the
relief prayed for would result in the impairment of contracts which is prohibited by
the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal order
on the ground that the respondent Judge gravely abused his discretion in dismissing
the action. Again, the parents of the plaintiffs-minors not only represent their
children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations),
Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a balanced
and healthful ecology, the concept of generational genocide in Criminal Law and
the concept of man's inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse
of discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs may be considered
protected by the said clause, it is well settled that they may still be revoked by the
State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any
relief is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive
or legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same
cannot be done by the State without due process of law. Once issued, a TLA
remains effective for a certain period of time — usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to have violated the terms of
the agreement or other forestry laws and regulations. Petitioners' proposition to have
all the TLAs indiscriminately cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the
present respondents did not take issue with this matter. Nevertheless, We hereby rule
that the said civil case is indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court. We likewise declare that the
plaintiffs therein are numerous and representative enough to ensure the full
protection of all concerned interests. Hence, all the requisites for the filing of a valid
class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in
the said civil case and in the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element. Petitioners minors assert that
they represent their generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless to say,
every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at
the same time, the performance of their obligation to ensure the protection of that
right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration
and evaluation of the issues raised and arguments adduced by the parties, We do
not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting
to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal
wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore,
the Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For
to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege
with sufficient definiteness a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these
conclusions.
The complaint focuses on one specific fundamental legal right — the right to a
balanced and healthful ecology which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law. Section 16, Article II of the
1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section
of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
— aptly and fittingly stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Constitution for they are assumed
to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the first
and protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo
Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may
be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby
disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and
the right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas, and lands of
the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to
ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development
and the use of the country's natural resources, not only for the present generation
but for future generations as well. It is also the policy of the state to recognize and
apply a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
equitably accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section 2
of the same Title, on the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of the agency's being
subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall
be primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the "environmental
right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code)
were issued. The former "declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man and nature can thrive
in productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and
healthful ecology is as clear as the DENR's duty — under its mandate and by virtue
of its powers and functions under E.O. No. 192 and the Administrative Code of 1987
— to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they claim was done with grave abuse
of discretion, violated their right to a balanced and healthful ecology; hence, the
full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other;
and its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth of falsity of the said
allegations is beside the point for the truth thereof is deemed hypothetically
admitted. The only issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in accordance with the
prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the
rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima
facie, the claimed violation of their rights. On the basis thereof, they may thus be
granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that
insofar as the cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable parties.
As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the
In the case now before us, the jurisdictional objection becomes even less tenable
enforcement of a right vis-a-vis policies already formulated and expressed in
and decisive. The reason is that, even if we were to assume that the issue presented
legislation. It must, nonetheless, be emphasized that the political question doctrine is
before us was political in nature, we would still not be precluded from revolving it
no longer, the insurmountable obstacle to the exercise of judicial power or the
under the expanded jurisdiction conferred upon us that now covers, in proper
impenetrable shield that protects executive and legislative actions from judicial
cases, even the political question. Article VII, Section 1, of the Constitution clearly
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution
provides: . . .
states that:

The last ground invoked by the trial court in dismissing the complaint is the non-
Judicial power includes the duty of the courts of justice to settle actual controversies
impairment of contracts clause found in the Constitution. The court a quo declared
involving rights which are legally demandable and enforceable, and to determine
that:
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
accepting, processing, renewing or approving new timber license agreements. For
Isagani A. Cruz, a distinguished member of this Court, says:
to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
the authority represents a broadening of judicial power to enable the courts of
such a sweeping pronouncement. In the first place, the respondent Secretary did
justice to review what was before forbidden territory, to wit, the discretion of the
not, for obvious reasons, even invoke in his motion to dismiss the non-impairment
political departments of the government.
clause. If he had done so, he would have acted with utmost infidelity to the
Government by providing undue and unwarranted benefits and advantages to the
timber license holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions regardless
of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be
read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other
form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action.
It is not a contract, property or a property right protested by the due process clause
of the Constitution. In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful,
and is not a contract between the authority, federal, state, or municipal, granting it
and the person to whom it is granted; neither is it property or a property right, nor
does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that
the granting of license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by
which the State regulates the utilization and disposition of forest resources to the
end that public welfare is promoted. And it can hardly be gainsaid that they merely
evidence a privilege granted by the State to qualified entities, and do not vest in
the latter a permanent or irrevocable right to the particular concession area and
the forest products therein. They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause [See
Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-impairment
clause cannot as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment clause. This is because by its
very nature and purpose, such as law could have only been passed in the exercise
of the police power of the state for the purpose of advancing the right of the
people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in
Philippine American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
could apply with respect to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not entitled to it as a
matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case
No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint
to implead as defendants the holders or grantees of the questioned timber license
agreements.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President
on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to
give due course to petitioner’s Certificate of Candidacy in its Resolution No. 6558
dated January 17, 2004. The decision, however, was not unanimous since
Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include
petitioner as they believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558.
Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions
filed by other aspirants for national elective positions, denied the same under the
aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC
declared petitioner and thirty-five (35) others nuisance candidates who could not
wage a nationwide campaign and/or are not nominated by a political party or are
not supported by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then, Commissioner
Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which
were allegedly rendered in violation of his right to "equal access to opportunities for
public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can
afford to wage a nationwide campaign and/or are nominated by political parties.
In so doing, petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited the power of the
sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal qualifications for the
office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other countries, and
he has a platform of government. Petitioner likewise attacks the validity of the form
for the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that
the form does not provide clear and reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidate’s bio-data and
his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal
access to opportunities for public office" is the claim that there is a constitutional
right to run for or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II of the Constitution neither bestows
such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a thrust or justifies
an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution,
entitled "Declaration of Principles and State Policies." The provisions under the Article
are generally considered not self-executing,2 and there is no plausible reason for
according a different treatment to the "equal access" provision. Like the rest of the
policies enumerated in Article II, the provision does not contain any judicially
enforceable constitutional right but merely specifies a guideline for legislative or
executive action.3 The disregard of the provision does not give rise to any cause of
action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article
II had read, "The State shall broaden opportunities to public office and prohibit
public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully
brought forth an amendment that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the word "office" to "service." He
explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be equal access to the opportunity. If you broaden, it would
necessarily mean that the government would be mandated to create as many
offices as are possible to accommodate as many people as are also possible. That
is the meaning of broadening opportunities to public service. So, in order that we
should not mandate the State to make the government the number one employer
and to limit offices only to what may be necessary and expedient yet offering equal
opportunities to access to it, I change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as many people as possible into public office.
The approval of the "Davide amendment" indicates the design of the framers to
cast the provision as simply enunciatory of a desired policy objective and not
reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded
as the source of positive rights. It is difficult to interpret the clause as operative in the
absence of legislation since its effective means and reach are not properly defined.
Broadly written, the myriad of claims that can be subsumed under this rubric appear
to be entirely open-ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to countless interpretations
owing to their inherent impreciseness. Certainly, it was not the intention of the
framers to inflict on the people an operative but amorphous foundation from which
innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may
be subjected to limitations. Some valid limitations specifically on the privilege to
seek elective office are found in the provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10,
2002 outlining the instances wherein the COMELEC may motu proprio refuse to give
due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination,
however, the equal access clause is not violated. Equality is not sacrificed as long
as the burdens engendered by the limitations are meant to be borne by any one
who is minded to file a certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the burdens which they
create.
Significantly, petitioner does not challenge the constitutionality or validity of Section
69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10
December 2003. Thus, their presumed validity stands and has to be accorded due
weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26,
Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run for
office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the State
takes into account the practical considerations in conducting elections. Inevitably,
the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same
time, remedial actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization
and its candidates on the ballot – the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].11
Given these considerations, the ignominious nature of a nuisance candidacy
becomes even more galling. The organization of an election with bona fide
candidates standing is onerous enough. To add into the mix candidates with no
serious intentions or capabilities to run a viable campaign would actually impair the
electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral process, most probably
posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.

The COMELEC itself recognized these practical considerations when it promulgated

Owing to the superior interest in ensuring a credible and orderly election, the State
Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law
could exclude nuisance candidates and need not indulge in, as the song goes,
Department dated 11 January 2004. As observed in the COMELEC’s Comment:
"their trips to the moon on gossamer wings."

There is a need to limit the number of candidates especially in the case of

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
candidates for national positions because the election process becomes a mockery
compelling State interest to ensure orderly and credible elections by excising
even if those who cannot clearly wage a national campaign are allowed to run.
impediments thereto, such as nuisance candidacies that distract and detract from
Their names would have to be printed in the Certified List of Candidates, Voters
the larger purpose. The COMELEC is mandated by the Constitution with the
Information Sheet and the Official Ballots. These would entail additional costs to the
administration of elections16 and endowed with considerable latitude in adopting
government. For the official ballots in automated counting and canvassing of votes,
means and methods that will ensure the promotion of free, orderly and honest
an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION
elections.17 Moreover, the Constitution guarantees that only bona fide candidates
PESOS (₱450,000,000.00).
for public office shall be free from any form of harassment and discrimination.18 The
determination of bona fide candidates is governed by the statutes, and the
concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
xxx[I]t serves no practical purpose to allow those candidates to continue if they
cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
Now, the needed factual premises.

