Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge
Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of
Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice
Cecilia Muoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to
whom this case was referred on October 28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for
partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola,
defendant, concerning the properties left by the deceased Francisco Reyes, the
common father of the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased
Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of Francisco Reyes with Felisa
Espiras, and the remaining plaintiffs who were the children of the deceased by his
second marriage with Irene Ondez; c) the properties left by the deceased were all the
conjugal properties of the latter and his first wife, Felisa Espiras, and no properties
were acquired by the deceased during his second marriage; d) if there was any
partition to be made, those conjugal properties should first be partitioned into two
parts, and one part is to be adjudicated solely to defendant it being the share of the
latter's deceased mother, Felisa Espiras, and the other half which is the share of the
deceased Francisco Reyes was to be divided equally among his children by his two
marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil
Case 3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court,
upon a preponderance of evidence, finds and so holds, and hereby
renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes

as the only children legitimated by the subsequent marriage of

Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff
Sinforosa R. Bales to have been an illegitimate child of Francisco
Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal
partnership of the spouses Francisco Reyes Diaz and Felisa Espiras;
(4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to
the spouses Francisco Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging
exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the
defendant Bernardita R. Macariola, being the only legal and forced
heir of her mother Felisa Espiras, as the exclusive owner of one-half
of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and
the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475,
4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4)
of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz;
(7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2)
of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416;
the remaining one-half (1/2) of Lot 2304 and the remaining one-half
(1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate of
Francisco Reyes Diaz; (8) Directing the division or partition of the
estate of Francisco Reyes Diaz in such a manner as to give or grant
to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a
hereditary share of. one-twelfth (1/12) of the whole estate of
Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New
Civil Code), and the remaining portion of the estate to be divided
among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant
Bernardita R. Macariola, in such a way that the extent of the total
share of plaintiff Sinforosa R. Bales in the hereditary estate shall not
exceed the equivalent of two-fifth (2/5) of the total share of any or
each of the other plaintiffs and the defendant (Art. 983, New Civil
Code), each of the latter to receive equal shares from the hereditary
estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of
Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days
after this judgment shall have become final to submit to this court, for
approval a project of partition of the hereditary estate in the
proportion above indicated, and in such manner as the parties may,
by agreement, deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and value of the
properties involved; (10) Directing the plaintiff Sinforosa R. Bales and
defendant Bernardita R. Macariola to pay the costs of this suit, in the
proportion of one-third (1/3) by the first named and two-thirds (2/3) by
the second named; and (I 1) Dismissing all other claims of the parties
[pp 27-29 of Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and on October
16, 1963, a project of partition was submitted to Judge Asuncion which is marked
Exh. A. Notwithstanding the fact that the project of partition was not signed by the
parties themselves but only by the respective counsel of plaintiffs and defendant,
Judge Asuncion approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this

Court for approval the following project of partition:
COMES NOW, the plaintiffs and the defendant in the above-entitled
case, to this Honorable Court respectfully submit the following Project
of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters
along the eastern part of the lot shall be awarded likewise to
Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa
Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters
along the western part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz
Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking
the portions awarded under item (2) and (4) above shall be awarded
to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares, provided, however that
the remaining portion of Lot No. 3416 shall belong exclusively to
Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition
indicated above which is made in accordance with the decision of the
Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to have
signed this Project of Partition, nevertheless, upon assurance of both
counsels of the respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a conference and
agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the
Court that they are given full authority to sign by themselves the
Project of Partition, the Court, therefore, finding the above-quoted
Project of Partition to be in accordance with law, hereby approves the

same. The parties, therefore, are directed to execute such papers,

documents or instrument sufficient in form and substance for the
vesting of the rights, interests and participations which were
adjudicated to the respective parties, as outlined in the Project of
Partition and the delivery of the respective properties adjudicated to
each one in view of said Project of Partition, and to perform such
other acts as are legal and necessary to effectuate the said Project of
Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only
for the purpose of giving authority to the Register of Deeds of the Province of Leyte
to issue the corresponding transfer certificates of title to the respective adjudicatees
in conformity with the project of partition (see Exh. U).
One of the properties mentioned in the project of partition was Lot 1184 or rather
one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to the
decision was the exclusive property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela,
and Priscilla all surnamed Reyes in equal shares, and when the project of partition
was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided
into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge
Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of
2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2)
who was issued transfer certificate of title No. 2338 of the Register of Deeds of the
city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E
with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S.
Asuncion (Exh. 11), which particular portion was declared by the latter for taxation
purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their
respective shares and interest in Lot 1184-E to "The Traders Manufacturing and
Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the
corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan,
Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as
the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of
Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we
shall henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6,
1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was
one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated
Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he
was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador
Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in
fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar;
and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent
Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this
case to then Justice Cecilia Muoz Palma of the Court of Appeals, for investigation, report and
recommendation. After hearing, the said Investigating Justice submitted her report dated May 27,
1971 recommending that respondent Judge should be reprimanded or warned in connection with the
first cause of action alleged in the complaint, and for the second cause of action, respondent should
be warned in case of a finding that he is prohibited under the law to engage in business. On the third
and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant
herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R.
Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case
No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil
Case No. 3010 and the two orders issued by respondent Judge approving the same, as well as the
partition of the estate and the subsequent conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon
was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was
filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on
August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc.
Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she was
no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the
portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already
sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the
cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez,
Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial,
Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now
Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the Project of

Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the
partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00]
for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001
for exemplary damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal
damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's
Fees.
B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA
VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN
(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs
of the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R.
BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals
upon perfection of the appeal on February 22, 1971.
I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her
first cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of
the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the court within
whose jurisdiction or territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers, with respect
to the property and rights which may be the object of any litigation in which they may
take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is
the subject of litigation to the persons disqualified therein. WE have already ruled that "... for the
prohibition to operate, the sale or assignment of the property must take place during the pendency of
the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519
[1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E,
the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because
none of the parties therein filed an appeal within the reglementary period; hence, the lot in question
was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965,
respondent's order dated October 23, 1963 and the amended order dated November 11,
1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963
decision, had long become final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the
plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31,
1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or
more specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes,
Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold
on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of
Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife
who declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by
spouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to
the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and
his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010
and of the subsequent two aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before
the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of
partition and the two orders approving the same, as well as the partition of the estate and the
subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from
Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in
Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963.
Therefore, the property was no longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter,
change or affect the aforesaid facts that the questioned sale to respondent Judge, now Court of
Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or
orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one
year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the
project of partition, and not during the pendency of the litigation, there was no violation of paragraph
5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio
Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal
the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval
of the project of partition. In this connection, We agree with the findings of the Investigating Justice
thus:
And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of
the whole lot to "TRADERS" of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions
between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that
there is no evidence whatsoever to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot
1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a
respectable citizen, credible and sincere, and I believe him when he testified that he
bought Lot 1184-E in good faith and for valuable consideration from the Reyeses
without any intervention of, or previous understanding with Judge Asuncion (pp. 391394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in approving the
project of partition although it was not signed by the parties, We quote with approval the findings of
the Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed by respondent in that
respect was done in good faith as according to Judge Asuncion he was assured by
Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was

authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24,
January 20, 1969). While it is true that such written authority if there was any, was
not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate
the statement of respondent, his affidavit being the only one that was presented as
respondent's Exh. 10, certain actuations of Mrs. Macariola lead this investigator to
believe that she knew the contents of the project of partition, Exh. A, and that she
gave her conformity thereto. I refer to the following documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh.
9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly entered and registered on November 26,
1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes
Macariola onOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth share
of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated
that she was the absolute owner of said one-fourth share, the same having been
adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as
per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A).
The deed of sale was duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that in the project
of partition dated October 16, 1963, which was approved by respondent on October
23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather
1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the
preparation of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her onefourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because
of the project of partition, Exh. A. Such contention is absurd because from the
decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the
estate of Francisco Reyes Diaz while the other half of said one-fourth was the share
of complainant's mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see
Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot
1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola
sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen
aware of the distribution of the properties of her deceased father as per Exhs. A and
B. It is also significant at this point to state that Mrs. Macariola admitted during the
cross-examination that she went to Tacloban City in connection with the sale of Lot
1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce that
she could not have been kept ignorant of the proceedings in civil case 3010 relative
to the project of partition.
Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove the
alleged gross inequalities in the choice and distribution of the real properties when
she could have easily done so by presenting evidence on the area, location, kind, the

assessed and market value of said properties. Without such evidence there is
nothing in the record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New
Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was,
however, improper for him to have acquired the same. He should be reminded of Canon 3 of the
Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the
appearance of impropriety, and his personal behavior, not only upon the bench and in the
performance of judicial duties, but also in his everyday life, should be beyond reproach." And as
aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of
respondent to have purchased or acquired a portion of a piece of property that was or had been in
litigation in his court and caused it to be transferred to a corporation of which he and his wife were
ranking officers at the time of such transfer. One who occupies an exalted position in the judiciary
has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of
justice, so that not only must he be truly honest and just, but his actuations must be such as not give
cause for doubt and mistrust in the uprightness of his administration of justice. In this particular case
of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his
actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was
no longer in litigation in his court and that he was purchasing it from a third person and not from the
parties to the litigation, he should nonetheless have refrained from buying it for himself and
transferring it to a corporation in which he and his wife were financially involved, to avoid possible
suspicion that his acquisition was related in one way or another to his official actuations in civil case
3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers
practising in his court, and the public in general to doubt the honesty and fairness of his actuations
and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent Judge violated
paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the
Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said
corporation having been organized to engage in business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by proxy,
nor can they hold any office or have any direct, administrative, or financial
intervention in commercial or industrial companies within the limits of the districts,
provinces, or towns in which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance
are temporarily discharging the functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in commerce in
a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the Code of
Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the

nature of a political law as it regulates the relationship between the government and certain public
officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and define the relations of the state with the
inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that
political law embraces constitutional law, law of public corporations, administrative law including the
law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more
of the nature of an administrative law because it regulates the conduct of certain public officers and
employees with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of
1885, with some modifications made by the "Commission de Codificacion de las Provincias de
Ultramar," which was extended to the Philippines by the Royal Decree of August 6, 1888, and took
effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the United States
to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have
been abrogated because where there is change of sovereignty, the political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated,
unless they are expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to another,
either following a conquest or otherwise, ... those laws which are political in their
nature and pertain to the prerogatives of the former government immediately cease
upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws of
the new sovereign continue in force without the express assent or affirmative act of
the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14).
However, such political laws of the prior sovereignty as are not in conflict with the
constitution or institutions of the new sovereign, may be continued in force if the
conqueror shall so declare by affirmative act of the commander-in-chief during the
war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S.
220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of
Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that
the relations of the inhabitants with each other undergo any change.
Their relations with their former sovereign are dissolved, and new
relations are created between them and the government which has
acquired their territory. The same act which transfers their country,
transfers the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals,
remains in force, until altered by the newly- created power of the
State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general
principle of the public law that on acquisition of territory the previous political relations of the ceded
region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the aforestated
provision of the Code of Commerce after the change of sovereignty from Spain to the United States
and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has
no legal and binding effect and cannot apply to the respondent, then Judge of the Court of First
Instance, now Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides
that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any Iaw from having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is no
showing that respondent participated or intervened in his official capacity in the business or
transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the
business of the corporation in which respondent participated has obviously no relation or connection
with his judicial office. The business of said corporation is not that kind where respondent intervenes
or takes part in his capacity as Judge of the Court of First Instance. As was held in one case
involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on
public officers against directly or indirectly becoming interested in any contract or business in which
it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it
is necessary that by reason of his office, he has to intervene in said contracts or transactions; and,
hence, the official who intervenes in contracts or transactions which have no relation to his office
cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice
Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue advantage
in its business operations by reason of respondent's financial involvement in it, or that the
corporation benefited in one way or another in any case filed by or against it in court. It is undisputed
that there was no case filed in the different branches of the Court of First Instance of Leyte in which
the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita
R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to
recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No.
4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having
disposed of his interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in
both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly
prohibiting members of the Judiciary from engaging or having interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of
1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said
law, municipal judges may engage in teaching or other vocation not involving the practice of law
after office hours but with the permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is,
as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to
America, because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
judges of a property in litigation before the court within whose jurisdiction they perform their duties,
cannot apply to respondent Judge because the sale of the lot in question to him took place after the
finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of
partition; hence, the property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil
Service Act of 1959 prohibits an officer or employee in the civil service from engaging in any private
business, vocation, or profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the head of department, the same, however,
may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act
because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any
public officer from having any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that
is, engaging in private business without a written permission from the Department Head may not
constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil
Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service
Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of
the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial, credit, agricultural or
industrial undertaking without a written permission from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,
Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in the
President of the Philippines, not in the Commissioner of Civil Service, and only on two grounds,
namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court,
which alone is authorized, upon its own motion, or upon information of the Secretary (now Minister)
of Justice to conduct the corresponding investigation. Clearly, the aforesaid section defines the
grounds and prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can
discipline judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ...
violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the
interest of the service, remove any subordinate officer or employee from the service, demote him in
rank, suspend him for not more than one year without pay or fine him in an amount not exceeding
six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action
against civil service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees subject to
the disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not
the head of the Judicial Department to which they belong. The Revised Administrative Code (Section
89) and the Civil Service Law itself state that the Chief Justice is the department head of the
Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is
the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a
violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against
judges because to recognize the same as applicable to them, would be adding another ground for
the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two
grounds for their removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service
who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after
submission to it, all administrative cases against permanent officers and employees in the
competitive service, and, except as provided by law, to have final authority to pass upon their
removal, separation, and suspension and upon all matters relating to the conduct, discipline, and
efficiency of such officers and employees; and prescribe standards, guidelines and regulations
governing the administration of discipline" (emphasis supplied). There is no question that a judge
belong to the non-competitive or unclassified service of the government as a Presidential appointee
and is therefore not covered by the aforesaid provision. WE have already ruled that "... in interpreting
Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and employees
who belong to the classified service come under the exclusive jurisdiction of the Commissioner of
Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619
[1963]).
Although the actuation of respondent Judge in engaging in private business by joining the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of
the provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to
the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon
25 of the Canons of Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises which are
apt to be involved in litigation in his court; and, after his accession to the bench, he
should not retain such investments previously made, longer than a period sufficient
to enable him to dispose of them without serious loss. It is desirable that he should,
so far as reasonably possible, refrain from all relations which would normally tend to
arouse the suspicion that such relations warp or bias his judgment, or prevent his
impartial attitude of mind in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on
January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties,
and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or
against it in court as there was no case filed in the different branches of the Court of First Instance of
Leyte from the time of the drafting of the Articles of Incorporation of the corporation on March 12,

1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on
January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the corporation, indicates that
respondent realized that early that their interest in the corporation contravenes the aforesaid Canon
25. Respondent Judge and his wife therefore deserve the commendation for their immediate
withdrawal from the firm after its incorporation and before it became involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that respondent was guilty
of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable
defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of
the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of
action are groundless, and WE quote the pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in
truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys
and is not a member of the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the bar.
I see no reason for disbelieving this assertion of respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorneyat-law to the extent of putting up a signboard with his name and the words "Attorneyat Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent
and any person for that matter to have accepted that statement on its face value.
"Now with respect to the allegation of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a
godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not
render respondent guilty of violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and family did not influence his official
actuations as a judge where said persons were concerned. There is no tangible
convincing proof that herein respondent gave any undue privileges in his court to
Dominador Arigpa Tan or that the latter benefitted in his practice of law from his
personal relations with respondent, or that he used his influence, if he had any, on
the Judges of the other branches of the Court to favor said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain as much as
possible from maintaining close friendly relations with practising attorneys and
litigants in his court so as to avoid suspicion 'that his social or business relations or
friendship constitute an element in determining his judicial course" (par. 30, Canons
of Judicial Ethics), but if a Judge does have social relations, that in itself would not
constitute a ground for disciplinary action unless it be clearly shown that his social
relations be clouded his official actuations with bias and partiality in favor of his
friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did
not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his incumbency as judge of the Court of
First Instance of Leyte, he should be reminded to be more discreet in his private and business

activities, because his conduct as a member of the Judiciary must not only be characterized with
propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS
HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ.,
concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.

Separate Opinions
AQUINO, J., concurring and dissenting:
I vote for respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.

G.R. No. L-18463

October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.

MALCOLM, J.:
The important question is here squarely presented of whether article 256 of the Spanish Penal
Code, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the
Crown or other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered
that certain documents which constituted the records of testimony given by witnesses in the
investigation of oil companies, had disappeared from his office. Shortly thereafter, the Philippine
Senate, having been called into special session by the Governor-General, the Secretary for the
Senate informed that body of the loss of the documents and of the steps taken by him to discover
the guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of
records which were kept and preserved in the iron safe of the Senate, yet up to this time
there is not the slightest indication that the author or authors of the crime will ever be
discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the
persons in charge of the investigation of the case would not have to display great skill in
order to succeed in their undertaking, unless they should encounter the insuperable obstacle
of offical concealment.
In that case, every investigation to be made would be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially under the circumstances that have
surrounded it, does not surprise us at all.
The execution of the crime was but the natural effect of the environment of the place in which
it was committed.
How many of the present Senators can say without remorse in their conscience and with
serenity of mind, that they do not owe their victory to electoral robbery? How may?
The author or authors of the robbery of the records from the said iron safe of the Senate
have, perhaps, but followed the example of certain Senators who secured their election
through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its
committee on elections and privileges to report as to the action which should be taken with reference
to the article published inLa Nacion. On September 15, 1920, the Senate adopted a resolution
authorizing the President of the Senate to indorse to the Attorney-General, for his study and
corresponding action, all the papers referring to the case of the newspaper La Nacion and its editor,
Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of the City of
Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was
alleged that the same constituted a violation of article 256 of the Penal Code. The defendant
Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of
Manila.
During the course of the trial in the Court of First Instance, after the prosecution had rested, the
defense moved for the dismissal of the case. On the subject of whether or not article 256 of the
Penal Code, under which the information was presented, is in force, the trial judge, the Honorable
George R. Harvey, said:
This antiquated provision was doubtless incorporated into the Penal Code of Spain for the
protection of the Ministers of the Crown and other representatives of the King against free
speech and action by Spanish subjects. A severe punishment was prescribed because it was
doubtless considered a much more serious offense to insult the King's representative than to
insult an ordinary individual. This provision, with almost all the other articles of that Code,
was extended to the Philippine Islands when under the dominion of Spain because the
King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or
other representatives of His Majesty. We now have no Ministers of the Crown or other
persons in authority in the Philippines representing the King of Spain, and said provision,
with other articles of the Penal Code, had apparently passed into "innocuous desuetude," but
the Supreme Corut of the Philippine Islands has, by a majority decision, held that said article
256 is the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court
until otherwise determined by proper authority.
In the decision rendered by the same judge, he concluded with the following language:
In the United States such publications are usually not punishable as criminal offense, and
little importance is attached to them, because they are generally the result of political
controversy and are usually regarded as more or less colored or exaggerated. Attacks of this
character upon a legislative body are not punishable, under the Libel Law. Although such
publications are reprehensible, yet this court feels some aversion to the application of the
provision of law under which this case was filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes punishment for persons who use
insulting language about Ministers of the Crown or other "authority." The King of Spain
doubtless left the need of such protection to his ministers and others in authority in the
Philippines as well as in Spain. Hence, the article referred to was made applicable here.
Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has
held that this provision is still in force, and that one who made an insulting remark about the
President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it
applicable in that case, it would appear to be applicable in this case. Hence, said article 256
must be enforced, without fear or favor, until it shall be repealed or superseded by other
legislation, or until the Supreme Court shall otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as charged in the
information and under article 256 of their Penal Code sentences him to suffer two months
and one day of arresto mayor and the accessory penalties prescribed by law, and to pay the
costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and
eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to
the pertinent and decisive question which was announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to follow the rule
announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case,
the accused was charged with having said, "To hell with the President and his proclamations, or
words to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment
rendered by the Court of First Instance of Manila and again on appeal to the Supreme Court, with
the writer of the instant decision dissenting on two principal grounds: (1) That the accused was
deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal
Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the
opinion that the Court of First Instance had committed a prejudicial error in depriving the accused of
his right to cross-examine a principal witness, set aside the judgment affirming the judgment
appealed from and ordered the return of the record to the court of origin for the celebration of a new
trial. Whether such a trial was actually had, is not known, but at least, the record in the Helbig case
has never again been elevated to this court.
There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view
of the circumstances above described. This much, however, is certain: The facts of the Helbig case
and the case before us, which we may term the Perfecto case, are different, for in the first case there
was an oral defamation, while in the second there is a written defamation. Not only this, but a new
point which, under the facts, could not have been considered in the Helbig case, is, in the Perfecto
case, urged upon the court. And, finally, as is apparent to all, the appellate court is not restrained, as
was the trial court, by strict adherence to a former decision. We much prefer to resolve the question
before us unhindered by references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same result can be had. A
majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect
of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or
insult, and that under the information and the facts, the defendant is neither guilty of a violation of
article 256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused
should be acquitted for the reason that the facts alleged in the information do not constitute a
violation of article 156 of the Penal Code. Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the Philippines and
is inconsistent with democratic principles of government.
Without prejudice to the right of any member of the court to explain his position, we will discuss the
two main points just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code.
The Libel Law, Act No. 277, was enacted by the Philippine Commission shortly after
organization of this legislative body. Section 1 defines libel as a "malicious defamation,
expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical
exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty,
virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws

and parts of laws now in force, so far as the same may be in conflict herewith, are hereby
repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that
the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of
Book II of the Penal Code, covering the subjects of calumny and insults, must have been particularly
affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1.
Phil., 468), the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on
the subject of calumnia and injuria." Recently, specific attention was given to the effect of the Libel
Law on the provisions of the Penal Code, dealing with calumny and insults, and it was found that
those provisions of the Penal Code on the subject of calumny and insults in which the elements of
writing an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p.
842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code, as for instance
article 256.
The facts here are that the editor of a newspaper published an article, naturally in writing, which may
have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine
Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel,
as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable
when defaming a "body of persons definite and small enough for individual members to be
recognized as such, in or by means of anything capable of being a libel." (Digest of Criminal Law,
art. 267.) But in the United States, while it may be proper to prosecute criminally the author of a libel
charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the
range of the liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal
Law, p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: Any
person who, by . . .writing, shall defame, abuse, or insult any Minister of the Crown or other person
in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of
statutory construction is, that where the later statute clearly covers the old subject-matter of
antecedent acts, and it plainly appears to have been the purpose of the legislature to give
expression in it to the whole law on the subject, previous laws are held to be repealed by necessary
implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident
that Act No. 277 had the effect so much of this article as punishes defamation, abuse, or insults by
writing.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected
article 256, but as to this point, it is not necessary to make a pronouncement.
2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article
256 of the Spanish Penal Code. Appellant's main proposition in the lower court and again
energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is
not now in force because abrogated by the change from Spanish to American sovereignty
over the Philippines and because inconsistent with democratic principles of government. This
view was indirectly favored by the trial judge, and, as before stated, is the opinion of three
members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II
punishes the crimes of treason, crimes that endanger the peace or independence of the state,
crimes against international law, and the crime of piracy. Title II of the same book punishes the

crimes of lese majeste, crimes against the Cortesand its members and against the council of
ministers, crimes against the form of government, and crimes committed on the occasion of the
exercise of rights guaranteed by the fundamental laws of the state, including crime against religion
and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of
rebellion, sedition, assaults upon persons in authority, and their agents, and contempts,
insults, injurias, and threats against persons in authority, and insults, injurias, and threats against
their agents and other public officers, the last being the title to Chapter V. The first two articles in
Chapter V define and punish the offense of contempt committed by any one who shall be word or
deed defame, abuse, insult, or threathen a minister of the crown, or any person in authority. The with
an article condemning challenges to fight duels intervening, comes article 256, now being weighed in
the balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority, while engaged in the performance of
official duties, or by reason of such performance, provided that the offensive minister or person, or
the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," that is,
the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there
could not be a Minister of the Crown in the United States of America), or other person in authority in
the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such
subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of
ministers of the crown, are not longer in force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more specifically stated, whether it is in the nature of
a municipal law or political law, and is consistent with the Constitution and laws of the United States
and the characteristics and institutions of the American Government.
It is a general principle of the public law that on acquisition of territory the previous political relations
of the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating
the relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter
[1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542;
Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme
Court stated the obvious when in the course of his opinion in the case of Chicago, Rock Island and
Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws, ordinances and
regulations in conflict with the political character, institutions and Constitution of the new government
are at once displaced. Thus, upon a cession of political jurisdiction and legislative power and the
latter is involved in the former to the United States, the laws of the country in support of an
established religion or abridging the freedom of the press, or authorizing cruel and unusual
punishments, and he like, would at once cease to be of obligatory force without any declaration to
that effect." To quote again from the United States Supreme Court: "It cannot be admitted that the
King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives;
and much less can it be admitted that they have capacity to receive or power to exercise them.
Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and
laws of its own government, and not according to those of the government ceding it."
(Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the Military
Commander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the
conquered territory affecting private rights of person and property and providing for the punishment
of crime were nominally continued in force in so far as they were compatible with the new order of
things. But President McKinley, in his instructions to General Merritt, was careful to say: "The first
effect of the military occupation of the enemy's territory is the severance of the former political
relation of the inhabitants and the establishment of a new political power." From that day to this, the
ordinarily it has been taken for granted that the provisions under consideration were still effective. To
paraphrase the language of the United States Supreme Court in Weems vs. United States ([1910],

217 U. S., 349), there was not and could not be, except as precise questions were presented, a
careful consideration of the codal provisions and a determination of the extent to which they
accorded with or were repugnant to the "'great principles of liberty and law' which had been 'made
the basis of our governmental system.' " But when the question has been squarely raised, the
appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant
t democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18;
U.S.vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)
The nature of the government which has been set up in the Philippines under American sovereignty
was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the
Commission, of April 7, 1900. In part, the President said:
In all the forms of government and administrative provisions which they are authorized to
prescribe, the Commission should bear in mind that he government which they are
establishing is designed not for our satisfaction or for the expression of our theoretical views,
but for the happiness, peace, and prosperity of the people of the Philippine Islands, and the
measures adopted should be made to conform to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government. At the same time the Commission should bear in
mind, and the people of the Islands should be made plainly to understand, that there are
certain great principles of government which have been made the basis of our governmental
system, which we deem essential to the rule of law and the maintenance of individual
freedom, and of which they have, unfortunately, been denied the experience possessed by
us; that there are also certain practical rules of government which we have found to be
essential to the preservation of these great principles of liberty and law, and that these
principles and these rules of government must be established and maintained in their islands
for the sake of their liberty and happiness, however much they may conflict with the customs
or laws of procedure with which they are familiar. It is evident that the most enligthened
thought of the Philippine Islands fully appreciates the importance of these principles and
rules, and they will inevitably within a short time command universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court,
in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed
the government on the model with which American are familiar, and which has proven best adapted
for the advancement of the public interests and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that the happiness,
peace, and prosperity of the people of the Philippine Islands and their customs, habits, and
prejudices, to follow the language of President McKinley, demand obeisance to authority, and royal
protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of
Spain to protect Spanish officials who were the representatives of the King. With the change of
sovereignty, a new government, and a new theory of government, as set up in the Philippines. It was
in no sense a continuation of the old, although merely for convenience certain of the existing
institutions and laws were continued. The demands which the new government made, and makes,
on the individual citizen are likewise different. No longer is there a Minister of the Crown or a person
in authority of such exalted position that the citizen must speak of him only with bated breath. "In the
eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man. We have no rank or station, except that of respectability and intelligence
as opposed to indecency and ignorance, and the door to this rank stands open to every man to

freely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon the
life and character and attainments and conduct of each person for himself. Every man may lawfully
do what he will, so long as it is notmalum in se or malum prohibitum or does not infringe upon the
qually sacred rights of others." (State vs.Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)
It is true that in England, from which so many of the laws and institutions of the United States are
derived, there were once statutes of scandalum magnatum, under which words which would not be
actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or
of any of the great officers of the Crown, without proof of any special damage. The Crown of
England, unfortunately, took a view less tolerant that that of other sovereigns, as for instance, the
Emperors Augustus, Caesar, and Tiberius. These English statutes have, however, long since,
become obsolete, while in the United States, the offense of scandalum magnatum is not known. In
the early days of the American Republic, a sedition law was enacted, making it an offense to libel the
Government, the Congress, or the President of the United States, but the law met with so much
popular disapproval, that it was soon repealed. "In this country no distinction as to persons is
recognized, and in practice a person holding a high office is regarded as a target at whom any
person may let fly his poisonous words. High official position, instead of affording immunity from
slanderous and libelous charges, seems rather to be regarded as making his character free plunder
for any one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d ed., p.
245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American
character and system of government. The gulf which separates this article from the spirit which
inspires all penal legislation of American origin, is as wide as that which separates a monarchy from
a democratic Republic like that of the United States. This article was crowded out by implication as
soon as the United States established its authority in the Philippine Islands. Penalties out of all
proportion to the gravity of the offense, grounded in a distorted monarchical conception of the nature
of political authority, as opposed to the American conception of the protection of the interests of the
public, have been obliterated by the present system of government in the Islands.
1aw ph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts against
executive officials, although its terms are broad enough to cover the entire official class. Punishment
for contempt of non-judicial officers has no place in a government based upon American principles.
Our official class is not, as in monarchies, an agent of some authority greater than the people but it
is an agent and servant of the people themselves. These officials are only entitled to respect and
obedience when they are acting within the scope of their authority and jurisdiction. The American
system of government is calculated to enforce respect and obedience where such respect and
obedience is due, but never does it place around the individual who happens to occupy an official
position by mandate of the people any official halo, which calls for drastic punishment for
contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.
Ministers of the Crown have no place under the American flag.
To summarize, the result is, that all the members of the court are of the opinion, although for
different reasons, that the judgment should be reversed and the defendant and appellant acquitted,
with costs de officio. So ordered.
Ostrand and Johns, JJ., concur.
Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused,
for the sole reason that the facts alleged in the information do not constitute a violation of article 256
of the Penal Code; for although that article is in force with respect to calumny, injuria, or insult, by
deed or word, against an authority in the performance of his duties or by reason thereof, outside of
his presence, it is repealed by the Libel Law in so far as it refers to calumny, injuria, or insult
committed against an authority by writing or printing, as was that inserted in the said information.
ROMUALDEZ, J., concurring:
I concur with the result. I believe that the responsibility of the accused has not been shown either
under article 256 of the Penal Code or under the Libel Law.
I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers
of the Crown," whom we do not have in our Government, and to calumny, injuria, or insult, by writing
or printing, committed against an authority in the performance of his duties or by reason thereof,
which portion was repealed by the Libel Law.
Johnson, Street, Avancea and Villamor, JJ., concur.

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, 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-executing but requires an implementing legislation for its enforcement. Corollarily,
they ask whether the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public 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 close bidding held on 18
September 1995 only two (2) bidders participated: 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.

Pertinent provisions of the bidding rules prepared by respondent GSIS state

I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
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 Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
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 patrimonyof 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 selfexecuting. 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 selfexecuting, 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 selfexecuting 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 sejudicially 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. 37During 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
failedcoup 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. Consequently, we cannot sustain respondents' claim
that theFilipino 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 building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
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 SUCH CITIZENS.
xxx xxx xxx
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?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we
say that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment

be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND 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 fullycontrolled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.
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 disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must 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 argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, 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 cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and 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 the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad 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 respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.

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 upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
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 First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
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
Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over nonmaterial values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nationstate can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to 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 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 nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of

stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
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 fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:

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 the Filipinos
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". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.

I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to

purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with 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 Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. 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 are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8

Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by

such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of whollyowned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving

our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion 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 over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited

from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the

global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.

This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.

TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
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 fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
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 the Filipinos
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". (Vol. III, p. 616,

Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or

c. Overall management and marketing expertise to

successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.

B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with 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 Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. 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 are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8

Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12

Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18

Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national

economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of whollyowned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."

The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.

The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion 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 over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,

qualifications on the setting up of other financial

structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right

primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First

policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Footnotes

1 See Sec. 10, par. 2, Art. XII, 1987 Constitution

2 Par I. Introduction and Highlights; Guidelines and Procedures: Second
Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.
5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.
6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 56; id., pp. 6-7.
7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining
Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.

Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and selfreliance.
25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and
high school levels. Without limiting the natural right of parents to rear their children,
elementary education is compulsory for all children of school age;
(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.

(4) Encourage non-formal, informal, and indegenous learning, independent, and outof-school study programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
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 the people of
the blessings of democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.
34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.
35 Webster's Third New International Dictionary, 1986 ed., p. 1656.
36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,
Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,

King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.
44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers
and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former Chief Justice Enrique M.
Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.

3 Sinco, Philippine Political Law, 11th ed, p. 112.

4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.
507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, 10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND
PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, 1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse discrimination in these
areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).
12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:
a. Business management expertise, tract record, and experience

b. Financial capability
c. Feasibility and acceptability of the proposed strategic plan for the
Manila Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.
2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.
3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140155.
4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.

13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24
SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.
Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.
25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.

27 Article XIV, section 3 of the 1973 Constitution reads:

"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National
Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.
30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).
31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee
celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property as a .national cultural
treasure," the following procedure shall be observed:
(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.
xxx xxx xxx

33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];
Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socioeconomic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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
petitioners 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. Petitioners Motion
for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners 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 theCertificate 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 candidates bio-data and his
program of government.
First, the constitutional and legal dimensions involved.

Implicit in the petitioners 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 selfexecuting,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 aCertificate 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, petitioners 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
The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January
2004. As observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for national
positions because the election process becomes a mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the
government. For the official ballots in automated counting and canvassing of votes, an additional page
would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
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
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even
the receipt of electoral contributions.15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.

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.
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State
interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover,
the Constitution guarantees that only bona fidecandidates for public office shall be free from any form
of harassment and discrimination.18 The determination ofbona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this
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 petitioners 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 petitioners 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.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes
*

On Official Leave.

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law.
2

See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R.
No. 118910, 246 SCRA 540, 564. "A provision which lays down a general principle, such as those found in
Art. II of the 1987 Constitution, is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No.
122156, 3 February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] held that the provisions in
Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v.
GSIS, Id. at 474.
3

See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila Prince
Hotel v. GSIS, supra note 2 at 436.
4

Kilosbayan, Inc. v. Morato, supra note 2.

"A searching inquiry should be made to find out if the provision is intended as a present enactment,
complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.
The inquiry demands a micro-analysis and the context of the provision in question." J. Puno, dissenting,
Manila Prince Hotel v. GSIS, supra note 2.
6

J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815.

Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a verified petition of
an interested party, refuse to give due course or cancel a certificate of candidacy if it is shown that said
certificate has been filed to put the election process in mockery or disrepute or to cause confusion
among the voters by the similarity of the names of the registered candidates or by other circumstances
or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for
which the certificate of candidacy has been filed and thus prevent a faithful determination of the true
will of the electorate.
10

SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election, motu proprio
refuse to give due course to or cancel a certificate of candidacy of any candidate for the positions of
President, Vice-President, Senator and Party-list:
I. The grounds:
a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and
legal qualifications of the office to which they aspire to be elected;
b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election
process in mockery or disrepute;
c. Candidates whose certificate of candidacy could cause confusion among the voters by the similarity of
names and surnames with other candidates; and
d. Candidates who have no bona fide intention to run for the office for which the certificate of candidacy
had been filed or acts that clearly demonstrate the lack of such bona fide intention, such as:
d.1 Candidates who do not belong to or are not nominated by any registered political party of national
constituency;
d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president,
respectively, nor senatorial candidates;
d.3 Candidates who do not have a platform of government and are not capable of waging a nationwide
campaign.
11

Jenness v. Fortson, 403 U.S. 431 (1971).

12

Rollo, pp. 469.

13

See Section 178, Omnibus Election Code, as amended.

14

See Section 239, Omnibus Election Code, as amended.

15

See Article XI, Omnibus Election Code, as amended.

16

See Section 2(1), Article IX, Constitution.

17

Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967, 19 SCRA
911.
18

See Section 9, Article IX, Constitution.

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 Taada, 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 Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez
argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to
Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of Congressmen, to be
elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid
Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall
be composed of 320 delegates apportioned among the existing representative districts according to

the number of their respective inhabitants: Provided, that a representative district shall be entitled to
at least two delegates, who shall have the same qualifications as those required of members of the
House of Representatives," 1 "and that any other details relating to the specific apportionment of
delegates, election of delegates to, and the holding of, the Constitutional Convention shall be embodied in
an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions
embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.
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 lawmaking 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 overrepresented, 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

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful
assembly, free expression, and the right of association are neither absolute nor illimitable rights; they
are always subject to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine
whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate
exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of any
political party or any other organization; and
2. any political party, political group, political committee, civic, religious, professional
or other organizations or organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in the filing
of his certificate, or
(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of
Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to peaceful assembly, because he
cannot be denied any permit to hold a public meeting on the pretext that the provision of said section
may or will be violated. The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The very party or
organization to which he may belong or which may be in sympathy with his cause or program of
reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or
to advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity
of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not
too formidable in character. According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate candidates for any elective
public office voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days
immediately preceding an election.
The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however, as
to render meaningless such a basic right. Their scope of legitimate activities, save
this one, is not unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain its validity. We do
so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an
election campaign or partisan political activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or party; and (c)
giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec.
50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative declaration that its enactment was
in response to a serious substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation." 12;
Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra,
failed to muster the required eight votes to declare as unconstitutional the limitation on the period for
(a) making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office; (b) publishing or distributing campaign literature or
materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A.
4880. 13
The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec.
8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo
Taada, 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 Taada 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. Taada, 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. Taada, 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.
# Footnotes
1 Sec. 1 of Res. No. 4.
2 Sec. 3, Res. No. 4.
3 Sec. 22, R.A. No. 6132.
4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec. 8(a) par. 2, R.A.
6132, G.R. No. L-32436, and In the matter of the petition for declaratory relief re
validity and constitutionality of Sec. 4, R.A. 6132, Hon. Guardson Lood, Judge, CFI,
Pasig, Rizal et al., petitioners, G.R. No. L-32439, Sept. 9, 1970.
5 Sec. 5, Art. VI, Constitution.
6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..
7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-14864, Nov. 23, 1960.
8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27, SCRA, p. 835, 858 et
seq.; Justice Douglas in Elfbrandt v. Russel, 384 US 11, 18-19, 1966.
9 27 SCRA, pp. 860-861.
10 27 SCRA, p. 865.
11 27 SCRA, p. 869.
12 27 SCRA, pp. 864-865, 868.
13 27 SCRA, pp. 869-870.

14 27 SCRA, p. 873.
15 27 SCRA, p. 872.
16 See his sponsorship speech of July 20, 1970.
17 84 Phil. 847, 852.
18 See his sponsorship speech on July 20, 1970.
19 See Justice Castro's separate opinion in Gonzales vs. Comelec, supra, 27 SCRA,
pp. 898-899 citing American Communications Association vs. Douds, 339 U.S. 383,
94 L. Ed., 925, 9437.
20 Pp. 4-5, 12, Answer in L-32432.
FERNANDO, J., concurring and dissenting:
1 Sec. 8(a), Republic Act No. 6132 (1970).
2 The Constitution provides: "The right to form associations or societies for purposes
not contrary to law shall not be abridged." Art. III, Sec. 1, par. 6.
3 Douglas, The Right of Association, 63 Col. Law Rev. 1363 (1963).
4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958) per Harlan, J. Cf.
Bates v. Little Rock, 361 US 516 (1960); Shelton v. Tucker, 364 US 479. (1960);
Louisiana ex rel. Gremillon v. NAACP, 366 US. 293 (1961); Communist Party v.
Subversive Activities Control Board, 367 US 1 (1961); Scales v. United States, 367
US 203 (1961); NAACP v. Button, 371 US 415 (1963); Gibson v. Florida Legislative
Investigation, Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel. State Bar
377 US 1 (1964); NAACP v. Alabama, 377 US 288 (1964).
5 Griswold v. Connecticut, 381 US 479, 483 (1965). In Elfbrandt v. Russel, 384 US
11, 18 (1966) he spoke of this right as a "cherished freedom." Cf. Keyishan v. Board
of Regents, 385 US 589 (1967).
6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting Wendell Philipps.
7 Palko v. Connecticut, 302 US 319, 323 (1937).
8 Section 8(a), Republic Act No. 6132 (1970).
9 L-27833, April 18, 1969, 27 SCRA 835.
10 Ibid., pp. 859-860.
11 De Jonge v. Oregon, 299 US 353, 365 (1937).
12 L-27833, April 18, 1969, 27 SCRA -835.

13 Sec. 50(a) of Republic Act 4880 (1967).

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), Taada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L18684, 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 aconstituent 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 submissionof 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

Elections 1 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 18year 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.

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 submissionof 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

Elections 1 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 18year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to

render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .
The above are just samplings from here, there and everywhere from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal. 1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a
convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is
denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the
superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is
an alter ego of the people. It is to be admitted that there are some American state decisions, the most
notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that
the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as
it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence,
subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are

agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate
discharge of its functions. 6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.
Footnotes
1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae
unless invited or allowed, by the Court.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817.
2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817.
3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O.
Zaldivar, Fred Ruiz Castro and Eugenio Angeles.
4 21 SCRA 821.
FERNANDO, J., concurring and dissenting:
1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in
Constitutional Law, pp. 1, 4-5 (1936). It was therein stated: "In a governmental and
proper sense, law is the highest act of a people's sovereignty while their government
and Constitution remain unchanged. It is the supreme will of the people expressed in
the forms and by the authority of their Constitution. It is their own appointed mode
through which they govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all legislative power, these
laws are supreme over all subjects unforbidden by the instrument itself. The calling of
a convention, and regulating its action by law, is not forbidden in the Constitution. It is
a conceded manner, through which the people may exercise the rights reserved in
the bill of rights. ... The right of the people to restrain their delegates by law cannot
be denied, unless the power to call a convention by law, and the right of self
protection be also denied."
2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all
government authority emanates from them." .

3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the
constitutional convention as a sovereign body, and that characterization perfectly
defines the correct view, in our opinion, of the real nature of that august assembly. It
is the highest legislative body known to freemen in a representative government. It is
supreme in its sphere. It wields the powers of sovereignty, specially delegated to it,
for the purpose and the occasion, by the whole electoral body, for the good of the
whole commonwealth. The sole limitation upon its powers is that no change in the
form of government shall be done or attempted. The spirit of republicanism must
breathe through every part of the framework, but the particular fashioning of the parts
of this framework is confided to the wisdom the faithfulness, and the patriotism of this
great convocation, representing the people in their sovereignty." The Sproule
decision was cited with approval four years later by the Mississippi Supreme Court
anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of
Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the
Sproule dictum.
4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).
5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections
shall have exclusive charge of its enforcement and administration of all laws relative
to the conduct of elections and shall exercise all other functions which may be
conferred upon it by law." Cf. Abcede v. Imperial, 103 Phil. 136 (1958).
6 "According to Sec. 14 of the 1971 Constitutional Convention Act
(1970):"Administration and Technical Assistance. -- All government entities, agencies
and instrumentalities, including the Senate and House of Representatives, shall
place at the disposal of the Convention such personnel premises, and furniture
thereof as can, in their judgment be spared without detriment to public service,
without cost, refund or additional pay."

G.R. No. L-35925 January 22, 1973

CHARITO PLANAS, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35929 January 22, 1973
PABLO C. SANIDAD, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35940 January 22, 1973
GERARDO ROXAS, etc., et al. petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35941 January 22, 1973
EDDIE B. MONTECLARO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35942 January 22, 1973
SEDFREY A. ORDOEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.
G.R. No. L-35948 January 22, 1973
VIDAL TAN, et al., petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35953 January 22, 1973
JOSE W. DIOKNO, et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondents.
G.R. No. L-35961 January 22, 1973
JACINTO JIMENEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35979 January 22, 1973
ERNESTO HIDALGO, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
Ramon A. Gonzales for petitioner Charito Planas.
Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.
Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.
Lorenzo M. Taada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.
Raul M. Gonzales in his own behalf.
Ernesto Hidalgo in his own behalf.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was
in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree
"has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. No. L-35940), by Eddie B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoez,
et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No.
L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their
answers "not later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the aforementioned last case - G.R.
No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a short period of
time within which "to submit their notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal

postponement of the plebiscite by the President reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections the Court deemed it more imperative
to defer its final action on these cases.
In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent
motion," praying that said case be decided "as soon as possible, preferably not later than January
15, 1973." It was alleged in said motion, inter alia:
6. That the President subsequently announced the issuance of Presidential Decree
No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];
7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose
"[1] The New Society;
"[2] Reforms instituted under Martial Law;
"[3] The holding of a plebiscite on the proposed new Constitution and
when (the tentative new date given following the postponement of the
plebiscite from the original date of January 15 are February 19 and
March 5);
"[4] The opening of the regular session slated on January 22 in
accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies:
"[1] Do you approve of the New Society?
"[2] Do you approve of the reform measures under martial law?
"[3] Do you think that Congress should meet again in regular
session?
"[4] How soon would you like the plebiscite on the new Constitution to
be held?" [Bulletin Today, January 5, 1973;
9. That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;
10 That on January 10, 1973, it was reported that one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions would be as follows:
"[1] Do you like the New Society?
"[2] Do you like the reforms under martial law?

"[3] Do you like Congress again to hold sessions?

"[4] Do you like the plebiscite to be held later?
"[5] Do you like the way President Marcos is running the affairs of the
government?" [Bulletin Today, January 10, 1973; additional question
emphasis.]
11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies:
"[1] Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
"[2] Do you approve of the new Constitution?
"[3] Do you want a plebiscite to be called to ratify the new
Constitution?
"[4] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution ?
"[5] If the elections would not be held, when do you want the next
elections to be called?
"[6] Do you want martial law to continue?" [Bulletin Today, January
11, 1973; emphasis supplied.]
12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;
13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it
is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3

The vote of the Citizens Assemblies should already be considered

the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want
him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."
Attention is respectfully invited to the comments on "Question No. 3", which reads:
"QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely:
Do you approve of the New Constitution?"
in relation to the question following it:

"Do you still want a plebiscite to call to ratify the new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;
16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;
17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the
people through the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has been ratified;
19. That, in such a situation, the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.
20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;
21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer that
the proposed plebiscite be prohibited has now collapsed and that a free plebiscite
can no longer be held.
At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 filed a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying
... that a restraining order be issued enjoining and restraining respondent
Commission on Elections, as well as the Department of LocaI Governments and its
head, Secretary Jose Rono; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all
other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned,
the so-called Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period comprised between January 10 and

January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental
Urgent Motion.
In support of this prayer, it was alleged
3. That petitioners are now before this Honorable Court in order to ask further that
this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of Local
Governments and its head, Secretary Jose Rono; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and reporting
to the President the supposed Citizens' Assemblies referendum results allegedly
obtained when they were supposed to have met during the period between January
10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;
4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void
particularly insofar as such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution because:
(a) The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so-called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;
(b) Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
(c) The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so-called Citizens' Assemblies;
(d) It is seriously to be doubted that, for lack of material time, more
than a handful of the so-called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning:
"Provincial governors and city and municipal mayors
had been meeting with barrio captains and community
leaders since last Monday (January 8, 1973) to thresh
out the mechanics in the formation of the Citizens'

Assemblies and the topics for discussion," (Bulletin

Today, January 16, 1973).
It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year (Daily Express, January 1, 1971), and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organizations, it is too much to believe that such assemblies
could be organized at such a short notice.
5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because:
(a) The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction"
so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86, and the instructions incidental thereto clearly fall
within the scope of this petition;
(b) In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November
30, 1972'; and finally,
(c) Petitioners prayed for such other relief which may be just and
equitable. (p. 39, Petition).
"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of:
"a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ... ."
(Election Code of 1971, Sec. 3).

6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
and democracy, and the petitioners herein because:
(a) After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed Constitution, on the other,
thereby creating confusion, if not chaos;
(b) Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the so-called Citizens'
Assemblies will argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has placed
Presidential Decrees Nos. 73 and 86 beyond the reach and jurisdiction of this
Honorable Court.
On the same date January 15, 1973 the Court passed a resolution requiring the respondents in
said case G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the
case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still
going on and the public there present that the President had, according to information conveyed
by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the
writer read Proclamation No. 1102 which is of the following tenor:
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a pIebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
(Sgd.) FERDINAND E.
MARCOS
President of the
Philippines
By the President:
ALEJANDRO MELCHOR
Executive Secretary
Such is the background of the cases submitted for Our determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way of affirmative defenses: 1) that the "questions raised"
in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had
plenary authority to propose not only amendments but a Constitution which would supersede the

present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for
this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite
under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some Member have
preferred to merely concur in the opinion of one of our colleagues.
What follows is my own view on these cases.
The first question for Our determination is whether We have authority to pass upon the validity of
Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said
question is a political one. I am of the opinion on which the Members of the Court are unanimous
that the contention of the Solicitor General is untenable and that the issue aforementioned is a
justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so
that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a
long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of
the Executive, 1 but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935
Constitution, 2 which expressly provides for the authority of this Court to review cases involving said issue.