The preparation of ballots is but one aspect that would be affected by allowance
However valid the law and the COMELEC issuance involved are, their proper
of "nuisance candidates" to run in the elections. Our election laws provide various
application in the case of the petitioner cannot be tested and reviewed by this
entitlements for candidates for public office, such as watchers in every polling
Court on the basis of what is now before it. The assailed resolutions of the COMELEC
place,13 watchers in the board of canvassers,14 or even the receipt of electoral
do not direct the Court to the evidence which it considered in determining that
contributions.15 Moreover, there are election rules and regulations the formulations
petitioner was a nuisance candidate. This precludes the Court from reviewing at this
of which are dependent on the number of candidates in a given election.
instance whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into account the
matters which the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents
purportedly evincing his credentials as an eligible candidate for the presidency. Yet
this Court, not being a trier of facts, can not properly pass upon the reproductions
as evidence at this level. Neither the COMELEC nor the Solicitor General appended
any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal

and factual. The basis of the factual determination is not before this Court. Thus, the
remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to

serve in the government. It deserves not a cursory treatment but a hearing which
conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy,
suffice it to say that the form strictly complies with Section 74 of the Omnibus
Election Code. This provision specifically enumerates what a certificate of
candidacy should contain, with the required information tending to show that the
candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the
question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and
report its findings to this Court with deliberate dispatch.

SO ORDERED.
G.R. No. L-72119 May 29, 1987 claimed by a newspaper editor in another mandamus proceeding, this time to
demand access to the records of the Register of Deeds for the purpose of gathering
data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383
[1948]).
VALENTIN L. LEGASPI, petitioner,

vs.
The constitutional right to information on matters of public concern first gained
CIVIL SERVICE COMMISSION, respondent.
recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:

CORTES, J.:
Sec. 6. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shall be afforded the citizen subject to such
The fundamental right of the people to information on matters of public concern is limitations as may be provided by law.
invoked in this special civil action for mandamus instituted by petitioner Valentin L.
Legaspi against the Civil Service Commission. The respondent had earlier denied
Legaspi's request for information on the civil service eligibilities of certain persons
The foregoing provision has been retained and the right therein provided amplified
employed as sanitarians in the Health Department of Cebu City. These government
in Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
as to government research data used as basis for policy development." The new
themselves as civil service eligibles who passed the civil service examinations for
provision reads:
sanitarians.

The right of the people to information on matters of public concern shall be

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and
recognized. Access to official records, and to documents, and papers pertaining to
Mariano Agas, is guaranteed by the Constitution, and that he has no other plain,
official acts, transactions, or decisions, as well as to government research data used
speedy and adequate remedy to acquire the information, petitioner prays for the
as basis. for policy development, shall be afforded the citizen, subject to such
issuance of the extraordinary writ of mandamus to compel the respondent
stations as may be provided by law.
Commission to disclose said information.

These constitutional provisions are self-executing. They supply the rules by means of
This is not the first tune that the writ of mandamus is sought to enforce the
which the right to information may be enjoyed (Cooley, A Treatise on the
fundamental right to information. The same remedy was resorted to in the case of
Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the
Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein
duty to afford access to sources of information. Hence, the fundamental right
the people's right to be informed under the 1973 Constitution (Article IV, Section 6)
therein recognized may be asserted by the people upon the ratification of the
was invoked in order to compel the publication in the Official Gazette of various
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165)
presidential decrees, letters of instructions and other presidential issuances. Prior to
What may be provided for by the Legislature are reasonable conditions and
the recognition of the right in said Constitution the statutory right to information
limitations upon the access to be afforded which must, of necessity, be consistent
provided for in the Land Registration Act (Section 56, Act 496, as amended) was
with the declared State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. 11, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III Sec. 7 have become operative and enforceable by
virtue of the adoption of the New Charter. Therefore, the right may be properly
invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to
this Petition. He challenges the petitioner's standing to sue upon the ground that the
latter does not possess any clear legal right to be informed of the civil service
eligibilities of the government employees concerned. He calls attention to the
alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the
Commission to furnish the petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right.
(Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner
in every case must therefore be an "aggrieved party" in the sense that he possesses
a clear legal right to be enforced and a direct interest in the duty or act to be
performed.
In the case before Us, the respondent takes issue on the personality of the petitioner
to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of
Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and
Mariano Agas, At most there is a vague reference to an unnamed client in whose
behalf he had allegedly acted when he made inquiries on the subject (Petition,
Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly
anchored his case upon the right of the people to information on matters of public
concern, which, by its very nature, is a public right. It has been held that:
* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real
party in interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the
laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA
27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the
general "public" which possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra,
when it held that even those who have no direct or tangible interest in any real
estate transaction are part of the "public" to whom "(a)ll records relating to
registered lands in the Office of the Register of Deeds shall be open * * *" (Sec. 56,
Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces
every person. To say that only those who have a present and existing interest of a
pecuniary character in the particular information sought are given the right of
inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p.
387).
The petitioner, being a citizen who, as such is clothed with personality to seek
redress for the alleged obstruction of the exercise of the public right. We find no
cogent reason to deny his standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a
corresponding duty on the part of those who govern, to respect and protect that
right. That is the very essence of the Bill of Rights in a constitutional regime. Only
governments operating under fundamental rules defining the limits of their power so
as to shield individual rights against its arbitrary exercise can properly claim to be
constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the
limitations imposed upon it by the Constitution in order to uphold individual liberties,
without an acknowledgment on its part of those duties exacted by the rights
pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the
New Charter expressly mandate the duty of the State and its agents to afford
access to official records, documents, papers and in addition, government research
data used as basis for policy development, subject to such limitations as may be
provided by law. The guarantee has been further enhanced in the New Constitution
with the adoption of a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this
Court declared as an imperative duty of the government officials concerned to
publish all important legislative acts and resolutions of a public nature as well as all
executive orders and proclamations of general applicability. We granted
mandamus in said case, and in the process, We found occasion to expound briefly
on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v. Tuvera, supra, at 39).
(Emphasis supplied).
The absence of discretion on the part of government agencia es in allowing the
examination of public records, specifically, the records in the Office of the Register
of Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or
sheer, idle curiosity, we do not believe it is the duty under the law of registration
officers to concern themselves with the motives, reasons, and objects of the person
seeking access to the records. It is not their prerogative to see that the information
which the records contain is not flaunted before public gaze, or that scandal is not
made of it. If it be wrong to publish the contents of the records, it is the legislature
and not the officials having custody thereof which is called upon to devise a
remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government
agencies are without discretion in refusing disclosure of, or access to, information of
public concern. This is not to lose sight of the reasonable regulations which may be
imposed by said agencies in custody of public records on the manner in which the
right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which
persons desiring to do so, may inspect, examine or copy records relating to
registered lands. However, the regulations which the Register of Deeds may
promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or
loss of, the records may be avoided, that undue interference with the duties of the
custodian of the books and documents and other employees may be prevented,
that the right of other persons entitled to make inspection may be insured * * *
(Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a
municipal judge, to regulate the manner of inspection by the public of criminal
docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May
5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent
judge for his alleged refusal to allow examination of the criminal docket records in
his sala. Upon a finding by the Investigating Judge that the respondent had allowed
the complainant to open and view the subject records, We absolved the
respondent. In effect, We have also held that the rules and conditions imposed by
him upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that
the authority to regulate the manner of examining public records does not carry
with it the power to prohibit. A distinction has to be made between the discretion to
refuse outright the disclosure of or access to a particular information and the
authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the
government agency charged with the custody of public records. Its authority to
regulate access is to be exercised solely to the end that damage to, or loss of,
public records may be avoided, undue interference with the duties of said agencies
may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies. Otherwise, the enjoyment
of the constitutional right may be rendered nugatory by any whimsical exercise of
agency discretion. The constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set
forth in the Constitution. The decisive question on the propriety of the issuance of
the writ of mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of
public concern is a recognition of the essentiality of the free flow of ideas and
information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5,
1976, 17 SCRA 14). In the same way that free discussion enables members of society
to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102
[1939]), access to information of general interest aids the people in democratic
decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better
perspective of the vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern is not
absolute. It does not open every door to any and all information. Under the
Constitution, access to official records, papers, etc., are "subject to limitations as
may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore
exempt certain types of information from public scrutiny, such as those affecting
national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91,
September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every
case, the availability of access to a particular public record must be circumscribed
by the nature of the information sought, i.e., (a) being of public concern or one that
involves public interest, and, (b) not being exempted by law from the operation of
the constitutional guarantee. The threshold question is, therefore, whether or not the
information sought is of public interest or public concern.
a. This question is first addressed to the government agency having custody of the
desired information. However, as already discussed, this does not give the agency
concerned any discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information requested is
not of public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee. To hold otherwise will serve
to dilute the constitutional right. As aptly observed, ". . . the government is in an
advantageous position to marshall and interpret arguments against release . . ." (87
Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every denial
of access by the government agency concerned is subject to review by the courts,
and in the proper case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine in a case by case basis whether the the petitioner's right to know who are, and who are not, civil service eligibles. We
matter at issue is of interest or importance, as it relates to or affects the public. take judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing secret about one's
civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need
unusual nor unreasonable. And when, as in this case, the government employees
for adequate notice to the public of the various laws which are to regulate the
concerned claim to be civil service eligibles, the public, through any citizen, has a
actions and conduct of citizens. In Subido vs. Ozaeta, supra, the public concern
right to verify their professed eligibilities from the Civil Service Commission.
deemed covered by the statutory right was the knowledge of those real estate
transactions which some believed to have been registered in violation of the
Constitution.
The civil service eligibility of a sanitarian being of public concern, and in the
absence of express limitations under the law upon access to the register of civil
service eligibles for said position, the duty of the respondent Commission to confirm
The information sought by the petitioner in this case is the truth of the claim of
or deny the civil service eligibility of any person occupying the position becomes
certain government employees that they are civil service eligibles for the positions
imperative. Mandamus, therefore lies.
to which they were appointed. The Constitution expressly declares as a State policy
that:

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles
for the position of sanitarian, and to confirm or deny, the civil service eligibility of
Appointments in the civil service shall be made only according to merit and fitness
Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of
to be determined, as far as practicable, and except as to positions which are policy
Cebu City, as requested by the petitioner Valentin L. Legaspi.
determining, primarily confidential or highly technical, by competitive examination.
(Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. Public officers are at all times
accountable to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For
mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA,
ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN
ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA
MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK
TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA,
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE
PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 1 (RA 9522) adjusting the country’s
archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
maritime baselines of the Philippines as an archipelagic State. 3 This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I),4 codifying, among others, the sovereign right of States parties over their
"territorial sea," the breadth of which, however, was left undetermined. Attempts to
fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around
Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5
which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic
States like the Philippines7 and sets the deadline for the filing of application for the
extended continental shelf.8 Complying with these requirements, RA 9522 shortened
one baseline, optimized the location of some basepoints around the Philippine
archipelago and classified adjacent territories, namely, the Kalayaan Island Group
(KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate
their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as "citizens, taxpayers or x x x legislators,"9 as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine state’s
sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
country’s waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the
country’s nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of
islands" not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.14 To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included – its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning
(1) the petition’s compliance with the case or controversy requirement for judicial
review grounded on petitioners’ alleged lack of locus standi and (2) the propriety of
the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the
merits, respondents defended RA 9522 as the country’s compliance with the terms
of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the country’s security,
environment and economic interests or relinquish the Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of
petitioners’ assertion that what Spain ceded to the United States under the Treaty of
Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper
remedies to assail the constitutionality of RA 9522.
In praying for the dismissal of the petition on preliminary grounds, respondents seek
a strict observance of the offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse of discretion in the
exercise of judicial, quasi-judicial or ministerial powers on the part of respondents
and resulting prejudice on the part of petitioners.18
Respondents’ submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry
such relevance in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought
to be reviewed here is one such law.

2. On the merits, whether RA 9522 is unconstitutional. RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Country’s
The Ruling of the Court Maritime Zones and Continental
Shelf Under UNCLOS III, not to
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this Delineate Philippine Territory
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA Petitioners submit that RA 9522 "dismembers a large portion of the national
9522 unconstitutional. territory"21 because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the definition
On the Threshold Issues of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
Petitioners Possess Locus that this constitutional definition trumps any treaty or statutory provision denying the
Standi as Citizens Philippines sovereign control over waters, beyond the territorial sea recognized at
the time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners themselves undermine their assertion of locus standi as legislators and Petitioners argue that from the Treaty of Paris’ technical description, Philippine
taxpayers because the petition alleges neither infringement of legislative sovereignty over territorial waters extends hundreds of nautical miles around the
prerogative15 nor misuse of public funds,16 occasioned by the passage and Philippine archipelago, embracing the rectangular area delineated in the Treaty of
implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as Paris.22
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent Petitioners’ theory fails to persuade us.
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing "a more direct and specific interest" to bring UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
the suit, thus satisfying one of the requirements for granting citizenship standing.17 multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
The Writs of Certiorari and Prohibition nautical miles from the baselines], exclusive economic zone [200 nautical miles from
Are Proper Remedies to Test the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was
the Constitutionality of Statutes the culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the world’s oceans and submarine
areas, recognizing coastal and archipelagic States’ graduated authority over a Scarborough Shoal, not Inconsistent
limited span of waters and submarine lands along their coasts. with the Philippines’ Claim of Sovereignty
Over these Areas
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands
baselines are drawn, either straight or contoured, to serve as geographic starting framework to draw the baselines, and to measure the breadth of the applicable
points to measure the breadth of the maritime zones and continental shelf. Article maritime zones of the KIG, "weakens our territorial claim" over that area. 27 Petitioners
48 of UNCLOS III on archipelagic States like ours could not be any clearer: add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine
archipelagic baselines results in the loss of "about 15,000 square nautical miles of
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, territorial waters," prejudicing the livelihood of subsistence fishermen. 28 A comparison
the exclusive economic zone and the continental shelf. – The breadth of the of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
territorial sea, the contiguous zone, the exclusive economic zone and the extent of maritime space encompassed by each law, coupled with a reading of
continental shelf shall be measured from archipelagic baselines drawn in the text of RA 9522 and its congressional deliberations, vis-à-vis the Philippines’
accordance with article 47. (Emphasis supplied) obligations under UNCLOS III, belie this view.1avvphi1

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the
scope of the maritime space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right to exploit the living
and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS III’s limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners’
argument branding RA 9522 as a statutory renunciation of the Philippines’ claim
over the KIG, assuming that baselines are relevant for this purpose.

Even under petitioners’ theory that the Philippine territory embraces the islands and Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial
all the waters within the rectangular area delimited in the Treaty of Paris, the waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary,
baselines of the Philippines would still have to be drawn in accordance with RA 9522 RA 9522, by optimizing the location of basepoints, increased the Philippines’ total
because this is the only way to draw the baselines in conformity with UNCLOS III. The maritime space (covering its internal waters, territorial sea and exclusive economic
baselines cannot be drawn from the boundaries or other portions of the rectangular zone) by 145,216 square nautical miles, as shown in the table below:29
area delineated in the Treaty of Paris, but from the "outermost islands and drying
reefs of the archipelago."24 Extent of maritime
Extent of maritime
area using RA 3046, as
area using RA 9522,
UNCLOS III and its ancillary baselines laws play no role in the acquisition, amended, taking into
taking into account
enlargement or, as petitioners claim, diminution of territory. Under traditional account the Treaty of
UNCLOS III (in square
international law typology, States acquire (or conversely, lose) territory through Paris’ delimitation (in
nautical miles)
occupation, accretion, cession and prescription,25 not by executing multilateral square nautical miles)
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to Internal or
land features are outside UNCLOS III, and are instead governed by the rules on archipelagic
general international law.26 waters 166,858 171,435