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its
authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution.
Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free to postulate any
amendment it may deem fit to propose save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people although insofar only as the
determination of the proposals to be made and formulated by said body is concerned but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals "are submitted to the
people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.
As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the
Filipino 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 funds therefor," I
find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained
in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at
any time later, the proper parties may then file such action as the circumstances may justify.
With respect to the question whether or not martial law per se affects the validity of a submission to
the people for ratification of specific proposals for amendment of the Constitution, I consider this
matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised, however, in any of the
cases under consideration, said cases having been filed before the issuance of such Proclamation,
although the petitioners in L-35948 maintain that the issue on the referral of the Proposed

Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question
without the most thorough discussion possible under the circumstances. In fairness to the petitioners
in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of
dismissing the case as moot and academic, said petitioners should be given a reasonable period of
time within which to move in the premises.
Recapitulating the views expressed by the Members of the Court, the result is this:
1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No.
73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become
moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to
uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art.
XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that that issue involves question of fact which cannot be predetermined, and that Martial
Law per se does not necessarily preclude the factual possibility of adequate freedom for the
purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and
myself are of the opinion that question of validity of said Proclamation has not been
properly raised before the Court, which, accordingly, should not pass upon such
question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No.
1102 has been submitted to and should be determined by the Court, and that the
"purported ratification of the Proposed Constitution ... based on the referendum
among Citizens' Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such unfortunate
drawback notwithstanding, "considering all other related relevant circumstances, ...
the new Constitution is legally recognizable and should be recognized as legitimately
in force.

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the issue whether
the Proposed Constitution has been ratified by the people or not, "in the absence of
any judicially discoverable and manageable standards," since the issue "poses a
question of fact.
7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee and the writer similarly voted, except as regards
Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of
time within which to file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said
Case No.
L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther
and decide on the merits everyone of the cases under Consideration.
WHEREFORE, all of the aforementioned cases are hereby dismissed, without special
pronouncement as to costs.
It is so ordered.
Makasiar, J., concur.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:

The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,

decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."
Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:
I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.
III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.
In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.
We therefore vote to dismiss the petitions.
TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.
The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof,inter alia, that "since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) 1 are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people." 2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of
the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV
of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall
take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President absent any showing of
willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interimNational Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the

manner ordained in the Constitution 6 since such convention controlled interim National Assembly may
continue proposing Constitutional amendments by mere majority vote in contrast to the regular national
assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.
To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.
I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.
It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to

matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.
The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.
In all other respects, the opinion of Justice Barredo, merits my concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.
I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.
At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.
Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on
Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area
open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed
amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that
the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar,
speaking for the Court in Del Rosario v. Comelec, 3 "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 Once its work of drafting has been
completed, it could itself direct the submission to the people for ratification as contemplated in Article XV
of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the

decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly
could result in the work of the Convention being rendered nugatory. The view has been repeatedly
expressed in many American state court decisions that to avoid such undesirable consequence, the task
of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of
an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his
capacity as agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so. 7 It is understandable why it should be
thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be held
as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "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." 9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:
As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset. 1
(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.
(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.
(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed

insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.
Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the same
have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By

this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.
To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is afait accompli, I cannot see how such a possible flaw
can be of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak

for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.
Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.
Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.
I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"
Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said

reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.
Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed

practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extraconstitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case,
could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for
resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of

the proposed Constitution, the dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not
inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding
the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree
further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the
board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for
the preparation and transmission of plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the canvass by the Commission on
Elections and the proclamation of the results by said Commission, for supplies and services needed for
the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate
rules and regulations necessary to carry out the provisions of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days on December 18 and
19, 1972.
On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential

Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"
On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:
GENERAL ORDER NO. 20
WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a
plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's
preference has been ascertained;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the
Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, do hereby order that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.) FERDINAND E.
MARCOS
President
Republic of the
Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:
(1) Do you approve of Citizens' Assemblies as the base of popular government to
decide issues of national interests?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
(5) If the election would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and shortcircuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force." 4
On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'

Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.
This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;

WHEREAS, Citizens Assemblies were created in barrios in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
New Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangay (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
FERDI
NAND
E.
MARC
OS
Preside
nt of
the

Philippi
nes
By the President:
ALEJANDRO MELCHOR
Executive Secretary
And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner

that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.
I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
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 the 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.
It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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 which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:
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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint 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 ...
xxx xxx xxx
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 1 of Article XV.
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the

amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them the election of officers, national, state, county, township
the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.
2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:
Sec. 2. Applicability of this Act. All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. In order that a qualified
voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:
When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extralegal. (Black's Constitutional Law, Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they 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. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however unanimous, on a
proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Friersonsupra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 3536 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the

sacramental provisions of the Constitution, those who would thereafter desire to

violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the

results of the voting in the barangays should not be made the basis for the proclamation of the ratification
of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.
At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Separate Opinions
MAKALINTAL and CASTRO, JJ., concurring:
The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly
modified or repealed by the regular National Assembly." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:
I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.
III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.
In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.
There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.

TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.
The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof,inter alia, that "since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) 1 are in favor of the New Constitution, the
Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be
deemed ratified by the Filipino people." 2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of
the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV
of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall
take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President absent any showing of
willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interimNational Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the
manner ordained in the Constitution 6 since such convention controlled interim National Assembly may
continue proposing Constitutional amendments by mere majority vote in contrast to the regular national
assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.
To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.
I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.
It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.
In all other respects, the opinion of Justice Barredo, merits my concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.
I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.
Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.
Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on
Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area
open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed
amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that
the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar,
speaking for the Court in Del Rosario v. Comelec, 3 "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 Once its work of drafting has been
completed, it could itself direct the submission to the people for ratification as contemplated in Article XV
of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the
decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly
could result in the work of the Convention being rendered nugatory. The view has been repeatedly
expressed in many American state court decisions that to avoid such undesirable consequence, the task
of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of
an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his

capacity as agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so. 7 It is understandable why it should be
thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be held
as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "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." 9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:
With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply

giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:
As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset. 1
(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.
(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.
(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do

not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.
Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the same
have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval

of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.
To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "suffrage may be exercised by male citizens of the Philippines
not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is afait accompli, I cannot see how such a possible flaw
can be of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.
Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.
I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"
Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard but have we

not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.
Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and

Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extraconstitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case,
could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for
resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention, and appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of
the proposed Constitution, the dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not
inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding
the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree
further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the
board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for
the preparation and transmission of plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the canvass by the Commission on

Elections and the proclamation of the results by said Commission, for supplies and services needed for
the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate
rules and regulations necessary to carry out the provisions of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days on December 18 and
19, 1972.
On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"
On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20

WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a
plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's
preference has been ascertained;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the
Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, do hereby order that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.) FERDINAND E.
MARCOS
President
Republic of the
Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.
At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies

would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:
(1) Do you approve of Citizens' Assemblies as the base of popular government to
decide issues of national interests?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
(5) If the election would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "Do
you approve of the new Constitution?", in relation to the question following it: "Do you still want a
plebiscite to be called to ratify the new Constitution?", would be an attempt to bypass and shortcircuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen then the case before this
Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the people through the
Citizens' Assemblies, it would be announced that the proposed Constitution with all its defects, both
congenital and otherwise, has been ratified" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force." 4
On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the

public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.
This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;

WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangay (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
New Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangay (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
FERDI
NAND
E.
MARC
OS
Preside
nt of
the
Philippi
nes
By the President:
ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to

answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.
I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
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 the 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.
It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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 which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint 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 ...
xxx xxx xxx
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 1 of Article XV.
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the

Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them the election of officers, national, state, county, township
the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.
2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
Sec. 2. Applicability of this Act. All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. In order that a qualified
voter may vote in any regular or special election or in any plebiscite, he must be

registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:
When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extralegal. (Black's Constitutional Law, Second Edition, pp. 47-48).
The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they 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. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however unanimous, on a
proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Friersonsupra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 3536 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter desire to
violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the basis for the proclamation of the ratification
of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.
At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.
Footnotes
Concepcion, C.J. concurring:
1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al.,
L- 35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967;
Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v.
COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug.
31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967; Pelayo v. Auditor
General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964;
Guevara v. Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan.
31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of
Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30,
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al.,
L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L15138, July 31, 1961; Cu Bu Liong v. Estrella, et al.,
L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al.,
L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31,
1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen
Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Secretary of Public Works
and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards
Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31,
1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v.
Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.
2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of
Section 5, Article X thereof].
Teehankee, J., concurring:

1 Such Citizens Assemblies, as stated in the proclamation, were created in barrios in

municipalities and in districts/wards in chartered cities pursuant to Presidential
Decree No. 86, dated December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six months, fifteen years of age or
over, citizens of the Philippines and who are registered in the list of Citizen Assembly
members kept by the barrio, district or ward secretary." (2nd whereas clause)
2 6th whereas clause.
3 The conduct of such elections (or plebiscite) is, under Article X of the Constitution,
entrusted to the Commission on Elections which has "exclusive charge" (See Justice
Barredo's separate opinion, p. 7). Under Article V of the Constitution, the right of
suffrage is limited to qualified and duly registered voters, "who are 21 years of age or
over and are able to read and write." Tolentino vs. Comelec, infra, in denying
reconsideration, prohibited the submittal in an advance election of the Con-Cons
Organic Res. No. 1 proposing to lower the voting age to 18, as a piece-meal and
incomplete amendment and rejected the contention "that the end sought to be
achieved is to be desired." As per Barredo, J., "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 be actually in force."
4 Article VI, sec. 23, par. 2 of the Constitution, provides that "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."
5 Cf. Tolentino vs. Comelec, L-34150, Oct. 16, 1971 and Resolution on motion for
reconsideration with concurring opinions. Nov. 4, 1971.
6 See text, Presidential Decree No. 73.
7 Article XVI, sec. 1, par. 1 of the proposed Constitution.
Barredo, J., concurring and dissenting:
1 It was agreed in the deliberations that the validity of Presidential Decree No. 73
would be passed upon as if Proclamation 1102 did not exist, and afterwards, for
those who would like to express their views on the matter, the validity of
Proclamation 1102 itself, hence the tenses and moods in this discussion.
2 Under the Constitution of 1935, both Article X and Article XV use the same word
"election", hence, the plebiscite contemplated in the latter Article must be deemed to
be intended to be included among the elections placed under the charge of the
Commission, irrespective of the form to be employed therein.
Fernando, J., concurring and dissenting:
1 327 US 304 (1946).
2 Ex parte Kerby 205 P. 279 (1922).
3 L-32476, Oct. 20, 1970, 35 SCRA 367.

4 Ibid, 369.
5 Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 (1883); Hatch v. Stoneman, 6 P. 734,
66 Cal. 632 (1885); Macmillan v. Blattner 25 NW 245, 67 Iowa 287 (1895); State v.
Powell, 27 So 297, 77 Miss. 543 (1900); Hammond v. Clark, 71 SE 479, 136 Ga. 313
(1911); State v. Hall, 171 NW 213, 44 ND 459 (1919); Hamilton v. Vaughan, 179 NW
533, 212 Mich. 31 (1920) ; State v. Smith, 138 NE 881, 105 Ohio St. 570 (1922):
Looney v. Leeper, 292 P. 365, 145 Okl. 202 (1930); School District v. City of Pontiac,
247 NW 474, 262 Mich. 338 (1933).
6 According to Art. VI, Sec. 23. par. 2 of the Constitution: "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."
7 Cf. Hutcheson v. Gonzales, 71 P. 2d 140 (1937) : State Smith, 184 SW 2d 598
(1945).
8 L-28196 and 28224, November 9, 1967, 21 SCRA 774.
9 Ibid, 801-802.
10 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil.
56 (1937); Planas v. Gil, 67 Phil. 62 (1939): Tan v. Macapagal, L-24161, Feb. 29,
1972, 43 SCRA 677.
Zaldivar, J., dissenting:
1 Reserve Lite Ins. Co., Dallas, Tex. v. Franfather, 225 P. 2d 1035, 1036, 123 Colo.
77, 39 A.L.R. 2d 146; Appeal of Frank Foundries Corporation, 56 N.E. 2d 649, 652,
653, 323, III. App. 594 in 27A Words and Phrases, p. 145.
2 Krivenko vs. Register of Deeds, 79 Phil. 461; Philippine Association of Colleges
and Universities vs. Secretary of Education, 97 Phil. 806; Hebron vs. Reyes, 104
Phil. 175.
3 Annex 1 of the Answer of the Respondents in L-35948 shows the resolution of the
Constitutional Convention of November 22, 1972, proposing to President Marcos that
a decree be issued calling for a plebiscite is Resolution No. 29. "Resolution No.
5843" is as stated in Presidential Decree No. 73.
4 Words within quotation marks in this paragraph are as quoted from the Urgent
Motion For Decision in L-35948, dated January 12, 1973.
5 As quoted from General Order No. 20, January 7, 1973.

Today is Tuesday, November 25, 2014

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

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

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

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

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

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

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

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

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose
amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree

No. 991 calling for a national referendum on October 16, 1976 for the Citizens
Assemblies ("barangays") to resolve, among other things, the issues of martial law,
the I . assembly, its replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of his present
powers.1

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

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

The questions ask, to wit:

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

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

PROPOSED AMENDMENTS:

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

2. The interim Batasang Pambansa shall have the same powers and its members
shall have the same functions, responsibilities, rights, privileges, and disqualifications
as the interim National Assembly and the regular National Assembly and the
members thereof. However, it shall not exercise the power provided in Article VIII,
Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election
and selection of the members, convene the interim Batasang Pambansa and preside
over its sessions until the Speaker shall have been elected. The incumbent President
of the Philippines shall be the Prime Minister and he shall continue to exercise all his
powers even after the interim Batasang Pambansa is organized and ready to
discharge its functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and
functions, and discharge the responsibilities of the regular President (Prime Minister)
and his Cabinet, and shall be subject only to such disqualifications as the President
(Prime Minister) may prescribe. The President (Prime Minister) if he so desires may
appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may
deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial
law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter whether
of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments
shall continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by I majority of the votes cast in the
referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control
of the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father

and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to
enjoin the Commission on Elections from holding and conducting the Referendum
Plebiscite on October 16; to declare without force and effect Presidential Decree
Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well
as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to

supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on

October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to
the incumbent President to exercise the constituent power to propose amendments
to the new Constitution. As a consequence, the Referendum-Plebiscite on October
16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that petitioners
have no standing to sue; the issue raised is political in nature, beyond judicial
cognizance of this Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the referendum-plebiscite
is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the
1971 Constitutional Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is expressly conferred on
the interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L- 44714, to restrain the implementation of Presidential Decrees relative
to the forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial
Law, the incumbent President cannot act as a constituent assembly to propose
amendments to the Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the proposed amendments in
such a short period of time for deliberation renders the plebiscite a nullity; to lift
Martial Law, the President need not consult the people via referendum; and allowing
15-.year olds to vote would amount to an amendment of the Constitution, which
confines the right of suffrage to those citizens of the Philippines 18 years of age and
above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.

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

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

..." The Supreme Court has the last word in the construction not only of treaties and
statutes, but also of the Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited power, so
that the Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the controversy refers to the legality or validity of
the contested act, that matter is definitely justiciable or non-political. What is in the
heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to perform
such act or to assume the power of a constituent assembly. Whether the amending
process confers on the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how it may
be amended, the judiciary as the interpreter of that Constitution, can declare whether
the procedure followed or the authority assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of nonjusticiability, that the question of the President's authority to propose amendments
and the regularity of the procedure adopted for submission of the proposal to the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle.
Is it not that the people themselves, by their sovereign act, provided for the authority
and procedure for the amending process when they ratified the present Constitution
in 1973? Whether, therefore, the constitutional provision has been followed or not is
the proper subject of inquiry, not by the people themselves of course who exercise
no power of judicial but by the Supreme Court in whom the people themselves
vested that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry
must be done a prior not a posterior i.e., before the submission to and ratification by
the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline
the preference of the Court's majority to treat such issue of Presidential role in the
amending process as one of non-political impression. In the Plebiscite Cases, 11 the
contention of the Solicitor General that the issue on the legality of Presidential
Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification
or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases 12 involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the
Filipino people of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned

plebiscite cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971
habeas corpus cases, questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation suspending the
privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as
it adhered to the former case, which view We, accordingly, abandoned and refused
to apply. For the same reason, We did not apply and expressly modified, in Gonzales
vs. Commission on Elections, the political-question theory adopted in Mabanag vs.
Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito,
urged by the Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are, however,
substantially the same as those given in support on the political question theory
advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the aforementioned habeas corpus
cases partakes of the nature and effect of a stare decisis which gained added weight
by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election.

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

In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:

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

There are, therefore, two periods contemplated in the constitutional life of the nation,
i.e., period of normalcy and period of transition. In times of normally, the amending
process may be initiated by the proposals of the (1) regular National Assembly upon
a vote of three-fourths of all its members; or (2) by a Constitutional Convention called
by a vote of two-thirds of all the Members of the National Assembly. However the
calling of a Constitutional Convention may be submitted to the electorate in an
election voted upon by a majority vote of all the members of the National Assembly.
In times of transition, amendments may be proposed by a majority vote of all the
Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace and order in
the country." Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted
on the Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could convene the
interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza;
as a matter of fact, the proposal that it be convened 'immediately', made by Delegate
Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution
was submitted, the people voted against the convening of the interim National
Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the proposed
question of whether the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates of the

Constitutional Convention, who were deemed automatically members of the I interim

National Assembly, were against its inclusion since in that referendum of January,
1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals
of amendment to a Constitution, that body is not in the usual function of lawmaking. lt
is not legislating when engaged in the amending process.16 Rather, it is exercising a
peculiar power bestowed upon it by the fundamental charter itself. In the Philippines,
that power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of the Transitory Provisions (for the National
Assembly). While ordinarily it is the business of the legislating body to legislate for
the nation by virtue of constitutional conferment amending of the Constitution is not
legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The
distinction, however, is one of policy, not of law. 17 Such being the case, approval of
the President of any proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary cases of legislation.
The President has nothing to do with proposition or adoption of amendments to the
Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis

government today are more or less concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as
imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any two or more
types of power, and certainly a total disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal
times the separation of powers forms a distinct obstruction to arbitrary governmental

action. By this same token, in abnormal times it may form an insurmountable barrier
to a decisive emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must work
together in unanimity of purpose and action, even if this means the temporary union
of executive, legislative, and judicial power in the hands of one man. The more
complete the separation of powers in a constitutional system, the more difficult and
yet the more necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive is
taken for granted; in the latter it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily established and more trustworthy than
presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for the
executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power had
not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a

conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus: 23

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

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or

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

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention

delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative

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

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the

interim National Assembly during the transition period. However, the initial convening
of that Assembly is a matter fully addressed to the judgment of the incumbent
President. And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference. Likewise, in
the period of transition, the power to propose amendments to the Constitution lies in
the interim National Assembly upon special call by the President (See. 15 of the
Transitory Provisions). Again, harking to the dictates of the sovereign will, the
President decided not to call the interim National Assembly. Would it then be within
the bounds of the Constitution and of law for the President to assume that constituent
power of the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power. This, of course,
is not to say that the President has converted his office into a constituent assembly of
that nature normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in
operation, the urges of absolute necessity render it imperative upon the President to

act as agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court possesses
no capacity to propose amendments without constitutional infractions. For the
President to shy away from that actuality and decline to undertake the amending
process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant voices of the people
reigns supreme. After all, constituent assemblies or constitutional conventions, like
the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of

January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President
of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of
the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent issuance
of Presidential Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National Referendum-Plebiscite on
October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily

seen. In the Philippines, a republican and unitary state, sovereignty "resides in the
people and all government authority emanates from them .30 In its fourth meaning,

Savigny would treat people as "that particular organized assembly of individuals in

which, according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional legislator, namely the
people, is sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a
self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to

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

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you

want martial law to be continued? - is a referendum question, wherein the 15-year
olds may participate. This was prompted by the desire of the Government to reach
the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on
the proposed amendments, only those of voting age of 18 years may participate.
This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18

years old and above which will have valid bearing on the results. The fact that the
voting populace are simultaneously asked to answer the referendum question and
the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily dispelled by the
provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of
voters eighteen years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of the ballots of
voters eighteen years and above contained in another ballot box. And, the results of
the referendum-plebiscite shall be separately prepared for the age groupings, i.e.,
ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A

"referendum" is merely consultative in character. It is simply a means of assessing
public reaction to the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the executive power of the
President. 39 It is participated in by all citizens from the age of fifteen, regardless of
whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite,"
on the other hand, involves the constituent act of those "citizens of the Philippines
not otherwise disqualified by law, who are eighteen years of age or over, and who
shall have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election Literacy, property
or any other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, 41 is impressed with a
mild character recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all
the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on
the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution,
which is already a settled matter. 43 Even government employees have been held by
the Civil Service Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too

short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been living
with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's suffrage amendment
to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to append as ordinance the complicated TydingsKocialskowski was published in only three consecutive issues of the Official Gazette
for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of
the President and Vice President, and the creation of the Commission on Elections,
20 days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held
not later than three months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second, it is only when there is
deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the approbation
of the people, hence, it must be done contemporaneously. 47 In the words of
Jameson, "(a)n alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early while that

sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not
again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

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

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

3. Is the submission to the people of the proposed amendments within the time frame
allowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique
M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma,
Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question
posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and
Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while
Associate Justices Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus raising serious
doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people.

Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore beyond the competence
and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that
prescinding from the President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

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

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

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

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

First Issue

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

Proposal to amend the Constitution is a highly political function performed by the

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

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

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

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent

assembly-violates the Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales vs.
Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786787).

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

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

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

Accordingly, when the grant of power is qualified, conditional or subject to limitations,

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

So it is in the situation here presented. The basic issue is the constitutional validity of
the presidential acts of proposing amendments to the Constitution and of calling a
referendum-plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise of the authority

claimed or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a question purely
of legality determinable thru interpretation and construction of the letter and spirit of
the Constitution by the Court as the final arbiter in the delineation of constitutional
boundaries and the allocation of constitutional powers.

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

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

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here
and elsewhere. Its solution, I believe, can be found and unraveled only by a critical
assessment of the existing legal order in the light of the prevailing political and
factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the

proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there be any
such prescription for the amendatory process as invariable there is because one of
the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which
formal changes in the fundamental law may be effected the same would ordinarily be
the controlling criterion for the validity of the amendments sought.

Unfortunately, however, during the present transition period of our political

development, no express provision is extant in the Constitution regarding the agency
or agent by whom and the procedure by which amendments thereto may be
proposed and ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at least two distinctly

in the transition from the old system of government under the 1935 Constitution to
the new one established by the 1973 Constitution.

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

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

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

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

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

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

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.

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

unequivocally contemplate amendments after the regular Government shall have

become fully operative, referring as they do to the National Assembly which will
come into being only at that time.

In the face of this constitutional hiatus, we are confronted with the dilemma whether
amendments to the Constitution may be effected during the aforesaid first stage and,
if in the affirmative, by whom and in what manner such amendments may be
proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a

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

During the first stage of the transition period in which the Government is at present which is understandably the most critical - the need for change may be most
pressing and imperative, and to disavow the existence of the right to amend the
Constitution would be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic conception of the

Constitution by depriving it of its means of growth. Such a result obviously could not
have been intended by the framers of the fundamental law.

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

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

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

of the interim National Assembly, but as well deride their overwhelming approval of
the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening

developments, the logical query that compels itself for resolution is: By whom, then,
may proposals for the amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be

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

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

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

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

In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendumplebiscite 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 wideranging 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 threefourths 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. Comelec 16, 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 cases 19 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 Commissioner 21, "(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 cases 22, "(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 Tolentino 43 (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 treatymaking power". 44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary

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

The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable since as
stressed even in Javellana the issue of validity of the President's proclamation of
ratification of the Constitution presented a justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent

assembly or the Constitutional Convention called fol- the purpose, in proposing
amendments to the people for ratification followed the constitutional procedure and
on the amending process is perforce a justiciable question and does not raise a
political question of police or wisdom of the proposed amendments, which if
Submitted, are reserved for the people's decision.

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

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

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

III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writer's view of the nullity

of the questioned decree of lack of authority on the President's part to excercise the
constituent power, I hold that the doctrine of fair and proper submission first
enunciated by a simple majority of by Justices in Gonzales and subsequently
officially adopted by the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed

amendments. As ruled by this Court in Tolentino where "the proposed amendment in
question is expressly saddled with reservations which naturally impair, in great
measures, its very essence as a proposed constitutional amendment" and where
"the way the proposal is worded, read together with the reservations tacked to it by
the Convention thru Section 3 of the questioned resolution, it is too much of a
speculation to assume what exactly the amendment would really amount lo in the
end. All in all, as already pointed out in our discussion of movants' first ground, if this
kind of amendment is allowed, the Philippines will appear before the world to be in
the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force", there
can be no proper submission.

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

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

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

... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that is
legislation direct from the people, an expression of their sovereign will - is that it can
only be amended by the people expressing themselves according to the procedure

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

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

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

3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications reported
in the daily newspapers, it is manifest that there is no proper submission of the
proposed amendments. Nine (9) proposed constitutional amendments were officially
proposed and made known as per Presidential Decree No. 1033 dated, September
22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the Constitution. Former
Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that "there is no

urgency in approving the proposed amendments to the Constitution and suggested

that the question regarding charter changes be modified instead of asking the people
to vote on hurriedly prepared amendments". He further pointed out that "apart from
lacking the parliamentary style in the body of the Constitution, they do not indicate
what particular provisions are being repealed or amended". 52

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

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

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

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

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld

from the interim Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang

Pambansa within 30 days from the election and selection of the members (for which
there is no fixed date) the incumbent President apparently becomes a regular
President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet

in the Constitution such as the prohibition against the holding of more than one office
in the government including government-owned or -controlled corporations would
appear to be eliminated, if not prescribed by the President;

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

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

Under Amendment No. 7, the barangays and Sanggunians would apparently be

constitutionalized, although their functions, power and composition may be altered by
law. Referendums (which are not authorized in the present 1973 Constitution) would
also be constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the
Constitution may thereafter be effected by referendum, rather than by the rigid and
strict amending process provided presently in Article XVI of the Constitution;

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

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

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

THE REFERENDUM ISSUES

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

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

A substitute legislative body is contemplated to help the President in promulgating

laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate
constant amendments. But care should be taken that this new legislative body would
not become a mere rubber stamp akin to those of other totalitarian countries. It
should be given real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has expressed the
desire that among the powers he would like to have with regard to the proposed
legislative body is that of abolishing it in case 'there is a need to do so'. As to what
would occasion such a need, only the President himself can determine. This would
afford the Chief Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed ambivalent attitudes.
Some of them, remembering the turmoil that prevailed before the declaration of
martial law, have expressed the fear that its lifting might precipitate the revival of the
abuses of the past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since the peace

and order situation has already stabilized and the economy seems to have been
parked up.

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

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

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

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

. . . Whoever he may be and whatever position he may happen to have, whether in

government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to discover for ourselves what
our role is in the successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let all of us then
pass away as a pace in the development of our country. but let the Constitution
remain firm and stable and let institutions grow in strength from day to day, from
achievement to achievement, and so long as that Constitution stands, whoever may

the man in power be, whatever may his purpose be, that Constitution will guide the
people and no man, however, powerful he may be, will dare to destroy and wreck the
foundation of such a Constitution.

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

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

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

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

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

BARREDO, J.,: concurring:

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

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

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

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body

came out when the President express his desire to share his powers with other
people.

Aware of this, a five-man Committee members of the Philippine Constitution

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

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

assembly and that they have once proposed that the President create instead the
Sangguniang Pambansa or a legislative advisory body, then the proposal to create a
new legislative must necessarily be referred to the people.

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

On August 6, a meeting of the national directorate of PKB was held to discuss

matters pertaining to the stand of the PKB with regards to the convening of a new
legislative body. The stand of the PKB is to create a legislative advisory council in
place of the old assembly. Two days after, August 8, the Kabataang Barangay held a
symposium and made a stand which is the creation of a body with full legislative
powers.

A nationwide clamor for the holding of meeting in their respective localities to discuss
more intellegently the proposal to create a new legislative body was made by various
urban and rural Sangguniang Bayans.

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

On August 7, Local Government Secretary, Jose A. Rono granted the request by

convening the 91 member National Executive Committee of the Pambansang
Katipunan ng mga Sanggunian on August 14 which was held at Session Hall,
Quezon City. Invited also to participate were 13 Regional Federation Presidents each
coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that
have culminated in the holding of the proposed referendum- plebiscite on October
16, 1976, which petitioners are here seeking to enjoin, has been more substantial
and meaningful than the above report imparts. Most importantly, aside from being
probably the first person to publicly articulate the need for the creation of an interim
legislative body to take the place of. the interim National Assembly provided for in the
Transitory Provisions of the Constitution, as suggested in the above report, I might
say that I was the one most vehement and persistent in publicly advocating and
urging the authorities concerned to directly submit to the people in a plebiscite
whatever amendments of the Constitution might be considered necessary for the

establishment of such substitute interim legislature. In the aforementioned session of

the Executive Committee of the Katipunan, I discourse on the indispensability of a
new interim legislative body as the initial step towards the early lifting of martial law
and on the fundamental considerations why in our present situation a constitutional
convention would be superfluous in amending the Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral

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

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

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

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

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

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

It is my considered opinion that unlike in the cases of judges in the lower courts, the
Constitution does not envisage compulsory disqualification or inhibition in any case
by any member of the Supreme Court. The Charter establishes a Supreme Court
"composed of a Chief Justice and fourteen Associate Justices", with the particular

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

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

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

-I-

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

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

xxx xxx xxx

xxx xxx xxx

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

xxx xxx xxx

xxx xxx xxx

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

jurisdiction to take cognizance of and to decide the instant petitions on their merits is
beyond challenge.

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

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

particularly when the issue is not encroachment of delimited areas of functions but
alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.)

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

Stripped of incidental aspects, the constitutional problem that confronts Us stems

from the absence of any clear and definite express provision in the Charter
applicable to the factual milieu herein involved. The primary issue is, to whom, under
the circumstances, does the authority to propose amendments to the Constitution
property belong? To say, in the light of Section 15 of Article XVII of the Charter, that
that faculty lies in the interim National Assembly is to beg the main question. Indeed,
there could be no occasion for doubt or debate, if it could ' only be assumed that the
interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII
may be convoked. But precisely, the fundamental issue We are called upon to decide
is whether or not it is still constitutionally possible to convene that body. And relative
to that question, the inquiry centers on whether or not the political developments
since the ratification of the Constitution indicate that the people have in effect
enjoined the convening of the interim National Assembly altogether. On this score, it
is my assessment that the results of the referenda of January 10-15, 1973, July 2728, 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 wellmeaning, 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 sixtyone (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 lawmaking 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 (L44684), former delegate to the 1971 Constitutional Convention which drafted the
1973 Constitution. the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a constituent power, it stands to
reason that the President can likewise legally propose amendments to the
fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be

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

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

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

To decide whether a matter has in a measure been committed by the Constitution to

another branch of government or retained be the people to be decided by them in

their sovereign capacity, or whether that branch exceeds whatever authority has
been committed, is indeed a delicate exercise in constitutional interpretation.

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

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas

stressed that:

The Constitution grants Congress exclusive power to control submission off

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

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in

Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that
the process of constitutional amendment, involving proposal and ratification, is a

political question. In the Mabang case, the petitioners sought to prevent the
enforcement of a resolution of Congress proposing the "Parity Amendment" to the
Philippine Constitution on the ground that it had not been approved by the threefourths 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 referendumplebiscite 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 wellexplained in Justice Teehankee's Opinion. The state of necessity brought about by
the current political situation, invoked by the respondents, provides no source of
power to propose amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by inflicting upon it a
wound which nothing can heal commit one assault after the other "until all respect for
the fundamental law is lost and the powers of government are just what those in
authority please to call them?'" 5 Or can we now ignore what this Court, speaking
through Justice Barredo, said in Tolentino vs. Comelec:

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

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

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

I must be forgiven if, not concerned with the present, I am haunted however by what
can happen in the future, when we shall all be gone. Verily, this is a matter of grave
concern which necessitates full, mature, sober deliberation of the people but which
they can do only in a climate of freedom without the restraints of martial law. I close,

remembering what Claro M. Recto, President of the Constitutional Convention which

drafted the 1935 Philippine Constitution, once said: .

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

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

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

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

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

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

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

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite

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

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

3. The period granted to the people to consider the proposed amendments is

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

Footnotes

1 Sec. 3, PD 991, September 2, 1976.

2 SEC. 4 Who shall participate.-Every Filipino citizen, literate or not, fifteen years of
age or over who has resided in the barangay for at least six months shall participate
in the consultation in his barangay. Provided, however, That any person who may not
be able to participate in the consultations of his barangay may do so in any barangay
member shall participate in more than one barangay consultation.

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

4 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).

5 Section 18.

6 Section 5.

7 Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando, J., ponente.
See also Standing to Secure Judicial Review, Jaffe, 74 Harvard Law Review 1265
(May 1961).

8 Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases

(Planas v. Comelec, 49 SCRA 105). See Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 152.

9 Orfield Amending the Federal Constitution, 111.

10 Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive

Secretary 50 SCRA 30), Martial Law and the New Society in the Philippines, 1976,
Supreme Court, 210-224, quoting Tanada v. Cuenco, 103 Phil. 1051.

11 See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at
121.

12 Idem, at 210.

13 The view of the Chief Justice was shared by Justices Makalintal (later Chief
Justice), Zaldivar, Castro (present Chief Justice), Fernando, and Teehankee. Justice
Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been
approval by the people, the Court may inquire into the question of whether or not
there has actually been such an approval, and, in the affirmative, the Court should
keep its hands-off out of respect to the people's will, but, in the negative, the Court
may determine from both factual and legal angles whether or not Article XV of the
1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra
hold that the issue is political and "beyond the ambit of judicial inquiry."

14 62 SCRA 275, Referendum Case, Martial Law and the New Society in the
Philippines, Supreme Court, 1976, at 1071.

15 Idem, at 10791081.

16 In the United States, all amendments to the Federal constitution, except the
Twenty-first Amendment, had been proposed by the U.S. Congress, Modern
Constitutional Law, Antieau Vol. 2,1969 ed., at 482.

17 The Amending of the Federal Constitution by Orfield 1942, 48-53; 103-105.

18 Black's Constitutional Law, Hornkbook series, at 42.

19 Hollingsworth v. Virginia, 3 Dall 378.

20 There are 3 types of crisis in the life of a democratic nation. First is particularly a
war to repel invasions, when a state must convert its peacetime political and social
order into a wartime fighting machine and overmatch the skill and efficiency of the
enemy. Second, is rebellion, when the authority of a constitutional government is
resisted openly by a large numbers of its citizens who are engaged in violent
insurrection against the enforcement of its laws or are bent on capturing it illegally or
even destroying it altogether. Third is economic depression-a crisis greater than war.
Rossiter, Constitutional Dictatorship, at 6.

21 Constitutional Dictatorship by Clinton Rossiter, 288-290.

22 Corwin, The President Office and Powers, at 371.

23 See Separate Opinion of the Chief Justice (the Justice Castro in the Referendum
Case (Aquino v. Comelec), at p. 1084, Martial Law and the New Society in the
Philippines, Supreme Court, 1976.

26 Orfield, Amending the Federal Constitution, at 55.

27 Daily Express, Sept. 27,1976; Times Journal, Sept. 17, 1976.

28 Sunday Express, September 23, 1976.

29 Daily Express, September 23, 1976.

30 Section 1, Article II, 1973 Constitution.

31 See Orfield, Amending the Federal Constitution, 140-143. The first meaning
includes all persons. living within the state during the whole time of the existence of
the state; the second, the sum of all individuals as an organized group living within
the state at the same time: and the third, the organized group of individuals living the
state with the exception of the government.

32 Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221.

33 Orfield Amending the Federal Constitution, at 105.

34 Abrams v. United States, 250 U.S. 616, 630.

35 Op Cit., at 221.

39 Separate opinion of Justice Palma in the Referendum Case (Aquino v.

COMELEC), at 1135, Martial Law and the New Society in the Philippines, 1976,
Supreme Court.

40 Separate opinion of Justices Makalintal and Castro in the Ratification Case

(Javellana v. The Executive Secretary, 50 SCRA 30), at 292-293, Martial Law and
the New Society in the Philippines

41 Sec. 1, Article VI, 1973 Constitution.

42 Daily Express, September 29, 1976.

43 See Times Journal, September 30, 1976.

44 Times journal, October 2, 1976.

45 See Martial Law and the New Society, 1976, Supreme Court, at 1082-83.

46 307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman,
12-13.

47 Dillon v. Gloss, 256 U.S. 368.

48 Willoughby on the Constitution of the Untied States, Vol. 1,595-96.

L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court
are not referred to.

2 L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other
petitions raising the same question as to te validity of Proclamation No. 1102
announcing the ratification of the Constitution proposed by the Constitutional
Convention.

3 L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were
other petitions decided likewise seeking the nullification of Proclamation No. 1081
declaring martial law.

4 L-4004, January 31, 1975, 62 SCRA 275. This decision affirmed the power of the
incumbent President to issue decrees having the force and effect of law. There was
in the main opinion in this case, penned by Justice Makasiar, an explicit recognition
that the incumbent President possesses legislative competence so that during the
period of Martial Law he could assure "the security and preservation of the Republic,
... the defense of the political and social liberties of the people and... the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the
threat thereof as well as to meet the impact of a worldwide recession, inflation or
economic crisis which presently threatens all nations including highly developed
countries ..." (At 298) Justices Antonio, Esguerra, Fernandez, Munoz Palma and
Aquino concurred, although in a separate opinion, Justice Munoz Palma qualified it
by saying that the grant of legislative power "is necessarily to fill up a vacuum during
the transition period when the interim National Assembly is not yet convened and
functioning, for otherwise, there will be a disruption of official functions resulting in a
collapse of the government and of the existing social order." (At 347) There was
likewise a concurring opinion by the then Justice, now Chief Justice Justice
Makalintal and Justices Barredo, Antonio, Esguerra and Fernandez concurred with
this opinion. In a concurring and dissenting opinion, Justice Teehankee would
confine "his legislative and appropriation powers under martial law ... to the law of
necessity of preservation of the state which gave rise to its proclamation (including
appropriations for operations of the government and its agencies and
instrumentalities)." (At 316-317) The writer of this opinion had his own concurrence
and predicated his vote without an expression of his views as to the grant of
legislative power to the President. "

5 L-37364, May 9,1975, 63 SCRA 546. The Court ruled in this case that military
commissions may try civilians for certain specified offenses according to applicable
presidential decrees.

6 SCRA 183, 281-309.

7 Ibid, 301.

8 Ex parte Milligan is reported in 4 Wall. 2 (1966). It was likewise noted that Story,
the first eminent commentator in American constitutional law made no reference to
martial law. Cooley's work, now in its 8th edition, is entitled Constitutional Limitations
while that of Watson bears the title of Constitution of the United States. At 302

9 Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946).
Among the casebooks on constitutional law referred to are those by Dodd (1949),
Dowling (1950), Sholley (1951), Frank (1932), Freund and Associates (1954), Barrett
and Associates (1963), Kauper (1966), Lockhart and Associates (1970).

10 Ibid. It may be observed parenthetically that when I collaborated with Senator

Lorenzo M. Tanada in the Constitution of the Philippines Annotated published almost
thirty Nears ago in 1947 (at 588-589) with two later editions that came out in 1949 (at
694-695) and 1993 (at 1013-1014), it was Willoughby's view that was cited.

11 Ibid. 302-303. This was the formulation of Burdick in his The Law of the American
Constitution, 261 (1922).

12 Ibid. 303.

13 Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd
ed. 1591 (1929).

14 Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be

made clear that in our Constitution, it is only the privilege of the writ, not the writ itself
that is suspended.

15 Ibid. :30:3-304. The quotation is from volume 2 of the treatise of Schwartz on the
American Constitution, entitled The Powers of Government 244 (1963) that the
citation came from.

16 Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962).

17 327 US 304, 322.

18 Cf. Aquino v. Commission on Elections, 62 SCRA 275.

19 Ibid, 305. The citation from Rossiter is from the first chapter of his work on
Constitutional Dictatorship. 9 (1948).

20 Ibid. 306.

21 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter's
Constitutional Dictatorship.

22 The extensive citation in the opinion of Justice martin is found in Chapter XIX of
Rossiter's opus entitled Constitutional Dictatorship: The Forms, the Dangers, the
Criteria, the Future. that is the last chapter of his work, after a rather exhaustive
discussion of what are referred to by him as Constitutional Dictatorship in Germany
(Chapters III to V), Crisis Government in the French Republic (Chapters VI to IX),
Crisis Government in the United States (chapters XIV to XVII).

23 Ibid. 294.

24 Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily
Express lo, October 9,1976.

25 Ibid.

26 Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957).

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

28 He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial
Attorney Nannette R. de Castro.

29 Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936).

30 Malcolm and Laurel, Cases on Constitutional Law (1936).

31 Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912).

32 Philippine Political Law, llth ed. 63 (1962). It is precisely Ellingham v. Dye that
was cited.

33 Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution.
The present Chief Justice would include paragraph 1 to the above. Vide in. 4.

34 L-34150, October 16,1951, 41 SCRA 702.

35 According to Article 11, Section 1 of the present Constitution: The Philippines is a

republican state. Sovereignty resides in the people and all government authority
emanates from them."

36 Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130

(1896); People v. Mills, 70 P. 322 (1902); Treadgill v. Cross, 109 P 558 (1910); Scott
v. James, 76 SE 283 (1912); Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass,
156 So. 262 (1934); Gray v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW
259 (1943), Hillman v. Stockett 39 A2 803 (1944).

37 L-19313, January 19,1962,4 SCRA 1.

38 Ibid, 17-18.

39 L-21897, October 22, 1964, 9 SCRA 230.

40 Ibid, 244.

41 50 SCRA 30, 310-333 (1973).

42 59 SCRA 275, 306-315 (1974).

43 Laski, Grammar of Politics, 4th ed., 34 (1937).

44 Corwin, The Higher Law Background of American Constitutional Law, Selected

Essays on Constitutional Law 3 (1938).

45 Lerner, Ideas are Weapons, 470 (1939).

46 Bryn-Jones, Toward a Democratic New Order 23 (1945).

47 McIver, The Web of Government 84 (1947).

48 L-28916, November 9, 1967, 21 SCRA 774.

49 L-23415, October 16, 1971, 41 SCRA 702.

50 L-35925, January 22, 1973, 49 SCRA 105.

51 L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion
of the then Chief Justice Makalintal and the now Chief Justice Castro, then an
Associate Justice, where the question raised concerns the adoption and enforcement
of a new Constitution, then it may be looked upon as political.

52 78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by
Justice Tuason, with the then Chief Justice Moran and the then Justices Paras, later
himself a Chief Justice, Hilado, Pablo and Hontiveros, who were of that persuasion.
The other two votes necessary for a majority for dismissing the prohibition petition
were supplied by Justice, also later a Chief Justice, Bengzon and Justice Padilla.

53 307 U.S. 433. In the concurring opinion of Justice Black, with Justices Roberts,
Frankfurther and Douglas in agreement, he made the categorial statement that such
process "is 'political' in its entirety, from submission until an amendment becomes
part of the Constitution, and is not subject to judicial guidance, control or interference
at any point." At 459.

54 Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d

220 (1944); Renck v. Superior Court of Maricopa County, 187 P2d 656 (1947); In re
Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951);
Baum v. Newbry 267 P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v,
Adams, 167 SO2d 575 (1964); Hamilton v. City of Shreveport, 174 SO2d 529 (1965).

55 Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (19341935), Appendix L, 800.

56 SCRA 275, 306-315.

1 Article XV, section 1.

2 Article XVI, section 1, paragraphs (1) and (2).

3 Article XVII. section 3 (1).

4 Article XVII, section 15.

5 P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22,
1976 and P.D. No. 1033 dated Sept. 22, 1976 "Stating the questions to be submitted
to te people i the referendum-plebiscite on October 16, 1976".

6 Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution).

7 Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4,

1971, at page 3.

8 Idem, at page 4.

9 Idem, at page 4

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137(1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81

13 Idem, pp. 87-88.

14 Javellana vs' Exec. Secretary, 50 SCRA 30 (1973).

15 Majority opinion at p.20.

16 21 SCRA 774(1967)

17 Citing Sec.1,Art.VI,1935 Constitution

18 See sec.1,Art. VIII,1973 Constitution

19 Aquino vs. Comelec, 62 SCRA 275 (Jan. 31, 1975);see also Gonzales vs.
Comelec, L-40117, Feb. 22, 1975

20 Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224

21 63 Phil. 134(1936).

23 Sunday Express (and Times Journal) issues of August 29, 1976 reported that
"(A)s proposed by the sanggunian and barangay national executive committees, the
following questions will be submitted in the discussions and referendums:

1 Do you want martial law to be lifted?

2 Do you want to call the interim National Assembly?

3 If not, do you want to call a body with legislative powers?

4 Do you want such body to have full legislative powers?

5 If not, do you want such body to have limited legislative powers as may be
determined by the President in a presidential decree?

6 If you want to call a body with certain legislative powers, do you want to grant such
body authority to propose amendments to the Constitution to make it conform with
the aims to the New Society?

7 If you want to call the body referred to questions 4, 5, and 6, do you want the
members of such body elected by the people through the barangays in accordance
with an election code to be promulgated in a decree by the President?

"The barangay and sanggunian executive committees informed the President that it
was 'the thing of the barangays to undertake the referendum on an informal manner
and that they opted to devise their own ballots, tally sheets, and all other necessary
from.'

"As proposed, and approved by the President, the referendum will be done by secret
ballot, except in small barangays where the residents can be gathered in one
assembly to decide on the issues by roll call vote if desired by residents.

"The canvassing will be done by the barangay referendum committee."

24 "The other issue to be taken up in the public discussions is the question on

whether the interim national assembly should be convened or not.

"This question was asked in two previous referenda-in 1973 and 1975 - and was
rejected each time by the people

"The barangays, however, of feel it is time to again ask the people's opinion of this
matter." (Phil. Express issue of Aug. 30,1976).

25 Art. IX, see. 1, 1973 Constitution.

26 Cooleys Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice
Davis in Gibson vs. Mason, 5 Nev. 293, 291 thus; "The maxim which lies at the
foundation of our government is that all political power originates with the people. But
since the organization of government it cannot be claimed that either the legislative,
executive, or judicial powers, either wholly or in part, can be exercised by them. By
the institution of government the people surrender the exercise of all these sovereign
functions of government to agents chosen by themselves, who at least theoretically
represent the supreme will of their constituents. Thus all power possessed by the
people themselves is given and centered in their chosen representatives

27 See fns. 8-10: note in parenthesis supplied.

28 Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied.

29 36 SCRA 228 234 (1970).

30 Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13.

31 Idem, at page 16 fn. 6.

32 Majority opinion, at page 19.

33 Idem, at page 20.

33* Rodriguez vs. Gella 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil.
368 (1949).

34 Gonzales vs. Comelec, L-40117, Resolution of Feb. 22,1975.

35 In re Egan 8 Fed. Cas. 367, holding that "Martial law is neither more nor less than
the will of the general in command of the army- It overreaches and supersedes, all
civil law by the exercise of military power.." as cited in the Secretary of Justice's
outline of a study on the exercise of Legislative Power by the President under Martial
Law, dated Dec. 27, 1972, as reported in Lawyers' Journal, March 31, 1973 issue, p.
90.

36 Cooley's Constitutional Limitations. 8th Ed., Vol. 1, pp.128-129.

37 With the exception of the proposed amendments increasing the membership of

the House of Representatives from 120 to 180 and authorizing members of Congress
to become Con-Con delegates, which were widely publicized as a result of the court
proceedings and decision in Gonzales vs. Comelec, 21 SCRA 774.

38 "Perspectives and Dimensions of Constitutional Reforms" delivered as keynote

speech at the National Conference on Constitutional Amendments, July 27,1970.

39 Articles VIII, IX and X, 1973 Constitution.

40 U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law.

41 Louis H. Pollale The Constitution and the Supreme Court, Vol. 1, page 191.

42 Supra, fn. 16.

43 Supra, fn. 28.

44 Sec. Art. VIII, sec. 2 1935 Constitution; Art. X, sec. 5, 1973 Constitution

45 SCRA 30 (1973) and cases cited.

46 Now retired Justices J.B.L. Reyes and Calixto 0. Zaldivar.

47 SCRA at p. 733.

48 21 SCRA at pages 816-817, emphasis copied.

49 From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye 99 N.E. pp. 4,15;
emphasis copied.

50 21 SCRA at p. 817.

51 Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec's stand that
"Young voters, from age 15 to below 18 can vote not only on the question of martial
law but also on the question regarding the proposed constitutional amendments".

52 Phil. Daily Express issue of Oct. 3, 1976.

53 Times journal and Phil. Daily Express issues of Oct. 11, 1976.

54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself
abstaining from the debates: "I am trying to steer clear of the debates because it
involves martial law, and it involves, of course, me personally. So the less I say about
it, the better, I guess, from my point of view".

54* Pres. Marcos' address on observance of the first anniversary of the 1973
Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6.

55 The resolution gave the same permission to court personnel by a 9 to 1 vote with
Justice Makasiar and the writer presenting no objection in the case of personnel as
classified civil service employees, while Justice Munoz Palma maintained the same
negative vote.

1 Aquino, J. vs Ponce Enrile and other cases, 59 SCRA 183.

2 50 SCRA 30, 209 et seq.

1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173.

2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied.

3 Tanada v. Cuenco, 103 Phil. 1051, 1057, citing in re McConoughy, 119 NW 408.
Italics supplied.

4 16 C.J.s. 413.

5 369 U.S. 186, 217.

6 307 U.S. 433.

7 78 Phil, 1 (1947).

8 21 SCRA 774.