Territorial Sea 274,136 32,106

RA 9522’s Use of the Framework
of Regime of Islands to Determine the Exclusive
Maritime Zones of the KIG and the Economic Zone 382,669
 TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines’ continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as "Regime of Islands"
under the Republic of the Philippines consistent with Article 121 of the United Nations
Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of
the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the
archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the
baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the
total number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG 32 and the
Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, 33
such that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the
archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago,
took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because
if we put them inside our baselines we might be accused of violating the provision
of international law which states: "The drawing of such baseline shall not depart to
any appreciable extent from the general configuration of the archipelago." So sa
loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still
allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic baseline.
Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal,
itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na
sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na sila magkalapit at baka
hindi na tatanggapin ng United Nations because of the rule that it should follow the
natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s
limits.1avvphi1 The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf in
the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as
amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash
to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS III], which states that "The
length of such baselines shall not exceed 100 nautical miles, except that up
to 3 per cent of the total number of baselines enclosing any archipelago
may exceed that length, up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later
found to be located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the
Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough
Shoal as "‘Regime[s] of Islands’ under the Republic of the Philippines consistent with
Article 121"36 of UNCLOS III manifests the Philippine State’s responsible observance of
its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any "naturally formed area of land, surrounded by water, which is above water at
high tide," such as portions of the KIG, qualifies under the category of "regime of
islands," whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the
Philippines’ claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines
of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally "converts" internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution39
or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air
space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed
by the archipelagic baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their depth or distance from
the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall
not in other respects affect the status of the archipelagic waters, including
the sea lanes, or the exercise by the archipelagic State of its sovereignty
over such waters and their air space, bed and subsoil, and the resources
contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal
and international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle
of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent
and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treaty’s limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both
the right of innocent passage and sea lanes passage 45 does not place them in
lesser footing vis-à-vis continental coastal States which are subject, in their territorial
sea, to the right of innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic States, in exchange for
their right to claim all the waters landward of their baselines, regardless of their
depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States’ archipelago
and the waters enclosed by their baselines as one cohesive entity prevents the
treatment of their islands as separate islands under UNCLOS III.46 Separate islands
generate their own maritime zones, placing the waters between islands separated
by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting
these waters to the rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, "do not embody judicially enforceable constitutional
rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed constitutional violation. The
other provisions petitioners cite, relating to the protection of marine wealth (Article
XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 7 52 ),
are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international community
will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates
a sui generis maritime space – the exclusive economic zone – in waters previously
part of the high seas. UNCLOS III grants new rights to coastal States to exclusively
exploit the resources found within this zone up to 200 nautical miles. 53 UNCLOS III,
however, preserves the traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress
was not bound to pass RA 9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners’ reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and
exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the country’s case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines’ maritime zones and continental shelf.
RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.
G.R. No. L-30671 November 28, 1973
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. GUILLERMO P. VILLASOR, as Judge of the Court of First Instance of Cebu,
Branch I, THE PROVINCIAL SHERIFF OF RIZAL, THE SHERIFF OF QUEZON CITY, and THE
SHERIFF OF THE CITY OF MANILA, THE CLERK OF COURT, Court of First Instance of
Cebu, P. J. KIENER CO., LTD., GAVINO UNCHUAN, AND INTERNATIONAL
CONSTRUCTION CORPORATION, respondents.
Office of the Solicitor General Felix V. Makasiar and Solicitor Bernardo P. Pardo for
petitioner.
Andres T. Velarde and Marcelo B. Fernan for respondents.
FERNANDO, J.:
The Republic of the Philippines in this certiorari and prohibition proceeding
challenges the validity of an order issued by respondent Judge Guillermo P. Villasor,
then of the Court of First Instance of Cebu, Branch I,1 declaring a decision final and
executory and of an alias writ of execution directed against the funds of the Armed
Forces of the Philippines subsequently issued in pursuance thereof, the alleged
ground being excess of jurisdiction, or at the very least, grave abuse of discretion. As
thus simply and tersely put, with the facts being undisputed and the principle of law
that calls for application indisputable, the outcome is predictable. The Republic of
the Philippines is entitled to the writs prayed for. Respondent Judge ought not to
have acted thus. The order thus impugned and the alias writ of execution must be
nullified.
In the petition filed by the Republic of the Philippines on July 7, 1969, a summary of
facts was set forth thus: "7. On July 3, 1961, a decision was rendered in Special
Proceedings No. 2156-R in favor of respondents P. J. Kiener Co., Ltd., Gavino
Unchuan, and International Construction Corporation, and against the petitioner
herein, confirming the arbitration award in the amount of P1,712,396.40, subject of
Special Proceedings. 8. On June 24, 1969, respondent Honorable Guillermo P.
Villasor, issued an Order declaring the aforestated decision of July 3, 1961 final and
executory, directing the Sheriffs of Rizal Province, Quezon City [as well as] Manila to
execute the said decision. 9. Pursuant to the said Order dated June 24, 1969, the
corresponding Alias Writ of Execution [was issued] dated June 26, 1969, .... 10. On
the strength of the afore-mentioned Alias Writ of Execution dated June 26, 1969, the
Provincial Sheriff of Rizal (respondent herein) served notices of garnishment dated
June 28, 1969 with several Banks, specially on the "monies due the Armed Forces of
the Philippines in the form of deposits sufficient to cover the amount mentioned in
the said Writ of Execution"; the Philippine Veterans Bank received the same notice
of garnishment on June 30, 1969 .... 11. The funds of the Armed Forces of the
Philippines on deposit with the Banks, particularly, with the Philippine Veterans Bank
and the Philippine National Bank [or] their branches are public funds duly
appropriated and allocated for the payment of pensions of retirees, pay and
allowances of military and civilian personnel and for maintenance and operations
of the Armed Forces of the Philippines, as per Certification dated July 3, 1969 by the
AFP Controller,..."2. The paragraph immediately succeeding in such petition then
alleged: "12. Respondent Judge, Honorable Guillermo P. Villasor, acted in excess of
jurisdiction [or] with grave abuse of discretion amounting to lack of jurisdiction in
granting the issuance of an alias writ of execution against the properties of the
Armed Forces of the Philippines, hence, the Alias Writ of Execution and notices of
garnishment issued pursuant thereto are null and void."3 In the answer filed by
respondents, through counsel Andres T. Velarde and Marcelo B. Fernan, the facts
set forth were admitted with the only qualification being that the total award was in
the amount of P2,372,331.40.4
The Republic of the Philippines, as mentioned at the outset, did right in filing this
certiorari and prohibition proceeding. What was done by respondent Judge is not in
conformity with the dictates of the Constitution. .
It is a fundamental postulate of constitutionalism flowing from the juristic concept of
sovereignty that the state as well as its government is immune from suit unless it gives
its consent. It is readily understandable why it must be so. In the classic formulation
of Holmes: "A sovereign is exempt from suit, not because of any formal conception Legislature, and to subject its officers to garnishment would be to permit indirectly