9 Republic Act No. 413.

10 41 SCRA 702,

11 L-40004, January 3l, 1975. 62 SCRA 275.

12 Proclamation No. 1103, January 17,1973.

13 Section 1, Article II, Constitution.

14 Leibholz: Politics and Law, p. 24.

15 Todays Revolution: Democracy, Marcos, pp. 87-88.

16 Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650;
note, 10 L.r.a., n.s., 150.

17 John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF

CONSTITUTIONAL REVISION; 1961 ed.

18 Sinco. Philippine Political Law, 10th Ed. p. 48

19 T.S.N. of hearing, October 8,1976, pp. 8,11,12,15.

* p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10.

xxx xxx xxx

It is well that the powers of the people and their relations to organized society should
be understood. No heresy has ever been taught in this country so fraught with evil as
the doctrine that the people have a constitutional right to disregard the constitution,
and that they can set themselves above the instrumentalities appointed by the
constitution for the administration of law. It tends directly to the encouragement of
revolution and anarchy. It is incumbent upon all who influence and mold public
opinion to repudiate and discountenance so dangerous a doctrine before it bears
fruits destructive of republican institutions. It will be well if the people come to
understand the difference between natural and constitutional freedom. before license
becomes destructive of liberty ." (pp. 611-616)

4 Green castle Township v. Black, 5 Ind.,557, 56,5.

5 Oakley vs. Aspinwall, 3 N.Y., 547,568.

6 Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per

Barredo, J., pp 19-20, Supreme Court Decisions, November 1971

6 Whenever in the judgment of the President (Prime Minister there exists a brave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may in
order to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land. (Taken from the Barangay
Ballot Form distributed by COMELEC for Referendum-Plebiscite, October 16, 1976)

7 Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila
University, the Lawyers' Journal, June 15, 1936, italics Ours.

8 The Lawyers' Journal, March 15, 1936,

1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil. 1051

2 L-28196. Nov. 9,1967; 21 SCRA 774.

3 L-34150, Oct. 16, 1971, 41 SCRA 702.

4 Article XVII, Section 1, Constitution.

5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302.

9 Idem, at page 4.

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137 (1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81.

The Lawphil Project - Arellano Law Foundation

LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO

(G.R. No. 73748 - May 22, 1986)

-----------------------(There is no "Full-Text" of this case. This is a Minute Resolution made by the SC.)

Minute Resolutions

EN BANC

[G.R. No. 73748, May 22, 1986]

LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER A. LOZANO

VS. PRESIDENT CORAZON C. AQUINO, ET AL.

SIRS/MESDAMES:

Quoted hereunder, for your information, is a resolution of this Court MAY 22, 1986.

In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon
C. Aquino, et al.; G.R. No. 73972, People's Crusade for Supremacy of the
Constitution vs. Mrs. Cory Aquino, et al., and G.R. No. 73990, Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al., the legitimacy of the government of President
Aquino is questioned. It is claimed that her government is illegal because it was not
established pursuant to the 1973 Constitution.

As early as April 10, 1986, this Court* had already voted to dismiss the petitions for
the reasons to be stated below. On April 17, 1986, Atty. Lozano as counsel for the
petitioners in G.R. Nos. 73748 and 73972 withdrew the petitions and manifested that
they would pursue the question by extra-judicial methods. The withdrawal is functus
oficio.

The three petitions obviously are not impressed with merit. Petitioners have no
personality to sue and their petitions state no cause of action. For the legitimacy of
the Aquino government is not a justiciable matter. It belongs to the realm of politics
where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is not merely a de
factogovernment but is in fact and law a de jure government. Moreover, the
community of nations has recognized the legitimacy of the present government. All
the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.

In view of the foregoing, the petitions are hereby dismissed.

In Re: Saturnino V. Bermudez, 145 SCRA 160, October 24, 1986

Case Title: SATURNINO V. BERMUDEZ, petitioner.

Syllabi Class: Jurisdiction|Actions|Constitutional Law|Actions|Declaratory

Relief|Constitutional Law|Statutes

Syllabi:

1. Jurisdiction; Actions; Declaratory Relief; The Supreme Court assumes no

jurisdiction over petitions for declaratory relief. A petition directed in effect
againstPresident Corazon C. Aquino cannot be entertained the President being
immune from suit during her incumbency.-

Prescinding from petitioners lack of personality to sue or to bring this action (Tan vs.
Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction

over petitions for declaratory relief. More importantly, the petition amounts in effect to
a suit against the incumbent President of the Republic, President Corazon C. Aquino,
and it is equally elementary that incumbent Presidents are immune from suit or from
being brought to court during the period of their incumbency and tenure.

2. Jurisdiction; Actions; Declaratory Relief; Constitutional Law; A petition questioning

the clarity ofaprovision in the proposed 1986 Constitution states no cause of action it
being of common knowledge that the officials referred to in the 1st par. of Sec. 5, Art
XVIII there of are incumbent Pres. Aquino and Vice-Pres. Laurel.-

The petition furthermore states no cause of action. Petitioners allegation of

ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being
a matter of public record and common public knowledge that tha Constitutional
Commission refers therein to incumbent President Corazon C. Aquino and VicePresident Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of
elections. Hence, the second paragraph of the cited section provides for the holding
on the second Monday of May, 1992 of the first regular elections for the President
and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of
the government of President Corazon C. Aquino was iikewise sought to be
questioned with the claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by this Court.

3. Actions; Constitutional Law;-

Copies of the certified returns frora the provincial and city boards of canvassers have
not been furnished this Court nor is there any need to do so, In the absence of a
legislature, we cannot assume the function of stating, and neither do we have any
factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7,1986 elections.

4. Actions; Constitutional Law; The officials referred to in the proposed Constitution

are Pres. Corazon Aquino and Vice-Pres. Salvador Laurel.-

As to who are the incumbent President and Vice President referred to in the 1986
Draft Constitution, we agree that there is no doubt the 1986 Constitutional
Commission referred to President Corazon C. Aquino and Vice-President Salvador
H. Laurel

5. Constitutional Law; Statutes;-

Division: EN BANC

Docket Number: No. L-76180

Ponente: PER CURIAM

Dispositive Portion:

ACCORDINGLY, the petition is hereby dismissed.

145 SCRA 160 Political Law De Jure vs De Facto Government

Saturnino Bermudez, as a lawyer, questioned the validity of the first paragraph of

Section 5 of Article XVIII of the proposed 1986 Constitution, which provides in full as
follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in
the February 7, 1986 election is, for purposes of synchronization of elections, hereby
extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.
Bermudez claims that the said provision is not clear as to whom it refers, he then
asks the Court to declare and answer the question of the construction and
definiteness as to who, among the present incumbent President Corazon Aquino and
Vice President Salvador Laurel and the elected President Ferdinand E. Marcos and
Vice President Arturo M. Tolentino being referred to as the incumbent president.

ISSUE: Whether or not said provision is ambiguous.

HELD: No. Bermudezs allegation of ambiguity or vagueness of the aforequoted

provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent
President Aquino and Vice-President Laurel, and to no other persons, and provides
for the extension of their term to noon of June 30, 1992 for purposes of
synchronization of elections. Hence, the second paragraph of the cited section
provides for the holding on the second Monday of May, 1992 of the first regular
elections for the President and Vice-President under said 1986 Constitution. In
previous cases, the legitimacy of the government of President Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the
1973 Constitution. The said cases were dismissed outright by the Supreme Court
which held that: Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is not a justiciable
matter. It belongs to the realm of politics where only the people of the Philippines are
the judge. And the people have made the judgment; they have accepted the
government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and in law a de jure
government. Moreover, the community of nations has recognized the legitimacy of
the present government.

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N

PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.
The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986
Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have

accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis,
there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel
are the incumbent and legitimate President and Vice-President of the Republic of the Philippines.or
the above-quoted reasons, which are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ., concurring.
The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.
Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not
yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights
susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S.
227; PACU vs. Secretary of Education, 97 Phil. 806.)

EN BANC
[G.R. No. 104768. July 21, 2003]
Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General
Josephus Q. Ramas and Elizabeth Dimaano, respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the
Resolutions of the Sandiganbayan (First Division)1 dated 18 November 1991 and 25
March 1992 in Civil Case No. 0037. The first Resolution dismissed petitioners
Amended Complaint and ordered the return of the confiscated items to respondent
Elizabeth Dimaano, while the second Resolution denied petitioners Motion for
Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the Sandiganbayan
(First Division) for further proceedings allowing petitioner to complete the
presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA
Revolution, then President Corazon C. Aquino issued Executive Order No. 1 (EO
No. 1) creating the Presidential Commission on Good Government (PCGG). EO
No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates. EO No. 1 vested the PCGG with the power (a) to conduct investigation
as may be necessary in order to accomplish and carry out the purposes of this order
and the power (h) to promulgate such rules and regulations as may be necessary to
carry out the purpose of this order. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked
to investigate reports of unexplained wealth and corrupt practices by AFP personnel,
whether in the active service or retired.2
Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas (Ramas).
On 27 July 1987, the AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas. The relevant part of
the Resolution reads:
III. FINDINGS and EVALUATION:

Composed of Justices Regino Hermosisima, Jr., Francis Garchitorena and Cipriano del Rosario.

Republic v. Migrino, G.R. No. 89483, 30 August 1990, 189 SCRA 289.

Evidence in the record showed that respondent is the owner of a house and lot
located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and
lot located in Cebu City. The lot has an area of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly at
P700,000.00.
The equipment/items and communication facilities which were found in the premises
of Elizabeth Dimaano and were confiscated by elements of the PC Command of
Batangas were all covered by invoice receipt in the name of CAPT. EFREN SALIDO,
RSO Command Coy, MSC, PA. These items could not have been in the possession
of Elizabeth Dimaano if not given for her use by respondent Commanding General of
the Philippine Army.
Aside from the military equipment/items and communications equipment, the raiding
team was also able to confiscate money in the amount of P2,870,000.00 and
$50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command,
Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga,
Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth. Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baos,
Laguna, the existence and ownership of these money would have never been
known.
The Statement of Assets and Liabilities of respondent were also submitted for
scrutiny and analysis by the Boards consultant. Although the amount of
P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed that
respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00 and
$50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be
prosecuted and tried for violation of RA 3019, as amended, otherwise known as
Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known
as The Act for the Forfeiture of Unlawfully Acquired Property.3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act
No. 1379 (RA No. 1379) 4 against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez
filed an Amended Complaint naming the Republic of the Philippines (petitioner),
represented by the PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the
Philippine Army until 1986. On the other hand, Dimaano was a confidential agent of
the Military Security Unit, Philippine Army, assigned as a clerk-typist at the office of
Ramas from 1 January 1978 to February 1979. The Amended Complaint further
alleged that Ramas acquired funds, assets and properties manifestly out of
proportion to his salary as an army officer and his other income from legitimately
acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the Philippines
and as a subordinate and close associate of the deposed President Ferdinand
Marcos.5
The Amended Complaint also alleged that the AFP Board, after a previous inquiry,
found reasonable ground to believe that respondents have violated RA No. 1379.6
The Amended Complaint prayed for, among others, the forfeiture of respondents
properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory
Counterclaim to the Amended Complaint. In his Answer, Ramas contended that his
property consisted only of a residential house at La Vista Subdivision, Quezon City,
valued at P700,000, which was not out of proportion to his salary and other legitimate
income. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of Dimaano.

Records of the Sandiganbayan [hereinafter Records], pp. 53-55.

An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully
Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor.
4

Records, p. 14.

Ibid., p.16.

Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November 1978
only, Dimaano claimed ownership of the monies, communications equipment, jewelry
and land titles taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,7 the court set the case for trial on the merits on 9-11
November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack
of preparation for trial and the absence of witnesses and vital documents to support
its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order
to charge the delinquent properties with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x.8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with
petitioners presentation of evidence on the ground that the motion for leave to
amend complaint did not state when petitioner would file the amended complaint.
The Sandiganbayan further stated that the subject matter of the amended complaint
was on its face vague and not related to the existing complaint. The Sandiganbayan
also held that due to the time that the case had been pending in court, petitioner
should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the
trial.
On 28 September 1989, during the continuation of the trial, petitioner manifested its
inability to proceed to trial because of the absence of other witnesses or lack of
further evidence to present. Instead, petitioner reiterated its motion to amend the
complaint to conform to the evidence already presented or to change the averments
to show that Dimaano alone unlawfully acquired the monies or properties subject of
the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a
year mainly because of its many postponements. Moreover, petitioner would want
the case to revert to its preliminary stage when in fact the case had long been ready
for trial. The Sandiganbayan ordered petitioner to prepare for presentation of its
additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to present
further evidence. Giving petitioner one more chance to present further evidence or to
amend the complaint to conform to its evidence, the Sandiganbayan reset the trial to
18 May 1990. The Sandiganbayan, however, hinted that the re-setting was without
prejudice to any action that private respondents might take under the circumstances.

Ibid., p. 166.

Ibid., p. 286.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial
because it had no further evidence to present. Again, in the interest of justice, the
Sandiganbayan granted petitioner 60 days within which to file an appropriate
pleading. The Sandiganbayan, however, warned petitioner that failure to act would
constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino.9 The Court held in Migrino that the PCGG does not have jurisdiction to
investigate and prosecute military officers by reason of mere position held without a
showing that they are subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive
portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,
without pronouncement as to costs. The counterclaims are likewise dismissed for
lack of merit, but the confiscated sum of money, communications equipment, jewelry
and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman,
who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such
appropriate action as the evidence warrants. This case is also referred to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion
for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the following grounds:
(1.)
The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan10 and Republic v. Migrino11 which
involve the same issues.
(2.)
No previous inquiry similar to preliminary investigations in criminal cases was
conducted against Ramas and Dimaano.
9

Supra, note 2.

10

G.R. No. 94595, 26 February 1991, 194 SCRA 474.

11

Supra, note 2.

(3.)
The evidence adduced against Ramas does not constitute a prima facie case
against him.
(4.)

There was an illegal search and seizure of the items confiscated.

The Issues
Petitioner raises the following issues:
A.
RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND
THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING
THE FACT THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND
PREMATURE, HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF
THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B.
RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE STRUCK
OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1.
The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino,
supra, are clearly not applicable to this case;
2.
Any procedural defect in the institution of the complaint in Civil Case No.
0037 was cured and/or waived by respondents with the filing of their respective
answers with counterclaim; and
3.
The separate motions to dismiss were evidently improper considering that
they were filed after commencement of the presentation of the evidence of the
petitioner and even before the latter was allowed to formally offer its evidence and
rest its case;
C.
RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ARTICLES AND THINGS SUCH AS SUMS OF MONEY, COMMUNICATIONS
EQUIPMENT, JEWELRY AND LAND TITLES CONFISCATED FROM THE HOUSE
OF RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND THEREFORE
EXCLUDED AS EVIDENCE.12
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents

12

Rollo, p. 21.

This case involves a revisiting of an old issue already decided by this Court in Cruz,
Jr. v. Sandiganbayan13 and Republic v. Migrino.14
The primary issue for resolution is whether the PCGG has the jurisdiction to
investigate and cause the filing of a forfeiture petition against Ramas and Dimaano
for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt
practices of AFP personnel, whether in the active service or retired.15 The PCGG
tasked the AFP Board to make the necessary recommendations to appropriate
government agencies on the action to be taken based on its findings.16 The PCGG
gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of
EO No. 1 to conduct investigation as may be necessary in order to accomplish and
to carry out the purposes of this order. EO No. 1 gave the PCGG specific
responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a)
The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking undue advantage of
their public office and/ or using their powers, authority, influence, connections or
relationship.
(b)
The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and
corrupt practices of AFP personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former President Marcos
by being the latters immediate family, relative, subordinate or close associate, taking
undue advantage of their public office or using their powers, influence x x x;17 or (2)

13

Supra, note 10.

14

Supra, note 2.

15

Republic v. Migrino, supra, note 2.

16

Supra, note 2.

17

Republic v. Migrino, supra, note 2.

AFP personnel involved in other cases of graft and corruption provided the President
assigns their cases to the PCGG.18
Petitioner, however, does not claim that the President assigned Ramas case to the
PCGG. Therefore, Ramas case should fall under the first category of AFP
personnel before the PCGG could exercise its jurisdiction over him. Petitioner
argues that Ramas was undoubtedly a subordinate of former President Marcos
because of his position as the Commanding General of the Philippine Army.
Petitioner claims that Ramas position enabled him to receive orders directly from his
commander-in-chief, undeniably making him a subordinate of former President
Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the
sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing
that he enjoyed close association with former President Marcos. Migrino discussed
this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term subordinate. The Whereas Clauses of EO No. 1
express the urgent need to recover the ill-gotten wealth amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close associates
both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have any interest
or participation.
Applying the rule in statutory construction known as ejusdem generis that is[W]here general words follow an enumeration of persons or things by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of
Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the immediate
family member, relative, and close associate in EO No. 1 and the close relative,
business associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government official
or employee during the administration of former President Marcos. There must be a
prima facie showing that the respondent unlawfully accumulated wealth by
18

Republic v. Sandiganbayan, G.R. No. 115906, 29 September 1994, 237 SCRA 242.

virtue of his close association or relation with former Pres. Marcos and/or his
wife. (Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the rank
of Major General19 does not suffice to make him a subordinate of former President
Marcos for purposes of EO No. 1 and its amendments. The PCGG has to provide a
prima facie showing that Ramas was a close associate of former President Marcos,
in the same manner that business associates, dummies, agents or nominees of
former President Marcos were close to him. Such close association is manifested
either by Ramas complicity with former President Marcos in the accumulation of illgotten wealth by the deposed President or by former President Marcos
acquiescence in Ramas own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not convince
us. Petitioner argues that unlike in Migrino, the AFP Board Resolution in the instant
case states that the AFP Board conducted the investigation pursuant to EO Nos. 1,
2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is a
presumption that the PCGG was acting within its jurisdiction of investigating cronyrelated cases of graft and corruption and that Ramas was truly a subordinate of the
former President. However, the same AFP Board Resolution belies this contention.
Although the Resolution begins with such statement, it ends with the following
recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be
prosecuted and tried for violation of RA 3019, as amended, otherwise known as
Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known
as The Act for the Forfeiture of Unlawfully Acquired Property.20
Thus, although the PCGG sought to investigate and prosecute private respondents
under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic
Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This
absence of relation to EO No. 1 and its amendments proves fatal to petitioners case.
EO No. 1 created the PCGG for a specific and limited purpose, and necessarily its
powers must be construed to address such specific and limited purpose.

Presidential Decree No. 1769 Amending PD 360 dated December 30, 1973 adjusting the authorized
grades in the command and staff structure of the AFP dated 12 January 1981. The ranking is as follows:
19

Chief of Staff, AFP

General (0-10)

Vice Chief of Staff, AFP

Lt. General (0-9)

Commander of Major Services, AFP

Maj. General (0-8)

xxx.
20

Records, pp. 54-55.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not
show that the properties Ramas allegedly owned were accumulated by him in his
capacity as a subordinate of his commander-in-chief. Petitioner merely
enumerated the properties Ramas allegedly owned and suggested that these
properties were disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association with former
President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not
contain a finding that Ramas accumulated his wealth because of his close
association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of
his close association or relation with former President Marcos and/or his wife,
it is submitted that such omission was not fatal. The resolution of the Anti-Graft
Board should be read in the context of the law creating the same and the objective of
the investigation which was, as stated in the above, pursuant to Republic Act Nos.
3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21 (Emphasis
supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing
that the ill-gotten wealth was accumulated by a subordinate of former President
Marcos that vests jurisdiction on PCGG. EO No. 122 clearly premises the creation of
the PCGG on the urgent need to recover all ill-gotten wealth amassed by former
President Marcos, his immediate family, relatives, subordinates and close
associates. Therefore, to say that such omission was not fatal is clearly contrary to
the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that fall under the
jurisdiction of the PCGG pursuant to EO Nos. 1, 2,24 14,25 14-A:26

21

Rollo, p. 27.

WHEREAS, vast resources of the government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives and close associates both here and abroad;
22

WHEREAS, there is an urgent need to recover all ill-gotten wealth;

xxx
23

Supra, note 10.

Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former
President Marcos, Mrs. Imelda Marcos, their Close Relatives, Subordinates, Business Associates,
Dummies, Agents or Nominees dated 12 March 1986.
24

Defining the Jurisdiction over Cases Involving the Ill-gotten Wealth of Former President Ferdinand E.
Marcos, Mrs. Imelda R. Marcos, Members of their Immediate Family, Close Relatives, Subordinates,
and/or Business Associates, Dummies, Agents and Nominees dated 7 May 1986.
25

26

Amending Executive Order No. 14 dated 18 August 1986.

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:
(a)
the investigation and prosecution of the civil action for the recovery of illgotten wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the take-over or sequestration
of all business enterprises and entities owned or controlled by them, during his
administration, directly or through his nominees, by taking undue advantage of
their public office and/or using their powers, authority and influence,
connections or relationships; and
(b)
the investigation and prosecution of such offenses committed in the
acquisition of said ill-gotten wealth as contemplated under Section 2(a) of Executive
Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority
of the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments. The
preliminary investigation of unexplained wealth amassed on or before 25 February
1986 falls under the jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General.27 The Ombudsman
Act or Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman the power to
conduct preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986.28
After the pronouncements of the Court in Cruz, the PCGG still pursued this case
despite the absence of a prima facie finding that Ramas was a subordinate of
former President Marcos. The petition for forfeiture filed with the Sandiganbayan
should be dismissed for lack of authority by the PCGG to investigate respondents
since there is no prima facie showing that EO No. 1 and its amendments apply to
respondents. The AFP Board Resolution and even the Amended Complaint state
that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases. As stated in
Migrino:

27

Republic v. Sandiganbayan, G.R. No. 90529, 16 August 1991, 200 SCRA 667.

28

Section 15 (11), RA No. 6770.

[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the
PCGG must also be enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The rule of law
mandates that an agency of government be allowed to exercise only the powers
granted to it.
Petitioners argument that private respondents have waived any defect in the filing of
the forfeiture petition by submitting their respective Answers with counterclaim
deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction
to waive in the first place. The PCGG cannot exercise investigative or prosecutorial
powers never granted to it. PCGGs powers are specific and limited. Unless given
additional assignment by the President, PCGGs sole task is only to recover the illgotten wealth of the Marcoses, their relatives and cronies.29 Without these elements,
the PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon as
they learned of the pronouncement of the Court in Migrino. This case was decided
on 30 August 1990, which explains why private respondents only filed their Motion to
Dismiss on 8 October 1990. Nevertheless, we have held that the parties may raise
lack of jurisdiction at any stage of the proceeding.30 Thus, we hold that there was no
waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the parties
to an action.31
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG
to conduct the preliminary investigation. The Ombudsman may still conduct the
proper preliminary investigation for violation of RA No. 1379, and if warranted, the
Solicitor General may file the forfeiture petition with the Sandiganbayan.32 The right
of the State to forfeit unexplained wealth under RA No. 1379 is not subject to
prescription, laches or estoppel.33
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence

29

Republic v. Migrino, supra, note 2.

30

Cudia v. CA, 348 Phil. 190 (1998).

Monsanto v. Zerna, G.R. No. 142501, 7 December 2001, 371 SCRA 664; Republic v. Estipular, G.R. No.
136588, 20 July 2000, 336 SCRA 333.
31

32

Republic v. Migrino, supra, note 2.

Cojuangco, Jr. v. Presidential Commission on Good Govt., G.R. Nos. 92319-20, 2 October 1990, 190
SCRA 226.
33

Petitioner also contends that the Sandiganbayan erred in dismissing the case before
completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find
that petitioner has only itself to blame for non-completion of the presentation of its
evidence. First, this case has been pending for four years before the Sandiganbayan
dismissed it. Petitioner filed its Amended Complaint on 11 August 1987, and only
began to present its evidence on 17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient time, petitioner still delayed the
presentation of the rest of its evidence by filing numerous motions for postponements
and extensions. Even before the date set for the presentation of its evidence,
petitioner filed, on 13 April 1989, a Motion for Leave to Amend the Complaint.34 The
motion sought to charge the delinquent properties (which comprise most of
petitioners evidence) with being subject to forfeiture as having been unlawfully
acquired by defendant Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation of petitioners
evidence since petitioner did not state when it would file the amended complaint. On
18 April 1989, the Sandiganbayan set the continuation of the presentation of
evidence on 28-29 September and 9-11 October 1989, giving petitioner ample time
to prepare its evidence. Still, on 28 September 1989, petitioner manifested its
inability to proceed with the presentation of its evidence. The Sandiganbayan issued
an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay
hereon has been due to the inability of the government to produce on scheduled
dates for pre-trial and for trial documents and witnesses, allegedly upon the failure of
the military to supply them for the preparation of the presentation of evidence
thereon. Of equal interest is the fact that this Court has been held to task in public
about its alleged failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today, this Court is now
faced with a situation where a case already in progress will revert back to the
preliminary stage, despite a five-month pause where appropriate action could have
been undertaken by the plaintiff Republic.35
On 9 October 1989, the PCGG manifested in court that it was conducting a
preliminary investigation on the unexplained wealth of private respondents as
mandated by RA No. 1379.36 The PCGG prayed for an additional four months to
conduct the preliminary investigation. The Sandiganbayan granted this request and
scheduled the presentation of evidence on 26-29 March 1990. However, on the
scheduled date, petitioner failed to inform the court of the result of the preliminary
investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and to
34

Records, p. 285.

35

Records, p. 347.

36

Ibid., p. 346.

inform the court of what lies ahead insofar as the status of the case is concerned x x
x.37 Still on the date set, petitioner failed to present its evidence. Finally, on 11 July
1990, petitioner filed its Re-Amended Complaint.38 The Sandiganbayan correctly
observed that a case already pending for years would revert to its preliminary stage if
the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure
to complete the presentation of its evidence. The Sandiganbayan gave petitioner
more than sufficient time to finish the presentation of its evidence. The
Sandiganbayan overlooked petitioners delays and yet petitioner ended the longstring of delays with the filing of a Re-Amended Complaint, which would only prolong
even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate
and prosecute the case against private respondents. This alone would have been
sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against
private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before
completion of the presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties
confiscated from Dimaanos house as illegally seized and therefore inadmissible in
evidence. This issue bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against private respondents.
Petitioner will not have much evidence to support its case against private
respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a
search warrant captioned Illegal Possession of Firearms and Ammunition.
Dimaano was not present during the raid but Dimaanos cousins witnessed the raid.
The raiding team seized the items detailed in the seizure receipt together with other
items not included in the search warrant. The raiding team seized these items: one
baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol,
caliber .45; communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the
search and seizure on March 3, 1986 or five days after the successful EDSA
revolution.39 Petitioner argues that a revolutionary government was operative at that
time by virtue of Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were taking power in the name and by the will of the Filipino

37

Ibid., p. 395.

38

Ibid., p. 422.

39

Rollo, p. 34.

people.40 Petitioner asserts that the revolutionary government effectively withheld

the operation of the 1973 Constitution which guaranteed private respondents
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search
applies only beginning 2 February 1987, the date of ratification of the 1987
Constitution. Petitioner contends that all rights under the Bill of Rights had already
reverted to its embryonic stage at the time of the search. Therefore, the government
may confiscate the monies and items taken from Dimaano and use the same in
evidence against her since at the time of their seizure, private respondents did not
enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in
President Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution
was done in defiance of the provisions of the 1973 Constitution.41 The
resulting government was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed under
international law.
The correct issues are: (1) whether the revolutionary government was bound by the
Bill of Rights of the 1973 Constitution during the interregnum, that is, after the actual
and effective take-over of power by the revolutionary government following the
cessation of resistance by loyalist forces up to 24 March 1986 (immediately before
the adoption of the Provisional Constitution); and (2) whether the protection accorded
to individuals under the International Covenant on Civil and Political Rights
(Covenant) and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during
the interregnum. However, we rule that the protection accorded to individuals under
the Covenant and the Declaration remained in effect during the interregnum.

40

Ibid.

41

Proclamation No. 3, Provisional Constitution of the Republic of the Philippines, provides:

WHEREAS, the new government under President Corazon C. Aquino was installed through a
direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the
Philippines;
WHEREAS, the heroic action of the people was done in defiance of the provisions of the
1973 Constitution, as amended;
xxx. (Emphasis supplied)
See also Estrada v. Desierto, G.R. No. 146710-15 and G.R. No. 146738, 3 April 2001, 356 SCRA 108; Mun.
of San Juan, Metro Manila v. Court of Appeals, 345 Phil. 220 (1997).

During the interregnum, the directives and orders of the revolutionary government
were the supreme law because no constitution limited the extent and scope of such
directives and orders. With the abrogation of the 1973 Constitution by the successful
revolution, there was no municipal law higher than the directives and orders of the
revolutionary government. Thus, during the interregnum, a person could not invoke
any exclusionary right under a Bill of Rights because there was neither a constitution
nor a Bill of Rights during the interregnum. As the Court explained in Letter of
Associate Justice Reynato S. Puno:42
A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it or as
a sudden, radical and fundamental change in the government or political system,
usually effected with violence or at least some acts of violence. In Kelsen's book,
General Theory of Law and State, it is defined as that which occurs whenever the
legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself.
It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the
unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising
when the legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable. It has been said that the
locus of positive law-making power lies with the people of the state and from there is
derived the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.
xxx
It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions
of the 1973 Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can
be said that the organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of the Cabinet
and other key officers of the administration, the departure of the Marcos Cabinet
officials, revamp of the Judiciary and the Military signaled the point where the legal
system then in effect, had ceased to be obeyed by the Filipino. (Emphasis
supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during
the interregnum would render void all sequestration orders issued by the Philippine
Commission on Good Government (PCGG) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing and even the take-

42

A.M. No. 90-11-2697-CA, 29 June 1992, 210 SCRA 589.

over of private property by mere executive issuance without judicial action, would
violate the due process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary
government bound by no constitution. No one could validly question the
sequestration orders as violative of the Bill of Rights because there was no Bill of
Rights during the interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration orders as
contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on
Good Government,43 petitioner Baseco, while conceding there was no Bill of Rights
during the interregnum, questioned the continued validity of the sequestration orders
upon adoption of the Freedom Constitution in view of the due process clause in its
Bill of Rights. The Court ruled that the Freedom Constitution, and later the 1987
Constitution, expressly recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty
of the President to enact measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of sequestration or
freezing of assets or accounts. And as also already adverted to, Section 26, Article
XVIII of the 1987 Constitution treats of, and ratifies the authority to issue
sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986.
The framers of both the Freedom Constitution and the 1987 Constitution were fully
aware that the sequestration orders would clash with the Bill of Rights. Thus, the
framers of both constitutions had to include specific language recognizing the validity
of the sequestration orders. The following discourse by Commissioner Joaquin G.
Bernas during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio
Araneta University Foundation, of which all of us have been given a copy. On the
one hand, he argues that everything the Commission is doing is traditionally legal.
This is repeated by Commissioner Romulo also. Minister Salonga spends a major
portion of his lecture developing that argument. On the other hand, almost as an
afterthought, he says that in the end what matters are the results and not the legal
niceties, thus suggesting that the PCGG should be allowed to make some legal
shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for
special protection? The answer is clear. What they are doing will not stand the
43

No. L-75885, 27 May 1987, 150 SCRA 181.

test of ordinary due process, hence they are asking for protection, for
exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but let us
not say grandes malos, grande y malos remedios. That is not an allowable
extrapolation. Hence, we should not give the exceptions asked for, and let me
elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is
to hasten constitutional normalization. Very much at the heart of the constitutional
normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask
for constitutional normalization and at the same time ask for a temporary halt to the
full functioning of what is at the heart of constitutionalism. That would be hypocritical;
that would be a repetition of Marcosian protestation of due process and rule of law.
The New Society word for that is backsliding. It is tragic when we begin to backslide
even before we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The
committee report asks for extraordinary exceptions from the Bill of Rights for six
months after the convening of Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the
committee report is asking for is that we should allow the new government to acquire
the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the
vice begin to think that they have a vested right to its practice, and they will fight
tooth and nail to keep the franchise. That would be an unhealthy way of consolidating
the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an
argument that is very disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated verbatim by another staunch
Christian like Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of
Rights on the auction block. If the price is right, the search and seizure clause will be
sold. Open your Swiss bank account to us and we will award you the search and
seizure clause. You can keep it in your private safe.
Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the ransom
price is paid and the ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively revolving about
either argument. The Bill of Rights is not for sale to the highest bidder nor can it be
used to ransom captive dollars. This nation will survive and grow strong, only if it
would become convinced of the values enshrined in the Constitution of a price that is
beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is to
delete all of Section 8 of the committee report and allow the new Constitution to take
effect in full vigor. If Section 8 is deleted, the PCGG has two options. First, it can
pursue the Salonga and the Romulo argument that what the PCGG has been
doing has been completely within the pale of the law. If sustained, the PCGG can go
on and should be able to go on, even without the support of Section 8. If not

sustained, however, the PCGG has only one honorable option, it must bow to the
majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with the law.
From his prison cell, Thomas More said, "I'll give the devil benefit of law for my
nations safety sake. I ask the Commission to give the devil benefit of law for our
nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment
excepting sequestration orders from the Bill of Rights, the Constitutional
Commission still adopted the amendment as Section 26,44 Article XVIII of the 1987
Constitution. The framers of the Constitution were fully aware that absent Section
26, sequestration orders would not stand the test of due process under the Bill of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during
the interregnum, absent a constitutional provision excepting sequestration orders
from such Bill of Rights, would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the Covenant and the Declaration, almost the same rights
found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the States good faith compliance with the Covenant to
which the Philippines is a signatory. Article 2(1) of the Covenant requires each
signatory State to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights45 recognized in the present Covenant. Under
44

Section 26, Article XVIII of the 1987 Constitution provides:

Sec. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March
25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than
eighteen months after the ratification of this Constitution. However, in the national interest, as certified
by the President, the Congress may extend said period.
A sequestration or freeze order shall be issued only upon showing of a prima facie case. The
order and the list of the sequestered or frozen properties shall forthwith be registered with the proper
court. For orders issued before the ratification of this Constitution, the corresponding judicial action or
proceeding shall be filed within six months from its ratification. For those issued after such ratification,
the judicial action or proceeding shall be commenced within six months from the issuance thereof.
The sequestration or freeze order is deemed automatically lifted if no judicial action or
proceeding is commenced as herein provided.
Among the rights of individuals recognized in the Covenant are: (1) No one shall be arbitrarily deprived
of his life [Article 6(1)]; (2) No one shall be subjected to torture or to cruel, inhuman or degrading
45

Article 17(1) of the Covenant, the revolutionary government had the duty to insure
that [n]o one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its Article
17(2) that [n]o one shall be arbitrarily deprived of his property. Although the
signatories to the Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as part of the generally
accepted principles of international law and binding on the State.46 Thus, the
revolutionary government was also obligated under international law to observe the
rights47 of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the Declaration
during the interregnum. Whether the revolutionary government could have
repudiated all its obligations under the Covenant or the Declaration is another matter
and is not the issue here. Suffice it to say that the Court considers the Declaration
as part of customary international law, and that Filipinos as human beings are proper
subjects of the rules of international law laid down in the Covenant. The fact is the
revolutionary government did not repudiate the Covenant or the Declaration in the
same way it repudiated the 1973 Constitution. As the de jure government, the

treatment or punishment. [Article 7]; (3) Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedures as are established by law. Anyone arrested or detained
on a criminal charge shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release [Article 9(1 &
3)]; (4) Anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest
and shall be promptly informed of the charges against him [Article 9(2)]; (5) Everyone lawfully within
the territory of a State shall, within that territory, have the right to liberty of movement and freedom to
choose his residence. Everyone shall be free to leave any country, including his own. No one shall be
arbitrarily deprived of the right to enter his own country [Article 12(1, 2& 3)]; (6) Everyone charged with
a criminal offense shall have the right to be presumed innocent until proved guilty according to law
[Article 14(2)]; (7) Everyone shall have the right of freedom of thought, conscience and religion [Article
18(1)]; (8) Everyone shall have the right to hold opinions without interference. Everyone shall have the
right to freedom of expression [Article 19(1 & 2)]; (9) The right of peaceful assembly shall be recognized
[Article 21]; (10) Everyone shall have the right of freedom of association with others [Article 22(1)]; (11)
All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law [Article 26].
Andreu v. Commissioner of Immigration, 90 Phil. 347 (1951); Chirskoff v. Commissioner of
Immigration, 90 Phil. 256 (1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107 (1951); Mejoff
v. Director of Prisons, 90 Phil. 70 (1951).
46

Among the rights enshrined in the Declaration are: (1) Everyone has the right to own property alone or
in association with others [Article 17(1)]; (2) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives [Article 21(1)]; (3) Everyone has the right to
work, to free choice of employment, to just and favorable conditions of work and to protection against
unemployment [Article 23(1)].
47

revolutionary government could not escape responsibility for the States good faith
compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that
the directives and orders of the revolutionary government became subject to a higher
municipal law that, if contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the 1973
Constitution.48 The Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers entrusted to it by
the people.
During the interregnum when no constitution or Bill of Rights existed, directives and
orders issued by government officers were valid so long as these officers did not
exceed the authority granted them by the revolutionary government. The directives
and orders should not have also violated the Covenant or the Declaration. In this
case, the revolutionary government presumptively sanctioned the warrant since the
revolutionary government did not repudiate it. The warrant, issued by a judge upon
proper application, specified the items to be searched and seized. The warrant is
thus valid with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the warrant. As
admitted by petitioners witnesses, the raiding team confiscated items not included in
the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q.
According to the search warrant, you are supposed to seize only for
weapons. What else, aside from the weapons, were seized from the house of Miss
Elizabeth Dimaano?
A.
The communications equipment, money in Philippine currency and US
dollars, some jewelries, land titles, sir.
Q.
Now, the search warrant speaks only of weapons to be seized from the
house of Elizabeth Dimaano. Do you know the reason why your team also seized
other properties not mentioned in said search warrant?
A.
During the conversation right after the conduct of said raid, I was informed
that the reason why they also brought the other items not included in the search
warrant was because the money and other jewelries were contained in attach cases
and cartons with markings Sony Trinitron, and I think three (3) vaults or steel safes.
Believing that the attach cases and the steel safes were containing firearms, they
forced open these containers only to find out that they contained money.

Section 1, Article I of the Provisional Constitution provides: The provisions of xxx ARTICLE IV (Bill of
Rights) xxx of the 1973 Constitution, as amended, remain in force and effect and are hereby adopted in
toto as part of this provisional Constitution. (Emphasis supplied)
48

xxx
Q.
You said you found money instead of weapons, do you know the reason why
your team seized this money instead of weapons?
A.
I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was already dark and
they felt most secured if they will bring that because they might be suspected also of
taking money out of those items, your Honor.49
Cross-examination
Atty. Banaag
Q.
Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?
A.

Yes, sir.

Q.
And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A.

Yes, sir.

xxx
AJ AMORES
Q.
Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?
A.
The Intelligence Operatives conducted surveillance together
MSU elements, your Honor.
Q.
And this party believed there were weapons deposited in the
Miss Elizabeth Dimaano?
A.

Yes, your Honor.

Q.

And they so swore before the Municipal Trial Judge?

A.

Yes, your Honor.

with the

house of

Q.
But they did not mention to you, the applicant for the search warrant, any
other properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?

49

TSN, 18 April 1989, pp. 115-117.

A.
They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not include that
in the application for search warrant considering that we have not established
concrete evidence about that. So when
Q.
So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?
A.

Yes, your Honor.50

xxx
Q.
You stated that a .45 caliber pistol was seized along with one armalite rifle
M-16 and how many ammunition?
A.

Forty, sir.

Q.
And this became the subject of your complaint with the issuing Court, with
the fiscals office who charged Elizabeth Dimaano for Illegal Possession of Firearms
and Ammunition?
A.

Yes, sir.

Q.

Do you know what happened to that case?

A.

I think it was dismissed, sir.

Q.

In the fiscals office?

A.

Yes, sir.

Q.
Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A.

I think that was the reason, sir.

Q.
There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A.
I think it was the decision of the overall team leader and his assistant to bring
along also the jewelries and other items, sir. I do not really know where it was taken
but they brought along also these articles. I do not really know their reason for
bringing the same, but I just learned that these were taken because they might get
lost if they will just leave this behind.
xxx

50

Ibid., pp. 136-138.

Q.
How about the money seized by your raiding team, they were not also
included in the search warrant?
A.
Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were suspected
to be containing pistols or other high powered firearms, but in the course of the
search the contents turned out to be money. So the team leader also decided to
take this considering that they believed that if they will just leave the money behind, it
might get lost also.
Q.
That holds true also with respect to the other articles that were seized by
your raiding team, like Transfer Certificates of Title of lands?
A.

Yes, sir. I think they were contained in one of the vaults that were opened.51

It is obvious from the testimony of Captain Sebastian that the warrant did not include
the monies, communications equipment, jewelry and land titles that the raiding team
confiscated. The search warrant did not particularly describe these items and the
raiding team confiscated them on its own authority. The raiding team had no legal
basis to seize these items without showing that these items could be the subject of
warrantless search and seizure.52 Clearly, the raiding team exceeded its authority
when it seized these items.
The seizure of these items was therefore void, and unless these items are
contraband per se,53 and they are not, they must be returned to the person from
whom the raiding seized them. However, we do not declare that such person is the
lawful owner of these items, merely that the search and seizure warrant could not be
used as basis to seize and withhold these items from the possessor. We thus hold
that these items should be returned immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions
of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case
No. 0037, remanding the records of this case to the Ombudsman for such
appropriate action as the evidence may warrant, and referring this case to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano, are AFFIRMED.
SO ORDERED.
51

Ibid., pp. 144-146.

Five generally accepted exceptions to the rule against warrantless search and seizure have been
judicially formulated as follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3)
seizure of evidence in plain view, (4) customs searches, and (5) waiver by the accused themselves of
their right against unreasonable search and seizure. (People v. Que Ming Kha, G.R. No. 133265, 31 May
2002; Caballes v. Court of Appeals, G.R. No. 136292, 15 January 2002; People v. Lacerna, G.R. No.
109250, 5 September 1997, 278 SCRA 561).
52

People v. Lim, G.R. No. 141699, 7 August 2002; Del Rosario v. People, G.R. No. 142295, 31 May 2001,
358 SCRA 373.
53

Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.,

concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring
opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato
Puno.
Tinga, J., separate opinion reserved.

G.R. No. 78059 August 31, 1987

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
That I am the OIC Governor of Rizal having been appointed as such on March 20, 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.
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.
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 ...
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.
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.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that
the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed
per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section
27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite
held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on
that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been
ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the
Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that
the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that
the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor
and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is
the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the

mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee
as indicated in Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an
additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the
second proposed amendment after the word "constitutions" because the committee feels that when we
talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request
that I be allowed to read the second amendment so the Commission would be able to appreciate the
change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE
DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS
OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the
second proposed amendment in the form of a new sentence would not be exactly necessary and the
committee feels that it would be too much for us to impose a time frame on the President to make the
proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be faithfully complied. When
we approve this first sentence, and it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have cited. It would be too much to impose on the
President a time frame within which she will make that declaration. It would be assumed that the

President would immediately do that after the results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate
proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes
the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of
the Constitution should commence on the date of the ratification, not on the date of the proclamation of
the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation
of the President was that the draft presented to the people said that the amendment will be effective upon
the proclamation made by the President. I have a suspicion that was put in there precisely to give the
President some kind of leeway on whether to announce the ratification or not. Therefore, we should not
make this dependent on the action of the President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELEC and it should be the COMELEC who should
make the announcement that, in fact, the votes show that the Constitution was ratified and there should
be no need to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed
to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the
Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION
BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite
would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the

Commission on Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view
of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the
ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split
the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it
would be upon the announcement of the results of the canvass conducted by the COMELEC or the
results of the plebiscite held all over the country. But it is necessary that there be a body which will make
the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC
itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the
stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely confirms the ratification even if the
results are released two or three days after. I think it is a fundamental principle in political law, even in civil
law, because an announcement is a mere confirmation The act of ratification is the act of voting by the
people. So that is the date of the ratification. If there should be any need for presidential proclamation,
that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner
Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of
the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to

the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a
definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission
on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a proclamation of
the results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial because
under the law, the administration of all election laws is under an independent Commission on Elections. It
is the Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections
says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of
the casting of the votes, what we mean is that the Constitution takes effect on every single minute and
every single second of that day, because the Civil Code says a day has 24 hours.So that even if the votes
are cast in the morning, the Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on
the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no
matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of
the canvass by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the

proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President,
would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that
is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or
amendment of the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the date of election
because as of that time it is impossible to determine whether there is a majority. At the end of the day of
election or plebiscite, the determination is made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I
support the view of Commissioner Bernas and the others because the ratification of the Constitution is on
the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law,
if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified
by the principal, the validity does not begin on the date of ratification but it retroacts from the date the
contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast
their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective
on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make the formal announcement of the
results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.

We ask for a vote, Madam President.

VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in
the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to
have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2,
1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted
replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so
provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article
XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the
first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71
provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious
questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement
thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of
the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court
of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31,
1987. 3 (Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the
Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief
Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder.
She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la
Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having
acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the
new Constitution was ratified. I yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the

tenure of government functionaries, as follows:

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.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on
February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on
February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag 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.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not
at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during
such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid
under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the
date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation
No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our

decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of
nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976
amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by
the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of
this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have
been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of
the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The
Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held,
together with the election for local officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date
the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the
Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full
Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in
full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and
2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the
same:
. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the
Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its
Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments
to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the

amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states,
that:
The proposed amendments shall take effect on the date the President of the Philippines shall proclaim
that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not
later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes
cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section
2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite
is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act
No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The
April 9, 1947 Resolution makes no mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of
1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2,
1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a
categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8,
1987 were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that
the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed

per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section
27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite
held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on
that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been
ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the
Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that
the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that
the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor
and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is
the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they
cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee
as indicated in Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an
additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second
amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the
second proposed amendment after the word "constitutions" because the committee feels that when we
talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request
that I be allowed to read the second amendment so the Commission would be able to appreciate the
change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE
DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS
OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the
second proposed amendment in the form of a new sentence would not be exactly necessary and the
committee feels that it would be too much for us to impose a time frame on the President to make the
proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be faithfully complied. When
we approve this first sentence, and it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with the law in accordance with the
provisions in the Article on the Executive which we have cited. It would be too much to impose on the
President a time frame within which she will make that declaration. It would be assumed that the
President would immediately do that after the results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate
proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes
the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of
the Constitution should commence on the date of the ratification, not on the date of the proclamation of
the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were
ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation
of the President was that the draft presented to the people said that the amendment will be effective upon
the proclamation made by the President. I have a suspicion that was put in there precisely to give the
President some kind of leeway on whether to announce the ratification or not. Therefore, we should not
make this dependent on the action of the President since this will be a manifestation of the act of the
people to be done under the supervision of the COMELEC and it should be the COMELEC who should
make the announcement that, in fact, the votes show that the Constitution was ratified and there should
be no need to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed
to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the
Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION
BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite
would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution
would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the
Commission on Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view
of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the
ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split
the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it
would be upon the announcement of the results of the canvass conducted by the COMELEC or the
results of the plebiscite held all over the country. But it is necessary that there be a body which will make
the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC
itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the
stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the
date of the ratification of the Constitution The announcement merely confirms the ratification even if the
results are released two or three days after. I think it is a fundamental principle in political law, even in civil
law, because an announcement is a mere confirmation The act of ratification is the act of voting by the
people. So that is the date of the ratification. If there should be any need for presidential proclamation,
that proclamation will merely confirm the act of ratification.
Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner
Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of
the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to
the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a
definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission
on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a proclamation of
the results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial because
under the law, the administration of all election laws is under an independent Commission on Elections. It
is the Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections
says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of
the casting of the votes, what we mean is that the Constitution takes effect on every single minute and
every single second of that day, because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really effective from the previous
midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or
anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-

born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of
the canvass by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the
proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President,
would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that
is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or
amendment of the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the date of election
because as of that time it is impossible to determine whether there is a majority. At the end of the day of
election or plebiscite, the determination is made as of that time-the majority of the votes cast in a
plebiscite held on such and such a date. So that is the time when the new Constitution will be considered
ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I
support the view of Commissioner Bernas and the others because the ratification of the Constitution is on
the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law,
if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified
by the principal, the validity does not begin on the date of ratification but it retroacts from the date the
contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast
their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective
on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the
following bodies the Office of the President or the COMELEC will make the formal announcement of the
results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in
the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to
have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2,
1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted
replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer
produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987
within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on
February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so
provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article
XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the
first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71
provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious
questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement
thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of
the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court
of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31,
1987. 3 (Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the
Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief

Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder.
She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la
Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having
acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the
new Constitution was ratified. I yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the
tenure of government functionaries, as follows:
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.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on
February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on
February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag 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.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not
at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during
such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid
under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the
appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly
extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.

xxx xxx xxx

2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the
date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation
No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was
issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our
decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973
Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of
nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976
amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by
the Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as
of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have
been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of
the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The
Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held,
together with the election for local officials, on January 30, 1980, and that said amendment is hereby
declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date
the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the
Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full
Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in
full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and
2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the

same:
... shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the
Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its
Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments
to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the
amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states,
that:
The proposed amendments shall take effect on the date the President of the Philippines shall proclaim
that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not
later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite
is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act
No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The
April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs.
Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of
1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is
therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2,
1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a
categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8,

1987 were valid, the 1987 Constitution not being then as yet in force.
Footnotes
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623;
emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in favor and two
against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo, Minerva G. Reyes,
Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr., and their
appointments bear various dates from January 9, 1987 to January 31, 1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1; Malaya,
Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.

EN BANC

RAUL L. LAMBINO and ERICO B.

AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS,
Petitioners,

- versus -

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.

G.R. No. 174153

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 WOMENS
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. OSMEA 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
MAR-LEN ABIGAIL BINAY,

G.R. No. 174299

SOFRONIO UNTALAN, JR., and

RENE A.V. SAGUISAG,

Present:
Petitioners,

PANGANIBAN, C.J.,
- versus -

PUNO,
QUISUMBING,
YNARES-SANTIAGO,

COMMISSION ON ELECTIONS,

SANDOVAL-GUTIERREZ,

represented by Chairman BENJAMIN

CARPIO,

S. ABALOS, SR., and Commissioners

AUSTRIA-MARTINEZ,

RESURRECCION Z. BORRA,
FLORENTINO A. TUASON,
ROMEO A. BRAWNER,
RENE V. SARMIENTO,
NICODEMO T. FERRER, and
John Doe and Peter Doe,

CORONA,
JR.,

CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,

Respondents. GARCIA, and

VELASCO, JR., JJ.

Promulgated:

October 25, 2006

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

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 groups54 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)55 and Section 756 of Republic Act No. 6735 or the Initiative and Referendum
Act (RA 6735).

54

55

Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
This provision states: Requirements. x x x x
(b)
A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered voters
therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.
(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;

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 Groups initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)57 and Sections 1-4 of Article VII
(Executive Department)58 and by adding Article XVIII entitled Transitory
Provisions.59 These proposed changes will shift the present Bicameral-Presidential

c.4.

that it is not one of the exceptions provided herein;

c.5.

signatures of the petitioners or registered voters; and

c.6.
an abstract or summary in not more than one hundred (100) words which shall
be legibly written or printed at the top of every page of the petition.
56

This provision states: Verification of Signatures. The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters identification
cards used in the immediately preceding election.

57

Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to be
apportioned among the provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as
practicable, contiguous, compact and adjacent territory, and each province must have at least
one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which shall
be provided for by law and whose number shall be equal to twenty per centum of the total
membership coming from the parliamentary districts.

58

Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive
power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime
Minister shall be elected by a majority of all the Members of Parliament from among themselves.
He shall be responsible to the Parliament for the program of government.

59

Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the
expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise
their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987
Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all
other sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in
which case, they shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to Congress, Senate,
House of Representatives and Houses of Congress shall be changed to read Parliament;
that any and all references therein to Member*s+ of Congress, Senator*s+ or Member*s+ of
the House of Representatives shall be changed to read as Member*s+ of Parliament and any
and all references to the President and or Acting President shall be changed to read Prime
Minister.
Section 3. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution
which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all
other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall
be deemed amended so as to conform to a unicameral Parliamentary System of government;
provided however that any and all references therein to Congress, Senate, House of
Representatives and Houses of Congress shall be changed to read Parliament; that any and
all references therein to Member*s+ of Congress, Senator*s+ or Member*s+ of the House of
Representatives shall be changed to read as Member*s+ of Parliament and any and all
references to the President and or Acting President shall be changed to read Prime
Minister.
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the Senate
and the House of Representatives and the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until
noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions for
the election of the interim Prime Minister and until the Speaker shall have been elected by a
majority vote of all the members of the interim Parliament from among themselves.

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.60

(3) Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent
with the principles of local autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,
from among the members of the interim Parliament, an interim Prime Minister, who shall be
elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the
various ministries and shall perform such powers and responsibilities as may be delegated to him
by the incumbent President.
(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. Thereafter, the Vice President, as Member of Parliament, shall immediately convene the
Parliament and shall initially preside over its session for the purpose of electing the Prime
Minister, who shall be elected by a majority vote of all

60

its members, from among themselves. The duly elected Prime Minister shall continue to exercise
and perform the powers, duties and responsibilities of the interim Prime Minister until the
expiration of the term of incumbent President and Vice President.
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified paragraph
2, Section 5, thus:
Section 4. x x x x
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until
noon of the thirtieth day of June 2010.
xxxx
Section 5. x x x x

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course
to the Lambino Groups petition for lack of an enabling law governing initiative
petitions to amend the Constitution. The COMELEC invoked this Courts ruling in
Santiago v. Commission on Elections61 declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend the Constitution.62

(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. The duly elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.
61
62

336 Phil. 848 (1997); Resolution dated 10 June 1997.

The COMELEC held:
We agree with the Petitioners that this Commission has the solemn Constitutional
duty to enforce and administer all laws and regulations relative to the conduct of, as in this
case, initiative.

This mandate, however, should be read in relation to the other provisions of the
Constitution particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly

proposed by the people through initiative, upon a petition of at least twelve
per centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of the
registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of
this right.

The afore-quoted provision of the Constitution being a non self-executory provision

needed an enabling law for its implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of initiative to directly propose, enact,

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
approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress
enacted Republic Act No. 6735.

However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court likewise declared that this Commission should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on amendments to
the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required
minimum per centum of the total number of registered voters, of which every legislative district
is represented by at least three per centum of the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared R.A. No. 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the
people under a system of initiative. However, neither can we turn a blind eye to the
pronouncement of the High Court that in the absence of a valid enabling law, this right of the
people remains nothing but an empty right, and that this Commission is permanently
enjoined from entertaining or taking cognizance of any petition for initiative on amendments to
the Constitution.

Considering the foregoing, We are therefore constrained not to entertain or

give due course to the instant Petition.

in contempt for the COMELECs verification of signatures and for entertaining the
Lambino Groups petition despite the permanent injunction in Santiago. The Court
treated the Binay Groups petition as an opposition-in-intervention.

In his Comment to the Lambino Groups 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 Groups petition. The supporting intervenors63 uniformly hold
the view that the COMELEC committed grave abuse of discretion in relying on
Santiago. On the other hand, the opposing intervenors64 hold the contrary view and
maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Groups standing to file the petition; (2) the validity of the
signature gathering and verification process; (3) the Lambino Groups compliance
with the minimum requirement for the percentage of voters supporting an initiative
petition under Section 2, Article XVII of the 1987 Constitution;65 (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 Groups
compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject.

63

Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport and
General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong Bayan
Movement Foundation, Inc.

64

Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V.
Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan
Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's
Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas;
Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa
Antonino; 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; Senate
of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and
Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate
Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmea III, Jamby Madrigal, Jinggoy
Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

65

This provision states: 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.

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 Groups initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a peoples 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 Groups 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 peoples initiative. Thus, there is even no need to

revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Groups glaring failure to comply with the basic requirements of the
Constitution. For following the Courts 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 peoples 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.66 (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
66

I RECORD, 387-388.

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 borrowed67 the concept of peoples initiative
from the United States where various State constitutions incorporate an initiative
clause. In almost all States68 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.69

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

67

During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento made the
following report (I RECORD 389):
MR. SARMIENTO:
Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States provide
for a system of initiative as a mode of amending the Constitution Arizona, Arkansas,
California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio,
Oklahoma and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and
South Dakota. So, I am happy that this was accepted or retained by the Committee.
xxxx

68

69

The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South
Dakota adopted the initiative in its constitution. The Swiss cantons experimented with initiatives in the
1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their national constitution.
Initiatives promote direct democracy by allowing the people to directly propose amendments to the
constitution. In contrast, the traditional mode of changing the constitution is known as indirect
democracy because the amendments are referred to the voters by the legislature or the constitutional
convention.
Florida requires only that the title and summary of the proposed amendment are printed in clear and
unambiguous language. Advisory Opinion to the Attorney General RE Right of Citizens to Choose Health
Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida.
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz. 211, 125
P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen
v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town Council of Town of
Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL
1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.

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.70
(Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,71 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.72

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 peoples initiative. In particular, the deliberations
of the Constitutional Commission explicitly reveal that the framers intended that the
people must first see the full text of the proposed amendments before they
sign, and that the people must sign on a petition containing such full text.
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that
70

71
72

407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly, 743 F.
Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990),
and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001).
89 P.3d 1227, 1235 (2004).
Stumpf v. Law, 839 P. 2d 120, 124 (1992).

the Lambino Group invokes as valid, requires that the people must sign the petition
x x x as signatories.

The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public officials.
The proponents are not disinterested parties who can impartially explain the
advantages and disadvantages of the proposed amendments to the people. The
proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay
those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of
proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full
text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of
the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet73 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
attached74 to the opposition in intervention filed on 7 September 2006 by intervenor
Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadras opposition and the signature sheet
attached to the Lambino Groups Memorandum are the same. We reproduce below
the signature sheet in full:

Province:

City/Municipality:

Legislative
District:

Barangay:

No. of
Verified

73
74

Signatures:

Exhibit B of the Lambino Groups Memorandum filed on 11 October 2006.

Annex B of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7 September
2006.

PROPOSITION: DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI

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

I hereby APPROVE the proposed amendment to the 1987 Constitution. My

signature herein which shall form part of the petition for initiative to amend the
Constitution signifies my support for the filing thereof.

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

_________________

Witness

(Print Name and Sign)

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

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

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

The Lambino Group would have this Court believe that they prepared the draft of the
30 August 2006 amended petition almost seven months earlier in February 2006
when they started gathering signatures. Petitioner Erico B. Aumentados
Verification/Certification of the 25 August 2006 petition, as well as of the 30 August
2006 amended petition, filed with the COMELEC, states as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal

capacity as a registered voter, for and on behalf of the Union of Local Authorities
of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached,
and as representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the Official Website of the Union of Local Authorities of
the Philippines75 has posted the full text of Resolution No. 2006-02, which provides:

75

www.ulap.gov.ph.

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLES
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLES
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
Peoples 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 Peoples 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 Peoples
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 PEOPLES
CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH
PEOPLES 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.76 (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
76

www.ulap.gov.ph/reso2006-02.html.

COMELEC. ULAP Resolution No. 2006-02 support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through peoples initiative
and referendum as a mode of amending the 1987 Constitution. The proposals of the
Consultative Commission77 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 Groups proposed changes do not touch. The Lambino Groups 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. 200602 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 Groups 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 Groups 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.

77

The full text of the proposals of the Consultative Commission on Charter Change can be downloaded at its
official website at www.concom.ph.

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 Groups 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 Groups proposed changes were not incorporated
with, or attached to, the signature sheets. The Lambino Groups 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 Groups 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.78 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.

78

The Lambino Groups Memorandum, p. 5.

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 Groups 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:

79

80

81

1.

The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;79

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; 80

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.81

Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be elected
for a term of five years without limitation as to the number thereof.
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the interim
Parliament shall continue until the Members of the regular Parliament shall have been elected and shall
have qualified. Also, under the proposed Section 5(2), Article XVIII, of the same Transitory Provisions,
the interim Parliament shall provide for the election of the members of Parliament.
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the interim

These three specific amendments are not stated or even indicated in the Lambino
Groups 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.

Parliament, within 45 days from ratification of the proposed changes, shall convene to propose
amendments to, or revisions of, this Constitution.

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 Groups 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 Groups initiative.

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

Under American jurisprudence, the effect of logrolling is to nullify the entire

proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,82
the Supreme Court of Florida declared:

Combining multiple propositions into one proposal constitutes logrolling,

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

Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,83 the Supreme Court of Alaska warned against inadvertence, stealth and
fraud in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that
the single-subject rule was enacted to prevent are exacerbated. There is a greater
danger of logrolling, or the deliberate intermingling of issues to increase the
likelihood of an initiatives passage, and there is a greater opportunity for
inadvertence, stealth and fraud in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties clearly distinguish the initiative
from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments
or revisions to be undertaken by the interim Parliament as a constituent assembly.
The people who signed the signature sheets could not have known that their

82
83

448 So.2d 984, 994 (1984), internal citations omitted.

698 P.2d 1173, 1184 (1985).

signatures would be used to propose an amendment mandating the interim

Parliament to propose further amendments or revisions to the Constitution.

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

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

There is another intriguing provision inserted in the Lambino Groups 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 Parliaments 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 nations
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 Groups 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 peoples initiative to change the Constitution applies only to an amendment of the

Constitution and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the Constitution. Article
XVII of the Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

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

(1)
(2)

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

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 peoples initiative.

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

MR. SUAREZ: Thank you, Madam President.

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

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

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

xxxx

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

separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section as if it were a
self-executing provision?

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

MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;

whereas, the process of initiation to amend, which is given to the public, would
only apply to amendments?

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

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

xxxx

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

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

MR. MAAMBONG:

Thank you.84

(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 peoples 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,85 the Supreme Court of California ruled:

84

I RECORD 386, 392, 402-403.

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:86

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.

85

196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).

86

392 P.2d 636, 638 (1964).

Whether it be a revision or a new constitution, it is not such a measure as can be

submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x x
xx
Similarly, in this jurisdiction there can be no dispute that a peoples 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. 364:87

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 peoples initiative may only amend, never revise, the
Constitution.

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

87

930 P.2d 186, 196 (1996), internal citations omitted.

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.88 (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-andbalances. 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.89 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.90 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.91 A change in the nature of the basic governmental plan also includes

88
89

90
91

Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286
(1978).
Id.
Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

changes that jeopardize the traditional form of government and the system of check
and balances.92

Under both the quantitative and qualitative tests, the Lambino Groups initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Groups
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.93
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 Groups 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
92
93

California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).
See note 44, infra.

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.94 (Emphasis supplied)

In Adams v. Gunter,95 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.

94
95

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294 (2003).
238 So.2d 824 (1970).

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.96 (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Groups 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 Groups present initiative, no less than 105 provisions
of the Constitution would be affected based on the count of Associate Justice
Romeo J. Callejo, Sr.97 There is no doubt that the Lambino Groups 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
96
97

Id. at 830-832.
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments.

vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words
revision and amendment pertain only to the process or procedure of
coming up with the corrections, for purposes of interpreting the constitutional
provisions.

100. Stated otherwise, the difference between amendment and

revision cannot reasonably be in the substance or extent of the correction. x
x x x (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional

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

The express intent of the framers and the plain language of the
Constitution contradict the Lambino Groups theory. Where the intent of the
framers and the language of the Constitution are clear and plainly stated, courts do
not deviate from such categorical intent and language.98 Any theory espousing a
construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of
government established in the Constitution. Such a theory, devoid of any
jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes
the flimsiness of the Lambino Groups position. Any theory advocating that a
proposed change involving a radical structural change in government does not
constitute a revision justly deserves rejection.

98

Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44; J.M.
Tuason& Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation
v. Rodriguez, 66 Phil. 259 (1938).

The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v.
Keisling,99 the Supreme Court of Oregon rejected this theory, thus:

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

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

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

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

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

99

882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in question
was not a revision.

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

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

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

Where the proposed change applies only to a specific provision of the

Constitution without affecting any other section or article, the change may generally
be considered an amendment and not a revision. For example, a change reducing
the voting age from 18 years to 15 years100 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.101 Also, a change
requiring a college degree as an additional qualification for election to the Presidency
is an amendment and not a revision.102

The changes in these examples do not entail any modification of sections or articles
of the Constitution other than the specific provision being amended. These changes
do not also affect the structure of government or the system of checks-and-balances
among or within the three branches. These three examples are located at the far
green end of the spectrum, opposite the far red end where the revision sought by the
present petition is located.
However, there can be no fixed rule on whether a change is an amendment
or a revision. A change in a single word of one sentence of the Constitution may be
a revision and not an amendment. For example, the substitution of the word
republican with monarchic or theocratic in Section 1, Article II103 of the
Constitution radically overhauls the entire structure of government and the
100
101
102
103

Section 1, Article V of the Constitution.

Section 11(1), Article XVI of the Constitution.
Section 2, Article VII of the Constitution.
This section provides: The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.

fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a

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

In the present initiative, the Lambino Groups proposed Section 2 of the Transitory
Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the
1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with
the Parliamentary system of government, in which case, they shall be amended
to conform with a unicameral parliamentary form of government; x x x x
(Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Groups draft of Section 2 of
the Transitory Provisions turns on its head this rule of construction by stating that in
case of such irreconcilable inconsistency, the earlier provision shall be amended to
conform with a unicameral parliamentary form of government. The effect is to freeze
the two irreconcilable provisions until the earlier one shall be amended, which
requires a future separate constitutional amendment.

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

The irreconcilable inconsistency envisioned in the proposed Section 2 of the

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

Now, what unicameral parliamentary form of government do the Lambino Groups

proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand
models, which are among the few countries with unicameral parliaments? The
proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of
government?

This drives home the point that the peoples initiative is not meant for revisions of the
Constitution but only for amendments. A shift from the present BicameralPresidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution.
Revision of the
Constitution through a peoples initiative will only result in gross absurdities in the
Constitution.

In sum, there is no doubt whatsoever that the Lambino Groups 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
peoples initiative to [A]mendments to this Constitution.

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

The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and scope
of a peoples initiative to amend the Constitution. There is no need to revisit this
Courts ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in
essential terms and conditions to cover the system of initiative to amend the
Constitution. An affirmation or reversal of Santiago will not change the outcome of

the present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of the
Constitution to implement the initiative clause on amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if
the case before the Court can be resolved on some other grounds. Such avoidance
is a logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds.104

Nevertheless, even assuming that RA 6735 is valid to implement the

constitutional provision on initiatives to amend the Constitution, this will not change
the result here because the present petition violates Section 2, Article XVII of the
Constitution. To be a valid initiative, the present initiative must first comply with
Section 2, Article XVII of the Constitution even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that
the petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories. Section 5(b)
of RA 6735 requires that the people must sign the petition x x x as signatories.

The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition
and amended petition as counsels for Raul L. Lambino and Erico B.
Aumentado, Petitioners. In the COMELEC, the Lambino Group, claiming to act
together with the 6.3 million signatories, merely attached the signature sheets to
the petition and amended petition. Thus, the petition and amended petition filed with
the COMELEC did not even comply with the basic requirement of RA 6735 that the
Lambino Group claims as valid.

The Lambino Groups 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 Groups initiative will still fail.

104

Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999).

4.

The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Groups Initiative

In dismissing the Lambino Groups initiative petition, the COMELEC en banc merely
followed this Courts ruling in Santiago and Peoples Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.105 For following this Courts
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

105

G.R. No. 129754, Resolution dated 23 September 1997.

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 cast106 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 peoples 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
peoples 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 peoples voice, peoples 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 peoples
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
nations stability.

The Lambino Group claims that their initiative is the peoples 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 peoples
initiative is an unqualified support to the agenda of the incumbent President to

106

Presidential Proclamation No. 58 dated February 11, 1987, entitled Proclaiming the Ratification of the
Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of 1986,
including the Ordinance Appended thereto.

change the Constitution. This forewarns the Court to be wary of incantations of

peoples 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 peoples 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 Courts raison d'etre.

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

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO

LEONARDO A.
QUISUMBING

Associate Justice
Associate Justice

CONSUELO YNARESSANTIAGO

ANGELINA SANDOVALGUTIERREZ

Associate Justice

Associate Justice

MA. ALICIA AUSTRIAMARTINEZ

RENATO C. CORONA
Associate Justice

Associate Justice

CONCHITA CARPIO
MORALES

ROMEO J. CALLEJO, SR.

Associate Justice

Associate Justice

ADOLFO S. AZCUNA

DANTE O. TINGA

Associate Justice

Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief
Justice

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

SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF
PRINTING, respondents.

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

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B.
MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

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

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

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

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be
exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of votes necessary for
the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976
Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers
and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the Members thereof." 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 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."'
Footnotes
1 Resolution Nos. 28, 104 and 106(1981).
2 Javellana v. The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.
3 L-56350, Samuel C. Occena v. The Commission on Elections, The Commission on Audit, The National
Treasurer and the Director of Printing.
4 L-56404, Ramon A. Gonzales v. The National Treasurer and the Commission on Elections. The other
co-petitioners are Manuel B. Imbong, Jo Aurea Marcos- Imbong, Ray Allan T. Drilon, Nelson V. Malana
and Gil M. Tabios.
5 There was on March 24 an amended petition in Occena, adopting the theory of petitioner Gonzales that
the 1935 Constitution was once again in force and effect.
6 It should not be lost sight of that four other cases where decided in the joint resolution of dismissal
dated March 31, 1973, Tan v. The Executive Secretary, L-36164; Roxas v. Melchor, L-36165; Monteclaro
v. The Executive Secretary, L-36236; Dilag v. The Honorable Executive Secretary, L-36283, all reported
in 50 SCRA 30.
7 The six votes came from Justices Makalintal Castro, Barredo, Makasiar, Antonio and Esguerra.
8 The four votes were cast by then Chief Justice Concepcion, the late Justice Zaldivar, and Justice
Teehankee as well as the writer of this opinion.
9 50 SCRA at 141. Concepcion, C.J., dissented from this concluding statement.
10 Black, The People and the Court 56-58 (1962).
11 Murphy, Elements of Judicial Strategy 17-18 (1964).
12 G.R. No. 56158-64, March 17, 1981.
13 Cf. Garcia v. Domingo, L-30104, July 25, 1973, 52 SCRA 143;
Buendia v. City of Baguio, L-34011, July 25, 1973, 52 SCRA 155; Flores v. Flores, L-28930, August 17,
1973, 52 SCRA 293; Alfanta v. Nao, L-32362, September 19, 1973, 53 SCRA 76; People v. Molina, L30191, October 7, 1973, 53 SCRA 495; People v. Zamora, L-34090, November 16, 1973, 54 SCRA 47;
Republic v. Villasor, L-30671, November 28, 1973, 54 SCRA 83; Paulo v. Court of Appeals, L-33845,
December 18, 1973, 54 SCRA 253; People v. Bacong, L-36161,
December 19, 1973, 54 SCRA 288 and Asian Surety and Insurance Co. v. Herrera, L-25232, December
20, 1973, 54 SCRA 312.
It may be mentioned that the first of such cases, Garcia, was promulgated on July 25, 1973 with the writer

of this opinion as opposite and the next case, Buendia, also on the same date, with Justice Teehankee as
ponente, both of whom were dissenters in Javellana, but who felt bound to abide by the majority decision.
14 1976 Amendments, par. 2. The last sentence follows: "However, it shall not exercise the powers
provided in article VIII, Section 14, (1) of the Constitution." Article VIII, Section 14, par. (1) reads as
follows: "Except as otherwise provided in this Constitution. no treaty shall be valid and effective unless
concurred in by a majority of all the members of the National Assembly."
15 Article XVII, Section 15 of the Constitution reads as follows: "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."
16 L-52265, 95 SCRA 755.
17 Ibid, 762.
18 L-32476, October 20, l970, 35 SCRA 367.
19 lbid, 369-370.
20 Cf. Ex parte Kerby, 205 P279 (1922).
21 Article XVI, Section 2 of the Constitution.
22 L-52265, 95 SCRA 755, 762. The writer of this opinion, along with retired Chief Justice Concepcion
and Justices Makalintal and Bengzon, is committed to the view expressed in the ponencia of the retired
Chief Justice that in the final analysis the question of proper
submission reduces itself not as to power, which is the concern of the judiciary, but as to wisdom, which is
entrusted to the constituent body proposing the amendments. Gonzales v. Commission on Elections, L28196, November 9, 1967, 21 SCRA 774, 801. The opposing view was set forth by Justice Sanchez.
Teehankee, J.
1 73 SCRA 333 (1976).
2 80 SCRA 538 (1977).
3 80 SCRA 525 (1977).
4 L-34150, Oct. 16, 1971, 41 SCRA 702 and Resolution denying motion for reconsideration dated Nov. 4,
1971.
5 21 SCRA 774.
6 21 SCRA, at page 817.

Today is Wednesday, November 26, 2014

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1123

March 5, 1947

ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.

Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio

Araneta, Antonio Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Taada, and First Assistant Solicitor
General Reyes for respondents.

TUASON, J.:

This is a petition for prohibition to prevent the enforcement of a congressional

resolution designated "Resolution of both houses proposing an amendment to the
Constitution of the Philippines to be appended as an ordinance thereto." The
members of the Commission on Elections, the Treasurer of the Philippines, the
Auditor General, and the Director of the Bureau of Printing are made defendants, and
the petitioners are eight senators, seventeen representatives, and the presidents of
the Democratic Alliance, the Popular Front and the Philippine Youth Party. The
validity of the above-mentioned resolution is attacked as contrary to the Constitution.

The case was heard on the pleadings and stipulation of facts. In our view of the case
it is unnecessary to go into the facts at length. We will mention only the facts
essential for the proper understanding of the issues. For this purpose it suffices to
say that three of the plaintiff senators and eight of the plaintiff representatives had
been proclaimed by a majority vote of the Commission on Elections as having been
elected senators and representatives in the elections held on April 23, 1946. The
three senators were suspended by the Senate shortly after the opening of the first
session of Congress following the elections, on account of alleged irregularities in
their election. The eight representatives since their election had not been allowed to
sit in the lower House, except to take part in the election of the Speaker, for the same
reason, although they had not been formally suspended. A resolution for their
suspension had been introduced in the House of Representatives, but that resolution
had not been acted upon definitely by the House when the present petition was filed.

As a consequence these three senators and eight representatives did not take part in
the passage of the questioned resolution, nor was their membership reckoned within
the computation of the necessary three-fourths vote which is required in proposing
an amendment to the Constitution. If these members of Congress had been counted,
the affirmative votes in favor of the proposed amendment would have been short of
the necessary three-fourths vote in either branch of Congress.

At the threshold we are met with the question of the jurisdiction of this Court. The
respondents deny that this Court has jurisdiction, relying on the conclusiveness on
the courts of an enrolled bill or resolution. There is some merit in the petitioners'
contention that this is confusing jurisdiction, which is a matter of substantive law, with
conclusiveness of an enactment or resolution, which is a matter of evidence and
practice. This objection, however, is purely academic. Whatever distinction there is in
the juridical sense between the two concepts, in practice and in their operation they
boil down to the same thing. Basically the two notions are synonymous in that both
are founded on the regard which the judiciary accords a co-equal coordinate, and
independent departments of the Government. If a political question conclusively
binds the judges out of respect to the political departments, a duly certified law or
resolution also binds the judges under the "enrolled bill rule" born of that respect.

It is a doctrine too well established to need citation of authorities, that political

questions are not within the province of the judiciary, except to the extent that power
to deal with such questions has been conferred upon the courts by express
constitutional or statutory provision. (16 C.J.S., 431.) This doctrine is predicated on
the principle of the separation of powers, a principle also too well known to require
elucidation or citation of authorities. The difficulty lies in determining what matters fall
within the meaning of political question. The term is not susceptible of exact
definition, and precedents and authorities are not always in full harmony as to the
scope of the restrictions, on this ground, on the courts to meddle with the actions of
the political departments of the government.

But there is one case approaching this in its circumstances: Coleman vs. Miller, a
relatively recent decision of the United States Supreme Court reported and
annotated in 122 A.L.R., 695. The case, by a majority decision delivered by Mr. Chief
Justice Hughes, is authority for the conclusion that the efficacy of ratification by state
legislature of a proposed amendment to the Federal Constitution is a political
question and hence not justiciable. The Court further held that the decision by
Congress, in its control of the Secretary of State, of the questions of whether an
amendment has been adopted within a reasonable time from the date of submission
to the state legislature, is not subject to review by the court.

If ratification of an amendment is a political question, a proposal which leads to

ratification has to be a political question. The two steps complement each other in a
scheme intended to achieve a single objective. It is to be noted that the amendatory
process as provided in section 1 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.
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. As the Mississippi Supreme Court
has once said:

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.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)

Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter

and Douglas, in Miller vs. Coleman, supra, finds no basis for discriminating between
proposal and ratification. From his forceful opinion we quote the following
paragraphs:

The Constitution grant Congress exclusive power to control submission of

constitutional amendments. Final determination by Congress that 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, whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the Constitution, call for
decisions by a "political department" of questions of a type 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, leaving to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and ratification of amendments,
we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper
procedure is being followed between submission and final adoption. However, it is
apparent that judicial review of or pronouncements upon a supposed limitation of a
"reasonable time" within which Congress may accept ratification; as to whether duly
authorized State officials have proceeded properly in ratifying or voting for
ratification; or whether a State may reverse its action once taken upon a proposed
amendment; and kindred questions, are all consistent only with an intimate control
over the amending process in the courts. And this must inevitably embarrass the
course of amendment by subjecting to judicial interference matters that we believe
were intrusted by the Constitution solely to the political branch of government.

The Court here treats the amending process of the Constitution in some respects as
subject to judicial construction, in others as subject to the final authority of the
Congress. There is no disapproval of the conclusion arrived at in Dillon vs. Gloss,
that the Constitution impliedly requires that a properly submitted amendment must
die unless ratified within a "reasonable time." Nor does the Court now disapprove its
prior assumption of power to make such a pronouncement. And it is not made clear
that only Congress has constitutional power to determine if there is any such
implication in Article 5 of the Constitution. On the other hand, the Court's opinion
declares that Congress has the exclusive power to decide the "political questions" of
whether as State whose legislature has once acted upon a proposed amendment
may subsequently reverse its position, and whether, in the circumstances of such a
case as this, an amendment is dead because an "unreasonable" time has elapsed.
No such division between the political and judicial branches of the government is
made by Article 5 which grants power over the amending of the Constitution to
Congress alone. Undivided control of that process has been given by the Article
exclusively and completely to Congress. The process itself is "political" in its entirely,
from submission until an amendment becomes part of the Constitution, and is not
subject to judicial guidance, control or interference at any point.

Mr. Justice Frankfurter, in another concurring opinion to which the other three
justices subscribed, arrives at the same conclusion. Though his thesis was the
petitioner's lack of standing in court a point which not having been raised by the
parties herein we will not decide his reasoning inevitably extends to a
consideration of the nature of the legislative proceeding the legality of which the
petitioners in that case assailed. From a different angle he sees the matter as
political, saying:

The right of the Kansas senators to be here is rested on recognition by Leser vs.
Garnett, 258 U.S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect
his franchise. The historic source of this doctrine and the reasons for it were
explained in Nixon vs. Herndon, 273 U.S., 436, 540; 71 Law. ed., 759, 761; 47 S. Ct.,
446. That was an action for $5,000 damages against the Judges of Elections for
refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of
the objection that the plaintiff had no cause of action because the subject matter of
the suit was political, Mr. Justice Homes thus spoke for the Court: "Of course the
petition concerns political action, but it alleges and seeks to recover for private
damage. That private damage may be caused by such political action and may be
recovered for in a suit at law hardly has been doubted for over two hundred years,
since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas.,
521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this
Court." "Private damage" is the clue to the famous ruling in Ashby vs. White, supra,
and determines its scope as well as that of cases in this Court of which it is the
justification. The judgment of Lord Holt is permeated with the conception that a
voter's franchise is a personal right, assessable in money damages, of which the
exact amount "is peculiarly appropriate for the determination of a jury," see Wiley vs.
Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for which there is no
remedy outside the law courts. "Although this matter relates to the parliament," said
Lord Holt, "yet it is an injury precedaneous to the parliament, as my Lord Hale said in
the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175. The
parliament cannot judge of this injury, nor give damage to the plaintiff for it: they
cannot make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1
Eng. Rul. Cas., 521.)

The reasoning of Ashby vs. White and the practice which has followed it leave intraparliamentary controversies to parliaments and outside the scrutiny of law courts.
The procedures for voting in legislative assemblies who are members, how and
when they should vote, what is the requisite number of votes for different phases of
legislative activity, what votes were cast and how they were counted surely are
matters that not merely concern political action but are of the very essence of political
action, if "political" has any connotation at all. Marshall Field & Co. vs. Clark, 143
U.S., 649, 670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495; Leser vs. Garnett, 258
U.S., 130, 137; 66 Law. ed., 505, 511; 42 S. Ct., 217. In no sense are they matters of
"private damage." They pertain to legislators not as individuals but as political
representatives executing the legislative process. To open the law courts to such
controversies is to have courts sit in judgment on the manifold disputes engendered
by procedures for voting in legislative assemblies. If the doctrine of Ashby vs. White
vindicating the private rights of a voting citizen has not been doubted for over two
hundred years, it is equally significant that for over two hundred years Ashby vs.

White has not been sought to be put to purposes like the present. In seeking redress
here these Kansas senators have wholly misconceived the functions of this Court.
The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.

We share the foregoing views. In our judgment they accord with sound principles of
political jurisprudence and represent liberal and advanced thought on the working of
constitutional and popular government as conceived in the fundamental law. Taken
as persuasive authorities, they offer enlightening understanding of the spirit of the
United States institutions after which ours are patterned.

But these concurring opinions have more than persuasive value. As will be presently
shown, they are the opinions which should operate to adjudicate the questions raised
by the pleadings. To make the point clear, it is necessary, at the risk of unduly
lengthening this decision, to make a statement and an analysis of the Coleman vs.
Miller case. Fortunately, the annotation on that case in the American Law Reports,
supra, comes to out aid and lightens our labor in this phase of the controversy.

Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme
Court of Kansas by twenty-one members of the Senate, including twenty senators
who had voted against a resolution ratifying the Child Labor Amendment, and by
three members of the House of Representatives, to compel the Secretary of the
Senate to erase in indorsement on the resolution to the effect that it had been
adopted by the Senate and to indorse thereon the words "as not passed." They
sought to restrain the offices of the Senate and House of Representatives from
signing the resolution, and the Secretary of State of Kansas from authenticating it
and delivering it to the Governor.

The background of the petition appears to have been that the Child Labor
Amendment was proposed by Congress in June, 1924; that in January, 1925, the
legislature of Kansad adopted a resolution rejecting it and a copy of the resolution
was sent to the Secretary of State of the United States; that in January, 1927, a new
resolution was introduced in the Senate of Kansas ratifying the proposed
amendment; that there were forty senators, twenty of whom voted for and twenty
against the resolution; and that as a result of the tie, the Lieutenant Governor cast his
vote in favor of the resolution.

The power of the Lieutenant Governor to vote was challenged, and the petition set
forth prior rejection of the proposed amendment and alleged that in the period from
June 1924 to March 1927, the proposed amendment had been rejected by both
houses of the legislatures of twenty-six states and had been ratified only in five
states, and that by reason of that rejection and the failure of ratification within a
reasonable time, the proposed amendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed
the petition on the merits. When the case reached the Supreme Court of the United
States the questions were framed substantially in the following manner:

First, whether the court had jurisdiction; that is, whether the petitioners had standing
to seek to have the judgment of the state court reversed; second, whether the
Lieutenant Governor had the right to vote in case of a tie, as he did, it being the
contention of the petitioners that "in the light of the powers and duties of the
Lieutenant Governor and his relation to the Senate under the state Constitution, as
construed by the Supreme Court of the state, the Lieutenant Governor was not a part
of the 'legislature' so that under Article 5 of the Federal Constitution, he could be
permitted to have a deciding vote on the ratification of the proposed amendment,
when the Senate was equally divided"; and third, the effect of the previous rejection
of the amendment and of the lapse of time after its submission.

The first question was decided in the affirmative. The second question, regarding the
authority of the Lieutenant Governor to vote, the court avoided, stating: "Whether this
contention presents a justiciable controversy, or a question which is political in its
nature and hence not justiciable, is a question upon which the Court is equally
divided and therefore the court expresses no opinion upon that point." On the third
question, the Court reached the conclusion before referred to, namely, (1) that the
efficacy of ratification by state legislature of a proposed amendment to the Federal
Constitution is a political question, within the ultimate power of Congress in the
exercise of its control and of the promulgation of the adoption of amendment, and (2)
that the decision by Congress, in its control of the action of the Secretary of State, of
the questions whether an amendment to the Federal Constitution has been adopted
within a reasonable time, is not subject to review by the court.

The net result was that the judgment of the Supreme Court of Kansas was affirmed
but in the grounds stated in the United States Supreme Court's decision. The nine
justices were aligned in three groups. Justices Roberts, Black, Frankfurter and
Douglas opined that the petitioners had no personality to bring the petition and that
all the questions raised are political and non-justiciable Justices Butler and
McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and
the decision of the Supreme Court of Kansas reversed on the ground that the
proposal to amend had died of old age. The Chief Justice, Mr. Justice Stone and Mr.
Justice Reed regarded some of the issues as political and non-justiciable, passed by
the question of the authority of the Lieutenant Governor to case a deciding vote, on
the ground that the Court was equally divided, and took jurisdiction of the rest of the
questions.

The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds,
on the one hand and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on
the other, was on the question of jurisdiction; on the result to be reached, these two
groups were divided. The agreement between Justices Roberts, Black, Frankfurter
and Douglas, on the one hand, and the Chief Justice and Justices Stone and Reed,
on the other, was on the result and on that part of the decision which declares certain
questions political and non-justiciable.

As the annotator in American Law Reports observes, therefore going four opinions
"show interestingly divergent but confusing positions of the Justices on the issues
discussed. "It cites an article in 48 Yale Law Journal, 1455, amusingly entitled
"Sawing a Justice in Half," which, in the light of the divergencies in the opinions
rendered, aptly queries" whether the proper procedure for the Supreme Court would
not have been to reverse the judgment below and direct dismissal of the suit for want
of jurisdiction." It says that these divergencies and line-ups of the justices "leave
power to dictate the result and the grounds upon which the decision should be rested
with the four justices who concurred in Mr. Justice Black's opinion." Referring to the
failure of the Court to decide the question of the right of the Lieutenant Governor to
vote, the article points out that from the opinions rendered the "equally divided" court
would seem under any circumstances to bean equal division of an odd number of
justices, and asks "What really did happen? Did a justice refuse to vote on this
issue? And if he did, was it because he could not make up his mind, or is it possible
to saw a justice vertically in half during the conference and have him walk away
whole?" But speaking in a more serious vein, the commentator says that decision of
the issue could not be avoided on grounds of irrelevance, since if the court had
jurisdiction of the case, decision of the issue in favor of the petitioners would have
required reversal of the judgment below regardless of the disposal of the other
issues.

From this analysis the conclusion is that the concurring opinions should be
considered as laying down the rule of the case.

The respondent's other chief reliance is on the contention that a duly authenticated
bill or resolution imports absolute verity and is binding on the courts. This is the rule
prevailing in England. In the United States, "In point of numbers, the jurisdictions are
divided almost equally pro and con the general principle (of these, two or three have
changed from their original position), two or three adopted a special variety of view
(as in Illinois), three or four are not clear, and one or two have not yet made their
decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to
bear in mind, in this connection, that the United States Supreme Court is on the side
of those which favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs.
Wood, 38 Law. ed., 854; Field vs. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making
body, we choose to follow the rule. Section 313 of the old Code of Civil Procedure,
as amended by Act No. 2210, provides: "Official documents may be proved as
follows: . . . (2) the proceedings of the Philippine Commission, or of any legislative
body that may be provided for in the Philippine Islands, or of Congress, by the
journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order;
Provided, That in the case of Acts of the Philippine Commission or the Philippine
Legislature, when there is an existence of a copy signed by the presiding officers and
secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts
and of the due enactment thereof."

But there is more than statutory sanction for conclusiveness.

This topic has been the subject of a great number of decisions and commentaries
written with evident vehemence. Arguments for and against the rule have been
extensive and exhaustive. It would be presumptuous on our part to pretend to add
more, even if we could, to what has already been said. Which such vast mass of
cases to guide our judgment and discretion, our labor is reduced to an intelligent
selection and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.

The reasons adduced in support of enrollment as contrasted with those which

opposed it are, in our opinion, almost decisive. Some of these reasons are
summarized in 50 American Jurisprudence, section 150 as follows:

SEC. 150. Reasons for Conclusiveness. It has been declared that the rule against
going behind the enrolled bill is required by the respect due to a coequal and
independent department of the government, and it would be an inquisition into the
conduct of the members of the legislature, a very delicate power, the frequent
exercise of which must lead to endless confusion in the administration of the law.
The rule is also one of convenience, because courts could not rely on the published
session laws, but would be required to look beyond these to the journals of the
legislature and often to any printed bills and amendments which might be found after
the adjournment of the legislature. Otherwise, after relying on the prima facie
evidence of the enrolled bills, authenticated as exacted by the Constitution, for years,
it might be ascertained from the journals that an act theretofore enforced had never
become a law. In this respect, it has been declared that these is quite enough
uncertainty as to what the law is without saying that no one may be certain that an
act of the legislature has become such until the issue has been determined by some
court whose decision might not be regarded as conclusive in an action between the
parties.

From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we
extract these passages:

I think the rule thus adopted accords with public policy. Indeed, in my estimation, few
things would be more mischievous than the introduction of the opposite rule. . . . The
rule contended for is that the Court should look at the journals of the Legislature to
ascertain whether the copy of the act attested and filed with the Secretary of State
conforms in its contents with the statements of such journals. This proposition
means, if it has any legal value whatever, that, in the event of a material discrepancy
between the journal and the enrolled copy, the former is to be taken as the standard
of veracity and the act is to be rejected. This is the test which is to be applied not
only to the statutes now before the Court, but to all statutes; not only to laws which
have been recently passed, but to laws the most ancient. To my mind, nothing can
be more certain than that the acceptance of this doctrine by the Court would unsettle
the entire statute law of the State. We have before us some evidence of the little
reliability of these legislative journals. . . . Can any one deny that if the laws of the
State are to be tested by a comparison with these journals, so imperfect, so
unauthenticated, the stability of all written law will be shaken to its very foundations?
. . . We are to remember the danger, under the prevalence of such a doctrine, to be
apprehended from the intentional corruption of evidences of this character. It is
scarcely too much to say that the legal existence of almost every legislative act
would be at the mercy of all persons having access to these journals. . . . ([1866],
Beasley, C.J., in Pangborn vs. Young, 32 N.J.L., 29, 34.)

But it is argued that if the authenticated roll is conclusive upon the Courts, then less
than a quorum of each House may be the aid of corrupt presiding officers imposed
laws upon the State in defiance of the inhibition of the Constitution. It must be
admitted that the consequence stated would be possible. Public authority and
political power must of necessity be confided to officers, who being human may
violate the trusts reposed in them. This perhaps cannot be avoided absolutely. But it
applies also to all human agencies. It is not fit that the Judiciary should claim for itself
a purity beyond all others; nor has it been able at all times with truth to say that its
high places have not been disgraced. The framers of our government have not
constituted it with faculties to supervise coordinate departments and correct or
prevent abuses of their authority. It cannot authenticate a statute; that power does
not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in Evans vs.
Brownem 30 Ind., 514, 524.)

Professor Wigmore in his work on Evidence considered a classic, and described

by one who himself is a noted jurist, author, and scholar, as "a permanent
contribution to American law" and having "put the matured nineteenth-century law in
form to be used in a new era of growth" unequivocally identifies himself with those
who believe in the soundness of the rule. The distinguished professor, in answer to
the argument of Constitutional necessity, i.e., the impossibility of securing in any
other way the enforcement of constitutional restrictions on legislative action, says:

(1) In the first place, note that it is impossible of consistent application. If, as it is
urged, the Judiciary are bound to enforce the constitutional requirements of three
readings, a two-thirds vote, and the like, and if therefore an act must be declared no
law which in fact was not read three times or voted upon by two-thirds, this duty is a
duty to determine according to the actual facts of the readings and the votes. Now
the journals may not represent the actual facts. That duty cannot allow us to stop
with the journals, if it can be shown beyond doubt that the facts were otherwise than
therein represented. The duty to uphold a law which in fact was constitutionally voted
upon is quite as strong as the duty to repudiate an act unconstitutionally voted upon.
The Court will be going as far wrong in repudiating an act based on proper votes
falsified in the journal as it will be in upholding an act based on improper votes
falsified in the enrollment. This supposed duty, in short, is to see that the
constitutional facts did exist; and it cannot stop short with the journals. Yet, singularly
enough, it is unanimously conceded that an examination into facts as provable by the
testimony of members present is not allowable. If to support that it be said that such
an inquiry would be too uncertain and impracticable, then it is answered that this
concedes the supposed constitutional duty not to be inexorable, after all; for if the
duty to get at the facts is a real and inevitable one, it must be a duty to get at them at
any cost; and if it is merely a duty that is limited by policy and practical convenience,
then the argument changes into the second one above, namely, how far it is feasible
to push the inquiry with regard to policy and practical convenience; and from this
point of view there can be but one answer.

(2) In the second place, the fact that the scruple of constitutional duty is treated thus
inconsistently and pushed only up to a certain point suggests that it perhaps is based
on some fallacious assumption whose defect is exposed only by carrying it to its
logical consequences. Such indeed seems to be the case. It rests on the fallacious
motion that every constitutional provision is "per se" capable of being enforced
through the Judiciary and must be safeguarded by the Judiciary because it can be in
no other way. Yet there is certainly a large field of constitutional provision which does
not come before the Judiciary for enforcement, and may remain unenforced without
any possibility or judicial remedy. It is not necessary to invoke in illustration such
provisions as a clause requiring the Governor to appoint a certain officer, or the
Legislature to pass a law for a certain purpose; here the Constitution may remain
unexecuted by the failure of Governor or Legislature to act, and yet the Judiciary
cannot safeguard and enforce the constitutional duty. A clearer illustration may be
had by imagining the Constitution to require the Executive to appoint an officer or to
call out the militia whenever to the best of his belief a certain state of facts exists;
suppose he appoints or calls out when in truth he has no such belief; can the
Judiciary attempt to enforce the Constitution by inquiring into his belief? Or suppose
the Constitution to enjoin on the Legislators to pass a law upon a certain subject
whenever in their belief certain conditions exist; can the Judiciary declare the law
void by inquiring and ascertaining that the Legislature, or its majority, did not have
such a belief? Or suppose the Constitution commands the Judiciary to decide a case
only after consulting a soothsayer, and in a given case the Judiciary do not consult
one; what is to be done?

These instances illustrate a general situation in which the judicial function of applying
and enforcing the Constitution ceases to operate. That situation exists where the
Constitution enjoins duties which affect the motives and judgment of a particular
independent department of government, Legislature, Executive, and Judiciary.
Such duties are simply beyond enforcement by any other department if the one
charged fails to perform them. The Constitution may provide that no legislator shall
take a bribe, but an act would not be treated as void because the majority had been
bribed. So far as the Constitution attempts to lay injunctions in matters leading up to
and motivating the action of a department, injunctions must be left to the conscience
of that department to obey or disobey. Now the act of the Legislature as a whole is
for this purpose of the same nature as the vote of a single legislator. The Constitution
may expressly enjoin each legislator not to vote until he has carefully thought over
the matter of legislation; so, too, it may expressly enjoin the whole Legislature not to
act finally until it has three times heard the proposition read aloud. It is for the
Legislature alone, in the latter case as well as in the former, to take notice of this
injunction; and it is no more the function of the Judiciary in the one case than in the
other to try to keep the Legislature to its duty:

xxx

xxx

xxx

The truth is that many have been carried away with the righteous desire to check at
any cost the misdoings of Legislatures. They have set such store by the Judiciary for
this purpose that they have almost made them a second and higher Legislature. But
they aim in the wrong direction. Instead of trusting a faithful Judiciary to check an
inefficient Legislature, they should turn to improve the legislature. The sensible
solution is not to patch and mend casual errors by asking the Judiciary to violate
legal principle and to do impossibilities with the Constitution; but to represent
ourselves with competent, careful, and honest legislators, the work of whose hands
on the statute-roll may come to reflect credit upon the name of popular government.
(4 Wigmore on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not found acceptance in this
jurisdiction, citing the case of United States vs. Pons (34 Phil., 729). It is argued that
this Court examined the journal in that case to find out whether or not the contention
of the appellant was right. We think the petitioners are in error.

It will be seen upon examination of section 313 of the Code of Civil Procedure, as
amended by Act No. 2210, that, roughly, it provides two methods of proving
legislative proceedings: (1) by the journals, or by published statutes or resolutions, or
by copies certified by the clerk or secretary or printed by their order; and (2) in case
of acts of the Legislature, by a copy signed by the presiding officers and secretaries
thereof, which shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof.

The Court looked into the journals in United States vs. Pons because, in all
probability, those were the documents offered in evidence. It does not appear that a
duly authenticated copy of the Act was in existence or was placed before the Court;
and it has not been shown that if that had been done, this Court would not have held
the copyconclusive proof of the due enactment of the law. It is to be remembered
that the Court expressly stated that it "passed over the question" of whether the
enrolled bill was conclusive as to its contents and the mode of its passage.

Even if both the journals and an authenticated copy of the Act had been presented,
the disposal of the issue by the Court on the basis of the journals does not imply
rejection of the enrollment theory, for, as already stated, the due enactment of a law
may be proved in either of the two ways specified in section 313 of Act No. 190 as
amended. This Court found in the journals no signs of irregularity in the passage of
the law and did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of
conclusiveness advocate, namely, look into the journals behind the enrolled copy in
order to determine the correctness of the latter, and rule such copy out if the two, the
journals and the copy, be found in conflict with each other. No discrepancy appears
to have been noted between the two documents and the court did not say or so
much as give to understand that if discrepancy existed it would give greater weight to
the journals, disregarding the explicit provision that duly certified copies "shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof."

In view of the foregoing consideration, we deem it unnecessary to decide the

question of whether the senators and representatives who were ignored in the
computation of the necessary three-fourths vote were members of Congress within
the meaning of section 1 of Article XV of the Philippine Constitution.

The petition is dismissed without costs.

Moran, C.J., Pablo, and Hontiveros, JJ., concur.

Separate Opinions

BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for
them, because the enrolled copy of the resolution and the legislative journals are
conclusive upon us.

A. The overwhelming majority of the state courts are of the opinion that the question
whether an amendment to the existing constitution has been duly proposed in the
manner required by such constitution properly belongs to the judiciary. That is the
position taken by Alabama, Arkansas, California, Colorado, Florida, Georgia, Idaho,
Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, Ohio, Oregon,
Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S., 437.)
(See also 11 Am. Jur., 639.) Only North Dakota and Oklahoma have adopted a
different view. (16 C.J.S., 437, notes 41 and 43.)