or obsolete theory, but on the logical and practical ground that there can be no what is prohibited directly. Another reason is that moneys sought to be garnished, as
legal right as against the authority that makes the law on which the right depends."5 long as they remain in the hands of the disbursing officer of the Government,
Sociological jurisprudence supplies an answer not dissimilar. So it was indicated in a belong to the latter, although the defendant in garnishment may be entitled to a
recent decision, Providence Washington Insurance Co. v. Republic of the specific portion thereof. And still another reason which covers both of the foregoing
Philippines,6 with its affirmation that "a continued adherence to the doctrine of non- is that every consideration of public policy forbids it." 12
suability is not to be deplored for as against the inconvenience that may be caused
private parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater if such a fundamental
In the light of the above, it is made abundantly clear why the Republic of the
principle were abandoned and the availability of judicial remedy were not thus
Philippines could rightfully allege a legitimate grievance.
restricted. With the well known propensity on the part of our people to go to court,
at the least provocation, the loss of time and energy required to defend against law
suits, in the absence of such a basic principle that constitutes such an effective
obstacle, could very well be imagined."7 WHEREFORE, the writs of certiorari and prohibition are granted, nullifying and setting
aside both the order of June 24, 1969 declaring executory the decision of July 3,
1961 as well as the alias writ of execution issued thereunder. The preliminary
injunction issued by this Court on July 12, 1969 is hereby made permanent.
This fundamental postulate underlying the 1935 Constitution is now made explicit in
the revised charter. It is therein expressly provided: "The State may not be sued
without its consent."8 A corollary, both dictated by logic and sound sense from a
basic concept is that public funds cannot be the object of a garnishment
proceeding even if the consent to be sued had been previously granted and the
state liability adjudged. Thus in the recent case of Commissioner of Public Highways
v. San Diego,9 such a well-settled doctrine was restated in the opinion of Justice
Teehankee: "The universal rule that where the State gives its consent to be sued by
private parties either by general or special law, it may limit claimant's action 'only up
to the completion of proceedings anterior to the stage of execution' and that the
power of the Courts ends when the judgment is rendered, since government funds
and properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements
of public funds must be covered by the corresponding appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to
be paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law." 10 Such a principle applies even to an
attempted garnishment of a salary that had accrued in favor of an employee.
Director of Commerce and Industry v. Concepcion, 11 speaks to that effect. Justice
Malcolm as ponente left no doubt on that score. Thus: "A rule which has never been
seriously questioned, is that money in the hands of public officers, although it may
be due government employees, is not liable to the creditors of these employees in
the process of garnishment. One reason is, that the State, by virtue of its sovereignty,
may not be sued in its own courts except by express authorization by the
G.R. No. 70853 March 12, 1987
REPUBLIC OF THE PHILIPPINES, petitioner-appellee,
vs.
PABLO FELICIANO and INTERMEDIATE APPELLATE COURT, respondents-appellants.
YAP, J.:
Petitioner seeks the review of the decision of the Intermediate Appellate Court
dated April 30, 1985 reversing the order of the Court of First Instance of Camarines
Sur, Branch VI, dated August 21, 1980, which dismissed the complaint of respondent
Pablo Feliciano for recovery of ownership and possession of a parcel of land on the
ground of non-suability of the State.
The background of the present controversy may be briefly summarized as follows:
On January 22, 1970, respondent Feliciano filed a complaint with the then Court of
First Instance of Camarines Sur against the Republic of the Philippines, represented
by the Land Authority, for the recovery of ownership and possession of a parcel of
land, consisting of four (4) lots with an aggregate area of 1,364.4177 hectares,
situated in the Barrio of Salvacion, Municipality of Tinambac, Camarines Sur. Plaintiff
alleged that he bought the property in question from Victor Gardiola by virtue of a
Contract of Sale dated May 31, 1952, followed by a Deed of Absolute Sale on
October 30, 1954; that Gardiola had acquired the property by purchase from the
heirs of Francisco Abrazado whose title to the said property was evidenced by an
informacion posesoria that upon plaintiff's purchase of the property, he took actual
possession of the same, introduced various improvements therein and caused it to
be surveyed in July 1952, which survey was approved by the Director of Lands on
October 24, 1954; that on November 1, 1954, President Ramon Magsaysay issued
Proclamation No. 90 reserving for settlement purposes, under the administration of
the National Resettlement and Rehabilitation Administration (NARRA), a tract of
land situated in the Municipalities of Tinambac and Siruma, Camarines Sur, after
which the NARRA and its successor agency, the Land Authority, started sub-dividing
and distributing the land to the settlers; that the property in question, while located
within the reservation established under Proclamation No. 90, was the private
property of plaintiff and should therefore be excluded therefrom. Plaintiff prayed
that he be declared the rightful and true owner of the property in question
consisting of 1,364.4177 hectares; that his title of ownership based on informacion
posesoria of his predecessor-in-interest be declared legal valid and subsisting and
that defendant be ordered to cancel and nullify all awards to the settlers.
The defendant, represented by the Land Authority, filed an answer, raising by way
of affirmative defenses lack of sufficient cause of action and prescription.
On August 29, 1970, the trial court, through Judge Rafael S. Sison, rendered a
decision declaring Lot No. 1, with an area of 701.9064 hectares, to be the private
property of the plaintiff, "being covered by a possessory information title in the
name of his predecessor-in-interest" and declaring said lot excluded from the
NARRA settlement reservation. The court declared the rest of the property claimed
by plaintiff, i.e. Lots 2, 3 and 4, reverted to the public domain.
A motion to intervene and to set aside the decision of August 29, 1970 was filed by
eighty-six (86) settlers, together with the barrio council of Pag-asay, alleging among
other things that intervenors had been in possession of the land in question for more
than twenty (20) years under claim of ownership.
On January 25, 1971, the court a quo reconsidered its decision, reopened the case
and directed the intervenors to file their corresponding pleadings and present their
evidence; all evidence already presented were to remain but plaintiff, as well as
the Republic of the Philippines, could present additional evidence if they so desire.
The plaintiff presented additional evidence on July 30, 1971, and the case was set
for hearing for the reception of intervenors' evidence on August 30 and August 31,
1971.
On August 30, 1971, the date set for the presentation of the evidence for
intervenors, the latter did not appear but submitted a motion for postponement and
resetting of the hearing on the next day, August 31, 1971. The trial court denied the
motion for postponement and allowed plaintiff to offer his evidence "en ausencia,"
after which the case would be deemed submitted for decision. On the following
day, August 31, 1971, Judge Sison rendered a decision reiterating his decision of
August 29, 1970.
A motion for reconsideration was immediately filed by the intervenors. But before
this motion was acted upon, plaintiff filed a motion for execution, dated November
18, 1971. On December 10, 1971, the lower court, this time through Judge Miguel
Navarro, issued an order denying the motion for execution and setting aside the
order denying intervenors' motion for postponement. The case was reopened to
allow intervenors to present their evidence. Unable to secure a reconsideration of
Judge Navarro's order, the plaintiff went to the Intermediate Appellate Court on a
petition for certiorari. Said petition was, however, denied by the Intermediate
Appellate Court, and petitioners brought the matter to this Court in G.R. No. 36163,
which was denied on May 3, 1973 Consequently, the case was remanded to the
court a quo for further proceedings.
On August 31, 1970, intervenors filed a motion to dismiss, principally on the ground
that the Republic of the Philippines cannot be sued without its consent and hence
the action cannot prosper. The motion was opposed by the plaintiff.
On August 21, 1980, the trial court, through Judge Esteban Lising, issued the
questioned order dismissing the case for lack of jurisdiction. Respondent moved for
reconsideration, while the Solicitor General, on behalf of the Republic of the
Philippines filed its opposition thereto, maintaining that the dismissal was proper on
the ground of non-suability of the State and also on the ground that the existence
and/or authenticity of the purported possessory information title of the respondents'
predecessor-in-interest had not been demonstrated and that at any rate, the same
is not evidence of title, or if it is, its efficacy has been lost by prescription and laches.
Upon denial of the motion for reconsideration, plaintiff again went to the
Intermediate Appellate Court on petition for certiorari. On April 30, 1985, the
respondent appellate court rendered its decision reversing the order of Judge Lising
and remanding the case to the court a quo for further proceedings. Hence this
petition.
We find the petition meritorious. The doctrine of non-suability of the State has proper
application in this case. The plaintiff has impleaded the Republic of the Philippines
as defendant in an action for recovery of ownership and possession of a parcel of
land, bringing the State to court just like any private person who is claimed to be
usurping a piece of property. A suit for the recovery of property is not an action in
rem, but an action in personam. 1 It is an action directed against a specific party or
parties, and any judgment therein binds only such party or parties. The complaint
filed by plaintiff, the private respondent herein, is directed against the Republic of
the Philippines, represented by the Land Authority, a governmental agency created
by Republic Act No. 3844.
By its caption and its allegation and prayer, the complaint is clearly a suit against
the State, which under settled jurisprudence is not permitted, except upon a
showing that the State has consented to be sued, either expressly or by implication
through the use of statutory language too plain to be misinterpreted.2 There is no
such showing in the instant case. Worse, the complaint itself fails to allege the
existence of such consent. This is a fatal defect, 3 and on this basis alone, the
complaint should have been dismissed.
The failure of the petitioner to assert the defense of immunity from suit when the
case was tried before the court a quo, as alleged by private respondent, is not
fatal. It is now settled that such defense "may be invoked by the courts sua sponte
at any stage of the proceedings." 4
Private respondent contends that the consent of petitioner may be read from the
Proclamation itself, when it established the reservation " subject to private rights, if
any there be. " We do not agree. No such consent can be drawn from the
language of the Proclamation. The exclusion of existing private rights from the
reservation established by Proclamation No. 90 can not be construed as a waiver of
the immunity of the State from suit. Waiver of immunity, being a derogation of
sovereignty, will not be inferred lightly. but must be construed in strictissimi juris. 5
Moreover, the Proclamation is not a legislative act. The consent of the State to be
sued must emanate from statutory authority. Waiver of State immunity can only be
made by an act of the legislative body.
Neither is there merit in respondent's submission, which the respondent appellate
court sustained, on the basis of our decision in the Begosa case, 6 that the present
action is not a suit against the State within the rule of State immunity from suit,
because plaintiff does not seek to divest the Government of any of its lands or its
funds. It is contended that the complaint involves land not owned by the State, but
private land belonging to the plaintiff, hence the Government is not being divested
of any of its properties. There is some sophistry involved in this argument, since the
character of the land sought to be recovered still remains to be established, and
the plaintiff's action is directed against the State precisely to compel the latter to
litigate the ownership and possession of the property. In other words, the plaintiff is
out to establish that he is the owner of the land in question based, incidentally, on
an informacion posesoria of dubious value, and he seeks to establish his claim of
ownership by suing the Republic of the Philippines in an action in personam.
The inscription in the property registry of an informacion posesoria under the Spanish
Mortgage Law was a means provided by the law then in force in the Philippines
prior to the transfer of sovereignty from Spain to the United States of America, to
record a claimant's actual possession of a piece of land, established through an ex
parte proceeding conducted in accordance with prescribed rules. 7 Such
inscription merely furnishes, at best, prima facie evidence of the fact that at the
time the proceeding was held, the claimant was in possession of the land under a
claim of right as set forth in his application. 8 The possessory information could ripen
into a record of ownership after the lapse of 20 years (later reduced to 10 years),
upon the fulfillment of the requisites prescribed in Article 393 of the Spanish
Mortgage Law.
There is no showing in the case at bar that the informacion posesoria held by the
respondent had been converted into a record of ownership. Such possessory
information, therefore, remained at best mere prima facie evidence of possession.
Using this possessory information, the respondent could have applied for judicial
confirmation of imperfect title under the Public Land Act, which is an action in rem.
However, having failed to do so, it is rather late for him to pursue this avenue at this
time. Respondent must also contend, as the records disclose, with the fact admitted
by him and stated in the decision of the Court a quo that settlers have been
occupying and cultivating the land in question since even before the outbreak of
the war, which puts in grave doubt his own claim of possession.
Worthy of note is the fact, as pointed out by the Solicitor General, that the
informacion posesoria registered in the Office of the Register of Deed of Camarines
Sur on September 23, 1952 was a "reconstituted" possessory information; it was
"reconstituted from the duplicate presented to this office (Register of Deeds) by Dr.
Pablo Feliciano," without the submission of proof that the alleged duplicate was
authentic or that the original thereof was lost. Reconstitution can be validly made
only in case of loss of the original. 10 These circumstances raise grave doubts as to
the authenticity and validity of the "informacion posesoria" relied upon by
respondent Feliciano. Adding to the dubiousness of said document is the fact that
"possessory information calls for an area of only 100 hectares," 11 whereas the land
claimed by respondent Feliciano comprises 1,364.4177 hectares, later reduced to
701-9064 hectares. Courts should be wary in accepting "possessory information
documents, as well as other purportedly old Spanish titles, as proof of alleged
ownership of lands.
WHEREFORE, judgment is hereby rendered reversing and setting aside the appealed
decision of the Intermediate Appellate Court, dated April 30, 1985, and affirming
the order of the court a quo, dated August 21, 1980, dismissing the complaint filed
by respondent Pablo Feliciano against the Republic of the Philippines. No costs.
SO ORDERED.
G.R. No. L-55273-83 December 19, 1981
GAUDENCIO RAYO, BIENVINIDO PASCUAL, TOMAS MANUEL, MARIANO CRUZ, PEDRO
BARTOLOME, BERNARDINO CRUZ JOSE PALAD , LUCIO FAJARDO, FRANCISCO RAYOS,
ANGEL TORRES, NORBERTO TORRES, RODELIO JOAQUIN, PEDRO AQUINO, APOLINARIO
BARTOLOME, MAMERTO BERNARDO, CIRIACO CASTILLO, GREGORIO CRUZ, SIMEON
ESTRELLA, EPIFANIO MARCELO, HERMOGENES SAN PEDRO, JUAN SANTOS, ELIZABETH
ABAN, MARCELINA BERNABE, BUENAVENTURA CRUZ, ANTONIO MENESES, ROMAN
SAN PEDRO, LOPEZ ESPINOSA, GODOFREDO PUNZAL, JULIANA GARCIA, LEBERATO
SARMIENTO, INOCENCIO DE LEON, CARLOS CORREA, REYNALDO CASIMIRO,
ANTONIO GENER, GAUDENCIO CASTILLO, MATIAS PEREZ, CRISPINIANO TORRES,
CRESENCIO CRUZ, PROTACIO BERNABE, MARIANO ANDRES, CRISOSTOMO CRUZ,
MARCOS EUSTAQUIO, PABLO LEGASPI, VICENTE PASCUAL, ALEJANDRA SISON,
EUFRACIO TORRES, ROGELIO BARTOLOME, RODOLFO BERNARDO, APOLONIO
CASTILLO, MARCELINO DALMACIO, EUTIQUIO LEGASPI, LORENZO LUCIANO and
GREGORIO PALAD, petitioners,
vs.
COURT OF FIRST INSTANCE OF BULACAN, BRANCH V, STA. MARIA, and NATIONAL
POWER CORPORATION, respondents.
ABAD SANTOS, J.:
The relevant antecedents of this case are narrated in the petition and have not
been controverted, namely:
3. At about midnight on October 26, 1978, during the height of that infamous
typhoon "KADING" the respondent corporation, acting through its plant
superintendent, Benjamin Chavez, opened or caused to be opened simultaneously
all the three floodgates of the Angat Dam. And as a direct and immediate result of
the sudden, precipitate and simultaneous opening of said floodgates several towns
in Bulacan were inundated. Hardest-hit was Norzagaray. About a hundred of its
residents died or were reported to have died and properties worth million of pesos
destroyed or washed away. This flood was unprecedented in Norzagaray.
4. Petitioners, who were among the many unfortunate victims of that man-caused
flood, filed with the respondent Court eleven complaints for damages against the
respondent corporation and the plant superintendent of Angat Dam, Benjamin
Chavez, docketed as Civil Cases Nos. SM-950 951, 953, 958, 959, 964, 965, 966, 981,
982 and 983. These complaints though separately filed have a common/similar
cause of action. ...
5. Respondent corporation filed separate answers to each of these eleven
complaints. Apart from traversing the material averments in the complaints and
setting forth counterclaims for damages respondent corporation invoked in each
answer a special and affirmative defense that "in the operation of the Angat Dam,"
it is "performing a purely governmental function", hence it "can not be sued without
the express consent of the State." ...
6. On motion of the respondent corporation a preliminary hearing was held on its
affirmative defense as though a motion to dismiss were filed. Petitioners opposed
the prayer for dismissal and contended that respondent corporation is performing
not governmental but merely proprietary functions and that under its own organic
act, Section 3 (d) of Republic Act No. 6395, it can sue and be sued in any court. ...
7. On July 29, 1980 petitioners received a copy of the questioned order of the
respondent Court dated December 21, 1979 dismissing all their complaints as
against the respondent corporation thereby leaving the superintendent of the
Angat Dam, Benjamin Chavez, as the sole party-defendant. ...
8. On August 7, 1980 petitioners filed with the respondent Court a motion for
reconsideration of the questioned order of dismissal. ...
9. The respondent Court denied petitioners' motion for reconsideration in its order
dated October 3, 1980. ... Hence, the present petition for review on certiorari under
Republic Act No. 5440. (Rollo, pp. 3-6.)