"The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question." (McConaughy vs. Secretary of State, 106 Minn.,
392, 409; 119 N.W., 408.) (12 C.J., 880.)

"An examination of the decisions shows that the courts have almost uniformly
exercised the authority to determine the validity of the proposal, submission, or
ratification of constitutional amendments. It has been judicially determined whether a
proposed amendment received the constitutional majority of votes. (Knight vs.
Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark., 432; 96 S. W. 396; Green vs. State
Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In re Denny, 156 Ind., 104; 59
N.E., 359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400; Tecumseh Nat. Bank
vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L., 289; 43 A.,
744, 881; 45 L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6 L.R.A.,
422.)" (12 C.J., 880.)

As our constitutional system ("limitation" of powers) is more analogous to state

systems than to the Federal theory of "grant" of powers, it is proper to assume that
the members of our Constitutional convention, composed mostly of lawyers, and
even the members of the American Congress that approved the Tydings-McDuffie
enabling legislation, contemplated the adoption of such constitutional practice in this
portion of the world. Hence, my conclusion that in Philippine polity, courts may and
should take cognizance of the subject of this controversy.

B. The petitioners' grievance is that, contrary to the provisions of the Constitution

(Article XV), the proposed amendment was not approved "by a vote of three-fourths
of all the members of the Senate and of the House of Representatives." They
complain that certain Senators and some members of the House of Representatives
were not allowed to participate and were not considered in determining the required
three fourths vote.

The respondents, besides denying our power to revised the counting, assert that the
persons mentioned, for all practical purposed did not belong to the Congress of the
Philippines on the day the amendment was debated and approved.

Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for
approval or disapproval, the amendment to the Constitution of the Philippines to be
appended as an Ordinance thereto, proposed by the Congress of the Philippines in a
Resolution of both Houses, etc."

Petitioners would have a declaration of invalidity of that piece of legislation. Its first
section provides that "the amendment to the Constitution of the Philippines to be
appended as an Ordinance thereto, proposed by the Congress of the Philippines in a
Resolution of both Houses, adopted on September eighteen, nineteen hundred and
forty-six, shall be submitted to the people, for approval or disapproval, at a general
election which shall be held on March eleven, nineteen hundred and forty-seven, in
accordance with the provisions of this Act."

By this provision, the Legislative Department with the concurrence of the Executive,
declares in the most solemn manner that the resolution proposing the amendment
was duly carried. Therefore, it would be pertinent to inquire whether those petitioners
who are members of the Congress that approved Republic Act No. 73 are not
precluded from questioning its validity or veracity, unless they assert and prove that
in Congress they opposed its enactment. In default of a contrary showing, it is not
reasonable to suppose that as members of Congress they endorsed-- or at least are
bound by the declarations of Republic Act No. 73? And if a private party is
estopped from challenging the constitutional efficacy of a law whose enactment he
has procured (see 16 C.J.S., 198 and 11 Am. Jur., 767) should not a member of
Congress be estopped from impugning a statute he helped (presumably) to pass?
Parenthetically it should be added that the remaining petitioners, as mere citizens,
would probably have no suable claim. (Cf. 16 C.J.S., 169.)

C. But perhaps these points should be left to future study and decision, because the
instant litigation may be solved by the application of other well-established principles
founded mainly on the traditional respect which one department of the Government
entertains for the actions of the others.

On account of the separation of powers, which I firmly believe, I agree to the

applicability and binding effect of section 313 of Act No. 190, as amended by Act No.
2210, which, in my opinion, has not been abrogated by the Rules of Court. I likewise
believe the soundness of the doctrine expounded by the authoritative Wigmore on a
question admittedly within the domain of the law on evidence: conclusiveness of the
enrolled bill of resolution upon the judicial authorities.

D. Withal, should that principle of conclusiveness be denied, the respondents could

plausibly fall back on the time-honored rule that the courts may not go behind the
legislative journals to contradict their veracity. (United States vs. Pons, 34 Phil., 729.)

According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16)
senators approved the resolution against five (5), with no absences; whereas in the
house sixty-eight (68) congressmen voted "yes", eighteen(18) voted "no", one
abstained from voting and one was absent. Therefore, 16 being three-fourths of the
total membership of twenty-one of the Senate (16 plus 5), and 68 being more than
three-fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the measure was
upheld by the number of votes prescribed by the Constitution.

True, there are in the said exhibit statements by two Senators and one congressman
to the effect that the votes did not constitute the majority required by the Constitution.
However, in the fact of the incontestable arithmetical computation above shown,
those protests must be attributed to their erroneous counting of votes; none of them
having then asserted that "there were absent Senators or Congressmen who had not
been taken into account. "Ford although we might have judicial notice of the number
of proclaimed members of Congress, still we are no better qualified than the
Legislature to determine the number of its actual membership at any given moment,
what with demises or demissions, remotions or suspensions.

HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the
same in so far as they are not inconsistent with the applicable reasons supporting my
concurring opinion in Vera vs. Avelino (77 Phil., 192). But I dissent from that part of
the majority opinion (page 3, ante) wherein it is stated that if the suspended
members of the Senate and House of Representatives had been counted "the
affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."

The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino,
supra, are, first, that the questions therein raised were political in nature within the
exclusive province of the legislature, and, second, that the judiciary does not possess
jurisdiction over such questions. It is to me evidence that the questions involved in
the present proceeding are no less political than those involved in that former Senate
case. It is deemed unnecessary to dwell at more length upon the grounds of my said
concurring opinion.

The ground for my dissent from the above-quoted statement of the majority opinion
in the instant proceeding is that the suspension of the said members of the Senate
and the House of Representatives being a political question, the judiciary, being
without jurisdiction to interfere with the determination thereof by the proper political
department of the government, has perforce to abide by said determination if it were
to go any further in the consideration of the case. In other words, any further
discussion of the case in this Court will have to start from the premise that said
members have been suspended by the respective Houses of Congress and that we,
being powerless to interfere with the matter of said suspension, must consider
ourselves bound by the determination of said political branches of the government.
As said by the Supreme Court of the United States in Philipps vs. Payne (2 Otto.
[U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the political
departments of the government, the judiciary is bound by such action." (Williams vs.
Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14
How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves.,
Jr., 60; Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)

If, then, we are to proceed, as I think we should, upon the premise that said
members have been thus suspended, there will be to my mind, absolutely no
justification, ground nor reason for counting them in the determination of whether or
not the required three-fourths vote was attained. Their case was entirely different
from that of members who, not having been suspended nor otherwise disqualified,
had the right to vote upon the resolution. In the case of the latter, they had, like all
other members similarly situated, three alternatives, namely, to vote in favor of the
resolution, to vote against it, or to abstain from voting. If they voted in favor, of
course, their votes had to be counted amount those supporting the resolution. If they
voted against, of course, their votes had to be counted with those opposing. And if
they abstained from voting, there would be sound justification for counting them as
not in favor of the resolution, because by their very abstention they impliedly but
necessarily would signify that they did not favor the resolution, for it is obvious that if

they did, they would have voted in favor of it. On the other hand, those suspended
members who, by reason of the suspension, whose validity or legality we are devoid
of jurisdiction to inquire into, cannot be similarly treated. In their case there would be
no way of determining which way their votes would have gone or whether or not they
would have abstained from voting. In this connection, in considering the hypothesis
of their voting in case they had not been suspended, I must go upon the assumption
that while those suspended members may belong to the political party which, as a
party, was opposed to the resolution, still they would have voted independently and
following their individual convictions. In this connection, it might not be amiss to
mention that there were quite a number of minority members of the legislature who
voted for the resolution. Hence, we are not in a position to say that said suspended
members, if they had not been suspended, would have voted against the resolution,
nor in favor of it either, nor that they would have abstained from voting. Why then
should they bed counted with the members who voted against the resolution or those
who, having the right to vote, abstained from doing so? Why should we count them
as though we knew that they would have voted against the resolution, or even that
they would have abstained from voting? Soundly construed, I submit that the
Constitution does not, and could not, include suspended members in the
determination of the required three-fourths vote.

I take it, that the drafters in providing in Article XV, section 1, of the Constitution that
"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 (emphasis
supplied) separately . . .", advisedly used the vital and all-important word "voting"
therein. I take it, that they meant to refer to the members voting, undoubtedly
expecting that all members not suspended or otherwise disqualified, would cast their
votes one way or the other. But I am here even making a concession in favor of the
opponents when I say that those who, with the right to vote, abstain from voting, may
be counted among those not in favor of the measure. But what I cannot bring myself
to conceive is that the quoted provision should have intended to count suspended or
disqualified members as opposed to the measure, or not being in favor of it, without it
being possible to know which way they would have voted or that they would have
abstained from voting that they would never have voted in favor of the measure. If
I should ask why we should not count such suspended or disqualified members
among those in favor of the measure, I am sure those who opine differently would
answer, because we do not know that they would have voted in favor of it. By the
same token, if they should ask me why we should not count them among those
against the measure, I would answer that we do not know that they would have voted
against it or that they would have abstained from voting. All this inevitably leads to
the conclusion the only one possible that such suspended or disqualified
members should not and cannot be counted due to that very impossibility of knowing
which way they would have voted or whether they would have abstained from voting.
I stand for a sound and rational construction of the constitutional precept.

PARAS, J.:

I fully concur in the foregoing opinion of Mr. Justice Hilado.

PERFECTO, J., dissenting:

To surrender or not to surrender, that is the question.

The last bastion of democracy is in danger.

Those who are manning it are summoned to give up without the least resistance, and
the banner of the Constitution is silently and meekly hauled down from its pole to be
offered as a booty to the haughty standard bearers of a new brand of Farcism. In t he
words of Cicero, "recedere de statu suae dignitatis."

Cardinal moral bearings have been lost in the psychological chaos suffered by those,
throwing overboard all ideals as burdensome and dangerous ballast, in desperate
efforts to attain at all costs individual survival, even in ignominy, could not stand the
impact of initial defeats at the hands of invading fearsome military hordes.

The present is liable to confusion. Our minds are subjected to determinate and
indeterminate ideological pressures. Very often man walks in the darkness of a blind
alley obeying the pullings and pushings of hidden and unhidden forces, or the arcane
predeterminations of the genes of human chromosomes. A rudderless ship floating in
the middle of an ocean without any visible shoreline, is bound to be wrecked at the
advent of the first typhoon. From early youth we begin to hear and learn about the
true ideals. Since then we set them as the guiding stars in our actions and decisions,
but in the long travel of life, many times the clouds dim or completely darken those
stars and then we have only to rely on our faith in their existence and on habit,
becoming unerring if long enough followed, of adjusting our conduct to their guidance
in calm and cloudless nights. We are sitting in judgment to pass upon the conflicts,
disputes and disagreements of our fellowmen. Let us not forget that the day shall
come that we will be judged on how are are judging. Posterity shall always have the
final say. When the time solvent has dissolved the human snag, then shall be
rendered the final verdict as to whether we have faced our task fearlessly or whether
our hearts have shrunk upon the magnitude of our duties and have chosen the most
comfortable path of retreat. Then it will be conclusively known whether did keep

burning the tripod fire in the temples of old. Some of us will just return into anonymity,
covered by the cold mist of historical oblivion; others will have their names as by
words repeatedly pronounced with popular hate or general contempt; and still others
will be remembered with universal gratefulness, love and veneration, the guard on
accorded to all those who remained faithful to the fundamental tenets of justice.
Winnowing time will sift the chaff from the grain.

This is one of the cases upon which future generations will decide if this tribunal has
the sturdy courage to keep its responsibility in proper high level. It will need the
passing of decades and perhaps centuries before a conclusive verdict is rendered,
whether we should merit the scorn of our fellow citizens and our decision shall be
cursed as the Dred Scot decision of Chief Justice Taney, the one that plunged the
United States into civil war, or whether in the heart of each future Filipino citizen
there will be a shrine in which our memory will be remembered with gratefulness,
because we have shown the far-reaching judicial statesmanship of Chief Justice
Marshall, the legal genius who fixed and held the rock bottom foundations which
made of the American Constitution the veritable supreme law of the land and
established the role of the tribunals as the ultimate keepers of the Constitution. But
for sure it will be rendered, and it will be impartial and unbiased, exacting and
pitiless, with unappealable finality, and for the one condemned Dante wrote this
lapidary line: "lasciate ogni speranza."

Unless the vision of our mental eyes should be shut up by the opaque cornea of
stubborn refusal to see reality or should be impaired by the polaroid visors of
prejudice, there is no question that at the time when the resolution in question,
proposing an amendment to the Constitution, was adopted, the members of the
Senate were 24 and the members of the House of Representatives were 96, and that
the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members
thereof, and the 68 members of the House of Representatives who voted for the
resolution, by equally simple arithmetical operation, do not constitute three-fourths of
the 96 members of the said chamber. The official certifications made by the presiding
officers of the two houses of Congress to the effect that three-fourths of all the
members of the Senate and three-fourths of all the members of the House of
Representatives voted for the resolution, being untrue, cannot change the facts.
Nothing in existence can. The certification, being a clear falsification of public
document punished by article 171 of the Revised Penal Code with prision mayor and
a fine not to exceed P5,000, cannot give reality to a fiction based in a narration of
facts that is in conflict with the absolute metaphysical reality of the events.

FACTS OF THE CASE

Petitioners are citizens of the Philippines, taxpayers and electors, and besides some
of them are members of the Senate, others are members of the House of

Representatives, and still others are presidents of political parties, duly registered,
with considerable following in all parts of the Philippines.

The first three respondents are chairman and members, respectively, of the
Commission on Elections and the remaining three are respectively the Treasurer of
the Philippines, the Auditor General and the Director of the Bureau of Printing.

Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in

1941 and 16 in April 23, 1946, and that the House of Representatives is composed of
98 members, elected on April 23, 1946, minus 2d who resigned to assume other
positions in the Government.

On September 18, 1946, there was presented for adoption by the Congress of the
Philippines a resolution proposing an amendment to the Constitution of the
Philippines to be appended as an ordinance thereto, which reads as follows:

Resolved by the Senate and House of Representatives, of the Philippines in joint

session assembled, by a vote of not less than three-fourths of all the Members of
each House voting separately. To propose, as they do hereby propose, the following
amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto:

ORDINANCE APPENDED TO THE CONSTITUTION

"Notwithstanding the provisions of section one, Article Thirteen, and section eight,
Article Fourteen, of the foregoing Constitution, during the effectivity of the Executive
Agreement entered into by the President of the Philippines with the President of the
United States on the fourth of July, nineteen hundred and forty-six, pursuant to the
provisions of Commonwealth Act Numbered seven hundred and thirty-three, but in
no case to extend beyond the third of July, nineteen hundred and seventy-four, the
disposition, exploitation, development, and utilization, of all agricultural, timber, and
mineral lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces and sources of potential energy, and other natural resources
of the Philippines, and the operation of public utilities, shall, if open to any person, be
open to citizens of the United States and to all forms of business enterprise owned or
controlled, directly or indirectly, by citizens of the United States in the same manner
as to, and under the same conditions imposed upon, citizens of the Philippines or
corporations or associations owned or controlled by citizens of the Philippines."

This amendment shall be valid as a part of the Constitution when approved by a

majority of the votes cast in an election at which it is submitted to the people for the
ratification pursuant to Article XV of the Constitution.

Sixteen Senators voted in favor of the resolution and 5 against it, and 68
Representatives voted in favor and 18 against.

Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on

March 11, 1947, for the purpose of submitting to the people the proposed
amendment embodied in the resolution, and appropriating P1,000,000 for said
purpose.

Petitioners assail the validity of Republic Act No. 73 as unconstitutional because

Congress may not, by said act, submit to the people for approval or disapproval the
proposed amendment to the Constitution embodied in resolution Exhibit B inasmuch
as, to comply with the express provisions of Article XV of the Constitution, requiring
the affirmative votes of three-fourths of all the members of the Senate and of the
House of Representatives voting separately, three-fourths of the 24 members of the
Senate is constituted by at least 18 Senators, 2 more than those who actually voted
for the resolution in question, and three-fourths of the 98 members of the House of
Representatives should at least be 72 Representatives, or 4 more than those who
actually voted for the resolution.

Respondents deny that the Senate is composed of 24 Senators, by excluding from

them petitioners Jose O. Vera, Ramon Diokno and Jose E. Romero and allege that
the House of Representatives is not composed of 98 members but of only 90. They
admit that at the joint session of Congress to consider the resolution Exhibit B, in
favor of the resolution 16 votes were cast in the Senate and in the House of
Representatives 68 and 5 in the Senate and 18 in the House of Representatives had
voted against. They admit the approval of Republic Act No. 73 and that necessary
steps to hold the plebiscite therein provided are being taken, but deny that said act is
unconstitutional, and byway of defense, allege that the resolution Exhibit B was
adopted by three-fourths of all the qualified members of the Senate and of the House
of Representatives voting separately and, consequently, Republic Act No. 73,
ordering its submission to the people for approval or disapproval, fixing a date for a
general election, and appropriating public funds for said purpose, is valid and
constitutional.

At the hearing of this case both parties submitted the following stipulation:

The parties through their undersigned counsel hereby stipulate the following facts:

1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the
majority vote of the Commission on Elections, proclaimed elected senators in the
election of April 23, 1946;

2. That when the Senate convened on May 25, 1946, the said senators-elect took
part in the election of the President of that body; but that before the senators-elect
were sworn in by the President of the Senate, a resolution was presented, and
subsequently approved, to defer the administration of oath and the seating of
Messrs. Jose O. Vera, Ramon Diokno, and Jose E. Romero, pending the hearing
and decision of the protest lodged against their election;

3. That on the 25th of May, 1946, the said senators individually took their alleged
oath of office before notaries public, and not on the floor, and filed said oaths with the
Secretary of the Senate during the noon recess of the said date;

4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of
office accomplished by them outside of the floor before a notary public and the
Secretary of the Senate, on September 5 and August 31, 1946, respectively; and that
their corresponding salaries from April 23, 1946, were paid on August 31, 1946;

5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a
copy of Mr. Diokno's alleged oath of office dated May 25, 1946, with the Auditor of
the Senate on October 15,1946, and on said date his salary was paid corresponding
to the period from April 23 to October 15, 1946;

6. That all three have subsequently received their salaries every fifteen days;

7. That since the approval of the resolution deferring their seating and oaths up to the
present time, the said Messrs. Vera, Diokno, and Romero have not been allowed to
sit and take part in the deliberations of the Senate and to vote therein, not do their
names appear in the roll of the Senate;

8. That before May 25, 1946, the corresponding provincial boards of canvassers
certified as having been elected in the election held on April 23, 1946, ninety-eight
representatives, among them Messrs. Alejo Santos and Jesus B. Lava for Bulacan,
Jose Cando and Constancio P. Padilla for Nueva Ecija, Amado M. Yuson and Luis
Taruc for Pampanga, Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for
Negros Occidental;

9. That the aforesaid eight members-elect of the House of Representatives took part
in the election of the Speaker of the House of Representatives held on May 25, 1946;

10. That before the members-elect of the House of Representatives were sworn in by
the Speaker, Mr. Topacio Nueno, representative for Manila, submitted a resolution to
defer the taking of oath and seating of Luis Taruc and Amado Yuson for Pampanga,
Constancio P. Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for
Tarlac, Alejo Santos and Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros
Occidental "pending the hearing and decision on the protests lodged against their
election," copy of the resolution being attached to and made part of this stipulation as
Exhibit 1 thereof;

11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and
approved by the House, referred for study to a committee of seven, which up to the
present has not reported, as shown by the Congressional Record for the House of
Representatives;

12. That the eight representatives-elect included in the resolution were not shown in
on the floor and have not been so sworn in or allowed to sit up to the present time,
nor have they participated in any of the proceedings of the House of Representatives
except during the debate of the Escareal motion referred to in paragraph 11 hereof,
nor cast any vote therein since May 25, 1946, and their names do not appear in the
roll of the members of the House except as shown by the Congressional Record of
the House of Representatives, nor in the roll inserted in the official program for the
inauguration of the Republic of the Philippines hereto attached as Exhibit 2 hereof;

13. That the eight representatives-elect above mentioned took their alleged oaths of
office on the date set opposite their names, as follows:

Jose Cando

Vicente Gustilo
Constancio Padilla
Alejo Santos
Luis M. Taruc
Amado M. Yuson
Jesus B. Lava
Alejandro Simpauco

May 25, 1946

May 25, 1946
May 22, 1946
May 23, 1946
May 25, 1946
May 25, 1946
May 25, 1946
May 25, 1946

all of which oaths were taken before notaries public, with the exception of the first
four who took their oaths before Mr. Narciso Pimentel, Secretary of the House;

14. That said oaths were filed with the Auditor through the office of the Secretary of
the House of Representatives;

15. That the persons mentioned in paragraph 13 were paid salaries for the term
beginning April 23, 1946, up to the present, with the exception of Messrs. Luis Taruc
and Jesus Lava, to whom payment was suspended since August 16;

16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the
Speaker of the House of Representatives and were allowed to sit on September 30,
1946, the last day of the Special Sessions;

17. That in addition to the eight persons above mentioned, two members of the
House, Representatives Jose C. Zulueta and Narciso Ramos, had resigned before
the resolution proposing an amendment to the Constitution was discussed and
passed on September 18,1946;

18. That the voting on the resolution proposing an amendment to the Constitution
was made by the Secretary calling the roll of each house and the votes cast were as
shown in the attached certificate of the Secretary of the House of Representatives
hereto attached, marked Exhibit 3 and made a part hereof; and

19. That the Congressional Records for the Senate and House of Representatives
and the alleged oaths of office are made a part of this Stipulation by reference
thereto, respondents reserving the right to question their materiality and admissibility.

Manila, Philippines, November 25, 1946.

For the petitioners:

For the respondents:

JOSE E. ROMERO
ANTONIO BARREDO

ROMAN OZAETA
Secretary of Justice

JOSE B.L. REYES

First Asst. Solicitor General

PETITIONER'S PERSONALITY

Whether petitioners have or have not the personality to file the petition in this case is
the first question we have to consider.

No party raised the question, but it having arisen in the course of the Court's
deliberation, we should not evade deciding it and giving what in law and justice
should be the answer.

To our mind there is no doubt that petitioners have the personality to institute the
present recourse of prohibition. If petitioners should lack that personality, such legal
defect would not certainly have failed to be noticed by respondents themselves.

Respondents' failure to raise the question indicates their conviction that petitioners
have the necessary legal personality to file the petition, and we do not see any
reason why such personality should be put in doubt.

Petitioners are divided into three groups: the first is composed of senators; the
second, of representatives; and the third, of presidents of four political parties.

All of the individuals composing the first two groups, with the exception of Senators
Jose O. Vera, Ramon Diokno, and Jose E. Romero, are members of either of the two
houses of Congress and took part in the consideration of Resolution Exhibit B and of
Republic Act No. 73, while the above three excepted senators were the ones who
were excluded in the consideration of said resolution and act and were not counted
for purposes of determining the three-fourths constitutional rule in the adoption of the
resolution.

In paragraph eight of the petition it is alleged that respondents have taken all the
necessary steps for the holding of the general election on March 11, 1947, and that
the carrying out of said acts "constitute an attempt to enforce the resolution and act
aforementioned in open violation of the Constitution," is without or in excess of
respondents' jurisdiction and powers, "violative of the rights of the petitioners who are
members of the Congress, and will cause the illegal expenditure and disbursement of
public funds and end in an irreparable injury to the taxpayers and the citizens of the
Philippines, among whom are the petitioners and those represented by them in their
capacities mentioned above."

There should not be any question that the petitioners who are either senators or
members of the House of Representatives have direct interest in the legal issues
involved in this case as members of the Congress which adopted the resolution, in
open violation of the Constitution, and passed the act intended to make effective
such unconstitutional resolution. Being members of Congress, they are even duty
bound to see that the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to commit a
flagrant betrayal of public trust. They are representatives of the sovereign people and
it is their sacred duty to see to it that the fundamental law embodying the will of the
sovereign people is not trampled upon.

The four political parties represented by the third group of petitioners, represent large
groups of our population, perhaps nearly one-half of the latter, and the numerous
persons they represent are directly interested and will personally be affected by the
question whether the Constitution should be lightly taken and can easily be violated
without any relief and whether it can be amended by a process openly repugnant to
the letter of the Constitution itself.

As a matter of fact, the vital questions raised in this case affect directly each and
every one of the citizens and inhabitants of this country. Whether our Constitution is,
as it is supposed to be, a paramount law or just a mere scrap of paper, only good to
be thrown into a waste basket, is a matter of far-reaching importance to the security,
property, personal freedom, life, honor, and interests of the citizens. That vital
question will necessarily affect the way of life of the whole people and of its most
unimportant unit. Each and every one of the individuals inhabiting this land of ours
shall have to make plans for the future depending on how the question is finally
decided. No one can remain indifferent; otherwise, it will at his peril.

Our conclusion is that petitioners have full legal personality to institute the present
action; and much more, those who are members of Congress have the legal duty to
institute it, lest they should betray the trust reposed in them by the electorate.

24 SENATORS

The first question raised by respondents' answer refers to the actual number of the
members of the Senate. According to petitioners there are 24 of them while
according to respondents there are only 21, excluding Senators Jose O. Vera,
Ramon Diokno, and Jose E. Romero, because, according to them, "they are not duly
qualified and sworn in members of the Senate."

This allegation appears to be belied by the first seven paragraphs of the stipulation of
facts submitted by both parties.

No amount of sophism, of mental gymnastics or logo-daedaly may change the

meanings and effects of the words placed by respondents themselves in said seven
paragraphs. No amount of argument may delude anyone into believing that Senators
Vera, Diokno, and Romero are not senators notwithstanding their having been
proclaimed as elected senators, their having taken part in the election of the
President of the Senate, their having taken their oaths of office, and their receiving
salaries as senators.

Such a paradoxical proposition could have been driven into acceptance in the
undeveloped brains of the pithecanthropus or gigantopithecus of five hundred
millennia ago, but it would be unpardonably insulting o the human mind of the
twentieth century.

Our conclusion is that Senators Vera, Diokno, and Romero should be counted as
members of the Senate, without taking into consideration whatever legal effects the
Pendatun resolution may have produced, a question upon which we have already
elaborated in our opinion in Vera vs. Avelino (77 Phil., 192). Suspended or not
suspended, they are senators anyway, and there is no way of ignoring a fact so clear
and simple as the presence of the sun at day time. Therefore, counting said three
Senators, there are 24 Senators in all in the present Senate.

96 REPRESENTATIVES

The next question raised by respondents is their denial of petitioners' allegations to

the effect that the present House of Representatives is composed of 98 members
and their own allegation to the effect that at present "only 90 members have
qualified, have been fully sworn in, and have taken their seats as such."

Again respondents' allegations are belied by paragraphs eight to seventeen of the

stipulation of facts.

The disagreement between the parties is as to whether or not Representatives

Cando, Gustilo, Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in
paragraph 13 of the stipulation of facts, are members of the House of
Representatives.

The facts stipulated by the parties proved conclusively that said eight persons are
actual members of the House of Representatives. We may even add that the
conclusiveness about said eight representatives is even greater than in the case of
Senators Vera, Diokno, and Romero, because no resolution of suspension has ever
been adopted by the House of Representatives against said eight members, who are
being deprived of the exercise of some of their official functions and privileges by the
unipersonal, groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found in countries where the
insolence of totalitarian rulers have replaced all constitutional guarantees and all
concepts of decent government, raises again a constitutional question: whether it is
permissible for the Speaker of the House of Representatives to exercise the arbitrary
power of depriving representatives duly elected by the people of their constitutional
functions, privileges, and prerogatives. To allow the existence of such an arbitrary
power and to permit its exercise unchecked is to make of democracy a mockery.

The exercise of such an arbitrary power constitutes a want on onslaught against the
sovereignty itself of the people, an onslaught which may cause the people sooner or
later to take justice in their own hands. No system of representative government may
subsist if those elected by the people may so easily be silenced or obliterated from
the exercise of their constitutional functions.

From the stipulation of facts, there should not be any question that at the last national
election, 98 representatives were elected and at the time the resolution Exhibit B was
adopted on September 18, 1946, 96 of them were actual members of the House, as
two (Representatives Zulueta and Ramos) has resigned.

Applying the three-fourth rule, if there were 24 senators at the time the resolution
was adopted; three-fourths of them should at least be 18 and not the 16 who only
voted in favor of the resolution, and if there were 96 representatives, three-fourths of
them should certainly be more than the 68 who voted for the resolution. The
necessary consequence is that, since not three-fourths of the senators and
representatives voting separately have voted in favor of the resolution as required by
Article XV of the Constitution, there can be no question that the resolution has not
been validly adopted.

We cannot but regret that our brethren, those who have signed or are in agreement
with the majority opinion, have skipped the questions as to the actual membership of
the Senate and House of Representatives, notwithstanding the fact that they are
among the first important ones squarely raised by the pleadings of both parties. If
they had taken them into consideration, it would seem clear that their sense of
fairness will bring them to the same conclusion we now arrived at, at least, with
respect to the actual membership of the House of Representatives.

Upon our conclusions as to the membership of the Senate and House of

Representatives, it appears evident that the remedy sought for in the petition should
be granted.

JURISDICTION OF THE SUPREME COURT

Without judging respondents' own estimate as to the strength of their own position
concerning the questions of the actual membership of the Senate and House of
Representatives, it seems that during the oral and in the written arguments they have

retreated to the theory of conclusiveness of the certification of authenticity made by

the presiding officers and secretaries of both House of Congress as their last
redoubt.

The resolution in question begins as follows: "Resolved by the Senate and House of
Representatives of the Philippines in joint session assembled, by a vote of not less
than three-fourths of all the members of each House voting separately, . . .."

Just because the adoption of the resolution, with the above statement, appears to be
certified over the signatures of the President of the Senate and the House of
Representatives and the Secretaries of both Houses, respondents want us to accept
blindly as a fact what is not. They want us to accept unconditionally as a dogma, as
absolute as a creed of faith, what, as we have shown, appears to be a brazen official
falsehood.

Our reason revolts against such an unethical proposition.

An intimation or suggestion that we, in the sacred temple of justice, throwing

overboard all scruples, in the administration of justice, could accept as true what we
know is not and then perform our official functions upon that voluntary self-delusion,
is too shocking and absurb to be entertained even for a moment. Anyone who keeps
the minimum sense of justice will not fail to feel aghast at the perversion or
miscarriage of justice which necessarily will result from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire
behind the false certification made by the presiding officers and the secretaries of the
two Houses of Congress.

Respondents rely on the theory of, in the words of the majority opinion, "the
conclusiveness on the courts of an enrolled bill or resolution."

To avoid repeating the arguments advanced by the parties, we have made part of
this opinion, as Appendices A, B, and C,1 the memoranda presented by both
petitioners and respondents, where their attorneys appear to have amply and ably
discussed the question. The perusal of the memoranda will show petitioners'
contentions to be standing on stronger ground and, therefore, we generally agree
with their arguments.

In what follows we will try to analyze the positions taken in the majority opinion.

POLITICAL QUESTIONS

The majority enunciates the proposition that "political questions are not within the
province of the judiciary," except "by express constitutional or statutory provision" to
the contrary. Then argues that "a duly certified law or resolution also binds the judges
under the 'enrolled bill rule' out of respect to the political departments."

The doctrine is predicated "on the principle of the separation of powers."

This question of separation of powers is the subject of discussion in the case of Vera
vs. Avelino, supra. We deem unnecessary to repeat what we have already said in
our opinion in said case, where we have elaborated on the question.

Although the majority maintains that what they call the doctrine that political
questions are not within the province of the judiciary is "too well-established to need
citation of authorities," they recognize the difficulty "in determining what matters fall
under the meaning of political questions."

This alleged doctrine should not be accepted at its face value. We do not accept it
even as a good doctrine. It is a general proposition made without a full
comprehension of its scope and consequences. No judicial discernment lies behind
it.

The confession that the "difficulty lies in determining what matters fall within the
meaning of political question" shows conclusively that the so-called doctrine has
recklessly been advanced.

This allegedly "well-established" doctrine is no doctrine at all in view of the confessed

difficulty in determining what matters fall within the designation of political question.
The majority itself admits that the term "is not susceptible of exact definition, and

precedents and authorities are not always in full harmony as to the scope of the
restrictions, on this ground, on the courts to meddle with the acts of the political
department of the government."

Doctrine is that "what is taught; what is held; put forth as true, and supported by a
teacher, a school, or a sect; a principle or position, or the body of principles, in any
branch of knowledge; tenet; dogma; principle of faith. "It is a synonym of principle,
position, opinion, article, maxim, rule, and axiom. in its general sense, doctrine
applies to any speculative truth or working principle, especially as taught to others or
recommended to their acceptance. Therefore, to be true, it should be expressed on
simple and self-evident terms. A doctrine in which one of the elemental or nuclear
terms is the subject of an endless debate is a misnomer and paradox.

A doctrine is advanced and accepted as an established truth, as a starting point for

developing new propositions, as a guiding principle in the solution of many problems.
It is a groundwork for the building of an intellectual system. It is the basis of a more
or less complex legal structure. If not the cornerstone, it should at least be one of the
main columns of an architectonic construction. If that groundwork, cornerstone or
column is supported by a thing whose existence still remains in dispute, it is liable to
fall.

We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based

on the unsettled meaning of political question. The general proposition that "political
questions are not within the province of the judiciary" is just one of the many
numerous general pronouncements made as an excuse for apathetic, indifferent,
lazy or uncourageous tribunals to refuse to decide hard or ticklish legal issues
submitted to them.

It belongs to the category of that much-vaunted principle of separation of powers, the

handful of sand with which judicial ostriches blind themselves, as if self-inflicted
blindness may solve a problem or may act as a conjuration to drive away a danger or
an evil.

We agree with the majority that the proposal to amend the Constitution and the
process to make it effective, as provided in Article XV of the Constitution, are matters
of political nature, but we cannot agree with their conclusion that a litigation as to
whether said article has been complied with a violated is beyond the jurisdiction of
the tribunals, because to arrive at this conclusion we must accept as a major premise
the pseudo-doctrine which we have precisely exposed as erroneous and false.

Is there anything more political in nature than the Constitution? Shall all questions
relating to it, therefore, betaken away from the courts? Then, what about the
constitutional provision conferring the Supreme Court with the power to decide "all
cases involving the constitutionality of a treaty or a law?"

COLEMAN versus MILLER

The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R.,
625) is invoked as the mainstay of the majority position.

No less than eight pages of the majority opinion are occupied by the exposition and
analysis of the decision of the Supreme Court.

The case is invoked as authority for the conclusion that "the efficacy of ratification by
the State legislature of a proposed amendment to the federal Constitution" and that
"the decision by Congress, in its control of the Secretary of State of the questions of
whether an amendment has been adopted within a reasonable time from the date of
submission to the State legislature," are political questions and not justiciable.

At the outset it must be noted that the two above mentioned questions have no
similarity or analogy with the constitutional questions herein discussed. The
questions as to the efficacy of the ratification by the Senate of Kansas of the Child
Labor amendment proposed by the United States Congress in June, 1924, and upon
the decision of said Congress, "in its control of the Secretary of State," whether the
amendment has been adopted "within a reasonable time from the date of submission
to the State legislature," either one of them does not raise a controversy of violation
of specific provisions of the Constitution as the ones raised in the present case.

No specific constitutional provision has been mentioned to have been violated

because in January, 1925, the Legislature of Kansas rejected the amendment, a
copy of the rejection having been sent to the Secretary of State of the United States,
and in January, 1927, a new resolution ratifying the amendment was adopted by the
Senate of Kansas on a 21-20 division, the Lieutenant Governor casting the deciding
vote. Neither was there such mention of constitutional violation as to the effect of the
previous rejection and of the lapse of time after submission of the amendment to the
State legislature.

No constitutional provision has been pointed out to have been violated because the
Lieutenant Governor had cast his vote or because by the lapse of time from June,
1924 to March, 1927, the proposed amendment had allegedly lost its vitality.

It is only natural that, in the absence of a constitutional provision upon the efficacy of
ratification by a State legislature of a proposed amendment, it was within the ultimate
power of the United States Congress to decide the question, in its decision rendered
in the exercise of its constitutional power, to control the action of the Secretary of
State, and the promulgation of the adoption of amendment could not be controlled by
the courts.

Evidently, the invoked authority has no bearing at all with the matters in controversy
in the present case.

We note, as observed in the majority opinion, that the four opinions in Coleman vs.
Miller, according to the American Law Reports, show "interestingly divergent but
confusing positions of the justices," and are the subject of an amusing article in 48
Yale Law Journal, 1455, entitled "Sawing a Justice in Half," asking how it happened
that the nine-member United States Supreme Court could not reach a decision on
the question of the right of the Lieutenant Governor of Kansas to cast his vote,
because the odd number of justices was "equally divided."

How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller
could be an authority is beyond our comprehension.

GREEN versus WELLER

One of the authorities upon which the majority relies is the decision of the Mississippi
Supreme Court in Green vs. Miller (32 Miss., 650), quoting one paragraph thereof.

Here again we have a case of inapplicable authority, unless taken in its reversed
effect.

The Mississippi Supreme Court maintains that there is nothing in the nature of the
submission to the people of a proposal to amend the Constitution which should

cause the free exercise of it to be obstructed or that could render it dangerous to the
stability of the government, but in making this pronouncement, it assumes that the
submission is made "in a established form," adding that the means provided for the
exercise by the people of their sovereign right of changing the fundamental law
should receive such a construction as not to trample upon the exercise of their right,
and that 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."

So the authority, if clearly interpreted, will lead us to the conclusion that the majority
position is wrong because the Mississippi Supreme Court, in making the
pronouncement, upon the assumption that the submission to the people is made "in
a established form" and "in the mode prescribed" by the Constitution, namely, in
accordance with the provisions of the instrument, the pronouncements would be the
opposite if, as in the present case, the submission of the proposal of amendment to
the people is made through a process flagrantly violative of the Constitution,
aggravated by wanton falsification of public records and tyrannical trampling of the
constitutional prerogatives of duly elected representatives of the people.

MR. JUSTICE BLACK

The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr.
Justice Frankfurter and Mr. Justice Douglas, in the "confusing" and "amusing"
decision in Coleman vs. Miller, is also invoked by the majority, but this other authority
seems equally reluctant to offer its helping hand to a helpless, desperate position.

The major premise of the concurring opinion is as follows: "The Constitution granted
Congress exclusive power to control submission of constitutional amendments."

Everybody ought to know that no such an unlimited, unchecked, omnipotent power is

granted by our fundamental law to the Congress of the Philippines. Our Congress
may propose amendments or call a convention to make the proposal, but that is all.
Nowhere in the Constitution can be found any word, any grammatical sign, not even
the faintest hint that in submitting the proposed amendments to the people, Congress
shall have "exclusive power to control the submission." That submission must be
provided by law, and no law may be enacted and come into effect by the exclusive
power of Congress. It needs the concurring action of the President of the Philippines.
And if the law happens to violate the fundamental law, courts of justice may step in to
nullify its effectiveness. After the law is enacted, its execution devolves upon the
Executive Department. As a matter of fact, it is the Executive Department which
actually submits to the people the proposed amendment. Congress fixes the date of

submission, but the President of the Philippines may refuse to submit it in the day
fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.

After showing that Mr. Justice Black started his argument from a major premise not
obtainable in the Philippines, his conclusions cannot help the majority in anyway.

MR. JUSTICE FRANKFURTER

The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing"
case of Coleman vs. Miller is the next authority invoked by the majority, but the
opinion does not offered much help. The justice maintains that the proceedings for
voting in legislative assemblies "are matters that concern not merely political actions
but are also of the very essence of political action," and then advances the following
argument: "To open the law-courts to such controversies is to have courts sit in
judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies."

The argument has no weight at all. The argument merely displays an attitude, one of
simple distaste for the idea, but fails to give any sensible reason for the attitude. Ina
totalitarian regime, where decisions are rendered not in answer to the promptings of
a sense of justice, but as expressions of moods, caprices and whims of arbitrary
rulers, Mr. Justice Frankfurter's attitude could be taken as the law, but then it would
be necessary to elevate him first to the category of a fuehrer.

In our jurisdiction personal attitudes are not the law. Here, justice must be founded
on reason, but never on passing unreasoned moods, judicial or otherwise.

We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's
views, which in their judgment are in accord "with sound principles of political
jurisprudence and represent liberal and advanced thought on the workings of
constitutional and popular government. "Our regret is not for ourselves alone but for
those who happen to accept as authority the unreasoned and unexplained mental
attitude of a judicial officer of a foreign country, praising it even with the muchabused label as "liberal," notwithstanding the fact that it represents the whimsical rule
of personal attitudes and not the rule of well-matured reason.

THE ENROLLED BILL THEORY

This theory is amply discussed in the memoranda of the parties attached hereto as
Appendices A, B, and C. Although we consider it unnecessary to enlarge the
discussion, we deem it convenient to make a little analysis of what is stated in the
majority opinion. Respondents contend, with the full approval of the majority, that a
duly authenticated bill or resolution imports absolute verity and is binding on the
courts.

The present case is a conclusive evidence of the absurdity of the theory. How can
we accept the absolute verity of the presiding officers' certification that the resolution
in question has been adopted by three-fourths of all the members of the Senate and
of the House of Representatives, when as a matter of undisputable fact the
certification is false? How can we accept a theory which elevates a false-hood to the
category of truth?

The majority alleges that the rule is the one prevailing in England. Because the
English have committed the nonsense of accepting the theory, is that reason for
Filipinos to follow suit? Why, in the administration of justice, should our tribunals not
think independently? Our temple of justice is not presided by simians trained in the
art of imitation but by human beings, and human beings must act according to
reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to
commit such a blunder.

Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the
majority states that in the United States the jurisdictions are divided almost equally
pro and con on the theory, although in petitioners' memorandum Appendix A there
appears more up-to-date evidence to the effect that there is a great majority for the
rejection. But to our mind, mere numbers as to pro and con seem to us immaterial in
the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.

The majority contends that the theory conforms to the express policy of our lawmaking body, invoking to said effect the now obsolete section 313 of the old Code of
Civil Procedure, as amended by Act No. 2210.

Even if we should follow the anachronistic practice of deciding issues upon the
authority of laws which have been repealed or abolished, still the evidence pointed
out by the majority does not support their contention. Section 313 alluded to
enumerates the evidence that may prove the procedures of the defunct Philippine

Commission or of any legislative body that may be provided for in the Philippines,
with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies,
is a conclusive proof "of the provisions of such acts and of the due enactment
thereof."

This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5
and 41 of Rule 123 show conclusively that this Supreme Court, in making the rules
effective since July 1, 1940, rejected the proviso as unreasonable and unjust.
Section 5 provides that we may take judicial notice of the official acts of Congress
and section 41 provides what evidence can be used to prove said official acts, but
nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even
if we know by conclusive evidence that the certification is false.

The allegation that the theory in question conforms to the express policy of our
lawmaking body, upon the very evidence used in support thereof, after a little
analysis, has to banish as a mid-summer night's dream.

50 AMERICAN JURISDICTION, SECTION 150

In support of the theory of conclusiveness of the enrollment, the authority of 50

American Jurisprudence, 150 is invoked as reasons for the theory.

We will analyze the reasons adduced:

1. Respect due to a coequal and independent department of the government. This

must be the strongest one, when it is first mentioned. It is so flimsy to require much
discussion. Shall we sacrifice truth and justice for the sake of a social courtesy, the
mutual respect that must be shown between different departments of the
government? Has our sense of evaluation of spiritual values become so perverted
that we can make such a blunder in our choice? Since when have the social or
official amenities become of paramount value to the extent of overshadowing the
principles of truth and justice?

2. Because without the theory, courts would have to make "a n inquisition into the
conduct of the members of the legislature, a very delicate power." This second

reason is premised not on a democratic attitude, but rather on a Fascistic one. It is

premised on the false belief that the members of the majority are a king of emperos
of Japan, to be worshipped but never to be discussed. The ideology depicted by the
second reason should be relegated to where it belongs: the archeological museum.

3. "The rule is also one of convenience." This reason again shows a perverted
evaluation of human values. Is justice to be sacrificed for the sake of convenience?

4. "Otherwise after relying on the prima facie evidence of the enrolled bills
authenticated as executed by the Constitution, for years, it might be ascertained from
the journals that an act heretofore enforced had never become a law." This last
reason personifies unreasonableness to the nth degree. So we leave it as it is, as a
perpetual evidence of the extent to which legal stupidity may reach.

WIGMORE ON EVIDENCE

Now let us examine the arguments of the next authority invoked by the majority,
Wigmore on Evidence. We will also analyzed the arguments relied upon.

1. That to go beyond the enrolled bill "would unsettle the entire statute law of the
State." This argument, as it appears quoted in the majority decision, is premised on
the unreliability of legislative journals, and it seems to depict a mind poisoned by
prejudice, as shown by the following: "We are to remember the danger, under the
prevalence of such a doctrine, to be apprehended from the intentional corruption of
evidences of this character. It is scarcely too much to say that the legal existence of
almost every legislative action would be at the mercy of all persons having access to
these journals. . . ."

The argument should be taken into consideration in connection with American

experience, which seems not to be too flattering to our former metropolis.

Our own personal experience of more than a decade in legislative processes

convinces us that Wigmore's assumption does not obtain in the Philippines. It is true
that in the pre-constitution legislative enactments we have seen few instances in
which there had been disagreement between what has actually been passed, as
shown by the journal, and the authenticated enrolled bill. But the instances were so
few to justify entertaining here the same fears entertained by Wigmore in America.

Although those instances were few, we fought to correct the evil in the Constitutional
Convention, where we were able to introduce the following revolutionary provision in
the Constitution: "No bill shall be passed by either House unless it shall be printed
and copies thereof in their final from furnished each member at least three calendar
days prior to its passage, except when the President shall have certified to the
necessity of its immediate enactment. Upon the last reading of a bill no amendment
thereof shall be allowed, and the question upon its passage shall be taken
immediately thereafter, and the yeas and nays entered in the journal." (Section 21
[2], Article VI of the Constitution.)

This provision is an effective guarantee against the situation depicted by Wigmore's

fears.

2. To the argument that if the authenticated roll is conclusive upon the courts, then
less than a quorum of each House may by the aid of presiding officers impose laws
upon the State in defiance of the inhibition of the Constitution, Wigmore answers:
"This perhaps cannot be avoided absolutely. But it applies also to all human
agencies. It is not fit that the judiciary should claim for itself a purity beyond all
others; nor has it been able at all times with truth to say that its high places have not
been disgraced."

The answer is unconvincing. Because there can be and there have been blundering,
disgraceful, or corrupt judicial officers is no reason why arbitrary presiding officers
and members of the legislature should be allowed to have their way unchecked.
Precisely the system of checks and balances established by the Constitution
presupposes the possibility of error and corruption in any department of government
and the system is established to put a check on them.

When the question of an unconstitutional, arbitrary or corrupt action by the legislature

is placed at the bar of justice, the judiciary must not shrink from its duty. If there is
corruption in the judiciary, our laws provide the proper remedy. Even we, the
members of the highest tribunal, cannot with impunity commit "culpable violation of
the Constitution, treason, bribery, or other high crimes" without being liable to be
removed from office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in accordance with Article
IX of the Constitution, and not follow the uncourageous example which is given under
the intellectual tutelage of Wigmore.

THE CONSTITUTIONAL NUMERICAL RULES

The three-fourth rule has been provided in Article XV of the Constitution as a

guarantee against the adoption of amendments to the fundamental law by mere
majorities.

The Constitution must be accorded more stability than ordinary laws and if any
change is to be introduced in it, it must be in answer to a pressing public need so
powerful as to sway the will of three-fourths of all the members of the Senate and of
the House of Representatives. Said three-fourth rule has been adopted by the
Constitutional Convention, as all the other numerical rules, with the purpose of
avoiding any doubt that it must be complied with mathematical precision, with the
same certainty of all numbers and fractions expressed or expressible in arithmetical
figures.

Where the Constitution says three-fourths of all the members of the Senate and of
the House of Representatives voting separately, it means an exact number, not
susceptible of any more or less. All the members means that no single member
should be excluded in the counting. It means not excluding three Senators and eight
Representatives as respondents want us to do in order not to cause any
inconvenience to the presiding officers and secretaries of both Houses of Congress
who had the boldness of certifying that the three-fourth rule had been complied within
the adoption of the resolution in question, when such a certification is as false as any
falsehood can be.

The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise
it would be the death knell of constitutionalism in our country. If a constitutional
provision can be so trifled with, as has happened in the adoption of the resolution in
question, it would mean breaking faith with the vitality of a government of laws, to
enthrone in its stead a whimsical government of men.

The Constitution contains several numerical provisions. It requires that the Senate
shall be composed of 24 Senators (section 2, Article VI); that Congress shall by law
make an apportionment within three years after the return of every enumeration, and
not otherwise (section 5, Article VI); that each House may expel a member with the
concurrence of two-third of all the members (section 10 [3], Article VI); that electoral
tribunals shall each be composed of nine members, three Justices of the Supreme
Court and six legislature members (section 11, Article VI); that to overrun the veto of
the President, the concurrence of two-thirds of all the members of each House is
necessary (section 20 [1], Article VI), and in certain cases the concurrence of threefourths of all the members of each House is necessary (section 20 [2], Article VI);
that Congress shall, with the concurrence of two-thirds of all the members of each
House, have the sole power to declare war (section 25, Article VI); that no treaty or
law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the Supreme Court (section 10, Article VIII); that the House of
Representatives shall have the sole power of impeachment by a vote of two-thirds of

all its members (section 2, Article IX); and that the Senate shall have the sole power
to try all impeachments, but no person shall be convicted without the concurrence of
three-fourths of all the members of the Senate (section 3, Article IX).