The Order of dismissal dated December 12, 1979, reads as follows:
Under consideration is a motion to dismiss embodied as a special affirmative
defense in the answer filed by defendant NPC on the grounds that said defendant
performs a purely governmental function in the operation of the Angat Dam and
cannot therefore be sued for damages in the instant cases in connection therewith.
Plaintiffs' opposition to said motion to discuss, relying on Sec. 3 (d) of Republic Act
6396 which imposes on the NPC the power and liability to sue and be sued in any
court, is not tenable since the same refer to such matters only as are within the
scope of the other corporate powers of said defendant and not matters of tort as in
the instant cases. It being an agency performing a purely governmental function in
the operation of the Angat Dam, said defendant was not given any right to commit
wrongs upon individuals. To sue said defendant for tort may require the express
consent of the State.
WHEREFORE, the cases against defendant NPC are hereby dismissed. (Rollo, p. 60.)
The Order dated October 3, 1980, denying the motion for reconsideration filed by
the plaintiffs is pro forma; the motion was simply denied for lack of merit. (Rollo, p.
74.)
The petition to review the two orders of the public respondent was filed on October
16, 1980, and on October 27, 1980, We required the respondents to comment. It was
only on April 13, 1981, after a number of extensions, that the Solicitor General filed
the required comment. (Rollo, pp. 107-114.)
On May 27, 1980, We required the parties to file simultaneous memoranda within
twenty (20) days from notice. (Rollo, p. 115.) Petitioners filed their memorandum on
July 22, 1981. (Rollo, pp. 118-125.) The Solicitor General filed a number of motions for
extension of time to file his memorandum. We granted the seventh extension with a
warning that there would be no further extension. Despite the warning the Solicitor
General moved for an eighth extension which We denied on November 9, 1981. A
motion for a ninth extension was similarly denied on November 18, 1981. The
decision in this case is therefore, without the memorandum of the Solicitor General.
The parties are agreed that the Order dated December 21, 1979, raises the
following issues:
1. Whether respondent National Power Corporation performs a governmental
function with respect to the management and operation of the Angat Dam; and
2. Whether the power of respondent National Power Corporation to sue and be
sued under its organic charter includes the power to be sued for tort.
The petition is highly impressed with merit.
It is not necessary to write an extended dissertation on whether or not the NPC
performs a governmental function with respect to the management and operation
of the Angat Dam. It is sufficient to say that the government has organized a private
corporation, put money in it and has allowed it to sue and be sued in any court
under its charter. (R.A. No. 6395, Sec. 3 (d).) As a government owned and controlled
corporation, it has a personality of its own, distinct and separate from that of the
Government. (See National Shipyards and Steel Corp. vs. CIR, et al., L-17874, August
31, 1963, 8 SCRA 781.) Moreover, the charter provision that the NPC can "sue and
be sued in any court" is without qualification on the cause of action and
accordingly it can include a tort claim such as the one instituted by the petitioners.
WHEREFORE, the petition is hereby granted; the Orders of the respondent court
dated December 12, 1979 and October 3, 1980, are set aside; and said court is
ordered to reinstate the complaints of the petitioners. Costs against the NPC. SO
ORDERED.
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIÑA, IAUREANO BANIÑA, JR.,
SOR MARIETA BANIÑA, MONTANO BANIÑA, ORJA BANIÑA, AND LYDIA R. BANIÑA,
respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the issuance of a writ of preliminary
mandatory injunction seeking the nullification or modification of the proceedings
and the orders issued by the respondent Judge Romeo N. Firme, in his capacity as
the presiding judge of the Court of First Instance of La Union, Second Judicial District,
Branch IV, Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando
Baniña, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976;
August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979;
November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979
ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to
pay, jointly and severally, the plaintiffs for funeral expenses, actual damages
consisting of the loss of earning capacity of the deceased, attorney's fees and costs
of suit and dismissing the complaint against the Estate of Macario Nieveras and
Bernardo Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a municipal corporation existing
under and in accordance with the laws of the Republic of the Philippines.
Respondent Honorable Judge Romeo N. Firme is impleaded in his official capacity
as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang,
La Union. While private respondents Juana Rimando-Baniña, Laureano Baniña, Jr.,
Sor Marietta Baniña, Montano Baniña, Orja Baniña and Lydia R. Baniña are heirs of
the deceased Laureano Baniña Sr. and plaintiffs in Civil Case No. 107-Bg before the
aforesaid court.
At about 7 o'clock in the morning of December 16, 1965, a collision occurred
involving a passenger jeepney driven by Bernardo Balagot and owned by the
Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and
owned by Tanquilino Velasquez and a dump truck of the Municipality of San
Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several
passengers of the jeepney including Laureano Baniña Sr. died as a result of the
injuries they sustained and four (4) others suffered varying degrees of physical
injuries.
On December 11, 1966, the private respondents instituted a compliant for damages
against the Estate of Macario Nieveras and Bernardo Balagot, owner and driver,
respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in
the Court of First Instance of La Union, Branch I, San Fernando, La Union. However,
the aforesaid defendants filed a Third Party Complaint against the petitioner and
the driver of a dump truck of petitioner.
Thereafter, the case was subsequently transferred to Branch IV, presided over by
respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By
virtue of a court order dated May 7, 1975, the private respondents amended the
complaint wherein the petitioner and its regular employee, Alfredo Bislig were
impleaded for the first time as defendants. Petitioner filed its answer and raised
affirmative defenses such as lack of cause of action, non-suability of the State,
prescription of cause of action and the negligence of the owner and driver of the
passenger jeepney as the proximate cause of the collision.
In the course of the proceedings, the respondent judge issued the following
questioned orders, to wit:
(1) Order dated November 4, 1975 dismissing the cross-claim against
Bernardo Balagot;
(2) Order dated July 13, 1976 admitting the Amended Answer of the
Municipality of San Fernando, La Union and Bislig and setting the hearing on
the affirmative defenses only with respect to the supposed lack of
jurisdiction;
(3) Order dated August 23, 1976 deferring there resolution of the grounds for
the Motion to Dismiss until the trial;
(4) Order dated February 23, 1977 denying the motion for reconsideration of
the order of July 13, 1976 filed by the Municipality and Bislig for having been
filed out of time;
(5) Order dated March 16, 1977 reiterating the denial of the motion for
reconsideration of the order of July 13, 1976;
(6) Order dated July 26, 1979 declaring the case deemed submitted for
decision it appearing that parties have not yet submitted their respective
memoranda despite the court's direction; and
 (7) Order dated September 7, 1979 denying the petitioner's motion for
reconsideration and/or order to recall prosecution witnesses for cross
examination.
On October 10, 1979 the trial court rendered a decision, the dispositive portion is
hereunder quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for
the plaintiffs, and defendants Municipality of San Fernando, La Union and
Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana
Rimando-Baniña, Mrs. Priscilla B. Surell, Laureano Baniña Jr., Sor Marietta
Baniña, Mrs. Fe B. Soriano, Montano Baniña, Orja Baniña and Lydia B.
Baniña the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost
expected earnings of the late Laureano Baniña Sr., P30,000.00 as moral
damages, and P2,500.00 as attorney's fees. Costs against said defendants.
The Complaint is dismissed as to defendants Estate of Macario Nieveras and
Bernardo Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial without prejudice to
another motion which was then pending. However, respondent judge issued
another order dated November 7, 1979 denying the motion for reconsideration of
the order of September 7, 1979 for having been filed out of time.
Finally, the respondent judge issued an order dated December 3, 1979 providing
that if defendants municipality and Bislig further wish to pursue the matter disposed
of in the order of July 26, 1979, such should be elevated to a higher court in
accordance with the Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge committed grave abuse of
discretion amounting to excess of jurisdiction in issuing the aforesaid orders and in
rendering a decision. Furthermore, petitioner asserts that while appeal of the
decision maybe available, the same is not the speedy and adequate remedy in the
ordinary course of law.
On the other hand, private respondents controvert the position of the petitioner and
allege that the petition is devoid of merit, utterly lacking the good faith which is
indispensable in a petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the
private respondents stress that petitioner has not considered that every court,
including respondent court, has the inherent power to amend and control its
process and orders so as to make them conformable to law and justice. (Rollo, p.
43.)
The controversy boils down to the main issue of whether or not the respondent court
committed grave abuse of discretion when it deferred and failed to resolve the
defense of non-suability of the State amounting to lack of jurisdiction in a motion to
dismiss.
In the case at bar, the respondent judge deferred the resolution of the defense of
non-suability of the State amounting to lack of jurisdiction until trial. However, said
respondent judge failed to resolve such defense, proceeded with the trial and
thereafter rendered a decision against the municipality and its driver.
The respondent judge did not commit grave abuse of discretion when in the
exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of
the State in the guise of the municipality. However, said judge acted in excess of his
jurisdiction when in his decision dated October 10, 1979 he held the municipality
liable for the quasi-delict committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for in Article XVI,
Section 3 of the Constitution, to wit: "the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the State may not be sued except
when it gives consent to be sued. Consent takes the form of express or implied
consent.
Express consent may be embodied in a general law or a special law. The standing
consent of the State to be sued in case of money claims involving liability arising
from contracts is found in Act No. 3083. A special law may be passed to enable a
person to sue the government for an alleged quasi-delict, as in Merritt v.
Government of the Philippine Islands (34 Phil 311). (see United States of America v.
Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.)
Consent is implied when the government enters into business contracts, thereby
descending to the level of the other contracting party, and also when the State files
a complaint, thus opening itself to a counterclaim. (Ibid)
Municipal corporations, for example, like provinces and cities, are agencies of the
State when they are engaged in governmental functions and therefore should
enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in
the performance of such functions because their charter provided that they can
sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability. "Suability depends
on the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is suable does not necessarily mean
that it is liable; on the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that the state has
allowed itself to be sued. When the state does waive its sovereign immunity, it is only
giving the plaintiff the chance to prove, if it can, that the defendant is liable."
(United States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the torts committed by
its employee, the test of liability of the municipality depends on whether or not the
driver, acting in behalf of the municipality, is performing governmental or
proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-
29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes
important for purposes of determining the liability of the municipality for the acts of
its agents which result in an injury to third persons.
Another statement of the test is given in City of Kokomo vs. Loy, decided by the
Supreme Court of Indiana in 1916, thus:
Municipal corporations exist in a dual capacity, and their functions are
twofold. In one they exercise the right springing from sovereignty, and while
in the performance of the duties pertaining thereto, their acts are political
and governmental. Their officers and agents in such capacity, though
elected or appointed by them, are nevertheless public functionaries
performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a
private, proprietary or corporate right, arising from their existence as legal
persons and not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the municipalities in their
corporate or individual capacity, and not for the state or sovereign power."
(112 N.E., 994-995) (Ibid, pp. 605-606.)
of Court. Hence, We rule that the driver of the dump truck was performing duties or
tasks pertaining to his office.
We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the
District Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or
maintenance of roads in which the truck and the driver worked at the time of the
accident are admittedly governmental activities."
After a careful examination of existing laws and jurisprudence, We arrive at the
conclusion that the municipality cannot be held liable for the torts committed by its
regular employee, who was then engaged in the discharge of governmental
functions. Hence, the death of the passenger –– tragic and deplorable though it
may be –– imposed on the municipality no duty to pay monetary compensation.
All premises considered, the Court is convinced that the respondent judge's
dereliction in failing to resolve the issue of non-suability did not amount to grave
abuse of discretion. But said judge exceeded his jurisdiction when it ruled on the
issue of liability.
ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is
hereby modified, absolving the petitioner municipality of any liability in favor of
private respondents.
SO ORDERED.