So it can be seen that the numerical rules inserted in the Constitution affect matters
not of momentary but of momentous importance. Each and every one of them should
be given effect with religious scruple, not only because our loyalty to the sovereign
people so requires, but also because by inserting them the Constitutional Convention
had abided by the wise teachings of experience.

By denying the petition and allowing those responsible for the unconstitutional
adoption of the resolution in question to have their way is to set up a precedent that
eventually may lead to the supremacy of an empire of lawlessness. It will be
tantamount to opening Pandora's box of evils and disasters.

The power to declare was can only be exercised by Congress with the concurrence
of two-thirds of all the members of each House. From now on, by the simple
expediency of certification by the presiding officers and secretaries of both Houses
that two-thirds had voted where a bare majority had voted in fact, said majority may
plunge our people into a maelstrome of war.

The Constitution provides that the power of impeachment needs the vote of twothirds of all the members of the House of Representatives. From now on, a mere
plurality of one will be enough to put impeachable high officials, including the
President, on the carpet.

To convict an impeached officer the fundamental law requires the concurrence of

three-fourths of all the members of the Senate. From now on, that three-fourth rule
may be dispensed with or circumvented by not counting three actual Senators, as
has been done in the resolution in question, and thereby oust the President of the
Philippines if he happens not to be in the good graces of a senatorial majority.

Without entering into the merits of the proposed constitutional amendment, to submit
which to the people high-handed means have been resorted to, there can be no
question that it is of vital importance to the people and it will affect future generations
to unimaginable extent. The Constitutional Convention had thought it wise that before
such a momentous proposal could be submitted to the people the three-fourth rule
should be adhered to by Congress.

QUOTATION FROM THE JALANDONI CASE

Months ago we stated: "It is high time to sound the clarion call that will summon all
the forces of liberalism to wage a crusade for human freedom. They should put on
the armor of righteousness and rally behind the banner for the vindication of the
principles and guarantees embodied in the Constitution and the high purposes of the
Chapter of the United Nations." This, we said in our dissenting opinion in People vs.
Jalandoni, L-777. Concerning the judgment that the future may pass upon the
actuations of the Supreme Court, in that same opinion we ventured that the historian
army, under the heading of "Epoch of Great Reaction," write as follows:

At no epoch of its history has the Supreme Court shown to be most reactionary and
retrogressive. When the victims of a constitutional violation, perpetrated by a group
of the highest officials of the government, came to if for redress, it adopted a handsoff policy, showing lack of the necessary vitality to grapple with the situation and
finding refuge in a comfortable retreat, completely disappointing those who have
pinned their faith and hope in it as the first pillar of the Constitution and the
inexpugnable bulwark of human fundamental rights. The issue of human freedom
was disposed of by them most discouragingly by nullifying the right of an accused to
be free on bail on appeal, in flagrant violation of a constitutional guarantee and of
one of the fundamental purposes and principles of the Charter of the United Nations.

Upon touching the decision of this Court in the instant case, the same historian may
record that the highest tribunal of the new Republic of the Philippines has struck the
hardest blow to the Philippine constitutional system, by refusing to do its duty in
giving redress in a clear case of violation of the fundamental law, to the great
disappointment, despair and apallment of millions of souls all over the world who are
pinning their hopes on constitutionalism for the survival of humanity.

The ideal of one world oftenly enunciated by progressive leaders in the deliberations
of the several organs of the United Nations is predicated in the adoption of a single
standard of laws, compulsory within all jurisdictions of our planet. The ethology of all
mankind must be shaped under the pattern of that single legal standard. But the
whole system is liable to crash if it is not founded on the rock bed of the elemental
principle that the majesty of the law must always be held supreme.

To keep inviolate this primary principle it is necessary that some of the existing social
organs, moral attitudes and habits of thinking should undergo reforms and
overhauling, and many fixed traditional ideas should be discarded to be replaced with

more progressive ones and inconsonance with truth and reason. Among these ideas
are the wrong ones which are used as premises for the majority opinion in this case.

The role of innovators and reformers is hard and often thankless, but innovation and
reform should continuously be undertaken if death by stagnation is to be avoided.
New truths must be discovered and new ideas created. New formulas must be
devised and invented, and those outworn discarded. Good and useful traditions must
be preserved, but those hampering the progressive evolution of cultured should be
stored in the museum of memory. The past and the present are just stepping stones
for the fulfilment of the promises of the future.

Since the last decade of the nineteenth century, physical science had progressed by
leaps and bounds. Polonium and radium were discovered by Madam Curie, Rontgen
discovered the X-ray, and Rutherford the alpha, beta and gamma particles. Atom
ceased to be the smallest unit of matter to become an under-microscopic planetarian
system of neutrons, protons, and electrons.

Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants
are grown in plain water, without any soil, but only with anions and cations. Sawdust
has ceased to be a waste matter, and from it is produced wood sugar, weighing onehalf of the sawdust processed. Inter-stellar space vacuum, almost absolute, is being
achieved to serve ends that contribute to human welfare. Bacteria and other
microbes are harnessed to serve useful human purposes. The aspergillus niger is
made to manufacture the acetic to produce vinegar for the asking. The penicillum
notatum and the bacillus brevis are made to produce penicillin and tyrothricin, two
wonder drugs that are saving many lives from formerly lethal infections. DDT
decimates harmful insects, thus checking effectively malaria, an illness that used to
claim more than one million victims a year in the world. The creation of synthetics
had enriched the material treasures offered to man by nature. Means of
transportation are developed to achieve supersonic speeds. Many scientific dreams
are fast becoming marvelous realities. Thus, science marches on. There is no reason
why the administration of justice should not progress onward, synchronized with the
rhythm of general human advancement towards a better future.

The fact that the majorities of the two chambers of Congress have without any qualm
violated Article XV of the Constitution and the majority of this Court, instead of
granting the proper relief provided by law, preferred to adopt the comfortable attitude
of indifferent by-standers, creates a situation that seems to be ogling for more
violations of the fundamental law. The final results no one is in a position to foresee.

Our vote is for the granting of the petition.

BRIONES, M., con quien esta conforme FERIA, M., disidente:

Por segunda vez en menos de un ao nos Ilaman a decidiry arbitrar sobre una
violacion de la Constitucion elcodigo fundamental de nuestro pais. A media dos
del ao pasado se trataba del recurso interpuesto ante esta misma Corte Suprema
por tres Senadores1 que se quejaban dehaber sido privados injusta y
arbitrariamente de su derecho a sentarse en el Senado de Filipinas y a particular y
votar en sus deliberaciones, con grave infraccion y detrimento de la Constitucion que
ampara tal derecho. Ahora esos mismos Senadores acuden de nuevo a esta Corte
para quejarse de otra violacion de la Constitucion, pero estavez no vienen solos: les
acompaan otros cinco miembros del Senado, diecisiete miembros de la Camarra
de Representantes y tres jefes de aagrupaciones o partidos politicos Democratic
Alliance, Popular Front y Philippine Youth Party. Jose O. Vera es recurrente en su
doble capacidad de miembro del Senado y Presidente del Partido Nacionalista. De
modo que los recurrentes suman veintiocho: 8Senadores, 17 Representantes y 3
particulares.2 Tienenun comun denominador, a saber: que son todos ciudadanos de
Filipinas, y, ademas, contribuyentes y electores.

Los recurridos son el Presidente y miembros de la Comision de Elecciones, el

Tesorero de Filipinas, el Auditor General y el Director del Buro de Imprenta.3

El objeto del recurso es recabar de esta Corte un mandamiento de prohibicion

dirigigo a los recurridos para que estos, sus agentes, empleados, subordinados y
otras personas que actuen bajo su superintendencia o en su nombre "se abstengan
y desistan de dar los pasos tendentes haciala celebracion de un plebiscito e eleccion
general el 11 de Marzo, 1947, y de imprimir la resolucion (sobre reformade los
articulos 13. y 14. de la Constitucion), las balotas y otros papeles necesarios en
relacion con dicho plebiscito,y de desembolsar o de autorizar el expendio de fondos
publicos para dicho proposito."

Para la mejor comprension del asunto estimo necesariopublicar integro a

continuacion el texto de la Resolucion conjunta que contiene la propuesta reforma a
la Constitucion, resolucion que constituye la materia u objeto de la consulta popular
en el referido plebiscito de 11 de Marzo, y es la misma que en el lexico corriente de
la prensa y del publico se conoce por resolucion sobre paridad o igualdad de
derecdhos constitucionales a favor de los americanos, esdecir, que concede a estos
iguales derechos que a los filipinosen la propiedad y cultivo de terrenos publicos, en
la explotacion de nuestros recursos naturales como bosques,minas, pesca y fuerza
hidraulica, y en la propiedad y operacion de utilidades publicas. He aqui su texto:

RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT

TO THE CONSTITUTION OF THE PHILIPPINES
TO BE APPENDED AS AN ORDINANCE THERETO.

Resolved by the Senate and House of Representatives of the Philippines in joint

session assembled, by a vote of not less than three-fourths of all the Members of
each House voting separately, to propose, as they do hereby propose, the following
amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto;

ORDINANCE APPENDED TO THE CONSTITUTION

Notwithstanding the provisions of section one, Article Thirteen, and section eight,
Article Fourteen, of the foregoing Constitution, during the effectivity of the Executive
Agreement entered into by the President of the Philippines with the President of the
United States on the Fourth of July, nineteen hundred and forth-six, pursuant to the
provisions of Commonwealth Act Numbered Seven hundred and thirty-three, but in
no case to extend beyond the third of July, nineteen hundred and seventy-four, the
disposition, exploitation, development, and utilization of all agricultural, timber, and
mineral lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces and sources of potential energy, and other natural resources
of the Philippines, and the operation of public utilities, shall, if open to any person, be
open to citizens of the United States and to all forms of business enterprise owned or
controlled, directly or indirectly, by citizens of the United States in the same manner
as to, and under the same conditions imposed upon, citizens of the Philippines or
corporation or associations owned or controlled by citizens of the Philippines.

This amendment shall be valid as a part of the Constitution when approved by a

majority of the votes cast in an election at which it is submitted to the people for their
ratification pursuant to Article XV of the Constitution.

Adopted,

(Sgd.) JOSE AVELINO

President of the Senate

(Sgd.) EUGENIO PEREZ

Speaker of the House of Representatives

We hereby certify that the foregoing Resolution was adopted by both Houses in joint
session assembled in the Hall of the House of Representatives on September 18,
1946.

(Sgd.) ANTONIO ZACARIAS

Secretary of the Senate

(Sgd.) NARCISO PIMENTEL

Secretary of the House of Representatives

Para comprobar la voluntad popular sobre la reforma constitucional propuesta el

Congreso de Filipinas ha aprobadola Ley No. 73 de la Republica que dispone y

ordena la celebracion de un plebiscito para el 11 de Marzo de esteano, provee a la

forma de celebrarlo y consigna el presupuesto necesario para sufragar los gastos
del mismo. Siuna mayoria de los electores votare afirmativamente, la
reformaquedara ratificada y estara en vigor por un periodo de 28 aos; en caso
contrario, quedara rechazada.

Los recurrentes alegan y sostiened que la resolucion conjuntade que se trate es

ilegal y nula por no haberse aprobadocon los votos de las tres cuartas-partes (3/4)
del Congreso, conforme a lo provisto en el Articulo XV de la Constitucion, a saber:

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
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.

Se alega que cuando se considero y aprobo la citada Resolucion conjunta el Senado

se componia actualmente de 24 miembros, es decir, el numero exacto fijado en la
Constitucion, y la Camara de Representantes de 96 miembros, es decir, dos menos
que el numero sealado en la Constitucion, pues does dimitieron despues de las
elecciones, uno para aceptar un cargo en el ramo ejecutivo del gobierno y otro para
aceptar un nombramiento en el servicio diplomatico. Sin embargo, segun la
demanda de los recurrentes, en el Senado solo se permitio votar a 21 miembros,
excluyen dose de las deliberaciones y votacionfina l de la Resolucion a tres
miembros, a saber; los Senadores Vera, Diokno y Romero. De los referidos 21
miembros, votaron a favor de la Resolucion 16 y en contra 5; asi que arguyen los
recurrentes la Resolucion no quedo aprobada, por parte del Senado, con el
numero constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia ser
18.

En la Camara de Representantes, segun los recurrentes, solo se permitio votar a 88

miembros, excluyen dose de las deliberaciones y votacion final de la resolucion a 8
miembros, a saber: Representantes Alejo Santos y Jesus B. Lava, de Bulacan;
Reps. Jose Cando y Constancio P. Padilla, de Nueva Ecija; Reps. Amado M. Yuson
y Luis Taruc, de Pampanga; Rep. Alejandro Simpauco, de Tarlac; y Rep. Vicente F.
Gustilo, de Negros Occidental. De los referidos 88 miembros votaron a favor de la
Resolucion solo 68; asi que arguyen los recurrentas la Resolucion tampoco
quedo aprobada, por parte de la Camara, con el numero constitucional de tres
cuartas-partes (3/4) partes de sus miembros, el cual debia ser 72, por lo menos, y no
68, aun dando por descontados los dos miembros que despues de las elecciones
aceptaron cargos en otros ramosdel gobierno.

Siendo inconstitucional y nula la Resolucion basica deque se trata,

consiguientemente los recurrentes tachantambien de inconstitucional e invalida la
referida Ley de la Republica No. 73 que convoca una eleccion general o plebiscito
para el 11 de Marzo de 1947 a fin de someter alpueblo para su ratificacion o repudio
la enmienda constitucional propuesta, y que consigna la suma de P1,000,000 para
los gastos en que se hubiere de incurrir con motivo dela celebracion de dicho
plebiscito, entre habilitacion deprecintos electorales, pago de dietas de los
inspectores y costo de la a impresion, publicacion, fijacion y distribucion gratuita de
copias de la propuesta enmienda en ingles, espaol y otros dialectos del pais.

Los recurridos, despues de admitir ciertas alegacioneses enciales de la demanda y

negar otras, plantean las siguientes defensas especiales:

Primera defensa especial: que una ley o resolucion impresa (enrolled Act or
Resolution) de ambas Camaras del Congreso, adverada o autenticada con las
firmas de los Presidentes de dichas Camaras, es prueba concluyente deque la
misma fue aprobada por el Congreso; que, en virtud del respeto que se debe a un
ramo igual y coordinado del gobierno, no es permisible una investigacion judicial
desi la misma a fue o no aprobada debida y propiamente por el Congreso; y que, por
tanto, esta Corte Suprema carecede jurisdiccion para conocer y enjuiciar los puntos
suscitados por los recurrentes en relacion con la validez y constitucionalidad de la
resolucion en cuestion.

Empero si la primera defensa especial no fuese sostenida, los recurridos alegan, por
via de segunda defensa especial, que la resolucion controvertida fue aprobada a
conlos votos de tres cuartas-partes (3/4) de todos los miembros cualificados del
Senado y de la Camara de Representantes votando separadamente, en
consonancia con el Articulo XV, apartado 1, de la Constitucion, y que
consiguientementela ley de la Republica No. 73 que ordena suplanteamiento ante el
pueblo para su ratificacion o desaprobacion, senala una fecha para la celebracion de
estaconsulta plebiscitaria y consigna fondos publicos para talfin, es valida y
constitucional.

Consta en autos una estipulacion de hechos concertadaentre las partes, pero no se

extracta aqui para no alargar innecesariamente esta disidencia, pero se hara
particular referencia a ella mas adelante a medida que las exigenciasde la
argumentacion lo demanden.

Es preciso hacer constar que los abogados de ambas parteshan hecho cumplida
justicia a la tremenda importancia del asunto haciendo extensos estudios y
pacientes investigaciones de la jurisprudencia pertinente, en particular la americana,
teniendo en cuenta la influencia profunda y decisiva de aquel pais en nuestras ideas

politicas y constitucionales en virtud de la historica y estrecha convivenciade casi

medio siglo.

Es que la cosa no era para menos. Puede decirse, sinexageracion, que excepto en
cuatro momentos culminantes de su historia el primer grito de rebelion contra
Espaa en Agosto de 1896, la ruptura de hostilidades contra Americaen Febrero de
1899, la aceptacion de la Ley de Independencia en el plebiscito nacional de 1935, y
la guerra contra el Japon en 1941 en ningun momento, en los ultimos 60 aos, ha
sido Ilamado el pueblo filipino a rendiruna decision tan importante, de trascendencia
e implicacionestan graves, tan tremendas, como la que tiene que hacer en el
plebiscito de 11 de Marzo proximo con motivode la Resolucion congresional
discutida en el presente asunto.

Es una de esas decisiones que hacen historia; que parabien o para mal sacuden los
cimientos de un pais tal quesi fuese un fenomeno cosmico; que determinan el curso
desu existencia y deytinos nacionales; que deciden, en una palabra, de la suerte de
generaciones ya existentes y degeneraciones que no han nacido todaviaa. Es una
de esas decisiones que para hacerla los pueblos deben hincarse humildemente de
rodillas, de cara al cielo, pidiendo al Dios de los pueblos y naciones la gracia de una
salvadora inspiracion de Su infinita sabiduria . . ..

II

Para los efector de una amplia perspectiva historica quepermita destacar en toda su
plenitud los contornos de losformidables "issues" o puntos constitucionales
debatidos en el presente asunto, parece conveniente que repasemos, siquiera
brevemente (en las notas marginales lo que no cabeen el mismo texto de esta
disidencia),4 los preceptos basicos de la Constitucion que se trate de reformar conla
Resolucion congresional de que tantas veces se ha hechomerito. Helos aqui:

ARTICLE XIII. CONSERVATION AND UTILIZATION OF NATURAL

RESOURCES.

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and
other natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at

the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or
utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years, except as to water rights
for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and the limit of the
grant.

ARTICLE XIV. GENERAL PROVISIONS

xxx

xxx

xxx

SEC. 8. No franchise, certificate, or any other form of authorization for the operation
of a public utility shall be granted except to citizens of the Philippines or to
corporations or other entities organized under the laws of the Philippines, sixty per
centum of the capital of which is owned by citizens of the Philippines, nor shall such
franchise, certificate, or authorization be exclusive in character or for a longer period
than fifty years. No franchise or right shall be granted to any individual, firm, or
corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the public interest so requires.

Como queda dicho, la reofrma propuesta es en el sentidode que, no obstante lo

dispuesto en los preceptos arribatranscritos, "durante la efectividad del Convencio
Ejecutivo perfeccionado entre el Presidente de Filipinas y el Presidente de los
Estados Unidos el 4 de Julio de 1946, al tenorde las disposiciones de la Ley del
Commonwealth No. 733, pero que en ningun case se extendera mas alla del 3 de
Julio de 1974, la disposicion, explotacion, desar rollo y utilizacionde todos los
terrenos agricolas, forestales y minerales de dominio publico, de aguas, minerales,
carbon, petroleo y otros minerales petroliferos, de todas las fuerzasy fuentes de
energia potencial, asi como de otros recursos de Filipinas, y la operacion de
utilidades publicas, si abiertos para cualguier persona, quedan abiertos para los
ciudadanos de los Estados Unidos y para todas las formas de negocio y empresa de
la propiedad o controladas, directao indirectamente, por ciudad aos de los Estados
Unidos, de la misma manera y bajo las mismas condiciones impuestasa los
ciudadanos de Filipinas o a las corporaciones o asociaciones de la propiedad o
controladas por ciudadanos de Filipinas (Resolucion conjunta del Congreso filipino,
supra).

Podemos tomar conocimiento judicial pues, sobre ser historia contemporanea, se

trata de las labores y procesos deliberativos de la misma Asamblea Constituyente
de quelos preceptos capitales arriba transcritos constituyen la expresion acabada de

toda la madurez de juicio, de toda laprudencia y sabiduria de que eran capaces no

solo los autores de la Constitucion y los Delegados que la aprobaron, sino el pueblo
filipino que la ratifico en el correspondiente plebiscito nacional convocado al efecto.
En pocas resoluciones ha habido tanta firmeza y tan fuerte unanimidadentre
nuestros partidos politicos y sus caudillos como enesa recia y constructiva
afirmacion de nacionalismo. Nadamejor, creo yo, que las siguientes palabras para
definir elespiritu, la filosofia que informa esas provisiones:

This provision of the Constitution has been criticized as establishing the outworn
Regalian doctrine which, it is suggested, may serve to retard the economic
development of the Philippines. The best encomium on this provision is probably the
very criticism launched against it. It is inconceivable that the Filipinos would liberalize
the acquisition, disposition and exploitation of our natural resources to the extent of
permitting their alienation or of depriving the people of this country of their heritage.
The life of any nation depends upon its patrimony and economic resources. Real
freedom, if it is to be lasting, must go hand in hand with economic security, if not
economic prosperity. We are at most usufructuaries of ourdomains and natural
resources and have no power to alienate them even if we should want to do so. They
belong to the generations yet unborn and it would be the height of folly to even think
of opening the door for their untrammelled disposition, exploitation, development or
utilization to the detriment of the Filipinos people. With our natural resources in the
hands of foreigners what would be there left except the idealism of living in a country
supposedly free, but where freedom is, after all, an empty dream? We would be
living in a sumptuous palace that it not ours! We would be beggars in our own
homes, strangers in our own land!

Friendship and amity towards all nations are compatible with the protection of the
legitimate interests of the Filipino people. There is no antagonism or hostility towards
foreigners but sane nationalism and self-protection which every country of the world
is practising today in the interest of self-preservation. (The Three Powers of
Government, by Laurel, pp. 117-118.)

Los criticos de la enmienda constitucional propuesta pueden discutir libremente,

como cumple a los ciudadanos de un pais democratico, los meritos y demeritos de
lamisma. Pueden combatirla con toda clase de razones morales, politicas,
economicas, financieras, internacionales, y hasta de decencia y naturalmente
defenderla tambiensus partidarios desde todos los angulos. Podrian los
opositoreshacer una minuciosa diseccion de su fraseologia yacaso hallar en sus
repliegues peligrosas implicaciones, posibles riesgos, como en ese par de adverbios
"directa o indirectamente", a cuyo socaire podrian acogerse corporacioneso
asociaciones extranjeras controladas solo indirectamente por ciudadanos
americanos para concurrir en la explotacion de nuestros terrenos publicos y recursos
naturales, y en la operacion de utilidades publicas. Todo estolo pueden hacer, y algo
mas. Pero es obvio, elemental quesemejante discusion no compete a esta Corte
Suprema, sinoen todo caso a otros poderes constituidos.

Nosotros no estamos para determinar y enjuiciar labondad o maldad de la enmienda

propuesta. Lo unico quenos incumbe hacer, ya que la cuestion se halla propiamente
planteada ante nosotros, es resolver si la enmienda ha sido aprobada por el
Congreso de acuerdo con el mandato expreso de la Constitucion en materia de
enmiendas; si losrequisitos que la Constitucion seala para poder enmendarla
requisitos que son mandatorios, categorica menteimperativos y obligatorios se
han cumplido o se han violado. Como se dijo bien en el asunto de Gray vs. Childs
([1934], 156 So., 274, 279), ". . . No podemos decir queel estricto requerimiento
relativo a las enmiendas se puede renunciar a favor de una buena enmienda e
invocar encontra de otra mala. . . . No compete a los tribunales el determinar cuando
una enmienda propuesta es sabia y cuando no lo es. Los tribunales nada tienen que
ver conla sabiduria de la politica. Pero es deber de los tribunales, cuando se les pide
que lo hagan, el determinar si o no el procedimiento adoptado para la aprobacion de
la enmiendaes el sealado por los terminos de la ley organica.

Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de nuestra
Constitucion en materia de recursos naturales y utilidades publicas, se ha dicho no
como expresion de un criterio propio, sino tan solo para subrayar todala gravedad,
toda la densidad del asunto, y prevenir entodo caso los peligros de una rutinaria y
complacienteliviandad. Como tambien se dijo en el citado asunto deGray vs. Childs,
"la enmienda de la ley organica del Estado o nacion no es una cosa para ser tomada
ligeramente, ni para ser hecha de lance o al azar. Es una cosa seria. Cuando la
enmienda es aprobada, viene a ser parte de laley fundamental del pais y puede
significar el bienestar omaldicion de las generaciones de la nacion donde se
haceparte del codigo fundamental."

Este pronunciamiento adquiere todo el valor y toda la resonancia de una consigna

en el presente caso en que lareforma propuesta afecta vitalisimamente al
patrimonionacional del pueblo filipino. No son los recursos naturalesy las utilidades
publicas el tesoro de una nacion, labase que sustenta su existencia, la espina dorsal
de sueconomia? Por tanto, jamas se podra exagerar el celo, la vigilancia que el
pueblo y sus organos naturales ejercenpara que las salvaguardias impuestas por la
misma Constitucionen relacion con el proceso y tramitacion de todaenmienda
constitucional se cumplan y observen con el maximo rigor.

Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la doctrina de

la separacion de poderes quela mayoria de esta Corte invoca para justificar su
inaccion, su pasividad, su politica de "manos fuera", alegando que el presente
asunto es coto vedado para nos otros, algo quecae fuera de nuestra jurisdiccion, eso
que en derecho politico y constitucional se llama materia politica no-justiciable.

III

La mayoria rehusa asumir jurisdiccion sobre el presente caso porque dice que versa
sobre una cuestion politica, ylas cuestiones politicas caen fuera de la competencia
de los tribunales de justicia. Creo que esto es un error, dicho seacon todos los
respetos debidos a mis ilustres compaeros que sostienen tal opinion. Hay acaso
algun documento mas politico que la Constitucion? Si la opinion de lamayoria fuese
valida y acertada, practicamente ninguna violacion de la Constitucion podria ser
enjuiciada por los tribunales, pues cual mas, cual menos, casi todas las
transgresionesconstitucionales, sobre todo las que comete elpoder legislativo o el
poder ejecutivo, tienen caracter politico. Bajo esa opinion la Constitucion seria una
letramuerta, un simple pedazo de papel: los poderes constituidos, los individuos que
los componen, podrian infringirim punemente la Constitucion sin que ningun arbitro
constitucional pudiera intervenir ordenadamente para restaurarla suprema majestad
de la ley fundamental violada. Esclaro que esto podria conducir facilmente al caos, a
la anarquia, a la revolucion, dependiendo solo el resultado de lamayor o menor
docilidad del pueblo, del grado de elasticidad politica de las masas. Y es claro que
ninguno puedequerer este triste destino para nuestro pais.

Creo sinceramente que una mejor y mas correcta evaluacion de nuestro sistema de
gobierno que esta esencial mentecalcado en el americano, es que bajo la teoria
relativa de las eparacion de poderes, ningun poder es superior al pueblo cuya
voluntad esta encarnada en la Constitucion. Los poderes no son mas que agentes,
mandatarios, servidores: el pueblo es el amo, el mandante, el soberano. Y el pueblo
ordena y manda por medio de la Constitucion esta es suvoz el verbo hecho carne
politica y social, el soplo vital quetraduce y transmuts su espiritu en postulados
esenciales deregulacion y gobierno.

Todo eso esta bien, no puede haber seria objecion a ello,dicen los sostenedores
absolutistas de la teoria de la sedparacion de poderes. Pero se pregunta: quien
seala lavoluntad del pueblo tal como esta plasmada en la Constitucion? ?Quien es
el profeta que desciende del Sinai para revelar las tablas de la ley? Quien ha de
arbitrar en los conflictos constitucionales, o quien ha de decidir los litigios
propiamente planteados en que se ventilan una infraccion de la Constitucion? Hay
un peligroso vacio en nuestro mecanismo constitucional, o por el contrario, los
resorteestan todos bien situados, capaces de operar y funcionarade cuada y
eficientemente? Esto es precisamente el busilis, la cuestion batallona.

No puede haber duda en la contestacion a tales preguntas. Bajo nuestro sistema de

gobierno el poder judiciales el llamado a sealar, a interpretar la ley; y en los
conflictoso transgresiones constitucionales esta Corte Suprematiene la ultima
palabra, le compete el arbitraje supremoy final. Bajo nuestra mecanica
constitucional, igual quebajo la americana, se da la aparente paradoja de que la
superior facultad, el supremo negocio de interpretar la voluntad del pueblo tal como
esta expresada mas o menos permanentemente en la Constitucion, no corresponde
propiamentea ninguno d e los poderes electivos, los que se

renuevanperiodicamente, sino al poder que si bien es denombramiento en su origen,

tiene, sin embargo, sentido deperpetuidad, quiero decir, es vitalicio en la complexion
y funcion de los individuos que los componen el poder judicial. La sabiduria
peculiar, la originalidad del sistemaconsiste precisamente en eso: en haber alojado
el supremo arbitraje con relacion a los conflictos y transgresiones constitucionales
en un poder del Estado al cual deliberadamentese le ha dotado de un clima
psicologico y moral el maspropicio posible a la objetividad y desasimiento de
lasdisputas politicas y discordias civiles, situandosele por encimade los vaivenes de
la politica al uso y las veleida desde la suerte electora. "Esto es lo que va implicto en
la expresion supremacia judicial, que propiamente es la facultad de revision judicial
bajo la Constitucion" (Angara contra Comision Electoral, 63 Jur. Fil., 171).

The very essence of the American conception of the separation of powers is its
insistence upon the inherent distinction between law-making and law-interpreting,
and its assignment of the latter to the judiciary, a notion which, when brought to bear
upon the Constitution, yields judicial review." (Corwin, The Twilight of the Supreme
Court, p. 146.)

En el famoso asunto de Marbury vs. Madison, supra, el Tribunal Supremo de los

Estados Unidos, por boca de sugran Chief Justice John Marshall, en terminos
inequivocos definio y explico las facultades de la judicatura para poneren vigor la
Constitucion como la suprema ley del pais, y declaro que es terminantemente de la
competencia y deberdel departamento judicial el decidir cual es la ley querige.

The reasoning of Webster and Kent is substantially the same. Webster says: "The
Constitution being the supreme law, it follows of course, that every act of the
Legislature contrary to the law must be void. But who shall decide this question?
Shall the legislature itself decide it? If so, then the Constitution ceases to be legal
and becomes only a moral restraint for the legislature. If they, and they only, are to
judge whether their acts be conformable to the Constitution, then the Constitution is
advisory and accessory only, not legally binding; because, if the construction of it rest
wholly with them, their discretion, in particular cases, may be in favor of very
erroneous constructions. Hence the courts of law, necessarily, when the case arises,
must decide upon the validity of particular acts." Webster, Works, Vol. III, 30.
(Willoughby on the Constitution of the United States, Vol. 1, 2d edition, pp. 4, 5.)

En el citado asunto de Angara contra Comision Electoral dijimos tambien lo

siguiente:

. . . Y la judicatura, a su vez, con el Tribunal Supremo por artbitro final, frena a con
efectividad a los demas departament of en elejercicio de su facultad de determinar la

ley, y de aqui que pueda declarar nulos los actos ejecutivos y legislativos que
contravengan la Constitucion.

Esta doctrina reafirmo en el asunto de Planas contra Gil (67 Phil., 62), a saaber:

. . . As far as the judiciary is concerned, which it holds' neither the sword nor the
purse' it is by constitutional placement the organ called upon to allocate constitutional
boundaries, and to the Supreme Court is entrusted expressly or by necessary
implication the obligation of determining in appropriate cases the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation. (Section 2 [1],
Art. VIII, Constitution of the Philippines.) In this sense and to this extent, the judiciary
restrains the other departments of the government and this result is one of the
necessary corollaries of the "system of checks and balances" of the government
established.

No es que con esto el poder judicial assume un complejode superioridad sobre los
otros poderes del Estado, no. Setrate simplemente de que, dentro de las limitaciones
de todacreacion humana, alguien tiene que arbitrar y dirimir losconflictos y las
transgresiones a gue puede dar lugar la Constitucion, y se estima que el poder
judicial, pro la razonde su ser y de sus funciones, es el mas llamado a ser esearbitro.
Se trate de una propia y graciosa inhibicion delos otros poderes en virtud de una
necesidad impuesta porunas teorias y practicas de gobiernio que han resistido la
prueba del tiempo y el choque con la realidad y la experiencia. En mi disidencia en el
asunto de Vera contra Avelino (77 Phil., 192), hablando sobre este particular dijelo
siguiente y lo reitero ahora, a saber:

En parte, el argumento expuesto es correcto y acertado. No sepuede discutir que los

tres poderes del Estado son iguales e independientesentre si; que ninguno de ellos
es superior al otro, mucho menos el poder judicial que entre los tres es el menos
fuerte y elmas precario en medios e implementos materiales. Tampoco se puede
discutir que bajo la Constitucion cada poder tiene una zona, una esferade accion
propia y privativa, y dentro de esa esfera un cumulode facultades que le pertenecen
exclusivamente; que dentro de esaesfera y en el uso de esas facultades cada poder
tiene absoluta discreciony ningun otro poder puede controlar o revisar sus actos so
pretexto de que alguien los cuestiona o tacha de arbitrarios, injustos, imprudentes o
insensatos. Pero la insularidad, la separacion llegasolo hasta aqui. Desde
Montesquieu que lo proclamo cientificamente hasta nuestros dias, el principio de la
separacion de poderes hasufrido tremendos modificaciones y limitaciones. El
consenso doctrinal hoy es que la teoria es solo relativa y que la separacionde
poderes queda condicionada por una mecanica constitucional lamecanica de los
frenos y cortapisas. (Willoughby, On the Constitution of the United States, tomo 3,
pags. 1619, 1620, 2. edicion.) Como queda dicho, cada poder es absoluto dentro de
la esfera quele asigna la Constitucion; alli el juego de sus facultades y funcionesno
se puede coartar. Pero cuando se sale y extravasa de esa esferainvadiendo otras

esferas constitucionales, ejerciendo facultades queno le pertenecen, la teoria de la

separacion ya no le ampara, la Constitucion que es superior a el le sale al
encuentro, le restringe uy leachica dentro de sus fronteras, impidiendo sus
incursiones anti-constitucionales. La cuestion ahora a determinar es si bajo
nuestrosistema de gobierno hay un mecanismo que permite restablecer eljuego
normal de la Constitucion cuando surgen estos desbarajustes, estos conflictos que
podriamos llamar de fronteras constitucionales; tambien es cuestion a determinar si
cuando surgen esos conflictos, un ciudadano sale perjudicado en sus derechos, el
mismo tiene algun remedio expedito y adecuado bajo la Constitucion y las leyes, y
quien puede concederle ese remedio. Y con esto llegamos a la cuestion basica,
cardinal en este asunto.

Nuestra opinion es que ese mecanismo y ese remedio existen son los tribunales
de justicia.

La mayoria no define en su decision lo que llama cuestion politica no-justiciable ni

las maaterials o casos que caen dentro de su significado. "The difficulty lies" dice
la ponencia "in determining what matters fall within the meaning of political
question. The term is not susceptible of exact definition, and precedents and
authorities are not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the actions of the political departments of the
government." Pero razonando por analogia cita un precedente, una autoridad el
caso de Coleman vs. Miller decidido no hace muchos aos por la Corte Suprema
Federal de los Estados Unidos. La mayoria cree que este es el caso mas semejante
al que nos ocupa. Creo que la mayoria padece error: el caso de Coleman contra
Miller es precisamente un buen argumento en favor del recurso.

Compendiado el caso es como sigue: En Junio, 1924, el Congreso de los Estados

Unidos propuso una reforma ala Constitucion, conocida por "Child Labor
Amendment" (enmienda sobre el trabajo infantil). En Enero, 1925, la Legislatura del
Estado de Kansas adopto una resolucion rechazandola enmienda y una copia
certificada de la resolucionse envio al Secretario de Estado de los Estados Unidos.
En Enero, 1937, o sea 12 aos despues, una resolucion conocida como "Resolucion
Concurrente del Senado No. 3" se presento en el Senado del Estado de Kansas
pararatificar la propuesta enmienda. Habia 40 Senadores. Alconsiderarse la
resolucion 20 Senadores votaron en favor y 20 Senadores en contra. El Teniente
Gobernador, que era entonces el Presidente del Senado en virtud de la Constitucion
estatal, emitio su voto en favor de la resolucion, rompiendo asi el empate. La
resolucion fue posteriormente adoptada por la Camara de Representantes de
Kandas mediante una mayoria de los votos de sus miembros.

Fued entonces cuando se interpuso ante la Corte Suprema de Kansas un recurso de

mandamus por los 20 Senadores adversos a la resolucion y por otros 3 miembros de
la Camarade Representantes. El objeto del recurso era (a) compeler al Secretario

del Senado a borrar el endoso favorable de la resolucion y poner en su lugar las

palabras "no ha sido aprobada"; (b) recabar la expedicion de un interdicto contra los
oficiales del Senado y Camara de Representantes prohibiendo les que firmaran la
resolucion y contra el Secretario de Estado de Kansad prohibiendole que autentic
aradicha resolucion y la entregara la Gobernador. La solicitud cuestionaba el
derecho del Teniente Gobernadora emitir su voto decisivo en el Senado. Tambien se
planteabaen la solicitud el hecho de que la resolucion habiasido rechazada
originariamente y se alegaba, ademas, quedurante el periodo de tiempo
comprendido entre Junio,1924, y Mayo, 1927, la enmienda habia sido rechazada
porambas Camaras de las Legislaturas de 26 Estados y solose habia ratificado en 5
Estados, y que por razon de dicho rechazamiento y por no haberse ratificado dentro
de untiempo razonable la enmienda habia perdido su validez y vitalidad.

La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre los hechos,
asumio competencia sobre el casoy sostuvo que el Teniente Gobernador tenia
derecho a emitirvoto decisivo, que la proyectada enmienda conservabasu vitalidad
original a pesar del tiempo transcurrido, y quela resolucion, "habiendo sido aprobada
por la Camara de Representantes y por el Senado, el acto de ratificacion dela
propuesta enmienda por la Legislatura de Kansas erafinal y complete."
Consiguientemente el recurso de mandamus fue denegado.

Elevado el asunto en casacion para ante la Corte Suprema Federal, esta asumio
jurisdiccion sobre el caso, conla concurrencia y disidencia de algunos Magistrados
que opinaban que el recurso debia rechazarse de plano, sin masceremonias, por la
razon, segun los disidentes, de que los recurrentes no tenian personalidad ni
derecho de accion para pedir la revision de la sentencia de la Corte Supremade
Kansas, y porque ademas se trataba de una cuestion puramente politica, por tanto
no-justiciable. Bajo la ponenciade su Presidente el Sr. Hughes, la Corte Suprema
Federal conocio del caso a fondo, discutiendo y resolviendo las cuestiones
planteadas. He aqui sus palabras: "Our authority to issue the writ of certiorari is
challenged upon the ground that the petitioners have no standing to seek to have the
judgment of the state court reviewed and hence itis urged that the writ of certiorari
should be dismissed.We are unable to accept that view." Esto viene a ser comouna
replica a las siguientes palabras de los disidentes: "It is the view of Mr. Justice
Roberts, Mr. Justice Black, Mr. Justice Douglas and myself (Mr. Justice Frankfurter)
that the petitioners have no standing in the Court." Delo dicho resulta evidente que la
Corte Federal no adoptola actitud de "manos fuera" (hands off), sino que actuo
positivamente sobre el caso, encarandolo.

La decision consta de tres partes. La primera parte, que es bastante extensa, esta
consagrada enteramente adiscutir la cuestion de la jurisdiccion de la Corte. Ya
hemosvisto que esta cuestion se ha resuelto enteramente enfavor de la jurisdiction,
en virtud de las razones luminosas que alli se explanan y que no reproduzco por no
ser necesario y para no alargar indebidamente esta disidencia. La segunda parte es
bien breve, apenas consta de dos parrafos. Se refiere a la cuestion de si el voto del
Teniente Gobernador, que rompio el empate, era o no valido. La Corte nolo

resuelve, por que dice que sus miembros se dividieron porigual sobre si era una
cuestion politica y, por tanto, nojusticiable. La tercera parte, tan extensa como la
primera, esta dedicada a estudiar y discutir las siguientes proposiciones :(a) Si
habiendo sido rechazada originariamentela enmienda, una ratificacion posterior
podia validamente dejar sin efecto dicho rechazamiento y tomarse como
unaratificacion legal al tenor de la Constitucion; (b) si ellargo tiempo transcurrido
entre el rechazamiento y la ratificacion unos 13 aos no habia tenido el efecto
de darcaracter final a la repudiacion de la enmienda, causando estado juridico
definitivo.

El analisis que hace el ilustrado ponente de las cuestiones planteadas es muy

interesante y desde luego acabado. Se estudian y comentan luminos amente los
precedentes. Sobre la cuestion de si el rechazamiento de unaenmienda propuesta
impide que la misma sea ratificada posteriormente, se puntualiza lo siguiente: que el
articulo V de la Constitucion Federal sobre enmienda esta fraseadoen terminos
positivos, es decir, habla de ratificacion y node rechazamiento, y que por tanto "el
poder para ratificarlo confiera al Estado la Constitucion, y que, como poder
ratificante, continua y persiste, a pesar de un previo rechazamiento. "Luego la Corte
dice, examinando los precedentes, que el Congreso, en el ejercicio de su control
sobrela promulgacion de las enmiendas a la Constitucion, ha resuelto esta cuestion
repetidas veces en el sentido indicado, esto es, considerando inefectivo el previo
rechazamientofrente a una positiva ratificacion; y la Corte concluye que esta accion
del Congreso es valida, constitucional; por consiguiente, los tribunales no estan
autorizados para revisarla. Es en este sentido, creo yo, como la Corte dice que se
trate de una cuestion politica no-justiciable, es decir una cuestion que cae dentro de
la zona constitucional exclusion del Congreso; por tanto, se trate deuna accion
valida, constitucional. Pero no hay nada enesa decision que diga, o permita inferir,
que cuando el Congreso viola un mandato expreso de la Constitucion, como en el
caso que nos ocupa, los tribunales no pueden intervenir, bajo el principio de la
supremacia judicial entratandose de interpretar la Constitucion, para resolver el
conflicto o enjuiciar la transgresion, y conceder el remedio propiamente pedido. En
otras palabras, en el caso de Coleman contra Miller la Corte Suprema Federal hallo
que el Congreso, al declarar valida la ratificacion de la enmienda constitucional
sobre trabajo infantil (Child labor), no habia infringibo el articulo V de la Constitucion,
sobre enmiendas, y la Corte lo razona diciendo, con la vista delos precedentes, que
el referido articulo V habla de ratificacion y no de rechazamiento, y que, por tanto, "el
poderpara ratificar continua y persiste a pesar de un previo rechazamiento." De
suerte que, en realidad de verdad, no escierto que la Corte Suprema Federal declaro
injusticiablela materia, pues que mejor prueba de justiciabilidad que ese dictum
categorico, positivo y terminante?

Sobre la proposicion de si el largo tiempo transcurrido entre el rechazamiento y la

ratificacion unos 136 aos no habia tenido el efecto de dar caracter final a la
repudiacion de la enmienda, causando estado juridico definitivo, la Corte Suprema
Federal fallo que no, es decir, declarovalida la ratificacion no obstante dicho lapso de
tiempo, aduciendo razones muy atinadas, entre ellas la de que las condiciones de
caracter moral, medico, social y economico que aconsejaban la prohibicion del
trabajo infantil en las fabricas eran tan validas y existentes, si no mas, cuandose
sometio la enmienda por primera vez para su ratificacion como 13 aos despues. Y

luego la Corte cita autoridades y precedentes en apoyo de su conclusion, entre

ellosel caso tipico y decisivo de Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41
Sup.Ct., 510). En este caso la Cortedeclaro que el Congreso, al proponer una
enmienda a la Constitucion, pueded fijar un tiempo razonable para su ratificacion, y
sostuvo la accion del Congreso al disponer enla proyectada 18. Enmienda que la
misma seria ineficaza menos que se ratificase dentro de siete aos.

Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario: el

Congreso no habia fijado ningun plazopara la ratificacion. En vista de esto, los
recurrentes pretendian que la Corte supliera la omision del Congreso declarandolo
que era tiempo razonable, teniendo en cuentalos precedentes judiciales y el
precedente congresional de 7 aos ya sostenido en el caso citado de Dillon contra
Glass; y que desde luego el periodo de 13 aos era demasiado largo para ser
razonable. La Corte Suprema dijo que no, queno eran los tribunales los que debian
fijar ese tiempo razonable; que en esta cuestion entraban muchos factores
denaturaleza varia y compleja politicos, economicos y sociales que solo el
Congreso estaba en condiciones de determinar ya mediante la correspondiente
legislacion como enel caso de la 18. Enmienda, ya en cada caso concreto
deratificacion al ejercer su control sobre la promulgacion de las enmiendas. Ahora
bien, pregunto: no es esto un dictum judicial? no es esto justiciar? no esta aqui
la Corte Suprema Federal sentandose en estrados y emitiendo judicialmente su
opinion sobre una materia juridica y constitucional sometida a su consideracion? En
realidad, puede decirse que la unica cuestion que la Corte ha dejado de resolver es
la validez o nulidad del voto decisivo del Teniente Gobernador, por la razon de que
sobre este punto, segun se dice en la misma decision, la opinion del Tribunal estaba
igualmente dividida. Todas las demas cuestiones han sido enjuiciadas, resueltes, y
esta accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y las materias
en el discutidas, es lo que ha motivado la disidencia de 4 Magistrados los Sres.
Black, Roberts, Frankfurter y Douglas. En efecto, estos disidentes no disimulansu
desagrado al ver que la Corte asume en el caso, siquier implicitamente, el poder de
interpretacion judicial, y aunvan mas alla expresan un notorio desencanto al ver
que la Corte "trata el proceso enmendatorio provisto por la Constitucion, como sujeto
a interpretacion judicial en algunos respectos, y en otros sujeto a la autoridad final
del Congreso", y al ver tambien que en la decision "no hay desaprobacion de la
conclusion establecida en el asunto de Dillon contra Glass, de que la Constitucion
requiere tacitamente que una enmienda propiamente sometida debe darsepor
muerta, a menos que se ratifique dentro de un tiempo razonable." Es decir, los
Magistrados disidentes esperaban que la Corte revocase y abrogase lo hecho por
ella en elcitado asunto de Dillo contra Glass en donde la Corte, envez de abstenerse
de conocer del caso por tratarse en el, segun los disidentes, de materia politica nojusticiable, ejercio plena jurisdiccion sobre el mismo asumiendo supoder tradicional
de interpretar la Constitucion y declarando valida la lay del Congreso que fijaba un
plazo de7 aos para la ratificacion de la 18. Enmienda. No puedo resistir a la
tentacion de reproducir las mismas palabrasde la disidencia: ellas, mejor que todo lo
que yo pueda decir, demuestran de modo inconcuso las irreconciliables diferencias
de criterio entre la mayoria, representada porel ilustre ponente Sr. Hughes, y los
disidentes, pues mientraspor un lado el ponente justicia decididamente el caso
considerando, discutiendo y resolviendo todas las cuestionesplanteadas, menos la
cuestion del voto del Teniente Gobernador, citando profusamente autoridades y
precedentes, los disidentes, en su opinion, preconizan una actitudde absoluta
abstencion, de "manos fuera" (hands off), portratarse, segun ellos, de una materia

politica no-justiciable que cae exclusivamente bajo el control del Congreso. He aqui
las palabras de los disidentes:

. . . To the extent that the Court's opinion in the present case even impliedly assumes
a power to make judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper
procedure is being followed between submission and final adoption. However, it is
apparent that judicial review of or pronouncements upon a supposed limitation of a
"reasonable time" within which Congress may accept ratification; as to whether duly
authorized State officials have proceeded properly in ratifying or voting for
ratification; or whether a State may reverse its action once taken upon a proposed
amendment; and kindred questions, are all consistent only with an ultimate control
over the amending process in the courts. And this must inevitably embarrass the
course of amendment by subjecting to judicial interference matters that we believe
were intrusted by the Constitution solely to the political branch of government.

The Court here treats the amending process of the Constitution in some respects as
subject to judicial construction, in others as subject to the final authority of the
Congress. There is no disapproval of the conclusion arrived at in Dillon vs. Glass,
that the Constitution impliedly requires that a property submitted amendment must
die unless ratified within a "reasonable time." Nor does the Court now disapprove its
prior assumption of power to make such a pronouncement. And it is not made clear
that only Congress has constitutional power to determine if there is any such
implication in article 5 of the Constitution. On the other hand, the Court's opinion
declares that Congress has the exclusive power to decide the political questions of
whether a State whose legislature has once acted upon a proposed amendment may
subsequently reverse its position, and whether in the circumstances of such a case
as this, an amendment is dead because an "unreasonable" time has elapsed. No
such division between the political and judicial branches of the government is made
by article 5 which grants power over the amending of the Constitution to Congress
alone. Undivided control of that process has been given by the article exclusively and
completely to Congress. 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.

Since Congress has sole and complete control over the amending process, subject
to no judicial review, the views of any court upon this process cannot be binding
upon Congress, and in so far as Dillon vs. Glass attempts judicially to imposed a
limitation upon the right of Congress to determine final adoption of an amendment, it
should be disapproved. . . . (Coleman vs. Miller, 122 A.L.R., 695, 708, 709.)