It has already been remarked that municipal corporations are suable because their
charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental
functions and can be held answerable only if it can be shown that they were acting
in a proprietary capacity. In permitting such entities to be sued, the State merely
gives the claimant the right to show that the defendant was not acting in its
governmental capacity when the injury was committed or that the case comes
under the exceptions recognized by law. Failing this, the claimant cannot recover.
(Cruz, supra, p. 44.)

In the case at bar, the driver of the dump truck of the municipality insists that "he
was on his way to the Naguilian river to get a load of sand and gravel for the repair
of San Fernando's municipal streets." (Rollo, p. 29.)

In the absence of any evidence to the contrary, the regularity of the performance
of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules
G.R. No. 104269 November 11, 1993
DEPARTMENT OF AGRICULTURE, petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION, et al., respondents.
Roy Lago Salcedo for private respondents.
VITUG, J.:
For consideration are the incidents that flow from the familiar doctrine of non-
suability of the state.
In this petition for certiorari, the Department of Agriculture seeks to nullify the
Resolution, 1 dated 27 November 1991, of the National Labor Relations Commission
(NLRC), Fifth Division, Cagayan de Oro City, denying the petition for injunction,
prohibition and mandamus that prays to enjoin permanently the NLRC's Regional
Arbitration Branch X and Cagayan de Oro City Sheriff from enforcing the decision 2
of 31 May 1991 of the Executive Labor Arbiter and from attaching and executing on
petitioner's property.
The Department of Agriculture (herein petitioner) and Sultan Security Agency
entered into a contract3 on 01 April 1989 for security services to be provided by the
latter to the said governmental entity. Save for the increase in the monthly rate of
the guards, the same terms and conditions were also made to apply to another
contract, dated 01 May 1990, between the same parties. Pursuant to their
arrangements, guards were deployed by Sultan Agency in the various premises of
the petitioner.
On 13 September 1990, several guards of the Sultan Security Agency filed a
complaint for underpayment of wages, non-payment of 13th month pay, uniform
allowances, night shift differential pay, holiday pay and overtime pay, as well as for
damages,4 before the Regional Arbitration Branch X of Cagayan de Oro City,
docketed as NLRC Case No. 10-09-00455-90 (or 10-10-00519-90, its original docket
number), against the Department of Agriculture and Sultan Security Agency.
The Executive Labor Arbiter rendered a decision on 31 May finding herein petitioner
and jointly and severally liable with Sultan Security Agency for the payment of
money claims, aggregating P266,483.91, of the complainant security guards. The
petitioner and Sultan Security Agency did not appeal the decision of the Labor
Arbiter. Thus, the decision became final and executory.
On 18 July 1991, the Labor Arbiter issued a writ of execution. 5 commanding the City
Sheriff to enforce and execute the judgment against the property of the two
respondents. Forthwith, or on 19 July 1991, the City Sheriff levied on execution the
motor vehicles of the petitioner, i.e. one (1) unit Toyota Hi-Ace, one (1) unit Toyota
Mini Cruiser, and one (1) unit Toyota Crown.6 These units were put under the
custody of Zacharias Roa, the property custodian of the petitioner, pending their
sale at public auction or the final settlement of the case, whichever would come
first.
A petition for injunction, prohibition and mandamus, with prayer for preliminary writ
of injunction was filed by the petitioner with the National Labor Relations
Commission (NLRC), Cagayan de Oro, alleging, inter alia, that the writ issued was
effected without the Labor Arbiter having duly acquired jurisdiction over the
petitioner, and that, therefore, the decision of the Labor Arbiter was null and void
and all actions pursuant thereto should be deemed equally invalid and of no legal,
effect. The petitioner also pointed out that the attachment or seizure of its property
would hamper and jeopardize petitioner's governmental functions to the prejudice
of the public good.
On 27 November 1991, the NLRC promulgated its assailed resolution; viz:
WHEREFORE, premises considered, the following orders are issued:
1. The enforcement and execution of the judgments against petitioner in NLRC
RABX Cases Nos. 10-10-00455-90; 10-10-0481-90 and 10-10-00519-90 are temporarily
suspended for a period of two (2) months, more or less, but not extending beyond
the last quarter of calendar year 1991 to enable petitioner to source and raise funds
to satisfy the judgment awards against it;
2. Meantime, petitioner is ordered and directed to source for funds within the period
above-stated and to deposit the sums of money equivalent to the aggregate
amount. it has been adjudged to pay jointly and severally with respondent Sultan
Security Agency with the Regional Arbitration Branch X, Cagayan de Oro City within
the same period for proper dispositions;
3. In order to ensure compliance with this order, petitioner is likewise directed to put
up and post sufficient surety and supersedeas bond equivalent to at least to fifty
(50%) percent of the total monetary award issued by a reputable bonding
company duly accredited by the Supreme Court or by the Regional Trial Court of
Misamis Oriental to answer for the satisfaction of the money claims in case of failure
or default on the part of petitioner to satisfy the money claims;
4. The City Sheriff is ordered to immediately release the properties of petitioner
levied on execution within ten (10) days from notice of the posting of sufficient
surety or supersedeas bond as specified above. In the meanwhile, petitioner is
assessed to pay the costs and/or expenses incurred by the City Sheriff, if any, in
connection with the execution of the judgments in the above-stated cases upon
presentation of the appropriate claims or vouchers and receipts by the city Sheriff,
subject to the conditions specified in the NLRC Sheriff, subject to the conditions
specified in the NLRC Manual of Instructions for Sheriffs;
5. The right of any of the judgment debtors to claim reimbursement against each
other for any payments made in connection with the satisfaction of the judgments
herein is hereby recognized pursuant to the ruling in the Eagle Security case, (supra).
In case of dispute between the judgment debtors, the Executive Labor Arbiter of
the Branch of origin may upon proper petition by any of the parties conduct
arbitration proceedings for the purpose and thereby render his decision after due
notice and hearings;
7. Finally, the petition for injunction is Dismissed for lack of basis. The writ of
preliminary injunction previously issued is Lifted and Set Aside and in lieu thereof, a
Temporary Stay of Execution is issued for a period of two (2) months but not
extending beyond the last quarter of calendar year 1991, conditioned upon the
posting of a surety or supersedeas bond by petitioner within ten (10) days from
notice pursuant to paragraph 3 of this disposition. The motion to admit the
complaint in intervention is Denied for lack of merit while the motion to dismiss the
petition filed by Duty Sheriff is Noted
SO ORDERED.
In this petition for certiorari, the petitioner charges the NLRC with grave abuse of
discretion for refusing to quash the writ of execution. The petitioner faults the NLRC
for assuming jurisdiction over a money claim against the Department, which, it
claims, falls under the exclusive jurisdiction of the Commission on Audit. More
importantly, the petitioner asserts, the NLRC has disregarded the cardinal rule on the
non-suability of the State.
The private respondents, on the other hand, argue that the petitioner has impliedly
waived its immunity from suit by concluding a service contract with Sultan Security
Agency.
The basic postulate enshrined in the constitution that "(t)he State may not be sued
without its consent," 7 reflects nothing less than a recognition of the sovereign
character of the State and an express affirmation of the unwritten rule effectively
insulating it from the jurisdiction of courts. 8 It is based on the very essence of
sovereignty. As has been aptly observed, by Justice Holmes, a sovereign is exempt
from suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. 9 True, the doctrine, not
too infrequently, is derisively called "the royal prerogative of dishonesty" because it
grants the state the prerogative to defeat any legitimate claim against it by simply
invoking its non-suability. 10 We have had occasion, to explain in its defense,
however, that a continued adherence to the doctrine of non-suability cannot be
deplored, for the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such fundamental principle is
to be abandoned and the availability of judicial remedy is not to be accordingly
restricted. 11
The rule, in any case, is not really absolute for it does not say that the state may not
be sued under any circumstances. On the contrary, as correctly phrased, the
doctrine only conveys, "the state may not be sued without its consent;" its clear
import then is that the State may at times be sued. 12 The States' consent may be
given expressly or impliedly. Express consent may be made through a general law13
or a special law. 14 In this jurisdiction, the general law waiving the immunity of the
state from suit is found in Act No. 3083, where the Philippine government "consents
and submits to be sued upon any money claims involving liability arising from
contract, express or implied, which could serve as a basis of civil action between
private parties." 15 Implied consent, on the other hand, is conceded when the State
itself commences litigation, thus opening itself to a counterclaim16 or when it enters
into a contract. 17 In this situation, the government is deemed to have descended
to the level of the other contracting party and to have divested itself of its sovereign
immunity. This rule, relied upon by the NLRC and the private respondents, is not,
however, without qualification. Not all contracts entered into by the government
operate as a waiver of its non-suability; distinction must still be made between one
which is executed in the exercise of its sovereign function and another which is
done in its proprietary capacity. 18
In the Unites States of America vs. Ruiz, 19 where the questioned transaction dealt
with improvements on the wharves in the naval installation at Subic Bay, we held:
The traditional rule of immunity exempts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of
the principles of independence and equality of States. However, the rules of
International Law are not petrified; they are constantly developing and evolving.
And because the activities of states have multiplied, it has been necessary to
distinguish them — between sovereign and governmental acts ( jure imperii) and
private, commercial and proprietary act ( jure gestionisis). The result is that State
immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in
Western Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a state may be said to have
descended to the level of an individual and can this be deemed to have actually
given its consent to be sued only when it enters into business contracts. It does not
apply where the contracts relates to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for not dedicated to
commercial or business purposes.
In the instant case, the Department of Agriculture has not pretended to have
assumed a capacity apart from its being a governmental entity when it entered
into the questioned contract; nor that it could have, in fact, performed any act
proprietary in character.
But, be that as it may, the claims of private respondents, i.e. for underpayment of
wages, holiday pay, overtime pay and similar other items, arising from the Contract
for Service, clearly constitute money claims. Act No. 3083, aforecited, gives the
consent of the State to be "sued upon any moneyed claim involving liability arising
from contract, express or implied, . . . Pursuant, however, to Commonwealth Act
("C.A.") No. 327, as amended by Presidential Decree ("P.D.") No. 1145, the money
claim first be brought to the Commission on Audit. Thus, in Carabao, Inc., vs. be paralyzed or disrupted by the diversion of public funds from their legitimate and
Agricultural Productivity Commission, 20 we ruled: specific objects, as appropriated by law.23

(C)laimants have to prosecute their money claims against the Government under
Commonwealth Act 327, stating that Act 3083 stands now merely as the general
law waiving the State's immunity from suit, subject to the general limitation
expressed in Section 7 thereof that "no execution shall issue upon any judgment
rendered by any Court against the Government of the (Philippines), and that the
conditions provided in Commonwealth Act 327 for filing money claims against the
Government must be strictly observed."
WHEREFORE, the petition is GRANTED. The resolution, dated 27 November 1991, is
hereby REVERSED and SET ASIDE. The writ of execution directed against the property
of the Department of Agriculture is nullified, and the public respondents are hereby
enjoined permanently from doing, issuing and implementing any and all writs of
execution issued pursuant to the decision rendered by the Labor Arbiter against said
petitioner.

SO ORDERED.

We fail to see any substantial conflict or inconsistency between the provisions of

C.A. No. 327 and the Labor Code with respect to money claims against the State.
The Labor code, in relation to Act No. 3083, provides the legal basis for the State
liability but the prosecution, enforcement or satisfaction thereof must still be pursued
in accordance with the rules and procedures laid down in C.A. No. 327, as
amended by P.D. 1445.

When the state gives its consent to be sued, it does thereby necessarily consent to
unrestrained execution against it. tersely put, when the State waives its immunity, all
it does, in effect, is to give the other party an opportunity to prove, if it can, that the
State has a liability. 21 In Republic vs. Villasor 22 this Court, in nullifying the issuance
of an alias writ of execution directed against the funds of the Armed Forces of the
Philippines to satisfy a final and executory judgment, has explained, thus —

The universal rule that where the State gives its consent to be sued by private parties
either by general or special law, it may limit the claimant's action "only up to the
completion of proceedings anterior to the stage of execution" and that the power
of the Courts ends when the judgment is rendered, since government funds and
properties may not be seized under writs or execution or garnishment to satisfy such
judgments, is based on obvious considerations of public policy. Disbursements of
public funds must be covered by the correspondent appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to