La distribucion de los votos con relacion a las cuestiones planteadas en el referido

asundo de Coleman vs. Miller esalgun tanto confusa, como han podido notar los
mismos comentaristas; asi que necesita de alguna explicacion. Escierto que no
suscriben la ponencia mas que 3 Magistrados, a saber: el ponente Sr. Hughes y los
Sres. Stone y Reed, pero en cuanto a la jurisdiccion plena que la Corte asumio
sobre el caso y la materia hay que aadir los votos de los Sres. McReynolds y
Butler. Estos dos ultimos no soloconcurrian implicitamente en la accion de la Corte al
enjuiciarel caso, sino que inclusive opinaban que debia concederse el recurso, esto
es, que debia anularse la ratificacion tardia de la Enmienda sobre Trabajo Infantil
(Child Labor) hecha por la Legislatura de Kansas. De modo queen cuanto al "issue"
de la jurisdiccion, la justiciabilidad del caso, la votacion era de 5 contra 4 por la
jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los Magistrados Sres. Stone,
Reed, McReynolds y Butler; por la actitud de absoluta abstencion, de "manos fuera"
(hands off), los Magistrados Sres. Black, Frankfurter, Roberts y Douglas.

Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser una
autoridad a favor de los recurridos, juntamente con el caso de Dillon vs. Glass
constituyen precedentes decisivos en la jurisprudencia federal americana a favor de
los recurrentes.

Pero si la jurisprudencia federal milita en favor de latesis de que tenemos jurisdiccion

para enjuiciar y decidirel presente caso, en el ejercicio de nuestras supremas
funciones como interprete de la Constitucion bajo el principio firmemente establecido
de la supremacia judicial en asuntos propiamente planteados sobre conflictos y
transgresiones constitucionales, la jurisprudencia de los Estados estodavia mas
indubitable e inequivoca, mas terminante y decisiva. La importancia de esto sube de
punto si se tieneen cuenta que, mas que con el gobierno federal, nuestra analogia,
nuestros puntos de contacto en lo politico, constitucional y juridico es mas bien con
los diferentes Estados de la Union americana. Nuestro sistema de gobierna es
unitario. Aqui nuestras provincias no son Estados autonomos y semi-independientes
como lo son los Estados americanos. Asi que la cedula, la unidad politica mas
semejante a la nuestra no es la federal, sino la estatal. Por eso si bienes cierto que
las constituciones de los Estados, como lanuestra, todas estan fundamentalmente
calcadas en el patron de la Constitucion federal, se vera que en ciertosrasgos
caracteristicos del sistema unitario nuestra Constitucionse aproxima evidentemente
mas a las de los Estados que a la federal. Esa semejanza es sobre todo
notabilisimaen la parte que se refiere al proceso enmendatorio de la Constitucion. Es
que, en realidad, los Estados de la Union americana, para todos los efectos de la
vida interior, domestica, son practicamente naciones independientes; asi que
nuestra evolucion, nuestro transitode la condicion de Commonwealth a la de
Republicas oberana e independiente si bien nos distingue de ellos enel derecho
internacional, ninguna diferencia, sin embargo, ha operado en el campo
constitucional, ora en la parte dogmatica de la Constitucion, ora en la parte organica.
Y la mejor prueba de esto es que con la independencia nohemos tenido necesidad

de cambiar de Constitucion: lamisma que nos servia cuando eramos simple

Commonwealth, es decir, cuando estabamos sujetos a la soberania americana, es la
misma que nos sirve hoy cuando ya somos Republic; y no cabe duda de que nos
serviria perfectamente bien si no la tuvieramos asendereada y malparada en
nuestras pecaadoras manos con repetidas violaciones, confrecuentes asaltos contra
su integridad . . ..

Ahora bien; sin petulancia se puede retar a cualquieraa que seale un caso, un solo
caso en la jurisprudencia de los Estados de la Union americana en que los tribunales
de justicia se hayan negado a conocer y enjuiciaruna violacion constitucional
semejante a la que nos ocupapor la razon de que se trataba de una cuestion politica
no-justiciable. No hay absolutamente ninguno; por esoque los recurridos, a pesar de
las pacientes y laboriosas investigaciones que denota su habil y concienzudo
alegato, no han podido citar ni un solo caso.

En cambio, los tomos de jurisprudencia de various Estados dan cuenta de casos

indenticosd al que nos ocupa y entodos ellos se ha declarado invariablemente que la
violacion de la Constitucion en lo que se refiere al precepto que regula el proceso de
la enmiendas a la Ley organica esuna cuestion judicial, y ninguna Corte Suprema de
Estados e ha lavado jamas las manos bajo la teoria de la separacion de poderes. Es
mas: creo que in siquiera seha planteado seriamente la objecion fundada en el
argumentod e la injusticiabilidad.

Para no alargar demasiado esta disidencia no voy a citarmas que algunos casos los
mas conocidos y representativos, tomados de la jurisprudencia de algunos Estados,
a saber: Florida, Minnesota, Georgia e Indiana. De la Corte Suprema de Florida
tenemos dos casos: el de Crawford vs .Gilchrist y el de Gray vs. Childs.

En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann. Cas., 1914B,
916), se trataba de una accionde prohibicion interpuesta por el Gobernador del
Estado, Albert W. Gilchrist, contra el Secretario de Estado, H. Clay Crawford, para
impedir que cierta propuesta enmiendaa la Constitucion se publicara y se sometiera
al electorado en un plebiscito para su ratificacion o rechazamiento. Esdecir, lo
mismo de que se trate en el case que tenemos antenosotros. La enmienda habia
sido aprobada por la Camarade Representantes de Florida con el voto necesario y
constitucional de tres quintas (3/5), y fue enviada al Senado para su concurrencia. El
Senado tambien la aprobo conel voto de tres quintos, pero esta votacion fue
reconsiderada posteriormente. Asi estaba el asunto, pendiente de reconsideracion
cuando se clausuro la Legislatura. Despues, sin embargo, diose por aprobada la
propuesta enmienday el Secretario de Estado trato de dar los pasos parasu
publicacion y ratificacion plebiscitaria. De ahi la accionde interdicto prohibitorio,
fundada en la alegacion de quela enmienda no habia sido aprobada debidamente
por la Legislatura de acuerdo con los metodos prescritos en la Constitucion de
Florida. Igual que en el presente casetambien hubo alli una batalla forense colosal,

con untremendo despliegue de habilidad y talento por cada lado. El ponente no se

recata en alabar el esfuerzo de las partesy dice: ". . . we think the parties to this
litigationare to be commended, both for taking the proceedings that have brought
these unsual questions before the court for determination and for the great ability
with which their counsel have presented them to this court."

Se lavo las manos la Corte Suprema de Florida declarandose incompetente para

conocer del asunto por la razonde que se trataba de una cuestion politica y, por
tanto, nojusticiable? De ninguna manera. La Corte asumio resueltamente su
responsabilidad y poder tradicional de interpretarla Constitucion y fallo el asunto en
su fondo, declarando que la cuestion era propiamente judicial y que laenmienda
constitucional propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la enmiendas. Por
tanto, se denego la peticion de supersedeas interpuestapor el recurrido para enervar
el recurso; es decir, al recurrentegano su inusitado e historico pleito. Y las esferas
politicas de Florida no se desorbitaron por esta decisivaderrota de la teoria de la
separacion de poderes. Vale la pena reproducir algunar de las doctrinas sentadas en
elasunto, a saber:

Constitutional Law Power of Courts to Determine Validity of Action by Legislature

in Proposing Constitutional Amendment.

A determination of whether an amendment to the constitution has been validly

proposed and agreed to by the Legislature is to be had in a judicial forum where the
constitution provides no other means for such determination.

Injunction Subject of Relief Act of Secretary of State in Certifying Proposed

Amendments.

The act of the secretary of state in publishing and certifying to the country
commissioners proposed amendments to the constitution is in its nature ministerial,
involving the exercise of no discretion, and if the act is illegal it may be enjoined in
appropriate proceedings by proper parties, there being no other adequate remedy
afforded by law.

Injunction Governor as Complainant, Secretary of State as Defendant.

The governor of the state, suing as such, and also as a citizen, taxpayer, and elector,
is a proper complainant in proceedings brought to enjoin the secretary of state from
publishing at public expense and certifying proposed amendments to the constitution
upon the ground that such proposed amendments are invalid because they have not
been duly "agreed to by three-fifths of all the members elected to each house" of the
legislature.

Amendments to Constitution Effect of Ignoring Mandatory Provisions of

Constitution.

If essential mandatory provisions of the organic law are ignored in amending the
constitution, it violates the right of all the people of the state to government regulated
by law.

Duty of Court to Enforce Constitution.

It is the duty of the courts in authorized proceedings to give effect to the existing
constitution.

Mandatory Provisions of Constitutions as to Manner of Amending Constitution.

The provision of the organic law requiring proposed amendments of the constitution
to "be agreed to by three-fifths of all the members elected to each house" of the
legislature is mandatory, and it clearly contemplates that such amendments shall be
agreed to by the deliberate, final, affirmative vote of the requisite number of the
numbers of each house at a regular session.

Construction of Constitution to Give Intended Effect Mandatory Character of

Provisions.

Every word of a state constitution should be given its intended meaning and effect,
and essential provisions of a constitution are to be regarded as being mandatory.
(Crawford vs. Gilchrist, Ann. Cas., 1914 B, pp. 916, 917.)

El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro asunto
constitucional importante, el de Gray contra Childs, se decidio en virtud de la
autoridad y sentencia dictada en dicho asunto de Crawford.

En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.), tambien se trataba
de una demanda de prohibicion para impedir la publicacion de una propuesta
enmienda constitucional que iba a ser sometida al electorado de Florida para su
ratificacion o rechazamiento en una eleccion general o plebiscito fijado para
Noviembre, 1934. La enmienda habia sido aprobada por la Camara de
Representantes con el voto de tres quintos (3/5), pero en el Senado hubo cierta
confusion acerca del texto finalmente aprobado. La Legislatura, antes de clausurarse
aprobo unafs resolucion conjunta autotizando a ciertos oficiales de las Camaras para
que despues de la clausura hiciesen ciertas correciones enlas actas y en el diario de
sesiones a fin de formar la verdaderahistoria de los procedimientos y compulsar el
textode la enmienda tal como habia sido aprobada. Se alegabaen la demanda que
esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso de
prohibicion. Elevado el asunto en apelacion para ante la Corte Suprema del Estado,
la misma confirmo la sentencia apelada concediendo el interdicto prohibitorio. Hed
aqui los pronunciamientos de la Corte que parecen estereotipados para el caso que
nos ocupa, a saber:

(4,5) Section 1 of article 17 of our Constitution provides the method by which the
Constitution may be amended. It requires that a proposed amendment shall be
entered upon the respective Journals of the House of Representatives and of the
Senate with the yeas and nays showing a three-fifths vote in favor of such
amendment by each House. The proposed amendment here under consideration
nowhere appears upon the Journals of the Senate, and therefore it is unnecessary
for us to consider any other questions presented or any authorities cited.

The amendment of the organic law of the state or nation is not a thing to be lightly
undertaken not to be accomplished in a haphazard manner. It is a serious thing.
When an amendment is adopted, it becomes a part of the fundamental law of the
land, and it may mean the weal or woe of the future generations of the state wherein
it becomes a part of the fundamental law. We cannot say that the strict requirements
pertaining to amendments may be waived in favor of a good amendment and
invoked as against a bad amendment. If the Constitution may be amended in one
respect without the amendment being spread upon the Journals of one of the
respective House of the Legislature, then it may be ameqnded in any other respect in
the same manner. It is not for the courts to determine what is a wise proposed
amendment or what is an unwise one. With the wisdom of the policy the courts have
nothing to do. But it is the duty of the courts, when called upon so to do, to determine
whether or not the procedure attempted to be adopted is that which is required by the
terms of the organic law.

Finding that the organic law has not been complied with, as above pointed out, the
decree appealed from should be, and the same is hereby, affirmed on authority of
the opinion and judgment in the case of Crawford vs. Gilchrist, 64 Fla., 41; 59 So.,
953; Ann. Cas., 1914B, 9156. (Gray vs. Childs, 156 Southern Reporter, pp. 274,
279.)

Note se que la clausula sobre enmiendas en la Constitucion de Florida es semejante

a la nuestra, a saber: (1) la propuesta enmienda tiene que ser aprobada por la
Legislatura, en Florida con el voto de tres quintos (3/5) de los miembros, en Filipinas
con el voto de tres cuartos (3/4); (2) los sies y los nos tienen que hacersesd constar
en el diario de sesiones (Articulo VI, seccion 10, inciso 4; seccion 20, inciso 1,
Constitucion de Filipinas); (3) despues de aprobada la enmienda por la Legislatura
se somete al electorado en una eleccion o plebiscito, para su ratificacion
orechazamiento.

El procedimiento sobre enmiendas prescrito en la Constitucion federal americana es

diferente, a saber: el Congreso puede proponer la enmienda bien (1) mediante la
aprobacion de dos tercios (2/3) de sus miembros; bien (2) mediante una convencion
que se convocara al efecto apeticion de las Legislaturas de dos tercios (2/3) de los
diferentes Estados. En cualquiera de ambos casos la enmiendasera valida para
todos los efectos y fines comoparte de la Constitucion siempre que fuera ratificada
porlas Legislaturas de tres cuartos (3/4) de los Estados, o porconvenciones de tres
cuartas-partes de los mismos, segun que uno u otro modo de ratificacion hubiera
sido propuestopor el Congreso.

Esta diferencia de procedimientos es la que, segun digomas arriba, me inclina a

sostener que la jurisprudencia constitucional propiamente aplicable a Filipinas es la
jurisprudencia de los Estados, puesto que es con estos con los cuales tenemos
analogia o paridad constitucional en lo que toca a la forma y manera como se puede
reformar la Constitucion.

Seguire ahora citando mas casos.

Tenemos un caso de Minnesota, identico a los ya citados de Florida. En el asunto de

In re McConaughy (106 Minn., 392; 119 N.W., 408), tambin se suscito la cuestion de
si una propuesta enmienda constitucional habia sido aprobada de acuerdo con los
requisitos sealados en la Constitucion de Minnesota. Alli como aqui tambien hubo
disputa sobre si esto era una cuestion judicial o una cuestion politica no justiciable.

La Corte Suprema deaquel Estado declaro sin ambajes que era una cuestion
judicial. He aqui sus palabras que no tienen desperdicio:

The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute duty of the judiciary to determine
whether the constitution has been amended in the manner required by the
constitution, unless a special tribunal has been created to determine the question;
and even then many of the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. There is some authority for the view that when the
constitution itself creates a special tribunal, and confides to it the exclusive power to
canvass votes and declare the results, and makes the amendment a part of the
constitution as a result of such declaration by proclamation or otherwise, the action of
such tribunal is final and conclusive. It may be conceded that this is true when it
clearly appears that such was the intention of the people when they adopted the
constitution. The right to provide a special tribunal is not open to question; but it is
very certain that the people of Minnesota have not done so, and this fact alone
eliminates such cases as Worman vs. Hagan, 78 Md., 152; 27 Atl., 616; 21 L. R. A.,
716, and Miles vs. Badford, 22 Md., 170; 85 Am. Dec., 643, as authorities against the
jurisdiction of the courts. (In re McConaughy, 106 Minn., 392; 119 N. W., 408.)

Tambien tenemos un caso de Georgia. En el asunto de Hammond vs. Clark (136

Ga., 313; 71 S.E., 479; 38 L.R.A.[N.S.], 77), se suscito igualmente una disputa sobre
siuna enmienda habia sido aprobada de acuerdo con los requisitos de la
Constitucion era una cuestion judicial o no. La Corte Suprema de aquel Estado
declaro afirmativamente. He aqui su inequivoca pronunciamiento:

Counsel for plaintiff in error contended that the proclamation of the governor
declaring that the amendment was adopted was conclusive, and that the courts could
not inquire into the question. To this contention we cannot assent. The constitution is
the supreme state law. It provides how it may be amended. It makes no provision for
exclusive determination by the governor as to whether an amendment has been
made in the constitutional method, and for the issuance by him of a binding
proclamation to that effect. Such a proclamation may be both useful and proper, in
order to inform the people whether or not a change has been made in the
fundamental law; but the constitution did not make it conclusive on that subject.
When the constitution was submitted for ratification as a whole, a provision was
made for a proclamation of the result by the governor. Const. art. 13, section 2, par.
2 (Civ. Code 1910, section 6613). But in reference to amendment there is no such
provision. Const. article 13, section 1, par. 1 (Civ. Code 1910, section 6610). In the
absence of some other exclusive method of determination provided by the
constitution, the weight of authority is to the effect that whether an amendment has
been properly adopted according to the requirements of the existing constitution is a
judicial question. (Hammond vs. Clark, 136 Ga., 313; 71 S.E., 479;38 L.R.A. [N.S.],
77.)

Tambien tenemos el siguiente case de Indiana:

(1) In the beginning we are confronted with the contention on the part of appellees
that this court has no jurisdiction to determine the questions in issue here. In the
case of Ellingham vs. Dye, 178 Ind., 336, 391; 99 N.E., 1, 21 (Ann. Cas. 1915C,
200), this court, after reviewing many decisions as to the power of the courts to
determine similar questions, sums up the whole matter as follows:

"Whether legislative action is void for want of power in that body, or because the
constitutional forms of conditions have not been followed or have been violated
(emphasis supplied) may become a judicial question, and upon the courts the
inevasible duty to determine it falls. And so the power resides in the courts, and they
have, with practical uniformity, exercised the authority to determine the validity of the
proposal, submission, or ratification of change in the organic law. Such is the rule in
this state" citing more than 40 decisions of this and other states.

(2) Appellees further contend that appellant has not made out a case entitling him to
equitable relief. The trial court found that the officers of the state, who were
instructed with the execution of the law, were about to expend more than $500,000
under the law, in carrying out its provisions; indeed, it was suggested, in the course
of the oral argument, that the necessary expenditures would amount to more than
$2,000,000. This court, in the case of Ellingham vs. Dye, supra, involving the
submission to the people of the Constitution prepared by the Legislature, answered
this same question contrary to the contention of appellees. See pages 413 and 414
of that opinion. (186 Ind., 533; Bennett vs. Jackson, North Eastern Reporter, Vol.
116, pp. 921, 922.)

Creo que la posicion de la jurisprudencia americana tanto federal como de Estado

sobre este punto, esto es, cuandoes judicial la cuestion y cuando no lo es, se halla
bien definida en el tomo 12 del Corpus Juris, en la parte que llevael encabezamiento
de "Constitutional Law" y bajo el subepigrafe que dice: "Adoption of Constitution and
Amendments" (12 Corpus Juris, 880, 881). Es un compendiocuidados amente
elaborado en que se da un extracto de la doctrina con las citas sobre autoridades al
pie. Reproducire el compendio, pero omitiendo las citas para no alargar demasiado
esta disidencia: el que desee comprobarlas no tienemas que consultar el tomo. En
realidad, leyendo este extracto se ve que parece un resumen del extenso analisis
que llevo hecho sobre la doctrina tanto federal como estatal. Su meollo es, a saber:
la cuestion de si o no una nueva constitucion se ha adoptado la tienen que decidir
los departamentos politicos del gobierno; pero la cuestion de si una enmienda a una
constitucion existente ha sido debidamente propuesta, adoptada y ratificada de
acuerdo con los requisitos provistos por la Constitucion, para que vengaa ser parte
de la misma, es una cuestion que los tribunales de justicia tienen que determinar y

resolver, excepto cuandola materia ha sido referida por la Constitucion a un tribunale

special con poder para llegar una conclusion final. He aqui el sinopsis:

SEC. 382. b. Adoption of Constitution and Amendments. Whether or not a new

constitution has been adopted is a question to be decided by the political
departments of the government. But whether an amendment to the existing
constitution has been duly proposed, adopted, and ratified in the manner required by
the constitution, as as to become part thereof, is a question for the courts to
determine, except where the matter has been committed by the constitution to a
special tribunal with power to make a conclusive determination, as where the
governor is vested with the sole right and duty of ascertaining and declaring the
result, in which case the courts have no jurisdiction to revise his decision. But it must
be made clearly to appear that the constitution has been violated before the court is
warranted in interfering. In any event, whether an entire constitution is involved, or
merely an amendment, the federal courts will not attempt to pass on the legality of
such constitution or amendment where its validity has been recognized by the
political departments of the state government, and acquiesced in by the state
judiciary. (12 C.J., pp. 880, 881.)

VI

Otra razon que aduce la mayoria para desestimar el recusro es que la copia impresa
de la resolucion en cuestionaparece certificada por los presidentes de ambas
Camaras del Congreso; que en esa certificacion consta que dicha resolucion fue
debidamente aprobada por el Congreso conlos votos de las tres quintas-partes (3/5)
de sus miembros; que, por tanto, la debida aprobacion de dicha resolucion nose
puede cuestionar, es una prueba concluyente para todoel mundo y para los
tribunales de justicia particularmente. Este argumento se funda en la doctrina inglesa
llamada "enrolled act doctrine," cuya traduccion mas aproximada al espaol es
"doctrina de la ley impresa." Esto, por unlado.

Por otro lado, la representacion de los recurrentes arguye que lo que rige y
prevaleced en esta jurisdiccion noes la doctrina inglesa o "enrolled act doctrine," sino
ladoctrina americana que se conoce con el nombre de "journalentry doctrine," en
virtud de la cual la prueba de siuna ley o una resolucion ha sido debidamente
aprobadapor el Congreso debe buscarse en el diario de sesiones mismo del
Congreso. Lo que diga el diario de sesiones esconcluyente y final.

Los recurrentes tienen la razon de su parte. Este punto legal ya se resolvio por esta
Corte en la causa de los Estados Unidos contra Pons (34 Jur. Fil., 772), que
ambaspartes discuten en sus respectivos informes. Una de las defensas del
acusado era que la Ley No. 2381 de la Legislatura Filipina en virtud de la cual habia

sido condenado era nula e ilegal porque so aprobo despues ya del cierrede las
sesiones especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la noche;
es decir, que, en realidad de verdad, la aprobacion se efectuo el 1. de Marzo,
puesla sesion sine die del dia anterior se prolongo mediante una ficcion haciendose
parar las manecillas del reloj a las 12 en punto de la noche. Esta Corte, sin
necesidad deninguna otra prueba, examino el diario de sesiones correspondientea la
referida fecha 28 de Febrero, y habiendo hallado que alli constaba inequivocamente
haberse aprobadola mencionada ley en tal fecha, fallo que esta pruebaera final y
concluyente para las partes, para los tribunales y para todo el mundo. La Corte
desatendio por completoel "enrolled act," la copia impresa de la ley, pues dijo,
asaber: "Pasando por alto la cuestion relativa as si la Ley Impresa (Ley No. 2381),
que fue aprobada por autorizacion legal, constituye prueba concluyente sobre la
fecha desu aprobacion, investigaremos si los Tribunales pueden consultar otras
fuestes de informacion, ademas de los diarios de las sesiones legislativas, para
determinar la fecha enque se cerraron las sesiones de la Legislatura, cuando
talesdiarios son claros y explicitos." Y la Corte dijo que nohabia necesidad de
consultar otras fuestes, que el diario de sesiones era terminante, definitivo; y asi fallo
la causaen contra del apelante.

Y no era extrao que asi ocurriese: habia en la Corte una mayoria americana,
familiarizada y compenetrada naturalmente con la jurisprudencia pertinente de su
pais Quede extrano habia, por tanto, que aplicasen la doctrina americana, la
doctrina del "journal entry," que es mas democratica, mas republicana, en vez de la
doctrina inglesa, el "enrolled act doctrine," que despues de todo tiene ciertotinte
monarquico, producto del caracter peculiar e influencia tradicionalista de las
instituciones inglesas? (Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.) Firman, como
se sabe, la decision el ponente Sr. Trent, y los Magistrados Sres. Torres, Johnson,
Moreland y Araullo, sin mingun disidente.Y notese que cuando se promulgo esta
sentencia todavia estaba en vigor el articulo 313 del Codigo de Procedimiento Civil,
tal como estaba reformado por la Ley No. 2210. que entre otras cosas proveia lo
siguiente: ". . . Entendiendose, que en el caso de las Leyes de la Comisionde
Filipinas o de la Legislatura Filipina, cuando existeuna copia firmada por los
Presidentes y los secretarios de dichos cuerpos, sera prueba concluyente de las
dispociones de la ley en cuestion y de la debida aprobacion delas mismas." Que
mejor prueba de la voluntad expresa, categorica, de hacer prevalecer la doctrina
americana sobrela doctrina inglesa? Lo mas comodo para esta Cortehubiera sido
aplicar el citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso por
alto sobreel mismo, yendo directamente al diario de sesiones dela Legislatura,
tomando conocimiento judicial del mismo. Si aqui hay algun respeto a la regla del
stare decisis, estaes una magnifica ocasion para demostrarlo. Una regla bien
establecida no ha de abrogarse asi como asi; sobretodo cuando de por medio anda
la Constitucion como enel presente caso en que se ha formulado ante nosotros la
queja de que la ley fundamental ha sido violada en unrespecto muy importante como
es el capitulo sobre enmiendas, y la queja no solo no es temeraria sino que se
hallaapoyada en buenas y solidas razones.

Mas todavia: cuando se establecio la doctrina en lacitada causa de los Estados

Unidos contra Pons (1916, Agosto 12) adoptando en esta jurisdiccion la doctrina
americana del "journal entry" en lugar de la inglesa del "enrolled act," en nuestra Ley

Organica que, por cierto, no era aun la Ley Jones sino la Ley del Congreso de 1902,
no habia ninguna disposicion que proveyera mandatoriamente que en el diario de
sesiones de la Legislatura sehiciesen constar los sies y los nos en la votacion de
cualquier proyecto de ley o resolucion, consignando especifica mentelos nombres de
los miembros que hayan votado enpro y en contra, ni tampoco habia ninguna
disposicione statutoria a dicho efecto. De modo que en aquella epoca el diario de
sesiones de la Legislatura carecia aun de las fuertes garantias de veracidad que
ahora posee en virtud de esa disposicion que hace obligatoria la constancia
oconsignacion de los sies y nos, disposicion incorporada enla Constitucion del
Commonwealth, ahora de la Republica. (Vease Constitucion de Filipinas, Articulo VI,
seccion 10, inciso 4; seccion 20, incico 1; seccion 21, inciso 2.)

Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil no puede
haber duda. Ese articulo, que equivale a una regla de prueba, no se ha incorporado
enel Reglamento de los Tribunales. No tratandose de una regla fundada en un
principio general y unanimemente establecido, sino de algo peculiar aislado, acerca
del cuallas autoridades estan divididas, con una mayoria de los Estados de la Union
americana decididamente en contra, suno inclusion en el Reglamento de los
Tribunales tiene queconsiderarse necesariamente como una derogacion.
Indudablemente esta Corte, al no incluir dicho articulo en el Reglamento de los
Tribunales, ha querido derogarlo en vistade los resuelto en la citada causa de
Estados Unidos contraPons y de la novisima disposicion insertada en la Constitucion
del Commonwealth, ahora de la Republica, que exige la consignacion en el diario de
sesiones de los sies y nos en cada votacion final de proyecto de ley o resolucion
conjunta, con especificacion de los nombres de los que hasvotado.

Resulta evidente de lo expuesto que ahora existen masrazones para reafirmar en

esta jurisdiccion la doctrina americana del "journal entry" o "constancia en el diario
desesiones" (1) porque el citado seccion 313 del Codigo de Procedimiento Civil ya
no rige con la vigencia del Reglamento de los Tribunales; (2) porque esa disposicion
denuestra Constitucion que hace obligatoria la consignacion de los sies y nos en la
votacion de cada bill o resolucion, con especificacion de los nombres de los que
hayan votado enfavor y en contra, hace del diario de sesiones la mejor prueba sobre
autenticidad de los actos legislativos y es, porconsiguiente, la ley sobre la materia en
este pais, con entera exclusion de la doctrina inglesa o "enrolled act doctrine."Las
autoridades americanas son contestes en que siempreque en un Estado de la Union
Federal la Constitucioncontiene una disposicion semejante a la nuestra sobre sies y
nos la regla de prueba no es la copia impresa de la leyo "enrolled act," sino el
"journal entry" o constancia enel diario de sesiones. (Vease Rash vs. Allen, supra.)

Aqui se podria dar por terminada toda discusion sobre este punto si no fuera porque
los abogados de los recurridos arguyen fuertemente en favor de la doctrina de la
copia impresa o "enrolled act doctrine," y la mayoria de esta Corte acepta sus
argumentos. Se cita, sobre todo, el asunto federal de Field vs. Clark en apoyo de la
doctrina.

He examinado la jurisprudencia americana sobre este particular con toda la

diligencia de que he sido capaz y he llegado a la conclusion de que nuestros
predecesores enesta Corte merecen todo encomio por su indubitable aciertoal
adoptar en esta jurisdiccion, en la causa de los Estados Unidos contra Pons, supra,
la doctrina americana del "journal entry" o constancia en el diario de sesiones
legislativas. No cabe duda de que esta doctrina es mas democratica, mas liberal, y
tambien mas humana y mas concorde con la realidad. La doctrina inglesa del
"enrolled act" ocopia impresa de la ley esta basada en el derecho comun y se
adopto en Inglaterra donde, como se sabe, no hay constitucion escrita y la forma de
gobierno es monarquica,y se adopto en un tiempo en que el poder del Parlamento
que era tambien el mas alto tribunal de justicia, era absoluto y transcendente y las
restricciones sobre el mismo eran muy ligeras. Por eso un tribunal americano ha
dicho: "Because such a rule obtains as to the Parliament of Great Britain, under a
monarchial form of government, that cannot be regarded as a very potent reason for
its application in this state, where the will of the sovereign power hasbeen declared in
the organic act." (Vease Rash vs. Allen, supra, pag. 379; cito con frecuencia este
asunto famoso de Delaware porque es en el mismo donde he hallado una discusion
mas acabada y comprensiva sobre ambas doctrinas: la americana del "journal entry"
y la inglesa del "enrolled act.")

Es indudable que el sesgo de la jurisprudencia americana hoy en dia es a favor de la

doctrina del "journal entry." Lo resuelto en el asunto federal de Field contra Clark,
enque tanto enfasis ponen los recurridos, no ha hecho mas que fortalecer ese giro,
pues en dicho asunto va en vuelta lainferencia de que cuando la Constitucion
establece ciertos requisitos para la aprobacion de una ley o resolucion, conla
consignacion de los sies y nos y los nombres de los que han votado afirmativa y
negativamente, el diario de sesioneses el que rige y prevalece como modo e
instrumento de autenticacion. Por eso que en el asunto tipico y representativode
Union Bank vs. Commissioners of Oxford (199 N.C., 214; 25 S.E., 966; 34 L.R.A.,
487), la Corte Supremade North Carolina ha declarado lo siguiente.

According to the law it is well settled in nearly 100 well-adjudicated cases in the
courts of last resort in 30 states, and also by the Supreme Court of the United States,
that when a state Constitution prescribes such formalities in the enactment of laws as
require a record of the yeas and nays on the legislative journals, these journals are
conclusive as against not only a printed statute, published by authority of law, but
also against a duly enrolled act. The following is a list of the authorities, in number
93, sustaining this view either directly or by very close analogy. . . . It is believed that
no federal or state authority can be found in conflict with them.

Decisions can be found, as, for instance, Carr. vs. Coke (116 N.C., 223; 22 S.E. 16;
28 L.R.A., 737; 47 Am. St. Rep., 801, supra, to the effect that, where the Constitution
contains no provision requiring entries on the journal of particular matters such, for
example, as calles of the yeas and nays on a measure in question the enrolled act

cannot, in such case, be impeached by the journals. That, however, is very different
proposition from the one involved here, and the distinction is adverted to in Field vs.
Clark, 143 U.S., 671 (12 Sup. Ct., 495; 36 Law. ed., 294. (Rash vs. Allen, 76 Atl.
Rep., p. 377.)

Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados Unidos ha

dicho lo siguiente:

But the Supreme Court of the United States, in the case of South Ottawa vs. Perkins,
94 U.S., 260; 24 Law., ed., 154, on appeal from the United States court for the
Northern district of Illinois (Mr. Justice Bradley delivering the opinion), said: "When
once it became the settled construction of the Constitution of Illinois that no act can
be deemed a valid law, unless by the journals of the Legislature it appears to have
been regularly passed by both houses, it became the duty of the courts to take
judicial notice of the journal entries in that regard. The courts of Illinois may decline to
take that trouble, unless parties bring the matter to their attention, but on general
principles the question as to the existence of a law is a judicial one and must be so
regarded by the courts of the United States." (Rash vs. Allen, 76 Atl. Rep., p. 387.)

Se dice que el interest publico exige que el "enrolled act" o copia impresa de la ley
firmada por los Presidentes deambas Camaras del Congreso de declare concluyente
y final, porque de otra manera habria caos, confusion: cualquierase creeria con
derecho a atacar la validez de una ley o resolucion, impugnando la autenticidad de
su aprobacion ode su texto. Pero esto pone en orden las siguientes preguntas que
se contestan por si mismas: ?no es el diariode sesiones un documento
constitucional, exigido por la Constitucion que se lleve por las dos camaras del
Congreso, controlado y supervisado por dichas camaras y por los oficiales de las
mismas? que mejor garantia de autenticidad, contra la falsificacion, que ese
requerimiento constitucional de consignar obligatoriamente en el diario, en la
votacionde todo bill o resolucion, los sies y los nos, y haciendoconstar los nombres
tanto afirmativos como negativos? se ha producido por ventura caos y confusion en
los Estados americanos que han adoptado esta regla y que, segun admiten los
mismos recurridos, forman una decisiva mayoria? se acaso posible concebir que el
sentido americano, tan practico, tan utilitario, tan, realista, optase poruna regla que
fuese origen de caos y confusion? Prescindiendo ya de la jurisprudencia que, ya
hemos visto, estadecididamente inclinada a favor de la doctrina americana del
"journal entry" ?que dicen los tratadistas mas autorizados, los de nombradia bien
establecida, y sobre todolos especialistas en derecho constitucional?

El Juez Cooley, en su celebrada obra sobre Constitutional Limitations, 7th ed., 193,
dice lo siguiente a favor del "journal entry rule":

Judge Cooley in his work on Constitutional Limitations (7th Ed., 193), says: "Each
house keeps a journal of its proceedings which is a public record, and of which the
courts are at liberty to take judicial notice. If it would appear from these journals that
any act did not receive the requisite majority, or that in respect to it the Legislature
did not follow any requirement of the Constitution or that in any other respect the act
was not constitutionally adopted, the courts may act upon this evidence, and adjudge
the statute void. But whenever it is acting in apparent performance of legal functions,
every reasonable presumption is to be made in favor of the action of a legislative
body. It will not be presumed in any case, from the mere silence of the journals, that
either house has exceeded its authority, or disregarded a constitutional requirement
in the passage of legislative acts, unless when the Constitution has expressly
required the journals to show the action taken, as, for instance, where it requires the
yeas and nays to be entered."

Sutherland, en su tambien celebrada obra sobre Statutory Construction, seccion 46 y

siguientes, tambien sedeclara a favofr del "journal entry rule" con el siguiente
pronunciamiento:

The presumption is that an act properly authenticated was regularly passed, unless
there is evidence of which the courts take judicial notice showing the contrary. The
journals are records, and, in all respects touching proceedings under the mandatory
provisions of the Constitution, will be effected to impeach and avoid the acts
recorded as laws and duly authenticated, if the journals affirmatively show that these
provisions have been disregarded. . . . The journals by being required by the
Constitution or laws, are record . . ..

When required, as is extensively the case in this country, by a paramount law, for the
obvious purpose of showing how the mandatory provisions of that law have been
followed in the methods and forms of legislation, they are thus made records in
dignity, and are of great importance. The legislative acts regularly authenticated are
also records. The acts passed, duly authenticated, and such journals are parallel
records; but the latter are superior, when explicit and conflicting with the other, for the
acts authenticated speak decisively only when the journals are silent, and not even
then as to particulars required to be entered therein. (Rash vs. Allen, 76 Atl. Rep., p.
378.)

Desde luego la opinion de Wigmore, en que se apoya la mayoria, merece toda clase
de respetos. Pero creo no seme tachara de parcial ni ligero si digo que sobre el
punto constitucional que estamos discutiendo, me inclino mas y doy mayor peso a la
opinion del Juez Cooley y de Sutherland, por razones obvias. Wigmore nunca
pretendio serespecialista en derecho constitucional. Con mucho tino elponente en el
tantas veces citado asunto de Rash contra Allen dice lo siguiente de la opinion del
celebrado constitucionalista:

We have quoted Judge Cooley's language because of the great respect that his
opinions always command, and also because of the fact that it is upon the authority
of his opinion that many of the decisions in support of the American rule have been
based. (Rash vs. Allen, 76 Atl. Rep., p. 378.)

Un detenido y minucioso examen de la jurisprudencia y de los tratados sobre el

particular lleva a uno al convencimiento de que la tendencia actual en America es a
tomar la substancia, el fondo mismo de las cosas en vez de la simpleforma, el
caparazon, a prescindir del artificio, de la ficcion legal, para ir a la realidad misma. Y
no cabe duda deque el "enrolled act" se presta a veces a tener mas apoyo en el
artificio y ficcion legal, mientras que el diario desesiones, con las fuertes garantias
de autenticidad como las que se proveen en nuestra Constitucion y en
Constituciones similares americanas, reproduce y refleja la realidad de los hechos
relativamente con mas exactitud y fidelidad. Tomemos como ejemplo el presente
caso. La copia impresade la resolucion cuestionada, firmada por los Presidentes de
ambas Camaras del Congreso, reza que la misma fueaprobada debidamente con los
votos de las tres cuartas-partes (3/4) del Congreso, pero esto no es mas que
unaopinion, una conclusion legal de los presidentes, pues noconsta en dicha copia
impresa el numero concreto de votos emitidos, ni el numero concreto de la totalidad
de miembros actuales de cada camara. Tampoco constan en dichacopia impresa, tal
como manda la Constitucion, los sies y nos de la votacion, con los nombres de los
que votaron afirmativa y negativamente. Asi que, con solo esa copiaimpresa a la
vista, no podemos resolver la importantisima cuestion constitucional que plantean
los recurrentes, a saber: que la votacion fue anticonstitucional; que arbitrariamente
fueron excluidos de la votacion 11 miembros debidamente cualificados del Congreso
3 Senadores y 8 Representantes; que, por virtud de la exclusion ilegal y arbitraria
de estos 11 miembros, el numero de votos emitidosen cada camara a favor de la
resolucion no llegani constituye las tres cuartas-partes (3/4) que requiere la
Constitucion; y que, por tanto, la resolucion es ilegal, anti-constitucional y nula. Para
resolver estas cuestiones, todastremendas, todas transcedentales, no hay mas
remedio queir al fondo, a las entraas de la realidad, y todo ello no sepuede hallar
en el "enrolled act," en la copia impresa dela ley, que es incolora, muda sobre el
particular, sino enel diario de sesiones donde con profusion se dan tales detalles.
No es verdad que todo esto demuestra graficamentela evidente, abrumadora
superioridad del "journalentry" sobre el "enrolled act," como medio de prueba?

Mi conclusion, pues, sobre este punto es que el giro dela legislacion jurisprudencia
en los diferentes Estados de la Union es decididamente en favor de la doctrina
americana del "journal entry"; que en Filipinas desde 1916 en que se promulgo la
sentencia en la causa de Estados Unidos contra Pons la regla es el "journal entry
rule"; que esta regla se adopto por este Supremo Tribunal enun tiempo en que
estaba vigente el articulo 313 del Codigo de Procedimiento Civil y cuando el diario
de sesiones de la Legislatura no gozaba de los prestigios de que goza hoy, en virtud
de las rigidas y fuertes garantias sobre autenticidad de las votaciones legislativas
provistas en nuestra Constitucion; que ahora que el referido articulo 313 del Codigo
de Procedimiento Civil ya ha sido derogado porel Reglamento de los Tribunales y se

hallan vigentes esasgarantias constitucionales que son mandatorias, la

reglaindiscutible y exclusiva sobre la materia es el "journal entry rule"' que la regla
americana es mas liberal y mas democratica que la regla inglesa, la cual tiene un
evidente sabormonarquico; que el puebo filipino jamas tolerara un
sistemamonarquico o algo semejante; que el cambiar de regla ahora es un paso
muy desafortunado, un injustificado retroceso, un apoyo a la reaccion y puede dar
lugar a la impresionde que las instituciones de la Republica filipina tienden a ser
totalitarias; que la doctrina inglesa del "enrolled act" es un instrumento harto
inadecuado, ineficaz, para resolver conflictos constitucionales que se iran
planteando ante los tribunales, e inclusive puede fomentargroseros asaltos contra la
Constitucion; que, por el contrario, la doctrina americana del "journal entry" es
amplia, eficaz, y permite que con toda libertad y desembarazose puedan resolver los
conflictos y transgresiones constitucionales, sin evasivas ni debilidades; y, por
ultimo, que nuestro deber, el deber de esta Corte, es optar por la doctrina que mejor
asegure y fomente los procesos ordenadosde la ley y de la Constitucion y evitef
situaciones en que el ciudadano se sienta como desamparado de la ley y dela
Constitucion y busque la justicia por sus propias manos.

VII

La mayoria, habiendo adoptado en este asunto una posicion inhibitoria, estima

innecesario discutir la cuestion de si los 3 Senadores y 8 Representantes que fueron
excluidos de la votacion son o no miembros del Congreso. Es decir, lo que debiera
ser cuestion fundamental el leitmotiff, la verdadera ratio decidendi en este caso
se relegaa termino secundario, se deja sin discutir y sin resolver. No puedo seguir a
la mayoria en esta evasion: tengo que discutir este punto tan plenamente como los
otros puntos, si no mas, porque es precisamente lo principal el meollo del caso.

Comencemos por el Senado. Los 3 Senadores excluido seran miembros actuales

del Senado cuando se voto la resolucion cuestionada, por las siguientes razones:

(a) Segun la estipulacion de hechos entre las partes y los ejemplares del diario de
sesiones que obran en autoscomo anexos, dichos Senadores fueron proclamados
por la Comision de Elecciones como electos juntamente con sus 21 compaeros.
Despues de la proclamacion participaron en la organizacion del Senado, votando en
la eleccion del Presidente de dicho cuerpo. De hecho el Senador Vera recibio 8
votos para Presidente contra el Senador Avelino que recibio 10. Tambien
participaron en algunos debates relativos a la organizacion.

(b) Tambien consta en la estipulacion de hechos y enel diario de sesiones que

prestaron su juramento de cargo ante Notarios particulares debidamente autorizados
y calificados para administrarlo, habiendose depositado dicho juramento en la

secretaria del Senado. Se dice, sin embargo, que ese juramento no era valido
porque no se presto colectivamente, en union con los otros Senadores. Esto es
unerror. La Ley sobre la materia es el articulo 26 del Codigo Administrativo
Revisado, a saber:

By whom oath of office may be administered. The oath of office may be

administered by any officer generally qualified to administer oath; but the oath of
office of the members and officers ofeither house of the legislature may also be
administered by persons designated for such purpose by the respective houses.

Este articulo es demasiado claro para necesitar mas comentarios. Es evidente que
el Senador y Representante puede calificarse prestando el juramento de su cargo
antecualquier funcionario autorizado para administrarlo; y la disposicion de que
tambien pueden administrar ese juramento personas designadas por cada camara
es solo decaracter permisivo, opcional. Y la mejor prueba de estoes que antes del
advenimiento de la Republica el Senadodhabia reconocido la validez del juramento
de cargo prestadoante un Notario Publico por otros Senadores de la minoria los
Sres. Mabanag, Garcia, Confesor y Cabili. Amenos que estas cosas se tomen a
broma, o la arbitrariedadse erija en ley la ley de la selva, del mas fuerte no
esconcebible que el juramento ante Notario se declare validoen un caso y en otro se
declared invalido, concurriendo lasmismas circunstancias;

(c) Tambien consta, en virtud de la estipulacion de hechos y de los ejemplares del

diario de sesiones que obran en autos como anexos, que los Senadores Vera,
Diokno y Romero han estado cobrando todos sus sueldos y emolumentos como
tales Senadores desde la inauguracion del Senado hasta ahora, incluso
naturalmente el tiempo en quese aprobo la resolucion cuestionada. Es violentar
demasiadola argucia el sostener que un miembro de una camara legislativa puede
cobrar todos sus haberes y emolumentos y, sin embargo, no ser legalmente
miembro de la misma. El vulgo, maestro en la ironia y en el sarcasmo, tiene
unamanera cruda para pintar esta situacion absurda: "Tiene, pero no hay". Como
es posible que las camaras autoricen el desembolso de sus fondos a favor de unos
hombres que, segun se sostiene seriamente, no estan legalmente cualificados para
merecer y recibir tales fondos?

(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero no son
miembros del Senado porque, envirtud de la Resolucion Pendatun, se les suspendio
el juramento y el derecho a sus asientos. Respecto del juramento, ya hemos visto
que era valido, segun la ley. Respecto dela suspension del derecho al asiento, he
discutido extensamente este punto en mi disidencia en el asunto de Vera contra
Avelino, supra, calificando de anticonstitucional ynula la suspension. Pero aun
suponiendo que la mismafuera valida, los recurrentes alegan y arguyen que no
poreso han dejado de ser miembros los suspendidos. La alegaciones acertada. La
suspension no abate ni anula lacalidad de miembro; solo la muerte, dimision o

expulsion produce ese efecto (vease Alejandrino contra Quezon, 46 Jur. Fil., 100,
101; vease tambien United States vs. Dietrich,126 Fed. Rep., 676). En el asunto de
Alejandrino contra Quezon hemos declarado lo siguiente:

Es cosa digna de observar que el Congreso de los Estados Unidos en toda su larga
historia no ha suspendido a ninguno de sus miembros.Y la razon es obvia. El castigo
mediante reprension o multavindica la dignidad ofendida de la Camara sin privar a
los representados de su representante; la expulsion cuando es permisiblevindica del
mismo modo el honor del Cuerpo Legislativo dando asi oportunidad a los
representados de elegir a otro nuevo; pero la suspension priva al distrito electoral de
una representacion sin quese le de a ese distrito un medio para llenar la vacante.
Mediante la suspension el cargo continua ocupado, pero al que lo ocupa se le ha
impuesto silencio. (Alejandrino contra Quezon, 46 Jur. Fil.,100, 101.)

La posicion juridica y constitucional de los 8 Representantes excluidos de la votacion

es todavia mas firme.Consta igualmente, en virtud de la estipulacion de hechos y de
los ejemplares del diario de sesiones obrantes en autos, que dichos 8
Representantes tambien se calificaron, alinaugurarse el Congreso, prestando el
juramento de sucargo ante Notarios Publicos debidamente autorizados; quesu
juramento se deposito en la Secretaria de la Camara; que han estado cobrando
desde la inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto dos
los Representantes Taruc y Lava que han dejado de cobrar desde hacealgun
tiempo; que tambien han participado en algunas deliberaciones, las relativas al
proyecto de resolucion parasuspenderlos.

Pero entre su caso y el de los Senadores existe estadiferencia fundamental:

mientras con respecto a estos ultimosla Resolucion Pendatun sobre suspension
llego aaprobarse adquiriendo estado parlamentario, en la Camarade Representantes
no ha habido tal cosa, pues la resolucionde suspension se endoso a un comite
especial para su estudioe investigacion, y hasta ahora la Camara no ha
tomadosobre ella ninguna accion, no favorable ni adversa. Demodo que en el caso
de los Representantes hasta ahora nohay suspension, porque de tal no puede
calificarse la acciondel Speaker y del macero privandoles del derecho detomar parte
en las deliberaciones y votaciones. Para queuna suspension produzca efectos
legales y, sobre todo, constitucionales, tiene que decret arla la Camara misma,
pormedio de una resolucion debidamente aprobada, de acuerdocon los requisitos
provistos en la Constitucion. Nada deesto se ha hecho en la Camara.

El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El Congreso, en

sesion conjunta, por el voto detres cuartas partes de todos los miembros del Senado
y dela Camara de Representantes votando separadamente, puede proponer
enmiendas a esta Constitucion o convocar unaconvencion para dicho efecto." Donde
la ley no distingueno debemos distinguir. La frase todos los miembros
debeinterpretarse como que incluye todos los miembros elegidos, no importa que

esten ausentes o esten suspendidos; mas naturalmente cuando no estan

suspendidos como en el casode los ya citados 8 Representantes. El Juez Cooley,
ensu ya citada obra Constitutional Limitations, hace sobreeste particular los
siguientes comentarios que son terminantes para la resolucion de este punto
constitucional, a saber:

For the votre required in the passage of any particular law the reader is referred to
the Constitution of his State. A simple majority of a quorum is sufficient, unless the
Constitution establishes some other rule; and where, by the Constitution, a two-thirds
of three-fourths vote is made essential to the passage of any particular class of bills,
two-thids or three-fourths of a quorum will be understood, unless the terms employed
clearly indicate that this proportion of all the members, or of all those elected, is
intended. (A constitutional requirement that the assent of two-thirds of the members
elected to each house of the legislature shall be requisite to every bill appropriating
the public money or property for localor private purposes, is mandatory, and cannot
be evaded by calling a bill a "joint resolution".)

(Footnote: "Such a requirement is too clear and too valuable to be thus frittered
away." Allen vs. Board of State Auditors, 122 Mich., 324; 47 L.R.A., 117.)

(Footnote: "By most of the constitutions either all the laws, or laws on some particular
subjects, are required to be adopted by a majority voted, or some other proportion of
"all the members elected," or of "the whole representation." These and similar
phrases require all the members to be taken into account whether present or not.
Where a majority of all the members elected is required in the passage of a law, an
ineligible person is not on that account to be excluded in the count. (Satterloo vs.
San Francisco, 23 Cal.,314.)" (Cooley on Constitutional Limitations, Vol. 1, p. 291.)

VIII

Los recurridos no cuestionan la personalidad o derecho de accion de los recurrentes

para plantear el presente litigio. Sin embargo, en nuestras deliberaciones algunos
Magistrados han expresado dudas sbore si los recurrentestien en interes legal
suficiente y adecuado para demandar y, por tanto, para invocar nuestra jurisdiccion
en el presentecaso. La duda es si el interes que alegan los recurrentesno es mas
bien el general y abstracto que tiene cualquier otro ciudadano para defender la
integridad de la Constitucion, en cuyo caso seria insuficiente para demandarante los
tribunales, los cuales, segun el consenso de las autoridades, no estan establecidos
para considerar y resolver controversias academicas y doctrinales, sino conflictos
positivos, reales, en que hay algun dano y perjuicioo amago de dano y perjuicio.

Creo que la personalidad o derecho de accion de losrecurrentes es incuestionable.

En primer lugar, 11 de ellosson miembros del Congreso, y alegan que se les privo
delderecho de votar al considerarse la resolucion cuestionaday que si se les hubiese
permitido votar dicha resolucion no hubiese obtenido la sancion de las tres cuartaspartes (3/4) que requiere la Constitucion. Que mayor interes legalque este? Ellos
dicen que sus votos hubieran sido decisivos, que con su intervencion parlamentaria
hubies en salvado alpaid de lo que consideran amago de una tremenda calamidad
publica la concesion de iguales derechos a los americanos para explotar nuestros
recursos naturales y utilidades publicas. No es este amago de dano, para ellos
individualmente y para el pais colectivamentem, adecuado y suficiente para crear un
interes legal? En el asunto de Coleman vs. Miller, supra, se suscito esta misma
cuestion y se resolvio a favor de los recurrentes. Como ya hemos visto, estos eran
20 Senadores del Estado de Kansas que alegaban que en la propuesta ratificacion
de la 18. Enmienda a la Constitucion Federal sus votos que daron abatidos por
elvoto decisivo del Teniente Gobernador. La Corte Federal declaro que esto
constituia interes legal suficiente y adecuado.

En segundo lugar, los recurrentes alegan ser ciudadanos, electores y contribuyentes

de Filipinas. Naturalmente, como tales tienen derecho a participar en la explotacion
de nuestros recursos naturales y operacion de utilidades publicas, con exclusion de
los americanos y otros extranjeros. De ello se sigue logicamente que cualguier
actolegislativo que anule y abrogue esa exclusividad afectarapersonalmente a sus
derechos, amagandolos de un probable perjuicio. Esto, a mi juicio, crea un interes
legalade cuado u suficiente para litigar. Esto no es un interesmeramente academico,
abstracto. (Vease Hawke vs.Smith, 253 U.S., 221, 227; 64 Law. ed., 871, 875; 40
Sup.Ct., 495; 10 A. L. R., 1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130,
137; 66 Law. ed., 505, 571; 42 Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)

En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser "ciudadano y

elector del Estado de Ohio, y comoelector y contribuyente del Condado de Hamilton,
en sunombre y en el de otros similarmente situados, presento una solicitud de
prohibicion ante el tribunal del Estado para que se prohibiera al Secretario de Estado
a que gastara fondos publicos en la preparacion e impresion de balotaspara la
sumision al electorado de la 18. Enmienda a la Constitucion Federal para su
ratificacion. La Corte Suprema Federal fallo que el demandante tenia intereslegal y,
por tanto, personalidad y derecho de accion para demandar.

En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser electores
cualificados de Maryland y solicitaban la exclusion de ciertas mujeres del censo
electoralpor el fundamento de que la Constitucion de Maryland limitaba el sufragio a
los varones y la 19. Enmiendaa la Constitucion Federal no habia sido validamente
ratificadaa. Lo Corte Suprema Federal fallo tambien que los demandantes tenian
interes legal suficiente y adecuado.

IX

Cuando se celebraron las audiencias en este asunto sele pregunto a uno de los
abogados de los recurridos, creo que el mismo Secretario de Justicia, cual seria el
remedio legal para los recurrentes, ya que se sostiene que en elpresente caso se
trate de una materia no judicial, injusticiable, y, que, por tanto, los tribunales nada
tienen que hacer. El Secretario de Justicia contesto: ninguno. Lounico que los
recurrentes pueden hacer es esperar las elecciones y plantear el caso directamente
ante el pueblo, unico juez en las controversias de caracter politico. Esto mismose
dijo en el caso de Vera contra Aveino, supra, y reiterolo que alli he dicho sobre este
argumento, a saber:

Solo nos queda por considerar el argumento deprimente, desalentadorde que el

caso que nos ocupa no tiene remedio ni bajo la Constitucion ni bajo las leyes
ordinarias. A los recurrentes se lesdice que no tienen mas que un recurso: esperar
laas elecciones y plantear directamente la cuestion ante el pueblo elector. Si los
recurrentes tienen razon, el pueblo les reivindicara eligiendoles o elevandoa su
partido al poder, repudiando, en cambio, a los recurridoso a su partido. Algunas
cosas se podrian decir acerca de este argumento. Se podria decir, por ejemplo, que
el remedio no es expeditoni adecuado porque la mayoria de los recurridos han sido
elegidos para un periodo de seis anos, asi que no se les podra exigir ninguna
responsabilidad por tan largo tiempo. Se podria decir tambien que en una eleccion
politica entran muchos factores, y es posible quela cuestion que se discute hoy, con
ser tan fervida y tan palpitante, quede, cuando llegue el caso, obscurecida por otros
"issues" maspresionantes y decisivos. Tambien se podria decir que,
independientemente de la justicia de su cuasa, un partido minoritario siemprelucha
con desventaja contra el partido mayoritario.

Pero, a nuestro juicio, la mejor contestacion al argumento esque no cabe concebir

que los redactores de la Constitucion filipina hayan dejado en medio de nuestro
sistema de gobierno un peligros ovacio en donde quedan paralizados los resortes de
la Constituciony de la ley, y el ciudadano queda inerme, impotente frente a lo que el
considera flagrante transgresion de sus derechos. Los redactoresde la Constitucion
conocian muy bien nuestro sistema de gobierno sistema presidencial. Sabian muy
bien que este no tiene la flexibilidaddel tipo ingles el parlamentario. En Inglaterra
y en lospaises que siguen su sistema hay una magnifica valvula de seguridad
politica; cuando surge una grave crisis, de esas que sacudenlos cimientos de la
nacion, el parlamento se disuelve y se convocanelleciones generales para que el
pueblo decida los grandes "issues" del dia. Asi se consuman verdaderas
revoluciones, sin sangre, sin violencia. El sistema presidential no tiene esa valvula.
El periodo que media de eleccion a eleccion es inflexible. Entre nosotros,
porejemplo, el periodo es de seis aos para el Senado, y de cuatro aos para la
Camara de Representantes y los gobiernos provinciales y municipales. Solamente
se celebran elecciones especiales para cubrir vacantes que ocurran entre unas

elecciones generalesy otras. Se comprendera facilmente que bajo un sistema asi

esharto peligroso, es jugar con fuego el posibilitar situaciones dondeel individuo y el
pueblo no puedan buscar el amparo de la Constitucion y de las leyes, bajo procesos
ordenados y expeditos, paraprotegar sus derechos. (Vera contra Avelino, pags. 363,
364.)

Fued Jefferson quien dijo que como medida de higiene politicaera conveniente que
el pueblo americano tuviera una revolucion cada veinte aos. Parece que el gran
democratadijo esto no por el simple prurito de jugar con laparadoja, con la frase,
sino convencido de que la revoluciones el mejor antidoto para la tirania o los amagos
de tirania.

Grande como es el respeto que merecen las opiniones delinmortal autor de la

Decaraction de Independencia, creoque la revolucion es siempre revolucion, la
violencia es siempre violencia: caos, confusion, desquiciamiento de los resortes
politicos y sociales, derramamiento de sangre, perdidade vidas y haciendas,
etcetera, etcetera. Asi que normalmente ninguno puede desear para su pais la
violencia, aun en nombre de la vitalidad, de la salud publica.

Estoy convencido de que el mejor ideal politico es la revolucionsin sangre, esa que
no pocas veces se ha consumado v. gr. en la historia contemporanea de Inglaterra,
yaun de America misma. Y ese ideal es perfectamente realizable permitiendo el
amplio juego de la Constitucion y delas leyes, evitando pretextos a la violencia, y no
posibilitando situaciones de desamparo y desesperacion.

Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial es la que
en todo tiempo encauza y fomentalos procesos ordenados de la Constitucion y de la
ley.

Footnotes

PERFECTO, J., dissenting:

1 Omitted.

BRIONES, M., con quien esta conforme FERIA, M., dissidente:

1 Jose O. Vera, Ramon Diokno y Jose E. Romero.

2 Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio Rodriguez, Tomas

Confesor, Tomas Cabili, Jose O. Vera, Ramon Diokno, y Jose E. Romero.

Representantes: Juvenal Almendras, Paulino Alonzo, Apolinario Cabigon, Floro

Crisologo, Gabriel Dunuan, Cosme B. Garcia, Agustin Y. Kintanar, Vicente Logarta,
Francisco A. Perfecto, Cipriano P. Primicias, Nicolas Rafols, Jose V. Rodriguez,
Juan de G. Rodriguez, Felixberto M. Serrano, Conrado Singson, George K. Tait, y
Leandro A. Tojong.

Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio Javier y Sofronio

Quimson, Nacionalista Party, Democratic Alliance, Popular Front y Philippine Youth
Party, respectivamente.

3 Comision de Elecciones: Jose Lopez Vito, Francisco Enage y Vicente de Vera,

respectivamente.

Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero, Auditor y Director de

Imprenta, respectivamente.

4 La politica de nacionalizacion de la recursos naturales yutilidades publicas

incorporada en nuestra Constitucion no es unapolitica nueva, sino que trae su origen
de nuestro pasado remoto, dela historia colonial misma de Espaa en Filipinas. Los
primeros conflictos de los filipinos con los conquistado es tenian por causala
propiedad de la tierra; los filipinos se esforzaban por reivindicarel dominio del suelo
que creian detentado por los colonizadores. Estos conflictos fueron agravandose con
el tiempo condensan dose enla formidable cuestion agraria que en las postrimerias
del siglo diecinueve fue enm gran parte la causa de la revolucion contra Espaa.
Lass campanas de Rizal y de los laborantes, y el Katipunan de Bonifacio tomaron
gran parte de su fuerza, de su valor combativo, delos agravios provocados por la
cuestion agraria. La Liga Filipinade Rizal estaba fundamentalmente basada en un

ideario economico nacionalista, de control y dominio sobre la riqueza y recursos

delpais.

"Cuando America establecio aqui su soberania su mayor acierto consistio en echar

los cimientos de su politica fundamental de 'Filipinas para los filipinos.' Primero el
Presidente McKinley, y despues los Presidentes Taft y Wilson, consolidaron esta
politica. El congresoaprobo leyes tendentes a la conservacion de terrenos publicos
yrecursos naturales, entre ellas la Ley de 1. de Julio de 1902 conocida por Ley
Cooper. En estas leyes se limitaba y restringia la adquisiciony uso de bienes de
dominio publico por particulares.

"Una pruebaf palmaria del celo del Congreso americano por mantener rigidamente la
politica de conservacion del patrimonio delos filipinos fue la investigacion
congresional provocada por el Congresista Martin, de Colorado, en relacion con la
venta de terrenos delos frailes en Mindoro, a una compaia americana en exceso de
las 1,024 hectareas fijadas en las leyes de terrenos publicos. Esto diolugar a uno de
los episodios mas famosos en la carrera del Comisionado Residente Quezon. Este
relata su campaa en su autobiografia 'The Good Fight,' a saber:

"'My next address to Congress took place when a congressional investigation was
being urged by Congressman Martin of Colorado to determine how the Government
of the Philippines was carrying out the policy laid down by Congress, that limited to
1024 acres the maximum area of government land that could be sold to corporations
or individuals. This law had been enacted soon after the United States has taken the
Philippines to prevent the exploitation of the Filipino people by capitalists, whether
foreigners or natives. American capital interested in the sugar industry has acquired
two very large tracts of land which the Philippine Government had bought from the
friars with the funds bonds issued under the security of the Philippine Government.
The avowed purpose in buying these extensive properties from the Spanish religious
orders was to resell them in small lots to Filipino farmers, and thus to do away with
absentee landlordism which had been the most serious cause of the Philippine
rebellion against Spain. The reason given for the sale of these lands to American
capital by the American official in charge of the execution of the congressional policy
were two-fold: First, that the act of Congress referred only to lands of the public
domain not to lands acquired by the Government in some other way. And second,
that the sale of these lands was made in order to establish the sugar industry in the
Philippines on a truly grand scale under modern methods, as had been done in
Cuba. It was further alleged that such a method would bring great prosperity to the
Philippines.

"'I spoke in support of the proposed investigation, contending that the establishment
of the sugar industry under those conditions would mean the debasement of the
Filipinos into mere peons. 'Moreover,' I argued, 'large investments of American
capital in the Philippines will inevitably result in the permanent retention of the

Philippines by the United States.' At the climax of ny speech I roared: If the

preordained fate of my country is either to be a subject people but rich, or free but
poor, I am unqualifiedly for the latter.'

"'The investigation was ordered by the House of Representatives, and although the
sales already made were not annulled, no further sales were made in defiance of the
Congressional Act. (The Good Fight, by President Quezon, pp. 117-119.)'

"Para implementar la politica de nacionalizacion el gobierno filipino bajo la Ley Jones

y la Ley del Commonwealth fundo con una gruesa capitalizacion las corporaciones
economicas del Estado comoel Philippine National Bank, National Development
Company, National Cement Company, National Power Corporation, y otras.

"Para reglamentar y supervisar las utilidades y servicios publicos se creo la

Comision de Servicios Publicos."

The Lawphil Project - Arellano Law Foundation

EN BANC
[G.R. No. 127325. March 19, 1997]
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA ISABEL
ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN,
ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding
members of the Peoples Initiative for Reforms, Modernization and Action
(PIRMA), respondents, SENATOR RAUL S. ROCO, DEMOKRASYAIPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED
BAR OF THE PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.
DECISION
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose
amendments to the Constitution through the system of initiative under Section 2 of
Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention,
as this system of initiative was unknown to the people of this country, except perhaps
to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponenti and the main
sponsorii of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as innovative.iii Indeed it is, for both under the 1935 and
1973 Constitutions, only two methods of proposing amendments to, or revision of,
the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths
of all its members and (2) by a constitutional convention.iv For this and the other
reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative
(hereafter, Delfin Petition)v wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
Peoples Initiative,vi a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and

supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,

signature stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures, it
is necessary that the time and dates to be designated for the purpose be first fixed in
an order to be issued by the COMELEC; and that to adequately inform the people of
the electoral process involved, it is likewise necessary that the said order, as well as
the Petition on which the signatures shall be affixed, be published in newspapers of
general and local circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,vii Section 4 of Article VII,viii and Section 8 of Article Xix
of the Constitution. Attached to the petition is a copy of a Petition for Initiative on the
1987 Constitutionx 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 96037 (INITIATIVE), the COMELEC, through its Chairman, issued an Orderxi (a)
directing Delfin to cause the publication of the petition, together with the attached
Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in three
(3) daily newspapers of general circulation at his own expense not later than 9
December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00
a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the Peoples Initiative for
Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers; and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN).xii
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.xiii
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for
prohibition raising the following arguments:

(1) The constitutional provision on peoples initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been
passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5)The peoples initiative is limited to amendments to the Constitution, not to revision
thereof. Extending or lifting of term limits constitutes a revision and is, therefore,
outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners
allege that in the event the COMELEC grants the Delfin Petition, the peoples
initiative spearheaded by PIRMA would entail expenses to the national treasury for
general re-registration of voters amounting to at least P180 million, not to mention
the millions of additional pesos in expenses which would be incurred in the conduct
of the initiative itself. Hence, the transcendental importance to the public and the
nation of the issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure and calling for the
admission of a taxpayers and legislators suit.xiv Besides, there is no other plain,
speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,

enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive
for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Commentxv
on the petition. They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF THE
COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT
DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,
200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND TO
SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN
THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID: THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES
AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

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

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A REVISION
OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED. (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Commentxvi 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 Commentxvii for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution.
Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees
that power; and its Section 3, which enumerates the three systems of initiative,

includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly mentions initiative
on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as
well as the latters Manifestation stating that he is the counsel for private respondents
Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul
Roco and allowed him to file his Petition in Intervention not later than 20 January
1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI),
filed a Motion for Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J.,xviii 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.xix 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.xx
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the role of the COMELEC in the
verification of the signatures and the sufficiency of the petition, (h) the appeal from
any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such peoples initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a peoples initiative under Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does
not constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention.xxi He avers
that R.A. No. 6735 is the enabling law that implements the peoples right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and
House Bill No. 21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No.
2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What
vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing
of a petition for initiative which is signed by the required number of registered voters.
He also submits that the proponents of a constitutional amendment cannot avail of
the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELECs role in an initiative on the Constitution is
limited to the determination of the sufficiency of the initiative petition and the call and
supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention.xxii
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention;
and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or cover
initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed
in the draft Petition for Initiative on the 1987 Constitution, would constitute a
revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator
Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of

action and that the Commissions failure or refusal to do so constituted grave abuse
of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of
House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments
on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP.xxiii The
parties thereafter filed, in due time, their separate memoranda.xxiv
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this
special civil action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court can save a nation in peril and
uphold the paramount majesty of the Constitution.xxv
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss
the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority

to entertain the petition.xxvi The COMELEC made no ruling thereon evidently because
after having heard the arguments of Delfin and the oppositors at the hearing on 12
December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda.xxvii Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of
the petition, together with the attached Petition for Initiative, the signature form, and
the notice of hearing; and by setting the case for hearing. The COMELECs failure to
act on Rocos motion to dismiss and its insistence to hold on to the petition rendered
ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter
specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by the
required minimum number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin
Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari
under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in cases of transcendental
importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:xxviii
A partys standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,xxix 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).xxx That section reads as follows:
SECTION 1.

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

(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article ____
Section ____ of the Constitution.xxxi
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.xxxii
The interpellations on Section 2 showed that the details for carrying out Section 2 are
left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent,
there are no details in the provision on how to carry this out. Do we understand,
therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any event, as envisioned, no
amendment through the power of initiative can be called until after five years from the
date of the ratification of this Constitution. Therefore, the first amendment that could
be proposed through the exercise of this initiative power would be after five years. It
is reasonably expected that within that five-year period, the National Assembly can
come up with the appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how this is to
be carried out - is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this
provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if it
fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process
of an initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy
of legal mandate, constituent power has primacy over all other legal mandates?

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

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require
a great deal of circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process
and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now,
to again concede to the legislature the process or the requirement of determining the
mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations.xxxiii
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.xxxiv
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.xxxv
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
xxx
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee Report
No. 7, we accept the proposed amendment.xxxvi
The interpellations which ensued on the proposed modified amendment to Section 2
clearly showed that it was a legislative act which must implement the exercise of the
right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative...?
MR. DAVIDE. It can.
xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.xxxvii
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."xxxviii
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the initiative
on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary legislation or putting an end
to a law proposed by the National Assembly by way of a referendum. I cannot agree
to reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions.xxxix
The Davide modified amendments to Section 2 were subjected to amendments, and
the final version, which the Commission approved by a vote of 31 in favor and 3
against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as
follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE

YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR

OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.xl
The entire proposed Article on Amendments or Revisions was approved on second
reading on 9 July 1986.xli Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986.xlii
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 Congressxliii shall provide for the implementation of the exercise of this right.xliv
This amendment was approved and is the text of the present second paragraph of
Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading:
The Congressxlv shall by law provide for the implementation of the exercise of this
right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for
the rules implementing the exercise of the right. The rules means the details on
how [the right] is to be carried out.xlvi
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,xlvii 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,xlviii 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. 17xlix 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 Senatel and by the House
of Representatives.li This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:
SECTION 2. Statement and Policy. -- The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislative body
upon compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed afterthought. That
word is neither germane nor relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals to AMEND. The
people are not accorded the power to directly propose, enact, approve, or reject, in
whole or in part, the Constitution through the system of initiative. They can only do
so with respect to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on
local initiative and referendum and appropriately used the phrases propose and
enact, approve or reject and in whole or in part.lii
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems of
initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But
unlike in the case of the other systems of initiative, the Act does not provide for the
contents of a petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be. It does not include,
as among the contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full
as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Underscoring supplied).
The use of the clause proposed laws sought to be enacted, approved or rejected,
amended or repealed only strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on national
and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national
and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution
is subsumed under the subtitle on National Initiative and Referendum because it is
national in scope. Our reading of Subtitle II (National Initiative and Referendum) and
Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the
classification is not based on the scope of the initiative involved, but on its nature and
character. It is national initiative, if what is proposed to be adopted or enacted is a
national law, or a law which only Congress can pass. It is local initiative if what is
proposed to be adopted or enacted is a law, ordinance, or resolution which only the
legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative into national
and local is actually based on Section 3 of the Act, which we quote for emphasis and
clearer understanding:
SEC. 3. Definition of terms -xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to
the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Underscoring supplied).
Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution.liii
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum are
placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which
could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local
Initiative and Referendum is misplaced,liv since the provision therein applies to both
national and local initiative and referendum. It reads:
SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for
the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so
on the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents
of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of
votes for its approval;

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

(e) The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.lv
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters
for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have
been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.lvi
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word Constitution
in Section 2; (b) defines initiative on the Constitution and includes it in the
enumeration of the three systems of initiative in Section 3; (c) speaks of plebiscite
as the process by which the proposition in an initiative on the Constitution may be
approved or rejected by the people; (d) reiterates the constitutional requirements as
to the number of voters who should sign the petition; and (e) provides for the date of
effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to

the system of initiative on amendments to the Constitution by merely paying it a

reluctant lip service.lvii
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.lviii
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest.lix 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.lx
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.lxi 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.lxii
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELECs power under Section

2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations
referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or
that it has validly vested upon the COMELEC the power of subordinate legislation
and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without
jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735,
a petition for initiative on the Constitution must be signed by at least 12% of the total
number of registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits that he has not yet
gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing.
The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the
petition;lxiii (2) to issue through its Election Records and Statistics Office a certificate
on the total number of registered voters in each legislative district;lxiv (3) to assist,
through its election registrars, in the establishment of signature stations;lxv 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.lxvi
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by
the COMELEC. The latter knew that the petition does not fall under any of the
actions or proceedings under the COMELEC Rules of Procedure or under Resolution
No. 2300, for which reason it did not assign to the petition a docket number. Hence,
the said petition was merely entered as UND, meaning, undocketed. That petition
was nothing more than a mere scrap of paper, which should not have been dignified
by the Order of 6 December 1996, the hearing on 12 December 1996, and the order
directing Delfin and the oppositors to file their memoranda or oppositions. In so
dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to
lift the term limits of the elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments on the Constitution until a sufficient law shall have been validly enacted
to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people
under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres
Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno,
Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

Today is Wednesday, November 26, 2014

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28196

November 9, 1967

RAMON A. GONZALES, petitioner,

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

G.R. No. L-28224

November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

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

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

CONCEPCION, C.J.:

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

Petitioner therein prays for judgment:

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

2) declaring said Act unconstitutional and void.

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

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

the Constitution of the Philippines, be amended so as to increase the membership of
the House of Representatives from a maximum of 120, as provided in the present
Constitution, to a maximum of 180, to be apportioned among the several provinces
as nearly as may be according to the number of their respective inhabitants, although
each province shall have, at least, one (1) member;

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

the convention to be composed of two (2) elective delegates from each

representative district, to be "elected in the general elections to be held on the

second Tuesday of November, 1971;" and

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be
amended so as to authorize Senators and members of the House of Representatives
to become delegates to the aforementioned constitutional convention, without
forfeiting their respective seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on

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

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

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a

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

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized

and existing under the laws of the Philippines, and a civic, non-profit and nonpartisan 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 Taada 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
practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place. The Commission on
Elections shall make available copies of each amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free distribution.

xxx

xxx

xxx

Sec. 4. The ballots which shall be used in the election for the approval of said
amendments shall be printed in English and Pilipino and shall be in the size and form
prescribed by the Commission on Elections: Provided, however, That at the back of
said ballot there shall be printed in full Resolutions of both Houses of Congress
Numbered One and Three, both adopted on March sixteen, nineteen hundred and
sixty-seven, proposing the amendments: Provided, further, That the questionnaire
appearing on the face of the ballot shall be as follows:

Are you in favor of the proposed amendment to Section five of Article VI of our
Constitution printed at the back of this ballot?

Are you in favor of the proposed amendment to section sixteen of Article VI of our
Constitution printed at the back of this ballot?

To vote for the approval of the proposed amendments, the voter shall write the word
"yes" or its equivalent in Pilipino or in the local dialect in the blank space after each
question; to vote for the rejection thereof, he shall write the word "No" or its
equivalent in Pilipino or in the local dialect.

I believe that intrinsically, that is, considered in itself and without reference to
extraneous factors and circumstances, the manner prescribed in the aforesaid
provisions is sufficient for the purpose of having the proposed amendments
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
Act to make it adhere more closely to the constitutional requirement. Certainly it
would have been out of place to provide, for instance, that government officials and
employees should go out and explain the amendments to the people, or that they
should be the subject of any particular means or form of public discussion.

The objection of some members of the Court to Republic Act No. 4913 seems to me
predicated on the fact that there are so many other issues at stake in the coming
general election that the attention of the electorate, cannot be entirely focused on 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
not intrinsic in the law but in its implementation. The same manner of submitting the
proposed amendments to the people for ratification may, in a different setting, be
sufficient for the purpose. Yet I cannot conceive that the constitutionality or

unconstitutionality of a law may be made to depend willy-nilly on factors not 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 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 agree. The criterion would be too broad and relative, and dependent upon
individual opinions that at best are subjective. What one may regard as sufficient
compliance with the requirement of submission to the people, within the context of
the same law, may not be so to another. The question is susceptible of as many
views as there are viewers; and I do not think this Court would be justified in saying
that its own view on the matter is the correct one, to the exclusion of the opinions of
others.

On the other hand, I reject the argument that the ratification must necessarily be in 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
amendments are submitted to the people for their ratification," and I do not subscribe
to the restrictive interpretation that the petitioners would place on this provision,
namely, that it means only a special election.

BENGZON, J.P., J., concurring:

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
in the manner authorized by law.1 Based upon this principle, petitioners Ramon A.
Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court
in separate petitions.

Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation

thru class suit of all citizens of this country, filed this suit for prohibition with
preliminary injunction to restrain the Commission on Elections, Director of Printing
and Auditor General from implementing and/or complying with Republic Act 4913,
assailing said law as unconstitutional.

Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails

the constitutionality not only of Republic Act 4913 but also of Resolutions of Both
Houses Nos. 1 and 3 of March 16, 1967.

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 Taada 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 soulsearching 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.

Footnotes

1 Urging the latter to refrain from implementing Republic Act. No. 4913 and from
submitting to a plebiscite in the general elections to be held on November 14, 1967,
the Constitutional amendments proposed in the aforementioned R.B.H. Nos. 1 and 3.

2 Dated October 30, 1967.

3 78 Phil. 1.

4 63 Phil. 139, 157.

5 Supra.

6 81 Phil. 818.

7 L-2851, March 4 and 14, 1949.

8 L-10520, February 28, 1957.

9 L-18684, September 14, 1961.

10 Section 1, Art. VI, Constitution of the Philippines.

11 Section 1, Art. II, Constitution of the Philippines.

12 Section 1, Art. XV, Constitution of the Philippines.

13 Of amending the Constitution.

14 And, inferentially, to lower courts.

15 Sec. 2(1), Art. VIII of the Constitution.

16 Supra.

17 Approved, June 17, 1961.

18 Macias vs. Commission on Elections, supra.

19 Under the original Constitution providing for a unicameral legislative body, whose
members were chosen for a term of three (3) years (Section 1, Art. VI, of the Original
Constitution).

20 Section 1, Article IX of the Constitution.

21 Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. p. 192; Nacionalista Party
vs. De Vera, 85 Phil., 126; Codilla vs. Martinez, L-14569, November 23, 1960. See,
also, State vs. Carrol, 38 Conn. 499; Wilcox vs. Smith, 5 Wendell [N.Y.] 231; 21 Am.
Dec., 213; Sheenan's Case, 122 Mass., 445; 23 Am. Rep., 323.

22 Torres vs. Ribo, 81 Phil. 50.

23 Nacionalista Party vs. De Vera, supra.

24 People vs. Rogelio Gabitanan, 43 O.G. 3211.

25 53 Phil. 866.

26 50 Am. Jur., Sec. 282, pp. 267-268, citing Heckathorn v. Heckathorn, 284 Mich.
677, 280 NW 79, citing RCL; Robson v. Cantwell, 143 SC 104, 141 SE 180, citing
RCL; Geiger v. Kobilka, 26 Wash 171, 66 P 423, Am. St. Rep. 733 and many others.

BENGZON, J.P., J., concurring:

1 United States v. San Jacinto Tin Co., 125 U. S. 273.

2 Angara v. Electoral Commission, 63 Phil. 139, 1958, Justice Laurel, ponente.

FERNANDO, J., concurring:

1 103 Phil. 1051 (1957).

2 78 Phil. 1 (1947).

3 307 US 433 (1939).

4 84 Phil. 368 (1940).

5 Commonwealth Act No. 671 (1941).

6 Araneta v. Dinglasan, supra, at p. 376.

SANCHEZ, J., separate opinion:

1 The text of the law reads: "He (Senator or Member of the House of
Representatives) may, however, be a Member of Constitutional Convention."

2 Emphasis supplied.

3 Ellingham vs. Dye, 99 N.E. pp. 4, 15; Emphasis supplied.

4 Elingham vs. Dye, supra, at p. 17; emphasis supplied.

The Lawphil Project - Arellano Law Foundation

66088

January 25, 1984

ALEX G. ALMARIO, ISAGANI M. JUNGCO, ESTANISLAO L. CESA, JR.,

DORINTINO FLORESTA, FIDELA Y. VARGAS, ET AL., petitioners,

vs.

HON. MANUEL ALBA and THE COMMISSION ON ELECTIONS, respondents.

RESOLUTION

GUTIERREZ, JR., J p:

As provided for in Batas Pambansa Blg. 643, the Filipino electorate will go to the
polls on January 27, 1984 to either approve or reject amendments to the Constitution
proposed by Resolution Nos. 104, 105, 110, 111, 112, and 113 of the Batasang
Pambansa. The proposed amendments are embodied in four (4) separate questions
to be answered by simple YES or NO answers.

Petitioners herein seek to enjoin the submission on January 27, 1984 of Question
Nos. 3 and 4, which cover Resolution Nos. 105 and 113, to the people for ratification
or rejection on the ground that there has been no fair and proper submission
following the doctrine laid down in Tolentino v. COMELEC (41 SCRA 707). The
petitioners do not seek to prohibit the holding of the plebiscite but only ask for more
time for the people to study the meaning and implications of Resolution Nos. 105 and
113 until the nature and effect of the proposals are fairly and properly submitted to
the electorate.

The questions to be presented to the electorate at the plebiscite are:

QUESTION NO. 3

Do you vote for the approval of amendments to the Constitution as proposed by the
Batasang Pambansa in Resolution Numbered 105 which, in substance, provide that
grant shall be an additional mode for the acquisition of lands belonging to the public
domain and that the agrarian reform program may include the grant or distribution of
alienable lands of the public domain to qualified tenants, farmers and other landless
citizens.

QUESTION NO. 4

Do you vote for the approval of an amendment to the Constitution as proposed by

the Batasang Pambansa in its Resolution Numbered 113, adding the following
paragraph to Section 12 of Article XIV of the Constitution:

The State shall moreover undertake an urban land reform and social housing
program to provide deserving landless, homeless or inadequately sheltered low
income resident citizens reasonable opportunity to acquire land and decent housing
consistent with Section 2 of Article IV of this Constitution.

After a careful consideration of the issues raised in the petition for prohibition with
preliminary injunction, the answer of the Solicitor General, and the arguments of the
parties during the hearing on January 24, 1984, the COURT Resolved to DISMISS
the petition for lack of merit.

Section 2, Article XVI of the Constitution which states:

xxx

xxx

xxx

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.

allows a period of not more than three months for the conduct of information
campaigns. The sufficiency of the period during which amendments are submitted to
the people before they vote to either affirm or reject depends on the complexity and
intricacy of the questions presented. The petitioners have failed to show that the
addition of the one word grant to Section 11, Article XIV to make the provision read:

. . . nor may any citizen hold such (alienable) lands (of the public domain) by lease
in excess of five hundred hectares or acquire by purchase, homestead, or GRANT in
excess of twenty four hectares. . .

or that the addition of two paragraphs including one on urban land reform to Section
12 of Article XIV to make it read:

SEC. 12. The State shall formulate and implement an agrarian reform program
aimed at emancipating the tenant from the bondage of the soil and achieving the
goals enunciated in this Constitution.

SUCH PROGRAM MAY INCLUDE THE GRANT OR DISTRIBUTION OF

ALIENABLE AND DISPOSABLE LANDS OF THE PUBLIC DOMAIN TO QUALIFIED
TENANTS, FARMERS AND OTHER LANDLESS CITIZENS IN AREAS WHICH THE
PRESIDENT MAY BY OR PURSUANT TO LAW RESERVE FROM TIME TO TIME,
NOT EXCEEDING THE LIMITATIONS FIXED IN ACCORDANCE WITH THE
IMMEDIATELY PRECEDING SECTION.

THE STATE SHALL MOREOVER UNDERTAKE AN URBAN LAND REFORM AND

SOCIAL HOUSING PROGRAM TO PROVIDE DESERVING LANDLESS,
HOMELESS OR INADEQUATELY SHELTERED LOW INCOME RESIDENT
CITIZENS REASONABLE OPPORTUNITY TO ACQUIRE LAND AND DECENT
HOUSING CONSISTENT WITH SECTION 2 OF ARTICLE IV OF THIS
CONSTITUTION.

result in amendments of such nature that when the people go to the polls on January
27, 1984 they cannot arrive at an intelligent judgment on their acceptability or nonacceptability.

The present provisions of the Constitution are adequate to support any program of
the government for the grant of pub]ic lands to qualified and deserving citizens or for
the implementation of urban land reform. Homesteads and free patents are grants.
We likewise see no constitutional infirmity to a law passed by the Batasang
Pambansa, under the present Constitution, that would grant alienable and disposable
lands of the public domain not more than twenty four (24) hectares to any qualified
tenant, farmer, and other landless citizen in areas reserved by the President, acting
pursuant to such law. Nor is it correct to say that after the agrarian land reform
program now being implemented and the agitation for a similar program in urban
areas, the meaning of urban land reform is not yet understood. Questions No. 3
and No. 4, if ratified with an affirmative vote, will serve at most a symbolic purpose.
That much the Solicitor General conceded when he stated that the amendments
under Question No. 3 serve to confirm existing practice pursuant to long standing
legislation. Any interpretation of grant will, therefore, carry the weight of applicable
precedents which surround the associated words homestead and purchase in the
same clause of the Constitution. Similarly, any legislation laying down the rules on
urban land reform will have to survive the constitutional tests of due process, equal
protection, police power, reasonable compensation, etc., now applied to agrarian
land reform.

More important, however, is that the necessity, expediency, and wisdom of the
proposed amendments are beyond the power of the courts to adjudicate. Precisely,
whether or not grant of public land and urban land reform are unwise or
improvident or whether or not the proposed amendments are unnecessary is a
matter which only the people can decide. The questions are presented for their
determination. Assuming that a member or some members of this Court may find
undesirable any additional mode of disposing of public land or an urban land reform
program, the remedy is to vote NO in the plebiscite but not to substitute his or their
aversion to the proposed amendments by denying to the millions of voters an
opportunity to express their own likes or dislikes. The issue before us has nothing to
do with the wisdom of the proposed amendments, their desirability, or the danger of
the power being abused. The issue is whether or not the voters are aware of the
wisdom, the desirability, or the dangers of abuse. The petitioners have failed to make
out a case that the average voter does not know the meaning of grant of public land
or of urban land reform.

As argued by the Solicitor-General:

Agrarian reform program, for example, has been in the consciousness of the
Filipino people, to borrow a phrase from the petitioners, since 1972 with the passage

of P.D. No. 27 (Oct. 21, 1972), emancipating our tenants and transferring to them
ownership of the land they toil, without mentioning the fact that even prior to this,
there were several laws enacted attempting at land reform, notably Rep. Act No.
3844 (1964), ordaining the agricultural Land Reform Code and instituting land
reforms in the country. More importantly and more to the point, grant or land grant
or distribution are subject matters that have been in the consciousness of the
Filipino people since Commonwealth days, with the enactment of Commonwealth Act
No. 141, amending and compiling the previously scattered laws relative to the
conservation and disposition of lands of the public domain.

xxx

xxx

xxx

Similarly, the Filipino people have long been since familiar with the topics of urban
land reform and social housing, beginning perhaps with the countrys first zoning
laws and, through all these years, with such laws as Rep. Act No. 267 (1948),
authorizing cities to purchase or expropriate home sites and landed estates and
subdivide them for resale at cost, P.D. No. 814 (1975), providing a land tenure
system for the Tondo Foreshore Dagat-Dagatan Urban Development Project, P.D.
No. 933 (1976) creating the Human Settlement Commission to bring about the
optimum use of land, Rep. Act No. 1322 (1955) creating the Philippine Homesite and
Housing Authority, and P.D. No. 1517, proclaiming an urban land reform in the
Philippines, to give but a few samples. . . .

Batas Pambansa Blg. 643 directs the COMELEC to publish the amendments. The
respondents assure us that publication in all provinces and cities, except a few where
there are no local newspapers, has been affected and that Barangays all over the
country have been enjoined to hold community gatherings for this purpose. The
Integrated Bar of the Philippines and various civic organizations have taken a strong
stand for or against the last two proposed questions. Television and radio programs
regularly broadcast the amendments. The petitioners have failed to explain why,
inspite of all the above, there is still fair and proper submission.

On the bid for additional time, the respondents point out that Resolution No. 105 will
have been submitted for sixty seven (67) days to the people on Plebiscite Day while
Resolution No. 113 will have been submitted for forty two (42) days. The entire 1935
Constitution was submitted for ratification thirty six (36) days after approval of Act No.
4200. The 1976 amendments which admittedly are much more complicated, difficult
to understand, and novel and far-reaching in their implications were presented to the
people for only three (3) weeks. In Sanidad v. Commission on Elections (73 SCRA
333, 375), this was how this Court answered the issue of sufficient and proper
submission:

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 v. COMELEC
(21 SCRA 774). Associate Justices Teehankee, and Muoz Palma hold that
prescinding from the Presidents 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 v. COMELEC (41 SCRA 702).

The undersigned ponente would like to add his personal views to this opinion of the
Court. On January 27, 1984, the average voter who goes to the polling place and
reads Question No. 3 will know whether or not he or she is in favor of distributing
alienable public lands through grants in addition to leases, homesteads and
purchases. Upon reading Question No. 4, the voter will know whether or not he or
she is in favor of an urban land reform program. I personally find existing provisions
of the Constitution more than sufficient basis for legislation to achieve the objectives
of the proposed amendments. To me, the second question on the Vice-President visa-vis the Executive Committee involves more complex and difficult issues involving
as it does a collegiate body as successor to the President. Yet, no one seems to
question its fair and proper submission. However, my personal feelings about the
merits or demerits of the third and fourth questions are entirely distinct and separate
from the issue of their fair and proper submission to the electorate. Like any other
voter, my remedy is to vote NO on any proposal I find unwise or ill-advised and YES
on those I favor. I respect the views of those who may think differently.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

127 SCRA 69 Political Law Amendment to the Constitution Political Question

In January 1984, a plebiscite was to be held to allow the voters to either approve or reject amendments to the
Constitution proposed by the Batasang Pambansa. The proposed amendments are embodied in four (4)
separate questions to be answered by simple YES or NO answers.
Alex Almario and some other concerned groups seek to enjoin the submission in the said plebiscite of
Questions No. 3 (grant as an additional mode of acquiring lands belonging to the public domain) and 4 (the
undertaking by the government of a land reform program and a social reform program) to the people for

ratification or rejection on the ground that there has been no fair and proper submission following the
doctrine laid down in Tolentino v. COMELEC.
However, unlike in the case of Tolentino vs COMELEC, Almario et al do not seek to prohibit the holding of
the plebiscite but only ask for more time for the people to study the meaning and implications of the said
questions/proposals until the nature and effect of the proposals are fairly and properly submitted to the
electorate.
ISSUE: Whether or not Questions 3 and 4 can be presented to the people on a later date.
HELD: No. This is a political question. The necessity, expediency, and wisdom of the proposed amendments
are beyond the power of the courts to adjudicate. Precisely, whether or not grant of public land and urban
land reform are unwise or improvident or whether or not the proposed amendments are unnecessary is a
matter which only the people can decide. The questions are presented for their determination.
Assuming that a member or some members of the Supreme Court may find undesirable any additional mode of
disposing of public land or an urban land reform program, the remedy is to vote NO in the plebiscite but not
to substitute his or their aversion to the proposed amendments by denying to the millions of voters an
opportunity to express their own likes or dislikes.
Further, Almario et al have failed to make out a case that the average voter does not know the meaning of
grant of public land or of urban land reform.

The Constitutional Convention of 1971 scheduled an advance plebiscite concerning

only the proposal to lower the voting age from 21 to 18. This was even before the
rest of the draft of the Constitution (then under revision) had been approved. Arturo
Tolentino then filed a motion to prohibit such plebiscite.

ISSUE: Whether or not the petition will prosper.

HELD: Yes. If the advance plebiscite will be allowed, there will be an improper
submission to the people. Such is not allowed.

The proposed amendments shall be approved by a majority of the votes cast at an

election at which the amendments are submitted to the people for ratification.
Election here is singular which meant that the entire constitution must be submitted
for ratification at one plebiscite only. Furthermore, the people were not given a proper
frame of reference in arriving at their decision because they had at the time no idea
yet of what the rest of the revised Constitution would ultimately be and therefore
would be unable to assess the proposed amendment in the light of the entire
document. This is the Doctrine of Submission which means that all the proposed
amendments to the Constitution shall be presented to the people for the ratification
or rejection at the same time, NOT piecemeal.

Angara vs electoral Com

Commissioner Blas Ople.

ii

Commissioner Jose Suarez.

iii

I Record of the Constitutional Commission, 371, 378.

iv

Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973 Constitution.

Annex A of Petition, Rollo, 15.

vi

Later identified as the Peoples Initiative for Reforms, Modernization and Action, or PIRMA for brevity.

vii

These sections read:

SEC. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election.
No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.
xxx
SEC. 7. The Members of the House of Representatives shall be elected for a term of three years which
shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their
election.
No Member of the House of Representatives shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.
viii

The section reads:

SEC. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of
six years which shall begin at noon on the thirtieth day of June next following the day of the election and
shall end at noon of the same date six years thereafter. The President shall not be eligible for any
reelection. No person who has succeeded as President and has served as such for more than four years
shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of the service for the
full term for which he was elected.
ix

The section reads:

SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined
by law, shall be three years and no such official shall serve for more than three consecutive terms.

Voluntary renunciation of the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.
x

Rollo, 19.

xi

Annex B of Petition, Rollo, 25.

xii

Order of 12 December 1996, Annex B-1 of Petition, Rollo, 27.

xiii

Id.

xiv

Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976].

xv

Rollo, 68.

xvi

Rollo, 100.

xvii

Rollo, 130.

xviii

A Member of the 1986 Constitutional Commission.

xix

Section 26, Article II, Constitution.

Citing Commissioner Ople of the Constitutional Commission, I Record of the Constitutional

Commission, 405.
xx

xxi

Rollo, 239.

xxii

Rollo, 304.

xxiii

Rollo, 568.

xxiv

These were submitted on the following dates:

(a) Private respondent Delfin - 31 January 1997 (Rollo, 429);

(b) Private respondents Alberto and Carmen Pedrosa - 10 February 1997 (Id., 446);
(c) Petitioners - 12 February 1997 (Id., 585);
(d) IBP - 12 February 1997 (Id., 476);
(e) Senator Roco - 12 February 1997 (Id., 606);
(f) DIK and MABINI - 12 February 1997 (Id., 465);
(g) COMELEC - 12 February 1997 (Id., 489);
(h) LABAN - 13 February 1997 (Id., 553).
xxv

Rollo, 594.

xxvi

Annex D of Rocos Motion for Intervention in this case, Rollo, 184.

xxvii

Rollo, 28.

xxviii

232 SCRA 110, 134 [1994].

xxix

II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].

xxx

I Record of the Constitutional Commission 370-371.

xxxi

Id., 371.

xxxii

Id., 386.

xxxiii

Id., 391-392. (Underscoring supplied for emphasis).

xxxiv

Id., 386.

xxxv

Id., 392.

xxxvi

Id., 398-399.

xxxvii

Id., 399. Underscoring supplied.

xxxviii

Id., 402-403.

xxxix

Id., 401-402.

xl

Id., 410.

xli

Id., 412.

xlii

II Record of the Constitutional Commission 559-560.

The Congress originally appeared as The National Assembly. The change came about as a logical
consequence of the amended Committee Report No. 22 of the Committee on Legislative which changed
The National Assembly to "The Congress of the Philippines" in view of the approval of the amendment
to adopt the bicameral system (II Record of the Constitutional Commission 102-105). The proposed new
Article on the Legislative Department was, after various amendments approved on Second and Third
Readings on 9 October 1986 (Id., 702-703).
xliii

xliv

V Record of the Constitutional Commission 806.

xlv

See footnote No. 42.

xlvi

As stated by Commissioner Bernas in his interpellation of Commissioner Suarez, footnote 28.

Entitled "Initiative and Referendum Act of 1987, introduced by then Congressmen Raul Roco, Raul
del Mar and Narciso Monfort.
xlvii

Entitled An Act Implementing the Constitutional Provisions on Initiative and Referendum and for
Other Purposes, introduced by Congressmen Salvador Escudero.
xlviii

Entitled An Act Providing for a System of Initiative and Referendum, and the Exceptions Therefrom,
Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances
or Approve or Reject Any Ordinance or Resolution Passed By the Local Legislative Body, introduced by
Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.
xlix

IV Record of the Senate, No. 143, pp. 1509-1510.

li

VIII Journal and Record of the House of Representatives, 957-961.

lii

That section reads:

Section 1. Statement of Policy. The power of the people under a system of initiative and referendum to
directly propose and enact resolutions and ordinances or approve or reject, in whole or in part, any
ordinance or resolution passed by any local legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed.
It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third Reading,
did not contain any subtitles.
liii

liv

If some confusion attended the preparation of the subtitles resulting in the leaving out of the more important
and paramount system of initiative on amendments to the Constitution, it was because there was in the Bicameral
Conference Committee an initial agreement for the Senate panel to draft that portion on local initiative and for the
House of Representatives panel to draft that portion covering national initiative and initiative on the Constitution;
eventually, however, the Members thereof agreed to leave the drafting of the consolidated bill to their staff. Thus:

CHAIRMAN GONZALES.
... All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let us not
discuss anymore kung alin ang magiging basic bill, ano, whether it is the Senate Bill or whether it is the
House Bill. Logically it should be ours sapagkat una iyong sa amin, eh. It is one of the first bills approved
by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pag-usapan. Now, if you
insist, really iyong features ng national at saka constitutional, okay. Pero gagawin na nating
consolidation of both bills. (TSN, proceedings of the Bicameral Conference Committee on 6 June 1989
submitted by Nora, R, pp. I-4 - I-5).
xxx
HON. ROCO. So how do we proceed from this? The staff will consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you are
not objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions
naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June 1989,
submitted by E.S. Bongon, pp. III-4 - III-5).
lv

Sec. 5(a & c), Sec. 8, Section 9(a).

lvi

Sections 13, 14, 15 and 16.

lvii

It would thus appear that the Senates cautious approach in the implementation of the system of initiative as a
mode of proposing amendments to the Constitution, as expressed by Senator Gonzales in the course of his
sponsorship of Senate Bill No. 17 in the Bicameral Conference Committee meeting and in his sponsorship of the

Committees Report, might have insidiously haunted the preparation of the consolidated version of Senate Bill No.
17 and House Bill No. 21505. In the first he said:

Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our political
system. And recognizing that, it has adopted a cautious approach by: first, allowing them only when the
local legislative body had refused to act; second, not more frequently than once a year; and, third,
limiting them to the national level. (I Record of the Senate, No. 33, p. 871).
xxx
First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a novel and
new system in politics. We have to adopt first a cautious approach. We feel it is prudent and wise at
this point in time, to limit those powers that may be the subject of initiatives and referendum to those
exercisable or within the authority of the local government units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new in our political system, the Senate decided on a more
cautious approach and limiting it only to the local general units. (TSN of the proceedings of the
Bicameral Conference Committee on 6 June 1989, submitted by stenographer Nora R., pp. I-2 to I-3).
In the last he declared:
The initiatives and referendum are new tools of democracy; therefore, we have decided to be cautious
in our approach. Hence, 1) we limited initiative and referendum to the local government units; 2) that
initiative can only be exercised if the local legislative cannot be exercised more frequently that once
every year. (IV Records of the Senate, No. 143, pp. 15-9-1510).
lviii

Section 20, R.A. No. 6735.

People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86 [1996] (hereafter
CRUZ).
lix

lx

People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.

lxi

Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].

lxii

Edu v. Ericta, 35 SCRA 481, 497 [1970].

lxiii

Sec. 7, COMELEC Resolution No. 2300.

lxiv

Sec. 28, id.

lxv

Sec. 29, id.

lxvi

Sec. 30, id.